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Raris v. The Greek Corner (2/23/96), 911 P 2d 510
NOTICE: This 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, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
LISA RARIS, )
) Supreme Court No. S-6363
) Superior Court No.
v. ) 3AN-93-3430 CI
THE GREEK CORNER, ) O P I N I O N
Appellee. ) [No. 4322 - February 23, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Peter A. Michalski, Judge.
Appearances: Joseph A. Kalamarides,
Kalamarides & Associates, Anchorage, for
Appellant. James M. Bendell, Anchorage, for
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton, and Eastaugh, Justices.
This appeal arises from a decision by the Alaska
Workers' Compensation Board (Board) that Lisa Raris, a workers'
compensation claimant living out of the state, was subject to the
eligibility strictures of AS 23.30.041(f). The superior court,
sitting as an intermediate appellate court, affirmed the Board.
Raris appeals. We affirm.
II. FACTS AND PROCEEDINGS
Lisa Raris was employed as a waitress by the Greek
Corner Restaurant. In December 1990 and January 1991 Raris
allegedly incurred two work-related injuries to her feet. She
sought medical attention from a physician. In March Raris filed
a report of occupational injury or illness. In May she filed a
request for an eligibility evaluation for reemployment benefits
under AS 23.30.041.
In June 1992, while her claim was still pending, Raris
moved to Greece. The eligibility evaluation was filed in
November. Later, the rehabilitation specialist assigned to
process Raris' claim recommended that Raris be found ineligible
for rehabilitative benefits under AS 23.30.041(f),1 because Greek
Corner had offered Raris modified employment as a telephone
solicitor. Raris responded by filing an objection to the
evaluation. She claimed that the modified employment offer was
not a "legitimate offer." It is her belief that the offer was
only made because Greek Corner assumed that she would not return
The Reemployment Benefits Administrator (RBA)
determined that Raris was ineligible for reemployment benefits
because Greek Corner's offer of reemployment, at 75 percent of
her previous wage, made her ineligible for these benefits under
AS 23.30.041(f)(1). Raris appealed this decision to the Board.
The Board found that the RBA's denial of reemployment benefits
was not an abuse of discretion. Raris appealed the Board's
determination to the superior court, Alaska Appellate Rule 602,
which affirmed the Board's decision. This appeal followed.
The only issue before us is whether Raris should be
exempted from the requirements of AS 23.30.041(f) because she no
longer resides within the State of Alaska.3 The Board found that
Raris' relocation did not exempt her from the strictures of
AS 23.30.041(f). It held:
This statute does not require that employment
offered by the employer be at the employee's
current place of residence. To the contrary,
we believe an offer of modified employment
would normally arise from the employer's own
premises. Further, we disagree with the
employee that section 41(f) should not apply
to her case.
The Board was correct.
Raris asserts that the legislature did not intend for
AS 23.30.041(f)(1) to apply to workers' compensation claimants
residing outside of Alaska. She argues that it is consistent
with the workers' compensation statute taken as a whole to
interpret the eligibility strictures of AS 23.30.041(f) to be
inapplicable to those claimants who move out of the state.4 She
reasons that the application of AS 23.30.041(f) to out-of-state
residents would limit rehabilitation benefits to those residing
within the state, and that the legislature could not have
intended this restriction.5 She contends that the legislature's
recognition of out-of-state employees and out-of-state employment
as part of the reemployment process, or "labor market," indicates
its intention to provide for the rehabilitation of out-of-state
employees. Raris cites no authority to support her position.
She relies completely on her proffered construction of the
workers' compensation scheme and the policies behind it.
Conversely, the Greek Corner contends that Raris
misinterprets the purpose of the workers' compensation scheme.
It argues that an examination of the workers' compensation
statutory framework reveals that the legislature was unwilling to
impose narrow geographic obligations on employers. It reasons
that examples of this intention can be found in the eligibility
requirements provided by AS 23.30.041(e)(2)6 and in the
definition of "labor market" found in AS 23.30.041(p)(3).7 The
statute requires the RBA to consider the "labor market," which is
defined to include other states, in determining the availability
of alternative employment. The Greek Corner argues that because
AS 23.30.041 could bar a claimant residing within Alaska from
receiving reemployment benefits because a suitable job exists in
Florida, it would be inconsistent to hold that a claimant
voluntarily living out of state is eligible for benefits when a
suitable job exists within Alaska. Like Raris, Greek Corner
cites no authority for its interpretation of the statute.
The legislative history of the amendment to the
workers' compensation statute which added AS 23.30.041(f)
contains no discussion concerning the application of this section
to claimants residing out of state. The only legislative history
that addresses this subsection at all indicates that the
ineligibility criteria of AS 23.30.041(f)(1) were included
because the legislature hoped they would "be an incentive for
employers to return to work an injured employee, if possible."8
However, the legislature did express a general intent that
rehabilitation benefits were not to be construed as a guarantee
of a specific type of employment in a specific location.
AS 23.30.041(e)(2) and the definition of "labor
market", AS 23.30.041(p)(3), dictate that a claimant may be
refused rehabilitation benefits if a job for which the claimant
is qualified and capable of performing despite his or her injury
is available in a place other than Alaska. Thus, a claimant may
be forced to choose between (1) moving to another place to take a
job, and (2) foregoing reemployment benefits.
We agree with the Greek Corner that the legislature
must have intended AS 23.30.041(f)(1) to operate in similar
fashion. Thus, a claimant who has left Alaska, and to whom an
AS 23.30.041(f)(1) job offer has been made, may legitimately be
asked to choose between (1) returning to Alaska to take the job,
and (2) foregoing reemployment benefits.
