JOSEPH L. LOPEZ, 
Employee, 
Applicant
v. 
NABORS ALASKA DRILLING, INC,
Employer,
and 
NABORS PETROLEUM SERVICE,
Insurer,
Defendants.

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FINAL
DECISION AND ORDER
AWCB Case No. 199801812
AWCB Decision No. 00-0052 
Filed in Anchorage, Alaska
March 20, 2000.

On February 22, 2000, in Anchorage, Alaska we heard the petitions of the employee and the employer. The employee sought reemployment benefits, temporary total disability (TTD), temporary partial disability (TPD), and an increase in his permanent partial impairment (PPI) rating. The employer appealed the Reemployment Benefit Administrator (RBA)’s decision referring the employee for an eligibility determination. The employer also petitioned the board for costs and sanctions against the employee’s attorney because of a previous continuance request, and sought a criminal investigation referral against the employee. Attorney William M. Erwin represented the employee. Attorney Shelby L. Nuenke-Davison represented the employer. We closed the record at the conclusion of the hearing.

1. Is the employee entitled to reemployment benefits?
2. Is the employee entitled to TTD?
3. Is the employee entitled to an increase in his PPI rating?
4. Shall we sanction the employee’s counsel for failure to attend a previous hearing?

5. Shall we refer this matter for criminal investigation?

The employee was injured while working as a roustabout for the employer on January 9, 1998. A piece of sheet metal struck the employee’s left lateral shin and calf. The employee reported the incident and, at the urging of his supervisor, went to the hospital. The employee’s treating physician, Katherine L. Kolb, M.D., wrote an off-work slip for the employee. She stated:

The employee testified Dr. Kolb also issued a light-duty work slip for him. He claimed that when he returned to work on January 12, 1998, he presented the employer this light-duty work slip and worked light duty until he was laid off on March 10, 1998. The employer requested the employee produce this document. The employee never produced any light-duty slip, Dr. Kolb did not have any record of a light-duty slip and there is no light-duty slip in our records. Belinda Wilson, the employer’s personnel manager testified she never received any light-duty release on behalf of the employee. At her deposition, Dr. Kolb testified she initially expected the employee would fully recover from the accident, and did not suggest the employee return to see her. (Dr. Kolb’s Deposition, pp. 41-42).

The work accident occurred on a Friday. The employee was not scheduled to work over the following weekend. The employee returned to work on Monday, January 12, 1998. The employee therefore lost no compensable time from work. He continued to work for the employer full-time until he was laid off on March 10, 1998.

The employee testified he repeatedly complained to his supervisor, Roger Milionta, that his leg hurt because of the January 9, 1998 accident. The employee’s direct supervisor, Roger Milionta, filed an affidavit and testified at the hearing. He stated:

Mr. Milionta testified that, as part of the employer’s wellness program, he regularly asked the employee about his overall health and the employee never complained about his leg. He testified he never received any light-duty medical notes regarding the employee. Mr. Milionta testified the employee was laid off on March 10, 1998. He testified the employer was finished with the portion of the project that required roustabouts, and started laying roustabouts off, by seniority and skill level. He testified he saw the employee several times since he was laid off, around Anchorage, in the spring of 1999 and in approximately December 1999. He testified he saw the employee walking around and up stairs and noticed the employee was not walking any differently than he always had. He also testified the employee repeatedly asked him when there would be work available for him, because he desired to return to work for the employer.

When asked by his attorney why he had not worked since his lay-off in March, 1998, the employee testified he did not wish to return to work in retail, and had repeatedly "checked with Miss Belinda Wilson" to see if there was any work available with the employer. (Employee’s Hearing Testimony, Tape I). This is consistent with his statements to Dr. Kolb that he was on "stand-by" for work. (Dr. Kolb’s 7/24/98, 2/22/99, 3/29/99 Chart Notes). Later in the hearing, the employee changed his testimony and stated he did not return to work because he "was on workers’ compensation" and could not work. (Employee’s Hearing Testimony, Tape I).

After receiving medical treatment on the day of the accident, the employee did not receive any further treatment for his January 9, 1998 work injury until July 22, 1998. (Dr. Kolb’s Deposition, p. 7). During that visit with Dr. Kolb, the employee stated he had returned to work on January 12, 1998 working "light duty," "in the office," and was not currently working. Id. at 15. In her May 12, 1999 chart notes, Dr. Kolb reported: "Although he went back to work briefly at light duty, he has essentially not worked since that time. This was initially because of pain and then, over time, weakness." (Dr. Kolb’s 5/12/99 Chart Note).

On May 19, 1999, Dr. Kolb issued a report, stating:

At her deposition, Dr. Kolb testified that she based the statement in her May 19, 1999 report - that the employee has been unable to return to work since January 9, 1998 - on the employee’s representations that he was unable to perform his work as a roustabout. (Dr. Kolb’s Deposition, p. 14). When asked to assume the employee had returned to his work at the employer’s as a roustabout and to assume the facts in the affidavit of Mr. Milionta were true, Dr. Kolb testified, "if [the employee] was able to do the job in that immediate time period, I would find it uncommon for him to be able to work then and not work now." Id. at 31.

Upon referral from Dr. Kolb, Shawn Hadley, M.D., evaluated the employee on July 29, 1998. She indicated "[The employee] indicates that he returned to work light duty, then was laid off, and has subsequently remained on standby for work." (Dr. Hadley’s 7/29/98 Report). Dr. Hadley performed EMG studies on the left lower extremity musculature, focusing on those muscles supplied by the peroneal nerve. The EMG study was normal. Id. Her impression was:

At the employer’s request, the employer’s independent medical evaluator (EIME), Scot G. Fechtel, D.C., M.D., examined the employee on April 17, 1999. The employee told Dr. Fechtel he had 32 years of service in the Marine Corps, suffered a shrapnel wound to the left leg while in combat in Vietnam in 1964 which almost caused his leg to be amputated, but received no service-connected disability. (Dr. Fechtel’s 4/17/99 Report).

Dr. Fechtel diagnosed a "soft tissue injury to left calf and leg, with left peroneal neuropathy subsequent." Id. In his report, he noted "the sensory changes described are a subjective assessment." Id. at 4. He found the employee was medically stable, he would not impose physical limitations on the employee, and suggested the employee would benefit from further palliative treatment using Neurontin. Id. at 5-6. Dr. Fechtel found the employee suffered a permanent impairment under the American Medical Association (AMA) Guidelines of 8% of the lower extremity, Id. at 5, which he later converted to a 4% whole person impairment. (Dr. Fechtel’s 5/5/99 Letter).

Dr. Fechtel opined:

During the course of the litigation of this matter, the employee made repeated references to his prior military career and prior war wounds. In various documents and testimony, the employee claimed he was in the United States Marine Corp from 1957 – 1983 (9 years as a reserve) as "CO – armor/infantry / SEAL H2H / Navy SEAL" (Bates No. 129); in the "U.S. Armed Forces" from 1961 – 1967 (Bates No. 781); "U.S.M.C. 1960 to 1964 First Lt. Platoon Cmdr." (Bates No. 753); received a "Purple Hart" (sic) in Vietnam (Bates No. 778); transferred from the Army to the Marines (Employee’s Deposition II, p. 30); was in the Central Intelligence Division (CID) (Id. at 30); and in the Central Intelligence Agency (CIA) (Id. at 57).

The employee testified that, in 1965, "I was a year and half in the hospital because I was wounded in combat... Almost I (sic) lost my leg, blowed (sic) right up in a mine. They had to rebuild my leg. And otherwise they was planning to put me a wood leg (sic)." (Employee’s Deposition, pp. 11-12). He testified at hearing this incident occurred in 1967.

Since the employee’s January 9, 1998 work injury was to the same leg as the one the employee claimed was blown up in Vietnam, the employer attempted to obtain his military medical records. When the employer requested the employee sign a release for his military health records, the employee initially refused, claiming he had worked for the CIA, they would not release his records and "If you want to play with fire, go ahead and do it. Might get burned." (Employee’s Deposition I, p. 86).

