JOSEPH L. LOPEZ, 
Employee, 
Petitioner,
v. 
NABORS ALASKA DRILLING, INC,
Employer,
And 
NABORS PETROLEUM SERVICE,
Insurer,
Respondent.

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INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 199801812
AWCB Decision No. 99-0233
Filed in Anchorage, Alaska
November 17, 1999.

We heard the employee’s petition to continue this matter in Anchorage, Alaska on November 2, 1999. Attorney Shelby L. Nuenke-Davison represented the employer. Attorney William M. Erwin represented the employee but did not appear at the hearing. We closed the record at the conclusion of the hearing.

Whether to grant the employee a continuance under 8 AAC 45.074.

The employee suffered a work-related injury on January 9, 1998. The Reemployment Benefits Administration (RBA) determined the employee eligible for reemployment benefits under AS 23.30.041(d). The employer appealed the RBA’s decision.

At a prehearing conference held on August 12, 1999 the parties agreed to a hearing date of November 2, 1999 on the issue of the employer’s appeal of the RBA’s decision. The hearing was scheduled for 1.5 hours. The parties had until August 19, 1999 to check their schedules and object to the hearing date. The employee did not object to the hearing date.

On November 2, 1999 all parties were present for the hearing at 9:00 am. Ms. Davison informed Mr. Erwin that the hearing would not be held until the afternoon. Mr. Erwin informed Ms. Davison that he was unable to stay for the afternoon since he had an emergency court martial hearing at 5:00 p.m. at Fort Richardson that he was required to attend and he had a deposition in the afternoon. After realizing that his case would not be heard until the afternoon, Mr. Erwin spoke with members of the Workers’ Compensation staff and requested a continuance because of an emergency matter that arose. He faxed a letter to the Board and to Ms. Davison stating:

Ms. Davison responded to Mr. Erwin as follows:

At 1:30 p.m. Mr. Erwin did not appear and we went on the record to determine if a continuance should be granted. Hearing Officer Reinhold recused herself because she had unavoidable ex parte conversations with both parties regarding the continuance. She testified that Mr. Erwin had informed the Board staff that he needed a continuance because he had an unavoidable court appearance at 5:00 p.m.

Ms. Davison argued that her client would be prejudiced because a witness had been flown in from the North Slope and the employer would incur expenses if a continuance were granted. She also argued that the request for continuance was not properly made since there was no affidavit or petition from the employee’s counsel. Ms. Davison argued that the employee’s counsel was very familiar with the Workers’ Compensation hearing procedures and he should have known that the hearing might go into the afternoon. She also challenged the veracity of the employee’s counsel and argued that it was improper to continue a hearing merely because Mr. Erwin had scheduled a deposition for the afternoon when he knew he might be needed for a Workers’ Compensation hearing. She agreed that the employee would be somewhat prejudiced if the continuance was not granted due to the employee’s inability to present opening and closing statements and cross-examine witnesses.

AS 23.30.135(a) provides, in part:

Under our regulations at 8 AAC 45.070(a): "A hearing may be adjourned, postponed, or continued from time to time and from place to place at the discretion of the board or its designee, and in accordance with this chapter. . . ."

Our regulation governing continuances in our proceedings, 8 AAC 45.074, provides, in part:

1. Good cause exists only when

1. a party or representative of a party is unavailable because of an unintended and unavoidable court appearance;

The employer urges us that a continuation should not be granted because the employee’s counsel failed to submit an affidavit pursuant to 8 AAC 45.074 (a) (1). This regulation applies to the unavailability of witnesses, and says nothing about the unavailability of an attorney. We do not apply that regulation in our analysis.

