2010-134. Jeffery L. Gibson Appellant Cross-appellee vs. ARCO Alaska Inc. and Pacific Employers Insurance Co./ACE-USA Appellees Cross-appellants.

• Case Date: April 09, 2010
• Court: Alaska

Alaska Workers Compensation Decisions 2010. Workers' Compensation Appeals Commission 2010-134. Jeffery L. Gibson Appellant Cross-appellee vs. ARCO Alaska Inc. and Pacific Employers Insurance Co./ACE-USA Appellees Cross-appellants Alaska Workers' Compensation Appeals CommissionJeffery L. Gibson, Appellant, Cross-appellee, vs. ARCO Alaska, Inc., and Pacific Employers Insurance Co./ACE-USA, Appellees, Cross-appellants.Decision No. 134 April 9, 2010AWCAC Appeal No. 08-038 AWCB Decision No. 08-0219 AWCB Case Nos. 199430287 and 199430288Final Decision Appeal and cross-appeal from Alaska Workers' Compensation Board Decision No. 08-038, issued November 17, 2008, by northern panel members Debra Norum, Member for Industry, Damian Thomas, Member for Labor, and Fred G. Brown, Chair. Appearances: Robert M. Beconovich, Law Office of Robert M. Beconovich, LLC, for appellant, cross-appellee Jeffery L. Gibson. Robert J. McLaughlin, Mann, Johnson, Wooster and McLaughlin, P.S., for appellees, cross-appellants ARCO Alaska, Inc., and Pacific Employers Insurance Co./ACE-USA. Commission proceedings: Appeal filed December 31, 2008. Cross-appeal filed January 9, 2009. Briefing completed July 29, 2009. Notice of Supplemental Authority filed August 13, 2009. Oral argument presented November 3, 2009. Notice and order issued November 3, 2009, advising the parties that the record appeared incomplete and directing examination and supplementation of the record. Supplementation of the record by the parties completed November 18, 2009, and supplementary argument completed November 25, 2009. Transcript of June 7, 2007, board hearing filed December 2, 2009. The parties were notified of appointment of a chair pro tempore on March 1, 2010.Appeals Commissioners: David Richards,Stephen T. Hagedorn, Kristin Knudsen. By: Kristin Knudsen, Chair pro tempore. Jeffery Gibson was laid off from his job as a flow measurement technician when ARCO Alaska, Inc. left the North Slope in 1994. He went back to school, graduating with a B.A. in Electrical Engineering in 2000. He reported an injury to his feet and left shoulder in April 1997, and he filed a request for reemployment benefits at the same time. After graduation, he amended his claim to include reemployment benefits under AS 23.30.041(k). Gibson also sought surgical treatment for a recurrent neuroma in his right foot, his arthritic big toes in both feet, a tarsal tunnel release, and a psychological diagnosis and medication for depression. Based on the feet injuries and treatment for depression, Gibson claimed he was entitled to temporary total disability compensation (TTD) from July 22, 1994, until he graduated from Washington State University in September 2000, or in the alternative, that he was entitled to stipend while he was attending school and not totally disabled.(fn1) The board denied Gibson's claims and he appeals. ARCO cross appeals the award of TTD for periods of time following surgeries in 1994 and 1995 because Gibson suffered no loss of earnings and alternatively, the board failed to award a social security offset. Because the board issued a series of decisions,(fn2) the commission must decide if the board's 2009 decision, the subject of this appeal, is inconsistent with prior final board decisions on Gibson's claims. The commission must decide if the board had substantial evidence to limit the award of TTD to periods of recovery from each surgery. The commission must decide if the board had substantial evidence upon which to uphold the denial of stipend, and if the reemployment benefits administrator erred as a matter of law in considering Gibson's present education and experience to deny eligibility. Finally, the commission must decide if the board improperly failed to award a social security offset from TTD. The commission holds that Gibson had the burden to demonstrate that he was temporarily totally disabled from July 24, 1994, through September 2000. The commission determines that the board had evidence in the record on which a reasonable mind might rely to conclude that Gibson was not disabled by his depression, nor totally disabled by his foot injuries for the entire period claimed. The commission affirms the board's award of TTD with modification. The commission concludes that the board's decision in Gibson III made no finding that Gibson was eligible for reemployment benefits. However, because the board had evidence to support its finding that Gibson was not actively pursuing reemployment benefits, the commission affirms the board's decision. Finally, because the board applied the wrong test to its determination, the commission remands this case to the board with instructions to determine if the employer is entitled to take an off-set for social security disability benefits. 1. Factual background. Jeffery Gibson began working as a flow measurement technician for ARCO in 1980. He was transferred to Alaska in 1985, and worked for ARCO Alaska, Inc. on the North Slope until ARCO left Alaska in 1994. Gibson developed a Morton's neuroma in his right foot in early 1994, and had surgery to remove it in February 1994. He was released to return to work and by May 1994 he was working without restrictions. Gibson was laid off in July 1994 when he voluntarily accepted a "reduction in force" layoff. He received a severance package in September 1994. With this package, he was paid his salary through September 1994 and a lump sum of $60,000. Gibson moved with his family to eastern Washington in July 1994,(fn3) applied for admission at Washington State University in Pullman in October 1994, and enrolled in January 1995.(fn4) He became a full-time student in August 1995 and he continued to attend the University full-time through July 2000, when he graduated with a B.A. in Electrical Engineering.(fn5) He attended graduate school at Washington State University in the Fall Semester 2000 and Spring Semester 2001.(fn6) He enrolled in a combined MBA - JD program at the University of Idaho, but, at the time he testified to entering this program, he had not completed it.(fn7) The vocational specialist reported that he obtained an M.B.A. from Western Washington University in 2003.(fn8) He has been employed steadily as an electrical engineer since September 2003.(fn9) While living in Washington, Gibson had a number of procedures performed on his feet,(fn10) culminating in a left tarsal tunnel release December 28, 2000, by Graeme French, M.D. Dr. French allowed "weight bearing as tolerated" and stated Gibson's "disability is partial for two to three months."(fn11) Gibson worked part-time while at the University as a teaching assistant I from August 1997 to June 1998,(fn12) as an engineering intern full-time for USS/POSCO in the summer of 1998,(fn13) and as a graduate intern project management engineer at the Port of Seattle in 2001.(fn14) Gibson also pursued a social security disability claim.(fn15) The August 25, 1998, decision of the administrative law judge was that

