ANDREW REICHEL, Employee, Claimant,
v.
STATE OF ALASKA, Employer,
and
STATE OF ALASKA, Insurer, Defendants.
AWCB Decision No. 21-0009
AWCB No. 201714715
Alaska Workers Compensation Board
February 3, 2021
FINAL
DECISION AND ORDER
Cassandra Tilly, Designated Chair
Andrew
Reichel’s (Employee) January 21, 2020 claim was heard
on August 6, 2020 in Fairbanks, Alaska, a date selected on
June 3, 2020. An April 23, 2020 Affidavit of Readiness for
Hearing (“ARH”) gave rise to this hearing.
Attorney J.C. Croft appeared and represented Employee.
Attorney Adam Franklin appeared and represented State of
Alaska (Employer). Employee testified. The record closed on
August 20, 2020 after receipt of supplemental filings.
ISSUES
Employee
contends he is entitled to a compensation rate increase based
upon income from secondary employment begun shortly before
the work injury and increased income through his employment
with the State of Alaska in the year following the work
injury. Employee requests an increase to the maximum
applicable compensation rate.
Employer
contends Employee’s compensation rate was correctly
calculated under AS 23.30.220 by utilizing Employee’s
wage information for the two years prior to his injury.
1)
Is Employee entitled to a compensation rate
recalculation?
Employee
contends he is entitled to an award of full attorney’s
fees and costs as submitted.
Employer
contends Employee is not entitled to an award of fees and
costs because a fee award is inappropriate where there is no
controversion or resistance in paying benefits; and Employer
never controverted or resisted paying benefits. Employer
asserts if Employee is eligible for an award of benefits,
some fees should be stricken due to being unrelated to
Employee’s claim for a compensation rate adjustment,
unnecessary, and excessive in light of the complexity of the
claim and value of the benefit obtained for Employee.
2)
Is Employee entitled to an award of attorney’s fees and
costs?
FINDINGS
OF FACT
A
preponderance of the evidence establishes the following facts
and factual conclusions:
1) On
October 12, 2017, Employee was employed as a Correctional
Officer II for the State of Alaska. (First Report of Injury,
October 13, 2017).
2) On
October 12, 2017, Employee was injured during an assault by
an inmate at Fairbanks Correctional Center. (Agency record).
3)
Employee was transported by ambulance to Fairbanks Memorial
Hospital with head trauma including eye and facial injuries.
(Fairbanks Fire Department PCR Report, October 12, 2017).
4) The
emergency room physician diagnosed acute multiple left facial
fractures, and acute superficial laceration to the left
temporal area. Employee was referred to oral maxillofacial
surgeon Richard Hompesch, DDS. (Timmerman ER report, October
13, 2017).
5) On
October 12, 2017, Employee was excused from work through
October 18, 2017 or later depending upon the oral
surgeon’s recommendations. (Golden Heart Emergency
Physicians record, October 12, 2017).
6)
Employee was placed on light duty from October 18, 2017, to
the week of November 27, 2017. (North Star Oral & Facial
Surgery LLC record, undated).
7) On
October 23, 2017, Employee was evaluated by Richard Raugust,
M.D. Impressions were: “1. Fractured nose with a
deviated septum, deviated far to the right. 2. Blowout
fracture of left orbit floor with mild diplopia. 3. Trimalar
fracture with minimal displacement with some decreased
excursion of mandibular motion due to swelling around the
zygomatic arch area.” Employee was referred to Stanley
R. Fuller, M.D., at Eye Clinic of Fairbanks for evaluation of
diplopia and blow out fracture. Dr. Raugust noted Employee
“needs a repair of his nose, a closed reduction of the
nasal bones and an open reduction of his nasal septum. That
can be done at the same time as his blowout fracture if Dr.
Fuller wishes to do that.” (Raugust record, October 23,
2017).
8)
Employee was excused from work October 23, 2017 through
November 22, 2017. (Fuller records, October 23, 2017;
November 11, 2017).
