99-0255

ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

CHRISTOPHER A. LACY, 
Employee, 
Respondent
v. 
HOTEL CAPTAIN COOK, INC,
Employer,
and 
PROVIDENCE WASHINGTON-AK,
Insurer,
Petitioners.

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INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 198218412
AWCB Decision No. 99-0255
Filed in Anchorage, Alaska
December 14, 1999.

We heard the employer’s petition to compel the employee to sign releases in Anchorage, Alaska on November 16, 1999. Non-attorney Barbara Williams represented the employee. Robert Griffin represented the employer. We closed the record at the conclusion of the hearing.

ISSUES

1. Is the employee mentally incompetent, and in need of a guardian to proceed in his workers’ compensation claim?

Does the Workers’ Compensation Act require us to obtain representation for injured workers?

What standards apply to non-attorney representatives in our proceedings?

SUMMARY OF THE EVIDENCE

On September 10, 1982 the employee was injured while working for the employer as a restaurant worker. The employee suffered a disc herniation and injuries to his head, left leg, left arm and lower back while trying to prevent a gas cylinder from falling. The employee had a discectomy and laminectomy of the L5 and L6 vertebral bodies on January 31, 1983. The operation was unsuccessful and the employee had a spinal fusion on August 26, 1983. The fusion slipped and on August 28, 1983 the employee had another spinal fusion.

In the employee’s 1982 Workers’ Compensation claim, the employee claimed to be totally disabled as a result of his job-related injuries and the depression it caused. Attorney Michael J. Patterson represented the employee. The employer claimed the employee’s mental status was not related to his work-injury and the employee could work full-time.

We approved a Compromise and Release (C&R) agreement on December 13, 1985. In that C&R, the employer agreed to pay the employee $750 per month for the rest of his life. The employer agreed to pay "reasonable and necessary medical expenses incurred and attributable to the incident referred to herein" (i.e. the work accident of September 10, 1982). The C&R states:

Employee continued his pain therapy and was prescribed an antidepressant medication. In May of 1985 Dr. Kiehl pronosticated that employee would need long-term supportive psychiatric followup which would involve several months of weekly therapy or every other week and that it was not unusual for chronic pain patients to need two to three years of monthly therapy.

The parties wrote an Addendum to the C&R, dated November 30, 1985, and incorporated it into the original C&R. That Addendum states:

In order to settle the dispute between the parties concerning whether or not psychiatric care would be provided by the carrier as "reasonable and necessary medical care" the parties further stipulate and agree as follows:

The employer and carrier shall continue to provide medical expense coverage for psychiatric care for employee for a period of 6 months from the date of this compromise and release by the Alaska Workers’ Compensation Board. Additional care if needed will be by psychologist of employee’s choice subject to provisions of comp. act, costs to be paid by carrier. This addendum shall not limit the empoyer [sic] and carrier’s responsibility for necessary medical expenses. The parties recognize that the employee has not requested psychiatric care since August 2, 1985.

The employee filed a claim on September 3, 1999, requesting the employer pay his bills for various medical treatments and prescriptions the employee received from April 20, 1998 through the present. In Section 14 of the employee’s claim, "Part of body injured," the employee answered: "hole [sic] body basicly [sic] Back left leg." In Section 15 of the employee’s claim, "Nature of injury or illness," the employee wrote: "nerve + bone damage."

The employer requested the employee sign releases for the following items:

Medical records;

Psychological/psychiatric records;

Alcoholic, drug and substance abuse records;

Medicare/Medicaid Records; and

Department of Labor / Workers’ Compensation Records

The employer claimed it needed all these records since the employee had been diagnosed by the employee’s treating physicians and the employer’s independent medical evaluator as having: (1) chronic pain syndrome; (2) diabetes mellitus with signs of diabetic peripheral polyneuropathy; (3) alcohol and substance abuse; (4) major depression with questionable bipolar disorder; and (5) general deconditioned state.

The employee refused to sign the employer’s releases and countered with a release allowing the employer to obtain only medical information regarding:

My back injury at work, and...[conditions related to] chronic back pain, ‘(only),’ nothing involving family or thier [sic] ins[.] No Social Security records. No personel [sic] insurance probes (for illnessess [sic])[.] Employee’s Medical Release, 10/21/99.

On the day of the hearing, the employee appeared with Barbara Williams, a representative from the Alaska Injured Workers’ Alliance. At the commencement of the hearing, Ms. Williams sat at the witness table next to the employee. We asked if she was representing the employee and she stated she was not. During the hearing we asked the employee if Ms. Williams was representing him and he replied she was not.

The employee argued the employer had received most of the records it was requesting through previous releases and now should only be permitted to obtain records regarding his back-related problems, because that is all he was asking the employer to pay. The employee argued his diabetic condition was caused and aggravated by the steroids he took for his back, and thus related to his work injury. He argued the employer should not be permitted to obtain records for things it had refused to pay in the past, since the employer had already deemed these not work-related. He also argued the employer had no right to obtain any federal records such as his Social Security records and Medicare / Medicaid records because these records were private and protected from disclosure.

The employer argued the employee’s medical history had become very complex and convoluted over the years and it was difficult to determine which bills of the employee were for his back and which were for his other numerous conditions. The employer argued that since the employee had stated in his recent claim that his entire body was injured during his work accident, and had submitted bills for a variety of treatments, it was necessary to obtain all the employee’s records to determine which bills arose from the work accident and which were unrelated.

As the hearing was nearly completed, the Board members questioned the employee why he should only release information regarding his back treatment when he was now claiming that his entire body was injured from the work-accident. As the employee was answering the Board’s questions, Ms. Williams interrupted the hearing and began arguing the employee was incompetent and did not understand what was happening. The Board inquired if Ms. Williams was entering an appearance on behalf of the employee and she stated she was entering a "limited appearance for right now." The employer objected claiming there was no provision within the civil rules for a "limited appearance." The Board permitted Ms. Williams to enter a limited appearance.

After the Board recognized Ms. Williams’ appearance she began questioning the employer’s attorney, who refused to answer her questions. She then stated the employee had no one to assist him in preparing his paperwork, did not understand any of the forms he had filled out, didn’t understand what was occurring in the hearing and needed a representative or guardian. The employee then agreed he did not understand what was occurring and requested the Board find him a representative or guardian.

The Board deliberated and decided to grant a continuance to determine if a representative or guardian could be appointed for the employee.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Is the employee incompetent and in need of a guardian for the proceedings?

The employee’s representative requests we find the employee incompetent and have a guardian or representative appointed for him. This request has arisen recently in other cases before the Board. See, e.g., Gunter v. Kathy-O-Estates, Inc., AWCB Decision No. 99-0253 (December 13, 1999). AS 23.30.140 states:

The board may require the appointment of a guardian or other representative by a competent court for any person who is mentally incompetent or a minor to receive compensation payable to the person under this chapter and to exercise the powers granted to or to perform the duties required of the person under this chapter.

AS 23.30.140 grants us the authority to require a guardian for an individual who is legally incompetent. That section does not, however, give us the authority to determine a person to be incompetent.

Declarations of incompetence must be made by the Alaska Superior Court. AS 22.10.020 states, in pertinent part:

(a) The superior court is the trial court of general jurisdiction, with original jurisdiction in all civil and criminal matters, including probate and guardianship of minors and incompetents.

The jurisdiction of the superior court extends over the whole of the state.

The Alaska Supreme Court has addressed this issue:

The question of a court’s jurisdiction goes to its power to hear and adjudicate the subject matter in a given case. Where the court is one of general jurisdiction, such as the superior court in the case at bar, it has traditionally been regarded as having the power to hear all controversies which may be brought before a court within the legal bounds of rights or remedies, except insofar as has been expressly and unequivocally denied by the state’s constitution or statutes. This has been particularly true with respect to the jurisdiction of courts of equity over incompetents. K.C.M. v. State, 627 P.2d 607 (Alaska 1981).

Given the unambiguous legislative and judicial determinations regarding jurisdiction over matters relating to the incompetence of individuals, we conclude we do not have jurisdiction to declare a person to be incompetent.

