12-0049. DONALD W. KILBUCK Employee v. CALISTA CORP. Employer and ALASKA NATIONAL INS. CO. Insurer Defendants.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0049. DONALD W. KILBUCK Employee v. CALISTA CORP. Employer and ALASKA NATIONAL INS. CO. Insurer Defendants ALASKA WORKERS' COMPENSATION BOARDDONALD W. KILBUCK, Employee, Applicant, v. CALISTA CORP., Employer, and ALASKA NATIONAL INS. CO., Insurer, Defendants.FINAL DECISION AND ORDERAWCB Decision No. 12-0049Filed with AWCB Anchorage, Alaskaon March 16, 2012AWCB Case No. 201105052Donald C. Kilbuck's (Employee) June 27, 2011 workers' compensation claim for temporary total disability (TTD) was heard on September 28, 2011, in Anchorage, Alaska. Employee appeared, represented himself, and testified. Attorney Vicki Paddock represented Calista Corp. (Employer) and its workers' compensation insurer. Heather Spear, Human Resource Manager, testified on Employer's behalf. Board member David Robinson, representing labor, recused himself because of his perceived conflict of interest. The hearing proceeded with a two-member panel, which constitutes a quorum. AS 23.30.005(f). The record closed at the hearing's conclusion on September 28, 2011. ISSUES Employee contends he injured his back while throwing bags of recycled paper into the trash while working as a janitor on April 2, 2011. He further contends he called his supervisor on April 4, 2011, to report his injury and that he was unable to work due to his injury. Employee contends he offered to come into work despite his pain and was told he could not "because he might reinjure his back." He contends he was disabled because of his work injury April 2, 2011, through June 13, 2011, and should be awarded TTD benefits. Employer contends Employee cannot attach the statutory presumption of compensability to his TTD claim because there is no medical evidence he was totally disabled April 2, 2011 through June 13, 2011, because he was released to work without restriction on April 5, 2011. Accordingly, because of a lack of supporting evidence, Employer contends Employee cannot prove his claim by a preponderance of the evidence. Lastly, Employer contends as Employee's attending physicians all released him to return to work, he cannot prove his subjective claim for TTD, and for the period he was retroactively found to be not medically stable Employer would have accommodated any limitations if Employee had maintained contact with Employer. Is Employee entitled to TTD from April 2, 2011, through June 13, 2011? FINDINGS OF FACT A review of the entire record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On February 11, 2010, Employee was seen in the Alaska Native Medical Center (ANMC) Primary Care Clinic by Dean Robinson, ANP, for low back pain after a slip and fall while walking a dog. Employee was diagnosed with a low back strain. (Chart note, ANP Robinson, February 11, 2010). 2) Employee reported he injured his back while throwing bags of recycled paper into the trash while working for Employer as a janitor on April 2, 2011. (Report of Occupational Injury or Illness, April 13, 2011; Kilbuck; Spear). 3) Employer noted on the Report of Injury it doubted the validity of the injury based on Employee's "history of back injuries" and that he "told HR person that happens a lot and he will be fine later." (Report of Injury, Line 46, Heather Spear, HR Manager). 4) On April 4, 2011, Employee reported to Alaska Native Medical Center (ANMC) Emergency Department he had low back pain from throwing a heavy trash bag while at work. He also complained of numbness in his both feet and left shin pain following a long walk three days earlier. Employee was diagnosed with an acute low back strain. (Emergency Department note, Kelly Knaub, PAC, April 4, 2011). 5) X-rays of the lumbosacral spine showed lumbar spondylosis. (X-ray report, April 4, 2011, Janet Wilkinson, MD). 6) On April 4, 2011, PAC Knaub released Employee to his usual occupation without restriction effective April 5, 2011. (Note, April 4, 2001). 7) Also on April 4, 2011, Employee called his supervisor, Amanda Hoffman, to report his injury. (Kilbuck; Spears). 8) On April 7, 2011, Employee met with Project Coordinator Gene Tikiun and provided a work release to full duty without restriction beginning April 5, 2011. (Kilbuck; Spear). Employee did not report to work after this meeting. (Observations). 9) Also on April 7, 2011, Employee was seen Dean Robinson, ANP, in the ANMC Primary Care Clinic for left forefoot pain. Employee was referred to podiatry. (Chart note, ANP Robinson, April 7, 2011). 10) On April 11, 2011, Employee was seen by ANP Robinson for continued low back pain with minor improvement. Employee asked for and was referred to Complementary Medicine (chiropractic). (Chart note, ANP Robinson, April 11, 2011). 11) On April 19, 2011, Employer controverted temporary total disability and temporary partial disability based on a lack of medical evidence supporting disability beyond the statutory three day waiting period. (April 19, 2011 Controversion). 12) On April 28, 2011, Karl Rosenberg, DPM, noted Employee had pain in the ball of both feet with both a long standing "nerve" injury and an abrupt onset about four weeks earlier when Employee injured his back cleaning a building...

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