2010-129. Municipality of Anchorage and NovaPro Risk Solutions Appellants vs. Paul Mahe Appellee.

• Case Date: March 16, 2010
• Court: Alaska

Alaska Workers Compensation Decisions 2010. Workers' Compensation Appeals Commission 2010-129. Municipality of Anchorage and NovaPro Risk Solutions Appellants vs. Paul Mahe Appellee Alaska Workers' Compensation Appeals CommissionMunicipality of Anchorage and NovaPro Risk Solutions, Appellants, vs. Paul Mahe, Appellee.Decision No. 129 March 16, 2010AWCAC Appeal No. 09-015 AWCB Decision No. 09-0068 AWCB Case No. 200705818Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 09-0068, issued on April 7, 2009, by southcentral panel members Linda M. Cerro, Chair, Don Gray, Member for Industry, Howard A. Hansen, Member for Labor. Appearances: Erin K. Egan, Russell, Wagg, Gabbert and Budzinski, P.C., for appellants Municipality of Anchorage and NovaPro Risk Solutions. Robert A. Rehbock, Rehbock and Rehbock, for appellee Paul Mahe. Commission proceedings: Appeal filed April 20, 2009, with Motion for Stay. Opposition to Motion for Stay filed April 28, 2009. Hearing on Motion for Stay held May 8, 2009.(fn1) Order on Motion for Stay issued May 14, 2009. Order extending time to file appellee's brief issued August 12, 2009. Motion for Samoan translation filed August 28, 2009. Motion for a second extension of time filed September 8, 2009. Hearing on motions held September 24, 2009. Order on motions issued October 27, 2009. Oral argument on appeal presented December 17, 2009. Notice of appointment of chair pro tempore issued March 1, 2010.Appeals Commissioners: Jim Robison, Philip Ulmer, Kristin Knudsen. By: Kristin Knudsen, Chair pro tempore. Paul Mahe, a maintenance worker for the Municipality of Anchorage (Municipality), injured his right knee as he stepped down from the driver's area of a bus in 2007. He requested an evaluation for reemployment benefits in October 2008, and the reemployment benefits administrator's designee, Deborah Torgerson,(fn2) appointed rehabilitation specialist Virginia Samson to perform an eligibility evaluation. After receiving her report, the administrator notified Mahe that he was not eligible for reemployment benefits because he had been released by his physician to return to positions he held in the last 10 years. Mahe appealed the denial to the board. The board overturned the administrator's decision, finding that Samson's reliance on the physician's responses was error, that the physician failed to consider whether the employee's other medical conditions would inhibit Mahe's ability to perform the occupations, and that Samson's labor market survey was flawed. Therefore, the board concluded, the administrator abused her discretion when relying on Samson's report. On appeal, the Municipality argues that the board erred as a matter of law in holding that the form responses by Mahe's physician are unreliable. The board, the Municipality also argues, impermissibly reweighed the evidence presented to the administrator and failed to accord deference to the administrator's exercise of discretion. The Municipality argues the board exceeded its authority in requiring the administrator to consider nonwork-related conditions. Finally, the Municipality argues that the labor market survey was adequate. Mahe responds that the administrator's designee did abuse her discretion because the form responses were not substantial evidence on which she could rely. Mahe also argues that the administrator was required to investigate the inconsistencies in the record and that failure to do so was an abuse of discretion. The parties' contentions require the commission to decide if the board abused its discretion in its review of the administrator's decision. The commission concludes the board erred as a matter of law. The board reweighed the evidence presented to the administrator without considering new evidence. By ruling that the administrator's form was entitled to less weight as a matter of law, the board panel effectively invalidated the administrator's implementation of a regulation, which is beyond a board hearing panel's authority. However, because the commission concludes that the administrator abused her discretion when she failed to follow the administrator's regulations and this error requires reversal, the commission affirms the remand to the administrator. 1. Factual background. Paul Mahe is a native of Samoa who attended school in Hawaii, but who did not graduate.(fn3) In May of 2005, he started working for the Municipality of Anchorage as a Maintenance Worker.(fn4) In April 2007, he injured his right knee as he stepped down from the bus driver's area,(fn5) tearing the posterior horn of the medial meniscus.(fn6) He was treated by arthroscopic surgery in May 2007 by Dr. William Mills.(fn7) When he continued to have symptoms, Dr. Mills performed a second surgery in December 2007 to remove loose bodies and a large popliteal cyst.(fn8) The employer paid compensation and medical benefits for this injury.(fn9) In July 2008, he saw Dr. J. Michael James for an impairment rating.(fn10) Dr. James rated his permanent partial impairment at 1 percent of the whole person.(fn11) He was also released to return to work with a lifting limit of 40 pounds occasionally and 20 pounds frequently, and ordered to do no bending, squatting, or climbing ladders.(fn12) On September 15, 2008, Dr. Mills recommended vocational retraining, because "it is very unlikely that [Mahe] can return to unlimited work requirements of his previous job."(fn13) The next month, Mahe requested an eligibility evaluation.(fn14) The administrator assigned rehabilitation specialist Virginia Samson to perform the eligibility evaluation.(fn15) Ms. Samson took a work history(fn16) and sent 10 SCODDOT(fn17) occupation descriptions for jobs Mahe had held in the past 10 years to Dr. Mills.(fn18) The forms are three pages long, and contain a detailed list of the physical demands of the occupation. At the bottom of the third page, the physician is asked to predict if the employee will or will not have the permanent physical capacities to meet the physical demands of the job description. Dr. Mills marked six occupations (including one volunteer position) for which Mahe would have physical capacities, including cook helper, bus driver, cafeteria attendant, driver, and newspaper delivery driver.(fn19) These were submitted to the administrator with Samson's report on January 16, 2009.(fn20) A separate labor market survey was submitted on January 26, 2009.(fn21) Based on Samson's report and the labor market survey, the administrator determined that Mahe was not eligible for reemployment benefits because his physician predicted he would have the permanent physical capacity to perform the physical demands of jobs he had held in the 10 years before his injury.(fn22) 2. Board proceedings. Mahe filed an appeal to the board February 17, 2009, stating that "The jobs that listed I can go back to now I've been injured I can't do it."(fn23) A board hearing was held on March 25, 2009, to hear Mahe's appeal.(fn24) Mahe obtained a letter, dated March 18, 2009, from Dr. Mills, that Mahe filed at the board March 23, 2009.(fn25) The employer objected to the board's consideration of the letter, because it had not been filed more than five days before hearing, the employer only received it March 23, 2009, and the employer filed a request to cross-examine Dr. Mills.(fn26) The board quoted the entire letter in its decision.(fn27) However, the board stated it did not need to rule on the...