Fonseca v. Fred Meyer Stores, 043019 AKWC, 19-0054

• Case Date: April 30, 2019
• Court: Alaska

JERRY FONSECA, Employee, Claimant, v. FRED MEYER STORES, Self-insured Employer, Defendant. AWCB Decision No. 19-0054 AWCB No. 201714320 Alaska Workers’ Compensation Board April 30, 2019           INTERLOCUTORY DECISION AND ORDER           Jung M Yeo, Designated Chair          Jerry Fonseca’s (Employee) petition to review the Reemployment Benefits Administrator designee’s (RBAD) eligibility determination was heard on April 16, 2019, in Anchorage, Alaska, a date selected on February 26, 2019. Employee’s January 4, 2019 hearing request gave rise to this hearing. Attorney Charles Coe appeared and represented Employee. Attorney Michael Budzinski appeared and represented Fred Meyer Stores (Employer). Employee appeared and testified. Kaya Kade, the rehabilitation specialist, appeared telephonically and testified. The record closed at the hearing’s conclusion on April 16, 2019.          ISSUES          Employee contends RBAD abused her discretion in finding Employee ineligible for reemployment benefits despite the specialist’s recommendation to find him eligible. Employer contends her decision was based on substantial evidence; therefore, she did not abuse her discretion.          Did RBAD abuse her discretion in finding Employee ineligible for reemployment benefits?          FINDINGS OF FACT          A preponderance of the evidence establishes the following facts and factual conclusions:

1) On September 30, 2017, while working for Employer as a liquor store clerk, Employee injured his right arm, right elbow, right shoulder, and neck, when he tripped over a display and fell. (First Report of Injury, October 5, 2017; Employer brief).

2) On October 13, 2017, magnetic resonance imaging revealed severe uncinate spurring in the cervical spine on the right at C5-6 and C6-7, which correlated to radicular symptoms on the right side. It also showed a mild abutment of the spinal cord at C4-5 without abnormal cord signal or severe canal stenosis at any level. (Marc Beck, M.D., report, October 13, 2017).

3) On December 28, 2017, Christopher Manion, M.D., performed arthroscopic surgery on Employee’s right shoulder. (Operative report, January 4, 2018).

4) On March 22, 2018, because Employee had missed 90 consecutive days from work, RBAD assigned a specialist for reemployment benefits eligibility evaluation. (Referral letter, March 22, 2018).

5) On June 14, 2018, at Dr. Manion’s referral, Sean Taylor, M.D., a physiatrist, saw Employee and conducted electromyographic studies. He reported evidence of mild median nerve entrapment at the right wrist, but no evidence of ulnar nerve entrapment, mononeuropathy of the right radial nerve, cervical radiculopathy, brachial plexopathy, myopathy, or peripheral polyneuropathy in the right upper extremity. Dr. Taylor recommended a right C7 to T1 interlaminar epidural steroid injection. (Taylor report, June 14, 2018).

6) On June 21, 2018, at Dr. Manion’s referral, Owen Ala, M.D., a hand, wrist, and elbow specialist, saw Employee and opined he had normal strength and range of motion in the right upper extremity and did not appear to have a ligamentous, tendinous, or bone injury. Dr. Ala

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