12-0030. JOSEPH J. BIELSKI Employee Claimant v. NORCON INC Employer and CH2M HILL ENERGY LTD Insurer.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0030. JOSEPH J. BIELSKI Employee Claimant v. NORCON INC Employer and CH2M HILL ENERGY LTD Insurer JOSEPH J. BIELSKI, Employee, Claimant v. NORCON INC, Employer, and CH2M HILL ENERGY LTD, Insurer, Defendant(s).AWCB Decision No. 12-0030 Filed with AWCB Fairbanks, Alaskaon February 17, 2012AWCB Case No. 201107760FINAL DECISION AND ORDERThe Reemployment Benefits Administrator's August 25, 2011 referral for a determination of whether Employee's disability or need for medical treatment arose in the course and scope of his employment, and Joseph Bielski's (Employee) June 24, 2011 and July 13, 2011 workers' compensation claims (WCC) were heard on January 5, 2012 in Fairbanks, Alaska. Attorney John Franich represented Employee. Attorney Robert McLaughlin represented Employer. Employee appeared in person and testified on his own behalf. Employer called Doug Allen Tansy, Business Representative for the International Brotherhood of Electrical Workers (IBEW), who appeared and testified by telephone. Employer also called Dave Kezer, Manager for Norcon's (Employer) Alaska Division, who appeared and testified in person. The record closed at the hearing's conclusion on January 5, 2012. ISSUE It is undisputed Employee was driving to his home in North Pole, Alaska from his worksite at Fort Greely, Alaska on April 28, 2011, when he was involved in a single-vehicle rollover accident on the Richardson Highway. Employee suffered two cervical fractures, the subject of his claims. The parties agree the sole issue for determination is whether Employee's injuries arose in the course and scope of employment. Employee contends either the remote worksite or special errand exceptions to the coming and going rule apply in the instant case. First, Employee contends whether his compensation was called "per diem" or "mileage," is a distinction without a difference. Employee contends his per diem compensation bore no relationship to actual expenses incurred so, regardless of what it was called, it was actually compensation for engaging in Employer required travel to and from a remote worksite. Therefore, Employee contends his injuries arose "in the course of employment" under the express language of AS 23.30.395(2), and are compensable. Second, Employee also contends that Employer was using its employees as "unpaid garbage haulers" to dispose of its poles from the worksite, and although Employee was hauling the poles away from the worksite for his own personal benefit, he was also advancing the interest of Employer as well, who would have had to otherwise pay to dispose of the poles. Therefore, Employee contends, he was engaged in a special errand for Employer at the time of his accident. Employer contends neither exception applies to this case, and since the normal coming and going rule applies, Employee's injuries are not compensable. In the alternative, Employer also contends Employee was engaged in a personal deviation at the time of the accident that took him outside the course and scope of his employment and is a bar to compensation. Did Employee's disability or need for medical treatment arise out of and in the course of the employment? FINDINGS OF FACT On April 28, 2011, while driving to his home in North Pole from his worksite in Fort Greely, Alaska, Employee was involved in a single-vehicle rollover accident. (Report of Occupational Injury or Illness, May 10, 2011). 2) As a result of the accident, Employee fractured two vertebrae in his cervical spine. (Id.). 3) On June 20, 2011, Employer controverted Employee's benefits on the basis Employee's injuries did not arise in the course and scope of his employment since Employee was on his way home from work. (Controversion Notice, June 20, 2011). 4) On June 24, 2011, Employee served Employer with a WCC claiming temporary total disability (TTD) from April 28, 2011 and medical costs. (WCC, June 24, 2011). 5) On July 13, 2011, Employee filed an amended WCC claiming TTD from April 29, 2011, permanent partial impairment (PPI), medical costs, penalty, interest, attorney fees and costs, and reemployment eligibility evaluation. (WCC, July 13, 2011). 6) On August 25, 2011, and because of Employer's controversion, the Reemployment Benefits Administrator (RBA) referred the matter to the board for a determination of whether Employee's inability to return to work is the result of an injury that arose in the course and scope of his employment. (Letter from the RBA to the board, August 25, 2011). 7) On September 15, 2011, Employee filed an affidavit of readiness for hearing (ARH) on his June 24, 2011 and July 13, 2011 WCC's. (ARH, September 14, 2011). 8) On September 26, 2011 the parties attended a prehearing conference because the Rehabilitation Benefits Administrator referred the case to the board to determine if Employee was injured "in the course of employment." Employer acknowledged Employee filed an ARH on his claims and did not object to proceeding to hearing on the merits of Employee's claims. Employee further amended his claim to include a claim for additional penalty under AS 23.30.070. The board's designee scheduled the hearing for February 2, 2012. (Prehearing Conference Summary, September 26, 2011). 9) On October 12, 2011, the parties attended a prehearing conference and stipulated to re-scheduling the hearing set for February 2, 1012, to January 5, 2012. (Prehearing Conference Summary, October 12, 2011). 10) At the time of the accident, Employee had been working for Employer at Fort Greely for about three months as an apprentice electrician. Employee was paid an hourly wage and a per diem amount of either $105.00 or $115.00 per week. (Bielski; WCC, June 24 2011). 11) Mr. Tansy is a business representative for the IBEW. (Tansy). 12) Mr. Kezer has worked for Employer for 21 years, is Manager for Employer's Alaska Division, and a vice president of the company. (Kezer). 13) Employee's working conditions were governed by an "Inside Agreement" (Agreement) between the IBEW and the National Electrical Contractors Association (NECA). (Tansy; Kezer; excerpt from Inside Agreement, November 1, 2008 through October 21, 2011). 14) The Agreement explicitly addresses the various locations where employees will report to a job, compensation for travel based on mileage, and per diem compensation. The Agreement states, in relevant part:
Section 3.16Reporting Points/Transportation
When an Employer does not have a permanent shop, the Union Hall . . . shall be designated the reporting point and considered its shop. Employees shall report at the shop at starting time . . . to be picked up by the Employer at the starting time of their regular shift. Employees shall be transported to the job sites and returned to the starting point at the Employer's expense. Travel time shall be paid for by the Employer at the applicable rate.
Section 3.17Shop Report
When Employees are ordered to report to the shop in the morning, they shall report at the starting time and shall return to the shop no later than 4:30 p.m. if a one-half hour lunch is taken, or 5:00 p.m. if an one-hour lunch is taken.
Section 3.18Job Report
Employers may request employees to report direct to jobs at starting time of their regular shift in a conveyance other than Employer's and perform eight hours of work, providing such jobs are at least one week's duration . . . . The employee's shall be compensated for travel expenses to jobs with mileage measured from the union hall or designated dispatch point . . . at the following rates:
0 - 25 miles No compensation
26-50 miles $.60 per mile, one way
. . . .
Section 3.23Per Diem and Expenses (a) Employees working outside a radius of fifty (50) direct road miles . . . except as specified in Section 3.20, shall receive:
. . . .
(2) Board and lodging shall be paid by the Employer . . . . For projects where camp facilities are provided, per diem may not be available. . . . When per diem applies, Employees shall receive thirteen ($13.00) dollars per hour for all hours worked up to a maximum of eight (8) hours in any one day. Effective November 24, 2008.
(3) Per Diem shall increase to fourteen ($14.00) per hour effective
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