You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Rydwell v. Anchorage School Dist. and Wetzel Svcs. (12/3/93), 864 P 2d 526
<![CDATA[
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
DARLENE RYDWELL, )
) Supreme Court File No. S-5198
) Superior Court File No.
Appellant, ) 3AN-91-5123 Civil
)
v. ) O P I N I O N
)
ANCHORAGE SCHOOL DISTRICT )
and SCOTT WETZEL SERVICES, ) [No. 4030 - December 3, 1993]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Joan M. Katz, Judge.
Appearances: Joseph A. Kalamarides,
Kalamarides & Associates, Anchorage, for
Appellant. Penny L. Zobel and Deirdre D.
Ford, Staley DeLisio & Cook, Anchorage, for
Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
MOORE, Chief Justice.
COMPTON, Justice, dissenting.
I. INTRODUCTION
In this workers' compensation appeal, we must decide
whether AS 23.30.190(b), which requires use of the American
Medical Association's Guides to the Evaluation of Permanent
Impairment for determinations of permanent partial impairment
compensation, also governs determinations of permanent impairment
under AS 23.30.041(f)(3), a provision making an employee with no
permanent impairment ineligible for vocational rehabilitation
benefits. We hold that it does.
II. FACTS AND PROCEEDINGS
In March 1990 Darlene Rydwell, a building plant
operator for the Anchorage School District (District), felt chest
pains while shovelling snow at Oceanview Elementary School. Her
treating physician, Dr. Stanley N. Smith, initially diagnosed her
condition as left costochondritis with bicipital tendinitis,1 and
subsequently concluded that Rydwell had developed fibromyositis
in the shoulder girdle, a result of overuse.2 Dr. Smith took her
off work and prescribed physical therapy for her. In May Rydwell
requested an eligibility evaluation for vocational
rehabilitation.
Because he did not think that she was medically stable
yet, Dr. Smith did not immediately assign Rydwell a permanent
impairment rating, and instead had her undergo a work capacities
evaluation with Work Therapy Enterprises (WTE). The WTE
therapist, Kathryn Less, found her physical capacities to be
"severely below normal for a female of her size and age," and
recommended a four to six week work hardening program. Rydwell
participated in the program from mid-July through early August,
but her condition did not improve much, and Less recommended that
she resume the program in September.
On August 13, Rydwell and Less consulted with Dr.
Smith. Dr. Smith agreed that continued work hardening therapy
would be beneficial, but he doubted that Rydwell would be able to
return to her old job and suggested "cross training into a field
that is physically less demanding." The next day Rydwell saw Dr.
Edward M. Voke, an orthopedic specialist, who diagnosed her
condition as "minimal degenerative disc disease"and a strain in
the left rhomboid muscle. He too recommended continued work
hardening, with preparation for work less stressful than that
which Rydwell had done before. He did not give a rating of
permanent impairment for Rydwell.
Rydwell resumed her work hardening program in
September. During this time, Dr. Smith observed that Rydwell's
problems did not translate to a permanent impairment as defined
in the American Medical Association's Guides to the Evaluation of
Permanent Impairment (3d rev. ed. 1990) [hereinafter AMA Guides]:
Unfortunately [the AMA Guides]
define impairment ratings in very concrete
terms of ankylosis and loss of function,
whether it be nerve function or muscular
function and [Rydwell] does not demonstrate
this. Yes, we can demonstrate on this exam,
a loss of 10% of supination in the left
forearm, 10ø of extension in the upper
extremity at the shoulder girdle, a loss of
10ø of abduction in the shoulder girdle and
loss of 10ø internal in the left upper
extremity. These translate into 0 disability
based on function alone.
. . . .
Strictly following the impairment
ratings, mentioned above, I could not give
her a rating of disability more than 5-10%
just based on pain alone with no other
deficits being noted.
After Rydwell completed the September work hardening sessions,
Dr. Smith gave her a permanent impairment rating of zero under
the AMA Guides, and set August 13 as the date on which she
reached medical stability. Neither the WTE therapists nor Dr.
Smith believed that Rydwell was able to return to her original
job.
In December the Reemployment Benefits Administrator
(RBA) assigned Dennis Johnson, a rehabilitation specialist, to
perform Rydwell's eligibility evaluation for reemployment
benefits. At that time, Dr. Smith concluded that Rydwell's
physical capacities were less than the physical demands of her
position, and that Rydwell would be unable to return to her
original job. Though Johnson agreed, he nonetheless found
Rydwell ineligible for reemployment benefits, because Dr. Smith
had given her a zero permanent impairment rating. The RBA
accepted Johnson's conclusions and denied Rydwell reemployment
benefits in February 1991.