We note that, while it is undisputed the employee has psychological problems, no physicians or psychologists have deemed the employee incompetent. Additionally, throughout the course of the employee’s claim, since 1982, there has never been any claim by the employee, his physicians, attorneys or other person that the employee was mentally incompetent. The first allegation that the employee was incompetent was made by the non-attorney representative Ms. Williams, on the day of the hearing.

After reviewing the employee’s testimony, we acknowledge the employee appeared frustrated at times, and occasionally unable to articulate his thoughts as clearly as he may have liked. However, it was our impression the employee generally understood the proceedings, the arguments being made, and presented a fairly coherent argument on his own behalf.

Nevertheless, the employee alleges he is not competent to proceed with his claim, and needs a guardian or representative. Since we have no jurisdiction to declare the employee incompetent, we will grant the employee 30 days – if he so desires - to initiate proceedings in Superior Court to determine if he is eligible to have a court-appointed guardian. We suggest the employee either petition the Superior Court (pursuant to AS 13.26.090 et. seq.) or contact the Office of Public Advocacy (see AS 13.26.360) for assistance with this matter.

II. Does the Board have the responsibility to appoint a representative?

The employee’s representative requests we find the employee a representative. We find this is a rather curious request. Ms. Williams entered an appearance on behalf of the employee. Ms. Williams is a member of the Alaska Injured Worker’ Alliance, an organization which claims:

We explain provisions of the Workers’ Compensation Act and the administrative and filing proceedings that must be complied with, in language and terms [injured workers] can understand.

. . .

We represent injured workers when they are unable to represent themselves and cannot obtain an attorney to represent them. See The Alaska Injured Workers’ Alliance, Brochure.

We find no statute, regulation or court decision granting the Board the authority or responsibility to find or otherwise appoint someone who is not a minor or legally incompetent an attorney or other legal representative. We certainly do not have the authority to compel an attorney to represent a party in a proceeding before us. However, this issue is moot. We find the employee has a representative that holds itself out as capable of adequately representing injured workers.

III. What standards apply to non-attorney representatives?

We are aware of the high standards set for the Superior Court when making guardianship determinations (see, e.g., AS 13.26.090). We are concerned the employee may not be eligible for a guardian. In that event, rather then delay the employee’s claim further, we will take this opportunity to set the parameters for proceeding on his claim, should he wish to continue in his matter with the assistance of a non-attorney representative.

Ideally, all persons would have equal access to competent attorney representation for their claims. For a variety of reasons, however, many injured workers do not have such access. A particular problem in Alaska is the dearth of attorneys willing to represent injured workers.

In 1959 the Alaska legislature enacted AS 23.30.110 (d), which states:

At the hearing the claimant and the employer may each present evidence in respect to the claim and may be represented by any person authorized in writing for that purpose.

Alaska is one of only 16 states that permits injured workers to be represented by non-attorneys. 10 Arthur Larson & Lex K. Larson, The Law of Worker’s Compensation, Appendix B, Table 18B (1998). Representing a party in a legal action places a great deal of responsibility on the representative. A representative assumes a duty towards the person he is representing. The representative must therefore act with the utmost good faith when assisting his or her "client."

The ultimate social philosophy behind the Workers’ Compensation Act is belief in the wisdom of providing the most efficient, most dignified, and most certain form, financial and medical benefits for the victims of work-connected injuries which an enlightened community would feel obligated to provide. Gordon v. Burgess Construction Co., 425 P.2d 602 (Alaska 1967); Searfus v. Northern Gas Co., 472 P.2d 966 (Alaska 1970). To achieve this goal, the Alaska Supreme Court has accorded the Board wide latitude when conducting hearings. See, e.g. Childs v. Copper Valley Electric Association, 860 P.2d 1184 (Alaska 1993), ("[T]he hearing need not be a full trial-type procedure. The Board may place reasonable time limits on testimony in order to manage its own docket.")

We are granted broad powers to conduct hearings and manage our docket. AS 23.30.135 states:

In making an investigation or inquiry or conducting a hearing the board is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter. 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.

