12-0020. FRANCIS Y. LAMBERT Employee v. ANCHORAGE MARRIOTT Employer and FEDERAL INSURANCE COMPANY Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0020. FRANCIS Y. LAMBERT Employee v. ANCHORAGE MARRIOTT Employer and FEDERAL INSURANCE COMPANY Insurer Defendants Alaska Workers' Compensation Appeals Commission FRANCIS Y. LAMBERT, Employee, Applicant v. ANCHORAGE MARRIOTT, Employer, and FEDERAL INSURANCE COMPANY, Insurer, Defendants.AWCB Decision No. 12-0020 Filed with AWCB Anchorage, Alaskaon January 31, 2012AWCB Case No. 200424138, 200503156, 200521855FINAL DECISION AND ORDERFrancis Y. Lambert's (Employee) workers' compensation claims (WCC) and Anchorage Marriott/Federal Insurance Company's (Employer) petition to dismiss Employee's claims were heard on December 15, 2011, in Anchorage, Alaska. Employee represented herself and testified. Attorney Robert Griffin represented Employer. Kris N. Anderson translated the proceedings from English to Spanish and from Spanish to English. The record closed at the conclusion of the hearing on December 15, 2011. ISSUES Employee claims she has three separate work injuries with Employer. On August 11, 2004, Employee contends she injured her knees from cleaning bathrooms for Employer. On October 1, 2005, Employee asserts she injured her right shoulder pulling sheets or blankets, and on December 12, 2005, she injured both hands/wrists. She seeks ongoing temporary total disability benefits (TTD), permanent partial impairment (PPI) when medically stable and ratable, ongoing medical costs, transportation costs associated with her medical treatment, penalty, and interest on unpaid benefits as a result of each of these injuries individually or in combination. Although she ceased working for Employer on December 1, 2005, Employee contends her conditions have continued and have worsened. Employee contends she filed the reports of injury for the 2004 and October 1, 2005, injuries as soon as she became aware of the nature of her disability and its connection to her work. She further contends she filed a timely affidavit of readiness for hearing (ARH) on June 10, 2009, because she is unrepresented, English is not her first language, and June 2009 was the earliest she understood she needed to request a hearing. Employee further contends, since she is unrepresented and English is not her first language, any delay in requesting a hearing has not prejudiced Employer. Therefore, any failure to comply with time requirements for filing a notice of injury or a request for a hearing should be waived. She further asserts her doctors support her position her current bilateral knee complaints, ongoing shoulder pain, and continuing bilateral wrist pain are due solely to her work with Employer. Employer contends Employee's claims related to both her 2004 and October 1, 2005, work injuries are barred by AS 23.30.100(a) and all three of her claims are barred by AS 23.30.110(c). Employer asserts the 2004 injury was untimely reported because Employee stated she was injured on August 11, 2004, but no report of injury (ROI) was filed until December 12, 2005. Employee's ROI for her October 1, 2005, injury is also untimely because it was not filed until December 12, 2005. Employee's late report of these two injuries should not be excused because Employer was prejudiced because it was unable to investigate each of these injuries immediately after each happened. Employer further contends, although Employee's claims were controverted on March 1, 2006, Employee did not file an ARH or otherwise attempt to request a hearing until June 10, 2009, more than three years later. Thus, these claims are barred by AS 23.30.110(c), which states a hearing must be requested within two years after a claim has been controverted or the claim is denied. Employer further contends, if for some reason the late notices of the 2004 and October 1, 2005, injuries and/or Employee's late request for a hearing are excused, Employee is unable to prove her claims by a preponderance of the evidence. Employer contends both its (Employer's Medical Evaluation) EME physicians and Employee's own treating doctors have agreed any work injury long ago resolved and Employee's employment is neither a substantial factor nor the substantial cause of any time loss or need for medical treatment. 1) Should Employee's claim for benefits related to her 2004 and October 1, 2005, work injuries be dismissed for untimely notices of injury? 2) Should Employee's claims for benefits related to all three of her injuries be dismissed for failure to request timely a hearing under AS 23.30.110(c)? 3) Does the preponderance of the evidence support Employee's claims for time loss and medical treatment for her 2004 and her 2005 injuries, individually or in combination? FINDINGS OF FACT A review of the entire record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) Employee worked for Employer from April 2004 to December 1, 2005 as a house maid (Employee). 2) On August 6, 2003, Employee was seen at Providence Alaska Medical Center Emergency Room (ER) with complaints, among other things, of right knee pain (August 6, 2003, ER report). 3) Employee asserts she sustained injury to both her knees from cleaning bathrooms while working for Employer on August 11, 2004 (December 12, 2005, ROI; February 3, 2006, Workers' Compensation Claim (WCC)). 4) On September 28, 2004, Employee was seen for left knee pain at the ER. She was given pain medication and an immobilizer and advised to follow up with Dr. Kavanaugh. She did not attribute the knee pain to anything in particular (September 28, 2004, ER report). 5) On December 21, 2004, Employee was seen at the ER for head pain after being assaulted. The assessment was cervical strain and head injury (December 21, 2004, ER report). 6) On February 21, 2005, Employee was seen at the ER for neck and back pain from a motor vehicle accident (MVA). X-rays of the cervical, thoracic, and lumbar spine were negative. The impression was cervical and back strain (February 21, 2005, ER report). 7) On February 21, 2005, x-rays were taken of Employee's cervical, thoracic, and lumbar spine which showed some mild degenerative thoracic disc disease and mild degenerative joint disease of the lumbar spine with L3-L4 osteophytes (February 21, 2005, x-ray reports). 8) On March 2, 2005, Employee saw Cynthia Hawkins, ANP, regarding her MVA injuries. Ms. Hawkins' assessment was cervical neck pain and she referred Employee to physical therapy and prescribed Naprosyn and Flexeril (March 2, 2005, Hawkins chart note). 9) On March 10, 2005, Employee saw Providence Alaska Medical Center Rehab Services for outpatient physical therapy evaluation as a result of a MVA on February 21, 2005. Employee reported neck pain and headaches, along with left knee and low back pain. The assessment was cervical strain secondary to the MVA, with possible rotator cuff injury and positive signs of left shoulder impingement (March 10, 2005 Initial Evaluation). 10) On March 30, 2005, Employee saw Robert McAlister, M.D., for persistent neck pain and left shoulder pain from the MVA. Dr. McAlister noted the x-rays of her spine were negative and Employee was now engaged in physical therapy. He suspected a left rotator cuff injury with impingement. Employee stated her employer was aware of her injuries and was accommodating her restrictions (March 30, 2005, McAlister chart note). 11) On April 18, 2005, Employee saw Dr. McAlister who noted her pain was improving with physical therapy. Employee continued to work with Employer at "a rather strenuous job" (April. 18, 2005, McAlister chart note). 12) On June 6, 2005, Employee saw Dr. McAlister who noted Employee's shoulder pain was continuing to improve with physical therapy (June 6, 2005, McAlister chart note). 13) On July 12, 2005, Employee saw Dr. McAlister in follow up to the MVA. Dr. McAlister noted her neck pain was resolving but the left shoulder continued to bother her. He recommended an MRI (July 12, 2005, McAlister chart note). 14) On August 29, 2005, Employee was treated at Providence Hospital for an abscess on her neck and Employee was advised she was able to return to work (August 29, 2005, Providence Hospital chart note). 15) On October 1, 2005, Employee injured her right shoulder picking up or pulling a sheet (December 12, 2005, Report of Injury). 16) On October 17, 2005, Dr. McAlister noted full range of motion in left shoulder but pain in extremities with abduction (October 17, 2005, McAlister chart note). 17) On December 1, 2005, Employee resigned from her job with Employer following an admonition about her work (Employee; record). 18) On December 6, 2005, Employee saw Edward M. Voke, M.D., for persistent neck and left shoulder pain from the MVA. His diagnosis was cervical strain and rotator cuff tendinitis, left shoulder and did not restrict Employee from working (December 6, 2005, Voke report). 19) On December 12, 2005, Employee filled out an ROI for an injury on August 11, 2004, to her knees from cleaning floors on her knees (December 12, 2005, ROI). 20) On December 12, 2005, Employee filled out an ROI for an injury on October 1, 2005, to her right shoulder from picking up or pulling a sheet (December 12, 2005, ROI). 21) On December 12, 2005, Employee filled out an ROI for an injury on December 1, 2005 to both her hands from repetitive work and "too many rooms to clean" (December 12, 2005, ROI). 22) Someone in the Alaska Workers' Compensation Division (Division) helped Employee fill out the...