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...