Perez v. Westward Seafoods, Inc., 062620 AKWC, 20-0051

Case DateJune 26, 2020
CourtAlaska
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
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT