12-0037. FRANK C. VALDESPINO, Employee, Applicant, v. AL BEAN, d/b/a SMOKED ALASKA SEAFOOD, Uninsured Employer, and THE ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND, Defendants.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0037. FRANK C. VALDESPINO, Employee, Applicant, v. AL BEAN, d/b/a SMOKED ALASKA SEAFOOD, Uninsured Employer, and THE ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND, Defendants FRANK C. VALDESPINO, Employee, Applicant, v. AL BEAN, d/b/a SMOKED ALASKA SEAFOOD, Uninsured Employer, and THE ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND, Defendants.AWCB Decision No. 12-0037Filed with AWCB Anchorage, Alaskaon February 29, 2012AWCB Case No. 201005175FINAL DECISION AND ORDERFrank C. Valdespino's (Employee) June 18, 2010 Workers' Compensation Claim was heard on January 17, 2012, in Anchorage, Alaska. Attorney Rene Gonzalez appeared and represented Employee, who appeared by telephone and testified. Al Bean appeared, testified and represented himself d/b/a Smoked Alaska Seafood (Employer). Velma Thomas and JoAnne Pride appeared and represented the Alaska Workers' Compensation Benefits Guaranty Fund (Fund). Employer asked the record to be left open so it could provide its bank statement showing dates of cash withdrawals in support of its claim it paid Employee various sums. Employee objected and the request was denied orally. The record closed at the hearing's conclusion on January 17, 2012. This decision examines the oral order denying Employer's request to leave the record open, memorializes it, and decides Employee's amended claim on its merits. ISSUES Employee contends the record should not be left open for Employer to submit any additional documentary evidence, because it has had years to prepare its case and file evidence. Employer contends the record should be left open so it can submit a copy of its bank statements showing cash withdrawals it made to pay Employee's benefits. The fund took no position on this issue. 1) Was the oral order denying Employer's request to leave the record open for its documentary evidence correct? Employee contends he is entitled to temporary total disability (TTD) or alternately temporary partial disability (TPD) from January 31, 2010, to the date he was medically stable and released to full duty work on June 4, 2010. Though he admits he received unemployment benefits beginning in March 2010, Employee contends he will pay back these benefits and is entitled to TTD or TPD for all relevant times. Employer contends it provided minimal funds to Employee after his work-related injury to receive medical care and treatment. It also contends it paid Employee wages through February 16, 2010. Employer contends Employee drew unemployment from March 2010 forward. It disputes his entitlement to TTD and TPD. The fund contends Employee is not entitled to TTD during periods he worked and during periods when he received unemployment. It took no position on the TPD claim. 2) Is Employee entitled to TTD? 3) Is Employee entitled to TPD? Employee also contends entitlement to unpaid medical bills exceeding $29,000.00. Employer has no objection to the medical bills submitted by Employee. The fund has no objection to the medical bills submitted by Employee, but contended the bills should go through the medical benefits fee schedule adjustment. The fund submitted an itemized statement of medical expenses and all parties accept it as accurate. 4) Is Employee entitled to medical benefits? Employee contends the Social Security offset issue is not properly raised or before the panel for decision. Employer took no position on this issue. The fund contends it is entitled to a Social Security offset. 5) Is the Social Security offset issue ripe for decision? Employee contends he is entitled to an interest award on his benefits and those owed to his medical providers. Neither Employer nor the fund took a position on this issue. 6) Is Employee or are his providers entitled to interest? Employee contends he is entitled to attorney's fees. Employer contends Employee's attorney should not be paid for services for September 30, 2010, because those services involved a hearing continuance made at Employee's request. It contends it had no notice of a prehearing conference on August 25, 2011, because Employer would have been there had he known of the conference. Employer implies Employee's fees should not be paid for that prehearing conference. The fund took no position on Employee's fees. 7) Is Employee entitled to attorney's fees? FINDINGS OF FACT A review of the entire administrative record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) No party objected to Employee's telephonic participation in the hearing at the beginning of the hearing (record). 