MANIVANH CHANDARA, Employee, Claimant,
v.
VIDA’S THAI FOOD, LLC, ANDREW STUBBLEFIELD, WICHULADA BUNCHIM, Uninsured Employer,
and
ALASKA WORKERS’ COMPENSATION BENEFITS GUARANTY FUND, Defendants.
AWCB Decision No. 20-0050
AWCB No. 201915340
Alaska Workers Compensation Board
June 24, 2020
FINAL
DECISION AND ORDER
William Soule, Designated Chair.
Manivanh
Chandara’s (Employee) claim was heard on June 10, 2020,
in Anchorage, Alaska, a date selected on February 13, 2020. A
November 6, 2019 request gave rise to this hearing. Attorney
Lee Goodman appeared and represented Employee who appeared by
telephone and testified. Attorney Erik Brown appeared by
telephone and represented Andrew Stubblefield, Wichulada
Bunchim and Vida’s Thai Food, LLC (collectively,
Employer). Non-attorneys Velma Thomas and McKenna Wentworth
appeared by telephone for the Alaska Workers’
Compensation Benefits Guaranty Fund and its adjuster,
respectively (collectively, the fund). Witnesses included
Brad Kirby and Olivia Tipikin for Employee and Stubblefield
and Bunchim for Employer. Oral orders found Stubblefield and
Bunchim were joined as parties to Employee’s claim,
denied Employer’s continuance request and granted
Employee’s request to strike Employer’s
late-filed witness list and evidence. This decision examines
the oral orders and decides Employee’s claim on its
merits. The record remained open for Employee’s
supplemental attorney fee and cost affidavit, and
Employer’s response, and closed on June 17, 2020.
ISSUES
The
fund contended Stubblefield and Bunchim are Employer’s
limited liability company’s (LLC) “sole members
and owners.” It contended they should be joined as
parties to Employee’s claim as persons against whom a
right to relief may exist.
Employer
contended it is a corporation and as such, Stubblefield and
Bunchim cannot be joined as responsible parties; it objected
to joinder.
Employee
contended Stubblefield and Bunchim were already joined as
parties because they failed to timely object to the
fund’s petition. An oral order decided Stubblefield and
Bunchim were joined because they failed to object timely to
the fund’s joinder request and had waived their right
to object. The order also held this decision would not
address the fund’s contention that Stubblefield and
Bunchim could be held personally liable for any benefits
awarded in this decision, because that issue was not raised
as an issue for this hearing.
1) Was
the oral order on the fund’s joinder petition correct?
Employer
contended the hearing should be continued for several
reasons: (1) three coworkers signed affidavits disputing
Employee’s statement that she reported the incident to
them; (2) her coworkers said they did not see Employee set a
heavy pot down on the floor as she stated; (3) she never
reported the injury until September 16, 2019; (4) the panel
needs time to read Employee’s deposition; and (5)
Employer has contemporaneous workplace video evidence calling
Employee’s injury into question and the panel needs
time to review it.
Employee
objected to the continuance request. She was ready to proceed
to hearing on the agreed-upon date. Employee contended
Employer failed to show good cause for a hearing continuance.
The fund initially contended the continuance should be
granted; however, after further discussion it withdrew its
concurrence after the designated chair sent the fund’s
representatives a copy of Employee’s deposition
transcript. An oral order denied Employer’s continuance
request.
2) Was
the oral order denying Employer’s hearing continuance
correct?
Employee
contended Employer’s late-filed witness list should be
stricken and Employer should not be allowed to call any
witnesses other than parties. She further contended
Employer’s late-filed evidence should similarly not be
considered.
Employer
conceded the witness list and evidence were late. It
contended the evidence was important and was not filed on
time because Employer was uncertain if witnesses would sign
affidavits and it did not want to use subpoena power to
coerce them.
The
fund contended though the witness list and evidence were
filed late, they should be allowed for impeachment. An oral
order sustained Employee’s objection to
Employer’s witness list and evidence and stated they
would not be considered as evidence; however, Stubblefield
and Bunchim would be allowed to testify because they are
parties.
3) Was
the oral order disallowing Employer’s late-filed
witness list and evidence correct?
Employee
contends her lumbar injury arose out of and in the course of
her employment with Employer; she seeks an order to so
finding.
Employer
contends Employee’s lumbar injury did not arise out of
or in the course of her employment; it seeks an order denying
her claim on that basis.
The
fund contends Employer presented only speculation about what
may have happened before the alleged work injury to cause
Employee’s symptoms; it agreed with her presumption
analysis.
4) Did
Employee’s injury arise out of and in the course of her
employment?
Employee
contends she has been temporarily totally disabled (TTD)
since September 14, 2019. She seeks an order awarding TTD
benefits against Employer.
Since
it contends Employee’s injury did not arise out of or
in the course of employment, Employer implicitly contends she
is not entitled to TTD benefits.
The
fund agrees with Employee’s presumption analysis but
did not otherwise comment on her TTD benefit claim.
5) Is
Employee entitled to TTD benefits?
Employee
contends she is entitled to permanent partial impairment
(PPI) benefits for her work injury once she becomes medically
stable and is rated. She seeks an order awarding PPI benefits
against Employer.
Since
it contends Employee’s injury did not arise out of or
in the course of employment, Employer implicitly contends she
is not entitled to PPI benefits.
The
fund did not express a position on PPI benefits.
6) Is
Employee entitled to PPI benefits at this time?
Employee
contends she incurred medical expenses for her work injury.
She seeks an order awarding medical benefits including
transportation costs against Employer.
Since
it contends Employee’s injury did not arise out of or
in the course of employment, Employer implicitly contends she
is not entitled to any medical benefits including
transportation costs. It did not otherwise object to
Employee’s submitted medical expenses or mileage.
The
fund agrees with Employee’s presumption analysis but
did not otherwise comment on her claim for medical benefits
including transportation costs.
7) Is
Employee entitled to medical benefits and transportation
costs?
Employee
contends she is entitled to a penalty for Employer’s
failure to either pay or controvert her right to benefits and
her claim. She seeks a penalty against Employer under AS
23.30.155(e).
Since
it contends Employee’s injury did not arise out of or
in the course of employment, Employer implicitly contends she
is not entitled to a penalty.
The
fund contends there should be no penalty assessed under AS
23.30.100, but did not express an opinion on Employee’s
penalty claim under AS 23.30.155(e).
8) Is
Employee entitled to a penalty?
Employee
contends she is entitled to interest on all benefits awarded
and attorney fees and costs, if she succeeds on her claim.
Since
it contends Employee’s injury did not arise out of or
in the course of employment, Employer implicitly contends she
is not entitled to interest, attorney fees or costs.
The
fund did not state a position on Employee’s claim for
interest, attorney fees or costs.
9) Is
Employee entitled to interest, attorney fees and costs?
FINDINGS
OF FACT
A
preponderance of the evidence establishes the following facts
and factual conclusions:
1) On
September 9, 2019, Employer was not insured for workplace
injuries. (Agency file).
2) On
September 9, 2019, Employee lifted a pot of soup from a stove
at work for Employer and felt a “pinch” in her
lower back. In her deposition, Employee had said she lifted
the pot from...
