ARTHUR J. WELCH,		)
				)
Employee,			)	INTERLOCUTORY
Applicant,			)	DECISION AND ORDER
				)	AWCB Case Nos.	8911130
v.				)		8913927
				)	AWCB Decision No.	90-0013
VECO, INC.,			)
				)	Filed with AWCB Anchorage
Employer,			)	January 24, 1990
				)
and				)
				)
EAGLE PACIFIC INSURANCE CO.,	)
				)
Insurer,			)
Defendants.			)
				)

We heard this matter on January 11, 1990 in Anchorage. Employee was present and represented by attorney Michael Stepovich and paralegal Peter Stepovich. Defendants were represented by attorney Elise Rose. Before we could get started on the merits of this case, we continued this matter until February 21, 1990. The record for the continuance of this matter closed at the end of the hearing.

Based on the findings and conclusions below, we now continue this matter indefinitely. A prehearing has been set for February 5, 1990 at 3:00 p.m. in Anchorage.

On October 12, 1989 Employee filed two Applications for Adjustment of Claim, one based on a knee injury allegedly suffered on May 25, 1989, and the second based on a back injury allegedly sustained on June 22, 1989. These applications were filed in our Fairbanks office which subsequently forwarded them to our Anchorage office which served the applications on Defendants on October 23, 1989. Defendants, who had controverted both of these claims in August 1989, filed answers to the applications on October 30, 1989. Neither of the applications was accompanied by a medical summary (form 07-6103) or medical reports, according to Defendants. However, medical summaries were filed by Jon Gustafson on October 17, 1989 and November 14, 1989. Gustafson's relationship to the parties in this matter is unknown to this panel, however, we speculate he filed these summaries on Employee's behalf since Gustafson certified he mailed the summaries to the Board and the insurance carrier (Insurer).

On November 20, 1989 Employee filed Affidavits of Readiness for Hearing on both applications. In these affidavits, paralegal Peter Stepovich certified that he delivered or mailed a copy of the affidavits to Employer and Insurer that same day.

Defendants' attorney Rose mailed her entry of appearance ID to attorney Stepovich on November 30, 1989. In a December 7, 1989 letter to Paul Grossi, Anchorage pre-hearing officer, Rose asserted that Employee's Affidavits of Readiness for Hearing, purportedly sent on November 20, 1989 were not received by insurer until November 30, 1989 and did not reach Rose's office until several days later. In other words, Rose suggested that she did not receive these affidavits until the time limits in AS 23.30.110 and 8 AAC 45.060(b) expired. Rose also stated:

Rose also sent a letter to Stepovich on December 7, 1989.

In it, she stated:

Stepovich never responded to Rose's request. Instead, Employee provided Rose with the names of his various physicians when he testified at his December 14, 1989 deposition. Rose asserted at hearing that she also received signed releases of information at that time, and on December 15, 1989 she sent requests to various physicians and medical facilities for copies of related medical records and reports.

In the meantime, on December 13, 1989 the Anchorage office of the Board had issued notice of hearing set for January 11, 1989. Employee never requested a change of venue.

Rose stated that she began to receive Employee's medical records in late December and she immediately filed proofs of service and served Employee and the Board with copies of those records received. She asserted these records continued to pour in and at the time of hearing she still had not heard from all the physicians. She also indicated that one physician refused to provide any copies of medical records until Employee paid his bill.

Our file indicates that Rose mailed (pursuant to 8 AAC 45.120(f)) several hundred pages of medical documents to Employee and the Board on December 29, 1989, January 2, 1990 and January 8, 1990. On January 9, 1990, at 4:55 p.m., Stepovich sent, by fax transmission to the Juneau office of the Board, an objection to most of the medical records filed by Rose, and he requested an opportunity to cross-examine the authors of the reports.

At the two-hour January 11, 1990 hearing, the parties never progressed beyond preliminary discussions and arguments on preliminary matters. At the outset, Stepovich (for Employee) repeated his objection to the above records, and he admonished the Board not to read the brief submitted by Rose because it contained references to the records objected to by Employee.

In response, Rose (for Defendants) moved for admission of the medical records based on the medical summaries filed by Employee, Employee's failure to provide the names of his medical providers in a timely manner and the resulting brief time she had to get these records, and 8 AAC 45.120(e).

Stepovich replied that the workers' compensation act (Act) requires parties to file medical summaries, and he asked why Rose didn't utilize interrogatories or other discovery means to get the documents and information she wanted. He also indicated it was expensive for Employee and his two hearing representatives to fly to Anchorage (from Fairbanks) for the hearing, and Employee was ready to proceed. He stated he had four witnesses ready to testify by telephone, including his primary medical witness, Edwin Lindig, M.D.

