DARLA K. WYNNE v. ALASKA, STATE OF (ADM)(FPH), et al.

ALASKA WORKERS' COMPENSATION BOARD

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

DARLA K. WYNNE,
Employee,
Petitioner,
v.
ALASKA, STATE OF (ADM)(FPH),
(Self-insured) Employer,
Respondent.
v.
INTERIOR AMBULANCE SERVICE,
Employer,
and
ALASKA NATIONAL INSURANCE CO.
Insurer,
Respondents. / )
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DECISION AND ORDER
AWCB Case Nos. 199517162 &
199605434
AWCB Decision No. 99-0219
Filed with AWCB Fairbanks, Alaska
on November 1, 1999

We heard employee’s Petition to Dismiss Interior Ambulance Service on October 14, 1999, in Fairbanks, Alaska. Attorney Michael McConahy represented the employer Interior Ambulance Service and its insurer Alaska National Insurance (Interior Ambulance); Assistant Attorney General Paul Lisankie represented the employer State of Alaska, Fairbanks Pioneer Home (Pioneer Home); and the employee represented herself. We closed the record at the conclusion of the hearing.

ISSUE

Shall we dismiss the employee’s Petition to Join against Interior Ambulance, and dismiss that employer as a party to this claim?

SUMMARY OF THE EVIDENCE

The employee injured her back lifting a patient, while working as a certified nurse’s aide for the Pioneer Home on August 23, 1995. The employee filed an injury report, and Pioneer Home initially accepted the compensability of her injury, providing temporary total disability (TTD) benefits from February 19, 1996 through February 23, 1996, and medical benefits. On April 4, 1996, Pioneer Home filed a Controversion Notice, denying benefits from February 29, 1996, under the “last injurious exposure” rule, based on a lifting re-injury of the employee’s back on that date, while she was working as a volunteer for Interior Ambulance. Pioneer Home deposed the employee’s treating physician, Joan Thomas, M.D., on February 4, 1998. In her deposition, Dr. Thomas testified the employee’s back injury at Interior Ambulance had substantially aggravated her condition. (Dr. Thomas depo. at p.35-36.)

The employee filed an Application for Adjustment of Claim against the Pioneer Home on April 12, 1996, claiming TTD benefits from February 24, 1996 though April 2, 1996, medical benefits, a penalty, and reimbursement of her annual and sick leave. On July 14, 1998, the employee filed a Petition to Join Interior Ambulance. The parties attended a prehearing conference on August 20, 1999. The Prehearing Conference Summary, dated August 27, 1999, reflects that Interior Ambulance was joined as a party to the claim. This Summary also reflects the employee wanted to withdraw her Petition to Join Interior Ambulance; and the Pioneer Home’s attorney would not object to the employee filing a withdrawal of her petition.

The employee filed a Dismissal of Claims by Employee concerning claims against Interior Ambulance on August 30, 1999. On August 25, 1999, the employee and Interior Ambulance signed a Stipulation for Dismissal of Claim #9605434 (against Interior Ambulance). The Pioneer Home refused to sign this stipulation. Nevertheless, Interior Ambulance filed the partially-signed stipulation with the board on September 24, 1999.

At the hearing on the Petition to Dismiss, and in its legal brief, Interior Ambulance argued the employee should be able to simply withdraw her Petition to Join. It argued the Pioneer Home is not a party to the Petition to Join, so the employee and Interior Ambulance should be able to stipulate to the petition’s dismissal. It also argued the Pioneer Home should be bound by its representation, during a prehearing conference, that it would not object to the employee filing a withdrawal of its joinder petition.

Interior Ambulance asserted it and the employee had signed a Compromise and Release agreement (C&R), waiving all the employee’s possible claims against Interior Ambulance for a sum of $1,000.00. It argued the board should review and approve the C&R.

The employee testified her injury at Interior Ambulance was minor. She testified she does not believe this employer should be liable; she signed the C&R only to let the employer out of the case. The employee expressed chagrin that Pioneer Home had been able to delay her case for three and a half years by involving Interior Ambulance. She argued Interior Ambulance should be dismissed from the claim, and she should be permitted to proceed to a hearing on the merits with the Pioneer Home.

