EVA ANN BRINK, Employee, Claimant,
v.
STATE OF ALASKA, Self-Insured Employer, Defendant.
AWCB Decision No. 21-0019
AWCB No. 201910622
Alaska Workers Compensation Board
March 2, 2021
FINAL DECISION AND ORDER ON RECONSIDERATION
Ronald
P. Ringel, Designated Chair.
Eva Ann
Brink’s February 24, 2021 petition for reconsideration
of Brink v. State of Alaska¸ AWCB Decision No.
21-0011 (February 16 2021) (Brink I), was heard on
the written record in Anchorage, Alaska on February 25, 2021,
a date selected on February 25, 2021. The hearing was set on
the Board’s own motion to comply with the time limit in
AS 44.62.540. Non-attorney Barbara Williams represented Eva
Ann Brink (Employee). Assistant Attorney General Adam
Franklin represented the State of Alaska (Employer). The
record closed at the hearing’s conclusion on February
25, 2021.
ISSUE
Employee
contends Brink I should be reconsidered because it
erred in finding Employee’s appeal from a Board
designee’s discovery was not timely and that the Board
designee had not abused her discretion. Under the Act, the
deadline for the Board to respond to Employee’s
petition for reconsideration is before the date by which
Employer must respond to the petition. Consequently
Employer’s position is unknown, but it is presumed
Employer opposes reconsideration.
Should
Brink I be reconsidered?
FINDINGS
OF FACT
All
factual findings in Brink I are incorporated by
reference and may be repeated below. The following facts and
factual conclusions are established by a preponderance of the
evidence:
1.
Employee worked as a nurse for Employer at the Alaska
Psychiatric Institute. On August 7, 2019, she was attacked by
a patient who hit her on the right side of her face.
(Brink I).
2. On
September 10, 2019, Mr. Franklin entered his appearance on
behalf of Employer. (Entry of Appearance, September 10,
2019).
3. On
January 29, 2020, Mr. Franklin withdrew his entry of
appearance for Employer. (Withdrawal of Counsel, January 29,
2020).
4. On
August 21, 2020, Mr. Franklin again entered his appearance on
behalf of Employer. (Entry of Appearance, August 21, 2020).
5. On
August 31, 2020, Employer sent two releases and a cover
letter to Ms. Williams by certified mail asking that Employee
sign and return the releases. One release was for medical
records, and the other was for mental health records. The
letter does not indicate the releases had also been sent to
Employee. (Brink I).
6. On
September 14, 2020, Mr. Franklin emailed Ms. Williams noting
Employer had not received the signed releases or a petition
for a protective order and asking for as an update. There is
no response to the email in the record. (Brink I).
7. On
September 23, 2020, Employer filed a petition to compel
Employee to sign and return the releases. Employer’s
August 31, 2020 letter to Ms. Williams and two releases were
attached. (Brink I).
8. Mr.
Franklin was not able to attend the September 29, 2020
prehearing conference, and Employee and Ms. Williams agreed
to reschedule the prehearing for November 4, 2020. Neither
the releases nor Employer’s petition to compel were
discussed. The prehearing conference summary was served on
Ms. Williams by mail and on Employee by both mail and email.
(Brink I).
9. Also
on September 29, 2020, Employee filed a petition for a
protective order related to the releases. Attached to the
petition are copies of the two releases sent to Ms. Williams
on August 31, 2020. Employee listed four reasons she should
not have to sign the releases: 1) the releases did not
identify the adjuster, 2) she was not requesting
psychological benefits, 3) she had not been seen by some of
the providers listed on the releases, and 4) she objected to
releases seeking records more than two years before the date
of the work injury. (Brink I).
10. Mr.
Franklin, Ms. Williams, and Employee all attended the
November 4, 2020 prehearing conference. Ms. Williams stated
Employee would sign appropriate medical releases, but the
releases at issue were overbroad, particularly the mental
health records release because Employee was not claiming
mental health benefits. Mr. Franklin explained Employee had
been diagnosed with anxiety and depression as well as a head
injury. The designee asked Mr. Franklin to identify the
records indicating any psychiatric history, and deferred
ruling on the releases so Employer could file the records.
(Brink I).
11. On
November 5, 2020, Employer filed a petition to compel
Employee to attend an EME. At the same time, Employer filed
the medical records requested by the designee at the November
4th prehearing. Employer submitted seven records diagnosing
Employee with mental health conditions, included anxiety,
depression, and conversion disorder. Also included was the
opinion of a neuropsychologist that symptoms of
Employee’s depression and anxiety were being
misinterpreted as neurological symptoms. (Brink I).
12.
Unfortunately, the medical records Employer filed were
entered into the division’s system as an attachment to
the November 5th...
