2007-055. James A. Sullivan Inc. and American Interstate Insurance Co. Appellants vs. Timothy K. Hogan Appellee.

• Case Date: August 30, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-055. James A. Sullivan Inc. and American Interstate Insurance Co. Appellants vs. Timothy K. Hogan Appellee Alaska Workers' Compensation Appeals CommissionJames A. Sullivan, Inc., and American Interstate Insurance Co., Appellants, vs. Timothy K. Hogan, Appellee.Decision No. 055 August 30, 2007AWCAC Appeal No. 06-035 AWCB Decision No. 06-0289 AWCB Case No. 200502910Final Decision and Order Appeal from Alaska Workers' Compensation Board Decision No. 06-0289 issued October 27, 2006, by the southcentral panel at Anchorage, Darryl Jacquot, Designated Chair, and Steve Hagedorn, Member for Industry. Appearances: Robin Jagar Gabbert, Russell, Wagg, Gabbert and Budzinski, for appellants James A. Sullivan, Inc. and American Interstate Insurance Co. Timothy K. Hogan, pro se, appellee.Commissioners: Kristin Knudsen,Jim Robison,and Philip Ulmer.This decision has been edtted to conform to technical standards for publication. By:Kristin Knudsen, Chair.(fn1) James A. Sullivan, Inc., appeals the board's decision affirming the decision to grant Timothy K. Hogan an eligibility evaluation for reemployment benefits under the provisions of AS 23.30.041(c). Sullivan presents two allegations of board error. Sullivan claims the board erred when it used a deferential standard of review because the board considered new evidence not before the reemployment benefits administrator's designee(fn2) in deciding appellant's petition to the board. Sullivan argues that the board should have instead reviewed the matter de novo. Sullivan also contends that the reemployment benefits administrator erred when she referred Hogan for an eligibility evaluation. It argues that the administrator and the board had no medical evidence upon which to base a finding that Hogan's compensable work injury alone led to an inability to work in his employment. Our review of the record convinces this panel that the board had sufficient evidence in the record to support a determination that Hogan is entitled to a reemployment eligibility evaluation. We therefore affirm the board's decision. Factual background and board proceedings.(fn3) Hogan injured his left knee on March 1, 2005 while loading an insulation blowing machine onto a truck at a work site.(fn4) Hogan's treating physician, Dr. Charles Kase, diagnosed Hogan with a large bucket handle tear of the left medial meniscus. Dr. Kase performed meniscus repair surgery on March 18, 2005.(fn5) Hogan received post-surgery physical therapy. Shortly thereafter, on or about June 6, 2005, Dr. Kase recommended that Hogan undergo additional surgery to repair the anterior cruciate ligament (ACL) due to continued left knee complaints by Hogan.(fn6) This recommendation arose out of observations of Hogan's knee made by Dr. Kase during the meniscus surgery.(fn7) During that surgery, Dr. Kase observed an old ACL injury as well as grade 3 chrondromalacia in the knee. Dr. Kase recommended reconstructive surgery, but it was not performed.(fn8) On August 9, 2005 Dr. John Thompson performed an employer's independent medical examination of Hogan. On the date of the examination, Dr. Thompson reported that Hogan was medically stable. Dr. Thompson opined that Hogan had a one percent permanent partial impairment rating. That impairment rating, according to Dr. Thompson, was due to the pre-existing injury to Hogan's left ACL.(fn9) In January 2006, a second independent medical evaluation was conducted by Dr. Charles Brooks. Dr. Brooks concurred with Dr. Thompson (and with Dr. Kase) that the ACL tear was an old injury that pre-existed Hogan's injury of his left medial meniscus on March 1, 2005.(fn10) Both Dr. Thompson and Dr. Brooks advised work restrictions.(fn11) Both physicians determined that recommended work limitations were the result of the ACL injury and of articular degenerative changes to the knee existing before the work accident.(fn12) On September 6, 2005, Hogan requested reemployment benefits.(fn13) He made this request after the 90-day time limit of AS 23.30.041(c). Hogan claimed that the reason he made the request after the time limit was that he did not know that he would not be able to return to...