The Alaska Workers' Compensation Board (Board)
overturned the RBA's decision in May 1991. Analyzing recent
changes in the Workers' Compensation Act, see ch. 79, 10, 34,
SLA 1988, the Board construed legislative intent to allow
vocational rehabilitation in cases like that of Rydwell:
[O]ne purpose of the amendment to [AS
23.30.041] was to create a less expensive
system with fewer participants in it. An
additional purpose was to provide vocational
rehabilitation services to employees who are
not employable without them. Though there is
a potential tension between these two
purposes, it is unimaginable to us that the
Legislature intended that an employee who
cannot return to employment because of a work
injury without reemployment benefits would be
denied them.
(Footnotes omitted). Breaking with its own precedent, the Board
held that AS 23.30.190(b), which mandates the use of the AMA
Guides for evaluations of permanent impairment, did not apply to
AS 23.30.041. The Board concluded that if an employee has an
objectively measurable permanent impairment, but that impairment
would receive a zero rating under the AMA Guides, the employee is
nonetheless eligible for vocational rehabilitation.
The superior court reversed the Board decision in May
1992. Judge Joan Katz held that the Board's reading of permanent
impairment, as that term applied to AS 23.30.041, was contrary to
legislative intent and inconsistent with usage of the term in AS
23.30.190. Rydwell appeals.
III. DISCUSSION
Both parties agree that if the superior court's
decision is proper, then Rydwell is not entitled to benefits.
Therefore, resolution of this question turns upon statutory
interpretation, and this court reviews the Board's reading of AS
23.30 under the independent judgment standard, making its own
interpretation of the statutes involved. See, e.g., Tesoro
Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903
(Alaska 1987); Phillips v. Houston Contracting, Inc., 732 P.2d
544, 546 (Alaska 1987); Hood v. State, Workmen_s Compensation
Bd., 574 P.2d 811, 813 (Alaska 1978).3 Because the superior
court acted as an intermediate court of appeal, this court gives
no deference to its decision. Handley v. State, Dep't of
Revenue, 838 P.2d 1231, 1233 (Alaska 1992).
When construing a statute, this court endeavors to give
effect to legislative intent, with due consideration for the
meaning that the language of the statute conveys to others.
Forest v. Safeway Stores, Inc., 830 P.2d 778, 781 (Alaska 1992).
Whenever possible, this court interprets each part or section of
a statute with every other part or section, so as to create a
harmonious whole. Id. Under the 1988 amendments to the Workers'
Compensation Act, we do not construe ambiguities in the workers'
compensation laws in favor of either party. See ch. 79, 1(b),
SLA 1988.
Two provisions of AS 23.30.041 govern the type of
injury necessary for an employee to be eligible for reemployment
benefits. First, an employee is eligible only if "a physician
predict[s] that the employee will have permanent physical
capacities that are less than the physical demands of the
employee's job as described in the United States Department of
Labor's _Selected Characteristics of Occupations Defined in the
Dictionary of Occupational Titles._" AS 23.30.041(e). Second,
an employee is not eligible for benefits if "at the time of
medical stability no permanent impairment is identified or
expected." AS 23.30.041(f)(3). This second requirement is at
issue here, where a measurable physical impairment exists but
translates into a zero permanent impairment rating under the AMA
Guides.
Alaska Statute 23.30.041 provides no definition of
"permanent impairment." No explanation of the term appears at AS
23.30.265, the list of definitions applicable to all of the
Workers' Compensation Act. Instead, the use of the AMA Guides to
determine permanent impairment is prescribed at AS 23.30.190, the
statute governing permanent partial impairment (PPI)
compensation:
All determinations of the existence
and degree of permanent impairment shall be
made strictly and solely under the whole
person determination as set out in the
American Medical Association Guides to the
Evaluation of Permanent Impairment, except
that an impairment rating may not be rounded
to the next five percent.
AS 23.30.190(b). No statutory language expressly requires the
application of AS 23.30.190(b) to the rest of the Act.4
Furthermore, though the 1988 amendments to the Act made sweeping
changes to AS 23.30.041 and .190, see ch. 79, 10, 34, SLA
1988, neither party shows that the legislature expressly
contemplated or excluded the application of AS 23.30.190(b) to
vocational rehabilitation claims.
