MICHAEL S. KING, 
Employee, 
Applicant
v. 
YUNS COMPANY,
Employer,
and 
MAJESTIC INSURANCE,
Insurer,
Defendants.

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DECISION AND ORDER
AWCB Case No. 199915891
AWCB Decision No. 00-0011
Filed with AWCB Fairbanks, Alaska
on January 21, 2000

We heard the employee's claim for temporary total disability (TTD) benefits at Fairbanks, Alaska on December 9, 1999. The employee represented himself. Paralegal Siobhan M. Loescher represented the employer and insurer ("employer"). We closed the record at the end of the hearing.

Whether the employee is entitled to temporary total disability benefits from September 2, 1999 through October 27, 1999.

The employer hired the employee in May, 1999, as a carpenter to work on the Ft. Wainwright housing revitalization project. The employee testified that on July 19, 1999, he injured his shoulder when he fell from a ladder. He said he informed his supervisor of the incident. According to the supervisors, however, when the employee clocked out he mentioned he was injured on a prior job. The next day, according to the employer, the employee stated that he had injured his back on a prior on-the-job injury, his back was bothering him, and he left early. Four days later, July 24, 1999, the employee clocked in and immediately clocked out, again stating that his back was bothering him.

On August 11, 1999 the employee reported to the Tanana Valley Clinic and stated he injured himself on July 19, 1999 while working for the employer at the Ft. Wainwright construction site. He reported upper neck and back pain that had gradually gotten worse since he had attempted to move a 2 x 6 board. The employee demonstrated full shoulder range of motion bilaterally without pain, and normal strength, sensation, and reflexes. PA Larry Fischer diagnosed cervical strain and referred the employee to physical therapy. The employee completed a report of injury on August 11, 1999. He attended seven physical therapy sessions in August while continuing to work light duty.

Charles Steiner, M.D., re-evaluated the employee on August 30, 1999. The employee reported flare ups of his right arm pain. Dr. Steiner noted that the employee had multiple pre-existing injuries to his lower back, hips and legs. Dr. Steiner also noted the employee was able to continue hauling three 5-gallon buckets of food on a nightly basis to feed his 59 dogs.

Upon examination, Dr. Steiner found the employee had full cervical, shoulder and elbow range of motion without impingement signs, or swelling, but the employee reported discomfort with palpation at the anterior deltoid area. Instead of cervical strain, Dr. Steiner diagnosed a mild rotator cuff syndrome with associated pain to the neck and arm for which he recommended continued physical therapy and light duty work. Dr. Steiner issued a written work restriction which said, "Work capacity is restricted to driving/lifting up to 40# not over shoulder height."

The next day, the employee’s supervisor Ed Shirk discussed with him using a skill saw within the written work restrictions. The project manager, Merrick Pierce, testified Shirk asked the employee to give the skill saw a try, and he told him if he started to hurt, he could quit. The employee became angry and verbally abusive, resorting to shouting obscenities at his supervisor. Shirk informed him that he should at least try to use the saw, since it was under the work restriction, and added that the employee’s language was not to be used on this job. Following this confrontation, the employee failed to call in during business hours or report to work the next two days. Based upon the employee’s August 31, 1999 insubordination and failure to report to work, the employer decided to terminated him.

In a September 1, 1999 letter, addressed to whom it may concern, Dr. Steiner clarified the employee’s work restrictions:

1. He may drive without restriction.
2. He may lift 5 lb. up to but not over his shoulder height.

Pierce testified the employee’s use of the skill saw would have complied with these restrictions.

On September 4, 1999 the employee returned to the employer’s office to pick up his pay check. Shirk gave the employee his written termination notice, after which the employee again shouted obscenities, in the presence of another employee.

The employee applied for unemployment benefits with the State of Alaska Department of Labor, certifying that he was ready, willing and able to work without restrictions. After investigating the claim, the State determined that the employee was discharged for misconduct in connection with his work which, pursuant to AS 23.20.379, 8 AAC 85.095, mandated a six week benefit penalty and reduced weekly benefits.

The employee continued physical therapy and attended seven sessions in September, 1999. The therapists noted that the employee greatly improved, but then noted on September 10, 1999 his activities of daily living, including carrying 5-gallon buckets of dog food, and raking the dog yard, had re-aggravated his symptoms.

The employer controverted all benefits on September 7, 1999, pending further investigation, based upon the employee’s inconsistent reports of injury. On September 13, 1999, the employee filed a claim for medical and temporary total disability workers’ compensation benefits. On October 22, 1999 Dr. Steiner released the employee to return to work without restrictions.

Although the employer questioned the compensability of this claim, it has paid the employee’s medical benefits. The only issue before the Board is whether the employee is entitled to temporary total disability benefits from September 2, 1999 through October 22, 1999, when he was given the full medical release to work.

The Alaska Workers' Compensation Act (Act) defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." AS 23.30.395(10). The Act provides for benefits of 80% of the employee's spendable weekly wage while the disability is "total in character but temporary in quality," but does not define temporary total disability (TTD).

In Phillips Petroleum Co. v. Alaska Industrial Board, 17 Alaska 658, 665 (D. Alaska 1958) (quoting Gorman v. Atlantic Gulf & Pacific Co., 178 Md. 71, 12 A.2d 525, 529 (1940)), the Alaska territorial court defined TTD as "the healing period or the time during which the workman is wholly disabled and unable by reason of his injury to work." In Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264, 266 (Alaska 1974), the Alaska Supreme Court stated:

The concept of disability compensation rests on the premise that the primary consideration is not medical impairment as such, but rather loss of earning capacity related to that impairment. An award for compensation must be supported by a finding that the claimant suffered a compensable disability, or more precisely, a decrease in earning capacity due to a work-connected injury or illness.

