McKinley v. Kenai Peninsula Borough, 072820 AKWC, 20-0066

Docket Nº:AWCB Decision 20-0066
Case Date:July 28, 2020
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
         INTERLOCUTORY DECISION AND ORDER           Cassandra Tilly, Designated Chair.          Employee’s 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.          ISSUES          Employee 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.          Employer 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.          1) Should Employee’s August 23, 2017 claim for benefits be dismissed under AS 23.30.110(c)?          Employee 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.          Employer 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.          2) Should an SIME should be ordered, and if yes, what type of provider should perform the SIME?          Employee 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.          3) Should Employee should be awarded attorney’s fees and costs, and if yes, in what amount?          FINDINGS OF FACT          A preponderance of the evidences establishes the following facts and factual conclusions:          1) Catrin McKinley (“Employee”) was employed as an emergency/911 dispatcher for the Kenai Peninsula Borough from April 2008 through February 2012. (Agency file).          2) A report of injury was filed a on September 4, 2010 date of injury (Agency file).          3) 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).          4) On 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).          5) 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).          6) On May 5, 2014 Employer controverted all benefits based on the April 7, 2014 EIME. (Agency file).          7) On 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).          8) On November 14, 2016 Employee requested a copy of the AWCB file. (Agency File).          9) The 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).          10) Employee filed a claim for medical costs, penalty, interest, and attorney’s fees and costs on August 23, 2017. (Claim, August 23, 2017).          11) A 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 years.
(Agency file)(emphasis in original).          12) Attorney JC Croft confirmed that the controversion was properly served via email. (Employee’s Hearing Brief n. 34, June 11, 2020).          13) 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 18, 2017).          14) 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).          15) No 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).          16) Dr. Richard Hodgson retired on or about January 21, 2016. (Examworks Notice to ER Attorney, October 27, 2017).          17) 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...

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