12-0079. DAMION A. WARD Employee v. ARCTIC PREDATORS PROFESSIONAL INDOOR FOOTBALL LLC Employer and ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND Defendants.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0079. DAMION A. WARD Employee v. ARCTIC PREDATORS PROFESSIONAL INDOOR FOOTBALL LLC Employer and ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512 DAMION A. WARD, Employee, v. ARCTIC PREDATORS PROFESSIONAL INDOOR FOOTBALL, LLC, Employer, and ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND, Defendants.AWCB Decision No. 12-0079AWCB Case No. 201006673Filed with AWCB Anchorage, Alaska on April 26, 2012FINAL DECISION AND ORDERLarson Chiropractic provided medical care to Damion Ward; because it was not paid by Arctic Predators Professional Indoor Football, LLC (Arctic Predators), it filed a claim for benefits. Larson Chiropractic's claim was heard April 11, 2012 in Anchorage Alaska. Leslie Schwaderer appeared and testified on behalf of Larson Chiropractic. Alaska Workers' Compensation Guaranty Fund (Fund) administrator Velma Thomas appeared and testified. Damion Ward also appeared and testified. Joanne Pride with Wilton Adjustment Service appeared and testified. No one appeared on behalf of Arctic Predators. The record closed April 11, 2012 at the conclusion of the hearing. On April 13, 2012, after the record had closed, Larson Chiropractic submitted further evidence; because the record had closed, that evidence was not reviewed or considered. ISSUES As a preliminary matter, it was necessary to determine whether to proceed with the hearing in the absence of Arctic Predators. The oral ruling to proceed with the hearing is examined and memorialized below. 1. Was the decision to proceed with the hearing in Arctic Predators' absence correct? Larson Chiropractic contends Mr. Ward's employment with Arctic Predators was the substantial cause of his need for the medical treatment it provided, and because Arctic Predators was uninsured and did not timely pay for that treatment, the Fund is liable to do so. As Arctic Predators did not appear, its position is unknown. The Fund contends Larson Chiropractic has not established that Mr. Ward was an employee of Arctic Predators at the time of his injury, and, consequently, it is not liable for any benefits. 2. Was Mr. Ward Arctic Predators' employee at the time of the injury? 3. Is Larson Chiropractic entitled to the medical services it provided to Mr. Ward? 4. Who is liable for the cost of the medical care Larson Chiropractic provided to Mr. Ward? FINDINGS OF FACT The following findings of fact and factual conclusions are established by a preponderance of the evidence: 1) In 2010, Arctic Predators hired Mr. Ward as a football player. (Ward). Hans Deemer was the organizer of Arctic Predators, and represented himself as the "owner" or "manager" of the LLC. (State of Alaska, Corporations, Business and Professional Licensing, online filing printout; Ward; Schwaderer). 2) Mr. Ward credibly explained that at the time he was hired he signed a written contract with Arctic Predators, but Arctic Predators kept the only signed copy of the contract. (Ward). 3) Mr. Ward submitted an unsigned copy of the parties' contract and testified it was the same as the signed contract. (Ward). Relevant portions of the contract are:
1. Term: This contract covers (sic, the) 2010 football season . . . .
2. Employment and Services: The Team employs the Player as a skilled football Player. . . .
3. Other Activities: Without prior written consent of the Team, the Player will not play football or engage in activities related to football otherwise than for Team. . . .
6. Rules: The Player will comply with and be bound by all Team and Association rules and regulation in effect during the term of this contract . . . . Player agrees to wear only Team and Association approved apparel and equipment while performing services for the Team (both on and off the field) . . . .
8. Injury: . . . . [T]he intent of this contract, and of the athlete's intent entering into said contract is that the athlete's relationship with the Team, the association, and owners is that of an employee . . . . As such, the athlete employee is covered by worker's compensation . .
