JESUS PEREZ, Employee, Claimant,
v.
WESTWARD SEAFOODS, INC., Employer,
and
ACE AMERICAN INSURANCE COMPANY, Insurer, Defendants.
AWCB Decision No. 20-0051
AWCB No. 201505882
Alaska Workers Compensation Board
June 26, 2020
FINAL
DECISION AND ORDER
William Soule, Designated Chair.
Jesus
Perez’s (Employee) petition for more time to request a
hearing and Westward Seafoods, Inc.’s (Employer)
petition to dismiss Employee’s claim were heard on June
25, 2020, in Anchorage, Alaska, a date selected on April 14,
2020. A February 24, 2020 hearing request, gave rise to this
hearing. Employee appeared telephonically, testified and
represented himself through Spanish interpreter
“José.” Attorney Jeffrey Holloway appeared
telephonically and represented Employer and its insurer. The
record closed at the hearing’s conclusion on June 25,
2020.
ISSUE
Employee
contends he does not need more time to request a hearing on
his April 4, 2017 claim. Rather, he contends he filed his
evidence, wants his case decided and opposes Employer’s
March 5, 2020 petition to dismiss his claim for failure to
timely request a hearing or request additional time to ask
for a hearing. Employee admits he did not timely request a
hearing or a timely request more time to request a hearing.
Employer
contends Employee has no valid legal excuse for not timely
requesting a hearing on his claim or seeking more time to
request one. It contends its controversion notices, two
prehearing conference summaries and a Spanish speaking
division technician all repeatedly advised him that he had to
file a hearing request within two years of the date Employer
controverted his claim, or his claim could be denied. Since
Employee did nothing for over two years to bring his claim to
hearing, and his request for more time was untimely, Employer
contends his petition should be denied and its petition
should be granted.
Should
Employee be given more time to request a hearing, or should
his claim be denied?
FINDINGS
OF FACT
A
preponderance of the evidences establishes the following
facts and factual conclusions:
1) On
April 3, 2017, Employee filed a notice changing his mailing
address to 69 W. ******** Street, Heber, CA 92249; his
address is partially redacted to protect his privacy. At
hearing, he confirmed this mailing address was correct at all
times relevant to the current issues. (State of Alaska
Division of Workers’ Compensation Change of Address,
February 6, 2017; Employee).
2) On
April 4, 2017, Employee filed a claim seeking unspecified
temporary total disability (TTD) benefits, permanent partial
impairment (PPI) benefits, medical benefits and related
transportation costs, a compensation rate adjustment, a
penalty, interest and a finding Employer made an unfair or
frivolous controversion. (Workers’ Compensation Claim,
April 4, 2017).
3) On
April 24, 2017, Employer served on Employee by mail at his
correct address a notice advising him it denied, “All
benefits to include TTD, PPI, Medical Costs, Transportation,
Compensation Rate, Penalty, Interest, Unfair or frivolous
controvert.” Grounds for denying these benefits are not
relevant to the instant issues. (Controversion Notice, April
24, 2017).
4) On
April 26, 2017, the division received Employer’s April
24, 2017 notice. (Agency file).
5) On
May 15, 2017, Employer filed and served on Employee by mail
at his correct address a notice advising it denied his right
to any benefits related to a left shoulder condition, right
foot plantar fasciitis and right great toe diabetic ulcer. It
denied Employee’s claim for TTD benefits from June 14,
2015, and continuing, PPI benefits, medical costs that are
not reasonable, necessary, related to the work injury or not
supported by a required treatment plan or not otherwise in
compliance with the Alaska medical fee schedule or not timely
filed under the Act. Employer denied medical-related
transportation expenses for unreasonable medical care or
expenses not properly documented. It also denied a
compensation rate adjustment and penalty, interest and an
unfair or frivolous controversion finding. Employer’s
grounds for this denial are not relevant to the current
issues. (Controversion Notice, May 15, 2017).
6) On
May 15, 2017, Employer propounded written discovery requests
and interrogatories to Employee at his correct mailing
address. (Request for Production of Documents; Special
Interrogatories, Set One, May 15, 2017).
7) On
May 16, 2017, the parties met telephonically at conference
with a board designee to discuss Employee’s case; a
Spanish interpreter also participated. The board’s
designee recorded:
Designee explained the adjudications process noting that once
discovery is complete, and a settlement has not occurred,
either party may file an Affidavit of Readiness for Hearing
(ARH) form to notify the Alaska Workers Compensation Board
(AWCB) that a Hearing is necessary.
The
summary also contained the following standard language:
Notice
to Claimant:
AS
23.30.110(c) provides: “If the employer controverts a
claim on a board-prescribed controversion notice and the
employee does not request a hearing within two years
following the filing of the controversion notice, the claim
is denied.” In other words, when Employee files a
workers’ compensation claim and Employer controverts
the claim, to avoid possible dismissal of Employee’s
claim, Employee must file with the board and serve on all
opposing parties an affidavit of readiness for hearing within
two years of the controversion. The board has an affidavit of
readiness for hearing form Employee can complete and file. If
Employee has not completed all discovery and cannot file the
affidavit of readiness for hearing within two years of
Employer’s controversion, but still wants a hearing,
Employee should provide written notice to the board and serve
the notice upon all opposing parties.
The
summary does not record that Employee requested a hearing
orally. (Prehearing Conference Summary, May 16, 2017).
8) On June 13, 2017, Employer filed and served on Employee by
mail at his correct address notice advising him it denied his
claim for “All Benefits.” Employer’s
reasons for this denial are not relevant to the current
issues. (Controversion Notice, June 13, 2017).
9) Employer’s three relevant denial notices all include
the following language:
TO EMPLOYEE . . . READ CAREFULLY
. . . .
TIME LIMITS
. . . .
2. When must you request a hearing (Affidavit of Readiness
for Hearing Form)?
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.
IF YOU ARE UNSURE WHETHER IT IS TOO LATE TO . . . REQUEST A
HEARING, CONTACT THE NEAREST AWCB OFFICE. (Controversion
Notices, April
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