A physician’s report that an employee is able to return to work is sufficient evidence to justify denial of temporary total disability benefits. Grove v. Alaska Constr. & Erectors, 948 P.2d 454 (Alaska 1997). Additionally, an employee is prohibited from receiving TTD for any week in which the employee collects unemployment benefits. AS 23.30.187.

AS 23.30.120(a) provides in pertinent part, "In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter . . . . " The evidence necessary to raise the presumption of compensability varies depending on the type of claim. "[I]n claims based on highly technical medical considerations, medical evidence is often necessary in order to make that connection" Burgess Construction Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981). (Smallwood II). In less complex cases, lay evidence may be sufficiently probative to establish causation. Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). The Alaska Supreme Court stated in Wien Air Alaska v. Kramer, 807 P.2d 471, 474, n. 6 (Alaska 1991): "The fact that Kramer suffered a work related injury for which he received compensation from Wien Air is sufficient to establish a preliminary link between his employment and his continuing disability thus implicating AS 23.30.120(a)." Also in Baker v. Reed-Dowd, Co., 836 P.2d 916, 919 (Alaska 1992) the court held that, "Once an employee is disabled, the law presumes that the employee remains 'disabled unless and until the employer introduces 'substantial evidence' to the contrary." (Citing Olson v. ATC/Martin J.V., 818 P. 2d 669, 672 (Alaska 1991)).

Once the presumption attaches, the employer must come forward with substantial evidence that the disability is not work-related. Smallwood II, at 316. Substantial evidence is such relevant evidence as a reasonable mind would accept in light of all the evidence to support a conclusion. Kessick v. Alyeska Pipeline Service Co., 617 P.2d 755 (Alaska 1980). There are two methods of overcoming the presumption of compensability: (1) presenting affirmative evidence showing that the disability is not work-related or (2) eliminating all reasonable possibilities that the disability is work-related. Grainger v. Alaska Workers' Compensation Board, 805 P.2d 976, 977 (Alaska 1991).

The same standards used to determine whether medical evidence is necessary to establish the preliminary link apply to the determination of whether medical evidence is necessary to overcome the presumption. Veco, at 871. "Since the presumption shifts only the burden of production and not the burden of persuasion, the evidence tending to rebut the presumption should be examined by itself." Id. at 869.

If the employer produces substantial evidence that the disability is not work-related, the presumption drops out, and the employee must prove all elements of his case by a preponderance of the evidence. Id. at 870. "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of the [triers of fact] that the asserted facts are probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

In the first instance, we are willing to assume the employee has established the preliminary link between his injury and inability to work. We base this conclusion on his testimony he could not lift five pounds in accord with Dr. Steiner’s work release.

Nevertheless, an award for compensation must be supported by a finding that the employee suffered a decrease in earning capacity, due to a work-related injury or illness. Vetter v. Alaska Workers Comp. Bd., 524 P.2d 264 (Alaska 1974). In Grove v. Alaska Constr. & Erectors, 948 P.2d 454 (Alaska 1997) the employee appealed to the Alaska Supreme Court that the evidence did not support the Board’s findings that he did not have a loss of earning capacity as a result of a shoulder injury. The Supreme Court disagreed. It found that the evidence before the Board, the employee’s testimony that he worked two carpentry jobs and commercial fished, along with doctor’s reports that he could work, constituted substantial evidence supporting the Board’s determination that he was not entitled to TTD.

To overcome the presumption in this case, the employer relies, in part, on the following to support the conclusion the employee did not suffer a reduction in earning capacity, due to his injury. On August 31, 1999 supervisor Ed Shirk requested the employee try to operate a skill saw, which was not over shoulder height and within the weight restriction proscribed by Dr. Steiner. The employee became abusive, and screamed obscenities at his supervisor. The employee left the job site and did not call during office hours or return until September 4, 1999. In a letter dated September 1, 1999 Dr. Steiner specifically stated the employee could operate a table saw. The employee’s job at the time of injury was within the physical limitations set by his doctor. The employer also assigned other light duty work, expediting, and the employee could have worked with a partner, as he often did. Based on the available evidence, that the employee could have continued to earn his regular rate of pay, despite his work restrictions, if he had not been terminated, we find the employer has provided substantial evidence to overcome any presumption of compensability.

Finally, we find by a preponderance of the evidence the employee did not stop working or suffer economic loss because of his work-related injury. Dr. Steiner did not take the employee completely off work. We find the only reason the employee ceased working was his termination due to insubordinate screaming of obscenities at his supervisor, and his failure to report to work. Accordingly, we conclude the employee’s claim for disability benefits must be denied.

The employee’s claim for workers’ compensation benefits is denied and dismissed.

Dated at Fairbanks, Alaska this 21^st day of January, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Fred G. Brown
Fred Brown, Designated Chairman

/s/ Dorothy Bradshaw
Dorothy Bradshaw, Member

Dissent by member John Giuchici:

I believe that upon reporting his on-the-job injury, the employee was singled out by the employer for termination. I believe the termination procedures followed were not in good faith and the employee was set up to fail. Given his level of frustration, I believe the employee lost his temper and the employer seized upon the incident as grounds for termination.

In sum, I do not believe the employer offered the employee a bona fide light duty job, within the limited work restrictions. Therefore, I would conclude the employee did suffer a loss of earning capacity, such as to be disabled. I would find the employee’s claim compensable.

/s/ John Giuchici
John Giuchici, Member

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. Proceedings to appeal must be instituted in Superior Court 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, as provided in the Rules of Appellate Procedure of the State of Alaska.

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of MICHAEL S. KING employee / applicant; v. YUNS COMPANY, employer; MAJESTIC INSURANCE, insurer / defendants; Case No. 199915891; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 21^st day of January, 2000.

Lora Eddy, Clerk

SNO