12-0090. PETER M.JEWELL, Employee, Applicant, v. TREVOR HILL, Uninsured Employer, and WORKERS' COMPENSATION BENEFITS GUARANTY FUND, Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0090. PETER M.JEWELL, Employee, Applicant, v. TREVOR HILL, Uninsured Employer, and WORKERS' COMPENSATION BENEFITS GUARANTY FUND, Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512 PETER M.JEWELL, Employee, Applicant, V. TREVOR HILL, Uninsured Employer, and WORKERS' COMPENSATION BENEFITS GUARANTY FUND, Defendants.AWCB Case No. 200720851AWCB Decision No. 12-0090Filed with AWCB Juneau, Alaska On May 23, 2012FINAL DECISION AND ORDERPeter Jewell's (Applicant) September 17, 2009, workers' compensation claim (WCC) was heard on April 10, 2012, in Juneau, Alaska. Applicant appeared, represented himself, and testified. Trevor Hill (Hill), who was uninsured for work-related injuries at the time of this injury, appeared telephonically, represented himself and testified. Administrator Velma Thomas appeared, testified, and represented the Alaska Worker's Compensation Benefits Guaranty Fund (the Fund). Adjuster Joanne Pride appeared telephonically, testified, and also represented the Fund. The record remained open until May 10, 2012, to allow Applicant to file additional medical records. Applicant did not file any additional medical records. The record closed on May 22, 2012, after further deliberation. ISSUES Applicant contends he was Hill's employee when injured on September 24, 2007. Hill contends Applicant was not his employee at the time of any injury. Rather, he contends Applicant was a co-worker. The Fund has not taken a position whether Applicant was Hill's employee on the day he was injured. 1)On September 24, 2007, was Applicant an "employee" employed by Hill, an "employer," under AS 23.30.395(19)-(20), and the "relative nature of the work test," as codified in 8 AAC 45.890? Applicant seeks past and ongoing medical treatment and related transportation costs for his left lower extremity, which he contends he injured while working for Hill. Other than disputing Applicant was Hill's employee, Hill did not submit any evidence contending Applicant's need for medical care and related transportation costs were unrelated to his September 24, 2007 injury. The Fund has not taken a position on this issue. 2)Is Applicant entitled to past and continuing left lower extremity medical benefits and related transportation costs? Applicant also seeks temporary total disability (TTD). Other than disputing Applicant was Hill's employee, Hill did not submit any evidence contending Applicant's disability was unrelated to his September 24, 2007 injury. The Fund has not taken a position on this issue. 3)Is Applicant entitled to an award of TTD from September 24, 2007, to April 1, 2008? Applicant seeks permanent partial impairment benefits (PPI). Other than disputing Applicant was Hill's employee, Hill did not submit any evidence contending Applicant's permanent impairment was unrelated to his September 24, 2007 injury. The Fund has not taken a position on this issue. 4)Is Applicant entitled to an award of PPI? Applicant seeks interest on all benefits. Other than disputing Applicant was Hill's employee, Hill did not submit any evidence contending Applicant was not entitled to interest. The Fund has not taken a position on this issue. 5)Is Applicant entitled to interest? FINDINGS OF FACT A review of the relevant record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) In August 2007, Applicant began working for Hill. (Applicant; Hill). 2) On September 24, 2007, Applicant was injured while working for Hill on a project to build an airplane hangar (Hangar Project) for Alaska State Trooper Andy Savland in Hoonah, Alaska. Applicant was injured when slipped on the roof of the airplane hangar and fell to the ground. (Report of Injury, July 13, 2009; Applicant; Hill). 3) Applicant never had contact with Andy Savland regarding Applicant's work on the Hangar Project, or discussed with him how much Applicant would be paid or Applicant's work schedule. Applicant directed all communication regarding the Hangar Project to Hill. For example, Hill negotiated Applicant's pay with Savland and informed Applicant how much Applicant would be paid for his work. Hill contends Savland directed the work, with Hill merely relaying Savland's directions to Applicant, but also contends Applicant and Hill jointly directed the work, conferring each morning on how to accomplish the assigned work. Hill's contradictory statements weaken his credibility and are given little weight. (Applicant; Hill; Record). 