. . . based on the application filed on July 17, 1997, (effective filing date), the claimant is entitled to a period of disability commencing July 21, 1994, and to disability insurance benefits under sections 216(i) and 223, respectively of the Social Security Act, as amended; and as of the date of the application for supplemental security income filed on July 17, 1997 (protective filing date) the claimant was "disabled" as defined in section 1614(a)(3)(A) of the Social Security Act.

It is the further decision of the Administrative Law Judge that, based on the finding that disability ceased on May 1, 1998, entitled to a period of disability and disability insurance benefits, and eligibility for supplemental security income ended effective July 1998, the end of the second calendar month after the month in which the disability ceased.(fn16)

Gibson testified he received a $30,000 lump sum payment in settlement of his social security claim.(fn17) 2. Board proceedings. In April 1997, Gibson filed a notice of occupational injury asserting injury to both feet and his left shoulder July 21, 1994.(fn18) At the same time, he filed a request for an eligibility evaluation for reemployment benefits.(fn19) The reemployment benefits administrator sent Gibson a letter, dated May 13, 1997, asking him to supply more information, including a medical report predicting that his injury would permanently prevent him from returning to his former job and an explanation of the delay in requesting an evaluation.(fn20) Gibson did not respond. Gibson filed a claim on March 24, 1998,(fn21) without requesting reemployment benefits in this claim.(fn22) He filed a request for hearing on November 2, 1998.(fn23) In December 1998, ARCO filed a controversion based on failure to give notice within 30 days of the injury or to file a claim within two years of the injury.(fn24) No hearing was held, and Gibson's second attorney withdrew in July 1999.(fn25) No action was taken by Gibson to pursue his claim in 2000. In January 2001, ARCO filed a petition to dismiss the claim for failure to give notice under AS 23.30.100.(fn26) A third attorney responded to the petition on Gibson's behalf.(fn27) ARCO filed a request for hearing in April 2001,(fn28) and Gibson's third attorney withdrew.(fn29) A fourth attorney entered an appearance on Gibson's behalf in October 2001,(fn30) and obtained a stipulation to vacate the November 15, 2001, hearing date on ARCO's petition to dismiss.(fn31) The board heard ARCO's petition on...