CATRIN McKINLEY, Employee, Claimant,
KENAI PENINSULA BOROUGH, Self-Insured Employer,, Defendant.
AWCB Decision No. 20-0066
AWCB No. 201012918
Alaska Workers Compensation Board
July 28, 2020
DECISION AND ORDER
Cassandra Tilly, Designated Chair.
October 3, 2019 Petition for SIME and Employer’s
December 11, 2019 Petition to Dismiss were heard on the
written record June 18, 2020 in Anchorage, Alaska, a date
selected on April 8, 2020. A February 12, 2020 Affidavit of
Readiness for Hearing gave rise to this hearing. Attorney
J.C. Croft appeared and represented Catrin McKinley
(Employee). Christi C. Niemann, CLA, appeared and represented
Kenai Peninsula Borough (Employer). The record closed at the
hearing’s conclusion on June 19, 2020.
asserts that her claim should not be dismissed under AS
23.30.110(c) for failure to timely request a hearing
following Employer’s post-claim controversion. Employee
asserts the Petition for SIME was filed shortly after the
running of the 2-year limitation, and that the petition would
toll the running of the statute had it been filed before the
two-year deadline. Employee asserts that there is good cause
to excuse the delay in requesting a hearing. Employee asserts
that Employer sat on its .110(c) defense.
asserts that Employee had two years from the filing of the
post-claim controversion to file a request for hearing or
request for extension of time. Employer asserts Employee was
notified of the 2-year time limitation. Employer asserts that
Employee did not file an Answer to the December 11, 2019
Petition to dismiss and requests judicial notice that
statements made in that petition should be deemed admitted.
Employer further asserts that there is no evidence of any
Employee action constituting substantial compliance with the
2-year time limit to request a hearing.
Should Employee’s August 23, 2017 claim for benefits be
dismissed under AS 23.30.110(c)?
asserts that Employer agreed that a medical dispute exists
and that an SIME is appropriate. Employee asserts that her
two claims (August 2017 and April 2020) cover distinct
periods of time: past and future, and that Employee has a
right to a prospective determination regarding future
treatment. Employee asserts that what happens procedurally
with one claim does not impact procedure on another claim,
and that an SIME is necessary to determine the merits of
Employee’s workers’ compensation case.
asserts that there is no need for an SIME if Employee’s
claim is dismissed under .110(c). If the claim is not
dismissed, Employer notes Employee would be entitled to an
SIME. Employer asserts that updated medical records would
need to be provided prior to moving forward with the SIME,
and that no medical records have been provided since
September 30, 2017.
Should an SIME should be ordered, and if yes, what type of
provider should perform the SIME?
asserts she is entitled to an award of attorney’s fees
and costs via the Affidavit of Attorney’s Fees and
Costs filed by legal counsel on June 15, 2020. Employer did
not provide briefing on this issue.
Should Employee should be awarded attorney’s fees and
costs, and if yes, in what amount?
preponderance of the evidences establishes the following
facts and factual conclusions:
Catrin McKinley (“Employee”) was employed as an
emergency/911 dispatcher for the Kenai Peninsula Borough from
April 2008 through February 2012. (Agency file).
report of injury was filed a on September 4, 2010 date of
injury (Agency file).
Employee alleged bilateral hearing damage from constant phone
usage as well as background noise in the 911 center. (Updated
Report of Injury, August 13, 2013).
January 24, 2014, an undated note was received from Dr.
Thomas A. McCarty, Jr., briefly discussing Employee’s
prior testing and hearing loss, and finding hearing aids
medically necessary. Dr. McCarty found the substantial cause
of Employee’s hearing loss to be “workplace noise
induced exposure.” (McCarty note, January 24, 2014).
Employee did not attend an Employer’s Independent
Medical Examination (“EIME”) as scheduled on
April 7, 2014. Richard Hodgson, MD, otolaryngologist,
conducted a records review on April 7, 2014. Dr. Hodgson
diagnosed bilateral high-frequency sensorineural hearing
loss, and prior initial otitis externa, resolved. He noted
the high-frequency hearing loss above speaking frequencies in
both ears “is more probably than not due to age-related
causes, but may also be from early viral infections or
possibly an earlier middle ear infection that was not cause
by her occupational exposure.” He found the substantial
cause of the high-frequency hearing loss was presbycusis
(gradual age-related hearing loss), with the pattern not
being consistent with a noise causation. He found the
“high-frequency hearing loss more probably than not was
present prior to the ear infection and has persisted to the
present time and is due to causes other than occupational
exposure.” Dr. Hodgson found a 0% whole person
impairment under the AMA Guide, Sixth Edition, with Employee
reaching medical stability as of September 14, 2010. No
further medical treatment or hearing aids were recommended.
(Hodgson EIME, April 7, 2014).
May 5, 2014 Employer controverted all benefits based on the
April 7, 2014 EIME. (Agency file).
May 7, 2014 Employer filed a medical summary containing the
April 7, 2014 EIME report by Dr. Hodson. The EIME report
provides a summary of the records reviewed by date and
provider. (Medical Summary, May 7, 2014).
November 14, 2016 Employee requested a copy of the AWCB file.
Croft Law Office filed an Entry of Appearance
(“EOA”) as attorneys for Employee on August 23,
2017. The EOA was signed by attorney Selena Hopkins-Kendall.
(Entry of Appearance, August 23, 2017).
Employee filed a claim for medical costs, penalty, interest,
and attorney’s fees and costs on August 23, 2017.
(Claim, August 23, 2017).
post-claim controversion was filed on September 13, 2017. The
certificate of service stated the controversion was mailed to
the Employee and served by email to the AWCB to attorney
Selena Hopkins-Kendall, and to AMLJIA at the
address(es) of record. The controversion was issued on the
AWCB’s proscribed controversion form, which contained
the following language:
If the insurer/employer filed this controversion notice after
you filed a claim, you must request a hearing before the AWCB
within two years after the date of this controversion notice.
You will lose your right to the benefits denied on the front
of this form if you do not request a hearing within two
IF YOU ARE UNSURE WHETHER IT IS TOO LATE TO FILE A CLAIM OR
REQUEST A HEARING, CONTACT THE NEAREST AWCB OFFICE.
(Agency file)(emphasis in original).
Attorney JC Croft confirmed that the controversion was
properly served via email. (Employee’s Hearing Brief n.
34, June 11, 2020).
Attorney Selena Hopkins-Kendall of The Croft Law Office filed
a Petition for Protective Order on Employee’s behalf on
September 18, 2017. (Petition for Protective Order, September
Attorneys Selena Hopkins-Kendall and Eric Croft attended an
October 17, 2017 prehearing conference. The Prehearing
Conference Summary (“PHCS”) contained a listing
of pleadings filed including “9/23/17 Controversion
– All benefits.” The PHCS contained a notice to
claimant indicating the two-year time limit to request a
hearing following a post-claim controversion, either by
filing an ARH or written notice where an ARH cannot be filed.
The PHCS was served by mail on October 19, 2017 to attorney
Eric Croft of The Croft Law Office, 738 H Street, Anchorage,
AK 99510. (Prehearing Conference Summary, October 17, 2017).
substitution of council or other notice was filed in this
case that Selena Hopkins-Kendall had ceased to be affiliated
with The Croft Law Firm. (ICERs database).
Richard Hodgson retired on or about January 21, 2016.
(Examworks Notice to ER Attorney, October 27, 2017).
Employee’s agency case file was requested by The Croft
Law Office on November 2, 2017. That request contained an
authorization by Employee dated June 29...