12-0095. JORGE L. DELGADO Employee v. TKB LLC Employer and REPUBLIC INDEMNITY COMPANY OF AMERICA Insurer.
Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0095. JORGE L. DELGADO Employee v. TKB LLC Employer and REPUBLIC INDEMNITY COMPANY OF AMERICA Insurer ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512JORGE L. DELGADO, Employee, v. TKB, LLC, Employer, and REPUBLIC INDEMNITY COMPANY OF AMERICA, Insurer.AWCB Case No. 201019041AWCB Decision No. 12-0095Filed with AWCB Anchorage, Alaska on June 7, 2012FINAL DECISION AND ORDERTKB, LLC's (TKB) petition to dismiss Jorge L. Delgado's workers' compensation claim (WCC) was heard on May 23, 2012 at Anchorage, Alaska. Attorney Michelle Meshke represented TKB and its insurer. Republic Indemnity Company of America. Mr. Delgado appeared and testified. Ilona Branson and Victor Gonzalez appeared and testified for TKB. Ronald Thornton appeared for TKB, but did not testify. The record closed at the conclusion of the hearing on May 23, 2012. ISSUES At the beginning of the hearing, Mr. Delgado requested the hearing be continued. Mr. Delgado explained he was emotionally upset because of recent deaths in his family. TKB opposed a continuance explaining its witness were present and ready to testify and one of those witnesses had retired and was often unavailable. The continuance was denied orally. The denial is examined and memorialized below. 1) Was the denial of the continuance correct? TKB contends Mr. Delgado's claim should be dismissed because Mr. Delgado failed to sign and return releases for medical and other information requested by TKB. TKB also contends that Mr. Delgado's claim should be dismissed because he failed to notify it of his injury in a timely manner as required by the Act. Mr. Delgado contends he notified his foreman of the injury the day it occurred. 2) Should Mr. Delgado's claim be dismissed for failure to sign and return releases requested by TKB? 3) Should Mr. Delgado's claim be dismissed for failure to timely notify TKB of his injury? FINDINGS OF FACT The following findings of fact and factual conclusions are established by a preponderance of the evidence: 1) In October 2010, Mr. Delgado worked part-time for Anchorage Uptown Suites as a housekeeper and part-time for TKB, principally in housekeeping. His foreman at TKB was Victor Gonzalez. Although Mr. Gonzalez also worked for both employers, he was only Mr. Delgado's supervisor at TKB. (Timesheets, Gonzalez, Gonzalez interview). 2) Although Mr. Delgado usually performed janitorial and housekeeping work for TKB, on October 7, 2010, he was enlarging existing holes in 2x6 studs for plumbing. (Delgado, Gonzalez). In the Workers' Compensation Claim (WCC) he filed on February 24, 2011, Mr. Delgado stated he injured his right thumb, right shoulder, and lower back on that day when the drill got stuck. (WCC February 14, 2011). 3) Mr. Gonzalez testified that from three to five holes needed enlarging, and he showed Mr. Delgado how to enlarge the holes. (Gonzalez) Mr. Gonzalez left the job site after noon; when he returned at five o'clock, the job was done and Mr. Delgado had left. (Gonzalez, Gonzales interview). 4) Mr. Delgado testified that ten to twenty holes needed enlarging. At one point he testified the task took two days and at another point that it took a week. (Delgado) 5) Mr. Gonzales testified that on October 6, 2010, the day prior to the injury, Mr. Delgado had asked to leave work early to play soccer, and on the day of the injury Mr. Delgado had asked for an easier task because he had injured his back and shoulder playing soccer the night before. (Gonzalez). 6) Mr. Delgado testified Mr. Gonzalez was standing 10 yards away at the time of the injury and he promptly told him when it happened. He denied playing soccer the day before the injury, stating he had only been a coach. (Delgado). 7) Mr. Gonzales denies that Mr. Delgado told him of any injury, either on October 7th or during the remainder of the time Mr. Delgado was employed by TKB. (Gonzalez). Mr. Gonzalez spoke to Mr. Delgado the following day, October 8th, at Uptown Suites. Mr. Delgado asked if the holes were okay, but he did not say anything about being injured at work. (Gonzalez interview). 8) Mr. Delgado stated that the plumber, a man about 60 years old, had previously injured himself enlarging the holes. (Delgado). Mr. Gonzalez testified that no plumber had worked on the job; he had done the plumbing work himself. Mr. Gonzalez explained that a friend of his, who was about 60 years old, had accompanied him to the job site, but the friend was not an employee of TKB and had done no work. (Gonzalez). 9) TKB's normal procedure when notified of a work-related injury was to facilitate immediate medical attention for the injured employee. (Thornton affidavit). 10) On October 8 and 9, 2010, Mr. Delgado worked at Uptown Suites. Mr. Delgado did not mention any injury to his supervisor at Uptown Suites, Ilona Branson, on either of those days or during the remainder of the time he worked at Uptown Suites. Ms. Branson testified that Mr. Delgado was an avid soccer player and had turned down a promotion to night manager so he could continue to play. (Timesheets, Branson). 11) Following October 7, 2010, Mr. Delgado worked a total of 54 hours at Uptown Suites or TKB. (Timesheets). 12) After October 20, 2010, Mr. Delgado did no work for either TKB or Uptown Suites. He did not notify either employer that he was quitting, and he did not respond to telephone calls. (Branson, Gonzalez). 13) Mr. Delgado thought the injuries were only a minor sprain that would go away in a month or so. (Delgado). 14) At some point, Mr. Delgado moved to Washington State. On January 3, 2011, Mr. Delgado completed a "Voluntary Quit Statement" in connection with his application for unemployment benefits in Washington. The employer is listed as Anchorage Uptown Suites, but he lists "Victor" as his supervisor. The reason Mr. Delgado gave for leaving his employment was "not enough hrs." He also stated he did not leave because of personal or family illness or disability. (Voluntary Quit Statement, December 22, 2011). 15) On January 26, 2011, Mr. Delgado completed a Report of Occupational Injury or Illness, one hundred eleven days after the injury. (Report of Injury, January 26, 2011, observation). 16) On February 14, 2011, Mr. Delgado completed a WCC seeking temporary total disability (TTD), medical costs, and attorney fees and costs. (WCC, February 14, 2011). Mr. Delgado's WCC was filed on February 24, 2011. (Record). 17) Medical reports show Mr. Delgado sought treatment on February 22, April 20, April 28, and May 4, 2011. The board's file also includes a radiologic report dated December 16, 2010 for an individual other than Mr. Delgado, which was apparently inadvertently produced by one of the providers. (Record). 18) On February 22, 2011, Mr. Delgado went to the emergency department at Valley Medical Center in Renton, Washington for pain in his right thumb, right shoulder, and lower back. He explained the pain had developed over time from drilling holes through 2-inch plywood all day long, and the pain had persisted, but he "had not been seen at all." X-rays were negative for his right shoulder and right hand. (Valley Medical Center ED Report, Radiologic Consultation, February 22, 2011). 19) On April 20, 2011, Mr. Delgado went to Renton Occupational Health Services to follow up his emergency room visit. Mr. Delgado stated that he was injured on October 7, 2010 when he "was drilling 2 inch holes through 2 x 4s with an electric drill and the drill kept jamming. . . . He drilled 20 more holes . . . ." The report notes "When asked why it took almost 2 months to get in here, he said that he had a hard time getting an appointment here despite our records showing numerous openings." He was prescribed physical therapy and was released to work without restrictions...
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