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Humphrey v. Lowe's Home Improvement Warehouse, Inc.

Supreme Court of Alaska

October 16, 2014

AKEEM J. HUMPHREY, Appellant,
v.
LOWE'S HOME IMPROVEMENT WAREHOUSE, INC., Employer, and NEW HAMPSHIRE INSURANCE COMPANY, Appellees

Appeal from the Alaska Workers' Compensation Appeals Commission, Laurence Keyes, Commission Chair. Alaska Workers' Compensation. Appeals Commission No. 11-021.

James M. Hackett, James M. Hackett, Inc., Fairbanks, for Appellant.

Krista M. Schwarting, Griffin & Smith, Anchorage, for Appellees.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

Page 1175

MAASSEN, Justice.

I. INTRODUCTION

In this case we are asked to determine whether an employee was entitled to temporary total disability benefits after he left employment under disputed circumstances. The employee injured his back at work but returned after being cleared for lighter duty. His employment soon ended for reasons the parties dispute, and he moved with his family to Nevada, where he later had back surgery.

Page 1176

The Alaska Workers' Compensation Board found his injury compensable and ordered the employer to pay medical costs and disability benefits from the surgery onward; however, the Board denied temporary total disability benefits from the end of his employment to the surgery, finding the employee had voluntarily left his job for reasons that were not injury-related.

The employee appealed to the Alaska Workers' Compensation Appeals Commission, which affirmed the decision on disability but remanded to the Board for clarification of its attorney's fees award. The employee now appeals the Commission's decision of his claim for temporary total disability benefits and its denial of his request for attorney's fees for the appeal. We affirm the Commission's decision that the employee was not entitled to temporary total disability benefits, reverse its denial of attorney's fees for the appeal, and remand for further proceedings.

II. FACTS AND PROCEEDINGS

Akeem Humphrey was working at Lowe's Home Improvement Warehouse in Fairbanks as a " less than truckload" stocker on November 30, 2009, when a cantilever shelf fell on him. He was treated for back pain and cleared for modified work in early January 2010. Lowe's moved him around to various positions in the store to accommodate his restrictions, but he continued to have pain.

On January 21 Humphrey was disciplined at work for reasons unrelated to his injury. On February 12 he received a generally favorable performance evaluation. On February 16 he wrote a note to Lowe's, saying he was giving two weeks' notice " due to personal reasons (no transportation [and] no house)." The note is somewhat ambiguous, though; it also states, " If nothing is new within these two weeks I will know it is submitted[; ] if does [indecipherable] I will let store manager and Lisa know all new information." [1]

Humphrey's last day of work at Lowe's was Monday, February 22. Humphrey testified that the store manager, Brandon Montgomery, called him into the office that day and told him he was being terminated because he had given his two weeks' notice. Lowe's disputes that Humphrey was terminated, and Montgomery denied having the conversation Humphrey described. Wage records from Lowe's show that Humphrey received a paycheck on February 22 for 40 hours in the week ending February 26; [2] Humphrey testified he was paid through March 1, which is two weeksfrom the date of his two weeks' notice.

Humphrey continued to receive medical care for his back, and in April 2010 his treating physician recommended that he consider surgery and consult with an orthopedic surgeon. In May, Humphrey moved with his girlfriend and their child to the Las Vegas area, where his girlfriend had family. Humphrey then filed an Alaska workers' compensation claim, seeking medical benefits, temporary total disability (TTD) benefits from January 30, 2009, a rating of permanent partial impairment (PPI), a penalty, interest, and attorney's fees. In January 2011 a Nevada orthopedic surgeon diagnosed Humphrey with " disc abnormalities" and back pain that " stem[med] from his initial work related injury" and in May 2011 performed surgery on Humphrey's back.

A number of medical and lay witnesses testified at the Board hearing on Humphrey's claim. The parties agreed that his last day of work at Lowe's was February 22, 2010, but they offered conflicting accounts of his departure. Humphrey testified that he notified Montgomery about his transportation and housing problems on February 16 and Montgomery told him to submit his two weeks' notice in case the problems prevented him from returning to work. Humphrey testified ...


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