The employee subsequently signed a military record release. These records revealed the employee was never in the Marine Corps (Bates No. 587); is not a registered veteran in the state of Alaska (Bates No. 574); had never been in a military hospital (Bates No. 572); and had never applied for a VA loan, as he testified he had (Bates No. 574).

The employee testified his social security number was changed when he came to Alaska in 1967, but the employer produced documents showing the employee had the same social security number since 1951.

George Michalick, Head of the Records Correspondence Unit for the Headquarters Marine Corps, in Quantico, Virginia, testified he has been head of the Unit for 6 years. It is his job to determine if a person has been in the Marines. He examined two different DD2-114’s the employee had provided. (Exhibits 2 and 3). He explained that DD2-114’s are very important documents and are proof of time in active duty in the military service. He testified these forms were not valid "at all" and there was no record of the employee ever being in the service. One DD2-114 shows military service from 1959 – 1966, the other shows service from 1959 – 1986. Officer Michalick testified these forms are invalid and appeared to be forged copies. He testified the mustering-out pay (M.O.P.) that appears on the employee’s DD2-114’s was discontinued shortly after World War II, so that was incorrect. The employee’s unit number was not specific, the Social Security number usage was incorrect, the number of years in service was incorrect, and the documents showed the employee would have only been 14 at the time he entered the military. He testified that if a person is given a CIA assignment it is reflected as "leave of absence" in the person’s records. (Michalick’s Hearing Testimony, Tape I).

Anthony L. Gathers, Assistant Special Agent in Charge, CID – Criminal Investigations Command, from Fort Richardson, testified he conducted an investigation of the employee. He testified that representing oneself as a CID agent is a federal offense. He conducted a Pentagon search and CID search to determine if the employee was ever in any branch of the military or ever worked for the CID. He testified there was no record the employee was ever in the military or ever worked for the CIA or CID. He testified that, had the employee ever been in the CID, the employer would have received a special dossier on the employee. He examined the employee’s DD2-114 forms and noticed several typographical errors, and stated the military would not release such a document with errors. He stated that if the employee was in covert operations it would not have resulted in a change of the employee’s prior school or work history.

The employee had claimed in various applications for employment that he had attended West Point Military Academy from 1956 through 1961. (Bates No. 784). Since he was born on November 11, 1941, he would have been 15 years old at the time he started. In another job application, the employee claimed to have attended the University of Texas from 1958-1960, majoring in mechanical engineering. (Bates No. 768, 779). In other applications, the employee claimed to have attended Michigan State University and received a degree from the University of Alaska, Fairbanks. (Bates No. 786; 755). The employer sought information from all four of these institutions and received notification from all of them that there was no record the employee ever attended any of these institutions. (Bates Nos. 584, 580, 578, 579.)

On subsequent resumes, the employee claimed he worked for the Stoffer Chemical Corporation in Houston Texas from 1958 through 1961 as a plant supervisor (Bates No. 781) and the Green Construction Company from 1967 through 1968 as a heavy equipment operator (Bates No. 781). In his application for a City of Fairbanks firefighter position, which he ultimately got, the employee claimed he lived in Fairbanks from 1963 through 1971.

In an affidavit the employee filed with the Alaska Superior Court in a matrimonial action, there is a reference the employee was working for Standard Oil in California in 1968. (Bates No. 181). Although the employee testified half of his military retirement pay goes to his wife via divorce settlement (Employee’s Deposition, p. 35), in the employee’s Agreement and Settlement of Divorce there is reference to the employee’s PERS benefits, but no reference to any military benefits the employee had earned. (Bates Nos. 202 – 205). There is also evidence the employee sought and received 5 years of "indebtedness for active military service under the Public Employees’ Retirement System (PERS)" (Exhibit 3; Bates Nos. 497-498). The employee testified he never applied for workers’ compensation benefits, but the records indicate he has filed approximately 16 workers’ compensation Notices of Injury.

