12-0089. RANDY C. HESTER Employee v. TandM ENTERPRISES INC. d/b/a SPIRITS OF ALASKA Uninsured Employer And THE ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0089. RANDY C. HESTER Employee v. TandM ENTERPRISES INC. d/b/a SPIRITS OF ALASKA Uninsured Employer And THE ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512RAKDY C. HESTER, Employee, Applicant, v. TandM ENTERPRISES, INC., d/b/a SPIRITS OF ALASKA, Uninsured Employer, And THE ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND, Defendants.AWCB Decision No. 12-0089Filed with AWCB Anchorage, Alaska on May 22, 2012AWCB Case No. 200920443FINAL DECISION AND ORDERRandy C. Hester's (Employee) May 25, 2011 workers' compensation claim (WCC or claim) was heard on November 2, 2011, in Anchorage, Alaska. Attorney Michael Flanigan represented Employee who testified. Attorney Greg Oczkus represented Employer. Bridgett Thompson, president and 100% shareholder in Enterprises, Inc., d/b/a Spirits of Alaska (Employer) appeared and testified. Velma Thomas, Program Coordinator, State of Alaska, Department of Labor and Workforce Development, Workers' Compensation Division, and Joanne Pride, Claims Supervisor, Wilton Adjustment Service, appeared representing the Alaska Workers' Compensation Benefits Guaranty Fund (fund). Ms. Pride, Paul Starrish, Jr., and Karen Decker-Brown, ANP, testified. The record was held open sixty days for the parties to file evidence not in the record at the time of hearing but deemed necessary by the board to determine the issues before the board. Employee was directed to file the receipt book he maintained showing evidence of his earnings from odd jobs performed, any receipts for out of pockets expenses for medications, transportation, or other items related to the claim, and any medical records not filed with the board or generated within the sixty day period in which the record was held open. Employer was directed to make available to Employee's counsel all of the 2009 "day sheets" for inspection and review, to file evidence of any medical bills paid directly to providers, and any employer's medical examination records generated. At hearing Employer stipulated Employee was injured in the course and scope of his employment and agreed to pay for an MRI of Employee's abdomen/chest to determine, if possible, the source of continuing chest/thoracic pain. The record closed when the time passed for all parties to file post-hearing evidence, as directed at hearing, and upon further deliberation by the board on January 25, 2012. Upon the filing of petitions by Employee a prehearing was convened by the chair on February 23, 2012, at which it was determined the record needed to be reopened to allow Employer to file twelve day sheets which Employer was ordered to file at hearing and to allow each party to file any additional medical records in their possession due to miscommunication regarding what post-hearing diagnostic testing and evaluation had been performed. The hearing record was reopened for ten days and closed again when the board met to deliberate on March 6, 2012. ISSUES Employee contends he was hurt on the job working for Employer. He contends he was disabled as a result of his work-related injury and is entitled to temporary total disability (TTD) and/or temporary partial disability (TPD), past and future medical and related transportation costs, interest, penalties, partial permanent impairment (PPI), attorneys fees and costs, and he requests a finding Employer's controversion in fact was unfair or frivolous. Employee seeks an order awarding him benefits against Employer as supported by his testimony and medical records. Employer concedes Employee was injured in the course and scope of his employment, and is entitled to temporary total disability (TTD) from May 26, 2009 to August 25, 2009. Employer contends Employee's further requests for TTD and TPD are speculative and not supported by any documentation of wages earned making it difficult to determine a compensation rate in this case. Employer further contends Employee became medically stable when he returned to work for Employer, his limitations were accommodated, and Employee chose not to continue working and is not entitled to time loss benefits after that point. Employer also contends Employee lacks standing to seek interest and penalties on behalf of medical providers, and no medical providers are owed interest or penalties because Employer has not been billed for care as required by the Act. Employer contends Employee has not been rated for PPI so none is owed. Finally, Employer contends Employee's attorney's fees and costs are excessive and should be reduced. The fund contends Employee is not entitled to TTD benefits from the date of