2010-137. Rainey Landry Appellant vs. Trinion Quality Care Services Inc. Commerce and Industry Insurance Co. and Northern Adjusters Inc. Appellees.

• Case Date: August 26, 2010
• Court: Alaska

Alaska Workers Compensation Decisions 2010. Workers' Compensation Appeals Commission 2010-137. Rainey Landry Appellant vs. Trinion Quality Care Services Inc. Commerce and Industry Insurance Co. and Northern Adjusters Inc. Appellees Alaska Workers' Compensation Appeals CommissionRainey Landry, Appellant, vs. Trinion Quality Care Services, Inc., Commerce and Industry Insurance Co., and Northern Adjusters, Inc., Appellees.Decision No. 137 August 26, 2010AWCAC Appeal No. 09-025 AWCB Decision No. 09-0157 AWCB Case No. 200806675Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 09-0157, issued at Anchorage on October 7, 2009, by southcentral panel members Deirdre D. Ford, Chair, Patricia Vollendorf, Member for Labor, and Robert Weel, Member for Industry. Appearances: Joseph A. Kalamarides, Kalamarides and Lambert, Inc., for appellant, Rainey Landry; Robert L. Griffin, Griffin and Smith, for appellees, Trinion Quality Care Services, Inc., Commerce and Industry Insurance Co., and Northern Adjusters, Inc. Commission Proceedings: Appeal filed November 2, 2009; briefing completed April 26, 2010; oral argument on appeal presented June 2, 2010. Commissioners:Jim Robison, Stephen T. Hagedorn, Laurence Keyes, Chair.By: Laurence Keyes, Chair.(fn1) Rainey Landry (Landry), who worked at Trinion Quality Care Services, Inc. (Trinion), appeals the decision of the Alaska Workers' Compensation Board (board) that she was not injured in a fall while working as a personal care assistant for a disabled woman. Landry asserts that the board erred by failing to evaluate the testimony of Travis Cross, a locksmith who she asserts would have testified that the damage done to a medication safe could not have been done by a hammer and chisel, discrediting the testimony of Bill Chambers, the disabled woman's husband. She also asserts that the board erred by disallowing the testimony of Paige Green, who she maintains would have testified that she witnessed Landry walk her patient, Kimberly Chambers, as a part of an exercise regimen. Trinion contends that the board did not err as a matter of law in failing to evaluate Cross's testimony because the board did address his testimony in its decision and his testimony was immaterial to a determination of whether Landry's injury was work-related, and because Mr. Chambers himself agreed that he was initially mistaken about a tool that damaged the safe. The employer also contends that the board did not err in excluding the testimony of Paige Green because Landry did not file a timely witness list, and, even if she had, Green's testimony would not have changed the board's finding that no injury occurred. The parties' contentions require the commission to decide whether substantial evidence supports the board's decision, whether the board evaluated Cross's testimony sufficiently to permit our review, and whether the board abused its discretion in excluding Green's testimony. The board's decision hinges on its finding that Landry was not credible. We conclude that substantial evidence in the record as a whole supports the board's denial of Landry's claim, that the board sufficiently considered Cross's testimony, and that the board acted within its discretion in excluding Green's testimony. 1. Factual background. Landry asserts that on April 14, 2008, she injured her lower back while working as a personal care assistant for Trinion. Landry contends that Kimberly Chambers, who had suffered a stroke and was partially paralyzed, fell on top of her while she was helping Mrs. Chambers climb stairs. Landry testified that on the day in question, her husband, Nathaniel Landry, came over to the Chambers' apartment to help lift Mrs. Chambers over to the commode. Mrs. Chambers weighed approximately 300 pounds.(fn2) Since Landry only weighed 180 pounds,(fn3) it required two people to assist Mrs. Chambers onto the commode.(fn4) After aiding his wife, Mr. Landry returned to his apartment.(fn5) Landry testified that after Mrs. Chambers finished using the commode, she helped her begin walking exercises.(fn6) Landry would support Mrs. Chambers' paralyzed side by placing her left foot and leg under Mrs. Chambers' left foot and leg.(fn7) Landry testified that she walked with Mrs. Chambers for roughly ten minutes, or about ten laps around the small room.(fn8) After she assisted Chambers in walking around the room, the next exercise was stair climbing. Landry testified that she helped Mrs. Chambers perform the stair exercises in the same manner as the walking exercises.(fn9) During the stair exercises, Mrs. Chambers and Landry would grasp the railing with their left hands.