9) On
October 25, 2017, Employee was excused from work due for one
week to 10 days due to surgery. (Raugust record, October 25,
2017).
10) On
October 26, 2017, Employee underwent surgery consisting of
closed reduction nasal bone fracture, open reduction nasal
septal fracture, and nasal antral window on the left with
evacuation of hematoma. (Raugust report, October 26, 2017).
11) On
November 30, 2018 Employee was examined by Nathaniel
Buffington, M.D. Dr. Buffington’s assessment included
traumatic brain injury with loss of consciousness, initial
encounter (S06.9X9A); open fracture of left orbital floor
with nonunion, subsequent encounter (S02.32XK); and
impingement of left ulnar nerve (G56.22). Dr. Buffington
recommended Employee be seen at the Mayo Clinic. (Buffington
record, November 30, 2018).
12) On
October 7, 2019, Employee was evaluated by Jessica Petersen,
O.T., of Mayo Clinic Occupational Therapy. Diagnoses included
cognitive disorder due to brain injury and concussion with
loss of consciousness of 30 minutes or less sequela. A
treatment plan of up to 55 visits was initiated. (Peterson
record, October 7, 2019).
13) In
November, 2019, Employee underwent successful left orbital
floor fracture surgery in Utah. (Buffington record, November
19, 2019).
14) On
November 21, 2019, Employee was placed on light duty with a
25# lifting restriction. (Buffington record, November 19,
2019).
15) On
January 21, 2020, Employee filed a workers compensation claim
requesting a compensation rate adjustment. Attached to his
claim were Internal Revenue Service (IRS) records related to
a secondary job Employee held in 2018, and earnings from his
job with Employer in 2018. The division served the claim and
attachments on all parties on the same date. (Claim for
Workers’ Compensation Benefits, January 21, 2020).
16) On
February 6, 2020, Employer sent a discovery request to
Employee’s attorney, specifically requesting production
of “evidence documenting that [Employee] earned income
from secondary employment, i.e. employment beyond his
employment for Employer, in the two (2) years prior to his
date of injury on October 12, 2017.” The cover letter
sent with the discovery request provided
Ultimately, we are trying to determine if [Employee] has a
valid claim for a compensation rate increase. If you or
[Employee] has information to substantiate his compensation
rate demand in addition to the information filed with the
claim, we are certainly happy to consider it rather than have
a hearing.
The State would appreciate your response to its discovery
request within thirty (30) days of receipt of this letter and
request. If [Employee] did not earn additional income in the
years prior to his injury, the State is amendable
(sic) to dismissing this claim.
(Employer’s Discovery Request, February 6, 2020).
17) On
April 23, 2020, Employee responded to Employer, indicating he
began secondary employment as an armed security guard in
2017, and continued to have that secondary employment.
“[Employee’s] secondary employment, as well as
ability to earn more in 2018 and 2019 working for the State,
should be, and should have been, factored into his
compensation rate.” (Employee Discovery Response, April
23, 2020).
18) On
April 23, 2020, Employee filed an affidavit of readiness for
hearing (“ARH”). (ARH, April 23, 2020).
19)
Employee’s weekly compensation rate was calculated by
Employer at $995.87 based on 2016 earnings and using the
Division of Workers’ Compensation benefit calculator.
(Employer Discovery Response, June 3, 2020).
20) On
July 17 and 20, 2020, Employee filed IRS tax records listing
Employee’s income from 2015 to 2019. (Agency record).
21)
Employee’s attorney represented he received the tax
“documentation over the weekend and filed it on the
first possible business day after receipt.” (Employee
Response, July 30, 2020).
22) IRS
tax records reflected Employee’s gross income from the
State of Alaska as: $30,500 in 2015; $53,238 in 2016; $57,435
in 2017; $77,946 in 2018; and $73,920 in 2019. (Agency
record).
23) IRS
tax records showed gross income related to Employee’s
secondary employment as...
