12-0075. JOHN R. BUTCHER Employee v. ALASKA PACIFIC POWDER COMPANY Employer and ALASKA INSURANCE GUARANTY ASSOCIATION Insurer Defendants.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0075. JOHN R. BUTCHER Employee v. ALASKA PACIFIC POWDER COMPANY Employer and ALASKA INSURANCE GUARANTY ASSOCIATION Insurer Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau Alaska 99811-5512 JOHN R. BUTCHER, Employee, Applicant v. ALASKA PACIFIC POWDER COMPANY, Employer, and ALASKA INSURANCE GUARANTY ASSOCIATION, Insurer, Defendants.AWCB Decision No. 12-0075Filed with AWCB Anchorage, Alaska on April 19, 2012AWCB Case No. 199806694FINAL DECISION AND ORDERAlaska Pacific Powder Company, and Alaska Insurance Guaranty Association's (collectively Employer) petition for an order awarding benefits for a hip injury to John R. Butcher (Employee) was heard on March 8, 2012, in Anchorage, Alaska. Attorney Michael J. Jensen represented Employee and Attorney Robin Gabbert represented Employer. The record closed at the conclusion of the hearing on March 8, 2012. ISSUES Employer contends it has paid increased medical benefits to and on behalf of Employee for a broken hip from a fall on May 10, 2011, for which a third-party may be liable. Employer further contends it does not dispute Employee broke his hip within scope of his workers' compensation claim and it has paid all benefits related to the broken hip to which Employee is entitled. Employer further contends it has a lien against any third-party recovery for benefits paid for the broken hip, and seeks an assignment of Employee's right to recover damages for the broken hip from any third-party unless Employee commences an action against the third-party within one year from the date of the award of benefits pursuant to AS 23.3.015. Because Employer has paid benefits voluntarily for the broken hip the automatic assignment under AS 30.015(b) does not apply. Employer contends an order awarding compensation for the benefits voluntarily paid for the broken hip is appropriate under the Act and does not compromise or prejudice Employee's right to commence his own action within one year from the date of the order. Employee does not oppose the order awarding compensation benefits already paid for the broken hip.
1. Shall Employer's Petition for an Order awarding compensation benefits to Employee be granted?
FINDINGS OF FACT A preponderance of the evidence in the record as a whole supports the following facts and factual conclusions:
1) Employee was injured on February 6, 1998, when the vehicle he was driving, in the course and scope of employment, hit a moose. Employee sustained a severe head injury and is now permanently and totally disabled (Employee's February 29, 2012 Hearing Brief).
2) Employer has been voluntarily paying Permanent Total Disability (PTD) and medical benefits to and on behalf of Employee (Employer's March 19, 2012 Hearing Brief).
3) On May 10, 2011, Employee fell and broke his hip walking to the bathroom to shower. At the time of the fall Employee was being attended by an employee of Complete Home Health Care (April 5, 2012 Compromise and Release).
4) Employee
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