F. CRAIG MCCURDY v. GOLDEN VALLEY ELECTRIC ASSOCIATION

ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

F. CRAIG MCCURDY,
Employee,
Applicant,
v.
GOLDEN VALLEY ELECTRIC
ASSOCIATION,
Employer,
and
ARECA INSURANCE EXCHANGE,
Insurer,
Defendants. / )
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FINAL
DECISION AND ORDER
AWCB Case No. 200123571
AWCB Decision No. 07-0031
Filed with AWCB Fairbanks, Alaska
on February 21st, 2007

We heard the employee’s claim for additional workers’ compensation benefits on January 18, 2007, in Fairbanks, Alaska. Attorney Robert M. Beconovich represents the employee. Attorney Michael A. Budzinksi represents the employer and insurer (the employer). We held open to receive the employer’s final attorney fee and cost statement and closed the record when we next met on February 1, 2007.

ISSUES

1. Whether the employee is entitled to temporary total disability (TTD) benefits for the period of November 16, 2005 through May 10, 2006, under AS 23.30.185?

2. Whether the employee is entitled to interest, under 8 AAC 45.142?

3. Whether the employee is entitled to reasonable attorney fees, under AS 23.30.145?

SUMMARY OF THE EVIDENCE

The employee was injured while working for the employer, Golden Valley Electric Association (GVEA), on or about November 16, 2001. He was working as a lineman for GVEA when he began experiencing pain in his left shoulder while performing power line service work.[1]

As a result of his shoulder pain the employee sought treatment with Sportsmedicine Fairbanks on November 20, 2001. The diagnosis was acute left shoulder rotator cuff tendonitis and acute left lateral epicondylitis. A Sportsmedicine Physician's Report noted that the employee's injury was work-related. The employee was encouraged to perform no overhead lifting with his shoulder for two weeks and was prescribed physical therapy. The employee continued to work as a lineman with GVEA except that he took time off for physical therapy and occasional medical examination up through May 13, 2002, when his condition was found to be resolved and medically stable, with no permanent impairment.

During the next three and a half years, the employee sought no medical treatment for his left upper extremity condition. During this period he continued to work as a lineman with GVEA until February 25, 2005, when he retired.

IBEW dispatcher Rose Todd testified that IBEW policy allowed the employee to continue to be on the union books and work up to nine months out of the year. She said the employee has consistently remained on the books since his retirement.

The employee testified that after his February 25, 2005 retirement, he was employed by HC Price in July of 2005 to work on a substation transformer in North Pole, Alaska. He said he was laid off when the job was completed. The employee further testified that in August of 2005 he was asked to work on a job at Fort Wainwright, Alaska, but turned the job down because his shoulder had become painful and symptomatic once more. Following the Fort Wainwright job, he said he did not seek subsequent jobs because of his shoulder injury. Eventually, the employee sought medical treatment in November of 2005.

On November 14, 2005, the employee was examined by Ross N. Brudenell, M.D., of Sportsmedicine Fairbanks. Dr. Budenell reported a history of left shoulder pain over the last two to three months, particularly with attempts at overhead lifting. The employee believed his arm was almost useless. Dr. Brudenell's impression was “impingement of the left shoulder.”

Dr. Brudenell requested an MRI and determined in a follow-up examination on November 22, 2005 the employee suffered an “intractable impingement, left shoulder.” Dr. Brudenell recommended a coracoacromial arch decompression scheduled a surgical consultation with Cary S. Keller, M.D. Dr. Brudenell found the employee not to be medically stable, did not release him to work, and estimated the length of disability to be three months, with surgery pending.

On January 31, 2006, Dr. Keller concurred the employee was a candidate for surgery and a surgery date was set for February 13, 2006. Surgery was performed by Dr. Keller at Fairbanks Memorial Hospital (FMH) on February 13, 2006. The postoperative diagnoses were degenerative labral tears, undersurface rotator cuff tear, glenohumeral and acromioclavicular degenerative joint disease, subacromial bursitis, left shoulder.

Two weeks after surgery, on February 28, 2006, the employee's sutures were removed and he was advised to continue his physical therapy regime. The employee's physical therapy efforts continued through the months of March, April and May 2006. On May 9, 2006, the employee underwent a physical capacity evaluation (PCE). On May 10, 2006, Dr. Brudenell found the employee in need of no further treatment.

The threshold issue we must decide is whether the employee is entitled to temporary total disability benefits during the period he was recovering from surgery. The employer does not dispute the compensability of the employee’s medical treatment, but contends he is ineligible for TTD benefits because he is retired and took himself out of the work force.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Temporary Total Disability.

AS 23.30.185 reads as follows:

In case of disability total in character but temporary in quality, 80 percent of the injured employee's spendable weekly wages shall be paid to the employee during the continuance of the disability. Temporary total disability benefits may not be paid for any period of disability occurring after the date of medical stability.

AS 23.30.395(10) defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of his injury in the same or any other employment."

The employer does not dispute that the employee was injured at work, but contends he removed himself from the workforce, such as to be rendered ineligible for TTD benefits. In Vetter v. Alaska Workmen's Compensation Bd. 524 P.2d 264, (Alaska 1974), the Alaska Supreme Court heard a case in which the Board had found the claimant to have been unemployed not because of injury but because of her personal choices. The Court stated at 267:

The Board in the instant case determined that Grace Vetter was no longer employed, not because of any injury but because of her own personal desires, and found no actual impairment of her earning capacity. If this determination is supported by substantial evidence, the claim for compensation was correctly denied.

Nevertheless, the Court overturned the Board's decision after the Court found that Vetter was willing, but unable, to work, due to her work-related medical condition. Id., at 267, 268.

