2006-022. Anchorage School District Appellant vs. Gerald H. Delkettie Appellee.

Case DateOctober 19, 2006
CourtAlaska
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

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT