JEFFERY A. ARMBRUSTER v. ALASKA, UNIVERSITY OF (ANCHORAGE);WILLIAMS INC.

ALASKA WORKERS' COMPENSATION BOARD

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

JEFFERY A. ARMBRUSTER,
Employee,
Respondent,
v.
UNIVERSITY OF ALASKA, (KETCHIKAN)
(Self-insured) Employer,
Appellant,
v.
WILLIAMS, INC.,
Employer
and
FREMONT INDUSTRIAL INDEMNITY CO.,
Insurer,
Appellants. / )
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DECISION AND ORDER
AWCB Case Nos. 199629349, 199718781
AWCB Decision No. 00-0218
Filed with AWCB Juneau, Alaska
on October 23, 2000

We heard the employers’ appeal of the Board Designee’s protective order on October 10, 2000, in Juneau, Alaska, on the basis of the written record and the parties’ legal briefs. Attorney Michael Jensen represents the employee. Attorney Mark Figura represents employer Williams, Inc. and insurer Fremont Industrial Indemnity (“Williams”). Attorney Thomas Batchelor represents employer University of Alaska / Ketchikan (“University”). We closed the record when we met to considered this appeal on October 10, 2000.

ISSUE

Did the Board Designee abuse his discretion in issuing a protective order, shielding from release the employee’s psychological, psychiatric, counseling, alcohol, and substance abuse records?

SUMMARY OF THE EVIDENCE

The employee injured his back on December 7, 1993 while working for the City of Klawok; on November 7, 1996 while working for the University; and on September 1, 1997 while working for Williams. The employee missed work from January 17, 1998 to May 19, 1998; and July 2, 1998 to September 20, 1998; and April 19, 2000 to May 24, 2000. The employee underwent interbody fusion surgery at L4-5, L5-S1, and L3-S1 on April 24, 2000. From May 25, 2000 to June 12, 2000, the employee returned to work part-time, then resumed full-time work. The employee filed Workers’ Compensation Claims against the University and Williams on September 17, 1998.

Williams requested the employee to release his psychological, psychiatric, counseling, alcohol, and substance abuse records. The employee refused to release these records, and filed a petition for a protective order on August 1, 2000. The parties argued this dispute in a prehearing conference on August 16, 2000. In the Prehearing Conference Summary, dated August 16, 2000, Board Designee Bruce Dalrymple granted the employee’s petition for a protective order, finding that the disputed records are not sufficiently relevant to his back injury to justify requiring their release. At the conclusion of the August 16, 2000 prehearing conference, Williams and the University appealed the protective order to us under AS 23.30.108. This appeal was set to be heard on the basis of the written record.

In his brief, the employee argued he is claiming only back-related medical benefits, temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits, and permanent partial impairment (PPI) benefits. He admits he has a (now past) history of alcohol abuse, but he is not claiming benefits for any substance abuse or psychological condition. He argued the disputed records are not relevant to his back injury, and would only be used to embarrass or demean him in the eyes of the Board. He contended the protective order was not arbitrary or capricious, and should be upheld.

In its brief, Williams argued the medical records of the employee’s treatment by David Kuhanek, M.D., reflect ongoing psychological and alcohol and substance abuse problems, including during the time he worked for Williams. Williams argued the employee’s psychological condition and alcohol abuse might have affected his memory and understanding of the events and symptoms at the times of his injuries. It argued these records must be available to accurately assess the employee’s testimony and symptoms. Williams argued the disputed records are directly relevant to its defense that the 1997 injury did not permanently affect the employee’s condition. It contends the employee’s privacy will be protected because the Board’s medical records are not open to the public.

In its brief, the University argued the disputed treatment records are relevant to the employee’s ability to work during the periods of time for which he now claims compensation. It contended the Board could craft reasonable protection of the employee’s privacy, while permitting discovery of these records.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. STANDARD OF REVIEW

Under AS 23.30.108(c), we must uphold a decision of the RBA absent "an abuse of discretion on the administrator's part." Several definitions of the phrase "abuse of discretion" appear in the laws of Alaska, although none occur in the Alaska Workers' Compensation Act. The Alaska Supreme Court has stated abuse of discretion consists of "issuing a decision which is arbitrary, capricious, manifestly unreasonable, or which stems from an improper motive." Sheehan v. University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985); Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)(footnote omitted). An agency's failure to properly apply the controlling law may also be considered an abuse of discretion. Manthey v. Collier, 367 P.2d 884, 889 (Alaska 1962); Black's Law Dictionary 25 (4th ed. 1968).

In the Administrative Procedure Act the legislature has provided another definition to be used by the courts in considering appeals of administrative agency decisions. It contains terms similar to those reproduced above, but also expressly includes reference to a substantial evidence standard:


Abuse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence . . . . If it is claimed that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by (1) the weight of the evidence; or (2) substantial evidence in the light of the whole record.

