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D. Kirby v. AK Treatment Center (11/22/91), 821 P 2d 127
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Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
DONNA J. KIRBY, )
) Supreme Court File No. S-3915
Appellant, ) Superior Court No.
) 3AN-89-1008 Civil
)
v. ) O P I N I O N
)
ALASKA TREATMENT CENTER, )
) [No. 3777 - November 22, 1991]
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Dana Fabe, Judge, on appeal from
the Alaska Workers' Compensation Board.
Appearances: Chancy Croft, Anchorage,
for Appellant. Robert J. McLaughlin,
Faulkner, Banfield, Doogan and Holmes,
Seattle, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
MOORE, Justice.
COMPTON, Justice, dissenting.
This appeal arises from the superior court's ruling
affirming a decision by the Alaska Workers' Compensation Board
(the Board) that Donna Kirby is ineligible for vocational
rehabilitation. The Board determined that although Kirby is
permanently disabled, she is not entitled to vocational
rehabilitation benefits because she may resume suitable gainful
employment. We affirm.
I. Factual and Procedural History
Donna Kirby was employed as an adaptive aquatic
instructor at the Alaska Treatment Center (ATC). Her job
involved teaching swimming and exercise to persons with physical,
emotional, and developmental disabilities.1 On April 1 and
August 21, 1987, Kirby was exposed to excessive amounts of
chlorine fumes at the job site. As a result of this exposure,
she developed reactive airway disease and was told by her
physician that she could no longer work in or near a chlorine-
treated pool or in any environment in which chlorine was present.
As a consequence of her exposure to chlorine fumes,
Kirby applied for disability and rehabilitation benefits. In
January 1988, she began receiving temporary total disability
(TTD) benefits of $213.61 per week. This figure was derived
pursuant to AS 23.30.220(a)(2) by dividing Kirby's 1987 gross
earnings of $15,585.16 by 52 and subtracting from that her
payroll deductions.2 To qualify for rehabilitation benefits,
ATC's insurer requested that Kirby submit to a vocational
evaluation. The evaluation was conducted by Northern
Rehabilitative Services (NRS) which found that Kirby was
qualified to work as a secretary or receptionist earning $7.50 an
hour initially, $7.84 after one year, and $9.00 after three
years. NRS concluded that Kirby did not require rehabilitation
because she could approximate her 1987 earnings by working 40
hours per week in a clerical position.
Kirby thereafter moved for a rehabilitation hearing to
challenge the NRS evaluation. At the hearing, Kirby sought
approval of a rehabilitation plan which would allow her to return
to college and finish a degree in social work.3 The
rehabilitation hearing officer rejected Kirby's plan and affirmed
the NRS evaluation.
Kirby then appealed to the full Board. The Board found
that if Kirby accepted a clerical position she would suffer
approximately a 25% loss of earning capacity in the first year
because she would be required to work 40 hours per week to earn
the amount she was making at the time of her injury when working
only 25 hours per week. The Board ruled that although this loss
of earning capacity was tantamount to a permanent disability,
Kirby was not entitled to rehabilitation benefits because the
disability did not preclude her from returning to "suitable
gainful employment." Kirby then appealed to the superior court
which, in turn, affirmed the Board's decision. This appeal
followed.
II. Discussion
Kirby contests the Board's finding that she was
returned to suitable gainful employment. First, she argues that
the Board erred in failing to accord her the presumption of
compensability. Second, she contends that post-injury employment
at 75% of the pre-injury earnings is not suitable gainful
employment, and, therefore, she should be eligible for vocational
rehabilitation.
This case calls upon us to determine whether the
superior court correctly ruled that Kirby is not entitled to
rehabilitation benefits under AS 23.30.041. We apply the
"reasonable basis"standard of review because the particularized
experience and knowledge of the Board's administrative personnel
is an important factor which goes into our determination. Kelly
v. Zamarello, 486 P.2d 906, 916 (Alaska 1971). In applying this
standard, we must decide whether the Board's findings lack either
substantial support in the record or a reasonable basis in the
law.4 Id.
A. Presumption of Compensability
Kirby argues that the statutory presumption of
compensability in AS 23.30.120 applies to her claim for
vocational rehabilitation. AS 23.30.120 states the following
presumption:
Presumptions. (a) 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. . . .
