2006-022. Anchorage School District Appellant vs. Gerald H. Delkettie Appellee.
Case Date | October 19, 2006 |
Court | Alaska |
Alaska Workers Compensation Decisions
2006.
Workers' Compensation Appeals Commission
2006-022.
Anchorage School District Appellant vs. Gerald H. Delkettie Appellee
Alaska Workers' Compensation Appeals
Commission Anchorage School
District, Appellant, vs. Gerald H. Delkettie, Appellee.Decision No. 022 October 19, 2006AWCAC Appeal No. 06-028 AWCB
Decision No. 06-0256 AWCB Case No. 200308431Memorandum Decision and Order
on Motion for Stay Pending Appeal
Memorandum Decision and Order on Motion for Stay Pending Appeal
from Alaska Workers' Compensation Board Decision No. 06-0256, issued September
20, 2006, by the Southcentral Panel at Anchorage, Rosemary Foster, Chair;
Robert S. Morigeau, Member for Labor; H. Bardie Scarbrough, Member for
Management.
Appearances: Deirdre D. Ford and Tregarrick R. Taylor, DeLisio,
Moran, Geraghty and Zobel, for appellant Anchorage School District; Robert A.
Rehbock, Rehbock and Rehbock, for appellee Gerald H. Delkettie.Commissioners: Marc Stemp,
Jim Robison, and Kristin Knudsen.By: Kristin Knudsen, Chair.
This motion for stay of enforcement of the board's September
20, 2006 decision(fn1) awarding certain benefits to Gerald Delkettie, a former
employee of the Anchorage School Board, was heard by the commission on October
11, 2006, upon notice provided in accordance with AS 23.30.128(c). The
commission gave the parties until 5:00 p.m. to submit up to 20 pages of
documentary evidence in support of their positions. The appellant submitted a
copy of a compensation report dated August 8, 2006, and portions of the reports
of Dr. Lipscomb, Dr. Brooks, and Dr. Lipon, discussed in the appellant's motion
for stay. The appellee submitted copies of notices describing bills and a copy
of a statement by a medical provider. No testimony was presented.
Anchorage School District (ASD) argued that it would suffer
irreparable harm if the board's award was paid and ASD could not recover the
compensation paid in the event of reversal of the board. ASD conceded that much
of the board's award had already been paid, and Delkettie agreed that a large
portion of the award had been paid. Delkettie also agreed that the reemployment
plan was complete.
ASD's arguments may be divided into three parts: those
concerning the shoulder injury; those concerning the mental illness claim; and,
the argument regarding the brief period of reemployment benefits. ASD argued
that the board both misconstrued and rejected compelling testimony in support
of its position that Delkettie's shoulder injury was not work related. ASD
argued the board did not put ASD's evidence on the scale to be weighed, but
rejected it without weighing it. Therefore, ASD argues, the board's decision
awarding additional permanent partial impairment compensation and medical
benefits for the shoulder injury is fatally flawed and there is a probability
of success on the merits. ASD argues that there is insufficient evidence to
support either a claim of a mental stress injury or a claim of aggravation of a
pre-existing mental illness by a physical injury. In particular, ASD argues
that the board's finding of extraordinary and unusual pressures and tensions in
Delkettie's employment in comparison to other workers similarly situated is not
supported by any evidence because the only evidence of other workers'
experience was that it was similar. ASD also argues that the board's reliance
on Dr. Early's report to find that the shoulder injury worsened a pre-existing
condition did not complete the circle because Dr. Early deferred to the opinion
of Dr. Lipon as to whether the shoulder injury was work-related. ASD argued
that because Dr. Lipon's opinion was that the shoulder injury was not
work-related, the board could not rely on Dr. Early's report as the basis for
its finding of work-relationship of a mental illness. ASD argued that the
board's determination that Delkettie is entitled to future permanent partial
impairment compensation for a mental illness was made in the absence of any
evidence of permanent impairment. Finally, ASD argued the board erred as a
matter of law in awarding reemployment benefits to the employee when he failed
to attend a planned class because the board improperly shifted the "burden of
error" to the employer.
Delkettie argues that the board did weigh the evidence and that
ASD's argument is an attempt to reweigh the evidence. ASD has the burden of
showing that there are serious and substantial questions whether the board made
an error of law, or that it had substantial evidence to support its decision to
award permanent impairment compensation for the shoulder injury. ASD has not
shown that the board's reasoning was flawed or that the evidence relied on by
the board is insufficient. Delkettie concedes for purposes of the stay that he
did not claim a mental illness caused by mental stress in the employment and
that the board went beyond the claim in finding his mental illness was
predominantly caused by the stress of his employment; however, this is not a
fatal flaw in the board's decision because the award of medical benefits is
supported by its finding that the shoulder injury aggravated the pre-existing
mental illness. The award of future compensation does not result in harm to the
employer as there has been no rating of permanent impairment due to mental
illness. Finally, Delkettie argues ASD again failed to demonstrate that the
board lacked substantial evidence to make an award of reemployment
benefits.
The...
To continue reading
Request your trial