The employer conducted videotaped surveillance of the employee in December 1999 and January 2000 and the videotape was placed in evidence. Upon reviewing the videotape footage of the employee, Dr. Fechtel wrote:

On May 20, 1999, the employee filed a claim seeking TTD benefits from 1/9/98 through 4/17/99 and seeking reemployment benefits and an increased PPI rating. On June 16, 1999, the RBA determined (a) the employee’s claim was compensable; (b) the employee had a May 19, 1999 medical report from Dr. Kolb stating the employee was permanently impaired and could not return to his work; and (c) unusual and extenuating circumstances existed that prevented the employee from timely filing his claim. The employer appeals this decision, claiming, inter alia, Dr. Kolb changed her opinion and no longer believes the employee is incapable of returning to work. The employer paid the employee for a 4% PPI rating that Dr. Fechtel found. There are no medical bills in dispute.

The employer argues that no reemployment benefits are due the employee because the substantial evidence proves the employee is capable of returning to work. The employer argues that no TTD or TPD benefits are due the employee because the employee was not disabled due to his injury. The employer argues that no additional PPI benefits are due the employee. The employer argues that Dr. Fechtel’s 4% rating is a more accurate rating of the employee’s PPI, and Dr. Mulholland’s 12% PPI rating was based significantly on the employee’s altered gait, and should be discounted since the substantial evidence demonstrates the employee does not have an altered gait.

The employer argues for costs and fees because this matter was continued from November 2, 1999, and the employee’s attorney did not have proper reasons for continuing the matter. The employer argues it expended time and money preparing for that hearing and should be reimbursed. The employer also argues that we should refer this matter for criminal investigation.

I. IS THE EMPLOYEE ENTITLED TO REEMPLOYMENT BENEFITS?

The employee requested reemployment benefits on May 20, 1999. AS 23.30.041 (c) states in pertinent part:

Since the employee’s request for reemployment benefits was not made within the prescribed 90-day time period of AS 23.30.041 (c), the board wrote the employee seeking "the reasons that prevented you from requesting a timely evaluation." (Board’s 6/2/99 Letter). On June 4, 1999, the employer’s attorney responded, including Dr. Kolb’s May 19, 1999 letter that the employee could not return to work. It was undisputed at the hearing that the employee did not serve this response on the employer. 8 AAC 45.060. The RBA referred the employee for an eligibility evaluation on June 16, 1999. The employee appeals that referral, claiming the employee failed to properly serve it with documents as required by 8 AAC 45.060. The employer contends that, had it been properly served with the employee’s "reasons that prevented [the employee] from requesting a timely evaluation," it would have timely responded that Dr. Kolb based her opinion regarding the employee’s inability to work on incorrect assumptions and that, ultimately, she changed her opinion upon learning new facts and therefore no physician has determined the employee unable to return to employment. (Employer’s Hearing Brief, pp. 8-9).

We find the employee did not properly serve the employer with the June 4, 1999 letter and documents responding to the board’s inquiry. We next must address if we shall consider the new evidence the employer attempts to present before us regarding the RBA’s decision. 8 AAC 45.070 (b) (1) (A) states, in pertinent part:

The employer argues that, had it been able to respond to the employee’s June 4, 1999 letter, which was not appropriately served on them, it would have responded by (1) informing the board that Dr. Kolb did release the employee to full duty on January 12, 1998 and he worked full duty until he was laid off on March 10, 1998; (2) attempting to immediately have Dr. Kolb address the issue of the employee’s ability to work; and (3) arguing Dr. Fechtel’s opinion that the employee can return to work. We find the employer was not given the opportunity to respond to the employee’s June 4, 1999 letter to the board because that letter was not properly served on the employer. Accordingly, we find the employer could not have produced its rebuttal evidence to the RBA with due diligence. We will therefore include the new evidence adduced by the employer in making our decision.

