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dismissal with prejudice

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									      ALASKA WORKERS' COMPENSATION BOARD



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




NICK G. ALECK (deceased),            )
                                         )
                       Employee,         )
                        Applicant,   )   INTERLOCUTORY
                                         )    DECISION AND ORDER
                 v.                      )
                                         )    AWCB CASE Nos. 8102961
PETER KIEWIT & SONS,                 )                     8102983
                                         )                       8102962
                       Employer,         )
                                         )    Filed with AWCB Anchorage
                 and                     )    September 16, 1996
                                         )
HOME INURANCE,                           )
                       Insurer,          )
                 v.                      )
                                         )
KIEWIT CENTENNIAL,                       )
                                         )
                       Employer,         )
                                         )
                 and                     )
                                         )
CIGNA PROPERTY AND CASUALTY,             )
               Insurer,                  )
                                         )
                 v.                      )
                                         )
BECK CONSTRUCTORS,                       )
                                         )
                       Employer,         )
                                         )
                 and                     )
                                         )
WAUSAU INSURANCE,                        )
              Insurer,                   )
                 Defendants.     )
___________________________________)

       We are deciding this petition to dismiss a party on the basis of the written record,
at the stipulation of the parties. Attorney Joseph Kalamarides represents the applicant
employee. Attorney Trena Heikes represents defendant Peter Kiewit & Sons; attorney
Constance Livsey represents defendant Kiewit Centennial; and attorney Patricia Zobel
represents defendant Beck Constructors. We closed the record when we met to consider
this case on September 5, 1996 in Anchorage.

                                       ISSUE
     Shall we dismiss a party, defendant employer Peter Kiewit & Sons and its insurer,
Home Insurance, from this case under 8 AAC 45.050(f)(1)(C)?

          BRIEF SUMMARY OF THE RELEVANT EVIDENCE AND ARGUMENT
        The employee died of chronic myelogenous leukemia on December 25, 1975. The
history of these claims (and earlier claims relating to the same events) is complex and
protracted. The employee worked on the island of Amchitka for Kiewit Centennial from
July 1970 to August 1971 between the Milrow nuclear test of October 2, 1969 and the
Cannikin test on November 6, 1971; and for BECK Constructors during August 1972,
following the Cannikin test. The employee's widow filed two Applications for Adjustment of
Claim dated February 9, 1996, one against Kiewit Centennial and the other against BECK
Constructors, claiming death benefits for exposure of the employee to nuclear radiation.
        The employee fell, injuring his back and spleen, while working for Peter Kiewit &
Sons on October 29, 1974. In an Application for Adjustment of Claim dated April 26,
1995, the employee's widow claimed death benefits for the employee's exposure to cobalt
in the process of treatment for the spleen injury.
        In a letter dated July 3, 1996 Peter Kiewit & Sons referred the employee's attorney
to a decision and order issued regarding a previous Application for Adjustment of Claim
filed against Peter Kiewit & Sons for the same incident, Aleck v. Peter Kiewit & Sons,
AWCB Decision on Case No. 75-10-0499 (July 16, 1975), in which the board found the
spleen injury to be compensable, but the leukemia not compensable. The letter pointed
out that the cobalt therapy had been treatment for the leukemia, and was not
compensable under the 1975 decision. The attorneys for Peter Kiewit and the employee
filed a signed Stipulation for Dismissal with Prejudice, dated July 29, 1996, agreeing to
the dismissal of Peter Kiewit as a party from this case. Subsequently, the attorneys for all
four parties filed an Addendum to Stipulation for Dismissal with Prejudice, signed and
faxed by all the parties on September 5, 1996, again agreeing to the dismissal of Peter
Kiewit as a party from this case. Original signatures to this addendum were filed on
September 9, 1996
        In a Prehearing Summary for a conference held on September 5, 1996, the board
chairman interpreted the two stipulations as petitions for a board order dismissing this
employer on the written record, waiving additional notice of hearing. We closed the record
to consider these stipulations when we met later that day.

                    FINDINGS OF FACT AND CONCLUSIONS OF LAW
       Our regulations at 8 AAC 45.050 provide, in part:
       (f) Stipulations.
                (1) If an application or petition has been filed and the parties agree
                        (A) that there is no dispute as to any material fact,
                        (B) to the dismissal of the claim or petition, or
                        (C) to the dismissal of a party, a stipulation signed by all
        parties may be filed, consenting to the immediate issuance of an order
        based upon the stipulation....
                (3) Stipulations of fact or to procedures are binding upon the parties
        to the stipulation and have the effect of an order unless the board, for good
        cause, relieves a party from the terms of the stipulation. 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 as prescribed by the Act, any
        stipulation to the contrary notwithstanding.
I.      DISMISSAL WITH PREJUDICE
        Our regulation at 8 AAC 45.050(f) generally gives us the discretion to dismiss a
party based upon written stipulation by all the parties to a claim, but 8 AAC 45.050(f)(3)
limits the effect of such a dismissal. An employee's right to benefits (if any are due) can
only be waived if the parties submit a formal Compromise and Release agreement for
approval by the board in accord with the requirements of the Alaska Workers'
Compensation Act at AS 23.30.012 and its implementing regulation at 8 AAC 45.160.
        Because the parties have not submitted a Compromise and Release for our
consideration, we are not able to dismiss this employer with prejudice against the death
benefits claimed by the employee's widow in the Application for Adjustment of Claim
dated April 26, 1995. See also, Lindekugel v. Fluor Alaska, et al., 3AN-94-2802 (CIV)
(Alaska Super. Ct. September 25, 1995), p. 7.

II.     DISMISSAL WITHOUT PREJUDICE
        Our regulation at 8 AAC 45.050(f)(4) gives us the discretion to base our findings of
fact upon written stipulations by the parties to a claim, and 8 AAC 45.050(f)(1)(C) gives us
the authority to dismiss a party without prejudice based on the stipulation of all the
parties. Based on our review of the record and the stipulations of the parties, we find that
the employer Peter Kiewit & Sons is not necessary for a full determination of the matter of
this claim for death benefits. Under 8 AAC 45.050(f)(3) the parties will be bound by the
terms of the stipulations, unless we relieve the parties from those terms for good cause.
We will exercise our discretion to dismiss Peter Kiewit & Sons from this case without
prejudice.

                                        ORDER
      The employer Peter Kiewit & Sons and its insurer, Home Insurance, are dismissed
as parties from this case without prejudice under 8 AAC 45.052(f)(1), according to the
terms of this decision and order.
               Dated at Anchorage, Alaska this 16th day of September, 1996.

                                          ALASKA        WORKERS'         COMPENSATION
BOARD

                                         /s/ William S.L. Walters
                                         William Walters,
                                         Designated Chairman

                                         /s/ Florence Rooney
                                         Florence Rooney, Member

                                         /s Harriet Lawlor
                                         Harriet Lawlor, Member


                                     CERTIFICATION
              I hereby certify that the foregoing is a full, true and correct copy of the
Interlocutory Decision and Order in the matter of Nick G. Aleck, employee / applicant; v.
Peter Kiewit & Sons, employer; and Home Insurance, insurer; et al. / defendants; Case
Nos.8102961, 8102983, and 8102962; dated and filed in the office of the Alaska Workers'
Compensation Board in Anchorage, Alaska, this 16th day of September, 1996.

                 _________________________________
                 Brady D. Jackson III, Clerk
SNO

								
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