12-0095. JORGE L. DELGADO Employee v. TKB LLC Employer and REPUBLIC INDEMNITY COMPANY OF AMERICA Insurer.
Court | Alaska |
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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