2009-124. State of Alaska Department of Transportation Appellant vs. Nicholas T. Stowell Appellee.

• Case Date: October 15, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-124. State of Alaska Department of Transportation Appellant vs. Nicholas T. Stowell Appellee Alaska Workers' Compensation Appeals Commission State of Alaska, Department of Transportation, Appellant, vs. Nicholas T. Stowell, AppelleeMemorandum Decision No.124 October 15, 2009AWCAC Appeal No. 09-022 AWCB Decision No. 09-0137AWC Case No. 200714842Order on Motion for Stay Motion for Stay of Judgment pending appeal from Alaska Workers' Compensation Board Decision No. 09-0137 issued August 9, 2009, at Fairbanks, Alaska, by northern panel members William Walters, Chair and Debra G. Norum, Member for Industry. Appearances: Daniel S. Sullivan, Attorney General, and Christopher A. Beltzer, Assistant Attorney General, for appellant State of Alaska, Department of Transportation. J. John Franich, Franich Law Office LLC, for appellant Nicholas T. Stowell. Commission proceedings: Appeal filed August 14, 2009, with Motion for Stay of Judgment. Appellant's unopposed motion for extension of time to respond to motion for stay granted August 26, 2009. Opposition to motion for stay filed August 28, 2009. Hearing on motion for stay held September 3, 2009. Supplemental memoranda requested and filed September 11, 2009. Appellant's supplemental notice of authority filed September 16, 2009. Order on motion for stay issued October 15, 2009. Unopposed motion to dismiss appeal filed October 27, 2009. Order dismissing appeal issued October 30, 2009.Commissioners: Philip E. Ulmer, David W. Richards, Kristin Knudsen.Appellant State of Alaska requests a stay of the board's order that it pay attorney fees in the amount of $8,735 to appellee's attorney on a claim that was limited to a request that the State be found to have issued a "frivolous and unfair" controversion under AS 23.30.155(c)(fn1) and an award of attorney fees.(fn2) Although the State asserts that the board made "mistakes in fact regarding the nature of the employee's condition, his treatment history, and the actions of the employer,"(fn3) the State does not appeal the board's decision on the merits of the claim for a finding that the controversion was frivolous and unfair. The State appeals the board's order to pay the attorney fee because, inter alia, the board doubled the attorney's requested fee. Appellee Stowell argues that a stay should not be granted because appellant failed to address whether Stowell is insolvent or financially irresponsible, failed to demonstrate the probability of success on the merits, and failed to demonstrate a serious legal issue. The commission, at the close of the hearing, requested the parties to present supplemental authorities on the issue of the ability of the commission to require a supersedeas bond from the State of Alaska. The parties were given opportunity to file supplemental authorities. Stowell filed a statement that he was "unaware of any additional authority on the issue."(fn4) In addition to a memorandum, on September 16, 2009, the State filed a Notice of Supplemental Authority citing AS 09.68.040 and appended a copy of a territorial statute (Alaska Compiled Laws Ann. § 55-11-6 (1949)) exempting the territory of Alaska from any requirement to post bonds in any court proceeding. The record was deemed closed September 16, 2009. 1. Factual background and board proceedings. This statement of facts is based on the material provided by the appellant and appellee and the board's decision. It is provided solely to put the present motion in context. Nicholas Stowell is an expeditor who injured his back lifting a trailer ramp a little more than two years ago. He received three epidural steroid injections, and by April 28, 2008, he reported to his physician that he was working full time, mostly symptom free. He attended an employer medical examination two days later. The State's employer medical examiner, Dr. Schroeder, reported Stowell had a six percent permanent partial impairment, had reached medical stability, and further formal treatment was not indicated "unless the claimant has an additional flare-up causing increased or severe sciatic pain or if he has any kind of neurologic deficit."(fn5) Based on this report, the State's workers' compensation adjuster controverted Stowell's entitlement to future medical benefits. The State's adjuster paid the permanent partial impairment compensation due. Stowell, through his attorney, filed a workers' compensation claim dated July 28, 2008. Stowell saw a different physician, Dr. Witham, on July 30, 2008. Dr. Witham reported Stowell did not then need active treatment, although he also opined that if his symptoms returned, he would recommend physical therapy and epidural steroids before considering surgery. Stowell submitted the bill for Dr. Witham's services to the State's adjuster, and the bill was paid. However, the State denied Stowell's claims in an answer dated August 15, 2008. Later, in December, the State formally withdrew the controversion. According to the State's attorney, he contacted Stowell's attorney on August 15, 2008, after receiving Stowell's claim, but Stowell's attorney neither returned his phone call, nor responded to a letter the State's attorney sent in September 2008. He heard nothing from Stowell's attorney until an affidavit of readiness for hearing(fn6) was filed January 29, 2009. The board heard the claim on June 18, 2009, but left the record open until July 16, 2009, to receive an amended attorney fee affidavit and response. The issues for hearing were Stowell's claim that the...