AS 23.30.041 does not specifically provide us with authority to review the RBA's determination regarding unusual or extenuating circumstances of a late request for an eligibility evaluation, nor does it specify the standard for our review. Nevertheless, we have reviewed such determinations under AS 23.30.110, and apply the abuse of discretion standard found in AS 23.30.041(d). See, e.g., Kincaid v. University of Alaska, AWCB Decision No. 97-0203 (October 9, 1997).

In Sheehan v. University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985), the Alaska Supreme Court stated, "This court has explained abuse of discretion as issuing a decision which is arbitrary, capricious, manifestly unreasonable, or stems from an improper motive." The Court has also stated that abuse of discretion exists only when the Court is "left with the definite and firm conviction on the whole record that the trial judge has made a mistake." Brown v. State, 563 P.2d 275, 279 (Alaska 1977). An agency's failure to properly apply the controlling law may also be considered an abuse of discretion. We have held that misapplication of the law is an abuse of discretion. Binder v. Fairbanks Historical Preservation Foundation, AWCB Decision No. 91-0392 (December 11, 1991).

In the Administrative Procedure Act the legislature has provided another definition to be used by the courts in considering appeals of administrative agency decisions. It contains terms similar to those reproduced above, but also expressly includes reference to a substantial evidence standard:

On appeal to the courts, our decision reviewing the RBA's determination is subject to reversal under the abuse of discretion standard of AS 44.62.570, incorporating the substantial evidence test. Concern with meeting that standard on appeal leads us to apply a substantial evidence standard in our review of an RBA determination.

Applying a substantial evidence standard, a "[reviewer] may not reweigh the evidence or draw its own inferences from the evidence. If, in light of the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, then the order . . . must be upheld." Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978)(footnotes omitted).

A. Presumption Analysis

The employee enjoys a presumption under AS 23.30.120 that he is entitled to reemployment benefits. Kirby v. Alaska Treatment Center, 821 P.2d 127, 129 (Alaska 1991). Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). 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 the chapter . . . ." The Alaska Supreme Court held "the text of AS 23.30.120(a)(1) indicates that the presumption of compensability is applicable to any claim for compensation under the workers' compensation statute." Meek v. Unocal Corp., 914 P.2d 1276, 1279 (Alaska 1996), (quoting Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991)). The employee need only adduce "some" "minimal" relevant evidence Cheeks v. Wismer & Becker/G.S. Atkinson, J.V., 742 P.2d 239, 244 (Alaska 1987) establishing a "preliminary link" between the injury claimed and employment, Burgess Construction, 623 P.2d 312, 316 (Alaska 1981), or between a work-related injury and the existence of disability. Wein Air Alaska v. Kramer, 807 P.2d at 473-74 (Alaska 1991).

Once the presumption is established, "it is the employer's burden to overcome the presumption by coming forward with substantial evidence." Id. (quoting Burgess Construction v. Smallwood, 623 P.2d 312, 316 (Alaska 1981)). The Alaska Supreme Court "has consistently defined 'substantial evidence' as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 1047 (quoting Thornton v. Alaska Workmen's Compensation Board, 411 P.2d at 210).

Because the presumption shifts only the burden of production to the employer, and not the burden of proof, we examine the employer’s evidence in isolation. Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985). We defer questions of credibility and the weight to give the employer's evidence until after we have decided whether the employer has produced a sufficient quantum of evidence to rebut the presumption that the employee's injury entitles him to compensation benefits. Norcon, Inc. v. Alaska Workers’ Comp. Bd., 880 P.2d 1051 (Alaska 1994).

If the employer produces substantial evidence to overcome the presumption, the employee must prove all elements of his case by a preponderance of the evidence. Veco, Inc. v. Wolfer, 693 P.2d 865, 870 (Alaska 1985). "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 [trier of fact] that the asserted facts are probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

B. Is the Employee Eligible for RBA Benefits?

Dr. Kolb reported the employee was unable to return to work and would suffer permanent disability due to his work injury. (Dr. Kolb’s 5/19/99 Report). We find this is sufficient to raise the presumption of compensability. Following the Court's rationale in Meek, 914 P.2d 1276, we therefore apply the presumption of compensability from AS 23.30.120(a)(1) to the reemployment benefits he seeks.