When this case was heard in superior court, our rulings
had only applied the presumption to claims which sought to
establish a nexus between the injury and the work place. Our
recent decisions, however, have given a broader reading to the
presumption.5 In Municipality of Anchorage v. Carter, ___ P.2d
___, Op. No. 3763 (Alaska, October 17, 1991), we extended the
presumption of compensability to a claim for continuing care
under AS 23.30.095(a) and found that "the text of AS 23.30.120(a)
indicates that the presumption of compensability is applicable to
any claim for compensation under the workers' compensation
statute." Id. at 7. In Wien Air v. Kramer, 807 P.2d 471 (Alaska
1991), we applied the presumption to a claim for continuing
temporary total disability.
In keeping with these decisions, we find that the
presumption applies as well to claims for vocational
rehabilitation. When an injured employee raises the presumption,
the burden shifts and the employer must produce substantial
evidence to rebut the presumption. If the employer produces
substantial evidence, the presumption drops out and "the employee
must prove all the elements of his case by a preponderance of the
evidence." Veco, Inc. v. Wolfer, 693 P.2d 865, 870 (Alaska 1985)
(citations omitted). See also Grainger v. Alaska Workers'
Compensation Bd., 805 P.2d 976 (Alaska 1991). Thus, we presume
that Kirby is eligible for vocational rehabilitation benefits and
place the burden upon ATC to produce substantial evidence to the
contrary.
B. Eligibility for Rehabilitation Plan
The Board correctly stated that for an injured person
to be eligible for a rehabilitation plan two distinct events must
occur: the employee must suffer from a permanent disability and
that disability must preclude the employee from returning to
suitable gainful employment. AS 23.30.041(c).
The Board first found that Kirby suffered a permanent
disability because under the NRS evaluation she incurred
approximately a 25% loss of earning capacity. We agree.
Next, the Board correctly stated the two statutes then
in force defining suitable gainful employment. Former AS
23.30.041(i) states that an employee is restored to suitable
gainful employment if
the employee can return to (1) work at
the same or similar occupation with the same
employer or an employer in the same industry
as the employer at the time of the injury;
(2) an occupation using essentially the same
skills as the job at the time of injury but
in a different industry; (3) an occupation
using different skills but using the
employee's academic achievement level at the
time of injury; (4) an occupation requiring
an academic achievement level that is
different from that attained at the time of
injury. An employee shall be returned to
suitable gainful employment in the order
indicated in (1) - (4) of this subsection.
Former AS 23.30.265(28)6 defines suitable gainful employment as
employment that is reasonably attainable
in light of an individual's age, education,
previous occupation, and injury, and that
offers an opportunity to restore the
individual as soon as practical to a
remunerative occupation and as nearly as
possible to the individual's gross weekly
earnings as determined at the time of injury.
In examining whether Kirby met these definitions, the Board
considered several factors including her educational background,
employment history, disability compensation, rehabilitation,
testimony, and proposed rehabilitation plan. This information
shows that Kirby is a high school graduate and has received a two
year college associate degree with honors. Prior to working as
an aquatics instructor, she worked as a secretary and
receptionist earning $7.50 an hour. Kirby testified that she
types 55 words per minute and the results from the General
Aptitude Test Battery she took indicate that she otherwise has
above average clerical skills. In addition, she has extensive
office experience through working with her church and businesses
and Kirby's physician approved of her performing general clerical
skills. From this and other information, NRS determined that
Kirby has sufficient transferable clerical skills to allow her to
earn $7.50 an hour during the first year, $7.84 an hour after one
year, and $9.00 an hour after three years.
The Board concluded that Kirby's disability did not
preclude her from returning to "suitable gainful employment" as
defined by former AS 23.30.265(28) and former AS 23.30.041(i)(3).