12. Release for Other Opportunities: If a Player leaves the Team for employment with a competing professional or (semi-professional) indoor football leagues (sic) he will be in breach of this contract . . . . in the event he breaches this contract by accepting employment with a competing professional indoor football league, he will pay Team the sum of five thousand dollars ($5,000) . . . .
18. Compensation: . . . . Team will pay Player a weekly compensation of $200 . . . per game played. In addition, the Team will pay the Player [a] (win bonus) for each game played and won . . . [of] $50.00 . . . . (Contract)
4) Mr. Ward played five or six games for Arctic Predators, but was only paid for one game-about $250.00. (Ward). 5) Arctic Predators ceased operations in the summer of 2010 when the players had not been paid for several games. (Ward). Mr. Ward did not receive a W-2 from Arctic Predators for the wages he was paid. (Ward). 6) Mr. Ward did not file a claim with Wage and Hour Administration for his unpaid wages because he was not aware he could do so. He was more concerned about the unpaid medical bills, both in this case and in another claim he made against Arctic Predators (Case No. 201020600) than he was about the unpaid wages. (Ward). 7) Dr. Daniel Larson, owner of Larson Chiropractic, served as a volunteer providing medical assistance at Arctic Predator games. (Claim, January 28, 2011; Schwaderer). 8) On May 8, 2010, Mr. Ward was injured during a football game when he was tackled, twisting his left knee as he landed. (Claim, January 28, 2011). Dr. Larson treated Mr. Ward on the sidelines. (Ward). 9) On May 10, 2010, Mr. Ward went to Larson Chiropractic for further treatment. He was diagnosed with a "left knee sprain/strain" from the" work-related accident on May 8, 2010." (Larson Chiropractic Initial Report, May 10, 2010). Larson Chiropractic also treated Mr. Ward on May 11, 12, and 13, 2010. (Larson Chiropractic Chart Notes). 10) On May 10, 2010, Larson Chiropractic staff called Mr. Deemer to request information on Arctic Predators' workers' compensation insurer. Mr. Deemer responded "that he would just pay the bill instead of submitting it to work comp. He mentioned something about saving claims for major injuries and didn't want this one to go against a number of allowed injuries . . . . I called Worker's Comp in Juneau and tried to find out who [the insurer] may be, but they were unable to find the Arctic Predators in their system." (Larson Chiropractic Patient Notes, May 10, 2010). 11) Arctic Predators had no workers' compensation insurance on May 8, 2010. (Alaska Workers' Compensation Database). 12) On June 8, 2010, Larson Chiropractic staff "sent a billing statement to Hans Deemer since we have failed to find any evidence of a worker's comp insurer." (Larson Chiropractic Patient Notes, June 8, 2010). 13) On January 28, 2011, Larson Chiropractic filed a Workers' Compensation Claim for $650.00 in medical costs naming Arctic Predators and Hans Deemer as the employer, and stating the reason for filing the claim was "to collect unpaid medical balance due to employer being uninsured." (Claim, January 28, 2011). The claim was deemed to be a claim against the Fund, and it was served on Arctic Predators and the Fund on February 4, 2011. (Record). 14) Larson Chiropractic filed a statement detailing the services and fees provided. (Statement of Account, June 8, 2010). 15) In its March 11, 2011 Answer, the Fund raised the defense that the relationship between Mr. Ward and Arctic Predators was not that of an employee/employer and noted that the preconditions for its liability under the Act had not yet been met. (Answer, March 11, 2011). Arctic Predators did not file an answer to Larson Chiropractic's claim. (Record). 16) At a prehearing conference on February 22, 2012, the hearing on Larson Chiropractic's claim was set for April 11, 2012. Arctic Predators did not attend the prehearing, but the prehearing conference summary was served on the parties, including Arctic Predators, on February 23, 2012. (Prehearing Conference Summary, February 22, 2012; Record). 17) Notice of the April 11, 2012 hearing was sent to all parties on March 12, 2012. The notice was sent to Arctic Predators by both certified and regular mail. (Hearing Notice, March 12, 2012). The notice sent to Arctic Predators by certified mail was...

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