2009-109. Jo Rae McKenzie Appellant vs. Assets Inc. and Commerce and Industry Insurance Co. Appellees.

Case DateMay 14, 2009
CourtAlaska
Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-109. Jo Rae McKenzie Appellant vs. Assets Inc. and Commerce and Industry Insurance Co. Appellees Alaska Workers' Compensation Appeals Commission Jo Rae McKenzie, Appellant, vs. Assets, Inc., and Commerce and Industry Insurance Co., Appellees.Decision No. 109 May 14, 2009AWCAC Appeal No. 08-020 AWCB Decision No. 08-0109 AWCB Case No. 200601998Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 08-0109, issued at Anchorage, Alaska, on June 11, 2008, by southcentral panel members Darryl Jacquot, Chair, Patricia A. Vollendorf, Member for Labor, and Janet Waldron, Member for Industry. Appearances: Jo Rae McKenzie, pro se, appellant. Colby Smith, Griffin and Smith, for appellees Assets, Inc., and Commerce and Industry Insurance Co. Commission proceedings: Appeal filed July 7, 2008. Appellant's request to waive fees granted August 19, 2008. Appellant's request for extension of time to file opening brief granted October 1, 2008. Appellees' request for extension of time to file brief granted November 19, 2008. Oral argument on appeal presented February 10, 2009.Appeals Commissioners: Philip Ulmer, David Richards, Kristin Knudsen.Appeals Commissioners Philip Ulmer and David Richards affirm the board's dismissal of appellant's claims; Appeals Commissioner Richards also separately concurs. Appeals Commission Chair Kristin Knudsen dissents in part. This decision has been edited to conform to technical standards for publication. By: Philip Ulmer, Appeals Commissioner. This is an appeal of the board's dismissal of Jo Rae McKenzie's workers' compensation claims for her failure to cooperate with discovery. Appellant contends she did not attend a deposition, as ordered by the board, because her doctor advised against it. She argues a biased board treated her unfairly, and denied her equal protection and substantive due process by failing to give her claims as much weight as a party represented by an attorney. Lastly, she asserts that "turning" of her expert witness Dr. Chang amounted to spoliation of the evidence. If it had not been for the spoliation of her evidence, she argues, she would have had a viable claim that should not have been dismissed. The appellees, Assets, Inc., and its insurer, contend that sanctioning McKenzie with dismissal of her claims was appropriate because she willfully obstructed discovery and repeatedly failed to comply with the board's orders after being warned by the board that she was risking dismissal. The appellees argue no lesser sanction, such as forfeiture of future workers' compensation benefits, would be appropriate because no future benefits are owed. The parties' contentions require the commission to decide whether the board abused its discretion when it dismissed McKenzie's workers' compensation claims because she refused to attend a deposition after the board ordered her to do so. The commission also must decide whether McKenzie stated an identifiable constitutional claim on appeal and a claim of board error based on alleged spoliation of evidence, and whether the board treated her in an unfair and biased manner. The commission concludes the board did not abuse its discretion in dismissing McKenzie's workers' compensation claims. In addition, the commission concludes McKenzie failed to make out her claims of constitutional error or board error based on alleged spoliation of evidence, and the claim of board bias is meritless. Therefore, the commission affirms the board decision. 1. Factual background and board proceedings. McKenzie injured her knees, hands and right shoulder when she slipped on the ice while assisting a client as a life coach for Assets, Inc., on February 25, 2006.(fn1) Assets began paying temporary total disability (TTD) compensation.(fn2) On April 6, 2006, McKenzie requested vocational reemployment benefits.(fn3) Assets, Inc., sought releases from McKenzie to obtain medical records, employment records, unemployment benefits information and records, if any, showing previous receipt of reemployment benefits under AS 23.30.107. McKenzie objected to the releases by petitioning for protective orders,(fn4) and when the board designee denied the protective orders,(fn5) McKenzie appealed to the board. Laura Waldon, who is not an attorney, represented McKenzie.(fn6) The board concluded its designee had not abused her discretion in denying the protective orders because the information the employer sought was relevant to McKenzie's injuries and workers' compensation claim and, where appropriate, was limited in scope.(fn7) The board stated:
The Board is mindful of and agrees with the employee's argument that filing a workers' compensation claim does not justify a wholesale invasion of privacy. However, the Board finds that when the information sought is relevant to the case before us, it is discoverable. Finally, the board warns the employee that non-cooperation with discovery may result in sanctions, up to and including dismissal of her claim.(fn8)
The board ordered McKenzie to sign the releases and deliver them to the employer within 10 days of receiving the board's decision.(fn9) In the meantime, Assets learned of an earlier work-related injury and revised its medical release to extend to two years before that injury.(fn10) McKenzie again sought a protective order that the board designee denied.(fn11) McKenzie appealed to the board, which once again upheld the denial of the protective order because the medical release would provide information relevant to her claim.(fn12) The board noted that McKenzie had "ignored . . . without explanation" its earlier order to sign the releases.(fn13) It required McKenzie to sign all the releases and deliver them to the employer on or before April 9, 2007.(fn14) It also warned:
[W]e strongly advise the employee to sign the requested medical release as ordered here, and as ordered in McKenzie I, or face dismissal of her claim in its entirety. We note, however, Ms. Waldon's advice appears to be heading towards dismissal of the employee's claims.(fn15)
McKenzie apparently signed the releases sometime before a May 2007 prehearing conference.(fn16) But McKenzie resisted Assets' other efforts to obtain discovery. She failed to attend a properly noticed employer medical examination (EME) on May 31, 2007.(fn17) The same day as the examination, McKenzie's doctor, Dwayne E. Trujillo, advised in a letter that she "was unable to attend her recent independent medical evaluation due to a worsening in her medical condition. Specifically, she continues to have left knee pain and swelling as well as recent progressive right foot pain and swelling that makes it difficult to walk." (fn18) Assets scheduled another EME for October 5, 2007.(fn19) McKenzie was properly notified. When she did not attend this EME, Assets controverted her benefits.(fn20) That same month, McKenzie attended a medical evaluation performed to determine if she was eligible for Social Security benefits, and the examiner found her to be "competent to manage her own benefits."(fn21) McKenzie also opposed and resisted Assets' efforts to take her deposition. At a July 2007 prehearing conference, Assets requested a date for McKenzie's deposition.(fn22) Waldon stated that McKenzie was on bed rest and could not leave her home but never provided medical documentation of McKenzie's condition requiring bed rest.(fn23) Assets' attorney offered to depose McKenzie at her home if that was necessary.(fn24) Two months later, on September 18, 2007, Assets sought to compel McKenzie to attend a deposition.(fn25) McKenzie requested a protective order to postpone the deposition based on an October 2, 2007, letter from Dr. Trujillo.(fn26) He recommended that McKenzie "defer her participation in an upcoming deposition . . . until her depression is under better control," possibly in two to three months.(fn27) Around this same time, McKenzie also sought medical benefits for pain and swelling in her right foot.(fn28) Assets controverted these benefits, asserting that her right foot condition was not work-related.(fn29) It quoted Dr. Trujillo who opined in a May 31, 2007, report that her "foot pain and swelling appeared to be a exacerbation of a non-work related underlying medical condition that started after a recent physical medicine and rehabilitation foot exam."(fn30) McKenzie relied on the November 2007 opinion of Dr. Eugene Chang who stated that the right foot condition was related to the original knee injury.(fn31) However, after evaluating her medical records, Dr. Chang changed his opinion and concluded that her right foot problems were not related to the 2006 work injury.(fn32) Meanwhile, Dr. Trujillo renewed his recommendations that McKenzie was not capable of participating in a deposition or an EME when he reevaluated McKenzie on November 30, 2007.(fn33) He opined that she still had "significant symptomatic depression which impairs her global cognitive abilities."(fn34) Nevertheless, an EME was scheduled for December 8, 2007. Assets' attorney asked Dr. Trujillo in a November 30, 2007, letter to explain why McKenzie's mental condition permitted her to be seen by her treating physicians but precluded an evaluation by the employer's doctors.(fn35) The letter also asked if there were any accommodations that would allow her to participate in either a deposition or an EME.(fn36) The letter was faxed to Dr...

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