2) Employee, also known as Francisco V. Castillo, was 71 years old at the time he worked for Employer (Valdespino). 3) Employer admits Employee was its employee at the time of his work-related injury (Bean). 4) The fund spoke with Employer who conceded Employee was its employee at the time of his work-related injury, and the fund has no objection and agrees there was an employer-employee relationship at relevant times (Thomas). 5) Employer paid Employee $8.00 per hour "under the table" (Valdespino). 6) As of January 30, 2010, Employee had worked for Employer for about three to four days filleting fish (id.). 7) On January 30, 2010, Employee was sharpening a knife for Employer's mother, who was also working at the fish processing plant. Employee accidentally cut his left hand, and severed a tendon in the thumb area (id.). 8) On January 30, 2010, Employer took Employee to the hospital, admitted he had no workers' compensation insurance and said he would pay all of Employee's injury-related medical bills (id.). 9) However, Employer did not pay all of the work-related medical bills (id.). 10) On January 30, 2010, Vaughn Gardner, M.D., performed surgery an Employee's left thumb (Valdespino; Preoperative History and Physical, January 30, 2010). 11) On January 31, 2010, Employee returned to work for about two weeks for Employer, and was paid for his services without any deductions he can recall (Valdespino). 12) Employer's last production date was February 16, 2010, at which time the plant closed. Employer left the country the next day for about five weeks (Bean). 13) After Employee worked for Employer following his injury, the fish factory closed and Employer asked Employee to be caretaker of Employer's home while he left town (Valdespino). 14) In exchange for this, Employer allowed Employee to stay in Employer's home for a period, but Employee received no pay for this (id.). 15) Employer claimed no offset for this from any benefits it may owe Employee for his injuries (Bean). 16) Beginning the week ending March 13, 2010, i.e., March 7, 2010, Employee received unemployment benefits in the sum of $68.00 per week through the week ending May 8, 2010 (Valdespino; Alaska Department of Labor, Week Claimed Entitlement form, May 27, 2010). 17) Employee had a different date recollection of when he received unemployment benefits, but deferred to the Department of Labor's official documents (Valdespino). 18) Employee intends to reimburse unemployment for nine weeks unemployment for a total of $612.00, as soon as possible (id.). 19) On May 10, 2010, Employee filed a Workers' Compensation Claim stating "Benefits not paid," and seeking TTD from March 3, 2010 through unspecified; permanent partial impairment (PPI); medical costs; penalty,; interest; and "other" which included a request to join the fund (claim, May 10, 2010). 20) On June 4, 2010, Dr. Gardner examined Employee, found his tendon had healed well, and released him to return to full duty work (Valdespino; chart note, June 4, 2010). 21) On June 24, 2010, Employee through counsel filed an amended claim clarifying he was seeking TTD from January 30, 2010; TPD; PPI; medical costs; transportation costs; reemployment eligibility; a compensation rate adjustment; penalty; interest; and attorney's fees and costs (claim, June 18, 2010). 22) On or about September 1, 2010, Employee returned to work at Value Village in Anchorage, and at Westward in Kodiak, Alaska (Valdespino). 23) On September 30, 2010, Employer sought a hearing continuance because he was busy smoking fish. Employee's counsel agreed to a continuance and filed the required paperwork (record; Employee's attorney's hearing statement). 24) On July 25, 2011, the parties were served with a prehearing conference notice for an August 25, 2011 prehearing conference (Prehearing Conference Notice, July 25, 2011). 25) Employer did not appear at the August 25, 2011 prehearing conference, and at hearing stated he did not know anything about it (Prehearing Conference Summary, August 25, 2011; Bean). 26) On or about January 10, 2012, Employee returned to work in the fishing industry for Trident Seafood in Kodiak (Valdespino). 27) Employer at hearing confirmed his address of record and phone numbers were accurate (Bean). 28) Employee disputes Employer's claim it paid all of Employee's medical bills related to this injury (Valdespino). 29) However, Employee admits Employer gave him cash to pay medical bills, and he took whatever money Employer gave him to Dr. Gardner's office to pay his bill there (id.). 30) Employee paid his providers $211.47 for medical care from the money Employer gave him (id.). 31) To the best of Employee's somewhat vague recollection, Employer only gave him $300.00 and no more...

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