4) Hill approached Applicant to work on the Hangar Project based on Applicant's professional reputation. Hill explained to Applicant Hill was working on the Hangar Project and hired Applicant to help construct the hangar. At the time of Applicant's injury, Hill and Applicant were both carpenters. Hill and Applicant performed the same type of work on the Hangar Project. Their work included all duties required to complete construction of the Hangar Project, such as building or installing concrete forms, beams, trusses, siding and roofing. Performing construction services is an integral part of owning and operating a construction business. After Applicant was injured, Hill performed the services Applicant would have performed. (Applicant; Hill). 5) Approximately three weeks into the Hangar Project, Hill hired Applicant to help Hill complete a kitchen remodel project Hill currently was working on for Jim Voeler. The Voeler project involved putting stainless laminate on a refrigerator and trim on the floor. (Applicant). 6) Applicant was one of two workers hired by Hill to complete the Hangar Project. The other worker was Casey Yakovich, who worked as a groundskeeper/expediter. Yakovich's duties included fetching items needed for the job site and making sure the ground was clear of debris. (Applicant). 7) Hill paid Applicant $18.00 per hour for the first week and $22.00 per hour for services rendered after the first week. (Applicant). 8) Hill kept track of Applicant's hours and paid Applicant weekly by check from Hill's personal checking account. Hill also paid Casey Yakovich for his work on the project by personal check from Hill's personal checking account. (Applicant; Hill). 9) Applicant received five checks before he was injured, ranging from $800 to $1,000 each. (Applicant). 10) Applicant's work for Hill involved relatively little skill or experience. Applicant did not have any formal building or carpentry training and learned the skill from his on-the-job experience. Applicant's work for Hill required no special education, training, or particular experience. (Applicant). 11) Applicant has never owned or operated his own business. Applicant did not have a business license or a workers' compensation policy on himself. (Applicant). 12) Hill told Applicant there would be additional work for Applicant after the Hangar Project, arising from additional construction projects on which Hill had agreed to work, including building projects for Grant Coutlee and Ray Skaflestad. Applicant would have continued working for Hill on additional projects on which Hill had planned to work, but for his injury. (Applicant). 13) Applicant's job just prior to working for Hill was working for Trucano Construction building a city float. Applicant's wage for Trucano Construction was $31.90 an hour. 14) On September 24, 2007, Applicant was medevacked to Bartlett Regional Hospital. (Guardian Flight, Inc. Invoice, December 8, 2010; Bartlett Regional Hospital Emergency Department Note, September 24, 2007; Bartlett Regional Hospital Transfer Summary, September 24, 2007). 15)On September 24, 2007, hospital staff evaluated Applicant and assessed an open left tib-fib fracture and a left anterior chest wall contusion. (Bartlett Regional Hospital Emergency Department Note, September 24, 2007; Bartlett Regional Hospital Transfer Summary, September 24, 2007). 16) On September 24, 2007, Theresa Shanley, M.D., interpreted x-rays of Applicant's chest, pelvis, cervical spine and left ankle. The x-rays showed a comminuted fracture of the distal tibia and fibula with lateral angulation and apex of the fracture approximately 4 cm proximal to the tibiotalar joint with slight deformity of the joint surface. (Radiologist Report, Dr. Shanley, September 24, 2007). 17) On September 24, 2007, Bartlett medevacked Applicant to Alaska Native Medical Center in Anchorage for further treatment. (Bartlett Regional Hospital Authorization for Transfer, September 24, 2007; Alaska Native Medical Center Discharge Summary, September 28, 2007). 18) On September 25, 2007, Mark Tuttle, M.D., diagnosed a severely comminuted intra-articular distal tibia fracture, and performed irrigation, drainage and open reduction internal fixation of Applicant's left tibia-fibula fracture. Dr. Tuttle stated Applicant would need to be non weight bearing on his left lower extremity for three months. (Alaska Native Medical Center Discharge Summary, September 28, 2007; Operative Report, Dr. Tuttle, September 26, 2007). 19) On December 6, 2007, Mark Peterson, M.D., treated Applicant for tibiofibular surgery follow up. Applicant reported no major complaints other than a little bit of swelling, but not a lot of pain. Applicant was using a CamWalker boot and crutches. (Chart Note, Dr. Peterson, December 6, 2007). 20) On January 14, 2008, Applicant reported a little swelling in the foot and occasional slight pain over the lateral medial malleolus...