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

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

DECISION AND ORDER
ON RECONSIDERATION
AWCB Case No. 199915891
AWCB Decision No. 00-0047
Filed with AWCB Fairbanks, Alaska
on March 10th, 2000

We decided the employee’s petition for reconsideration based on the written record in Fairbanks, Alaska on February 17, 2000. The employee represented himself. Paralegal Siobhan M. Loescher represented the employer and insurer ("employer"). We closed the record at the time of our deliberations.

Shall we reconsider our finding that the employee the employee did not stop working or suffer economic loss because of his work-related injury, as concluded in our January 21, 2000 decision and order (D&O) (AWCB decision no. 00-0011)?

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.

Prior to our last hearing in this case, the employer questioned the compensability of the employee’s claim, but it paid the employee’s medical benefits. Therefore, the only issue heard by the Board was whether the employee was entitled to temporary total disability benefits from September 2, 1999 through October 22, 1999, when he was given the full medical release to work.

In our January 20, 2000 decision and order, we found the employee’s claim was not compensable as follows:

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 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 seeks reconsideration, contending we were mistaken in stating the employee did not report the injury to his supervisor on the day of the injury, and that he had stated he had had a previous injury.

As an administrative agency, we are permitted to reconsider a previously issued decision, in accordance with AS 44.62.540, which reads as follows:

Our review of the record convinces us we did not make a mistake in reaching the conclusions contained in our decision. Nevertheless, in order to be precise concerning the basis of our conclusions, we have reviewed the employee’s testimony from the prior hearing. Specifically, we recognize the employee did testify he reported the injury to the employer and that he did not attribute his condition to a previous injury. Although the employer disputes is testimony, this did not serve as the basis of our conclusion the employee is not entitled to additional benefits. Instead, we denied the employee's claim for benefits based on our conclusion the employee stop working, not because of injury, but because he was fired for insubordination. We reaffirm that decision here and, therefore, deny the employee's request for reconsideration.

The employee's petition for reconsideration is denied and dismissed.

Dated at Fairbanks, Alaska this __10^th ___ day of March, 2000.

ALASKA WORKERS' COMPENSATION BOARD

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

/s/ Dorothy Bradshaw
Dorothy Bradshaw, Member

Dissent by member John Giuchici:

As I stated in my January 21, 2000 dissenting opinion, I believe the employee did suffer a loss of earning capacity from a work-related injury, such as to be disabled. I would continue to find the employee’s claim compensable.

/s/ John Giuchici
John Giuchici, Member

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 on Reconsideration 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 _10^th ____ day of March, 2000.

Lora Eddy, Clerk

SNO