ALASKA WORKERS’ COMPENSATION BOARD
P.O. Box 25512 Juneau, Alaska 99802-5512
ROGER B. HARRIS, ) ) Employee, ) DECISION AND ORDER Respondent, ) AWCB Case Nos. 8102561 v. ) 8627457 ) AWCB Decision No. 90-0075 KENAI PENINSULA, BOROUGH, ) ) Filed with AWCB Anchorage Employer, ) April 19, 1990 ) and ) ) WAUSAU INSURANCE COMPANIES ) ) Insurer, ) ) and ) ) ALPAC/INA, ) ) Insurer, ) Petitioners. ) )
Petitioners request that we dismiss Employee's claim was heard based on the documents in our file and the written arguments at Anchorage, Alaska, on April 4, 1990. Employee is represented by attorney B. Gil Johnson. Wausau Insurance Companies (Wausau), Employer's insurer at the time of Employee's 1973 exposure, is represented by attorney Patricia Zobel. ALPAC/INA (ALPAC), the insurer at the time of Employee's 1986 exposure, is represented by attorney Timothy McKeever.
ISSUES
SUMMARY OF THE EVIDENCE AND ARGUMENTS
Employee was employed as a fire fighter from 1973 until December 1986. In 1973 Employee suffered an exposure to ammonia fumes while fighting a chemical fire. He noticed a diminished sense of smell after that exposure, but did not require medical treatment for the exposure. (Harris Nov. 7, 1987 Dep. (Harris 1), pp. 39, 46 - 47, 49, 50). Employee estimated he lost about 70 percent of his ability to smell. (Id. at 52).
Employee testified that he told his fire chief and two captains about the incident and loss of ability to smell, within a few days after the exposure. (Id. at 52). Employee Was examined by Dr. Thomas in 1981 or 1982 who noticed that his sense of smell was impaired.
In October 1986, Employee was again involved in fighting a chemical fire. He briefly removed his mask, had difficulty in breathing, and replaced the mask. A few days latter he realized he could not smell. (Harris Aug. 29, 1988 Dep. (Harris II) at 17). He then sought treatment from J. David Williams, M.D., beginning in October 1986. In his November 28, 1986, letter Dr. Williams advised Employer that Employee should no longer work as a fire fighter due to his inability to smell. On December 5, 1986, Employee was terminated as a fire fighter and placed on sick leave. (Willis December 5, 1986, memorandum).
On January 27, 1987, Employee gave Employer notice of an on the-job injury. On February 25, 1987, ALPAC, the insurer at the time of 1986 incident, controverted Employee's right to compensation benefits contending the disability was not work-related. On March 9, 1987, ALPAC filed another notice of controversion in which it contended Employee's condition was a result of the 1973 exposure.
On March 31, 1987, Employer's personnel director notified Wausau, the insurer at the time of Employee's 1973 exposure, of the injury. Copies of the notice of injury, the controversions, Dr. Williams, letter, and the memo relieving Employee from duty accompanied the letter to Wausau. In the following two months, Wausau investigated the incident, took a recorded statement from Employee, and requested medical records.
On April 13, 1987, we received Employee's claim for temporary total and permanent partial disability benefits. The claim was filed against Employer, listed a date of injury of October 1986, and listed ALPAC as Employer's insurer. Our staff served the claim on Employer and ALPAC on April 20, 1987.
Wausau filed a Controversion Notice denying all benefits on May 19, 1987. The notice listed June 22, 1973 as the date of injury. The notice stated that benefits were controverted because the notice of injury was not timely, the time for filing a claim had passed, and the employer had no record of the injury.
On February 10, 1989, approximately two years after controverting Employee's claim, ALPAC petitioned to join Wausau in Employee's claim. Employee has never filed a claim against Wausau. Wausau now seeks a determination that it should not be joined in this claim. Employee has never received any workers' compensation benefits as a result of his work exposures.
In addition to requesting dismissal of the joinder petition, Wausau seeks dismissal of Employee's claim contending he is not disabled. ALPAC has joined in Wausau's request that we dismiss Employee's claim. Both Wausau and ALPAC contend that Employee, who is a commercial fisherman, earns as much or more now than he did while working for Employer. Because he has no loss of earning capacity, Wausau and ALPAC allege no disability benefits are due.
Employee testified he has commercially fished since about 1977. Until he quit working as a fire fighter, he only fished three to four weeks each year. After he quit working for Employer he has commercial fished about five months each year. (Harris I at 14 - 15).
