Pharr v. Hall, 122718 AKWC, 18-0130

Docket Nº:AWCB Decision 18-0130
Case Date:December 27, 2018
Court:Alaska
 
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WILLIAM PHARR, Employee, Claimant,
v.
ROBERT HALL d/b/a GORILLA FIREWORKS, Employer,
and
ALASKA NATIONAL INSURANCE COMPANY, Insurer, Defendants.
AWCB Decision No. 18-0130
AWCB No. 201410772
Alaska Workers' Compensation Board
December 27, 2018
          FINAL DECISION AND ORDER           Ronald P. Ringel, Designated Chair.          William Pharr's February 26, 2016 claim was heard on November 29, 2018 in Anchorage, Alaska, a date selected on September 11, 2018. An August 16, 2016 affidavit of readiness for hearing gave rise to this hearing. Attorney Robert Mason appeared and represented Mr. Pharr (Employee), who appeared and testified. Attorney Cheryl Graves appeared and represented Robert Hall and Alaska National Insurance (Employer). The record closed at the hearing's conclusion on November 29, 2018.          ISSUES          Employee contends a series of lumbar spine injuries while working for Employer are the substantial cause of his disability and need for medical treatment. Employer concedes Employee was injured while working for Employer, but it contends all benefits due because of recent injuries have been paid and any continuing disability or need for medical treatment is due to a 2009 injury which was settled.          1. Are Employee's lumbar spine injuries while working for Employer the substantial cause of his disability or need for medical treatment?          Employee contends he is entitled to temporary total disability (TTD) or temporary partial disability (TPD) from June 10, 2014. Employer contends any injuries after the 2009 injury are no longer the substantial cause of Employee's disability?          2. Is Employee entitled to additional disability benefits, and, if so, in what amount?          Employee contends he is entitled to additional medical and transportation costs. Employer contends any work injuries after 2009 are no longer the substantial cause of Employee's need for medical treatment.          3. Is Employee entitled to additional medical and transportation costs?          Employee contends he is entitled to permanent partial impairment (PPI) benefits when rated. Employer contends Employee is not entitled to PPI benefits because he has not produced a rating.          4. Is Employee entitled to PPI benefits ?          Employee contends he is entitled to interest on benefits not paid when due. Employer contends Employee is not entitled to interest because he was paid all benefits when due.          5. Is Employee entitled to interest?          Employee contends his attorney provided valuable services that will result in him obtaining benefits and he should be awarded attorney fees and costs. Employer contends Employee should not be awarded attorney fees and costs because he will not prevail.          6. Is Employee entitled to attorney fees and costs, and, if so, in what amount?          FINDINGS OF FACT          A preponderance of the evidences establishes the following facts and factual conclusions:          1. Employee began working for Employer in 1993 at Employer's fireworks stands. Employee helps with stocking and sales, and does maintenance work such as mechanical, electrical, painting, and snowplowing or, as Employee stated, he "fixes things." (Employee).          2. On August 14, 2009, Employee injured his low back while lifting boxes for Employer. An MRI revealed degenerative conditions and a central disc protrusion at L5-S1. (Compromise and Release Agreement, Case No. 200911988 and 200919162, July 28, 2010 (2010 C&R)).          3. Employee's treating physician and Employer's medical evaluator (EME) disagreed as to whether Employee was medically stable, but they agreed Employee could return to work with restrictions. The EME rated Employee with a one percent PPL Employee returned to work in late December 2009, and reported he had reinjured his back on December 31, 2009. (2010 C&R).          4. Employee's doctor administered facet and epidural injections and recommended a spinal cord stimulator or disc decompression. (2010 C&R).          5. On April 6, 2010, Employee was examined by a different EME doctor, who stated that absent a specific injury, Employee's preexisting degenerative condition was the substantial cause of his disability and need for medical treatment. (2010 C&R).          6. On July 28, 2010, the parties filed the 2010 C&R. In exchange for $40,000.00, Employee waived all benefits other than medical benefits. (2010 C&R).          7. On July 28, 2010, Employee's doctor stated Employee's back pain was primarily discogenic, and he again recommended a spinal cord stimulator or a discectomy. (Compromise and Release Agreement, Case No. 200911988 and 200919162, December 14, 2011 (2011 C&R)).          8. On April 14, 2011, Employee was again seen for an EME. Employer's doctor opined the substantial cause of Employee's need for medical treatment was his degenerative spinal disease. (2011 C&R).          9. On December 14, 2011, the Board approved a C&R in which Employee waived past and future medical benefits arising from the August 14, 2009 and December 31, 2009 in exchange for $130,000.00. (2011 C&R).          10. Employee reported that on April 6, 2013 he had slipped and fallen injuring his back while working for Employer. No. medical records were filed relating to this injury, and there is no record Employee was paid any benefits related to this injury. (ICERS Database, Case No. 201304787).          11. On August 17, 2013, Employee reported an allergic reaction while working for Employer. No. medical records were filed relating to this injury, and there is no record Employee was paid any benefits related to this injury. (ICERS Database, Case No. 201321220).          12. On June 21, 2014, Employee reported the injury that is the foundation of this claim. He reported that on June 19, 2014 he had injured his low back and left side when a ladder had fallen. (Report of Injury, June 21, 2014).          13. On November 7, 2014, Employer filed a report of injury stating Employee had injured his back in a slip and fall on October 25, 2014. Although there are no medical records, Employer reported it paid $2,554.44 in medical costs for this injury. (ICERS Database, Case No. 201418167).          14. On December 21, 2014, Employee reported he had lower back pain as a result of lifting or bending while working for Employer. Employer reported it paid $1,917.66 in medical costs and $1,115, 71 in TTD. No. medical records have been filed in this case. (ICERS Database, Case No. 201500293).          15. On February 27, 2018, Employee reported he was plowing snow for Employer when the plow truck got stuck. He had to shovel snow from under the truck, which resulted in low back and neck pain. (Report of Injury, Case No. 201803921). Employee filed a claim in this case on August 13, 2018. (Claim, Case No. 201803921).          16. On August 13, 2018, Employee rolled a vehicle off the road, injuring his back, neck, chest, arms, and legs. (First Report of Injury, Case No. 201810664). Employee filed a claim in this case on August 13, 2018. (Claim, Case No. 201810664).          17. On August 17, 2018, Employee petitioned to join the February 27 and August 13, 2018 claims, and at the September 27, 2018 prehearing conference the parties agreed the cases would be joined for administrative purposes, but would not be joined for hearing. (No. 201803921, Prehearing Conference Summary, September 27, 2018).          18. Neither party has petitioned to join any of the other cases with this case. (Record; Observation).          19. Employee's back began bothering him in 2009, but he kept working until Employer insisted he see a doctor in August 2009. After he reinjured his back in 2010, Employer hired someone to help him with lifting and other heavy tasks. On June 19, 2014, Employee was setting up and repainting signs at Employer's fireworks stand in North Pole in preparation for the Fourth of July holiday. He was on a ladder leaning against a flap that closed the sales window. A hinge on the flap broke and he fell hitting the sales counter. Although the pain kept getting worse, he finished his work for the day and drove to his home in Houston. (Employee).          20. On June 21, 2014, Employee went to the emergency room because of difficulty breathing, pain in his ribs, and low back pain. An x-ray revealed a fractured rib. (Mat-Su Regional Medical Center, Physician Documentation, June 21, 2014). ...

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