We find that 8 AAC 45.074 (b) (1) (B) applies in this particular case. Mr. Erwin is an attorney and thus an officer of the court. See Alaska Rules of Professional Conduct (ARPC) Preamble: A Lawyer’s Responsibilities. His communications to the Board are governed by the ARPC. ARPC 3.3. Candor Toward the Tribunal states:

1. A lawyer shall not knowingly:

1. make a false statement of material fact or law to a tribunal;

The comment to ARPC 3.9. Advocate in Nonadjudicative Proceedings states that:

Mr. Erwin stated in his letter to the Board that he was unavailable to appear before the Board due to "an emergency arraignment date of 5:00 p.m. at Fort Richardson set on short notice against my client." Mr. Erwin also stated that "a long time medical deposition was set for 1:30 p.m. that pre-dated the setting of the hearing." We have no evidence before us that these statements are untrue and we accept Mr. Erwin’s representations as truthful.

We find that a non-emergency deposition which an attorney failed to notice on his calendar does not provide "good cause" to continue a hearing under 8 AAC 45.074. However, we find that Mr. Erwin’s emergency arraignment at Fort Richardson was "an unintended or unavoidable court appearance" which he needed to attend. This Workers’ Compensation hearing was scheduled to begin at 1:30 p.m. and was scheduled to last 1.5 hours. We find it is not unreasonable that Mr. Erwin would need time to travel to Fort Richardson and meet with his client and prepare for this emergency military hearing. We also find that proceeding in this matter without the employee or his representative would unduly prejudice the employee.

We find no evidence of malice or bad faith on the Mr. Erwin’s part. He appeared on the morning of the hearing date with his client and was ready to proceed at that time. When he realized that his case could not be heard in the morning session, he spoke with the staff of the Workers’ Compensation Division to attempt to obtain a continuation.

Based on the available record, we find that the employee’s counsel was unavailable because of an unintended and unavoidable court appearance. We also find that irreparable harm could result from proceeding without the employee or his representative present. We conclude that the employee’s counsel has shown good cause to continue this hearing under 8 AAC 45.074(b) (1) (B) and we will grant the continuance of the hearing on the merits of this claim.

The employee's November 2, 1999 request to continue this case is granted under 8 AAC 45.074 (b) (1) (B).

Dated at Anchorage, Alaska this 17th day of November, 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Wielechowski
William P. Wielechowski, Designated Chairman

/s/ HM Lawlor
Harriet M. Lawlor, Member

I agree with the majority's decision to grant the employee's November 2, 1999 request to continue this case under 8 AAC 45.074(b)(1)(B). However, I believe it is necessary for me to communicate my disapproval of Attorney Erwin's actions in this matter. Mr. Erwin is an experienced practitioner before this Board. He not only has knowledge of the law, but of the regulations that govern the Board's proceedings. I do not question the veracity of Mr. Erwin's scheduling conflicts. However, I do question his absence before the Board, to properly request that a continuation be granted. Mr. Erwin is responsible for scheduling his calendar to prevent conflicts such as occurred in this case. The deposition that he represented had been scheduled a "long time" previous to the hearing date, is not in my opinion, good cause for canceling the hearing. I do find, like the majority in this case, that the "unintended or unavoidable court appearance" at Fort Richardson, does meet the criteria for continuing the hearing per the Board's regulations, and it is for this reason I am persuaded to agree with the majority. However, if Mr. Erwin did not feel he could appear in person to request a continuance, I feel the least Mr. Erwin owed to opposing counsel, and to the Board, was a telephonic appearance to put on the record his reasons for his request. Mr. Erwin's inability to properly schedule his calendar will no doubt result in a significant delay in hearing the employee's case. Furthermore, the employer is saddled with additional attorney's fees, the cost for transportation of a witness from the North Slope, and the prolongation of a case that should have been heard as scheduled so that a decision could be rendered on the merits of the evidence.

/s/ S.T. Hagedorn
S.T. Hagedorn, 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 Interlocutory Decision and Order in the matter of JOSEPH L. LOPEZ employee / applicant; v. NABORS ALASKA DRILLING, INC, employer; NABORS PETROLEUM SERVICE, insurer / defendants; Case No. 199801812; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 17th day of November, 1999.

Debra C. Randall , Clerk

SNO