injury until August 24, 2009, because he received compensation in the form of rent from his landlord who is a second employer. The fund contends Employee is not entitled to TPD benefits after he returned to work on August 25, 2009, since the Employer offered work with accommodations and Employee chose not to continue working. The fund also contends the record does not contain enough information to accurately determine a compensation rate at which to pay any time loss benefits which may be owed, and that Employee's subjective explanation of income of $700 per month is too speculative to be the basis of his compensation. Finally, the fund contends medical benefits, including those for cervical pain, not reasonably related to the work injury are not compensable. 1) Is Employee's work injury the substantial cause of his left sided chest pain, broken ribs, neck, and left arm pain? 2) Is Employee entitled to an award of temporary total disability (TTD)? 3) Is Employee entitled to an award of temporary partial disability (TPD)? 4) If Employee is entitled to an award of TTD or TPD, what is his compensation rate? 5) Is Employee medically stable? If so, on what date was medical stability reached? 6) Is Employee entitled to transportation costs? 7) Is Employee entitled to an award of permanent partial impairment benefits? 8) Is Employee entitled to interest on any benefits awarded? 9) Is Employee entitled to a penalty? 10) Is Employee entitled to a finding of an unfair or frivolous controversion? 11) Is Employee entitled to reasonable attorney's fees and costs? FINDINGS OF FACT A review of the entire record establishes the following relevant facts and factual conclusions by a preponderance of the evidence: 1) The parties stipulated at hearing Employee was Employer's Employee and there was a legal "Employer/Employee" relationship between them on May 26, 2009, when Employee was injured in the course and scope of his employment. (Record; observations). 2) Employer, as an "Employer" using "Employee" labor, came under the Alaska Workers' Compensation Act on May 26, 2009, and failed to file evidence of compliance with the Act's requirement to insure its employees for work-related injuries. (Record; observations). 3) Employer had actual notice of Employee's May 26, 2009 injury within 24 hours of the injury. (Starrish; Thompson). 4) Employer never provided Employee with an injury report, never completed one, and never filed one with the board. (Hester; Thompson; record). 5) Employee was injured on May 26, 2009, at approximately 11:15 p.m., when he followed two shop lifters out of the store and was beaten by the two shop lifters and a third man in the alley/parking lot of the store. Employee was acting in the course and scope of his employment when he was injured. (Hester; Thompson; record). 6) Employee was seriously injured by the three men who knocked him to the ground and kicked him repeatedly. (Hester; Starrish; Anchorage Police Report). APD photos taken on the day of the attack show cuts and abrasions on the face, head and neck of Employee. (Disc of APD photos). 7) Employee declined medical treatment and ambulance transport to a hospital from paramedics on the scene for financial reasons, and completed his shift on the day of injury. (Hester; Starrish). 8) Employee's pain became severe enough that he sought treatment at the Providence Alaska Medical Center (PAMC) Emergency Room (ER) early the next morning, on May 27, 2009. Employee's chief complaints were chest pain and shortness of breath. He also had swelling along his neck and left axilla, and reported being hit in the head several times. Tim Silbaugh, MD, noted Employee was reluctant to seek medical care because he had no insurance and was "not on the payroll of the liquor store where he was working." A chest x-ray showed notable rib fractures at four through eight with presumed small pneumothorax. Employee was treated with morphine and Toradol for pain. Dr. Silbaugh recommended admission to the hospital to monitor the pneumothorax and for pain control, but Employee refused for "financial reasons," and agreed to return if his symptoms worsened. Employee was discharged against medical advice (AMA) with a refrerral to Jeffrey Sedlack, MD, of general surgery, and prescriptions for Ibuprofen and Percocet. (Dr. Silbaugh, PAMC ER note, 5/27/2009). 9) APD photos taken in follow up on May 27, 2009, show swelling of Employee's face, neck, shoulders, and back, as well as discoloration and bruising. (Disc of APD photos). 10) Employee returned to PAMC at approximately 2:30 a.m. on May 28, 2009, and was admitted with a diagnosis of traumatic pneumothorax, subcutaneous emphysema, and four left-side rib fractures. A chest tube was inserted to...