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Moesh v. Anch. Sand and Gravel and Alaska Nat'l Insurance (7/8/94), 877 P 2d 763
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
FRANCIS X. MOESH, IV, )
) Supreme Court No. S-6113
Appellant, )
) Superior Court No.
v. ) 3AN-92-3602 CI
)
ANCHORAGE SAND & GRAVEL, ) O P I N I O N
and ALASKA NATIONAL )
INSURANCE CO., )
)
Appellees. ) [No. 4101 - July 8, 1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Dana Fabe, Judge.
Appearances: Ernest Z. Rehbock, Rehbock
& Rehbock, Anchorage, for Appellant. Theresa
Hennemann and Deborah Brooks Durden,
Faulkner, Banfield, Doogan & Holmes,
Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
PER CURIAM
The superior court's reversal of the Workers'
Compensation Board decision is AFFIRMED. Our affirmance is based
upon the superior court's order of September 21, 1993, which is
attached.
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
ANCHORAGE SAND & GRAVEL and )
ALASKA NATIONAL INSURANCE )
COMPANY, )
)
Appellants, )
)
v. )
)
FRANCIS MOESH and WORKERS' )
COMPENSATION BOARD, )
)
Appellees. )
______________________________) Case No. 3AN-92-3602 Civil
ORDER
I. INTRODUCTION
Appellee Francis Moesh sustained a work-related back
injury in March 1991 while working as a laborer for Anchorage
Sand & Gravel. The employer provided medical benefits and
temporary total disability benefits. Mr. Moesh requested and was
granted reemployment benefits. Alaska Sand & Gravel and its
insurer, Alaska National Insurance Co., (hereafter referred to
collectively as "AS&G") objected to one of the factors
(remunerative employability) considered by rehabilitation
specialist Virginia Collins. Despite AS&G's objection, the
Rehabilitation Benefits Administrator Designee (hereafter "RBA
Designee") adopted Ms. Collins' recommendation. AS&G asked the
Alaska Workers' Compensation Board (hereafter "Board") to review
the RBA Designee's decision. AS&G argued that the RBA Designee
abused her discretion by misapplying AS 23.30.041(e). The Board
determined that the RBA Designee did not abuse her discretion in
finding Mr. Moesh eligible for reemployment benefits, despite a
strong dissent from Chairman Lisankie. In addition, the Board
awarded enhanced attorney fees to counsel for Mr. Moesh. AS&G
filed this appeal on April 27, 1992. The Board's order requiring
rehabilitation and reemployment benefits has been stayed pending
appeal.1
II. QUESTION ON APPEAL
Did the Alaska Workers' Compensation Board err in
concluding that Mr. Moesh is eligible for reemployment benefits?
Specifically, may the Board consider "remunerative employability"
in determining whether an injured worker is eligible for
reemployment benefits under AS 23.30.041(e)?
III. STANDARD OF REVIEW
The issue on appeal is strictly a matter of statutory
construction. This court must interpret AS 23.30.041(e) to
determine if the Board was permitted to consider "remunerative
employability" as a factor in determining reemployment benefit
eligibility. Since statutory construction is a matter within the
court's special competency, this court can substitute its
judgment and is not bound by the Board's interpretation of the
statute.
IV. IS "REMUNERATIVE EMPLOYABILITY" A FACTOR WHICH MAY BE
CONSIDERED IN DETERMINING ELIGIBILITY UNDER AS 23.30.041(e)?
In the ten years prior to his injury Moesh held several
jobs, including a rate clerk and sales representative position.
Ms. Collins determined that Moesh was able to work as a rate
clerk or sales representative after his injury. Because of
changes in the Alaska economy and labor market, any rate clerk or
sales representative position Moesh could obtain would pay less
than 60% of his wage at the time of his injury and would thus not
be considered as "remunerative"under the statute. Ms. Collins
concluded, therefore, that Mr. Moesh was eligible for
reemployment benefits, despite the fact that he was physically
capable of working as a rate clerk or sales representative.
