12-0082. DONALD G. YOUNG Employee Respondant v. WESTERN CONSTRUCTION SERVICES INC Employer and LIBERTY NORTHWEST INSURANCE CO Insurer Petitioners.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0082. DONALD G. YOUNG Employee Respondant v. WESTERN CONSTRUCTION SERVICES INC Employer and LIBERTY NORTHWEST INSURANCE CO Insurer Petitioners ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512DONALD G. YOUNG, Employee, Respondant, v. WESTERN CONSTRUCTION SERVICES INC, Employer, and LIBERTY NORTHWEST INSURANCE CO, Insurer, Petitioners.AWCB Decision No. 12-0082Filed with AWCB Fairbanks, Alaska on May 3, 2012AWCB Case No. 201010838INTERLOCUTORY DECISION AND ORDERWestern Constructions Services' (Employer) December 20, 2011 petition to modify the Reemployment Benefits Administrator's (RBA) June 15, 2011 eligibility determination, finding Donald Young (Employee) eligible for reemployment benefits, was heard in Fairbanks, Alaska on March 29, 2012. Chancy Croft represented Employee; Rebecca Holdiman Miller represented Employer. Upon commencement of the hearing, citing 8 AAC 45.150, Employee objected to the lack of specificity of Employer's petition, and requested a ruling limiting the scope of the hearing to matters set forth on the face of Employer's petition. The board panel chairman sustained Employee's objection and the hearing was continued to afford Employer an opportunity, should it so chose, to file an amended petition to include the new evidence and to afford Employee an opportunity to prepare his position with respect to the new evidence. This decision is to memorialize that ruling. The record closed at the hearing's conclusion on March 29, 2012. ISSUE Employer contends the RBA's determination was based on the opinion of Employee's treating physician, who predicted Employee would have a permanent partial impairment (PPI). Employer contends the RBA's determination should be modified because, according to Employer's independent medical evaluator (EIME), Employee is medically stable and no physician has assessed any permanent impairment. Employer also contends the RBA's determination should be modified because Employee's treating physician, James Chestnutt, M.D., approved numerous job descriptions within Employee's physical capacities after Employee had been found eligible. In response to Employee's objection, Employer contends it referred to Dr. Chestnutt's job description approvals in its hearing brief, and provided them to Employee in a medical summary in January 2012. Alternatively, Employer requests an opportunity to orally amend its petition to assert an alternative ground for modification of the RBA's determination based on new evidence Employee is able to return to work he has performed in the past ten years prior to his injury. Employee did not file a hearing brief, so his position on Employer's December 20, 2011 petition is immediately unknown. It is presumed Employee contends the RBA determination should not be modified. Upon commencement of the hearing, Employee requested a ruling limiting the scope of the hearing to matters set forth on the face of Employer's December 20, 2012 petition. Employee contends the hearing was set on that petition, and the petition does not mention Dr. Chestnutt's January 27, 2012 job description approvals. 1) Should Employee's request for a ruling limiting the scope of the hearing to matters set forth on the face of Employer's December 20, 2012 petition be granted? 2) Should the hearing be continued to allow Employer to file an amended petition asserting a new basis for modification of the RBA determination on eligibility? FINDINGS OF FACT A preponderance of the evidence in the record as a whole supports the following facts and factual conclusions: 1) On June 10, 2010, Employee was climbing up the wall of a foundation and fell over backwards while working for Employer, injuring his left hip, knee and lower back. (Report of Injury, August 10, 2010). 2) At the time of his injury, Employee was working for Employer as a project manager. Previously, Employee had also worked as a contractor and architect. (Eligibility Evaluation Report, April 1, 2011). 3) Employer began paying temporary total disability (TTD). (Compensation Reports, September 23, 2010; March 15, 2011; August 8, 2011). 4) In September 2010, Employee began treating with James Ballard, M.D., who opined Employee could return his job at the time of injury. (Ballard reports, September 22, 2010). 5) In January 2011, Employee began treating with James Chestnutt, M.D. (Chestnutt report, January 24, 2011). 6) On February 2, 2011, the RBA assigned Employee a rehabilitation specialist to conduct an eligibility evaluation. (RBA letter, February 2, 2011). 7) On February 12, 2011, Joseph Lynch, M.D. performed an EIME. Dr. Lynch found Employee medically...