ALASKA WORKERS' COMPENSATION BOARD
P.O. Box 25512 Juneau, Alaska 99802-5512
DIANA L. AUSTIN, )
)
Employee, )
Applicant, ) INTERLOCUTORY
) DECISION AND ORDER
v. )
) AWCB CASE No. 9617715
STS SERVICES, INC., )
) AWCB Decision No. 99-0014
Employer, )
) Filed in Fairbanks, Alaska
and ) on January 20, 1999
)
LIBERTY MUTUAL INSURANCE CO., )
)
Insurer, )
v. )
)
TATONDUK OUTFITTERS, LTD., )
)
Employer, )
)
and )
)
NATIONAL UNION FIRE INSURANCE CO., )
)
Insurer, )
Defendants. )
______)
Diana L. Austin v. STS Services, Inc., et al.
At the request of STS Services, we heard the parties' proposed Compromise and Release ("C&R") agreement at Fairbanks, Alaska on January 14, 1999. Attorney James Hackett represented the applicant employee. Attorney Clay A. Young represented the defendant employer STS Services and insurer Liberty Mutual Insurance Co. (“STS Services”). Attorney Robert Griffin represented the defendant employer Tatonduk Outfitters, Ltd., and insurer National Fire Insurance Co. (“Tatonduk”). We closed the record at the conclusion of the hearing.
ISSUE
Shall we approve a proposed C&R agreement under AS 23.30.012, dismissing the employee’s claims against STS Services, and dismissing that employer from the case?
SUMMARY OF CASE HISTORY AND RELEVANT EVIDENCE
The employee developed tingling pain in her shoulders, arms, and hands while working as an aircraft mechanic for Tatonduk on or about August 9, 1996. Tatonduk initially paid temporary total disability benefits, but filed a controversion of the employee's claim on August 29, 1996, denying the work-relatedness of her condition. The employee filed an Application for Adjustment of Claim against Tatonduk on October 16, 1996.
The employee filed a petition to join STS Services to the claim on April 15, 1997. STS filed a notice of controversion on September 2, 1997, based on the last injurious exposure rule of workers' compensation liability, noting the employee had worked for it from January 28, 1996 through April 4, 1996.
The employee received evaluation, conservative treatment, and/or referral from numerous medical providers, including Barbara Creighton, M.D., Ella Webster, M.D., Michael Webber, P.A.C., neurologist James Foelsch, M.D., Mary Wing, M.D., Young Ha, M.D., Bruce Hector, M.D., rheumatologist Michael Armstrong, M.D., and Eric Carlson, M.D.
P.A.C. Webber initially suspected she suffered carpal tunnel syndrome, but eventually all the medical providers diagnosed fibromyalgia. The employee filed a petition for a Second Independent Medical Examination ("SIME") on June 4, 1998, contending there was a dispute between her treating physicians and Tatonduk's Employer’s Medical Examiner (“EME”), Dr. Armstrong, concerning whether her diagnosed fibromyalgia was work-related. In AWCB Decision No. 98-0201 (August 5, 1998), we declined to order an SIME, finding an ample medical record on which to hear the case and to make a decision.
The case was set for a January 14, 1999 hearing on the merits of the employee’s claim. At the beginning of the hearing STS Services presented a C&R, signed by the parties, proposing to dismiss the employee’s claims against STS Services and to dismiss that employer as a party. In the C&R the parties stipulated that the medical record indicates the employee’s condition was neither caused nor aggravated by her work at STS Services. The employee agreed to release all claims against STS Services without payment of any kind.
On the record, the employee and Tatonduk agreed they did not assert any benefits are due to the employee from STS Services. Accordingly, we agreed to review the proposed C&R, permitted STS Services to leave the hearing, and permitted the employee and Tatonduk to proceed with the hearing on the merits of the employee's claim.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. SHALL WE APPROVE THE PROPOSED C&R?
AS 23.30.012 provides in part:
At any time after death, or after 30 days subsequent to the date of the injury, the employer and the employee or the beneficiary or beneficiaries, as the case may be, have the right to reach an agreement in regard to a claim for injury or death under this chapter in accordance with the applicable schedule in this chapter, but a memorandum of the agreement in a form prescribed by the board shall be filed with the board. Otherwise, the agreement is void for any purpose. If approved by the board, the agreement is enforceable the same as an order or award of the board and discharges the liability of the employer.... The agreement shall be approved by the board only when the terms conform to the provisions of this chapter.... The board may approve lumpsum settlements when it appears to be to the best interest of the employee or beneficiary or beneficiaries.
Our regulation, 8 AAC 45.160(e), provides, in part:
Agreed settlements in which the employee waives medical benefits or benefits during rehabilitation training are presumed unreasonable and will not be approved absent a showing that the waiver is in the employee's best interests....
Based on the terms of the C&R, we find the employee would waive any and all workers’ compensation benefits from STS Services if we approve the agreement, including possible rehabilitation training under AS 23.30.041 and possible medical benefits under AS 23.30.095(a). The employee receives nothing in return for waiver of these benefits. However tenuous the employee’s claims against STS Services may be, we are unable to find any benefit to the employee if she dismisses the claims. We cannot find the waiver of rehabilitation training and medical benefits under the proposed C&R in the employee's best interest. Based on that finding, we conclude we must deny the C&R under AS 23.30.012 and 8 AAC 45.160(e).
II. SHALL WE DISMISS STS FROM THE CASE?
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.
Although we cannot approve the proposed C&R under AS 23.30.012, we find that the C&R reflects a valid, written stipulation between the parties to dismiss the employee’s claims against STS Services, and to dismiss that employer as a party to the case. Under 8 AAC 45.050(f)(3) the employee’s waiver of her potential rights are not binding against her, unless we approve a formal C&R under AS 23.30.012.
Nevertheless, we have the authority, under certain circumstances, to dismiss claims without prejudice. See, e.g., 8 AAC 45.070(f)(2). We interpret 8 AAC 45.050(f)(1) to authorize the dismissal of claims or parties, without prejudice, based on the stipulation of the parties.
We find the parties have filed a stipulation of facts, agreeing that there is no dispute as to any material fact concerning STS Services, agreeing to the dismissal of the claims against STS Services and to the dismissal of that employer as a party, and consenting to the immediate filing of an order based upon the stipulation of facts. Accordingly, under 8 AAC 45.050(f)(1) we dismiss the employee’s claims against STS Service and dismiss this employer from the case, without prejudice.
ORDER
1. The proposed Compromise and Release agreement on this claim is denied under AS 23.30.012 and 8 AAC 45.160(e).
2. Under 8 AAC 45.050(f)(1) the employee’s claims against STS Service are dismissed without prejudice, and the employer is dismissed from the case.
Dated at Fairbanks, Alaska this 20th day of January, 1999.
ALASKA WORKERS' COMPENSATION BOARD
William Walters, Designated Chairman
Not Available For Signature
John Giuchici, Member
Dorothy Bradshaw, 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 Diana L. Austin, employee / applicant; v. STS Services, Inc., employer; and Liberty Mutual Insurance Co., insurer; v. Tatonduk Outfitters, LTD., employer; and National Union Fire Insurance Co., insurer / defendants; Case No. 96177155; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this ___20th___ day of January, 1999.
______
Lore J. Eddy, Clerk