We are, nonetheless, persuaded that the term "permanent
impairment"means the same thing in AS 23.30.041 as it does in
AS 23.30.190. The term was newly introduced to the workers'
compensation statutes by the 1988 legislature in enacting Chapter
79, SLA 1988. Section 34 of Chapter 79 became AS 23.30.190 and
Section 10 became AS 23.30.041. Those are the only sections
which employ the term "permanent impairment" in the workers'
compensation statutes. It is most logical that the legislature
intended the term to mean the same thing in both sections in
which the term is used. Indeed, if "permanent impairment" as
used in Section 10 of Chapter 79 of the 1988 session laws was not
intended to mean the same thing as "permanent impairment" in
Section 34 where the term is defined, one would expect to find a
separate definition in Section 10.
In support of this interpretation we find persuasive
the District's argument analyzing the interaction of the
vocational rehabilitation provisions with the provisions for
disability compensation. The legislature intended that employees
have an income source during the time that vocational
rehabilitation keeps them out of the job market. See Sectional
Analysis of Workers' Compensation Task Force SB 322 and HB 352,
at 4 (1988) Part of this supplemental income is in the form of
PPI compensation:
If an employee reaches medical stability
before completion of the plan, temporary
total disability benefits shall cease and
permanent impairment benefits shall then be
paid at the employee's temporary total
disability rate. If the employee's permanent
impairment benefits are exhausted before the
completion or termination of the reemployment
plan, the employer shall provide wages equal
to 60 percent of the employee's spendable
weekly wages but not to exceed $525, until
the completion or termination of the plan.
AS 23.30.041(k). Accordingly, AS 23.30.190 recognizes that PPI
benefits are payable as part of vocational rehabilitation, and
distinguishes the payment scheme in AS 23.30.041 from the lump-
sum payment allowed otherwise. See AS 23.30.190(a).
The District argues that the close tie between
vocational rehabilitation and PPI compensation indicates that
eligibility for PPI benefits is a prerequisite for obtaining
reemployment benefits. If Rydwell, who presumably is ineligible
for PPI benefits under AS 23.30.190, may nonetheless receive
reemployment benefits, then she will have no income during the
period of her vocational rehabilitation, because she has reached
medical stability and therefore can no longer receive benefits
for temporary total disability. See AS 23.30.041(k). Reading AS
23.30.190(b) to control the evaluation of permanent impairment
under AS 23.30.041(f)(3) carries out the legislature's intent
that employees must have a supplemental income source during the
rehabilitation process.
Such a reading also meshes well with the literal
language of AS 23.30.041(k), which provides a fall-back source of
income if the employee's PPI benefits "are exhausted before the
completion or termination of the reemployment plan." This
language clearly presumes that the employee has been eligible for
PPI compensation, and it does not contemplate a situation in
which there are no PPI benefits to exhaust. This argument
indicates that the legislature did not intend that one who does
not qualify for PPI benefits would be eligible for vocational
rehabilitation.
To support its contention that AS 23.30.190(b) controls
determinations under AS 23.30.041, the District also looks to
broader legislative motives for the 1988 revisions:
It is the intent of the legislature
that AS 23.30 be interpreted so as to ensure
the quick, efficient, fair, and predictable
delivery of indemnity and medical benefits to
injured workers at a reasonable cost to the
employers who are subject to the provisions
of AS 23.30.
Ch. 79, 1(a), SLA 1988 (emphasis added). The District views
the provisions requiring objective bases for claims, see AS
23.30.041(e), (p)(4), .190(b), as one means by which the
legislature sought to reduce baseless claims and thus lower
costs. We agree that the legislature's concerns with objective
diagnoses and reducing costs to employers are instructive in this
case. These concerns provide a logical explanation for a
statutory scheme which sets rather stringent bright-line
measures.
In this case, no impairment was found under the AMA
ratings, yet the employee's doctors concluded that she could not
meet the physical demands of her job. To find for the employee
would create a gray area of "permanent impairment"for purposes
of AS 23.30.041(f)(3), which could be satisfied by an impairment
registering zero on the AMA Guides scale. Such a holding would
greatly reduce the predictability, objectivity, and cost-
reduction which the legislature imbedded within AS 23.30.190 by
incorporating the AMA Guides test for impairment, and thus seems
counter to legislative intent.
