JUAN BARRAGAN, Employee, Claimant,
v.
PIZZA EXPRESS, Employer,
And
UMIALIK INSURANCE CO. CO., Insurer, Defendants.
AWCB Decision No. 21-0021
AWCB No. 201907027
Alaska Workers Compensation Board
March 2, 2021
FINAL DECISION AND ORDER ON RECONSIDERATION &
MODIFICATION
Kathryn Setzer, Designated Chair.
Pizza
Express and Umialik Insurance Co.’s (Employer) January
6, 2021 petition for reconsideration of Barragan v. Pizza
Express, AWCB Decision No. 20-0114 (December 23, 2020)
(Barragan I) was heard on the written record on
January 26, 2021, a date selected on January 8, 2021.
Attorney Michelle Meshke represented Employer. Attorney
Robert Bredesen represented Juan Barragan (Employee). The
record closed after deliberation February 2, 2021.
ISSUES
Employer
contends the panel had no standing to order it to pay
Employee’s medical providers the full amount for
medical benefits pursuant to the Act’s fee schedule
because it lacked authority to interfere with its binding
contract with Medicaid. It contends AS 23.30.012 does not
apply because it only applies to an agreement between an
employer and an employee or his beneficiaries. Employer
contends public policy favors allowing Employer to freely
negotiate and enter into such contracts. It contends it
should only be ordered to pay Employee’s providers the
difference between the amount they would receive under the
Act and the amount Medicaid paid them and it should be
ordered to pay statutory attorney’s fees, interest and
penalty only on the amount it paid to Medicaid to settle the
lien and the amount paid to Employee’s medical
providers.
Employee
contends AS 23.30.012 applies to any agreement regarding a
claim for injury and prohibits enforcement of the agreement
between an insurer and Medicaid since it was not submitted
under AS 23.30.012. He contends reducing the award to
Medicaid to the amount Employer paid to settle the lien
unfairly reduces the awards for penalties, interest and
attorney’s fees and costs.
1)
Should Barragan I’s order requiring Employer
to pay Employee’s medical providers the full amount for
medical benefits pursuant to the Act’s fee schedule be
reconsidered?
Employer
contends Barragan I erred by ordering a penalty
under AS 23.30.070(f) because the circumstances typically
justifying the penalty were not present. Alternatively, it
contends the penalty is due only on the first installment of
temporary total disability (TTD) benefits not paid when due.
Employee
contends Employer’s new evidence regarding the filing
Employer’s report of injury should be excluded. He
contends Employer did not dispute that the filing was late.
Employee contends the award in Barragan I clearly
awarded the penalty on all benefits awarded.
2)
Should Barragan I’s award of a penalty under
AS 23.30.070(f) be modified or reconsidered?
Employer
contends Barragan I erred by ordering a penalty
under AS 23.30.155(e). It contends there was no mistake of
law and its controversion was made in good faith and based
upon on substantial evidence. Employer contends awarding a
penalty under AS 23.30.070(f) and AS 23.30.155(e) is
excessive and chills its right to due process.
Employee
contends Barragan I did not err by ordering a
penalty under AS 23.30.155(e) because Employer’s
conclusion that Employee’s intoxication barred benefits
constituted a mistake of law.
3)
Should Barragan I’s award of a penalty under
AS 23.30.155(e) be reconsidered?
FINDINGS
OF FACT
The
following facts and factual conclusions are established by a
preponderance of the evidence or are reiterated from
Barragan I:
1) On
May 3, 2019, Employee arrived at the emergency room by
ambulance for a fall which resulted in a loss of
consciousness:
He was drinking with his family and friends tonight and was
leaving the family restaurant to go home. He was standing in
the middle of the staircase, seemed to lose his balance, and
fell backward. He was found at the bottom of the staircase,
unconscious, breathing, bleeding from the back of the head.
There was a metal cart at the bottom of the staircase that
had been damaged by his fall. EMS arrived to find him
unconscious at the bottom of flight of 20 stairs.
Employee was comatose; his family said he drank to excess on
a daily basis. (Id.).
2) On
May 3, 2019, at 23:36 Employee’s alcohol level was 329
mg/dL. (Id.).
3) On
May 30, 2019, Employer reported Employee was injured on May
3, 2019, when he fell down stairs and hit his head on a
mental cart, causing a traumatic brain injury. The date
Employer first knew of the injury was May 3, 2019, and the
date the claim administrator first knew was May 16, 2019.
(Id.).
4) On
May 30, 2019, Shari Morgan, M.D., noted Employee was unable
to go to the Craig Institute for rehabilitation because
Employer denied benefits. Instead, she hoped he improved
enough to be accepted in the hospital’s inpatient
rehabilitation facility. (Id.).
5) On
May 30, 2019, Employer denied all benefits contending
Employee’s injuries were proximately caused by his
intoxication and the injury did not occur during the course
and scope of employment. It was served upon Providence
Hospital in Anchorage, Sitka Hospital and the medical case
manager. (Controversion Notice, May 30, 2019).
6) On
May 31, 2019, Employer withdrew its May 30, 2019
controversion. (Barragan I).
7) On
June 6, 2019, Employer denied all benefits contending
Employee’s injuries were proximately caused by his
intoxication and the injury did not occur during the course
and scope of employment because Employee as drinking with
family and friends after hours and Employer denied
sanctioning this activity. (Controversion Notice, June 6,
2019).
8) On
July 17, 2019, Brent Burton, M.D., an occupational
toxicologist, performed a records review employer’s
medical evaluation (EME). He opined the 329mg/dL serum
alcohol level corresponded to a whole blood measurement at
0.28 g/dL. Dr. Burton stated:
There are no structural or environmental factors described
that could have contributed to falling down the stairs. There
are also no medical issues described in the medical records
that may have led to falling down the stairs. Thus,
[Employee] was fully responsible for the behavior that
resulted in falling down the stairs. . . In the absence of
any external factors that contributed to falling down the
stairs, it must be concluded that [Employee’s] alcohol
intoxication was most likely the sole cause of his fall down
the stairs.
The measured serum alcohol and corresponding whole blood
alcohol level at 0.28% represents severe alcohol intoxication
and associated impairment. The impairment that occurs at a
level of this magnitude dramatically increases the risk of
falling, even on flat ground. Negotiating a stairway or any
obstacles becomes much more difficult due to the cognitive
and motor impairment caused by alcohol intoxication.
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