Jespersen v. Tri-City Air, 031921 AKWC, 21-0026

Case DateMarch 19, 2021
CourtAlaska
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...

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