2009-114. Voorhees Concrete Cutting and Alaska National Insurance Co. Appellants vs. Kenneth Monzulla Appellee.

• Case Date: August 06, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-114. Voorhees Concrete Cutting and Alaska National Insurance Co. Appellants vs. Kenneth Monzulla Appellee Alaska Workers' Compensation Appeals Commission Voorhees Concrete Cutting and Alaska National Insurance Co. Appellants, vs. Kenneth Monzulla, Appellee.Decision No. 114 August 6, 2009AWCAC Appeal No. 08-032 AWCB Decision No. 08-0190 AWCB Case No. 199922832Final Decision Appeal from Alaska Workers' Compensation Board Interlocutory Decision and Order No. 08-0190, issued at Fairbanks, Alaska, on October 15, 2008, by northern panel members William Walters, Chair, and Jeffrey P. Pruss, Member for Labor. Appearances: Richard L. Wagg, Russell, Wagg, Gabbert and Budzinski, P.C., for appellants Voorhees Concrete Cutting and Alaska National Insurance Co. Kenneth Monzulla, pro se, appellee. Commission proceedings: Motion for Extraordinary Review and Motion for Stay of Proceedings filed October 24, 2008. Opposition to motions filed November 6, 2008. Hearing on motions convened November 6, 2008; respondent's request for continuance granted by the commission panel. Hearing on motions held December 4, 2008. Motion for Extraordinary Review granted, and appellants' motion for stay of proceedings partially granted, December 16, 2008. Appellee's request for reconsideration filed December 22, 2008. Appeal filed December 24, 2008. Opposition to request for reconsideration filed December 31, 2008. Notice of Limited Intervention filed by Director January 16, 2009. Order on Motion for Reconsideration issued February 3, 2009. Extension of time to prepare record granted, February 6, 2009. Oral argument on appeal convened May 14, 2009; appellee's motion for a continuance granted by the panel. Appellee's letter, filed April 24, 2009, deemed motion for recusal of appeals commission panel.(fn1) Appellants' opposition to motion for recusal filed May 21, 2009. Order denying motion for recusal issued May 27, 2009. Oral argument on appeal presented May 28, 2009.Commissioners: Jim Robison, Philip Ulmer, Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Jim Robison, Appeals Commissioner. This case has come before the commission for the second time on the question of the proper venue for Kenneth Monzulla's claim. Voorhees Concrete Cutting and its insurer (Voorhees) argue that substantial evidence does not support the board's second refusal to change venue from Fairbanks to Anchorage. Voorhees argues that the board abused its discretion because the evidence showed that holding the hearing in Anchorage was more convenient for the parties and witnesses and would result in substantial savings. In addition, Voorhees contends that the board impermissibly relied on its own convenience in deciding to retain venue in Fairbanks in disregard of the requirements of 8 AAC 45.072(2) and a prior commission decision. Kenneth Monzulla argues that this commission decided the question of venue and Voorhees should not be permitted to raise it again. He also contends that the board properly retained venue in Fairbanks because the northern panel is familiar with his case and the staff in Fairbanks has been helpful to him over the years, and that moving venue to Anchorage will cause further delay. The parties' contentions require the commission to decide whether the board abused its discretion in refusing to change the venue to Anchorage. The commission concludes that the board abused its discretion in refusing to change venue because (1) the board erred as a matter of law by considering its own interests, and (2) the board disproportionately burdened the employer's right to present live witnesses when credibility was at issue. Moreover, the commission concludes that its prior decision upholding the board's first refusal to change venue does not operate as the law of case to prevent the board from reconsidering venue because the former issues have been resolved, a different claim is ready for hearing, and Voorhees produced new evidence on convenience now that it knows the witnesses that it intends to call. Therefore, the commission reverses the board's denial of the petition to change venue. 1. Factual background and proceedings. There is a lengthy record in this case. We summarize only facts necessary to put the issues in the appeal in context. In our earlier decision in Voorhees Concrete Cuttingv. Monzulla,(fn2) we provided the following recitation of facts from the record:

Kenneth Monzulla worked as a concrete cutter for Voorhees Concrete Cutting in Fairbanks. He injured his back picking up a bucket of scrap rebar on November 9, 1999. A Magnetic Resonance Imaging (MRI) scan on January 25, 2000, showed a minor left sided disc bulge at the L5-S1 level of the spine, but no herniation, and early lumbar spondylosis. Although released for part-time work March 31, 2000, he was not able to continue, and on May 11, 2000, his attending physician removed him from work. The employer paid temporary total disability compensation, temporary partial disability compensation and medical benefits. . . .

In November 2000, and in January 2001, the employee filed workers' compensation claims for additional temporary total disability compensation, medical benefits, attorney fees and costs, and a Second Independent Medical Evaluation (SIME). The employer filed an answer and controversion of the claim based on its medical evaluator's report. The board order the second independent medical evaluation, and the evaluation, by Marvin Bloom, M.D., took place in May 2001.

. . . Monzulla and Voorhees entered into a settlement agreement that compromised and released all benefits Monzulla might claim, except future medical benefits for Monzulla's thoracic and lumbar spine . . . . The settlement was approved by the board on September 14, 2001.

Monzulla moved from Fairbanks to the Kenai Peninsula, where he lives in . . . Clam Gulch . . . . He began treatment with Lavern Davidhizar, M.D., who prescribed pain medication, including Methadone. He was evaluated by several other physicians, and underwent MRI scans in January 2003 and September 2003. The January scan showed disc bulging and an annular tear at the L5-S1, and disc extrusion at L4-5. The September [2003] MRI scan showed a new disc extension at L5-S1.

In 2004, Dr. Davidhizar ordered another MRI scan, which showed a ruptured disc at the L5-S1 level and progression of degeneration at L4-5. Although Monzulla wanted to be evaluated for disc replacement surgery in California, neither his Fairbanks physicians nor Dr. Davidhizar recommended it. Nonetheless, Monzulla filed a claim for permanent total disability compensation, medical benefits for disc replacement surgery, travel costs, and requesting a penalty for a frivolous controversion of his benefits. In a prehearing conference, Monzulla's claims for surgery, transportation costs, and an unfair controversion penalty were set for a hearing in Fairbanks on May 5, 2005. Monzulla drove to the hearing from his home in Kenai and back. . . .

The board, after reviewing the medical evidence, determined that the evaluation [for disc replacement surgery] was not reasonable and necessary medical care. . . .

. . . Monzulla asked for reconsideration and the board denied reconsideration. Monzulla did not appeal the board's decision.

Monzulla filed a new workers' compensation claim on December 8, 2005. The issues for hearing were limited . . . to compensability of the back condition, prescriptions for a hot tub, a queen size bed, a log splitter, recliner, and toilet riser, and reimbursement of travel costs to attend the May 5, 2005, hearing.

This claim was heard on April 27, 2006. Once again, Monzulla drove to Fairbanks and back for the hearing. . . . In an interlocutory decision, the board decided that the lumbar spine "condition and symptoms are compensable." The board ordered a [SIME] by Dr. Bloom or another physician to give an opinion on the reasonableness and necessity of disc replacement surgery, the reasonableness and necessity of the hot tub, toilet riser, gym equipment, log splitter, and recliner as medical care devices. The board retained jurisdiction to decide the remaining claims, including the legal costs, after the SIME report.

The SIME was done by Sanford Lazar, M.D. on Aug. 18, 2006. . . .

Before the board issued a final opinion, Voorhees requested a change of venue to Anchorage. Monzulla opposed the change. He argued that he wanted the case to remain in Fairbanks . . . until the outstanding issues were resolved, then, he would be willing to "talk about" moving venue to Anchorage. At the March 1, 2007 hearing he testified that "You guys are doing a pretty good job there [in Fairbanks] and it gets done quicker by the sounds of it."

In its final decision

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