12-0051. KALATA ESERA Employee v. TRIDENT SEAFOODS CORP. Employer and LIBERTY INSURANCE CORP. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0051. KALATA ESERA Employee v. TRIDENT SEAFOODS CORP. Employer and LIBERTY INSURANCE CORP. Insurer Defendants ALASKA WORKERS' COMPENSATION BOARD KALATA ESERA, Employee, Applicant, v. TRIDENT SEAFOODS CORP., Employer, and LIBERTY INSURANCE CORP., Insurer, Defendants.AWCB Decision No. 12-0051 Filed with AWCB Anchorage, Alaskaon March 12, 2012AWCB Case No. 201102671FINAL DECISION AND ORDERKalata Esera's (Employee) November 1, 2011 Workers' Compensation Claim appealing the Rehabilitation Benefits Administrator designee's (RBA designee) October 24, 2011 letter decision finding him "not eligible" for reemployment benefits was heard on February 22, 2012, in Anchorage, Alaska. Employee appeared by telephone, represented himself, and testified. Employee's wife, Starlene Esera also testified by telephone. Attorney Jeffrey Holloway appeared and represented Trident Seafoods Corp. (Employer) and its workers' compensation insurer. Various attempts to use a Samoan language translator failed because of telephone difficulties. After making several attempts, the parties and the panel determined a professional translator was not necessary, Employee's wife was sworn as a translator, and the parties agreed to proceed without a professional translator's services. The record closed at the hearing's conclusion on February 22, 2012. ISSUES Employee contends the RBA designee made a mistake by finding him not eligible for reemployment benefits. He contends his shoulder and knee injuries and continuing symptoms prevent him from returning to his job at the time of his injury, or to any job he held in the 10 years prior to his injury. Employee contends he still has pain in his knee and if he returns to work he will just be standing around and will be fired by any new employer. Therefore, Employee contends he should have been found eligible for reemployment benefits as he needs to be retrained. Employer contends the RBA designee was correct in finding Employee not eligible. It contends as Employee has no prediction of a ratable permanent partial impairment (PPI), or an actual PPI rating, he cannot as a matter of law be entitled to reemployment benefits. Therefore, it contends the RBA designee's October 24, 2011 decision should be affirmed. Shall the RBA designee's October 24, 2011 letter decision finding Employee not eligible for reemployment benefits be affirmed? FINDINGS OF FACT A review of the relevant administrative record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On February 18, 2011, Employee while working for Employer injured his left knee and right shoulder when he fell while loading crab containers (Report of Occupational Injury or Illness, February 18, 2007). 2) Employee still feels pain in his knee and shoulder (Esera). 3) His family is in dire need of money, he needs a job, and Employee is convinced he cannot return to his job at the time of his injury, because if he does, he will be standing around because of knee pain and will be terminated for lack of working (id.). 4) On May 11, 2011, W. Frederick Thompson, M.D., performed arthroscopic surgery on Employee's left knee (Operative/Procedure Report, May 11, 2011). 5) On July 16, 2011, Dr. Thompson stated he did not predict Employee will have permanent physical capacities sufficient to perform the physical demands of jobs Employee has held in the relevant past, including: Taxi Driver, Building Repairer, Boring Machine Feeder, Laborer, or Fish Cleaner. Dr. Thompson also stated he did not predict Employee will have a permanent partial impairment rating greater than zero as a result of his work related injury. He opined lifting, carrying, pushing, and pulling up to 50 pounds occasionally was excessive according to Employee's physical capacity evaluation (letter response, July 16, 2011). 6) On July 27, 2011, Carl Gann, Certified Rehabilitation Counselor, recommended Employee did not meet all eligibility criteria for reemployment benefits (Eligibility Evaluation Report, July 27, 2011). 7) On August 24, 2011, the RBA designee reviewed Mr. Gann's eligibility evaluation report and asked him to inquire of Dr. Thompson again concerning Employee's likelihood of PPI, i.e., a prediction of any permanent partial impairment rating (letter, August 24, 2011). 8) On August 29, 2011, Mr. Gann, following the RBA designee's instructions, inquired again of Dr. Thompson and asked him the following question:

