ANNETTE K. SHARP, 
Employee, 
Applicant
v. 
B & C AUTO SUPPLY, INC,
Employer,
and 
HARTFORD INSURANCE CO.,
Insurer,
Defendant(s).

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INTERLOCUTORY
DECISION AND ORDER
AWCB Case No(s). 199608170
AWCB Decision No. 99-0259 
Filed with AWCB Anchorage, Alaska 
on December 28, 1999

On October 13, 1999, we heard Employee’s August 31, 1999 Petition, as a two member panel, (AS 23.30.005(f)), in Anchorage, Alaska. Non-attorney K. Scott McEntire entered a limited appearance, for the purpose of the hearing only, on Employee’s behalf. Mr. Doug Smith was also present on Employee’s behalf, but was not representing her. Employee did not appear. Attorney Robert Griffin represented Employer. We closed the record at the end of the hearing.

Should we vacate or otherwise modify our August 4, 1999 Interlocutory order which set certain parameters for granting Employee’s request to continue the August 10, 1999 hearing?

Employee hit her forehead on a garage door and was injured on May 14, 1996. (May 14, 1996 Report of Injury). Although her claim was accepted, and benefits were paid from May 1996 through October 1997, Employee filed an Application for Adjustment of Claim (AAC) on August 11, 1997. The AAC alleges: "Neck, head, shoulder pain. Pain radiating into extremities." Employee filed essentially the same AAC on July 8, 1998. On July 29, 1998 Employee filed another ACC alleging: "Head, neck, back, shoulders, right knee, hip pain. Radiating pain into extremeties (sic). All of the AAC’s were signed by Employee’s former attorney, Darryl L. Jones.

On May 6, 1999, Employer filed a Petition which states: "The employer and adjuster request the Board dismiss the employee’s claims for additional temporary disability benefits and additional permanent partial impairment benefits. The employer and carrier additionally request the Board dismiss the employee’s claim for chiropractic treatment, penalties, interest, attorney fees and costs." Prehearing conference summaries dated May 6, 1999 and June 4, 1999 indicate Employer requested medical reports which had not been filed on medical summaries, nor provided to it via informal discovery requests.

On June 16, 1999, Employer filed an Affidavit of Readiness for Hearing (ARH). Because Employee did not oppose Employer’s ARH, a hearing on the merits of Employer’s Petition to Dismiss was set for August 10, 1999.

On July 30, 1999, Attorney Jones filed a "Notice of Withdrawl" and a "Petition to Continue Hearing" pursuant to 8 AAC 45.074(b)(1)(B), which allows for continuances when a parties representative is unavailable for hearing because of an unavoidable court appearance. In his supporting affidavit, Attorney Jones did not allege an unavoidable court appearance, instead he stated Employee was seeking other counsel.

On August 4, 1999, we heard Employee’s Petition to Continue the August 10, 1999 hearing. At hearing, Mr. Smith filed a limited entry of appearance. Employee did not appear. Mr. Smith told the Board he had fired Attorney Jones the week before because he did not think Attorney Jones was adequately representing Employee. Mr. Smith’s request for a continuance had two components. He said he needed time to secure replacement counsel, and he also needed time to file additional evidence. Mr. Smith said he needed to file a report by an orthopedic physician who had recently seen Employee, as well as a report from a pain rehabilitation clinic from which he was attempting secure an appointment for Employee to be seen.

At hearing, Employer opposed Employee’s request for a continuance. Alternatively, if we ordered the hearing continued over its objection, Employer asked the Board to immediately set a new hearing date to avoid further delay, and freeze the evidentiary record in the interim.

Employer argued, in part:

Employer’s second request was to toll the running of statutory interest during the interim delay caused by a continuance. Mr. Sharp agreed to this request, and it not at issue for the purpose of this hearing.

The Board reluctantly granted Employee’s petition for a continuance pursuant 8 AAC 45.074(b)(1)(L), because the Board believed irreparable harm would result if Employee was not allowed additional time to either secure another attorney, or prepare her own defense of the Employer’s petition. The Board simultaneously granted Employer’s request to set another hearing date, waiving the procedural requirements of 8 AAC 45.074(c), which if followed, would have caused even further delay and prejudice to the Employer.

The Board set a hearing on Employer’s Petition for February 2000, the first mutually convenient date for the parties. The Board also established evidentiary deadlines to allow Employee time to file existing evidence, without unduly prejudicing Employer. The Board did not grant Employee’s request to otherwise leave the record open for the introduction of medical reports not yet in existence or for examinations by physicians Employee had not yet.

The Board’s interlocutory order was delivered to the parties orally, and a copy of the Board’s hearing notes, outlining its decision and the deadlines it prescribed, was delivered to the parties at the conclusion of the hearing. The Board’s hearing notes state, in pertinent part:

(Emphasis in Original).

In its statement to the parties the Board made its position about continuing the hearing unambiguously known:

In addition to its concern about docket control, the Board also expressed its position about the prejudice further delay would occasion Employer, particularly in response to Mr. Smith’s allegation he needed more time to schedule an appointment for Employee’s medical evaluation by an as yet unnamed pain clinic.