Kirby argues here that a 25% reduction in earning capacity which
constitutes a permanent disability does not satisfy the
requirement of former AS 23.30.265(28) that the individual be
restored "as nearly as possible to the individual's gross weekly
earnings." We disagree. Should Kirby accept a clerical
position, she will suffer approximately a 30% reduction in
earning capacity the first year ($7.50 an hour versus $10.71),
approximately 27% after one year ($7.84 an hour versus $10.71),
and approximately 16% after three years ($9.00 an hour versus
$10.71). We believe that the legislature intended the words "as
nearly as possible" in former AS 23.30.265(28) to include
employment which restores an individual to within 16-30% of the
individual's pre-injury earnings under the time frame presented
by the facts in this case. We note that this interpretation of
former AS 23.30.265(28) is consistent with the effect of the
amendments to AS 23.30.041 enacted shortly after Kirby's injury.
See State v. Bundrant, 546 P.2d 530, 545 (Alaska 1976) (statute
in pari materia with a subsequent but approximately
contemporaneous statute is appropriate source for construing
legislative intent). Alaska Statute 23.30.265(28) has been
repealed and now AS 23.30.041(p)(7) provides that remunerative
employability is achieved by restoring an injured worker to at
least 60% of the gross hourly wage at the time of injury. Our
conclusion here also comports with our recent decision in Olson
v. AIC/Martin J.V., ___ P.2d ___, Op. No. 3699 at 13-15 (Alaska,
June 7, 1991) (employee had "suitable gainful employment" under
AS 23.30.265(28) where he could earn between 61-64% of his pre-
injury wages).
In our opinion, the Board properly found that Kirby was
returned to "suitable gainful employment"as defined by former AS
23.30.265(28) because she is capable of performing clerical work
in light of her education, experience and aptitude, because such
work is available, and because accepting this work would restore
her to a job which would pay her approximately the amount she was
earning when she was injured. Similarly, Kirby meets the
definition as set forth in AS 23.30.041(i)(3) because a clerical
position is an occupation in which she may utilize her current
academic achievement level.
We find that ATC produced substantial evidence which
rebuts the presumption that Kirby is entitled to a rehabilitation
plan. In this regard, we believe that there is both substantial
support in the record and a reasonable basis in the law for the
Board's ruling denying Kirby rehabilitation benefits.
AFFIRMED.
COMPTON, Justice, dissenting.
Former AS 23.30.041(d) (1984) provides:
(d) A full evaluation by a
qualified rehabilitation professional shall
include a determination whether a
rehabilitation plan is necessary and shall
include the following specific
determinations:
(1) whether the rehabilitation
plan will enable the employee to return to
suitable gainful employment;
(2) whether the employee can
return to suitable gainful employment without
the rehabilitation plan;
(3) the cost of the rehabilitation
plan, including all costs to be incurred by
the employer during the rehabilitation plan,
and an estimate of whether the continuing
benefits and compensation due to the employee
under this chapter after the conclusion of
the rehabilitation plan will be more or less
than the benefits and compensation payable to
the employee under this chapter if a
rehabilitation plan is not implemented.
(Emphasis added).
The statute plainly requires that those determinations
made pursuant to AS 23.30.041(d)(1)-(3) consider an evaluation of
a rehabilitation plan for the injured employee. The
rehabilitation professional to whom Donna Kirby's case was
assigned did not consider any rehabilitation plan for Ms. Kirby
and therefore failed to make any of the determinations that are
required by the statute. Rather, she reviewed Ms. Kirby's
educational background and employment history, administered
several vocational and general aptitude tests, tentatively
determined that Ms. Kirby had "transferable skills" in the
clerical/receptionist field, did a job survey of that field, and
concluded that Ms. Kirby could be returned to suitable gainful
employment without a rehabilitation plan.7
The Board did not make any of the section .041(d)
determinations either, assuming that is its adopted role. It did
allude to the cost of Ms. Kirby's tuition and fees necessary for
her to obtain her bachelor's degree, and noted that she would be
entitled to temporary disability benefits during completion of
the plan she submitted, but made none of the determinations
required by section .041(d)(3). The Board concluded that the
rehabilitation professional was correct in her assessment that
Ms. Kirby had "transferable skills"that would provide her with
suitable gainful employment, and thus the plan was rejected.
In my view, the obvious failure of the rehabilitation
professional and Board to make the statutorily required
determinations is sufficient to justify this court remanding the
case for a redetermination. We cannot determine whether there
has been statutory compliance on this record, even were I
convinced we know what the statute means. I am not.
