2009-112. Alcan Electrical and Engineering Inc. and Seabright Insurance Co. Appellants Cross-appellees vs. Redi Electric Inc. and Novapro Risk Solutions Appellees Cross-appellants and Michael Hope Appellee.

• Case Date: July 01, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-112. Alcan Electrical and Engineering Inc. and Seabright Insurance Co. Appellants Cross-appellees vs. Redi Electric Inc. and Novapro Risk Solutions Appellees Cross-appellants and Michael Hope Appellee Alaska Workers' Compensation Appeals Commission Alcan Electrical and Engineering, Inc., and Seabright Insurance Co., Appellants, Cross-appellees, vs. Redi Electric, Inc., and Novapro Risk Solutions, Appellees, Cross-appellants, and Michael Hope, Appellee.Decision No. 112July 1, 2009AWCAC Appeal No. 08-031 AWCB Decision No. 08-0212 AWCB Case No. 200511005Final Decision Appeal from Alaska Workers' Compensation Board Interlocutory Decision and Order No. 08-0212, given verbally in hearing on October 16, 2008, and issued in writing on November 12, 2008, by southcentral panel members William J. Soule, Chair, and Robert C. Weel, Member for Industry. Appearances: Joseph M. Cooper, Russell, Wagg, Gabbert and Budzinski, for appellants and cross-appellees Alcan Electrical and Engineering, Inc., and Seabright Insurance Co. Chancy Croft, Croft Law Office, for appellee Michael Hope. Patricia Zobel, DeLisio Moran Geraghty and Zobel, for appellees and cross-appellants Redi Electric, Inc., and Novapro Risk Solutions. Commission proceedings: Motion for Extraordinary Review of October 16, 2008, verbal board order filed October 23, 2008, with Movants' Motion for Stay. Opposition to motions filed October 31, 2008. Motion for stay heard November 3, 2008. Notice of Alaska Workers' Compensation Board Dec. No. 08-0212 filed November 14, 2008. Status conference held November 14, 2008. Notice of hearing and scheduling order for renewal of motion for stay and motion for extraordinary review and filing cross-motions issued November 17, 2008. Renewed Motion for Extraordinary Review and Motion for Stay filed November 21, 2008. Cross Appeal of Redi Electric (deemed Cross-Motion for Extraordinary Review) filed November 21, 2008. Opposition to motions and to cross-appeal filed November 26, 2008. Hearing on motions held December 1, 2008. Notice of decision issued December 22, 2008. Decision and Order on Motion for Extraordinary Review, Decision No. 097, issued January 23, 2009. Briefing expedited by order and closed April 10, 2009. Oral argument waived in status conference April 24, 2009. Notice of Proposed Decision on Appeal issued May 4, 2009.Appeals Commissioners: Jim Robison, Stephen T. Hagedorn, Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. The commission agreed to hear this appeal following a motion for extraordinary review from a decision first announced by the board in a hearing on Redi Electric's petition to join a second employer, Alcan Electrical and Engineering, Inc., to a claim filed by Michael Hope, and Alcan's request for continuance of the hearing on the merits of Hope's claim, scheduled to begin a few weeks later. The board followed its verbal decision with a written decision and order which confirmed its decision to order Alcan to pay compensation and also ordered Hope to attend, and Redi to pay for, a Second Independent Medical Evaluation (SIME) pursuant to AS 23.30.110(g).(fn1) Alcan renewed its motion for extraordinary review and Redi filed a cross-motion for extraordinary review. The commission granted the motion and cross-motion for extraordinary review.(fn2) On appeal, Alcan argues the board erred by: ruling on issues not set for hearing, without notice and opportunity to be heard; directing payment of compensation without requiring a claim to be filed; ordering an SIME by a physician who had already formed an opinion against the appellant; and, denying appellant a fair hearing by allowing other persons to witness the board's deliberations. Redi also argues that the board erred by permitting others to be present during deliberation, ruling on questions not set for hearing, and by ordering it to pay for an SIME without opportunity to oppose or making the findings required by the commission's decision in Bah v. Trident Seafoods, Inc.