Kimissa v. Silver Bay Seafoods, LLC, 011420 AKWC, 20-0001

Case DateJanuary 14, 2020
CourtAlaska
DIEUDONNE M. KIMISSA, Employee, Claimant,
v.
SILVER BAY SEAFOODS, LLC, Employer,
And
LIBERTY INSURANCE CORPORATION, Insurer, Defendants.
AWCB Decision No. 20-0001
AWCB No. 201811446
Alaska Workers Compensation Board
January 14, 2020
         INTERLOCUTORY DECISION AND ORDER           Jung M. Yeo, Designated Chair.          Dieudonne Kimissa’s (Employee) October 15, 2019 petition appealing a prehearing conference discovery order was heard on the written record on December 17, 2020, in Anchorage, Alaska, a date selected on November 19, 2019. Employee’s petition gave rise to this hearing. Attorney Justin Eppler represents Employee. Attorney Jeffrey Holloway represents Silver Bay Seafoods, LLC, and its insurer (Employer). The record remained open until January 8, 2020, for additional briefing and closed on January 8, 2020.          ISSUE          Employee contends the designee abused his discretion when he denied Employee’s discovery request for the identity of Employer’s recruiters and records custodian, and its hiring protocols, which are relevant to Employer’s AS 23.30.022 defense.          Employer contends the designee’s denial of discovery was correctly decided and Employee’s appeal should be denied.          Did the designee abuse his discretion when he denied Employee’s discovery request for the identity of Employer’s recruiters and records custodian, and its hiring protocols?          FINDINGS OF FACT          A preponderance of the evidence establishes the following facts and factual conclusions:          1) On September 5, 2018, Employee claimed temporary total disability (TTD), permanent total disability (PTD), permanent partial impairment (PPI), unfair or frivolous controversion, attorney fees and costs, medical and transportation costs, penalty, and interest. (Claim for Workers’ Compensation Benefits, September 5, 2018).          2) On September 24, 2018, Employer denied Employee’s claim in its entirety based on lack of medical evidence. (Answer to Employee’s Workers’ Compensation Claim; Controversion Notice, September 24, 2018).          3) On August 22, 2019, Employee sought to compel Employer to produce (1) Employee’s personnel and human resources files, (2) the insurer’s file related to Employee’s claim, (3) the identity of Employer’s recruiters, (4) the identity of Employer’s records custodian, (5) Employer and its insurer’s certification that they fully complied and produced all documents related to Employee’s discovery requests, (6) an order for Employer and its insurer’s to continuously supplement discovery, and (7) all correspondence to and from Kevin Connolly, M.D. (Petition; Employee’s Memorandum in Support of Petition to Compel Discovery, August 22, 2019).          4) On October 2, 2019, the designee “reviewed the pleadings and listened to counsel arguments regarding Employee’s [August 22, 2019 petition] and found portions of the same to be standard, relevant, and likely to lead to discoverable information.” He ordered Employer to produce Employee’s personnel file, insurer’s file, payroll records, related medical records and correspondence, job description, room and board agreements, and witness statements, but denied Employee’s discovery request for the identity of Employer’s recruiters, records custodian, and its hiring protocols. (Prehearing Conference Summary, October 2, 2019).          5) On October 29, 2019, Employer denied Employee’s claim in its entirety based on Dr. Connolly’s employer medical evaluation (EME). (Controversion Notice, October 29, 2019).          6) On October 31, 2019, Employee filed an “amended” claim without any addition to his September 5, 2018 claim and...

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