The Alaska Supreme Court has advised us to relax the pleading requirements of those parties appearing pro se. See Collins v. Arctic Builders 957 P.2d 980 (Alaska 1998). Additionally, the Court requires the Board to advise injured workers of their rights to compensation and how to pursue those rights under the law. See Richard v. Fireman’s Fund Insurance Co., 384 P.2d 445 (Alaska 1963). We find that in these decisions the Court has also placed a burden on us to see that representatives of injured workers adhere to basic standards of reasonable representation.

The Workers’ Compensation Act does not provide any specific guidelines regarding non-attorney representatives. Attorneys are bound to adhere to strict ethical, moral and professional responsibilities. They are governed by the courts, the Court Rules and the Alaska Bar Association. Some of the basic responsibilities are found in the Alaska Rules of Professional Conduct (ARPC). Although specifically directed to attorneys, these Rules reflect the general responsibilities of any diligent representative and provide some valuable guidance for non-attorney representatives when they undertake the representation of injured workers. Considering the statutory authority granted us to conduct our hearings in a manner to "best ascertain the rights of the parties," we find it is generally in the best interests of all parties that representatives adhere to some basic standards. We find the following standards are particularly important for non-attorney representatives to adhere to:

Competence – A representative should have knowledge of the applicable Workers’ Compensation Act sections and the facts of the case and be prepared for hearing. (ARPC 1.1).

Diligence – A representative should not unreasonably delay his or her client’s case. (ARPC 1.3).

Communication – A representative should explain a matter to his or her client so that the client can make informed decisions regarding the representation. (ARPC 1.4)

Declining or Terminating Representation – A representative should not take a case unless the representation can be performed competently, promptly and to completion. (ARPC 1.16).

Meritorious Claims and Contentions – A representative should not bring or defend a proceeding that is frivolous. (ARPC 3.1)

Expediting Litigation – A representative should not delay the case. (ARCP 3.2).

Candor Toward the Tribunal -- A representative should be truthful with the Board at all times. (ARCP 3.3).

Fairness to Opposing Party and Counsel – A representative should not destroy or conceal evidence, obstruct discovery or improperly influence witnesses. (ARCP 3.4).

Truthfulness in Statements to others – A representative should not make false statements of material fact or law to a third person. (ARCP 4.1).

We encourage non-attorneys to represent injured workers who are unable to obtain legal counsel. We especially encourage such representation for clients who may have diminished competence, and are unable to obtain an attorney. Being aware of the standards with which they are expected to comply will help future non-attorney representatives better assist their "clients."

IV. Can a representative enter a limited entry of appearance?

During the hearing, the employer objected to the representative’s entry of a limited appearance, claiming there was no provision in the civil rules for such an entrance. We adopted regulation 8 AAC 45.178, which states:

(a) A person who seeks to represent a party in a matter pending before the board shall file a written notice of appearance with the board, and shall serve a copy of the notice upon all parties. The notice of appearance must include the representative's name, address, and phone number and must specify whether the representative is an attorney licensed to practice law within the State of Alaska. If the person who seeks to represent a party is not licensed to practice law within the State of Alaska, the notice of appearance must be accompanied by

(1) the employee's written authorization if the person represents the employee; or (2) the employer's written authorization unless the person seeking to represent the employer is an employee of

the employer’s insurer; or
the adjusting company handling the claim for the employer's insurer.

(b) A representative of a party may withdraw an appearance by filing with the board a written notice of withdrawal and by serving the notice upon all parties. The withdrawal becomes effective upon receipt by the board.

We interpret this regulation to expressly control the activities of party representatives by insisting they meet certain notice requirements before entering or withdrawing appearances.

There is no provision in the Alaska Rules of Civil Procedure for a limited entry of appearance by an attorney. Once an attorney has appeared, he or she may withdraw only "for good cause shown." ARCP 81 (d) (i). Additionally, once an attorney enters an appearance, his or her client is thereafter prohibited from appearing or acting on his own behalf unless an order of substitution is made. ARCP 81 (c). The Alaska Rules of Civil Procedure were enacted to "secure the just, speedy and inexpensive determination of every action and proceeding." ARCP 1.