Since the employee established the presumption of compensability, the burden shifts to the employer to rebut this presumption with substantial evidence.

We find the employer has offered substantial evidence to rebut the presumption. Dr. Fechtel reported the employee would suffer permanent disability, but found the employee was capable of returning to work. (Dr. Fechtel’s 4/17/99 Report and 6/20/99 Letter). Also, Dr. Kolb, in her deposition testimony stated that if the employee went back to full duty immediately after his work accident, and worked full time for the next two months "I would find it uncommon for him to be able to work then and not work now." (Dr. Kolb’s Deposition, p. 31). Furthermore, the employer presented evidence that the employee sought re-employment (Milionta’s Affidavit) and the employee also testified he sought to return to work and repeatedly told Dr. Kolb and Dr. Hadley he was waiting to be called to work by the employer. We find the employer has offered substantial evidence rebutting the presumption. See Safeway v. Mackey, 965 P.2d 22, 27-28 (Alaska 1998); Grainger v. Alaska Workers' Compensation Board, 805 P.2d 976, 977 (Alaska 1991).

The employee must prove his claim for reemployment benefits by a preponderance of the evidence. Meek, 914 P.2d at 1280. We find the employee has failed to meet his burden of proof. We find Mr. Milionta is credible and we find his hearing testimony and affidavit to be accurate and truthful. AS 23.30.122. By contrast, we find the employee is not credible. Id. We find the substantial evidence demonstrates the employee misrepresented facts to Dr. Kolb and she erroneously relied on those facts in making her determination the employee could not return to work. Dr. Kolb testified she felt the employee was incapable of going back to his "heavy duty job," but could return to his "light duty work." (Dr. Kolb’s Deposition, p. 16). We find the employee returned to work without restrictions on January 12, 1998. We find that he worked full duty from 1/12/98 – 3/10/98, without any problems due to his work accident. We find he did not complain to his supervisor about his leg bothering him during this time period. We find he was laid off due to lack of work. We find the employee repeatedly sought employment after his layoff until near the time of this hearing. We find the employee represented to Dr. Kolb that he had gone back to work light duty in an office. We find this was untrue. We find the employee actually returned to his "heavy duty job" as a roustabout. (Dr. Kolb’s Deposition, p. 16). We find Dr. Kolb based her determination the employee could not return to work on the statements the employee made that he returned to work light duty in an office job. We find that, when Dr. Kolb realized the employee had returned to work without restrictions at his regular job as a roustabout, she changed her opinion that the employee could not return to his job. We find the employee has been capable of returning to his job as a roustabout from March 10, 1998 through the present.

Dr. Mulholland alluded in his report that the employee "cannot return to full duty work, as he states that he ‘stumbles’ regularly." (Dr. Mulholland’s Examination Report). Dr. Mulholland based this finding and his PPI rating on the fact the employee had "gait derangement." He made his determination extensively on the fact the employee was limping in his office and "has difficulty with ... stairs." After reviewing the videotaped surveillance of the employee, we conclude the employee does not have a limp, nor does he stumble regularly. We find that on December 14, 1999, the surveillance showed the employee walking up and down several flights of stairs with no noticeable limp, without using the handrails, and while carrying things in both hands. These tapes show the employee working on his car, kicking his tires and walking around in icy conditions with no limp.

We find the tape of January 7, 2000 shows the employee walking into Dr. Fechtel’s office for the EIME with a very noticeable limp, but then after his examination the tape shows the employee walking around the icy parking lot, up and down several flights of stairs with no limp and again without using the hand rails. We find the employee purposefully exaggerated his limp while at Dr. Fechtel’s and Dr. Mulholland’s offices. We find the employee’s testimony regarding his limp to be untrue and exaggerated and we find any minor limp the employee does have pre-exists his work accident at the employer’s. (Milionta’s Affidavit).