The employee in this case contends he should receive TTD benefits and interest for the time period of November 16, 2005 through May 10, 2006, because he was not medically stable and unable to work by reason of his November 16, 2001 GVEA injury. Moreover, he testified, he would have worked if he had been able to do so.

The record reflects Dr. Brudenell found the employee's condition on November 14, 2005 was directly related to his original industrial injury of his left shoulder which occurred in November 2001. Dr. Brudenell also found, and the employer does not dispute, the employee was medically unstable until May 10, 2006. Based upon our review of the record, we find it is undisputed the employee’s condition and treatment were substantially related to his work injury. On this basis, we find the employee qualifies for TTD benefits.

The employer's June 28, 2006 controversion contends the "employee voluntarily retired from employment as of February 2005" and/or "the employee voluntarily removed himself from the labor market." We find the employee is a credible witness.[2] Based on our review of his testimony and the record as a whole, we find the employee was willing to work and had access to employment and the labor market for a period of up to nine months per year. Indeed, the employee actually worked after his IBEW retirement, having taken a job at for HC Price in July of 2005. Additionally, we find the employee was actively seeking employment in August of 2005, but had to decline a job at Fort Wainwright, because his shoulder injury had become more painful and symptomatic.

Further, the employee was on the books at the union hall, which we find signifies his availability to work. Indeed, he was still on the books at the time of the instant hearing. Accordingly, we find it was the employee's intent to continue seeking employment after his union retirement. Therefore, as in Vetter, we find the employee did not have the “personal desire” to fully retire, but was physically unable to work, as a result of his work-related injury, during the time period he was recovering from surgery. Accordingly, we conclude the employee shall be paid TTD benefits during the period of November 16, 2005 through May 10, 2006.

II. Interest.

The employee requests interest on the awarded TTD benefits, pursuant to Land & Marine Rental Co. v. Rawls, 686 P.2d 1187,1192 (Alaska 1984). 8 AAC 45.142 requires the payment of interest at a statutory rate, as provided at AS 45.45.010, from the date at which each installment of compensation is due. See also, Harp v. Arco Alaska, Inc., 831 P.2d 352 (Alaska 1994); Childs v. Copper Valley Electrical Association, 860 P.2d 1184, 1191 (Alaska 1993). By operation of law, we find the employee is entitled to a payment of interest from the employer on all compensation benefits ordered in this decision.

III. Attorney Fees and Costs.

AS 23.30.145 states, in pertinent part:

(a) Fees for legal services rendered in respect to a claim are not valid unless approved by the board, and the fees may not be less then 25 percent on the first $1,000 of compensation or part of the first $1,000 of compensation, and 10 percent of all sums in excess of $1,000 of compensation. When the board advises that a claim has been controverted, in whole or in part, the board may direct that the fees for legal services be paid by the employer or carrier in addition to compensation awarded; the fees may be allowed only on the amount of compensation controverted and awarded. . . .

(b) If an employer fails to file timely notice of controversy or fails to pay compensation or medical and related benefits within 15 days after it becomes due or otherwise resists the payment of compensation or medical and related benefits and if the claimant has employed an attorney in the successful prosecution of the claim, the board shall make an award to reimburse the claimant for the costs in the proceedings, including a reasonable attorney fee. The award is in addition to the compensation or medical and related benefits ordered.

Based on our review of the record, we find the employee’s attorney successfully obtained benefits for the employee. Specifically, he prevailed over the employer’s resistance to payment of TTD and related benefits. Accordingly, we conclude the employee is entitled to receive compensation for his attorney’s fees for obtaining these benefits.

In this case, the employee’s attorney and his paralegal, Pete Stepovich, billed a total of 25.90 hours to this case, including the time spent at hearing. Attorney Robert Beconovich bills his time at a rate of $250.00 per hour. Paralegal Stepovich bills at $100 per hour.

After taking into account the nature, length, complexity and benefits received in this case, we find the employee’s attorney fees and costs reasonable. Accordingly, we will order the employer to pay the employee in the amounts of $4,795.00 for attorney fees and paralegal costs.

ORDER

1. The employer shall pay the employee temporary total disability benefits in accord with this decision. AS 23.30.185.

2. The employer shall pay the employee interest in accord with this decision. 8 AAC 45.142.

3. The employer shall pay the employee’s reasonable attorney fees and costs in the amount of $4,795.00. AS 23.30.145.

Dated at Fairbanks, Alaska this 21st day of February, 2007.

ALASKA WORKERS' COMPENSATION BOARD

______

Fred Brown, Designated Chairman

______

Debra Norum, Member

______

Jeff Pruss, Member

APPEAL PROCEDURES

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Effective November 7, 2005 proceedings to appeal must be instituted in the Alaska Workers’ Compensation Appeals Commission within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board. If a request for reconsideration of this final decision is timely filed with the Board, any proceedings to appeal must be instituted within 30 days after the reconsideration decision is mailed to the parties or within 30 days after the date the reconsideration request is considered denied due to the absence of any action on the reconsideration request, whichever is earlier. AS 23.30.127.

An appeal may be initiated by filing with the office of the Appeals Commission: (1) a signed notice of appeal specifying the board order appealed from and 2) a statement of the grounds upon which the appeal is taken. A cross-appeal may be initiated by filing with the office of the Appeals Commission a signed notice of cross-appeal within 30 days after the board decision is filed or within 15 days after service of a notice of appeal, whichever is later. The notice of cross-appeal shall specify the board order appealed from and the grounds upon which the cross-appeal is taken. AS 23.30.128.