2010-132. J.C. Marketing James Cottrell IV Ohio Casualty and Liberty Northwest Movants vs. You Don't Know Jack Inc. Republic Indemnity Co. of America Casualty Insurance Co. and Gilbert P. Siemens Respondents.

Case DateMarch 30, 2010
CourtAlaska
Alaska Workers Compensation Decisions 2010. Workers' Compensation Appeals Commission 2010-132. J.C. Marketing James Cottrell IV Ohio Casualty and Liberty Northwest Movants vs. You Don't Know Jack Inc. Republic Indemnity Co. of America Casualty Insurance Co. and Gilbert P. Siemens Respondents Alaska Workers' Compensation Appeals CommissionJ.C. Marketing, James Cottrell IV, Ohio Casualty, and Liberty Northwest, Movants, vs. You Don't Know Jack, Inc., Republic Indemnity Co. of America, Casualty Insurance Co., and Gilbert P. Siemens, Respondents.Decision No. 132 March 30, 2010AWCAC Appeal No. 09-031 AWCB Decision No. 09-0197 AWCB Case Nos. 200704638, 200818556Final Decision Motion for Extraordinary Review from Alaska Workers' Compensation Board Decision No. 09-0197 issued December 17, 2009, at Anchorage, Alaska, by southcentral panel members William Soule, Chair, Dave Kester, Member for Industry, and Patricia Vollendorf, Member for Labor. Appearances: Tasha M. Porcello, Law Offices of Tasha M. Porcello, for movants J.C. Marketing, James Cottrell IV, Ohio Casualty, and Liberty Northwest. Erin K. Egan, Russell, Wagg, Gabbert and Budzinski, P.C., for respondents You Don't Know Jack, Inc., Republic Indemnity Co. of America, and Casualty Insurance Co. Michael J. Patterson, Law Offices of Michael J. Patterson, for respondent Gilbert P. Siemens. Commission proceedings: Motion for Extraordinary Review and Request for Additional Time filed on December 28, 2009. Movants' Supplemental Argument to Motion for Extraordinary Review and Notice of Excerpt of Record (20) exhibits filed on December 31, 2009. Response to motion filed January 11, 2010. Hearing on motion held February 25, 2010. Notice of Decision issued February 26, 2010.Appeals Commissioners: Jim Robison, Philip Ulmer, Kristin Knudsen. By: Jim Robison, Appeals Commissioner. 1. Introduction. J.C. Marketing asks for extraordinary review of a board decision denying its petition to strike Dr. Fred Blackwell's Second Independent Medical Evaluation (SIME) reports from the record. J.C. Marketing argues that the board denied due process by failing to notify it about the pending SIME and failing to provide an opportunity to participate in the SIME process. J.C. Marketing also argues that You Don't Know Jack, Inc. [hereinafter Jack] should have been required to join J.C. Marketing as a party before the SIME occurred because it was defending against a claim brought by Gilbert P. Siemens by arguing that J.C. Marketing, rather than Jack, was Siemens' last injurious employer. Jack opposes the motion, arguing that none of the board's asserted errors is so extraordinary as to call for the commission to depart from the sound policy favoring appeals from a final board decision. Jack contends that because J.C. Marketing may still depose Dr. Blackwell or seek its own SIME, that it cannot show prejudice. Finally, Jack claims that it could not seek joinder of J.C. Marketing until Siemens filed a claim against J.C. Marketing and Siemens did not do so until after the SIME process had begun. The commission concludes that the board has not "so far departed from the requirements of due process" that the sound policy favoring appeals from final decisions is outweighed.(fn1) Moreover, although the requirements for joinder in the Workers' Compensation Act and regulations raise an "important question of law on which there is substantial ground for difference of opinion," deciding this question now will not advance the end of the litigation(fn2) and is moot since J.C. Marketing has been joined. Therefore, the commission denies J.C. Marketing's motion for extraordinary review. 2. Factual background and board proceedings. When deciding whether to grant a motion for extraordinary review, the commission does not have the board's record to review. These facts are drawn from the board's decision and the excerpts from the record included with Jack's motion, which are not challenged by the other parties. Siemens reported injuring his lower back moving a pallet in a warehouse while working for Jack on April 12, 2007.(fn3) His employment with Jack ended on May 16, 2007, and he began working for J.C. Marketing on about May 22, 2007.(fn4) On November 27, 2007, Siemens filed a claim against Jack seeking medical treatment for the April injury.(fn5) Jack asserted that Siemens' employment with Jack may not have been "the last injurious exposure," among its defenses in its answer to the claim and in controversions filed in February 2008, May 2008, and September 2008.(fn6) Siemens testified in his deposition in April 2008 that his duties at J.C. Marketing were similar to those at Jack's but that he did more deliveries and pulling of orders.(fn7) He testified that he suffered no new injuries while working at J.C. Marketing but that "lifting and loading" caused him pain.(fn8) After taking a leave of absence and then returning to lighter duty at J.C. Marketing, he testified that his work did not aggravate his symptoms any more "than they're always...

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