JANICE H. PARISH, 
Employee, 
Respondant,
v. 
CITY OF SEWARD HOSPITAL,
Employer,
and 
ALASKA MUNICIPAL LEAGUE,
Insurer,
and 
UNITED METHODIST CHURCH
(WESLEYAN NURSING HOME),
Employer,
and 
ATLANTIC MUTUAL INSURANCE CO.,
Insurer,
and 
STATE OF ALASKA, DEPT. OF 
CORRECTIONS (Self-Insured),
Employer,
Petitoners.

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FINAL
DECISION AND ORDER
AWCB Case Nos. 198308646, 199116718, 
199123793M
AWCB Decision No. 00-0035
Filed in Anchorage, Alaska
March 2, 2000.

We heard this matter on February 24, 2000, at Anchorage, Alaska. Attorney Chancy Croft represented the employee. Attorney Trena Heikes represented the employer, Seward Hospital and its carrier (Hospital). Attorney Patricia Zobel represented the employer, Wesleyan Nursing Home and its carrier (Home). Attorney Kristin Knudsen represented the employer, State of Alaska Department of Corrections (State). We closed the record at the hearing’s conclusion.

1. Whether the Hospital may terminate temporary total disability benefits (TTD) without first seeking Board approval.
2. Whether the Hospital must pay retroactive TTD, and any associated penalty and interest.
3. Whether the Board erred in joining Wesleyan in the employee’s claims against the Hospital.
4. Whether to join the State in the employee’s claims against the Hospital.

We incorporate by reference the facts as detailed in our prior decision in Parish v. City of Seward Hospital, AWCB Decision No. 99-0240 (November 24, 1999) (Parish I). At issue is whether the employee’s contraction of the Hepatitis C Virus (HCV) is work related. The employee worked for the Home as a nurse from 1981 until 1984. After additional nursing training, she returned to work for the Home in 1988. She began working for the Hospital in 1989. She left the Hospital in late 1991, and lived overseas for several years. In 1995, she returned to Alaska and began working for the State, again as a nurse.

At the October 5, 1999 hearing we heard testimony from Kenneth D. Flora, M.D., F.A.C.G., a medical expert in hepatology. Dr. Flora is the Hospital’s expert. The employee’s attending physician is Geronimo Sahagun, M.D., who treats the majority of Alaska’s Hepatitis patients. At the October 5, 1999 hearing, and in his medical reports, Dr. Flora analyzed several potential mechanisms of transmission of the employee’s HCV. Chronologically, the employment-related possible exposures included the following:

(Parish I at 8 - 9).

(Id. at 8).

Several non-work mechanisms of transmission were also ruled out by Dr. Flora, including tattoos. (Id. at 7). Dr. Flora ruled out an earlier blood splash incident (AWCB Case No. 19916718) as a possible mechanism of transmission. (Id.).

In our decision in Parish I, we examined all identified possible mechanisms of transmission of the employee’s HCV. The only two remaining mechanisms of transmission were the 1983 immunoglobulin series, and the 1991 needle stick. We ordered that the Home be joined (although we did not join the State) in the employee’s claims against the Hospital; and we ordered the Hospital to pay interim benefits, pending resolution of the "last injurious exposure" issue.

The Hospital is seeking to terminate the interim compensation ordered in Parish I based on a letter Dr. Sahagun responded to on December 10, 1999. In a December 9, 1999 letter the employer’s adjuster questioned whether Dr. Sahagun anticipated any objective measurable improvement for the employee. Dr. Sahagun checked "no" and responded in his December 10, 1999 letter:

The Hospital followed up with Dr. Sahagun, and on January 14, 2000, it filed its petition to terminate payment of interim compensation. In her January 14, 2000 affidavit, the Hospital’s counsel detailed her communications with Dr. Sahagun regarding the employee’s medical stability and her ability to return to work. Ms. Heikes also detailed her ensuing communications with the employee’s counsel that the award of interim compensation may not be terminated without an award from the Board.

(Heikes affidavit at 3).