Based on the August 31, 1999 Petition, and Mr. McEntire’s argument at the October 13, 1999 hearing, Employee appears to question the efficacy of the Board’s oral interlocutory order. Employee’s Petition asks the following:

1. What effect does the hearing note[s] . . .have upon the parties?
2. Is this a Decision and Order that is binding upon the parties?
3. If this is a Decision and Order what are the Findings of Fact and Conclusions of Law under AS 44.62.010 – 44.62.650?
4. Has this order been properly filed under 23.30.110(c)?
5. Reference Exhibit #2 i.e., "ER waiver 8 AAC 45.074(c)(3) to set hearing today." Employee does not understand this. What does this mean and what are the Findings of Fact and Conclusions of Law to support this?

In support of Employee’s petition, Mr. McEntire also argued, (at the October 13, 1999 hearing) the Board’s order was inconsistent with the ruling in Aleutian Homes v. Fischer, 418 P2.d 769 (Alaska 1966) which requires that Board orders which reject a claim or make an award be filed in the office of the Board for purposes of appeal. Therefore, Mr. McEntire argued, the Board’s order was deficient.

We conclude the Board’s August 4, 1999 oral interlocutory order, which was reduced to writing in the Board’s hearing notes, copied, and served personally on the parties’ representatives is valid. We draw this conclusion based on the following analysis:

AS 23.30.135 provides in pertinent 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." Our regulation, 8 AAC 45.074(b), states, in part: "Continuances or cancellations are not favored by the Board and will not be routinely granted. A hearing may be continued or cancelled only for good cause and in accordance with this section." Additionally, 8 AAC 45.074(c) states:

1. the affidavit of readiness is inoperative for purposes of scheduling another hearing;
2. the board or its designee need not a set a new hearing date at the time a continuance or cancellation is granted; . . .; and
3. a party who wants a hearing after a continuance or cancellation has been granted must file another affidavit of readiness in accordance with 8 AAC 45.070.

However, 8 AAC 45.195 states:

Unlike the situation in Aleutian Homes v Fischer, the Board’s order with regard to Employee’s petition to continue the hearing did not address the claim on its merits. Instead, Employee’s August 4, 1999 petition requested an interlocutory ruling by the Board to determine whether there was good cause to continue or cancel the hearing on Employer’s Petition to Dismiss which was scheduled only week away. Therefore, we conclude Aleutian Homes v. Fischer is inapplicable to the issue before us.

In any event, both parties wanted, and needed, an answer from the Board on Employee’s request for a continuance in short measure. Therefore, after considering the oral arguments of the parties, the Board agreed there was good cause to continue the hearing under 8 AAC 45.074(b)(1)(L) because it believed irreparable harm might result if Employee was forced to defend Employer’s petition without the benefit of counsel, or permitted adequate time to prepare for a hearing on her own.

The Board immediately informed the parties of its decision and rationale for continuing the hearing following unusually lengthy deliberations. To have kept the parties uninformed until such time as a written order could be issued would have, as a practical matter, been counterproductive. The parties wanted and needed to know immediately whether they should continue preparing for a hearing, or whether they could halt further preparation of a heaing, and avoid the expense associated therewith.

Recently, in Shegog v. Loomis Armored, Inc., AWCB Claim No. 8429837 (October 6, 1999), the Board denied the parties’ mutual request for a continuance, and ordered them to proceed on the merits of the employer’s petition to dismiss. If the Board had stopped the proceeding to write and issue its decision on the continuance question, there would have been no time to hear the case. Requests for continuances would be routinely and inappropriately used by unethical parties for the purpose of delaying or avoiding litigation. We conclude the Board’s docket will not be used for such purposes.

Employee’s request for a continuance to secure counsel was granted. Employee’s request for a continuance to leave the record open for further discovery was denied. Disingenuously, Employee does not question the validity of the Board’s oral interlocutory decision to grant his request for a continuance, only the Board’s decision to simultaneously grant Employer’s request to establish the evidentiary record.

We also granted Employer’s request to immediately set the claim for another hearing, thereby waiving the procedural requirements of 8 AAC 45.074(c), in an attempt to minimize prejudice to Employer that unnecessary delay would cause. The Board also granted Employer’s request to "freeze" the evidentiary record as of September 1, 1999. The Board’s rationale for its decision was fully explained to the parties at the August 4, 1999 hearing. Allowing Employee an additional four weeks to file evidence relevant to her claim was, in the Board’s opinion, a reasonable compromise of Employer’s request given the fact Employee was unrepresented, albeit by her own choice.

At the conclusion of the hearing the Board provided the parties with a copy of its hearing notes, which reduced to writing the conclusions the Board made, and evidence deadlines it had set. The Board provided the parties with its notes so they would have a tangible written document for calendaring purposes, without the need to rely on their own notes or obtain a copy of the hearing tape. In summary we conclude, the Board’s oral order, reduced to writing in its hearing notes, is valid. We conclude there is no basis in the law to vacate or void our August 4, 1999 decision, or otherwise modify / extend the deadlines we found were reasonable under the circumstances to avoid injustice to Employer or prejudice Employee.

Employee’s request we vacate or modify the Board’s oral interlocutory decision of August 4, 1999 is denied and dismissed in accordance with this decision.

Dated at Anchorage, Alaska this 28^th day of December, 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rhonda L. Reinhold
Rhonda L. Reinhold, Chairman

/s/ Philip E. Ulmer
Philip E. Ulmer, Member

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.

I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of ANNETTE K. SHARP employee / applicant; v. B & C AUTO SUPPLY, INC, employer) ;HARTFORD INSURANCE CO., insurer/ defendants; Case No. 199608170; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 28th day of December, 1999.

Debra C. Randall, Clerk

SNO