Finally, reading AS 23.30.190(b) to control permanent
impairment evaluations under AS 23.30.041(f)(3) gives full
meaning to the latter provision. If, as the Board held, the
permanent impairment requirement were satisfiable through a mere
showing of "some objectively measurable physical or mental
impairment," made without reference to the AMA Guides, then the
permanent impairment analysis under AS 23.30.041(f)(3) would be
essentially identical to the physical capacities analysis under
AS 23.30.041(e). The only difference between the two analyses
would be that one is conducted before an employee reached medical
stability and the other is conducted after medical stability
occurred. We recognize a presumption that the legislature
intended every word, sentence, or provision of a statute to have
some purpose, force, and effect, and that no words or provisions
are superfluous. Alaska Transp. Comm'n v. AIRPAC, Inc., 685 P.2d
1248, 1253 (Alaska 1984). Incorporating AS 23.30.190(b) into AS
23.30.041(f)(3) satisfies this basic principle of statutory
interpretation by preventing redundancy.
The dissent argues that our decision that Rydwell is
ineligible for reemployment benefits despite her inability to
return to her pre-injury job is "anomalous." Dissent at 1. This
argument fails to consider that an employee in Rydwell's
situation is not necessarily ineligible for a permanent total
disability rating under AS 23.30.180. Disability ratings, as
distinct from ratings based on the recently introduced concept of
permanent impairment, are based on the worker's loss of earning
capacity and are not measured by any particular degree of medical
impairment. See, e.g., Olsen v. AIC/Martin J.V., 818 P.2d 669,
673 (Alaska 1991); Vetter v. Alaska Workmen's Compensation Board,
524 P.2d 264, 266 (Alaska 1974). The dissent overlooks this
critical distinction in citing the introductory materials to the
AMA Guides. Dissent at 2. The quoted material cautions against
a "'one-to-one' translation of impairment to disability."
Dissent at 2. Alaska's statutory scheme does not use the AMA
Guides to determine disability, which requires a discretionary
analysis considering incapacity in relation to employment
potential. Alaska Statute 23.30.190 does, however, utilize the
AMA Guides to provide a predictable standard for impairment,
which measures the employee's absolute physical capacity. The
impairment determination need not be made unless the Board fails
to find a permanent total disability.5 See AS 23.30.190(a)
(permanent impairment determination made "[i]n case of impairment
partial in character but permanent in quality, and not resulting
in permanent total disability.") (emphasis added).
To summarize, under the most appropriate reading of AS
23.30.041, an employee must satisfy two tests in order to be
eligible for reemployment benefits. First, before the employee
has reached medical stability, a physician must predict that the
employee's physical capacities will not be sufficient for the
physical demands of her original job. AS 23.30.041(e). This
test allows an employee to start vocational rehabilitation before
she reaches medical stability, and serves the legislature's goal
of encouraging early rehabilitation intervention. Second, once
the employee has reached medical stability, she must have a
permanent impairment, calculated pursuant to AS 23.30.190(b)'s
provisions for use of the AMA Guides. See AS 23.30.041(f)(3).6
IV. CONCLUSION
Because AS 23.30.190(b)'s rule for evaluating permanent
impairments should control the determination of a permanent
impairment under AS 23.30.041(f)(3), and because Rydwell received
a rating of zero permanent impairment under the AMA Guides, the
superior court correctly found her ineligible for reemployment
benefits.
AFFIRMED.
COMPTON, Justice, dissenting.
In this case the court reaches an anomalous result. It
acknowledges that Darlene Rydwell is physically unable to return
to her pre-injury job; nonetheless, it denies her rehabilitation
benefits.
The court argues that this result is not anomalous
because Rydwell may be eligible for PTD benefits. Op. at 13.
The court notes that an impairment determination is made when the
Board "fails to find a permanent total disability." Op. at 14;
see AS 23.30.190(a). Thus, when a doctor consults the American
Medical Association Guides to the Evaluation of Permanent
Impairment (AMA Guides) -- at the determination of impairment --
the possibility of PTD benefits has already been foreclosed; in
addressing the issue of "impairment"the Board has necessarily
answered the permanent disability question in the negative.
Because Rydwell was evaluated for impairment, the court concedes
that Rydwell is not eligible for PTD benefits. Thus, under the
court's triple option, Op. at 14 n.5, Rydwell falls under
category "(3)." Although she is incapacitated to the extent that
she cannot return to her previous job, her incapacity "does not
warrant" rehabilitation. Regardless of the court's word games,
this is an anomalous and undesirable result.
