VIRGILIO L. NOLOS, Respondent, Claimant,
v.
TRIDENT SEAFOODS, Petitioner,
and
LIBERTY INSURANCE CORPORATION, Insurer, Defendants.
AWCB Decision No. 17-0097
AWCB Case No. 201702252
Alaska Workers’ Compensation Board
August 17, 2017
INTERLOCUTORY DECISION AND ORDER
William Soule, Designated Chair
Trident
Seafoods’ (Petitioner) June 29, 2017 petition to
dismiss Virgilio L. Nolos’ (Respondent) claim was heard
on the written record on August 16, 2017, in Anchorage,
Alaska, a date selected on July 26, 2017. Attorney Jeffrey
Holloway represented Petitioner and its insurer. Respondent
represents himself but he did not file any documents for the
hearing. The hearing proceeded without Respondent’s
participation. As this was a hearing on the written-record,
there were no witnesses. This decision examines the decision
to proceed with the hearing in Respondent’s absence and
decides Petitioner’s dismissal petition on its merits.
The record closed at the hearing’s conclusion on August
16, 2017.
ISSUES
Respondent
failed to file any documents for this written-record hearing.
His reasons for not participating are unknown.
Respondent
expressed no opinion in its hearing brief as to whether the
written-record hearing should proceed in the event Respondent
did not participate. The hearing proceeded in
Respondent’s absence.
1)
Was the decision to proceed with the August 16, 2017 hearing
in Respondent’s absence correct?
Petitioner
contends Respondent “willfully and repeatedly”
refused to cooperate with discovery resulting in prejudice to
Petitioner. Petitioner requests an order dismissing
Respondent’s claim.
Respondent
did not answer the petition to dismiss or otherwise
participate in the hearing. His position on the petition is
unknown.
2)
Is Petitioner entitled to an order dismissing
Respondent’s claim for his failure to comply with
discovery?
FINDINGS
OF FACT
A
preponderance of the evidence establishes the following facts
and factual conclusions:
1) On
February 6, 2017, Respondent made a claim for permanent total
disability, a compensation rate adjustment, a finding
Petitioner made an unfair or frivolous controversion,
transportation costs, a late payment penalty and interest.
Respondent listed an August 13, 2016 injury date, and
enumerated various health concerns including encephalopathy
and cognitive issues, but did not state how the injury
occurred. Attached to his claim were various medical records,
unemployment insurance documents and pay stubs. Respondent
listed his address in Vallejo, California. (Claim for
Workers’ Compensation Benefits, (January 23, 2017).
2) On
February 7, 2017, the division served Respondent’s
claim and all attachments on Petitioner’s
workers’ compensation insurer. (Letter, February 7,
2017).
3) On
February 16, 2017, Petitioner filed an electronic injury
report reiterating the limited information set forth on
Respondent’s claim. (First Report of Injury, February
16, 2017).
4) On
March 2, 2017, Petitioner responded to the claim and alleged
Respondent failed to give notice of an injury or produce
medical evidence linking any medical condition to a work
injury with Petitioner. (Answer to Employee’s
Workers’ Compensation Claim, March 1, 2017).
5) On
March 2, 2017, Petitioner denied Respondent’s claim for
benefits based on his alleged failure to give notice.
(Controversion Notice, March 1, 2017).
6) On
March 13, 2017, Petitioner mailed formal requests for
production to Respondent at his address in Vallejo,
California. (Request for Production of Documents, March 13,
2017).
7) On
March 13, 2017, Petitioner also mailed formal interrogatories
to Respondent at the same address. (Special Interrogatories,
Set One, March 13, 2017).
8) On
April 3, 2017, Petitioner mailed to Respondent by certified
mail, return receipt requested, and by first-class mail, a
letter to which were attached eight releases for Respondent
to sign so Petitioner could obtain information. (Letter,
April 3, 2017).
9) On
April 18, 2017, Petitioner asked for an order to compel
Respondent to cooperate with discovery. (Petition, April 18,
2017).
10) On
May 25, 2017, Petitioner’s attorney attended a
prehearing conference but Respondent did not participate. The
board designee reviewed medical releases and ordered some
were appropriate while others were not. The designee ordered
Petitioner to revise the releases and send them to
Respondent. The designee also ordered Respondent to sign and
return the releases promptly and respond to the production
requests, and interrogatories as modified. The resulting
summary explained Respondent’s rights and duties
concerning discovery in considerable detail, but did not show
the designee attempted to contact Respondent when he did not
appear. (Prehearing Conference Summary, May 25, 2017).
11) On
June 7, 2017, Petitioner mailed to Respondent amended, formal
interrogatories. (Amended Special Interrogatories, Set One,
June 7, 2017).
12) On
June 29, 2017, Petitioner requested an order dismissing
Respondent’s claim for failure to provide discovery and
to sign and return releases. (Petition, June 29, 2017).
13) On
July 26, 2017, Petitioner’s lawyer attended another
prehearing conference but Respondent did not appear. The...