AS 44.62.570.

Also, on appeal to the courts, our decisions reviewing Board Designee determinations are subject to reversal under the abuse of discretion standard of AS 44.62.570, incorporating the substantial evidence test. Concern with meeting that standard on appeal leads us to apply a substantial evidence standard in our review of a Board Designee’s discovery determination.

Applying a substantial evidence standard, a "[reviewer] may not reweigh the evidence or draw its own inferences from the evidence. If, in light of the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, then the order . . . must be upheld." Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978)(footnotes omitted).

II. DISCOVERY DETERMINATION

AS 23.30.108(c) provides that:

At a prehearing on discovery matters conducted by the board’s designee, the board’s designee shall direct parties to sign releases or produce documents, or both, if the parties present releases or documents that are likely to lead to admissible evidence relative to an employee’s injury. If a party refuses to comply with an order by the board’s designee or the board concerning discovery matters, the board may impose appropriate sanctions in addition to any forfeiture of benefits, including dismissing the party’s claim, petition, or defense. If a discovery dispute comes before the board for review of a determination by the board’s designee, the board may not consider any evidence or argument that was not presented to the board’s designee, but shall determine the issue solely on the basis of the written record. The decision by the board on a discovery dispute shall be made within 30 days. The board shall uphold the designee’s decision except when the board’s designee’s determination is an abuse of discretion.

Under AS 23.30.107(a), the employee must release all evidence “relative” to the injury. Regarding medical evaluation and discovery process generally, we have long recognized that the Alaska Supreme Court encourages "liberal and wideranging discovery under the Rules of Civil Procedure." Schwab V. Hooper Electric, AWCB Decision No. 870322 at 4, n.2 (December 11, 1987); citing to United Services Automobile Association v. Werley, 526 P.2d 28, 31 (Alaska 1974); see also, Venables v. Alaska Builders Cache, AWCB Decision No. 94-0115 (May 12, 1994).

After it is shown that informal means of developing medical evidence have failed, "we will consider the relevance of the requested information and the method of discovery to be authorized." Brinkley v. KiewitGroves, AWCB No. 860179 at 5 (July 22, 1986). If an employee unreasonably refuses to release information, AS 23.30.135 and AS 23.30.108(c) grant us broad discretionary authority to make orders which will assure that parties obtain the relevant evidence necessary to litigate or resolve their claims. See, e.g., Bathony v. State of Alaska, D.E.C., AWCB Decision No. 98-0053 (March 18, 1998). In extreme case, we have determined we have the authority to dismiss claims if an employee willfully obstructs discovery. Sullivan v. Casa Valdez Restaurant, AWCB Decision No. 98-0296 (November 30, 1998); McCarrol v. Catholic Public Social Services, AWCB No. 97-0001 (January 6, 1997); Maine v, Hoffman / Vranckaert, J.V., AWCB No. 97-0241 (November 28, 1997).

On the other hand, we exclude cumulative, repetitious, irrelevant, or non-material evidence from the record. 8 AAC 45.120(e). We also refuse to order discovery that will not assist us in ascertaining the rights of the parties, or in the resolution of the claim. Austin v. Tatonduk Outfitters, AWCB Decision No. 98-0201 (August 5, 1998); AS 23.30.135(a).

Considering the statutory provisions and case law discussed above, we conclude that a Board Designee deciding a discovery dispute under AS 23.30.108(c) should require the release of all evidence “relative” to a claim. That is, all evidence relevant and necessary to the resolution of the claim. On appeal, we review the record to determine whether the Board Designee had substantial evidence to support his or her decision.

In the instant case, based on our review, we find the record has ample medical documentation of the employee’s back condition and its treatment. Although the employee’s medical records have a number of references to alcohol and psychological problems, we find those records do not link those problems with his back injury in a way that bears on the compensability of his back injury and surgery. Accordingly, we find substantial evidence in the record supporting the Board Designee’s protective order. We conclude the Board Designee did not abuse his discretion, and under AS 23.30.108(c) we must deny the employers’ appeal. We will affirm the Board Designee’s protective order.

ORDER

We affirm the Board Designee’s August 16, 2000 protective order, shielding from release the employee’s psychological, psychiatric, counseling, alcohol, and substance abuse records.

Dated at Anchorage, Alaska this 23rd day of October, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Walters
William Walters, Designated Chairperson

/s/ James G. Williams
James G. Williams, 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 JEFFERY A. ARMBRUSTER employee / repondent v. UNIVERSITY OF ALASKA (KETCHICAN), self-insured employer / appellant v. WILLIAMS INC., employer and FREMONT INDUSTRIAL INDEMNITY CO., insurer / appellants; Case Nos. 199629349, 199718781; dated and filed in the office of the Alaska Workers' Compensation Board in Juneau, Alaska, this 23rd day of October, 2000.

Susan N. Oldacres, Secretary

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