This case involves considerations of public policy, and
interpretation and application of the AMA Guides, all of which
implicate Board expertise. Earth Resources Co. v. State, Dep't
of Revenue, 665 P.2d 960, 964 (Alaska 1983); Kelly v. Zamarello,
486 P.2d 906, 916-17 (Alaska 1971). Accordingly, I would defer
to the Board's judgment, which in this case has a reasonable
basis.
Alaska Statute 23.30.190 provides in part: "All
determinations of the existence and degree of permanent
impairment shall be made strictly and solely . . . [under the AMA
Guides]." AS 23.30.190(b). The only exception is that
impairment ratings may not be rounded to the nearest five
percent. Id. The legislature thus intended that "permanent
impairment"be determined by reference to specific materials that
include tables and formulae as well as directions how to apply
such data. Section 1.3 of the AMA Guides, entitled "Medical
Impairment and Workers' Compensation,"provides in part:
While medical information is necessary
for the decision process, a critical problem
arises in the use of that information.
Neither in this example nor in general is
there a formula under which knowledge of the
medical condition may be combined with
knowledge of the other factors to calculate
the percentage by which the industrial use of
the employee's body is impaired.
Accordingly, each commissioner or hearing
official must come to a conclusion based on
his or her assessment of the available
medical and nonmedical information.
It is evident that the Guides does
not offer a solution for this problem, nor is
it the intention that it do so. Each
administrative or legal system that uses
permanent impairment as a basis for
disability rating needs to define its own
process for translating knowledge of a
medical condition into an estimate of the
degree to which the individual's capacity to
meet personal, social, or occupational
demands, or to meet statutory or regulatory
requirements, is limited by the impairment.
We encourage each system not to make a "one-
to-one" translation of impairment to
disability, in essence creating a use of the
Guides which is not intended.
AMA Guides 1.3, at 6 (emphasis added). The AMA Guides
recognizes the limitations of its rating system; any empirical
classification of "permanent impairment,"a condition resulting
from multiple variables, will necessarily be imperfect.
Accordingly, the AMA Guides contemplates that final decisions
regarding impairment be left to a commissioner or hearing
official. In this case the Board can best assess the information
relevant to the impairment determination.
Both parties concede that even though Rydwell is not
"physically impaired"under the AMA Guides, she is impaired in a
broader sense; she is unable to return to her previous job. Op.
at 4. Certainly the AMA, cautioning against "one-to-one"
application, contemplated cases in which the application of AMA
Guides results does not reflect reality. The narrow construction
of "physical impairment" applied by this court is thus
inconsistent with the intended use of the AMA Guides.
Furthermore, under the court's reasoning, "medical
stability" assumes an unintended legal significance. Alaska
Statute 23.30.041(k) contemplates that an injured worker can
enter rehabilitation prior to "medical stability." It attempts
to maintain benefits for workers in rehabilitation who reach
medical stability and as a result lose temporary total disability
(TTD) benefits. See AS 23.30.185. It maintains income by
distributing PPI benefits at the TTD rate. AS 23.30.041(k).
From this the court concludes that "eligibility for PPI benefits
is a prerequisite for obtaining reemployment benefits." Op. at
10. However, AS 23.30.041(f)(3) provides: "An employee is not
eligible for remployment [sic] benefits if . . . at the time of
medical stability no permanent impairment is identified or
expected." Id. (emphasis added). Thus, eligibility for PPI
benefits only becomes a prerequisite for rehabilitation benefits
only after medical stability.
The argument that "medical stability"is the point at
which physical impairment should be measured is not supported by
law or fact: (1) medical stability is legally linked to the
determination of disability7; (2) AS 23.30.190, which defines
"permanent impairment,"is not linked to medical stability; and
(3) in this case Dr. Smith made a retrospective stability
determination.8 It does not appear that the legislature
contemplated that rehabilitation benefits be contingent on the
date of medical stability.
If the statute does link the physical impairment
determination to medical stability, the following question
immediately arises: what happens to workers who are undergoing
rehabilitation at the time they reach medical stability if they
then receive a zero permanent impairment rating? This court's
conclusion would require the Board to terminate their
rehabilitation. I cannot see how the legislature intended this
result.9 Indeed, this result undermines the intention of
predictability that the court ascribes to the legislature. Op.
at 12. Employers seeking to avoid paying for rehabilitation may
attempt to accelerate the medical stability determination, while
workers who cannot return to their pre-injury jobs may attempt to
delay.
