RICHARD A. SIVERLY,		)
				)
Employee,			)	DECISION AND ORDER
Respondent,			)	AWCB Case No. 822192
				)	AWCB Decision No. 90-0074
v.				)
				)	Filed with AWCB Fairbanks
AOKI BROTHERS CONSTRUCTION,	)	April 16, 1990
				)
Employer,			)
				)
and				)
				)
ALASKA NATIONAL INSURANCE,	)
				)
Insurer,			)
Petitioners.			)
				)

We heard this petition to dismiss the employee's claim for a compensation rate adjustment, penalties, attorney fees, and legal costs in Fairbanks, Alaska on April 10, 1990. Attorney Michael Stepovich represented the responding employee, although paralegal Pete Stepovich attended to represent him in the hearing. Attorney Michael McConahy represented the petitioning employer and insurer. We closed the record at the conclusion of the hearing.

The employee herniated a disc at L5-S1 while working as an electrician for the employer on October 18, 1988. He underwent a lumbar laminectomy on February 22, 1989. His physician found him medically stable and released him to modified work on June 21, 1989, rating his impairment at 15 percent of the whole man. The employer paid him $20,250.00 in permanent partial benefits following the rating. On July 19, 1989 the employer filed a Notice of Controversion dated July 14, 1989, controverting all further compensation and vocational rehabilitation benefits.

The employee filed an Application for Adjustment of Claim on July 20, 1989, requesting a compensation rate adjustment under AS 23.30.220(a)(2), along with temporary total disability benefits, permanent partial disability benefits, vocational rehabilitation, medical benefits, interest, penalties, attorney fees, and legal costs. His attorney filed an Affidavit of Readiness on September 15, 1989, swearing that his discovery was completed and requesting a hearing.

At a hearing on the issues of compensation rate, penalties, attorney fees, and legal costs on January 30, 1990, the paralegal representing the employee admitted that his office had not yet obtained the critical records concerning the employee's daily hours and work history from the employee's union, the International Brotherhood of Electrical Workers. The paralegal assured us that his office would pursue the discovery. The documents already in the record did not provide a basis to support a compensation rate adjustment. Both parties requested a continuance.

In our decision and order on that hearing, AWCB No. 90-0017 (January 31, 1990), we ruled that the parties had not shown good cause to continue the hearing under 8 AAC 45.074(a). Nevertheless, in the interest of justice and to avoid penalizing the employee for the negligence of his attorney, we waived our own procedures under 8 AAC 45.195. We voided the employee's Affidavit of Readiness to Proceed, and retained jurisdiction over the issues for 30 days to allow the employee to complete his discovery and to file a new Affidavit of Readiness. We warned that if the employee failed to file a new Affidavit of Readiness within the 30-day period, these issues would be denied and dismissed from his claim.

The employee filed a new Affidavit of Readiness on March 2, 1990, the 30th day following the issuance of our first decision on this case. On March 6, 1990 the employer filed a motion, petitioning us to dismiss the employee's claim, alleging he had not pursued discovery as required in our decision and order. The employee had failed to disclose any additional evidence in response to a production request by the employer. A preheating summary dated March 29, 1990 confirmed that the employee's attorney delayed sending out wage and benefit information requests and releases until March 20, 1990. Pursuant to 8 AAC 45.070(a)-(b) we set this matter for hearing on our own motion.

At our second hearing the paralegal for the employee asserted that following our first decision he turned the responsibility for discovery over to the employee himself. When the employee failed to get the information the paralegal had an office worker attempt to obtain the time records from the various employers for whom the employee worked in 1986 and 1987. When the office worker proved unsuccessful the paralegal sent out written discovery requests on or about March 20, 1990. He represented that the employee's attorney had Signed the Affidavit of Readiness for Hearing on March 2, 1990 because he felt they could go forward with the hearing by calling the employee and the various employers from 1986 and 1987 as witnesses at a hearing. These witnesses could give sufficient evidence to establish that the employee worked less than six months during those years and that his compensation rate should be recalculated under AS 23.30.220(a)(2).

The employee testified that he received a copy of our decision and understood that he had to produce the evidence within 30 days, but that he was "rummy" from taking pain medication. He testified that he believed that he had worked less than six months during 1986 and 1987, but that he'd averaged about four months a year for the last five years. He had no specific figures or records to substantiate his estimates.

The employee produced several wage and benefit records at the hearing, which neither we nor the employer's counsel had seen before. No explanation was given why these documents had not been disclosed to the employer in accordance with the employee production request. The paralegal did not know when his office obtained these documents. The documents were not decipherable without additional explanation by someone from the organizations that produced them.

The employer argues that although it does not dispute that a compensation rate adjustment might be due, the employee has once again failed to provide evidence on which to base an adjustment. The employee failed to comply with the discovery requirements laid out in our January 31, 1990 decision and order, and his claim should be dismissed. The employee argues that he was ready to go forward with just his witnesses when he filed his Affidavit of Readiness.

We can find no clear evidence that the employee obtained any additional discovery between our first hearing and the time when his attorney signed the Affidavit of Readiness for hearing. We cannot give credence to the paralegal's assertion that the employee was ready to proceed on March 2, 1990, at which time he had the same evidence as when he requested a continuance based on the paucity of that evidence on January 30, 1990.

We find that once again the employee's attorney filed an Affidavit of Readiness swearing that he had completed discovery when, in fact, he had not. The employee has failed to provide any evidentiary basis for his claim for a compensation rate adjustment under AS 23.30.220(a)(2), penalties, attorney fees, and legal costs. Our last decision and order on this case provided an opportunity to remedy his attorney's negligence, but neither the employee nor his attorney utilized this opportunity. As authorized in AS 23.30.135 we laid out a procedure in that decision to best ascertain the rights of the parties. In accordance with the terms of that decision we will deny and dismiss the employee's claims concerning these issues.

We take specific note that the employee claims to have suffered impaired judgement from medication. We find that the employee acted in reliance on his attorney and that his attorney failed to diligently pursue his claim. To attempt to avoid penalizing the employee for his attorney's inaction, the dismissal of his claim regarding these issues will be without prejudice. If the employee desires to pursue these issues, he should file an Application for Adjustment of Claim by October 17, 1990,

In AS 23.30.135 the board is directed to conduct our hearings . ." In the manner by which it may best ascertain the rights of the parties." In this decision and in the decision of January 31, 1990 we found that the employee's attorney failed to diligently pursue his client's interest, and failed to represent his rights. We find that the employee's attorney has impeded our attempts to ascertain the rights of his client. As authorized in AS 23.30.135 we will refuse to consider any further evidence or argument presented by this attorney concerning these issues if the employee chooses to raise them in a new claim.

1. The employee's claim for a compensation rate adjustment, penalties, attorney fees, and legal costs is denied and dismissed without prejudice.

2. If the employee chooses to file a claim for a compensation rate adjustment once again, under AS 23.30.135 we will refuse to consider evidence or argument presented by his present counsel.

DATED at Fairbanks, Alaska, this 16th day of April, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William S.L. Walters
William S.L. Walters, Designated Chairman

/s/ Joe J. Thomas
Joe J. Thomas, Member

/s/ Steve M. Thompson
Steve M. Thompson, Member

WSLW/ml

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

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in the 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 Richard Siverly, employee/applicant; v. Aoki Brothers Construction, employer; and Alaska National, insurer/defendants; Case No. 822192; dated and filed in the office of the Alaska Workers' Compensation Board at Fairbanks, Alaska this 16th day of April, 1990.

Clerk

SNO