JAY JESPERSEN, Employee, Claimant,
v.
TRI-CITY AIR, Employer,
and
ALASKA INSURANCE GUARANTY ASSOCIATION, Insurer, Defendants.
AWCB Decision No. 21-0026
AWCB No. 198528817
Alaska Workers Compensation Board
March 19, 2021
FINAL
DECISION AND ORDER
William Soule, Designated Chair.
Employee
Jay Jespersen's January 23, 2018 claim as amended, and
various preliminary objections from Employer Tri-City Air
were heard on February 17 and 18, 2021, in Anchorage, Alaska,
dates selected on November 17, 2020. Employee's October
21, 2020 hearing request gave rise to this hearing. Attorney
Richard Harren appeared and represented Employee who appeared
and testified. Attorney Vicki Paddock appeared and
represented Employer and its insurer. Witnesses included Judy
Jespersen and Michael Carney, DC, who testified on
Employee's behalf. All participants appeared by Zoom. The
panel took under advisement Employer's request to strike
Employee's evidence. Oral orders granted in part
Employer's request to strike Employee's witnesses,
denied his request to reconsider that order and granted his
request to narrow the hearing's scope. Oral orders denied
Employee's request to discover Employer's attorney
fees and his request for a hearing continuance and for a
biomechanical second independent medical evaluation (SEVIE).
This decision decides Employer's evidentiary objections,
examines the oral orders and the SEVIE request, and addresses
Employee's claim on its merits. The record closed on
March 1, 2021, after the parties filed their post-hearing
attorney fee and cost documents and closing arguments.
ISSUES
Employer
contends documents Employee filed as evidence should be
stricken because they are hearsay from unreliable sources,
require expert testimony to rely upon them or are irrelevant.
Employee
contends the documents are for the lay panel-members'
benefit, are relevant to his claim and would be relied on by
witnesses at hearing. The panel took this issue under
advisement.
1)
Should Employer's petition to strike Employee's
evidence be granted?
Employer
contended Employee's non-conforming witness list should
be stricken because it provided no telephone numbers or
description of the subject matter or substance of the
witness's expected testimony. In respect to an expert
witness, it contended it had no idea what this person would
say because he provided no report. Employer insisted on its
due process right to a fair hearing and for an order
disallowing "trial by ambush."
Employee
contended Employer's request to strike his witnesses
should be denied because it filed no written objection and
two witnesses were necessary to rebut "junk
science" presented by an employer's medical
evaluator (EME). He contended Employer's lawyer had an
ethical duty to point out infirmities in his witness list
before hearing so he could correct them. Employee contended
striking his expert would violate due process and was a
litigation-ending benefit "forfeiture"; he
suggested possible ways to rectify the issue. An oral order
granted Employer's request in part; it allowed Employee
to call three of his four requested witnesses.
2) Was
the oral order striking one of Employee's four witnesses
correct?
Employee
contended he is not currently seeking permanent total
disability or vocational rehabilitation benefits, though they
are listed as issues. Thus, he contended the issue of whether
or not to set aside a settlement agreement need not be heard
and decided at this time. Employer contended the set-aside
issue and permanent total disability and vocational
rehabilitation benefits were raised in Employee's claim
and cited in the controlling prehearing conference summary as
hearing issues. It contended Employee cannot alter the issues
set for hearing. An oral order granted Employee's request
and limited the hearing's scope.
3)Was
the oral order granting Employee's request to narrow the
hearing's scope correct?
Employee
contended he has a right to discover Employer's attorney
fees so he can re-create or verify his records and capture
all time he spent on Employee's case.
Employer
contended it had no duty to present evidence to support
Employee's attorney fee affidavit. It further contended
the attorney-client privilege and work product doctrine
shielded Employer from revealing its attorney fees. An oral
order denied Employee's request.
4) Was
the oral order denying Employee's discovery of
Employer's attorney fees correct?
Employee
contends he requested medical bills from Employer's
adjuster but never received them. He contends Employer simply
provided billing documents from its attorney's office
instead. It was unclear what relief Employee was requesting.
Employer
contends it provided all medical bills in its possession even
though Employee did not ask for them until after he had
requested a hearing and less than 30 days prior to it.
Nonetheless, Employer contends it provided the documents to
Employee earlier than required by law.
5)
Should Employer be ordered to provide Employee's medical
bills from its adjuster?
On the
second hearing day, Employee requested reconsideration of the
panel's oral order from the prior day striking one of his
four requested witnesses.
Employer
contended the panel had no valid reason or authority to
reconsider a decision that has not yet been issued. An oral
order denied Employee's reconsideration request.
6)Was
the oral order denying Employee's reconsideration request
correct?
After
one of his four requested witnesses was disallowed, Employee
requested a hearing continuance. He raised various reasons
including a potential attorney-client conflict-of-interest.
Employer
objected to a hearing continuance, contending Employee's
request was made only because he was unprepared. An oral
order denied Employee's request for a hearing
continuance.
7) Was
the oral order denying Employee's request for a
continuance correct?
Employee
contends the panel should order a "biomechanical
SIME" given the disputes between non-medical expert
Mariusz Ziejewski, Ph.D. and other medical witnesses.
Employer
did not express a position on this request. It is presumed to
oppose.
8)
Should there be another SIME?
Employee
contends the 1985 plane crash remains a substantial factor in
his need for treatment and Employer is responsible for
medical care for his cervical and thoracic spine, and lumbar
spine from L4 through SI, from 2016 to the present and
continuing. He also claims against Employer for diabetes
treatment as a prerequisite to getting care for his
work-related conditions.
Employer
contends the 1985 plane crash does not remain a substantial
factor in his need for treatment from 2016 forward. It
contends Employee's spine-related symptoms are the result
of his post-1985-injury self-employment and aging. Employer
further contends for this reason it has no responsibility to
treat Employee's diabetes.
9) Has
the 1985 work injury remained a substantial factor in
Employee's need for medical care and treatment for his
spine and diabetes since 2016?
Employee
contends he is entitled to interest and an attorney fee and
cost award. Employer contends Employee is not entitled to
interest or attorney fees or costs unless he prevails and
even then his fees and costs should be reduced for various
reasons.
10) Is
Employee entitled to interest and an attorney fee and cost
award?
FINDINGS
OF FACT
1) At
Harren's request, Employee's chiropractor Dr. Carney
transcribed chart notes for Employee from Dr. Carney's
Falls Chiropractic Clinic. Pre-injury records show in 1975,
the clinic adjusted Employee's cervical spine at CI, 2, 3
and 5 and thoracolumbar spine from T12 to SI, and his left
hip. Later in 1975, Employee hit his head on a barn post and
the clinic diagnosed a cervical strain and adjusted his neck;
a recurrent cervical strain resulted in adjustments later in
1975. In April 1981, Employee had lumbosacral pain for two
weeks and the clinic adjusted L2, 3, 4, 5, and both
sacroiliac joints; the diagnosis was lumbosacral subluxation.
According to a May 23, 1986 entry, on May 22, 1985, Employee
strained his low back "pulling a man out of the
lake"; Dr. Carney interpreted this difficult to read
note to say "1985" but given the context it could
be...