12-0001. LUIS A. NUNEZ Employee v. NORQUEST SEAFOODS INC. Employer and LIBERTY MUTUAL FIRE INSURANCE CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0001. LUIS A. NUNEZ Employee v. NORQUEST SEAFOODS INC. Employer and LIBERTY MUTUAL FIRE INSURANCE CO. Insurer Defendants Alaska Workers' Compensation Appeals Commission LUIS A. NUNEZ, Employee, Applicant, v. NORQUEST SEAFOODS, INC., Employer, and LIBERTY MUTUAL FIRE INSURANCE CO., Insurer, Defendants.AWCB Decision No. 12-0001Filed with AWCB Juneau, Alaska On January 5, 2012AWCB Case No. 200415327FINAL DECISION AND ORDERLuis Nunez's (Employee) June 7, 2010 workers' compensation claim was heard on December 6, 2011, in Juneau, Alaska. Employee appeared, represented himself, and testified. Attorney Jeffrey Holloway represented Norquest Seafoods Inc. (Employer). Joel Bloom with Adept Interpreting acted as translator for the hearing. The record closed at the hearing's conclusion on December 6, 2011. ISSUES Employer contends Employee's workers' compensation claim (WCC) for permanent partial impairment (PPI) benefits should be barred under AS 23.30.105(a). Employee contends he timely pursued his claim under California law. He contends, therefore, his PPI claim should not be denied or barred by AS 23.30.105(a). 1) Is Employee's PPI claim barred under AS 23.30.105(a)? Employee contends he is entitled to PPI benefits based on the report of David Easley, M.D., who assessed a 13 percent PPI rating under the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides). Employer contends Employee initially pursued his workers' compensation claim under California workers' compensation law, it paid Employee PPI benefits under California law, and these payments must be credited against any PPI benefits awarded Employee in his Alaska case. 2) Is Employee entitled to PPI benefits under Alaska law? FINDINGS OF FACT A review of the entire record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) In 2003, Employer hired Employee in California to work at its seafood processing plant in Petersburg, Alaska. (Employee Hearing Testimony). 2) On August 15, 2004, Employee was injured in Petersburg, Alaska while working for Employer. Employee was pulling totes of fish when he developed pain in his back and lower extremities. (Employee Hearing Testimony; Report of Injury, September 13, 2004; Chart Note, Sharon Junge, M.D., August 19, 2004). 3) In September 2004, Employee returned to California. (Employee Hearing Testimony). 4) On November 29, 2004, Stuart May, M.D., interpreted a magnetic resonance imaging (MRI) scan of Employee's lumbosacral spine. The MRI impression was mild multifactorial stenosis of the central spinal canal secondary to disc bulging eccentric to the left, effacing the thecal sac in the region of the left L4 nerve rootlet; 5 MM left paracentral disc protrusion compromising the lateral recess in the region of the left L5 nerve rootlet along with mild right foraminal narrowing and mild central canal compromise; mild foraminal narrowing bilaterally, slightly greater on the right, with effacement of the right L5 nerve rootlet. (MRI Report, Dr. May, November 29, 2004). 5) On January 12, 2005, orthopedic surgeon Richard Zimmerman, M.D., examined Employee for an employer's independent medical evaluation (EIME). Dr. Zimmerman diagnosed acute herniated lumbar disc at L4-5 on the left side compromising the left lumbar nerve and a smaller disc at L5-S1 with beginning compromise of the S1 nerve at that level. Dr. Zimmerman opined Employee's conditions were caused by the work injury. He also opined Employee was not medically stable but would have permanent impairment resulting from the work injury. Dr. Zimmerman declined to estimate a PPI rating under the AMA Guides, stating, "As to the permanent partial disability, I am unable to estimate that now and will leave that to the treating surgeon at the time that the claimant is recovered enough to attempt work." (EIME Report at 4-6, Dr. Zimmerman, January 12, 2005). 6) In spring 2005, Employee filed a California WCC and pursued workers' compensation benefits under California law. (Employee Hearing Testimony). 7) On November 16, 2005, Employee's treating physician Jacob Rabinovich, M.D., provided an 8 percent whole person impairment rating under the AMA Guides. He opined Employee qualified for Lumbar DRE Category II, stating Employee had significant muscle spasm, multilevel disc bulges on the MRI scan and radiculopathy confirmed with neurodiagnostic tests. (Impairment Rating Report, Dr. Rabinovich, November 16, 2005). 8) On September 17, 2007, Employee was rated by an independent physician chosen by the California Workers' Compensation Appeals Board. California Qualified Medical Evaluator and orthopedic surgeon David Easley, M.D., provided a 13 percent whole person impairment rating under the AMA Guides. He opined Employee qualified for Lumbar DRE Category III, stating Employee had significant signs of radiculopathy with the dermatomal pain and/or in a dermatomal distribution sensory loss, sensory loss, loss of relevant reflexes, loss of muscle strength, or measured unilateral atrophy above or below the knee compared to the measurements on the contralateral side at the same location; and impairment may be verified by electrodiagnostic findings. (Impairment Rating Report, Dr. Easley, September 17, 2007...