2008-089. Karl B. Cameron Appellant vs. TAB Electric and Liberty Northwest Insurance Appellees.

• Case Date: September 23, 2008
• Court: Alaska

Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-089. Karl B. Cameron Appellant vs. TAB Electric and Liberty Northwest Insurance Appellees Alaska Workers' Compensation Appeals Commission Karl B. Cameron, Appellant, vs. TAB Electric and Liberty Northwest Insurance, Appellees.Decision No. 089 September 23, 2008AWCAC Appeal Nos. 07-022 and 07-038 AWCB Decision Nos. 07-009 1and 07-0276 AWCB Case No. 200515003Final Decision Appeal from Alaska Workers' Compensation Board Decisions No. 07-0091, issued on April 19, 2007, by southcentral panel members John Abshire, Member for Labor, and Linda Hutchings, Member for Industry, and Darryl Jacquot, Chair, and No. 07-0276, issued on September 10, 2007, by southcentral panel members Mark Crutchfield, Member for Labor, Janet Waldron, Member for Industry and Darryl Jacquot, Chair. Appearances: Karl B. Cameron, pro se, appellant. Jeffrey Holloway, Holmes Weddle and Barcott for appellees TAB Electric and Liberty Northwest Insurance. Commission proceedings: Appeal filed May 18, 2007, assigned Appeal No. 07-022. Appellee's motion to stay board hearing denied, order staying appeal proceedings issued June 28, 2007. Appeal filed October 9, 2007, assigned Appeal No. 07-038. Appeal proceedings resumed and the appeals consolidated by order on November 1, 2007. Appellant's request for fee waiver and transcript at commission expense granted November 1, 2007. Appellant's motion to extend time to file brief granted January 23, 2008; appellant's request to reschedule oral argument granted April 23, 2008. Oral Argument on appeal presented June 25, 2008.Commissioners: David W. Richards,(fn1) Philip Ulmer,Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Philip Ulmer, Appeals Commissioner, and Kristin Knudsen, Chair. Karl B. Cameron appeals the board's decisions denying and dismissing his claims for temporary total disability compensation(fn2) and permanent total disability compensation benefits.(fn3) Cameron asserts the board abused its discretion by denying admission of medical evidence that he believed to be substantial from the Alaska Native Medical Center at his second hearing.(fn4) He argues that the board erred by failing to attach the presumption of compensability to his claim for permanent total disability compensation and that he would be entitled to temporary total disability compensation during vocational rehabilitation. The appellees assert the board's decisions were supported by substantial evidence and the denial of evidence at the July 24, 2007, board hearing was proper and supported by regulation. This appeal requires the commission to decide if (1) the board abused its discretion by denying admission at hearing of the appellant's additional medical records, presented and offered at time of hearing and not previously disclosed, (2) Cameron could receive temporary total disability compensation while medically stable, and (3) the board applied the three-part presumption analysis correctly to the permanent total disability claim. The commission concludes the board did not abuse its discretion by refusing admission of appellant's medical records. Cameron concedes that the physicians agree that he is medically stable; the commission determines his argument that he is entitled to temporary total disability compensation is without merit. The commission concludes that the board determination that the employee failed to raise a presumption of compensability as to his claim for permanent total disability compensation is error. Therefore, the commission remands this case for further findings on the appellant's claim for permanent total disability compensation and otherwise affirms the board's decisions. 1. Factual background and board proceedings. In August 2005, Cameron fell as he entered a ditch in the course of his employment as an equipment operator for appellee, TAB Electric.(fn5) A right shoulder strain resulted and TAB Electric initiated temporary total disability (TTD) payments soon thereafter.(fn6) Cameron began treatment with Dr. Stephen Tower, who eventually performed surgery in an attempt to repair the shoulder.(fn7) After some recovery time, Dr. Tower and the employer's medical evaluator, Dr. Jensen, both approved Cameron's return to light-duty desk work.(fn8) During this time, Cameron was evaluated for eligibility for vocational reemployment benefits.(fn9) Dr. Tower approved Cameron's return to work as an insurance sales agent, a position Cameron had previously held.(fn10) The vocational reemployment specialist recommended that he was not eligible because there was an adequate labor market for insurance sales agents.(fn11) The administrator determined that Cameron was not eligible for vocational reemployment benefits on April 17, 2006.(fn12) Cameron did not appeal the administrator's decision. After some deterioration of the shoulder condition, Cameron underwent a second surgery on his right shoulder.(fn13) TAB Electric continued temporary total disability compensation payments.(fn14) Cameron was again released to full-time modified duty desk work by both Dr. Tower (June 2006)(fn15) and Dr. Jensen (August 30, 2006).(fn16) TAB Electric discontinued TTD benefits in August 2006 and initiated temporary partial disability (TPD) payments calculated on insurance agent wages.(fn17) TPD compensation was continued until Dr. Jensen declared Cameron was medically stable in January 2007.(fn18) Dr. Jensen also confirmed his earlier prediction of a permanent impairment of 17 percent of the whole man for the right shoulder injury.(fn19) TAB Electric reported it paid a lump sum of permanent partial impairment compensation of $30,090 on February 8, 2007.(fn20) Cameron filed a claim for TTD compensation on October 25, 2006.(fn21) He wrote that Dr. Tower had not deemed him to be medically stable, and, although Dr. Tower had released him to light duty work, his employer had not offered him any work.(fn22) In February 2007, Dr. Tower wrote a letter regarding Cameron's ability to work as an insurance agent.(fn23) He wrote:

This is in reply to your letter of February 5, 2007, regarding whether or not Mr. Cameron had the physical capabilities to perform the job of insurance agent on a full-time basis from August 7, 2007 (sic). I do not believe he did have the physical capabilities, but that is not necessarily related completely to his right shoulder but, rather, to a combination of issues regarding his right shoulder and other issues. This includes a profound hearing loss and the fact that amplification equipment is not available, which is needed to allow him to carry on the phone conversations necessary for such a position.(fn24)

In the March 21, 2007, hearing on his TTD claim, Cameron presented a hearing brief, with attachments, he had not previously filed or served on the employer.(fn25) In his brief, Cameron attempted to challenge the reemployment administrator's decision and claim he was permanently totally disabled.(fn26) The board explained that the brief was late.(fn27) The board limited the issues it would decide to those listed in Cameron's October 24, 2006, TTD compensation claim.(fn28) Cameron argued to the board that

I never was allowed the rehabilitation program that's supposed to be allowed under workers' comp. law, that the woman that did take the rehabilitation plan erred in the fact that she didn't consider a man's income that he had generated over a 10-year period, . . . and whether that man was capable of making a living in the insurance industry . . . I think I should have been rehabilitated, I should have been allowed that claim. I was denied that claim, and now they're force - trying to force me to go to work, and they've gone to the doctor and asked him is this man capable of working in the insurance - and the doctor, of course, has said yes, and . . . I'm not capable of going to work in the insurance business. I can't get on the telephone. . . . And that's basically what my case is. I'm saying that I'm not - I haven't been afforded my rights under workers' comp. law.(fn29)

Cameron testified his hearing loss prevents him from carrying on telephone conversations without amplification equipment because his hearing aids do not work with the telephone.(fn30) Cameron owns such equipment.(fn31) He testified that he tried to put together his own agency, but he was not able to do so for financial reasons.(fn32) He agreed that his physician was "definitely of that opinion [that an insurance agency would be appropriate] if - as long as I had the proper hearing equipment."(fn33) Cameron did not contradict the eligibility evaluator's report that he could perform other occupations and he did not present evidence addressing the issue of medical stability. The hearing officer reminded him that the issue of his rehabilitation eligibility was not before the board, and that he had not appealed the administrator's decision.(fn34) The day after his hearing on his claim for TTD compensation benefits, March 22, 2007, Cameron filed a claim for permanent total disability (PTD) compensation based on injuries to both shoulders in the same August 16, 2005 accident.(fn35) The board issued a decision on April 19, 2007.(fn36) After discussing the evidence presented, including Cameron's testimony,(fn37) the board reviewed the application of the presumption of compensability to a claim for compensation.(fn38) The board then...