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 Date | March 30, 2010 |
Court | Alaska |
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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