We also note that Dr. Mulholland relied on statements from the employee that he returned to work "light duty." (Dr. Mulholland’s Examination Report). It was not unreasonable for Dr. Mulholland to rely on the employee’s statements and representations. This is common in medical practice. However, we find that Dr. Mulholland’s report carries no weight because it relied extensively on the false representations made by the employee. Since we find the facts underpinning his conclusions are false, it necessarily follows that we cannot rely on his conclusions.

We find no other doctor has determined the employee is incapable of returning to work. We find the employee actively sought to return to work with the employer. We also find the employee has not suffered any loss of earning capacity as a result of his work injury. Vetter v. Alaska Workers’ Compensation Board, 524 P.2d 264 (Alaska 1974). We find the employee is ineligible for reemployment benefits because he has failed to obtain a reliable opinion from a physician that he is incapable of returning to his work. AS 23.30.041 (c); 8 AAC 45.520 (a). We find that the RBA’s decision is not supported by the substantial evidence. We reverse the decision of the RBA.

II. IS THE EMPLOYEE ELIGIBLE FOR AN INCREASED PPI RATING?

The employee claims his PPI rating should be increased. Dr. Fechtel determined the employee suffered a 4% PPI. David J. Mulholland, D.C., evaluated the employee at the request of the employee’s attorney. He found the employee suffered a 12% PPI as a result of his work accident. He stated:

We find this was sufficient to raise the presumption the employee is due an increase in his PPI rating. Following the Court's rationale in Meek, 914 P.2d at 1280, we therefore apply the presumption of compensability from AS 23.30.120(a)(1) to the PPI benefits he seeks.

Since the employee established the presumption of compensability, the burden shifts to the employer to rebut this presumption with substantial evidence. We find the employer has offered substantial evidence to rebut the presumption. Dr. Fechtel stated the employee’s PPI rating was 4%, the amount paid by the employer. He stated:

We conclude the employer has offered substantial evidence rebutting the presumption. See Mackey, 965 P.2d at 27-28; Grainger, 805 P.2d at 977.

The employee must prove his claim for an increased PPI rating by a preponderance of the evidence. Meek, 914 P.2d at 1280. We find the employee has failed to meet his burden of proof. Dr. Mulholland noted the employee’s neurological deficits, i.e., the superficial peroneal neuropathy, accounted for 3% of the employee’s PPI rating, and the other 9% was the result of his gait impairment. We also note that Dr. Mulholland did not review any of the other medical records when preparing his report. (Dr. Mulholland’s Deposition, p. 17). Dr. Mulholland stated, "While I agree with Dr. Fechtel that he has a peroneal neuropathy, I believe that an element of his impairment is missing in that his gait impairment was not fully appreciated." Id. Dr. Mulholland graded the employee’s gait impairment as:

Dr. Mulholland stated "Apparently the guides put great weight in gait impairment," and accordingly assessed an additional 9% to the employee’s PPI for the employee’s limp. (Dr. Mulholland’s Deposition, p. 13). As discussed supra, we find the employee suffers no limp from this work accident. Therefore, Dr. Mulholland’s PPI finding should be reduced to 3%, the amount of his PPI rating minus the percentage assigned for the employee’s limp. Dr. Fechtel found the employee suffered a 4% PPI. Dr. Fechtel also stated that the only change between the employee’s April 1999 examination and the January 2000 examination was "the subjective portion of the examination... the strictly objective portion of the exam is unchanged." (Dr. Fechtel’s 1/7/00 Report). We find Dr. Fechtel credible and rely on his opinion. AS 23.30.122. Since the subjective portion, i.e. the employee’s limp, is controlled by the employee, and we have found him not credible, we find that an increased PPI rating is not supported by the substantial medical evidence.

Dr. Fechtel also had the benefit of reviewing the medical records and the surveillance tapes that showed the employee walking with ease up and down stairs and with no limp. We agree with Dr. Fechtel’s conclusions and find the employee suffered a 4% PPI. The employee has failed to prove he is entitled to an increase in his PPI rating. Since 4% PPI benefits have already been paid to the employee, no additional PPI benefits are due the employee.

