12-0094. DONALD G. YOUNG Employee Respondent v. WESTERN CONSTRUCTION SERVICES INC Employer and LIBERTY NORTHWEST INSURANCE CO Insurer Petitioners.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0094. DONALD G. YOUNG Employee Respondent 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, Respondent, v. WESTERN CONSTRUCTION SERVICES INC, Employer, and LIBERTY NORTHWEST INSURANCE CO, Insurer, Petitioners.AWCB Decision No. 12-0094Filed with AWCB Fairbanks, Alaska on June 1, 2012AWCB Case No. 201010838INTERLOCUTORY DECISION AND ORDERWestern Construction Services' (Employer) December 20, 2011 and March 29, 2012 petitions 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 May, 10, 2012. Chancy Croft represented Employee; Rebecca Holdiman Miller represented Employer. Employee testified on his own behalf. The record closed at the hearing's conclusion on May 10, 2012. ISSUE Employer contends the RBA's eligibility determination should be modified because of a change of conditions. Employer specifically contends the changes of conditions are: 1) Employee does not have a permanent partial impairment (PPI) as his treating physician initially predicted, and 2) Employee can return to sedentary work at his job at the time of injury as a project director / manager. In response to Employee's contention Employer's 2012 job descriptions do not match the rehabilitation specialist's 2011 job descriptions, Employer contends the job descriptions have the same SCODRDOT number and are the same descriptions. In response to Employee's contention it never appealed the RBA determination, Employer contends it is not alleging an abuse of discretion, but rather a change in conditions. In response to Employee's contention he cannot return to his job at the time of injury as a project director / manager because it was not sedentary work, Employer cites Konecky v. Camco Wireline, Inc., 920 P.2d 277 (Alaska, 1996) to stand for the proposition the SCODRDOT job description, not Employee's description, is the controlling standard. Employee opposes modification on numerous grounds. Employee contends, although his physical condition has changed, it has worsened, not improved, because the insurance company will not provide medical treatment. Employee also contends Employer's 2012 job descriptions, which his treating physician approved, are different than the 2011 job descriptions submitted by his rehabilitation specialist, and contends his treating physician approved Employer's job descriptions in error. Employee contends his job at the time of injury as a project director / manager was not sedentary work so he cannot return to that job. Additionally, Employee opposes modification because Employer did not appeal the RBA's initial eligibility determination. Shall the RBA's June 15, 2011 eligibility determination, finding Employee eligible for reemployment benefits, be modified? 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. During the ten years previous to his injury, Employee had also worked as a contractor and architect. (Eligibility Evaluation Report, April 1, 2011). 3) On June 14, 2012, 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 to his job at the time of injury. (Ballard reports, September 22, 2010). 5) In January 2011, Employee changed his treating physician and began treating with James Chestnutt, M.D. (Chestnutt report, January 24, 2011). 6) On February 2, 2011, the RBA assigned Employee a rehabilitation specialist, Terry McCall, to conduct an eligibility evaluation. (RBA letter, February 2, 2011). 7) On February 12, 2011, Joseph Lynch, M.D. performed an Employer's Independent Medical Evaluation (EIME). Dr. Lynch found Employee medically stable and opined Employee did not have any PPI as a result of the work injury. Dr. Lynch opined Employee could not return to his regular job as a project manager on account of his non-work related arthritis of the knee. (Lynch report, February 12, 2011). 8) On March 1, 2011, Employer controverted all benefits after February 12, 2011 based on the EIME report of Dr. Lynch. (Controversion Notice, March 1, 2011). 9) On March 17, 2011, the rehabilitation specialist wrote Dr. Chestnutt to inquire whether Dr. Chestnutt predicted Employee would have a PPI rating greater than zero as a result of his work injury. The rehabilitation specialist also sent Dr. Chestnutt three job descriptions: project director (SCODRDOT Code 189.117-030)...