(fn3) Redi disputes Alcan's claim of error regarding the board's choice of examiner, arguing that the choice was within the board's discretion. Hope opposes and argues that neither Alcan nor Redi was denied notice and opportunity to be heard because the board is not required to give notice before investigating a claim under AS 23.30.135; that Alcan's objection to payment of compensation is moot because it paid the compensation; and, that the commission does not have jurisdiction to hear an appeal of an "interim" decision. In reply, Redi opposes Hope's argument regarding jurisdiction, arguing that it was waived because he failed to raise the issue before filing his brief and that this argument is without merit. Redi also contends that Hope's argument (that the hearing and subsequent decision were a board investigation that does not implicate due process) was not raised in the appeal or a cross-appeal and so cannot be considered. The parties' contentions require the commission to decide if the board erred by directing Alcan to pay temporary total disability (TTD) compensation through the date of the projected board hearing on the merits, if the board correctly interpreted the commission's decision in State, Dep't of Corr. v. Dennis,(fn4) and if the board may direct an employer to pay compensation in the absence of a claim against the employer. The parties' contentions also require the commission to decide if the board had authority to direct Hope to attend, and Redi to pay for, an examination by the board's physician under AS 23.30.110(g) without notice to the parties. Finally, the assertion that other division staff were present during the hearing panel's deliberations requires the commission to consider if the hearing panel's deliberations were confidential and if the presence of other persons violated the rights of the parties to fair consideration of their arguments. 1. Factual background and board proceedings. Michael Hope injured his back, hip, and left elbow in a fall from a ladder in June 2005.(fn5) His employer, Redi Electric, Inc., voluntarily paid an initial period of compensation.(fn6) Hope worked from September 2005 for Haakensen Construction.(fn7) From November 2005 to March 2006, Hope worked for Kachemak Electric.(fn8) He then worked for Alcan Electrical and Engineering, Inc., beginning in April 2006 and continuing until November 2006.(fn9) Later, a dispute arose between Hope and Redi regarding Hope's medical treatment of his back, after Hope stopped working for Alcan. Redi controverted all benefits in March 2007, based on a report by its medical examiner, Dr. Schilperoot.(fn10) Hope filed a workers' compensation claim seeking medical benefits and disability compensation from Redi in May 2007.(fn11) This claim was controverted on the grounds that Hope's need for surgery and related disability compensation were not causally related to the injury in June 2005.(fn12) In a deposition given in 2007, Hope said that his back hurt worse after he worked for Alcan in 2006.(fn13) After reviewing Hope's deposition, Dr. Schilperoot opined that the employment by Alcan was not the substantial cause of Hope's need for medical treatment.(fn14) Meanwhile, the parties had agreed to an SIME, and the board's officer selected John McDermott, M.D., to do the examination.(fn15) Dr. McDermott's report, dated February 25, 2008, said that the 2005 injury aggravated Hope's pre-existing back conditions, suggested that the surgery by Dr. Yeung was ineffective, and recommended additional tests before considering further surgery.(fn16) On May 19, 2008, Hope had back surgery.(fn17) Redi scheduled Dr. Schilperoot's deposition, but he died shortly before his deposition.(fn18) A September 2008 hearing was rescheduled and Redi had the opportunity to obtain another expert opinion.(fn19) The hearing on Hope's claim was scheduled for November 4, 2008.(fn20) Redi selected Dr. Bald as a successor to Dr. Schilperoot. On September 25, 2008, Dr. Bald delivered an opinion that Alcan's employment was the substantial factor in Hope's need for medical treatment.(fn21) On September 24, 2008, Redi filed a petition to join Alcan as a last injurious employer, although Hope had not filed a claim against Alcan.(fn22) Redi also sought a continuance of the hearing now scheduled for November 4, 2008.(fn23) Alcan appeared at a September 30, 2008 "emergency" prehearing conference, but its attorney had not had an opportunity to review the matter, so he did not take a position before the 20 days permitted to respond to the petition to join.(fn24) Hope opposed the petition to join and the continuance of the hearing, unless Alcan would pay Hope benefits from November 4, 2006, until a decision was issued and advance him $10,000.(fn25) Dr. McDermott's deposition was taken October 2, 2008. In his deposition, he ruled out Redi Electric's injury as a contributor to the need for the May 2008 surgery.(fn26) Instead, he opined that the Alcan employment was the substantial factor in bringing about the need for the May 2008 surgery.(fn27) At a second pre-hearing conference at 12:30 p.m. on October 16, 2008,(fn28) Hope filed a petition for interim compensation.(fn29) Alcan opposed joinder and advised that, if it were joined to the claim, it would request a continuance of the November 4, 2008...