The employee is seeking TTD benefits from 1/9/98 though 4/17/99. We have discussed the employee’s ability to work supra. We incorporate our findings of fact from above. We find that Dr. Kolb’s and Dr. Mulholland’s opinions that the employee could not return to work were based on inaccurate statements by the employee. Since we have found the employee not credible, we find the conclusions made by Dr. Kolb and Dr. Mulholland are not supported by the substantial evidence. Any presumptive compensability to TTD or TPD benefits has been rebutted by Dr. Kolb, who subsequently altered her statements the employee should be on light duty, and Dr. Fechtel, who stated:

Furthermore, we find the employee was on "stand by" for work from the time he was laid off on March 10, 1998. We find the substantial evidence demonstrates he was ready, willing and able to work for the employer as a roustabout since his layoff. In Vetter v. Alaska Workers’ Compensation Board, 524 P.2d 264 (Alaska 1974), the Court held:

We find the employee has exaggerated his limp, and has been capable of working in his previous position since March 10, 1999. We find the employee has suffered no loss of earning capacity because of his work injury. As discussed supra, we find there is no reliable medical opinion that the employee was incapable of returning to work without restrictions after January 12, 1998. We find the employee has failed to meet his burden of proof that he is eligible for TTD or TPD. The substantial evidence demonstrates the employee’s claim must be denied.

IV. SHALL WE SANCTION THE EMPLOYEE’S ATTORNEY?

The employer requests costs and fees for the continuance request we granted at the previous hearing date. The pertinent facts regarding this issue and our previous Decision & Order are found in Lopez v. Nabors Alaska Drilling, Inc., AWCB Decision No. 99-0233 (November 17, 1999). We hereby incorporate those facts and findings. The employee’s attorney testified at the instant matter that he had an emergency court martial hearing to attend on the day of the previous hearing. Since we previously found that was a proper reason for granting the continuance, we will not grant the employer’s request for costs and fees.

V. SHALL WE REFER THIS MATTER FOR CRIMINAL INVESTIGATION?

We find the employee has engaged in an inexplicable pattern of deceit and has seriously breached the trust of his doctors, his former employer the City of Fairbanks, the State of Alaska PERS, and this board. We find the employee has lied about his former jobs, his military service, his schooling and his physical condition since the time of his work accident. The evidence adduced in the course of this matter reveals the employee obtained additional PERS benefits as a result of his statements that he was in the military. The overwhelming evidence proves beyond any reasonable doubt the employee was never in the military. Accordingly, we will refer this matter to the appropriate authorities for investigation. Dougan v. Aurora Electric, Inc., AWCB Decision No. 99-0113 (May 14, 1999). Copies of this Decision & Order shall be sent to the City of Fairbanks, the PERS Board and the Fraud Investigation Office of the Division of Insurance.

Officer Anthony L. Gathers, CID, testified the employee was never a member of the military or the CID. He testified that holding oneself out as such is a federal offense. Accordingly, a copy of this Decision & Order will be sent to Officer Gathers.

1. The RBA’s decision granting an eligibility referral for reemployment benefits is reversed. The employee’s request for reemployment benefits is denied and dismissed.
2. The employee’s petition for increased PPI benefits is denied and dismissed.
3. The employee’s petition for TTD and TPD benefits is denied and dismissed.
4. The employer’s petition for fees and costs is denied and dismissed.
5. This matter shall be referred to the City of Fairbanks District Attorney, Officer Anthony L. Gathers, CID, at Fort Richardson, the PERS Board and to the Fraud Investigation Office of the Division of Insurance.

Dated at Anchorage, Alaska this 20^th day of March, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Wielechowski
William P. Wielechowski,
Designated Chairman

/s/ John A. Abshire
John A. Abshire, Member

/s/ S. T. Hagedorn
S.T. Hagedorn, 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 Final Decision and Order in the matter of JOSEPH L. LOPEZ employee / applicant; v. NABORS ALASKA DRILLING, INC, employer; NABORS PETROLEUM SERVICE, insurer / defendants; Case No. 199801812; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 20^th day of March, 2000.

Debra C. Randall, Clerk

SNO