2007-054. Calvin L. McGahuey Appellant vs. Whitestone Logging Inc. and Alaska Timber Insurance Exchange Appellees.

• Case Date: August 28, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-054. Calvin L. McGahuey Appellant vs. Whitestone Logging Inc. and Alaska Timber Insurance Exchange Appellees Alaska Workers' Compensation Appeals CommissionCalvin L. McGahuey, Appellant, vs. Whitestone Logging, Inc., and Alaska Timber Insurance Exchange, Appellees.Decision No. 054August 28, 2007AWCAC Appeal No. 06-041 AWCB Decision No. 06-0300 AWCB Case No. 200507894Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 06-0300 issued November 9, 2006, by the southcentral panel at Anchorage, Rosemary Foster, Chairman, Robert C. Weel, Member for Industry, and Scott Bridges, Member for Labor. Appearances: Calvin L. McGahuey, pro se, appellant. Patricia L. Zobel, DeLisio, Moran, Geraghty and Zobel, P.C., for appellees Whitestone Logging, Inc., and Alaska Timber Insurance Exchange.Commissioners: John Giuchici,Stephen T. Hagedorn,and Kristin Knudsen.This decision has been edtted to conform to technical standards for publication. By: Kristin Knudsen, Chair. Calvin McGahuey appeals the board's decision dismissing his claim because he failed to provide written notice of an injury under AS 23.30.100. Because the board's findings of fact and summary application of AS 23.30.100 are insufficient to fairly review the board's decision, we remand for rehearing and further findings. Factual background and board proceedings. We summarize here the evidence that was presented to the workers' compensation board. Calvin McGahuey was employed by Whitestone Logging on Afognak Island for several months in the first half of 2004. After he ended his employment, he reported an injury to his ears, which were treated in May 2004.(fn1) In April 2005, he completed an intake sheet referring to an injury to his lower back and hip "after fight on the job."(fn2) He completed a Report of Occupational Injury or Illness which he dated April 6, 2005.(fn3) His employer completed the form May 20, 2005 and it was stamped received by the board on June 8, 2005.(fn4) The employer's insurer filed a controversion notice June 20, 2005.(fn5) Meanwhile, McGahuey went to work for Simpson Timber Co. in California, where he "reinjured the injury."(fn6) In April 2006 he filed a California workers' compensation claim against Simpson Timber, claiming he had injured his right hip and lower back in that employment.(fn7) On February 13, 2006, McGahuey filed a workers' compensation claim with the Alaska Workers' Compensation Board.(fn8) The claim sought $10,000 in medical care and determination of an "unfair or frivolous controvert." The claim was controverted by the employer's insurer on March 8, 2006.(fn9) An amended controversion, filed May 30, 2006, added the allegation that the treatment McGahuey sought was related to the Simpson Timber injury.(fn10) In a prehearing conference, McGahuey amended his claim to include temporary total disability compensation.(fn11) The parties agreed to a hearing on McGahuey's claim on October 11, 2006.(fn12) In the hearing, McGahuey testified that a coworker named Jason, nicknamed Ace, attacked him while he was in bed,(fn13) "clothes lined him,"(fn14) and crushed his back against a table.(fn15) McGahuey jumped out of a 14-foot window, injuring his hip.(fn16) He went to the cook, then to Mike Knudsen's house, and spent the night there.(fn17) At the end of the next day of work, he told the supervisor, John, about the fight and his injuries.(fn18) He testified that John told him he needed Jason, and asked him if he and Jason couldn't get along.(fn19) He testified he was limping after the fight.(fn20) He said he "tried to get to a doctor for two weeks but we were fogged in," but when he did see a doctor he told him about the altercation.(fn21) McGahuey testified that "John Rivers never went by procedure and filed a report on my injuries."(fn22) Pamela Scott is department manager for Whitestone's insurer.(fn23) She was the only witness for the employer. She relied on a statement by John Rivers, the "HR person for Whitestone" for her testimony that the employer had no knowledge of an injury.(fn24) She testified "we couldn't question the other people because they are no longer there."(fn25) According to Scott's reading of Rivers' statement, he was told of the fight at the time,(fn26) but she emphasized there was no record of treatment for back pain until after McGahuey's employment by Simpson Timber.(fn27) She claimed that McGahuey did not file "a Whitestone alleged injury until 4/6 of 06, after he contacted Simpson Timber on 4/3 and they said that he could not file a claim because he had been terminated."(fn28) The board, after summarizing the evidence and quoting AS 23.30.100, made the following decision:

The Board finds that the employee unreasonably delayed filing a report of injury. The fighting incident where the injury occurred took place in March 2004 but the employee did not report for treatment of any back condition until

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