In its brief, and at the hearing, Pioneer Home argued joinder of Interior Ambulance had been perfected in the prehearing conference on August 20, 1999. It agrees the parties can stipulate to dismiss a claim, but only if there is no dispute over any material facts. It contends Dr. Thomas’s opinion squarely contradicts the employee’s opinion concerning whether or not she aggravated her injury while working with Interior Ambulance. Under the Alaska Supreme Court’s ruling in Lindekugel v. Fluor Alaska, Inc., 934 P.2d 1307 (Alaska 1997), the stipulation to dismiss would be void unless the parties enter into a C&R under AS 23.30.012, or the equivalent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. EMPLOYEE’S DISMISSAL OF CLAIMS

Our regulation at 8 AAC 45.040 gives the board, or its designee, authority to join parties to claims. 8 AAC 45.040 outlines the criteria by which a decision to join a party should be made. It states, in part:

(c) Any person who may have a right to relief in respect to or arising out of the same transaction or series of transaction should be joined as a party.

(d) Any person against whom a right to relief may exist should be joined as a party.

. . . .

(j) In determining whether to join a person, the board or designee will consider

1) whether timely objection was filed . . .;

2) whether the person's presence is necessary for complete relief and due process among the parties;

3) whether the person's absence may affect the person's ability to protect an interest, or subject a party to a substantial risk of incurring inconsistent obligations;

4) whether a claim was filed against the person by the employee; and

5) if a claim was not filed as described in (4) of this subsection, whether a defense to a claim, if filed by the employee would bar the claim.

8 AAC 45.040(f) provides that parties may be joined by either a party filing a petition to join, or by the board (or the board designee) serving a notice to join on all parties.

This case must be analyzed under the last injurious exposure rule adopted in Ketchikan Gateway Borough v. Saling, 604 P.2d 590 (Alaska 1979). The rule applies when employment with successive employers may contribute to an employee's disability. Veco, Inc. v. Wolfer, 693 P.2d 865, 868, n. 1, (Alaska 1985). This rule, combined with the presumption of compensability afforded by AS 23.30.120(a), "imposes full liability on the employer at the time of the most recent injury that bears a causal relation to the disability." Saling, 604 P.2d at 595, citing to 4 A. Larson, The Law of Workman's Compensation, § 95.12 (1979). In Peek v. SKW/Clinton, 855 P.2d 415, 416 (Alaska 1993), the court stated:

[T]wo determinations . . . must be made under this rule: "(1) whether employment with the subsequent employer 'aggravated, accelerated, or combined with' a pre-existing condition; and, if so, (2) whether the aggravation, acceleration or combination was a 'legal cause' of the disability, i.e., 'a substantial factor in bringing about the harm." (quoting Saling, 604 P.2d at 597, 598).

An aggravation, acceleration or combination is a substantial factor in the disability if it is shown that (1) "but for" the subsequent employment the disability would not have occurred, and (2) the subsequent employment was so important in bringing about the disability that a reasonable person would regard it as a cause and attach responsibility to it. See State v. Abbott, 498 P.2d 712, 727 (Alaska 1971). The court expressly adopted the "but for" test in a last injurious exposure rule context in Fairbanks North Star Borough v. Rogers & Babler, 757 P.2d 528, 533 (Alaska 1987).

"The question of whether the employment aggravated or accelerated a pre-existing disease or injury is one of fact to be determined by the Board and it is not the function of the court to reweigh the evidence or choose between competing inferences." Peek 855 P.2d at 418. "As we pointed out in Saling, under the `last injurious exposure' rule, an employee need not show that employment with the last employer was the legal cause of disability, only a legal cause of the disability." Id. at 419, citing to Saling, 604 P.2d at 598.

In our analysis, we must first apply the statutory presumption of compensability. AS 23.30.120(a) provides in pertinent part: "In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, the (1) the claim comes within the provisions of this chapter. . . ."

The evidence necessary to raise the presumption of compensability varies depending on the type of claim. "[I]n claims based on highly technical medical considerations, medical evidence is often necessary in order to make that connection." Burgess Construction Co. v. Smallwood, 623 P.2d 316 (Alaska 1981). In this case, Interior Ambulance is the most recent employer with possible liability for the disputed benefits. We find the deposition testimony of the employee's treating surgeon, Dr. Thompson, concerning the worsening of the employee’s symptoms and aggravation of the employee's pre-existing injury by her work at Interior Ambulance, is sufficient evidence to raise the presumption of compensability against that employer.

Based on our review of the record, we find the presumption has been raised that employee and the Pioneer Home may both have a right to recovery against Interior Ambulance. We must conclude the board designee acted in compliance with the regulations when she joined these parties. We additionally find the board (or the board designee) had the affirmative duty to join Interior Ambulance under 8 AAC 45.040(d)&(f), even if the employee had failed to file a claim against Interior Ambulance. We conclude we cannot grant the employee’s Petition to Dismiss Interior Ambulance under 8 AAC 45.040.

II. STIPULATION TO DISMISS

Our regulation, 8 AAC 45.050(f), provides, in part:

(1) If a claim or petition has been filed and the parties agree that there is no dispute as to any material fact and agree to the dismissal of a claim or petition, or to the dismissal of a party, a stipulation of facts signed by all parties may be filed, consenting to the immediate filing of an order based upon the stipulation of facts. . . .

(3) . . . A stipulation waiving an employee’s right to benefits under the Act is not binding unless the stipulation is submitted in the form of an agreed settlement, conforms to AS 23.30.012 and 8 AAC 45.160, and is approved by the board.

(4) The board will, in its discretion, base its findings upon the facts as they appear from the evidence, or cause further evidence or testimony to be taken, or order an investigation into the matter. . . .

Interior Ambulance and the employee now request a dismissal of the employee’s claims against that employer, with prejudice, based on a stipulation between those two parties. In Kovach v. B&J Commercial, AWCB Decision No. 98-0110 (May 5, 1998), we dismissed the employee’s claims at the request of the parties. However, in that case we did not address the issue of whether such a dismissal would be with, or without, prejudice.

Under AS 23.30.012, AS 23.30.245(b), and 8 AAC 45.050(f)(3), an employee’s waiver of his potential rights are not binding against him, unless we approve a formal compromise and release (C&R) agreement under AS 23.30.012. Consequently, we conclude we cannot dismiss an employee’s claims with prejudice, in the absence of an approved C&R, based only on the employee’s waiver. Lindekugel, 934 P.2d at 1309, 1311.

However, we have the authority, under certain circumstances, to dismiss claims without prejudice. 8 AAC 45.070(f)(2). We have interpreted 8 AAC 45.050(f)(1) to authorize the dismissal of claims or parties, without prejudice, based on the stipulation of the parties. See Austin v. STS Services, et al., AWCB Decision No. 99-0014 (January 20, 1999).

In this case the Pioneer Home has declined to sign the stipulation, and argues the regulations do not permit the dismissal of one of the parties in this case. Interior Ambulance argues Pioneer Home should be bound by its representation, during a prehearing conference, that it would not object to the employee filing a withdrawal of its joinder petition.

Nevertheless, 8 AAC 45.050(f)(4) gives us the discretion to base our orders on stipulated facts, or any other facts in the record. We decline to restrict our consideration of evidence and argument by Pioneer Home to matters recorded in a single Prehearing Conference Summary. We will consider the entire record available to us.

Interior Ambulance urges us to consider the employee’s potential right to recovery against it as an entirely separate claim, independent of the employee’s claim against Pioneer Home. However, as we found above, these parties were appropriately joined under 8 AAC 45.040. Under 8 AAC 45.050(f)(1) we can issue an order dismissing a party or a claim based on a stipulation, but only on a stipulation of facts signed by all the parties. In this case, only two of the three parties have signed the stipulation. We conclude we cannot order the dismissal of Interior Ambulance under 8 AAC 45.050(f)(1).