Rose responded that it was also expensive for Defendants to prepare for the hearing, and that the Board could not ignore the medical records objected to by Employee because they were important to Defendants' assertion that Employee did not sustain a compensable disability. She also asserted these records had been available to Employee but were withheld from Defendants. Finally, she contended failure to admit the disputed records would harm Defendants' due process rights.

We recessed and reviewed the records. We then told the parties that since the medical records themselves had not been served by Employee on Defendants, and the records were received less than 20 days before the hearing, the records could not be relied on, in accordance with 8 AAC 45.120(I). However, we pointed out that we could still use these records under 8 AAC 45.120(e).

In addition, we told the parties, we would allow then to take the testimony of their witnesses, and we would continue the hearing for 60 days in order for Defendants to depose any of the authors of the documents objected to by Employee. We expressed our concern about not being allowed to utilize several hundred pages of medical records to determine the outcome of this matter. We felt justified in continuing the case, as noted above, particularly because of Employee's failure to provide information to Defendants until the last minute in conjunction with Employee's last minute objection to the disputed records.

Because the time was then 12:15 p.m., we adjourned until 1:30 p.m. However, we did not start up until 2:00 because Employee and his counsel did not arrive back until then. At that time, we again asked the parties if they were ready to proceed. Employee stated that although he had Dr. Lindig standing by to testify during the morning (when the hearing was scheduled), the doctor was no longer available to testify. Because of this, Employee requested that he be allowed to depose Dr. Lindig during the time the record would be left open.

Defendants responded that they would be willing to allow admission of Dr. Lindig's medical records into the Board's file without objection. Defendants added that they were ready to proceed with the hearing, and they wanted to finish the hearing and close the record so the Board could make a decision. They indicated the Board could make its determination in this matter solely on the basis of the medical records of Dr. Lindig, and the testimony of the live witnesses at the hearing.

Employee replied that Dr. Lindig was a material witness, and his testimony would assist the Board in understanding not only his own medical records and opinion, but also the other medical records in the file. He again requested that he be allowed to depose Dr. Lindig after the hearing.

Defendants asserted once again that they would be forced to incur additional costs if the Board left the record open. They requested that the record close at the end of the hearing.

We again recessed and discussed this new turn of events. We then went back on the record and noted our frustration at the way this particular hearing was unfolding. We pointed out to the parties that initially, we continued the hearing and left the record open so Defendants would have the opportunity to depose the authors of the medical records which Employee objected to at the last minute. Now, Defendants were ready to proceed, and Employee was the party requesting time to depose his medical physician.

Accordingly, we told the parties that unless they both agreed to proceed, and finish the hearing and close the record that day, we would continue the entire hearing and set another hearing date.

Employee asserted Dr. Lindig was a material witness, and he needed to have the doctor's testimony. Accordingly, we continued the hearing, and set another hearing for February 21, 1990. Employee's attorney then stated he probably would not depose Dr. Lindig but would again attempt to make him available for the hearing. Defendants again objected to our procedures in this matter.

AS 23.30.110(c) states in pertinent part; "After a hearing has been scheduled, the parties may not stipulate to change the hearing date or to cancel, postpone, or continue the hearing, except for good cause as determined by the board."

Our regulation 8 AAC 45.074(a) states in pertinent part:

We initially decided to take the testimony of the witnesses the parties had available on the hearing date, and to then continue the hearing because we believed Defendants would suffer irreparable harm if we failed to give them the opportunity to depose the authors of the several hundred pages of medical records to which Employee objected on the eve of the hearing. We noted to the parties that Employee had not provided the medical records to Defendants who had to scramble to even get the records available for the hearing. Moreover, some records did not even make it into the record and were still unavailable.

After our morning ruling, the parties returned after the noon recess and reversed their positions: Defendants apparently had decided the medical records, so vital and important to the record earlier in the day, were no longer important to their case, and they could proceed without them. They added they would even let us consider the medical records of Dr. Lindig, Employee's medical witness. For his part, Employee, who in the morning wanted to be done with the hearing, now simply had to have the record left open so we could eventually consider the testimony of Dr. Lindig.

We then continued the hearing on the basis that a material witness was unavailable, and irreparable harm would result to both parties if the matter was not continued.

Now, we are not only canceling the scheduled February 21, 1990 hearing, but we are also making inoperative the Affidavits of Readiness for Hearing filed by Employee.

Under AS 44.62.540, we have reconsidered our oral decision. We find that the entire hearing process would be undermined if we proceeded with the February 21, 1990 hearing.

AS 23.30.135(a) states in part: "The board may make its investigation or inquiry or conduct its hearing in the manner by which it may best ascertain the rights of the parties." We conclude that by canceling the February 21 hearing, we will be in a better position to ascertain the rights of the parties in this matter.