Do you predict that Kalata Esera will have a permanent partial impairment rating greater than 0%, as a result of his 2/18/2011 work injury, according to the American Medical Association's Guides to the Evaluation of Permanent Impairment, Sixth Edition Yes ___ No ___

9) On September 5, 2011, Dr. Thompson responded by checking the "No " box (id.; September 5, 2011). 10) On September 28, 2011, Mr. Gann submitted a supplemental report recommending Employee be found not eligible based on Dr. Thompson's prediction of no permanent partial impairment (Supplemental Eligibility Evaluation Report, September 20, 2011). 11) On October 24, 2011, the RBA designee sent Employee a letter decision determining he was not eligible for reemployment benefits based upon Mr. Gann's eligibility recommendation and Dr. Thompson's prediction that at the time of medical stability Employee would have no permanent impairment (letter, October 24, 2011). 12) On November 4, 2011, Employee filed a timely claim requesting review of the reemployment benefit decision on eligibility, citing his left knee and right shoulder injuries, and stating he was not fully recovered (Workers' Compensation Claim, November 1, 2011). 13) On December 15, 2011, Melvin Levine, M.D., saw Employee for an employer's medical evaluation (EME). Dr. Levine found no significant objective findings in Employee's left knee or right shoulder. Dr. Levine could find no objective reason to restrict Employee from any work, and in view of the lack of findings on Dr. Levine's physical examination, he could not "see where he fits into the Sixth Edition of the AMA Guidelines" (EME report, December 15, 2011). 14) The agency record does not contain a medical opinion providing a prediction Employee will have a PPI rating in excess of 0% at the time of medical stability or which provides an actual PPI rating in excess of 0% (record). 15) At hearing on February 22, 2012, after making several attempts to use a Samoan language translator, the parties and the panel determined a professional translator was not necessary, Employee's wife was sworn as a translator, and the parties agreed to proceed without a professional translator's services (record). 16) Employee's testimony spoken in English was clear, easily understandable, his answers were generally responsive to questions he was asked and there did not appear to be any issues with mis-communication (experience, judgment, observations, unique or peculiar facts of the case, and inferences drawn from all of the above). PRINCIPLES OF LAW

AS 23.30.001. Intent of the legislature and construction of chapter. It is the intent of the legislature that

1) This chapter be interpreted . . . to ensure the quick, efficient, fair, and predictable delivery of . . . benefits to injured workers at a reasonable cost to . . . employers. . . .

The board may base its decisions not only on direct testimony and other tangible evidence, but also on the board's "experience, judgment, observations, unique or peculiar facts of the case, and inferences drawn from all of the above." Fairbanks North Star Borough v. Rogers and Babler, 747 P.2d 528, 533-34 (Alaska 1987). In Richard v. Fireman's Fund, 384 P.2d 445 (Alaska 1963), the Alaska Supreme Court said:

We hold to the view that a workmen's compensation board or commission owes to every applicant for compensation that duty of fully advising him as to all the real facts which bear upon his condition and his right to compensation, so far as it may know them, and of instructing him on how to pursue that right under the law.

See Cole v. Town of Miami, 83 P.2d 997, 1000 (Arizona 1938); see alsoYurkovich v. Industrial Accident Bd., 314 P.2d 866, 869-71 (Montana 1957), in which the court declared:

The Workmen's Compensation Act was enacted for the benefit of the employee. The Industrial Accident Board is a state board created by legislative act to administer this remedial legislation, and under the act the Board's first duty is to administer the act so as to give the employee the greatest possible protection within the purposes of the act. . . .

In Bohlmann v. Alaska Construction and Engineering, 205 P.2d 316 (Alaska 2009), the Alaska Supreme Court said:

A central issue inherent to Bohlmann's appeal is the extent to which the board must inform a pro se claimant of the steps he must follow to preserve his claim. . . .

In Richard v. Fireman's Fund Insurance Co. we held that the board must assist claimants by advising them of the important facts of their case and instructing them how to pursue their right to compensation (footnote omitted). We have not considered the extent of the

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