AS 23.30.041(e) provides in part:
An employee shall be eligible for
benefits under this section upon the
employee's written request and by having a
physician predict 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"for
(1) the employee's job at the time
of injury; or
(2) other jobs that exist in the
labor market that the employee has held
within 10 years before the injury....
According to AS 23.30.041(p)(7):
"remunerative employability" means
having the skills that allow a worker to be
compensated with wages or other earnings
equivalent to at least 60 percent of the
worker's gross hourly wage at the time of
injury....
Appellant AS&G argues that AS 23.30.041(e) is
unambiguous on its face and must be applied as written.
AS 23.30.041(e) provides three conditions that must be met to
become eligible for reemployment benefits. First, the employee
must timely request reemployment benefits. Second, a physician
must predict that the employee will not be physically capable of
performing the work he performed at the time of injury. Third, a
physician must predict that the employee will not be physically
capable of performing any of the work he performed or was trained
to perform within ten years prior to injury, provided such work
exists in the present labor market. Since remunerative
employability is not expressly listed in AS 23.30.041(e), AS&G
contends that it may not be considered in determining eligibility
for reemployment benefits. AS&G notes that AS 23.30.041 does
impose a remunerative employability requirement elsewhere. The
statute, however, imposes that requirement only after a person
has been deemed eligible for reemployment benefits.
AS&G concedes that applying the statute as written may
cause harsh results.2 Despite the harsh results, this court must
reverse the Board's decision. In order for remunerative
employability to be considered a factor in determining
reemployment benefits eligibility, the Alaska legislature must
amend the statute to expressly include remunerative employability
under AS 23.30.041(e). This court would be exceeding its
authority if it were to interpret AS 23.30.041(e) to permit the
consideration of remunerative employability.3
The decision of the Alaska Workers' Compensation Board
is REVERSED.
DATED at Anchorage, Alaska this 21st day of September,
1993.
/s/ Dana Fabe
DANA FABE
SUPERIOR COURT JUDGE
_______________________________
1On August 11, 1992, the Alaska Supreme Court reversed an
order by Judge Shortell denying a stay of the Board's order
requiring rehabilitation and reemployment benefits. The Supreme
Court found that a stay was appropriate, stating:
4. This order is made because
petitioners have made a showing of probable
success on the merits of the question whether
there is an implied requirement that the
"other jobs," which are the subject of
AS 23.30.041(e)(2), must pay a certain
percent of the injured worker's gross hourly
wages at the time of injury. Petitioners'
argument that there is no such implied
requirement is supported by the literal
language of the statute. The statute does
not appear to be absurd or meaningless if it
is construed in accordance with its literal
language. See State v. Alex, 646 P.2d 203,
208 n.4 (Alaska 1982) (under sliding scale
approach to statutory interpretation, the
plainer the language of the statute the more
convincing the evidence of contrary
legislative intent must be).
2The following hypothetical illustrates this point: A 26-
year-old employee who earned $4.00 an hour frying hamburgers as a
teenager currently earns $26.00 an hour as a journeyman plumber.
While on the job, the employee is injured. The employee will be
ineligible for reemployment benefits if he or she is physically
capable of frying hamburgers because that is a job held within
ten years of the injury. The employee will suffer a drastic
decrease in the standard of living if forced to return to
flipping hamburgers. Thus, if applied as written, the statute
works a particular hardship upon young injured employees. Such
employees may be forced to take drastic pay decreases, since they
will be ineligible for job training which helps to place them in
jobs comparable in compensation to the ones they held when
injured. This harsh result seems inconsistent with the broad
goals of Alaska's Workers' Compensation statute which favors
returning injured employees to the work force as soon as possible
and to positions that are at least comparable to the jobs they
had when injured. The statute appears to favor older workers who
have held the same type of job over younger workers who have just
begun their careers, despite the fact that younger workers may
benefit more from job training since they will have more years in
the labor force.
3The second issue presented in the briefs, whether the Board
erred in awarding enhanced attorney fees to Moesh, need not be
reached because the Board's decision affirming Moesh's
eligibility has been reversed.
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