Employee contends that he earns less as a commercial fisherman than he did as a fire fighter. Although he owns the limited entry permit, he contends he and his wife jointly own and operate the business. Therefore, the income from fishing is not all his, but must be shared with his wife. In addition, he contends he is entitled to certain tax deductions which substantially lowers his income. Accordingly, he claimed he is entitled to permanent partial disability benefits.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. SHOULD BE DISMISS ALPAC’S PETITION TO JOIN WAUSAU?
AS 23.30.120(a) provides in 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 . . . (2) sufficient notice of the claim has been given; . . . ."
Because there is a presumption that a claim is timely, Wausau has the initial burden of producing evidence that no claim was filed within two years of the injury. See Brown, et al. v. Municipality of Anchorage, 3AN 84-8076 Civil (Alaska Super. Ct., December 14, 1986).
In addition, AS 23.30.030(3) provides:
As between the insurer and the employee or his beneficiaries, notice to or knowledge of the occurrence of the injury on the part of the insured employer is notice or knowledge on the part of the insurer; jurisdiction of the insured employer for the purpose of this chapter is jurisdiction of the insurer; and the insurer, in all things, is bound by and subject to the orders, awards, judgments and decrees made against the insured employer under this chapter.
Wausau does not dispute that it had notice, meaning the notice required under AS 23.30.100 of the injury, but contends a claim was not timely filed against it.
AS 23.30.030(6) provides in part: "All claims for compensation. . . . may be made directly against either the employer or the insurer, or both, and the order or award of the board may be made against either the employer or the insurer or both."
Until its amendment on July 1, 1988, AS 23.30.105(a) provided in part:
The right to compensation for disability under this chapter is barred unless a claim for it is filed within two years after the employee has knowledge of the nature or his disability and its relation to his employment and after disablement. However the maximum time for filing the claim in any event other than arising our of an occupational disease shall be four years from the date of the injury, and the right to compensation for death is barred unless a claim therefore is filed within one year after the death, except that if payment of compensation has been made without an award on account of the injury or death, a claim may be filed within two years after the date of the last payment. It is additionally provided that, in the case of latent defects pertinent to and causing compensable disability, the injured employee has full right to claim as shall be determined by the board, time limitations notwithstanding.
The four-year time limit for filing claims in the second sentence of subsection 105(a) was rendered inapplicable by the Supreme Court in W.R. Grasle v. AWCB, 517 P.2d 999 (Alaska 1974). The remainder of this subsection provides a two-year limit for the filing of claims from the time of the injury, the time of disablement, or the time of manifestation of latent defects, whichever comes last. Id.
In 3 A. Larson, The Law of Workmen's Compensation Section 78-41 (1983), Professor Larson discusses the issues to be considered in determining whether the statute of limitations for filing a claim for workers' compensation has begun to run.
The time period for notice of claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of his injury or disease.
Id. at 15-155.
As to the nature of the injury or illness: Plainly claimant should be expected to display no greater diagnostic skill than any other uninformed layman confronted with the early symptoms of a progressive condition. Indeed, it has been held that the reasonableness of claimant's conduct should be judged in the light of his own education and intelligence, not in the light of the standard of some hypothetical reasonable person of the kind familiar to tort law.
Id. at 15-206 to 15-207.
The second of the three features of his condition the claimant must have had reason to be aware of is the seriousness of his trouble. This is a salutary requirement, since any other rule would force employees to rush in with claims for every minor ache, pain, or symptom. So, if claimant knows he has some shortness of breath, a back injury, or even a hernia, failure to file a claim promptly may be excused if claimant had no reason to believe the condition serious. This is particularly clear when a physician has led him to believe that the injury is trivial or that the symptoms indicate no serious trouble. At the same time, if the claimant's symptoms of compensable disability are sufficiently extreme, even a doctor's statement that they were trivial has been held insufficient to offset the claimant's own direct knowledge or the obvious condition.
Id. at 15-213 through 15-216.
Finally, under the third component of the test, the claim period does not run until the claimant has reason to understand the nature and gravity of his injury but also its relation to his employment. Even though the claimant knows he is suffering from some affliction, this is not enough to start the statute if its compensable character is not known to the claimant.
Id., at 15-216 to 15-217.
The Act defines "disability" as the "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 23.30.265(10). In Vetter v. Alaska Workers' Compensation Board, 524 P.2d 164, 166 (Alaska 1974), the Court stated: "The concept of disability compensation rests on the premise that the primary consideration is not medical impairment as such but rather a loss of earning capacity related to that employment."
