THOMAS A. PHILLIPS, 
Employee, 
Applicant,
v. 
C & A DISTRIBUTORS,
Employer,
(UNINSURED)
Defendant.

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DECISION AND ORDER
AWCB Case No. 199728640
AWCB Decision No. 00- 0040 
Filed with AWCB Fairbanks, Alaska
on March 9, 2000

We heard the employee's claim for additional penalties and interest against this employer in Fairbanks, Alaska on February 17, 2000. The employee represented himself. Attorney Warren Taylor represented the employer. We closed the record at the end of the hearing.

1. Is the employee due additional penalties from the employer under AS 23.30.155(e)?

2. Is the employee due interest from the employer under 8 AAC 45.142?

The employee developed left arm ulnar nerve entrapment in January 1997, while working as a warehouseman for the uninsured employer, a pull-tab and bingo supply distributor. We discussed the history of this case and the relevant evidence in the Case History and Summary of the Evidence section of our April 14, 1999 decisions on this case (AWCB No. 98-0278 (November 3, 1998) and AWCB No. 99-0222 (November 3, 1999)). We here incorporate that discussion by reference.

In our first decision on this case, we found the employee entitled to $8,100.00 in PPI benefits under AS 23.30.190, based on a rating of six percent impairment by Jeremy Becker, M.D. We found the employee entitled to medical benefits under AS 23.30.095(a) for his medical care to the date of the hearing, and for reasonable and necessary continuing medical benefits as the course of recovery requires, including ulnar release and transposition surgery, as well as temporary total disability (TTD) benefits for work-time-loss necessary for recovery from the ulnar surgery.

We additionally ordered the employer to pay the employee a 25 percent penalty under AS 23.30.155(e), an amount totaling $2,025.00, on all PPI benefits, as well as a 25 percent penalty on all medical benefits that had been unpaid over seven days since due. We found the employee entitled to interest under 8 AAC 45.142 on all PPI benefits, and on all late or unpaid medical benefits, from the date those benefits were due. We awarded the employee attorney fees and legal costs under AS 23.30.145(b).

The employer filed a Petition for Reconsideration on November 16, 1998, contending he had never received notice that $8,100.00 in PPI benefits was due to the employee until our decision. In our decision on reconsideration under AS 44.62.540 (AWCB No. 98-0286 (November 18, 1998)), we noted AS 23.30.190 specifically provides a mechanism for employers and insurers to get notice of the whole-person, percentage, permanent partial impairment rating under the AMA Guides. We found the employer received notice of the employee's PPI rating, but failed to pay. Consequently, we reaffirmed our decision and order of November 3, 1998, and reaffirmed our award of penalties.

On December 29, 1998 the employee filed a Motion for Supplemental Order for Declaration of Default, alleging the employer failed to pay the penalties we awarded in our November 3, 1998 decision and order. In the Motion, the employee also claimed a 25 percent penalty under AS 23.30.155(f) for the employer's failure to timely pay, as ordered, and $519.00 in interest.

We issued a Supplementary Order Declaring Default and Default Order on April 15, 1999 (AWCB No. 99-0080). Under AS 23.30.170 we declared the employer in default of our order to pay $2025.00 in penalties.

In our Supplementary Order Declaring Default and Default Order, we noted that a supplementary order of default provides a discrete avenue of redress to the Superior Court under AS 23.30.170. Because the employee's attempt to secure a supplemental default order raised issues of additional penalties and attorney fees, we retained jurisdiction to resolve these issues in a separate decision and order. In AWCB No. 99-0082 (April 16, 1999), we awarded the employee $506.25 in additional penalties, interest, and attorney fees under AS 23.30.145(b).

In our November 3, 1989 decision and order we found no evidence of any circumstances rendering the employer unable to make timely payments by January 13, 1999. Therefore, we found the employer failed to timely pay the temperate total disability benefits and medical benefits and awarded a penalty of $486.97. We also awarded a penalty of $980.14 for late paid medical benefits. We also awarded interest in the amount of $108.73 and attorney fees in the amount of $1025.00.

Unfortunately, however, our November 3, 1999 decision was not mailed to either the employer or the employer's attorney at their correct addresses. Therefore, they did not receive notice of our November 3, 1999 decision until November 29, 1999, when they contacted the Board to learn the case status. On December 2, 1999 the employer paid the amounts ordered in our November 3, 1999 decision and order.

Nevertheless, the employee seeks an award of additional penalties for failure to pay the November 3, 1999 award in a timely fashion. The employer counters that such penalties are not owed for the reason that late payment should be excused due to failure to receive notice.

I. PENALTIES

AS 23.30.155 provides, in part:

(b) The first installment of compensation becomes due on the 14th day after the employer has knowledge of the injury or death. On this date all compensation then due shall be paid. . . .

(d) . . . If the employer controverts the right to compensation after payments have begun, the employer shall file with the board and send to the employee a notice of controversion within seven days after an installment of compensation payable without an award is due. . . .

(e) If any installment of compensation payable without an award is not paid within seven days after it becomes due, as provided in (b) of this section, there shall be added to the unpaid installment an amount equal to 25 percent of it. This additional amount shall be paid at the same time as, and in addition to, the installment, unless notice is filed under (d) of this section or unless the nonpayment is excused by the board after a showing by the employer that owing to conditions over which the employer had no control the installment could not be paid within the period prescribed for the payment.

(f) If compensation payable under the terms of an award is not paid within 14 days after it becomes due, there shall be added to that unpaid compensation an amount equal to 25 percent of it, which shall be paid at the same time as, but in addition to, the compensation, unless review of the compensation order making the award is had as provided in AS 23.30.125 and an interlocutory injunction staying payments is allowed by the court.

Under AS 23.30.155(f) the benefits awarded by the Board were due 14 days after the award, issued on November 3, 1999, that is, on November 17, 1999. In this case, however, the award was communicated to the wrong employer addresses, through no fault of the employer or his representative. Only upon inquiry by the employer to the Board, the employer first learned of the decision on November 29, 1999. Based on our review of the testimony and record in this case, we construe our award as being issued on November 29, 1999, the date the award was first communicated to the employer and his attorney. We find the employer made payment to the employee on December 2, 1999. Given that payment was made within 14 days after the "award" we find the payment was timely made and no additional penalties are owed.

Alternatively, we can excuse a late payment of compensation due without an award, if the employer specifically shows us the payment was not made for reasons beyond the employer's control. See Fahlsing v. Arctic North Services, Inc., AWCB Decision No. 94-0072 (March 29, 1994). In the instant case, we find evidence of circumstance rendering the employer unable to meet this legal responsibility.

Based on our review of the record we find the employer and the employer's attorney did not receive notice of our November 3, 1999 decision until November 29, 1999. We find this is reason to excuse late payment. Specifically, we find the notice of the award was sent by the Board to the wrong addresses, through no fault of the employer or his representative. Therefore, we find the employer’s failure to receive notice was for reasons beyond the employer's control. Accordingly, we conclude the employee's request for additional penalties must be denied.

The employee’s claim for a 25 percent penalty under AS 23.30.155, is denied and dismissed.

Dated at Fairbanks, Alaska this _9th__ day of March, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Fred G. Brown
Fred Brown, Designated Chairman

/s/ John Giuchici
John Giuchici, Member

/s/ Dorothy Bradshaw
Dorothy Bradshaw, Member

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

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 Final Decision and Order in the matter of Thomas A. Phillips / applicant; v. Kent Setzer, dba, C&A Distributors (uninsured), employer / defendant; Case No.199728640; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 9^th day of March, 2000.

Lora J. Eddy, Clerk

SNO