AS 23.30.110(a) states:

Further, 8 AAC 45.052(e) states: "No hearing will be scheduled or held until the party filing the statement of readiness to proceed has complied with the provisions of this section." The "statement of readiness to proceed" is equivalent to the "Affidavit of Readiness for Hearing" now used for the hearing process.

Moreover, AS 23.30.095(h) states;

Clearly, Employee did not comply with the requirements of either 8 AAC 45.052(a) or AS 23.30.095(h). In fact, he breached the requirement in three respects. First, he did not file a medical summary along with his applications for benefits. Second, he failed to serve Defendants with copies of the medical reports listed in the summary. Finally, he failed to serve Defendants with reports relating to examinations listed on subsequent medical summaries. By failing to proceed under the above requirements, Employee essentially nullified Defendants' right to respond reasonably to the Affidavit of Readiness for Hearing. Therefore, we are canceling the February 21, 1990 hearing, and we will not schedule another hearing until Employee has complied with the above sections of the Act and our regulations.

in proceeding as he did here, Employee undermined the hearing process by failing to provide Defendants with the information, including the medical records, which Defendants needed to determine the position they should take on Employee's applications for benefits. Employee still had not provided Defendants with copies of these reports at the time he filed his Affidavits of Readiness for Hearing. Without the medical reports, Defendants did not have basic information needed to decide whether they should oppose the Affidavits of Readiness or proceed with the hearing process.

To their discredit, Defendants failed to oppose Employee's Affadivits of Readiness within the time limits in AS 23.30.110(c) and 8 AAC 45.070(c). However, they contend they did not get the Affadivits of Readiness until the time had almost expired. In any event, Defendants did not forward the Affidavits of Readiness to their attorney Rose until after the above time limits expired.

Rose then moved pell-mell to put the case together for hearing. Even with Employee's attorney dragging his feet on the medical evidence, Rose managed to apparently get most of the medical records into our file by hearing time. We commend Rose for her efforts. However, despite her diligence, Employee then used the ultimate weapon, a last-minute request to cross-examine most of the doctors in the record. Although this request and objection was valid, it was particularly harmful here because Employee had failed to provide Defendants with these records in the first place. If they had had the opportunity to review these records before Employee filed the Affidavit of Readiness, they surely would have been in a better position to decide whether to oppose the affidavit.

Our Act and regulations are clear: The parties must serve each other with all relevant medical records. Original records in their possession or under their control must be filed with us.

Defendants attempted, without success, to use informal means to get medical and other records from Employee. During the hearing, Employee suggested Defendants should have utilized formal discovery means (such as interrogatories) to get the information they wanted. In our view, utilization of formal discovery would only have delayed, even further, the production of the documents requested. Regardless of the outcome, though, we have repeatedly urged parties to cooperate in exchanging information by informal means. In this vein, we strongly advise Employee to cooperate in the future.

We do not like to make decisions on only a small portion of medical records relevant to the issues in a case. Given the nature of the "litigation beast," we understand why parties may or may not want us to see some medical records. Nonetheless, they still must file these records in compliance with our rules and regulations. Moreover, we will continue to review, analyze and consider as many records as are allowed within the limits prescribed in our Act and regulations.

In this regard, we note Employee told us not to read Defendants' brief because it contained references to medical records which he had objected to under AS 23.30.120(I). We remind Employee that our Act, regulations and related case law allow us to consider any relevant evidence, including hearsay evidence, within certain confines. See AS 23.30.135 (a); 8 AAC 45 120 (e); and Cook v. Alaska Workmen's Compensation Board, 476 P.2d 29 (Alaska 1970). Whether or not Employee wants us to, we still get to take at least a peek at all relevant medical records; and Employee must also allow Defendants a peek before he files his next Affidavit of Readiness for Hearing.

1. Employee's Affadavit of Readiness for Hearing is canceled and is therefore inoperative.

2. The February 21, 1990 hearing set in this matter is canceled.

3. A prehearing is set for February 5, 1990 at 3:00 p.m. in Anchorage. Notice of this prehearing was sent on January 17, 1990.

Dated at Anchorage, Alaska, this 24th day of January, 1990.

ALASKA WORKERS' COMPENSATION BOARD

Mark R. Torgerson, Designated Chairman

Donald R. Scott, Member

Darrell F. Smith, Member

MRT/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 Arthur J. Welch, employee/applicant; v. VECO, Inc., employer; and Eagle Pacific Insurance Co., insurer/defendants; Case Nos. 8911130 and 8913927; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 24th day of January 1990.

Jamie Whitt, Clerk

SNO