Alaska Statute 23.30.265(28) (1984) provides:
"Suitable gainful employment" means
employment that is reasonably attainable in
light of an individual's age, education,
previous occupation, and injury, and that
offers an opportunity to restore the
individual as soon as practical to a
remunerative occupation as nearly as possible
to the individual's gross weekly earnings as
determined at the time of injury.
In turn, an employee is returned to suitable gainful
employment "if the employee can return to . . . (3) an occupation
using different skills but using the employee's academic
achievement level at the time of injury; or (4) an occupation
requiring an academic achievement level that is different from
that attained at the time of the injury . . . ." AS 23.30.041(i)
(1984). The employer, Alaska Treatment Center (ATC), argues that
Ms. Kirby falls under (3), apparently because of "transferable
skills," while Ms. Kirby argues that she should be considered
under (4).
In her Preliminary Evaluation, the rehabilitation
professional concludes that Ms. Kirby "has transferable skills in
the clerical area . . . ." The Full Evaluation states that "[i]n
review of the claimant's work history, NRS has determined that
Donna has transferable skills in two areas, nursing assistant and
general clerical/receptionist . . . ." A nursing assistant
position was not an option available to Ms. Kirby because of her
chronic chlorine toxicity caused by her industrial accident.
Ms. Kirby was recently (1987) awarded an associates
degree, with honors, from Anchorage Community College. Her
course work emphasis was psychology. With the exception of a
period of less than a year in 1980 - 1981, when Ms. Kirby worked
for two different employers performing general secretarial,
clerical, phone answering and pilot car driving duties, she has
been employed as either a nurses aide (prior to 1980 - 1981) or
as an aquatics instructor (prior to and after 1980 - 1981). From
1981 to 1985, she was an Aquatic Instructor, Associate Director
and Acting Director at the YMCA aquatics program in Anchorage.
From 1984 until her industrial accident, she was employed part
time by the Municipality of Anchorage as an Adaptive Aquatics
Director and Instructor. From August 1985 until the accident,
she worked part time for ATC as an Adaptive Aquatics Instructor.
Adaptive aquatics instructors work with adults and children who
are disabled in some respect, such as the mentally retarded,
emotionally disturbed, and autistic, the developmentally delayed,
deaf, and blind, or those who are victims of cerebral palsy,
multiple sclerosis or similar diseases. She has certificates in
adaptive aquatics instruction, water safety instruction training
(Ms. Kirby opined that there were only five such certified
persons in Anchorage), first aid and CPR. She learned sign
language to be able to communicate with her deaf students. She
testified that one of the reasons she emphasized psychology at
ACC was that "it . . . helps you to better understand someone and
be able to work with them, with their problems, and to come up
with some solutions." But can she type and answer a phone?
Ms. Kirby can type and answer a phone. However, an occupation in
the general clerical/receptionist field does not require the same
academic achievement level as that required to perform the tasks
required of and skills displayed by Ms. Kirby during most of her
working life, and hence does not satisfy AS 23.30.041(i)(3)
(1984). Furthermore, section .041 nowhere speaks to
"transferable skills." Unless "transferable skills" mean
"different skills" and are tied to the employee's "academic
achievement level at the time of injury,"whatever they are would
seem to be irrelevant.
The rehabilitation professional determined that Ms.
Kirby could start at the general clerical/receptionist level at
$7.50 per hour, as did the Board. After one year she would
advance to $7.84 per hour, and after three years to $9.00 per
hour. There was evidence that she could start at $7.84 per hour.
If we are to look at gross weekly earnings at the time of the
injury, with no increase in her pre-injury occupation pay for
merit, cost of living or inflation, after three years she will be
earning $9.00 per hour, $1.71 per hour less than she was earning
three years before.8 If we average the three to four percent
raise which Ms. Kirby testified she had received at ATC, she will
earn $2.47 less per hour. This is roughly a 22% loss for Ms.
Kirby. Unfortunately, we have no way of comparing what the
difference would be if Ms. Kirby's plan were approved, since the
Board chose the non-plan. Ms. Kirby testified that if her plan
were approved, by the end of two years she would make as much as
or more than she made at the time of her injury, thus suffering
no future loss of earnings.