The Court defined -the term "latent defects" in W.R. Grasle Company v. Alaska Workmen's Comp. Bd., 517 P.2d 999, 1002 (Alaska 1974), as a latent injury. The Court held that "an injury is latent so long as the claimant does not know, and in the exercise of reasonable diligence (taking into account his education, intelligence and experience) would not have come to know the nature of his disability and its relation to his employment." Id.
We find Employee was not disabled until December 1986. Based on AS 23.30.105 and AS 23.30.120, we find Employee timely filed his claim against employer within two years after disablement. Based on AS 23.30.030(3) and AS 23.30.030(6), we deny Wausau's petition to be dismissed as a party. Under subsection 30(3) and 30(6), we can enter an order against Employer if we find Employee is disabled and the disability is due to the 1973 exposure. Under subsection 30(3) Wausau would be bound by such an award. In a claim against a single employer, with multiple insurers, we find a claim against the employer is adequate to toll the statute of limitations under AS 23.30.105(a). As 23-30.030(6). Therefore, although ALPAC could have, and perhaps should have, joined Wausau in the claim at an earlier time, its failure to do so does not justify dismissing ALPAC's petition. Accordingly, we deny Wausau's petition.
II. SHOULD EMPLOYEE'S CLAIM BE DISMISSED BECAUSE HE IS NOT DISABLED?
AS 23.30.265(10) 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."
Former AS 23.30.210 provided in part:
In a case of partial disability under AS 23.30.190(20) . . . the wage-earning capacity of an injured employer is determined by his actual earnings if the actual earnings fairly and reasonably represent his wage-earning capacity. if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the board may, in the interest of justice fix the wage-earning capacity which is reasonable, having due regard to the nature of his injury, the degree of physical impairments his usual employment and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future.
Regarding post-injury earnings, our Supreme Court stated:
[A] finding of disability may stand even when there is evidence of some actual post-injury earnings equaling or exceeding those received before the accident. The position may be best summarized by saying that actual post-injury earnings will create a presumption of earning capacity commensurate with them, but the presumption may be rebutted by evidence independently showing incapactities or explaining away post-injury earnings as an unreliable basis for estimating capacity.
Hewing v. Peter Kiewit & Sons, 586 P.2d 182, 186 (Alaska 1978).
Both ALPAC and Wausau request dismissal of Employee's claim contending he is not disabled because he has earned more as a commercial fisherman since becoming disabled than he did as a fire fighter. The problem with this argument is that we have not yet determined which incident caused his disability. Therefore, we are unable to establish his wages at the time of injury. Without this, we have no basis for comparing pre-injury and post-injury earnings.
In addition, if we conclude Employee's disability is a result of the 1986 incident, and if we consider his income from commercial fishing as post-injury wages, it seems logical that we must include his income from fishing in computing his pre-injury wage. However, we have no information on what Employee earned as a commercial fisherman before 1986.
Accordingly, we conclude that we must first establish which incident caused Employee's inability to work and establish his pre-injury wage before we can determine whether he is disabled and entitled to benefits for the disability. Therefore, we deny both ALPAC's and Wausau' petitions for dismissal at this time because we lack sufficient evidence from which to make a determination.
ORDER
1. Wausau's petition to deny ALPAC's request to join Wausau in Employee's claim is denied and dismissed.
2. ALPAC and Wausau’s petitions for dismissal of Employee's claim are denied and dismissed.
DATED at Anchorage, Alaska this 19th day of April, 1990.
ALASKA WORKERS' COMPENSATION BOARD
/s/ Rebecca Ostrom
Rebecca Ostrom, Designated Chairman
/s/ HM Lawlor
Harriet Lawlor, Member
/s/ Donald R. Scott
Donald R. Scott, Member
RJO:rjo
If compensation is payable under the terms of this decision, it is due on the date of issue and penalty of 20 percent will accrue if not paid within 14 days of the due date unless an interlocutory injunction staying payment is obtained in Superior Court.
APPEAL PROCEDURES
A compensation order may be appealed through proceedings in Superior Court brought by a part 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 compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted it becomes final on the 31st day after it is filed.
CERTIFICATION
I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Roger B. Harris, employee/respondent; v. Kenai Peninsula Borough, employer, and ALPAC/INA, insurer, and Wausau Insurance Companies, insurer/ petitioners; Case No. 8627457; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 19th day of April, 1990.
Clerk
SNO