The Board has the expertise to interpret and apply the
necessarily discretionary AMA Guides so as to clarify the
relationship between the permanent impairment rating and the date
of medical stability, as well as to resolve situations not
foreseen by the legislature. Accordingly, we should defer to its
judgment.
For all of the foregoing reasons, I dissent.
_______________________________
1. Costochondritis is an inflammation of the junction
between the ribs and the cartilage on the chest wall. Bicipital
tendinitis is an inflammation of the tendons in the bicep muscle.
2. Fibromyositis is a chronic muscle inflammation with an
overgrowth of the connective tissue. Stedman's Medical
Dictionary 583 (25th ed. 1990).
3. Rydwell argues, and the dissent agrees, that this court
should use the "reasonable basis"standard of review for the
Board's analysis of the policy of the statute. Typically, the
"reasonable basis"standard of review applies "where the agency
is making law by creating standards to be used in evaluating the
case before it and future cases,"or "when a case requires
resolution of policy questions which lie within the agency's area
of expertise and are inseparable from the facts underlying the
agency's decision." Earth Resources Co. v. State, Dep't of
Revenue, 665 P.2d 960, 964 (Alaska 1983); see also Hood, 574 P.2d
at 813.
In this case, the Board based its reading of statutory
language upon general principles of statutory construction and an
analysis of legislative intent. The Board did not apply
statutory provisions to complex or technical facts within its
expertise. Furthermore, the Board's interpretation is not a
longstanding one to which this court should give some weight.
Cf. State, Dep't of Revenue v. Debenham Elec. Supply Co., 612
P.2d 1001, 1003 n.6 (Alaska 1980). Because "the agency's
specialized knowledge and experience would not be particularly
probative as to the meaning of the statute,"Kenai Pipe Line, 746
P.2d at 903, and because this case "implicates analysis of legal
relationships to which courts are particularly well-suited,"
Union Oil Co. v. State, 804 P.2d 62, 64 (Alaska 1990), the
"independent judgment"standard of review is appropriate here.
See, e.g., Hood, 574 P.2d at 813.
4. In Polk County Bd. of County Comm'rs v. Patterson, 433
So. 2d 1298 (Fla. App. 1983), the court held that even though a
permanent impairment rating under the AMA Guides was required for
an award of permanent impairment benefits, such a rating was not
necessary for receiving vocational rehabilitation benefits,
because nothing in the relevant Florida statute "makes such a
rating a condition precedent to an award of rehabilitation
benefits." Id. at 1298; see also Jane M. Draper, Annotation,
Workers' Compensation: Vocational Rehabilitation Statutes, 67
A.L.R. 4th 612, 632-33 (1989) (citing this case alone for the
proposition that an AMA permanent injury rating is not a
prerequisite for receiving reemployment benefits). Patterson is
not helpful here, because the Florida statute at issue does not
use the term "permanent impairment." See Fla. Stat. Ann.
440.49(1)(a) (West 1991).
5. The dissent also argues that our interpretation leads to
an overemphasis on the timing of "medical stability." Dissent at
3-4. While our interpretation does elevate the importance of
medical stability, this result is not inconsistent with the
statutory scheme. As discussed supra, AS 23.30.041(k)
contemplates PPI benefits being paid if eligibility for temporary
total disability benefits ceases during the course of the
reemployment plan. AS 23.30.185 provides that "[t]emporary total
disability benefits may not be paid for any period of disability
occurring after the date of medical stability." Thus, at the
time of medical stability, an employee receiving reemployment
training must (1) qualify for permanent total disability benefits
under AS 23.30.180 and therefore cease reemployment training
because it will be fruitless; (2) qualify for PPI benefits under
AS 23.30.190 and continue reemployment training; or (3) cease
reemployment training because the employee's physical incapacity
does not rise to the minimum level of permanent impairment which
would warrant benefits under the objective criteria of AS
23.30.190. This result follows logically from the appropriate
statutes.
6. The District also contends that the Board's decision
was not based on substantial evidence. Because we hold that AS
23.30.190(b) controls permanent impairment determinations under
AS 23.30.041(f)(3), we need not reach this argument.
7. The court correctly notes the difference between the
disability and impairment determinations. Op. at 13.
8. Dr. Smith rated Rydwell zero in September 1990 and at
that time set medical stability at August 13, 1990.
9. Further issues arise as to whether such workers would
have to reimburse the employer for the cost of rehabilitation,
and why employers would expend resources to rehabilitate workers,
only to have such rehabilitation subject to termination.
]]>