This interpretation of AS 23.30.041(f)(1) is consistent
not only with the provisions of AS 23.30.041(e)(2), but also with
the other provisions of the reemployment benefits statute.
Reemployment benefits are not simply an income-replacement
vehicle to tide injured workers over until they can resume
employment; these benefits are paid contingent on the employee's
participation in the development and execution of a reemployment
plan. See AS 23.30.041(g)-(n). The statute makes it clear that
the legislature intended these plans to include employee contact
with the rehabilitation specialist, and an opportunity for the
employer to monitor the employee's compliance with the plan. See
AS 23.30.041(n). Although we do not hold that payment of
reemployment benefits to claimants residing out of state is
inappropriate, we believe that these provisions indicate a
preference for residence in Alaska while the employee is
participating in the plan.
If we were to hold that claimants residing out of state
could collect reemployment benefits despite an employer's offer
of employment in Alaska, some claimants may seek to avoid the
application of that provision by leaving the state. Such
opportunism would increase the cost to employers of the workers'
compensation scheme, an outcome contrary to the legislature's
stated desire to control costs and workers' compensation
premiums. See Williams v. State, Dept. of Revenue, 895 P.2d 99,
104 (Alaska 1995) ("[T]he Act's purpose is '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.'"
(quoting Ch. 79, ' 1, SLA 1988) (emphasis added)); Chiropractors
for Justice v. State, 895 P.2d 962, 966, 970 (Alaska 1995)
(noting the State's legitimate interest in "saving jobs by
reducing workers' compensation premiums" and "the overall
legislative policy of providing medical benefits to injured
workers at a reasonable cost to employers."). See also AS
23.30.175 (allowing downward adjustment in workers' compensation
benefits paid to claimants living in states which have a lower
cost of living as compared to Alaska).
The issue in this case is whether a claimant must
return to Alaska from out of state to take a job offered pursuant
to AS 23.30.041(f)(1), or forego reemployment benefits. The
policy considerations which underlie a limitation on reemployment
benefits payments to out-of-state residents include facilitating
employer monitoring of compliance with the reemployment plan and
avoiding opportunistic departures by claimants. These
considerations apply with equal force whether the claimant
resides in another state or is a resident of a foreign country.
Alaska Statute 23.30.041(f) governs the eligibility for
reemployment benefits of workers' compensation claimants who move
outside of the State of Alaska. The superior court and the Board
1 Alaska Statute 23.30.041(f) provides:
An employee is not eligible for reemployment
benefits if (1) the employer offers
employment within the employee's predicted
post-injury physical capacities at a wage
equivalent to at least the state minimum wage
under AS 23.10.065 or 75 percent of the
worker's gross hourly wages at the time of
injury, whichever is greater, and the
employment prepares the employee to be
employable in other jobs that exist in the
2 Raris raises cursorily the issue of the legitimacy of
Greek Corner's job offer in her reply brief. We consider Raris
to have waived any argument based on the legitimacy of the offer.
See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991) ("[W]here a point is given only cursory statement
in the argument portion of a brief, the point will not be
considered on appeal."); Conam Alaska v. Bell Lavalin, Inc., 842
P.2d 148, 158 (Alaska 1992) ("[A] reply brief may not raise
contentions not previously raised in either the appellant's or
3 This is a question of statutory interpretation. We
review issues of statutory interpretation under the substitution
of judgment standard of review. Yahara v. Construction &
Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993). Under this
standard we "look to 'the language of the statute construed in
light of the purpose of its enactment.'" Id. (quoting J & L
Diversified Enter. v. Municipality of Anchorage, 736 P.2d 349,
351 (Alaska 1987)).
4 In her reply brief Raris attempts to frame the issue as
a question of whether out-of-state claimants have waived their
rights to rehabilitation benefits. In making this argument she
emphasizes various sections of the workers' compensation statute
which explicitly discuss waiver. See AS 23.30.041(c), (n);
23.30.012. Raris misconstrues the issue. The question is not
whether Raris waived her right to rehabilitation benefits by
leaving the state; the query is whether she is ineligible for
rehabilitation benefits because Greek Corner has offered her
modified employment which meets the requirements of
5 In a footnote Raris also asserts that Greek Corner's
position is tantamount to an equal protection and privileges and
immunities violation. She cites no facts or case law to support
this assertion. Here again, we consider Raris to have waived
this argument for failing to develop it. See Adamson, 819 P.2d
at 889 n.3; see also Forquer v. State, Commercial Fisheries Entry
Comm'n, 677 P.2d 1236, 1238 n.2 (Alaska 1984); State v. O'Neill
Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980); L.E.
Spitzer Co., Inc. v. Barron, 581 P.2d 213, 218 (Alaska 1978);
Wernberg v. Matanuska Elec. Ass'n, 494 P.2d 790, 794 (Alaska
1972); Martin v. English, 492 P.2d 105, 105 (Alaska 1971).
6 Alaska Statute 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 . . .
(1) the employee's job at the time of injury;
(2) other jobs that exist in the labor market
that the employee has held or received
training for within 10 years before the
injury or that the employee has held
following the injury for a period long enough
to obtain the skills to compete in the labor
market, according to specific vocational
preparation codes . . . .
7 Alaska Statute 23.30.041(p) provides in part:
In this section . . . (3) "labor market"
means a geographical area that offers
employment opportunities in the following
(A) area of residence;
(B) area of last employment;
(C) the state;
(D) other states. . . .
8 Sectional Analysis of SB 322 and HB 352 at page 3;
Joint House and Senate Labor and Commerce Committee at number 586
(January 19, 1988).