2011-148. Denny's of Alaska Alaska Insurance Guaranty Association and Northern Adjusters Inc. Appellants vs. Laura H. Colrud Appellee.

• Case Date: March 10, 2011
• Court: Alaska

Alaska Workers Compensation Decisions 2011. Workers' Compensation Appeals Commission 2011-148. Denny's of Alaska Alaska Insurance Guaranty Association and Northern Adjusters Inc. Appellants vs. Laura H. Colrud Appellee Alaska Workers' Compensation Appeals Commission Denny's of Alaska, Alaska Insurance Guaranty Association, and Northern Adjusters, Inc., Appellants, vs. Laura H. Colrud, Appellee.Decision No. 148 March 10, 2011AWCAC Appeal No. 10-015AWCB Decision Nos. 09-0055 and 10-0055AWCB Case No. 199212869Final Decision Final decision on appeal from Alaska Workers' Compensation Board Final Decision and Order No. 10-0055, issued at Anchorage on March 24, 2010, by southcentral panel members William J. Soule, Chair, Jim Fassler, Member for Labor, and Dave Kester, Member for Industry; and appeal from Alaska Workers' Compensation Board Interlocutory Decision and Order No. 09-0055, issued at Anchorage on March 19, 2009, by southcentral panel members William J. Soule, Chair, Daniel Repasky, Member for Labor, and Janet Waldron, Member for Industry. Appearances: Michelle M. Meshke, Russell, Wagg, Gabbert and Budzinski, P.C., for appellants, Denny's of Alaska, Alaska Insurance Guaranty Association, and Northern Adjusters, Inc.; Laura H. Colrud, self-represented appellee, did not participate in this appeal. Commission proceedings: Appeal filed April 23, 2010; appellants' opening brief filed July 14, 2010; no other briefs filed in this appeal; oral argument presented December 21, 2010.Commissioners: Jim Robison, S.T. Hagedorn, Laurence Keyes, Chair.By: S.T. Hagedorn, Commissioner. 1. Introduction. Appellants, Denny's of Alaska, Alaska Insurance Guaranty Association, and Northern Adjusters, Inc. (collectively Denny's), appeal Alaska Workers' Compensation Board (board) Decision No. 10-0055(fn1) where the board found that appellee, Laura H. Colrud (Colrud), never filed a claim that triggered the AS 23.30.110(c) time period to request a hearing. The board determined that because Colrud sought a finding of an unfair and frivolous controversion, rather than benefits, she did not file a "written application for benefits" that would require her to request a hearing within two years after her claim was controverted. Denny's argues that the board erred in finding that Colrud never filed a valid claim that is subject to dismissal under AS 23.30.110(c). Denny's asserts that an unrepresented claimant's signing and filing of a board-prescribed "claim" form constitutes a "written application for benefits" that, when controverted by an employer, triggers the running of the subsection .110(c) time-bar. In addition, Denny's argues that Colrud's verbal amendment to include medical costs during a prehearing conference on September 12, 2007, should relate back to the original claim filed on May 30, 2007, and controverted by Denny's on July 5, 2007. Thus, because Colrud did not request a hearing within two years of Denny's July 2007 controversion, it argues her claim should be dismissed as time-barred under subsection .110(c). Lastly, Denny's contends that Colrud's circumstances do not satisfy any equitable grounds to excuse her noncompliance with subsection .110(c). The commission agrees with Denny's and, therefore, reverses the board's decision. Colrud's claim for medical costs should be dismissed as time-barred under subsection .110(c). 2. Factual background and proceedings. Colrud was working at a Denny's restaurant as a waitress, when she slipped on a wet floor and twisted her body on June 28, 1992, resulting in back pain.(fn2) Denny's accepted the claim and paid temporary total disability benefits from June 29, 1992, through April 5, 1993, and August 18, 1994, through February 1, 1995.(fn3) She received permanent partial disability benefits on April 14, 1993, in a lump sum payment,(fn4) and on September 20, 1995, she received a lump sum payment of permanent partial impairment benefits.(fn5) Medical benefits continued to be paid until Denny's controverted all benefits (with the exception of the prescription drug "Lyrica") after an employer's medical evaluation (EME) was performed by Dr. John Swanson on April 16, 2007.(fn6) Dr. Swanson opined that no further medical treatment, other than the Lyrica prescription and a home exercise program, was medically necessary or reasonable as a result of the June 28, 1992, injury.(fn7) This controversion notice was dated May 21, 2007.(fn8) On May 30, 2007, Colrud filed a "Workers' Compensation Claim" on a board-prescribed form no. 07-6106 (revised 5/06).(fn9) She stated on the form that the reason for filing the claim was: "Unfair controvert - After the insurance company received their chosen Drs. opinion, they denied my claim immediately. I'm at this time getting an attorney. June 8, 07 is when my next Drs appt. is."(fn10) On the back of the form, she checked box 24(k), indicating her claim was made for "[u]nfair or frivolous controvert (denial)[.]"(fn11) She did not check box 24(e) for medical costs.(fn12) Denny's answered on July 2, 2007, denying an unfair or frivolous controversion as well as denying medical benefits.(fn13) Denny's also filed on July 5, 2007, a board-prescribed controversion notice dated July 2, 2007, denying all medical benefits (except Lyrica) based on Dr. Swanson's EME.(fn14) At a prehearing conference held on September 12, 2007, Colrud verbally amended her claim to include medical costs.(fn15) She was told that she would be sent an affidavit of readiness for hearing (ARH) form and was advised to submit the medical bills and records that she was seeking to have paid before submitting the ARH form.(fn16) Colrud later acknowledged that she withdrew the claim of unfair controversion.(fn17) She stated that her claim was about "getting my medical bills taken care of."(fn18) After the prehearing, Colrud failed more than once to appear for scheduled depositions.(fn19) Denny's filed a petition to compel her to attend a deposition,(fn20) and eventually, on August 12, 2008, a hearing was held.(fn21) Colrud did not appear for the hearing.(fn22) The board ordered Colrud to schedule and participate in her deposition within thirty days of the decision and order, which was dated September 26, 2008.(fn23) Two more attempts were made by Denny's to depose Colrud in October and November 2008, but these were unsuccessful.(fn24) Denny's then sought to have Colrud's claim dismissed as a discovery sanction due to her failures to appear for board-ordered depositions.(fn25) At the hearing on this petition on March 3, 2009, Colrud did not appear or call in, but the board eventually reached her by phone on its second attempt part way through the hearing.(fn26) She testified that she had not attended her depositions because "I have a sick daughter and I've had marriage problems and I'm losing my house and I've got bills going to collections since the insurance company won't...