MAHMOUD SOUD, Employee, Claimant,
v.
NORTH PACIFIC SEAFOODS, INC., Employer,
And
ALASKA NATIONAL INSURANCE, Insurer, Defendants.
AWCB Decision No. 21-0025
AWCB No. 201910291
Alaska Workers Compensation Board
March 17, 2021
FINAL
DECISION AND ORDER
Ronald
P. Ringel, Designated Chair.
North
Pacific Seafoods, Inc.'s November 9, 2020 petition to
dismiss Mahmoud Soud's August 2, 2019 claim, its December
17, 2020 petition to strike portions of Mr. Soud's
December 15, 2020 answer, and Mr. Soud's November 24,
2020 petition extend the time in which he must request a
hearing were heard in Anchorage, Alaska on February 25, 2021,
a date selected on January 20, 2021. December 17, 2020,
January 11, 2021, and January 14, 2021 affidavits of
readiness for hearing gave rise to this hearing. Non-attorney
Fatima Karazi appeared and represented Mahmoud Soud
(Employee). Attorney Martha Tansik appeared and represented
North Pacific Seafoods, Inc. and Alaska National Insurance
(Employer). The record closed at the hearing's conclusion
on February 25, 2021.
ISSUES
Employer
contends Employee's claims should be dismissed because he
did not timely comply with the order to identify witnesses in
Soud v. North Pacific Seafoods, Inc., AWCB Decision
No. 20-0090 (September 30, 2020) (Soud /), and his
untimely response was inadequate. Employee contends his
claims should not be dismissed because his ability to respond
was limited due to his incarceration.
1)
Should Employee's claims be dismissed?
Employer
contends unverified statements regarding the sexual assault
of a co-worker in Employee's December 15, 2020 answer
should be stricken. Employee did not address this issue, but
it is presumed he is opposed.
2)
Should the statements regarding the sexual assault of a
coworker be stricken from Employee's December 15, 2020
answer?
Employee
contends a hearing on the merits of his claim should be
continued and the time in which he must request a hearing
under AS 23.30.110(c) should be extended because he is
incarcerated resulting in difficulty contacting witnesses,
preparing for and attending a hearing. Employer concedes
Employee's incarceration may somewhat impede his ability
to prepare for hearing, but Employer contends Employee has
resisted discovery, is exaggerating the difficulty, and he is
likely to be incarcerated for a significant time.
3)
Should a hearing on the merits of Employee's claim be
continued, and should Employee be granted additional time in
which to request a hearing?
FINDINGS
OF FACT
All
factual findings in Soud I are incorporated by
reference and may be repeated below. The following facts and
factual conclusions are established by a preponderance of the
evidence:
1) On
July 14, 2019, while employed as a seasonal seafood worker,
Employee suffered an injury to his teeth during an
altercation with a coworker. In his report of injury,
Employee identified "Kana" as a witness and
provided her telephone number. (First Report of Injury
(FROI), August 2, 2019).
2) On
July 13, 2019, the day prior to the altercation, Employee had
reported an injury to his left index finger. (AWCB Case No.
201909590, First Report of Injury).
3)
Following the altercation, the cannery manager called the
police, who interviewed Employee, the coworker who was
involved in the altercation, Ezekiel Barrientes, as well as
three potential witnesses. Employee stated Barrientes had
previously threatened him and attempted to hit him, but they
had been separated by other employees. Later, Employee
approached Barrientes to talk, and Barrientes and head-butted
him. Barrientes stated Employee had struck him in the face
earlier, but coworkers intervened; Employee later approached
him again, and when Employee tried to strike him again, he
head-butted Employee in self-defense. Barrientes identified
three witnesses, Vernita Pogi, Michael Burns, and Chad
Lealao. Ms. Pogi told the police she had seen Employees
strike Barrientes. Burns and Lealao both stated they had
responded the noise, but did not see the actual fight. At the
cannery manager's request, Employee was
"trespassed" from the cannery and escorted from the
premises. (Police Report, July 14, 2020).
4) When
Employee sought treatment for his injuries, he told medical
providers his coworker "accidentally head butted his
face," and "accidentally hit him in the face."
(Triage Notes, July 14, 2020; Provider Notes, July 14, 2020).
5) On
August 2, 2019, Employee claimed medical and transportations
costs. He contended his coworker "approached him in an
"aggressive and combative way," and while he tried
to "calm the situation down," his coworker
head-butted him, which broke his front teeth and caused him
to bleed. (Workers' Compensation Claim, August 2, 2019).
6) On
Augustl3, 2019, Employer filed a controversion notice denying
all benefits on the grounds Employee willfully injured
himself with premeditated or impulsive conduct such that the
injury did not arise in the course and scope of his
employment. (Controversion Notice, August 5, 2019). Employer
also contended Employee's injury was proximately caused
by his willful intent to injure another person by instigating
a fight that resulted in his own injury, and further
contended Employee had voluntarily removed himself from the
workforce when he was fired for violating Employer's
policies on fighting. (Employer's Answer, August 26,
2019).
7) The
first prehearing conference was held on September 25, 2019;
Employee attended in person. Employee and Employer's
attorney attended. The board designee explained the
adjudications process to Employee, and the parties discussed
Employee's concern about medical releases he had
received. Employee clarified he was only seeking dental
treatment in his claim. (Prehearing Conference Summary,
September 25, 2019).
8) Also
on September 25, 2019, Employee updated his contact
information, providing a new telephone number and new mailing
address in Anchorage. (Change of Address, September 25,
2019).
9) On
October 7, 2019, Employee filed a petition seeking a
protective order against releases Employer had requested.
(Petition, October 7, 2019).
10) At
the December 31,2019 prehearing conference, which Employee
attended in person, the parties resolved Employee's
October 7, 2019 petition, and Employee signed the releases.
Employer agreed to provide Employee with a copy of his
personnel file and its adjuster's notes. Employer also
requested a list of witnesses to the altercation from
Employee. (Prehearing Conference Summary, December 31, 2019).
11) On
January 2, 2020, Employer's attorney emailed Employee
reminding him to provide the names and contact information of
witnesses who support his version of events. (Email, M.
Tansik to Employee, January 2, 2020).
12) On
February 11, 2020, Employer petitioned to compel Employee to
provide the names and contact information for his witnesses
so that Employer could either interview or depose them.
(Employer's Petition, February 11, 2020).
13) On
March 4, 2020, Employer filed an affidavit of readiness for
hearing on its February 11, 2020 petition. (Affidavit of
Readiness for Hearing, March 4, 2021).
14)
Employee attended the March 11, 2020 prehearing conference
telephonically. He contended he intended to produce
Employer's requested witness list but had not yet
obtained the permission from all the witnesses for him to
disclose their names. He advised he would consider providing
the names and contact information of those witnesses who had
agreed to participate on his behalf thus far. Employer asked
that the board designee order Employee to provide the names
and contact information for witnesses he intended to call at
an eventual merits hearing. The designee found Employer's
requested witness list to be relevant and ordered Employee to
produce the list by April 10, 2020. (Prehearing Conference
Summary, March 11, 2020).
15) On
March 18, 2020, Employee petitioned for additional time to
provide his witness list based on the CO`VTD-19 pandemic. He
did not explain how the pandemic impaired his ability to
produce the list. (Employee's Petition, March 18, 2020;
Observation).
16) On
March 19, 2020, Employer answered Employee's petition for
additional time, noting that Employee was only being asked to
provide a list of names and phone numbers, which he had
agreed to provide three months earlier. Employer stated
Employee's failure to...
