MICHAEL HUMECKY,		)
				)
Employee,			)	DECISION AND ORDER
Respondent,			)	AWCB Case No. 8608007
				)	AWCB Decision No. 90-0006
				)
				)	Filed with AWCB Anchorage
BRINKEROFF SIGNAL,		)	January 17, 1990
				)
Employer,			)
				)
and				)
				)
FIDELITY & CASUALTY CO.,	)
				)
Insurer,			)
Petitioners.			)
				)

It is undisputed that Michael Humecky was employed by the employer on May 3, 1986 when he fell and suffered injuries to his lower back, left leg and left shoulder.

A Report of Injury was file by the employer on May 5, 1986. Following receipt of medical documentation to support time loss, temporary total disability compensation commenced at the rate of $734.96 per week. The employee received temporary total disability benefits from May 9, 1986 through April 24, 1987, the date the employee was released for regular work by all treating and examining physicians. A Notice of Controversion of further benefits was filed on April 27, 1987 based on those medical releases.

On May 7, 1987, the employee filed an Application for Adjustment of Claim making a claim for temporary total benefits. The employer filed an answer on June 1, 1987.

On June 7, 1989, the employer and insurer filed a Petition to Dismiss pursuant to AS 23.30.110(c). The employee filed an Opposition to the Petition to Dismiss on June 27, 1989. the petitioners renewed their petition on September 21, 1989. no opposition to that petition has been filed.

On December 7, 1989, the petitioners filed an Affidavit of Readiness for Hearing on the Written Record. While a copy of this affidavit was served on the employee, an objection to it was never filed. The record closed on January 10, 1990, the first regularly scheduled hearing date after all responses and replies were to be submitted by the parties.

Under THE Alaska Workers' Compensation Act, a party filing a claim for benefits must request a hearing within two year of a controversion of that claim. AS 23.30.110(c) provides, in pertinent part: "If a claim is controverted by the employer and the employee does not request a hearing for a period of two years following the date of controversion, the claim is denied."

We held in Thornton v. North Star Stevedoring and ATCO Structures, Inc, AWCB No. 870127 (June 9, 1987), that a "claim" must be defined by reference to AS 23.30.105. In Thornton, we concluded that "[A] claim for purposes of §110(c) is normally the application for benefits." In that case we also stated that a controversion for purposes of §110(c) includes either a Board-prescribed controversion notice or an employer's answer to an employee's application for benefits.

In this case, the employee filed a claim for benefits by way of an application for adjustment of claim on May 7, 1987. This application constitutes a claim under §105(a). The petitioners' answer to that application, dated June 1, 1987, constitutes a continuation of the earlier controversion for purposes of §110(c).

The employee, in order to comply with the provisions of §110(c), was required to request a hearing before April 27, 1989, and, in any event, no later than June 1, 1989. since he did not take such action timely, his claim must be denied.

The employee's claim for temporary and total disability benefits is denied and dismissed.

Dated at Anchorage, Alaska, this 17^th day of January, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Russell E. Mulder
Russell E. Mulder, Designated Chairman

/s/ D.F. Smith
Darrell F. Smith, Member

REM/jw/

If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 20 percent will accrue if not paid within 14 days of the due date unless an interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court 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 compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Michael Humecky, employee/respondent; v. Brinkeroff Signal, employer; and Fidelity & casualty Co., insurer/petitioners; Case No. 8608007; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 17^th day of January, 1990.

Clerk

SNO