A series of phone calls between October 5, 1999 and January 21, 2000 regarding the employee’s concerns about working and potential treatment between the employee and Dr. Sahagun and his staff are documented in the doctor’s phone message logs. (Hospital’s Hearing exhibit B, pp. 1 – 2; February 4, 2000 medical summary). In his January 24, 2000 letter to Mr. Croft, Dr. Sahagun advised:

The employee originally requested cross-examination of Dr. Sahagun’s December 9 and 10, 1999 reports, but withdrew this request prior to the February 24, 2000 hearing. The Hospital has requested cross-examination of the January 24, 2000 report; it declined to waive its request for cross-examination when questioned at the February 24, 2000 hearing, and objects to our considering it for the present matter.

The employee argues that under AS 23.30.155(d), the interim payment of compensation ordered in Parish I should have been paid from the onset of her claimed disability, not from the date of our earlier decision. She asserts the Hospital should also be ordered to pay interest and a penalty on the retroactive compensation. Regarding the Hospital’s petition to terminate interim benefits, the employee argues she is contemplating new treatment this summer, accordingly, she is not medically stable.

At the February 24, 2000 hearing, Mr. Croft informed the Board and the defendants that the employee has at this time returned to work, on a part-time basis, where she now resides in Eagle, Alaska. The employee is presently working as a home health aide, and the week prior to the hearing earned approximately $200.00, the week of the hearing she may have earned $100.00.

The employee argues the Board correctly ordered the joinder of the Home in Parish I. Further, the employee asserts we should order the joinder of the State.

The State argues the employee has never filed a claim against it, and in fact, has never filed a report of injury claiming any injury from her work with the State. It asserts its joinder is not necessary for complete relief and due process among the parties. The State agues it would be severely prejudiced if it were forced to prepare its defense on a very shortened schedule.

The Home agrees with the Hospital that an employer need not seek Board approval to terminate the interim benefits ordered in Parish I. The Home argues we erred in joining it as a party to the employee’s claims against the Hospital. It asserts the employee failed to establish a preliminary link that she contracted HCV while working for the Home, and that any alleged exposure was not a substantial factor in her contracting HCV.

1. Joinder Issues.

Our regulation, 8 AAC 45.040 PARTIES, provides in pertinent part: "(d) Any person against whom a right to relief may exist should be joined as a party." . . . "(f) Proceedings to join a person are begun by . . . (2) the board or designee serving notice to join on all parties and the person to be joined."

In Parish I, we ordered joinder of the Home on our own motion. We found that only two possible mechanisms (work and non-work related) of transmission of the employee’s HCV were not excluded by Dr. Flora. "First, the 1983 series of immunoglobulin treatment at the Nursing Home. Second, the 1991 needle stick at the Hospital." (Parish I, at 11). The Home argues the 1983 exposure was from a Home resident known to carry Hepatitis B Virus (HBV); both Dr. Sahagun and the Centers for Disease Control question whether immunoglobulin series are a known mechanism of transmission.

We find, reviewing the testimony and evidence presented at hearing in Parish I, that Dr. Flora testified that the receipt of the four immunoglobulin injections could be the same as receiving blood products from up to 80 different people. We find the Home’s presence is necessary for complete relief and due process among the parties. (8 AAC 45.040(j)). We conclude we correctly joined the Home as a party to the employee’s claim against the Hospital. Accordingly, we regard the employee’s claims for benefits associated with her contraction of HCV at the Hospital to also be filed against the Home. The Home’s objection to our joinder is overruled; the Home remains a party in accordance with 8 AAC 45.040(d).

Based on her testimony, we find throughout her career, the employee consistently filed reports of injury when she was exposed to blood borne pathogens. We note that she has never filed a report of injury against the State. We find that the first cause for concern appears to be the employee’s exposure to vomit in May of 1998. Her blood was tested that same day. As we found earlier in Parish I, at 12, this was ruled out as a possible mechanism of transmission because HCV takes two weeks’ time to show positive on a blood screen. The employee testified at the October 22, 1999 hearing that she could recall no other possible exposure to prisoners’ blood or bodily fluids during her employment with the State. Based on the evidence before us, we find the State’s presence in this matter is not necessary. We conclude the employee’s petition to join the State is denied and dismissed; the State’s objection to joinder is sustained.