This court holds that Ms. Kirby is presumptively
entitled to a rehabilitation plan. She submitted a plan on her
own. I am of the opinion that she should have been assisted by
rehabilitation services in developing her plan, and that the plan
should have been analyzed by rehabilitation services in
accordance with the statutory commands. The only evidence
offered by ATC to rebut the plan was the report of the
rehabilitation professional. This report was not in compliance
with statutory directives as to its contents, nor were its
defects cured by the Board. In addition, the rehabilitation
professional, the Board and this court do not apply statutory
criteria correctly to determine under what category of .041(i)
Ms. Kirby should be placed to determine whether she is suitably
employed. "Academic achievement level at the time of injury"
does not seem so complex a subject as to elude determination.
I conclude that the employer has not rebutted the
presumption this court applies to a claim for a rehabilitation
plan. If the question is arguable, the case should be remanded
for determination of whether the presumption has been rebutted
and ultimate burden of proof met.9
_______________________________
1. Kirby also worked on Saturdays for the Municipality of
Anchorage as an aquatic director and instructor.
2. At the time of her injury, Kirby worked 25 hours per
week at ATC at an hourly rate of $10.71. She earned between $10-
15 per hour from her Saturday job with the Municipality of
Anchorage.
3. The cost of Kirby's plan was $13,556.00 plus TTD
benefits while she was in school.
4. Since the superior court in this case was acting as an
intermediate appellate court we give no deference to its
decision. National Bank of Alaska v. State Dep't of Revenue, 642
P.2d 811 (Alaska 1982).
5. The applicability of the presumption to vocational
rehabilitation is a legal question subject to de novo review by
this court. Municipality of Anchorage v. Carter, ___ P.2d ___,
Op. No. 3763 at 6 (Alaska, October 17, 1991).
6. Ch. 70, 13, SLA 1983 repealed by ch. 79, 44, SLA
1988.
7. I assume that the reason none of the required
determinations were made is that the rehabilitation plan,
eventually rejected by the Alaska Workers' Compensation Board
(Board), was never presented to the rehabilitation professional.
Indeed, there is no evidence in the record that any plan was ever
solicited from Ms. Kirby by the rehabilitation professional.
Apparently it was left to her to come up with her own plan,
without assistance from rehabilitation services.
8. The court takes such an approach in accepting the
Board's determination that Ms. Kirby's wage at time of injury of
$10.71 per hour is the appropriate standard against which to
measure her potential wage as a clerical/receptionist. This
approach stands contrary to our approach in Peck v. Alaska
Aeronautical, Inc., 756 P.2d 282, 287 (Alaska 1988), where in
considering a claim for permanent total disability benefits we
held that the claimant had demonstrated a reliable, long-term
earning capacity resulting in a significantly higher actual wage
than that indicated by his prior annual wages. Even though
dealing with a different claim, our explanation in that case is
equally suited here:
The entire objective of wage calculation
is to arrive at a fair approximation of
claimant's probable future earning capacity.
[Her] disability reaches into the future, not
the past; [her] loss as a result of injury
must be thought of in terms of the impact of
probable future earnings, perhaps for the
rest of [her] life. This may sound like
belaboring the obvious; but unless the
elementary guiding principle is kept
constantly in mind while dealing with wage
calculation, there may be a temptation to
lapse into the fallacy of supposing that
compensation theory is necessarily satisfied
when a mechanical representation of this
claimant's own earnings in some arbitrary
past period has been used as a wage base.
Id. at 286 (quoting 2 A. Larson, The Law of Workmen's
Compensation, 60.11(d), at 10-564 (1983) (citations omitted)).
9. It is ironic that in Municipality of Anchorage v.
Carter, P.2d , Op. No. 3763 (Alaska, October 17, 1991),
the court extended the presumption of compensability to an issue
that was peripheral to the claim and virtually uncontestable
without the presumption in any event. It remanded the case for
additional consideration in light of the presumed entitlement.
The same irony is to be found in Adamson v. University of Alaska,
P.2d , Op. No. 3766 (Alaska, November 1, 1991), where the case
is remanded for additional consideration in light of the
peripheral and virtually uncontestable presumed entitlement. In
both cases I viewed the remand as unsupportable. Here, where the
question is arguable and the presumption goes to the dispositive
issue of Ms. Kirby's claim, the court sees fit to conclude that
the presumption was rebutted.
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