We find nothing in the Workers’ Compensation Act or in our Regulations that permits a limited entry of appearance by a representative – either an attorney or non-attorney. We find potential dangers exist for an injured worker when representatives enter only limited appearances. We have previously criticized the use of appearances and withdrawals for tactical reasons by attorneys. See Bolieu v. Our Lady of Compassion Care Center, AWCB 96-0189 (May 14, 1996). We therefore find it is generally not conducive to "best ascertain[ing] the rights of the parties" to allow representatives to enter limited appearances. AS 23.30.135 (a).

Injured workers rely on their representatives to assist them and argue their claims. A representative that abandons an injured worker after a single appearance is probably not providing the injured worker the best assistance in the long term of their case. A representative who enters an appearance on the day of a pre-hearing or a hearing without exhaustively having reviewed the file, considered applicable case and statutory law, and discussed the matter with the injured worker may actually cause the employee harm. Furthermore, an injured worker may competently direct the course of his or her case in a particular direction, only to have a non-attorney representative unfamiliar with the matter enter a limited appearance, re-direct the case in another direction, and then discontinue representation of the injured worker. This can cause confusion for all parties, frustrate the Board’s obligation to provide efficient remedies and ultimately result in delays to every injured worker’s claim.

Injured workers rely on the good judgment of their representatives to guide and assist them. In order for a representative to adequately represent an injured worker he or she must be competently familiar with the facts of the case and applicable law. This usually cannot be done absent a continuing representative relationship with the injured worker. While a limited appearance by a representative may be suitable in some cases and under rare situations, we find most injured workers are better served by continuing and ongoing representation. As mentioned above, a representative should generally not take a case unless he or she can represent the employee competently, promptly and to completion.

There are also important procedural due process reasons for disallowing limited appearances by representatives. All parties and their representatives have a right to be notified of hearing dates, rulings, prehearing summaries and documents generated by the opposing party and Board. Employer’s attorneys and adjusters must notify employees and their representatives of documents being filed with the Board. Some documents are confidential under AS 23.30.107 (b) and may be disclosed only to parties and their representatives. Allowing a representative to enter an appearance for a limited duration or purpose creates uncertainty and is a logistical nightmare for employers, insurers and the Board attempting to comply with AS 23.30.107.

Injured workers often are unfamiliar with their rights and obligations under the Workers’ Compensation Act. Demanding that representatives maintain a continuing representation of an injured worker will lead to no harm to injured workers. Rather, we believe that maintaining continuing representative relationships is in the best interests of injured workers and will raise the proficiency levels of non-attorney representatives by demanding adherence to reasonable standards of representation, which we believe the injured workers deserve and should expect.

ORDER

This matter is continued. The employee shall have 30 days to apply to the Superior Court for a guardian, if he so desires.

If a guardian is appointed by the Superior Court, the proceedings in this matter shall proceed in accordance with the determinations and findings of the Superior Court.

If no guardian is appointed, or if the employee chooses not to seek guardianship, the matter will proceed in accordance with this decision. The Board will not appoint a representative for the employee. The employee has the right to a representative of his choice, who may enter an appearance on behalf of the employee.

4. We direct Workers’ Compensation Officer Janet Carricaburu to set and conduct a prehearing conference with the parties no later than 45 days after the filing of this Decision and Order to reschedule the hearing on the employer’s petition to compel the employee to sign the requested releases.

Dated at Anchorage, Alaska this 14th day of December, 1999.

ALASKA WORKERS' COMPENSATION BOARD

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

/s/ John A. Abshire
John A. Abshire, Member

/s/ S.T. Hagedorn
S.T. Hagedorn, Member

RECONSIDERATION

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.

MODIFICATION

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.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of CHRISTOPHER A. LACY employee / applicant; v. HOTEL CAPTAIN COOK, INC, employer; PROVIDENCE WASHINGTON-AK, insurer / defendants; Case No. 198218412; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 14th day of December, 1999.

Debra C. Randall, Clerk

SNO