JAMES ABBEY,			)
				)
Employee,			)	INTERLOCUTORY
Applicant,			)	DECISION AND ORDER
				)	AWCB Case No. 8929272
v.				)	AWCB Decision No. 90-0110
				)
				)	Filed with AWCB Anchorage
VECO, INC.,			)	May 23, 1990
				)
Employer,			)
				)
and				)
				)
EAGLE PACIFIC INSURANCE		)
COMPANY,			)
				)
Insurer,			)
Defendants.			)
				)

Employee's request for a change of venue was heard at Anchorage, Alaska, on May 2, 1990, based on the written evidence and arguments. Employee is represented by attorney Michael Stepovich. Defendants are represented by attorney Elise Rose.

Under 8 AAC 45.072 is Employee entitled to a change of venue from Anchorage to Fairbanks?

Employee's claim that he suffered a hernia as a result of his work in Valdez, Alaska, in June 1989, has been denied by Defendants. Employee has requested a hearing for us to determine the compensability of his claim. Under AS 23.30.072 venue for the hearing should be Anchorage, as it has a division office and is closest to the place of injury. Employee requests the venue be changed, and the claim be heard in Fairbanks. Employee alleges his residence is in Fairbanks, that he has three treating physicians who are in Fairbanks and who may be called as witnesses, he has two lay witnesses who live in Fairbanks, and his attorney lives in Fairbanks. Employee alleges he has been disabled since June 15, 1989, and lacks the funds to travel to Anchorage.

Defendants deposed Employee on April 19, 1990, and Employee testified that after the injury he lived in Valdez until August 1989. He then lived in Fairbanks during September and October 1989. He moved to San Diego for medical treatment and lived there until sometime in March or April 1990. On April 19, 1990, he testified that he planned to return to San Diego in the near future. Defendants allege Employee's residence is not Fairbanks, but is San Diego.

Defendants contend Employee's treating physician is actually in San Diego. They dispute Employee's allegation that he would call to testify at a hearing a doctor who has not treated him since August 1989. Furthermore, even at the time he saw the Fairbanks doctor, he listed San Diego as his address. Defendants also contend it is unlikely any doctor will testify in person, since we prefer written reports. If the written medical records are not admitted, a deposition is likely to be done as it is more convenient to a doctor's schedule.

Defendants allege that the testimony of Employee's lay witnesses is not relevant. In any event, Defendants stipulate that the two lay witnesses Employee identified could testify telephonically. Defendants contend that they have several lay witnesses who they intend to have testify at the hearing. These witnesses work either at Employer's headquarters in Anchorage or in Valdez. under 8 AAC 45.072 the convenience of the parties must be considered, and Defendants allege it will be very inconvenient for their witnesses to travel from Anchorage or Valdez to Fairbanks.

(Emphasis added).

We have previously found section 72 favors holding hearings in the city closest to the location where the injury occurred in which we have an office. Also, we must consider the convenience of all the parties, not just one party, in determining a change of venue request. Davis v. Lost Valley Timber, AWCB Decision No. 860087 at 2 (April 23, 1990).

First, Employee alleges Fairbanks is more convenient for him because he lacks money for travel. However, Employee testified daring his deposition that he planned to return to San Diego soon. Regardless of where the hearing is held, he will have to travel from San Diego to Alaska. His allegation about the lack of funds appears spurious.

Next we consider Employee's allegation that he has three doctors in Fairbanks who might be called as witnesses. Our file contains one medical report. it is the August 8, 1989, chart notes from Employee's visit with George Pfaltzgraff, M.D. Dr. Pfaltzgraff diagnosed Employee's condition as a hernia and recommended surgery. Dr. Pfaltzgraff did not comment on the relationship of the condition to Employee's work.

Employee has filed a medical summary listing a visit with Dr. Strastma on August 8, 1989, and a visit with an "unknown" doctor on that same date.¹ We have no indication that Employee has seen any doctors in Fairbanks since that date. Employee stated in his October 27, 1989, handwritten statement that he saw a surgeon in San Diego. This is consistent with the statement in his reply brief that his "travel to San Diego has been medically related." (Employee's Reply at 1). Thus, it appears that his treatment has actually occurred in San Diego.

We favor medical evidence in the form of written reports. 8 AAC 45.120(k). We question whether Employee will need to present any medical witness' in-person testimony at the hearing. Even if he does need to make his physician available for cross-examination, we question whether it would be a Fairbanks physician as opposed to his San Diego physician who saw him more recently.

Next, we consider the issue of lay witnesses. Each party has witnesses to present on the issue of whether Employee was injured in the course and scope of employment. We find it would be more convenient for Employee's witnesses if the hearing was held in Fairbanks. We find it would be more convenient for Defendants' witnesses if the hearing was held in Anchorage.

Finally, we consider the fact that Employee's attorney is in Fairbanks. Apparently, Employee selected the attorney while he lived in Fairbanks after he terminated his employment. That was probably more convenient than securing an attorney from Anchorage, although an Anchorage attorney would have been nearer the venue site. Clearly, it would be more convenient for Employee's attorney if the hearing were in Fairbanks. Defendants' attorney is in Anchorage, which is nearer the place of venue for the injury. It will be more convenient for Defendants' attorney if the hearing is held in Anchorage.

While some of the factors that we consider in connection with a request for a change of venue demonstrate that it would be more convenient for one party if we changed the venue to Fairbanks, considering those same factors from the other party's perspective demonstrates that it will be less convenient for the opposing party if the hearing is in Fairbanks. We do not find any of the factors considered dictate granting Employee's request to venue for the convenience of the parties and witnesses. Accordingly, under section 72, venue remains in Anchorage.

Employee's request for a change of venue to Fairbanks is denied and dismissed.

DATED at Anchorage, Alaska this 23rd day of May, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rebecca Ostrom
Rebecca Ostrom, Designated Chairman

/s/ John H. Creed
John H. Creed, Member

/s/ Donald R. Scott
Donald R. Scott, Member

RJO:rjo

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of James B. Abbey, employee/applicant, v. Veco, Inc., employer, and Eagle Pacific Insurance Company, insurer/defendants; Case No. 8929272; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 23rd day of May, 1990.

Clerk