2009-118. Calvin L. McGahuey Appellant vs. Whitestone Logging Inc. and Alaska Timber Insurance Exchange Appellees.

• Case Date: October 23, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-118. Calvin L. McGahuey Appellant vs. Whitestone Logging Inc. and Alaska Timber Insurance Exchange Appellees Alaska Workers' Compensation Appeals Commission Calvin L. McGahuey, Appellant, vs. Whitestone Logging, Inc., and Alaska Timber Insurance Exchange, Appellees.Decision No. 118 October 23, 2009AWCAC Appeal No. 08-022 AWCB Decision No. 08-0108 AWCB Case No. 200507894 Final Decision Appeal from Alaska Workers Workers' Compensation Board Decision No. 08-108, issued at Anchorage, Alaska, on June 11, 2008, by southcentral panel members Patricia Vollendorf, Member for Labor, and Robert C. Weel, Member for Industry.(fn1) Appearances: Calvin L. McGahuey, pro se, appellant, appeared telephonically. Patricia Zobel, Delisio, Moran, Geraghty and Zobel, PC, for appellees, Whitestone Logging, Inc., and Alaska Timber Insurance Exchange. Commission proceedings: Appeal filed on July 23, 2008. Appellant ordered to remedy default on August 29, 2008. Appellant's request to waive fees granted September 26, 2008. Appellant ordered to remedy default on November 25, 2008. Appellant's request for extension of time to file reply brief granted on January 28, 2009. Appellant's motion to stay commission proceedings granted on March 11, 2009.(fn2) Oral argument on appeal presented July 30, 2009.(fn3)Appeal Commissioners: David W. Richards, Stephen T. Hagedorn, Kristin Knudsen.By: Stephen T. Hagedorn, Appeals Commissioner. Calvin McGahuey, who worked for Whitestone Logging, appeals the board's decision to deny his claim for failure to give timely notice pursuant to AS 23.30.100. He claims that his late filing of a written injury report should be excused under AS 23.30.100(d)(1) because his employer was advised of his injuries shortly after the fight with co-workers that caused the injury. He also argues that the board denied him due process by failing to help him locate his witness, Joe Bovee, and that the board erred in finding that even if his claim had been timely, it was not work-related. The appellees, Whitestone Logging, Inc., and Alaska Timber Insurance Exchange,(fn4) contend the board properly dismissed McGahuey's claims based on his failure to file a timely notice of his injuries. Whitestone relies on evidence that it had no knowledge that McGahuey injured his low back, hip, and neck during the fight, and that it was prejudiced by the delay in notice. Whitestone also argues that the board properly decided McGahuey's claim was not compensable. Finally, Whitestone argues that it satisfied its discovery obligations to the appellant and the board owed no further duty to locate the appellant's witness for him. The parties' contentions require the commission to decide whether substantial evidence supports the board's decision to dismiss McGahuey's claim as time-barred and not work-related. We conclude that the board had substantial evidence on which to base its findings that McGahuey had failed to report the injuries to Whitestone Logging or Whitestone's agent. We conclude the board erred by assessing credibility before determining if the statutory presumptions attached to McGahuey's claim, but we find the errors are harmless because the board completed its analysis as if the presumptions had been raised. We conclude the board had substantial evidence in the record as a whole to support its findings that McGahuey's claim was not work-related. Finally, we conclude that the board was not obligated to locate appellant's witness. Therefore, the board's decision is affirmed. 1. Factual background. Calvin McGahuey worked for Whitestone Logging, Inc., on Afognak Island starting in February 2004.(fn5) McGahuey and two other employees had a fistfight in March 2004.(fn6) McGahuey testified that he was attacked and pushed against a table in the bunkhouse, injuring his back.(fn7) He also testified that he did further injury to his left ear, which was already infected, and that he hurt his hip when he jumped out of a second-story window to escape the assault.(fn8) He testified that he talked to his supervisor, John Rivers, the next day and told him about his injuries and that he was dissuaded from filing an injury report because Rivers was short-handed.(fn9) He also testified he reported the fight to Mike Knudsen, a supervisor.(fn10) He testified that he was limping after the fight but could not get off the island to see a doctor for two weeks because of fog.(fn11) He testified that when he saw a doctor in Kodiak, he told him about the fight.(fn12) McGahuey testified that he informed Joe Bovee that he was hurt,(fn13) but he claimed he "had no idea" where to locate Bovee so he could be compelled to testify as his witness at his hearing.(fn14) McGahuey testified that he was directly supervised by Bovee.(fn15) John Rivers testified that he investigated the bunkhouse fight shortly after it occurred.(fn16) He testified that he discussed the fight with McGahuey the night it happened or the next morning and that McGahuey did not report any injuries.(fn17) He testified that he did not notice a limp or any other injury besides "[h]is face was red in places so it looked like he had been involved in a fist fight but nothing real severe."(fn18) At the time, John Rivers was the only qualified EMT (emergency medical technician) in camp.(fn19) Rivers testified that Joe Bovee was a contract compliance officer for another company, and not an employee of Whitestone Logging.(fn20) He testified that Curt Warder was the "sort yard manager," McGahuey's supervisor.(fn21) Mike Knudsen was the "side rod," Warner's supervisor.(fn22) Bovee, he testified, was not "in the chain of command for Whitestone."(fn23) Janelle Lepschat, who was an office clerk at the Afognak camp at the time the fight occurred, testified that McGahuey never told her he was hurt because of the fight and she was never asked to prepare a written injury report for McGahuey as a result of the fight.(fn24) Similarly, Ronald Johnson, the camp manager at the time the fight occurred, never heard from McGahuey or anyone else that McGahuey was injured as a result of the fight and never noticed McGahuey limping, and he testified that McGahuey did not miss any work as a result of the fight.(fn25) Johnson testified that Joe Bovee was not the "overseer" of the log pond and denied he was a supervisor.(fn26) Lastly, Pamela Scott, the insurer's claims department manager,(fn27) testified that McGahuey did not report any injuries as a result of the March 2004 fight until April 6, 2005, and that the insurer did not receive this report of injury until June 9, 2005.(fn28) McGahuey saw a doctor in Kodiak for complaints about his ear pain approximately two months after the fight.(fn29) The doctor removed impacted earwax, noting that using earplugs at the jobsite may have caused it.(fn30) The doctor's report makes no mention of McGahuey injuring his ear during a fight or injuring his hip or back.(fn31) McGahuey's employment with Whitestone Logging ended in June 2004.(fn32) More than a month later, McGahuey reported the ear injury.(fn33) McGahuey made no mention of the fight but stated that the ear problem was due to exposure to grease and leaky exhaust on a boom boat, and caused by using earplugs instead of headphones.(fn34) McGahuey completed a Report of Occupational Injury or Illness relating to the March 2004 fight and dated it April 6, 2005.(fn35) Whitestone Logging completed the form May 20, 2005, and the Alaska Workers' Compensation Board stamped it "received" on June 8, 2005.(fn36) The form reported that he injured his right hip and middle lower back, and left ear as a result of the March 2004 altercation.(fn37) In October 2005, McGahuey began working with a new employer in California, Simpson Timber Company. Prior to beginning work for Simpson, he certified that he did not have a medical history of persistent back pain or a significant back injury.(fn38) He also demonstrated that he was able to lift 100 pounds and walk 20 feet while carrying this weight.(fn39) On December 7, 2005, he experienced back pain and went to the Sutter Coast Hospital emergency room.(fn40) According to the doctor's notes, McGahuey reported that he had a "history of low back pain since a work-related injury in 2004" that occurred when "he was attacked at work by a man who pushed him into a table which injured him at the low back right iliac area."(fn41) He also stated that he had been "doing very heavy work in the past week."(fn42) He was diagnosed with a lumbar strain with radiculopathy.(fn43) He also sought medical care from Chiropractor Tracy Cole. Dr. Cole's notes reflect that McGahuey identified his work with Simpson Timber Company as aggravating his prior back injury suffered in the fight at Whitestone Logging.(fn44) Dr. Cole released him to return to work on December 12, 2005.(fn45) McGahuey quit working for Simpson Timber on January 8, 2006.(fn46) McGahuey then filed notice of a workers' compensation injury at Simpson Timber;(fn47) he later filed a workers' compensation claim against Simpson Timber under California law.(fn48) Although he received no medical treatment for injuries around the time of the fight, two years later, in a March 2006 MRI (Magnetic Resonance Imaging) scan, his lumbar spine and his right hip were found to be normal.(fn49) 2. Board proceedings. Whitestone Logging controverted the reported injury on the grounds that it was reported late and that it...