1. Interim Compensation Issues.

In Underwater Const., Inc. v. Shirley, 884P.2d (Alaska 1994), our Supreme Court held: "If payments are being made pursuant to a Board order, the employer or insurer must petition the Board for rehearing or modification of its order on the basis of a `change in condition.’" The employers argue that Shirley addressed only permanent benefits payable under AS 23.30.180. The employee disagrees and argues any Board order requires a petition to modify that order.

Regardless of the classification of the benefits we ordered in Parish I, we find, based on Dr. Sahagun’s December 9, and 10, 1999 reports, that the employee has reached medical stability. Even though the Hospital requested cross-examination of Dr. Sahagun’s January 24, 1999 report, we will consider it for this hearing. We find this report carries little, if any, weight regarding the employee's medical stability. We find the fact that the employee and her physician are "considering possible treatment" does not change the fact that she is presently medically stable. The employee may again become unstable if future treatments are initiated, but for the present, we find and conclude the employee is presently medically stable. Furthermore, we find, based on the employee’s admissions at the February 24, 2000 hearing, that she has returned work on a part-time basis as a home health aide. Based on the fact that the employee is presently medically stable and working, we will grant the Hospital’s petition to terminate the award of interim benefits ordered in Parish I. We conclude, effective the date this decision is issued, the Hospital is relieved of its obligation to pay interim monetary benefits.

We decline the parties’ invitation that we interpret the meaning of the Shirley decision under the unique facts of this case. In this case, the Board ordered an award of "interim compensation" under our authority in AS 23.30.155(d) and the Superior Court decision in Apted v. Pacific Gradney, J.V., 3 AN-93-1619 Civil (Alaska Super., August 11, 1993). We have long held that we do not issue advisory opinions or declaratory judgments. (Jalbert v. The Odom Corporation, AWCB Decision No. 98-0026 (February 13, 1998)). Since we have already granted the Hospital’s petition to terminate interim compensation above, we respectfully decline to address the issue of whether it could have done so upon receipt of Sahagun’s December 9 and 10, 1999 reports.

Regarding the retroactive payment of interim benefits, we also deny the employee’s claim in this regard. We awarded interim compensation in Parish I based on the employee’s "Emergency Petition for Interim Compensation." At the October 5, 1999 hearing the employee testified regarding her medication bills and lack of income. It was under those unique and dire circumstances that we awarded the interim benefits. We have found above that those circumstances appear to have changed and we have authorized the Hospital to terminate interim compensation. "Interim" is defined in Black’s Law Dictionary 951 (4^th Ed. Rev. 1968) as: "In the meantime; meanwhile." Webster’s II 636 (1994)defines "interim" as "An intervening period. Belonging to or taking place during an interim: temporary." We find our order for interim compensation in Parish I was intended to be only temporary, or until the Home could be brought in and the matter adjudicated. We conclude we only intended our award of interim compensation to be from the date of our decision (November 24, 1999) forward. Accordingly, we deny and dismiss the employee’s request for a retroactive award of benefits.

1. Wesleyan Nursing home is properly joined as a party to the employee’s claim against Seward General Hospital. The employee’s claims for benefits associated with her contraction of HCV at the Hospital are considered to also be filed against the Home.
2. The employee’s petition to join the State of Alaska, Department of Corrections is denied and dismissed.
3. Seward General may terminate payment of the interim compensation we awarded in Parish I.
4. The employee’s petition for retroactive compensation is denied and dismissed.

Dated at Anchorage, Alaska this 2^nd day of March, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Darryl Jacquot
Darryl Jacquot,
Designated Chairman

/s/ Philip E. Ulmer
Philip Ulmer, Member

/s/ John A. Abshire
John Abshire, Member

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of JANICE H. PARISH employee / applicant; v. SEWARD, CITY OF (HOSPITAL), employer; ALASKA MUNICIPAL LEAGUE, insurer; UNITED METHODIST CHURCH (WESLEYAN NURSING HOME), employer; and ATLANTIC MUTUAL INSURANCE CO., Insurer / defendants; Case Nos. 199116718, 199123793; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 2^nd day of March, 2000.

Debra C. Randall, Clerk

SNO