(fn10) Landry alleges that she and Mrs. Chambers made it up to the third step, then, according to Landry, Mrs. Chambers suffered a delusion and "threw her body and her head into me."(fn11) Landry fell to the bottom of the stairs.(fn12) Mrs. Chambers landed on top of Landry; however, Landry took the brunt of the fall on her lower back.(fn13) Unable to move, Landry screamed to her husband for help.(fn14) Mr. Landry testified that he entered the room, ensured that Mrs. Chambers was not hurt, and carried Mrs. Chambers to her bed.(fn15) He stated, "I went from underneath her shoulders and to her waist and kind of drug her with her feet. Picked her up and set her in the bed, kind of a half fireman carry type of deal, and set her in the bed."(fn16) He also testified that he then "kind of picked [his wife] up and got her into bed and laid her down[.]"(fn17) In his deposition, Mr. Landry acknowledged that he had been on medical disability since 1996 due to a back injury suffered in a motor vehicle accident.(fn18) When questioned about his physical limitations, Mr. Landry stated: "I can't pick up 100 pounds. I can -- I can if there is an emergency or something like that, I can -- I mean, let me rephrase it. I can pick it up. I just can't pick it up frequently. . . . I can't repetitiously pick up 100 pounds but . . . if I had to pick up something, I could pick it up if it was super heavy."(fn19) Mr. Landry also admitted that he had sustained two concussions in the past that affected his memory.(fn20) Mr. Landry further testified that after he assisted his wife to her bed, he returned to the Chambers' apartment to check on Mrs. Chambers.(fn21) He then called Mr. Chambers about the accident.(fn22) Mr. Landry testified in his deposition that Mr. Chambers informed him that he would be right over,(fn23) but at the hearing, Mr. Landry testified that Mr. Chambers told him he couldn't come right now.(fn24) In either scenario, Mr. Landry offered to check in on Mrs. Chambers periodically until Mr. Chambers arrived.(fn25) Mr. Landry testified that Mr. Chambers arrived at the apartment between 5 and 8 p.m.(fn26) Mr. Landry testified that Mr. Chambers informed him that same evening that Landry was fired because Mr. Chambers had acquired someone else to fill her position.(fn27) Mr. Chambers, in contrast, testified that the accident did not occur and could not have occurred because his wife could not walk with only Landry assisting her.(fn28) Even though Mr. Chambers spoke to Mrs. Chambers on the day the accident allegedly occurred, he stated that he did not learn of the accident until the next day when he asked his wife and she denied it had occurred.(fn29) Mr. Chambers testified that he knew that Mrs. Chambers had not fallen because she bruised easily, and there were no bruises present on her body.(fn30) Mrs. Chambers was never deposed and was not available to testify because she died on December 26, 2008.(fn31) Moreover, Mr. Chambers testified that his wife's major stroke left her paralyzed on her left side(fn32) and unable to "step up even two inches . . . . It is absolutely impossible for my wife to go up and down stairs, in April of 2008 . . . ."(fn33) Mrs. Chambers could not pick up a pencil off the table with her left hand, and she had no use of her left foot or leg.(fn34) Mr. Chambers testified that his wife also suffered from nerve damage, short-term memory loss, seizures, and blindness in both eyes.(fn35) Mr. Chambers further testified that walking her was difficult because he had to support her entire weight.(fn36) Mr. Chambers never witnessed Landry walk with his wife.(fn37) At the hearing, Keirsten Smart, who provides care coordination for homebound individuals,(fn38) supported Mr. Chambers' account of his wife's limitations. Smart stated that Mrs. Chambers suffered multiple cerebral strokes that affected her cognitive abilities.(fn39) She was legally blind, incapable of using her left hand, and required maximum assistance for her own personal care.(fn40) Although Mrs. Chambers suffered from short-term memory loss, Smart believed Mrs. Chambers likely would have remembered whether she fell with Landry.(fn41) Smart testified that as of April 2008 Mrs. Chambers' physical and cognitive abilities were deteriorating.(fn42) She could not grip the rail with her left hand, and although she could move to the commode with assistance, Mrs. Chambers could not walk because she was unable to put weight on her left leg in order to pick up her right foot.(fn43) Smart stated that if someone put their left foot under Mrs. Chambers' left foot, they might be able to get her to take a couple of steps on a flat surface, but going up even a single step "would be incredibly difficult."(fn44) Moreover, she testified that no doctor had ordered a physical exercise regimen for Mrs. Chambers, and it would...