2009-113. Lowe's HIW Inc. and Specialty Risk Services Inc. Appellants vs. Pamela G. Anderson Appellee.

• Case Date: July 23, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-113. Lowe's HIW Inc. and Specialty Risk Services Inc. Appellants vs. Pamela G. Anderson Appellee Alaska Workers' Compensation Appeals CommissionLowe's HIW, Inc., and Specialty Risk Services, Inc., Appellants, vs. Pamela G. Anderson, Appellee.Decision No.113 July 23, 2009AWCAC Appeal No. 09-018 AWCB Decision No. 09-0097 AWCB Case No. 200305373Memorandum Decision and Order Motion for Stay of Alaska Workers' Compensation Board Decision and Order No. 090097, issued May 19, 2009, at Anchorage, Alaska by southcentral panel members Linda M. Cerro, Chair, Don Gray, Member for Industry, and Howard Hansen, Member for Labor.(fn1) Appearances: Patricia Zobel, DeLisio, Moran, Geraghty and Zobel, for appellants Lowe's HIW, Inc., and Specialty Risk Services, Inc. Michael J. Jensen, Esq., for appellee Pamela G. Anderson. Commission proceedings: Appeal, with Motion for Stay Pending Appeal, filed June 2, 2009. Hearing on motion for stay of board order pending appeal held June 23, 2009. Notice of proposed decision and order on motion for stay pending appeal issued June 26, 2009. Instruction to file briefs issued July 15, 2009.Commissioners: David Richards, Stephen T. Hagedorn, Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. The appellants filed a timely request for a stay of Alaska Workers' Compensation Board Decision Number 09-0097.(fn2) The commission heard the motion for stay on June 23, 2009. At the end of the hearing, the commission requested the appellants to provide a statement of the calculation of amounts stayed in order to calculate a supersedeas bond amount, if required, and the appellee to list objections and alternative calculations, by Thursday, June 25, 2009. In response to the commission's request, the parties filed two documents: a calculation by the appellants showing a base bonded amount of $343,678.81 including temporary disability compensation payable through October 17, 2009, and an alternate calculation by appellee including an additional $102,000 (unallocated) for combined future permanent partial impairment (PPI) compensation, temporary total disability (TTD) compensation after October 17, 2009, and costs of future medical treatment. The commission agreed to give the parties notice of its proposed decision in light of the anticipated absence of the commission chair. The commission's Notice of Proposed Decision was issued June 26, 2009. No objection was received to the proposed decision.(fn3) This memorandum decision is the final decision on the appellants' motion for stay. For reasons set out below, the commission granted the motion for stay in part and ordered the filing of a supersedeas bond in the amount of $ 337,722.00. 1.Factual background and board proceedings. The appellee was a kitchen designer for Lowe's HIW. She experienced low back pain when assisting a customer while lifting and rotating a 50-pound cabinet on April 4, 2003. She experienced low back pain on May 22, 2003, when reaching for a clip board. These are the only injuries that are the subject of her claim. Appellee did not dispute that she had serious pre-existing degenerative disc disease, spinal stenosis, and myelopathy in her cervical spine, and severe degenerative disc disease and spondylosis in her lumbar spine before the 2003 injuries. She was also found to have degenerative osteoarthritis in her right hip. Thus, the question has always been whether the 2003 injuries so aggravated, accelerated, or combined with her pre-existing spinal disease as to be a substantial factor in bringing about the ensuing disability and need for medical treatment. The board's efforts to grapple with the contested issues arising from the well-documented injuries, and the parties' claim theories and defenses based on the mainstream of workers' compensation law, resulted in a decision that is 100 pages long.(fn4) 2. Motion for stay before the commission. The appellants request that the board's order directing payment of a lump sum of PPI compensation, past TTD compensation, and past medical benefits related to neck surgeries be stayed.(fn5) The appellants also ask that the board's order directing payment of TTD compensation in the future be stayed, as well as all payment of medical benefits, past and future, related to the appellee's neck surgery. The appellants stated in hearing on the motion that they are willing to provide a supersedeas bond. In hearing, they requested the stay be issued nunc pro tunc to the day the appeal was filed. The appellee objects to the requested stay. She argues that the appellants do not meet the test for a stay set out by this commission in Peak Oilfield Serv. Co. v. Lindgren.(fn6) The appellants, she argues, failed to demonstrate serious and substantial questions going to the merits of the board's decision on the PPI award, because they do not appeal the amountof the award. The appellee argues that the appellants fail to raise serious and substantial questions going to the question of entitlement to future TTD because they do not dispute the work-relationship of her chronic pain treatment to the lumbar spine injury. The appellee argues that the appellants have not raised serious and substantial questions on the merits of the award of medical benefits because no contrary evidence was introduced to dispute the reasonableness of the treatment. While appellee concedes that there was disputed evidence regarding the work-relationship of the cervical condition, she argues the appellants failed to establish that the future benefits related to that condition may not be stayed because the appellants failed to demonstrate irreparable harm and the likelihood, as appellee's counsel stated in hearing, of "success on appeal." Appellee argues that no stay should be ordered, although she concedes that she did not request the board to award a lump sum of PPI concurrent with TTD benefits for the same injury. 3. Commission authiority to stay board orders pending appeal. AS 23.30.125(c) permits the commission to stay enforcement of a compensation order pending the commission's final decision on appeal.(fn7) The commission may grant a stay of payments required by a board order if the commission finds that the party seeking the stay is able to demonstrate the appellant "would otherwise suffer irreparable damage"(fn8) and that the appeal raises "questions going to the merits [of the board decision] so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation."(fn9) Continuing future...