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Konecky v. Camco Wireline, Inc. (7/26/96), 920 P 2d 277
Notice: This opinion is subject to 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, telephone (907) 264-0607, fax (907) 264-
THE SUPREME COURT OF THE STATE OF ALASKA
KEVIN KONECKY, )
) Supreme Court No. S-6419
) Superior Court No.
v. ) 3AN-92-9126 Civil
CAMCO WIRELINE, INC., and )
CONTINENTAL INSURANCE COMPANY,) O P I N I O N
Appellees. ) [No. 4371 - July 26, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Joseph A. Kalamarides,
Kalamarides & Associates, Anchorage, for
Appellant. Timothy A. McKeever and Keri
Clark, Faulkner, Banfield, Doogan & Holmes,
Anchorage, for Appellees.
Before: Compton, Chief Justice, Rabinowitz,
Matthews and Eastaugh, Justices. [Moore,
Justice, not participating.]
RABINOWITZ, Justice, dissenting.
The issue before us is whether Kevin Konecky is eligible
for vocational reemployment benefits under AS 23.30.041(e). The
Alaska Workers' Compensation Board (Board) ruled that he was not,
and the superior court affirmed. We affirm the decision of the
Alaska Statute 23.30.041(e) provides for reemployment
benefits when the injured employee's physical capacities are less
than the physical demands of the employee's job as described in the
United States Department of Labor's Dictionary of Occupational
Titles. Although Konecky's job and like jobs in the labor market
require greater physical capacity than that described in the
dictionary, Konecky is physically capable of performing the demands
of his job as described in the Department of Labor dictionary. The
language of the statute consequently compels the result we reach.
II. FACTS AND PROCEEDINGS
Konecky hurt his lower back in July 1988 while working as
a "hoistman"for Camco Wireline, Inc. (Camco) at Prudhoe Bay. (EN1)
He was taken to Providence Hospital in Anchorage, and was seen by
Dr. George von Wichman and later by Dr. Robert Fu. As a result of
these consultations, Konecky began a comprehensive back
strengthening exercise program so that he could resume his job as
a hoistman. Dr. Fu concluded that the program was successful, and
released Konecky for "heavy to very heavy labor"in April 1989.
Konecky returned to work in April 1989 when a hoistman
position opened at Camco. In October he had another episode of
pain at work. Further tests revealed that Konecky's work capacity
had decreased to "medium."
Konecky applied to the Board for reemployment benefits as
a result of his October 1989 injury. (EN3) In March 1992 the Board
designated rehabilitation specialist Richard Stone to evaluate
Konecky for rehabilitation eligibility. Stone evaluated Konecky
and noted that his physical capacities, specifically his lifting
ability, were of the "medium"category. (EN4) Stone determined
that Konecky's physical job demands as a hoistman were of the "very
heavy"level, requiring occasional lifting of 100 pounds and
frequent lifting of fifty pounds. Konecky reported, and Camco
confirmed, that the job required lifting in excess of 100 pounds.
Stone also considered Konecky's past work history and concluded
that Konecky could not return to the jobs he had held in the last
ten years. (EN5) Stone therefore recommended that Konecky be found
eligible for reemployment benefits. Based on this recommendation,
the Reemployment Benefits Administrator Designee (RBA) determined
that Konecky was eligible for reemployment benefits.
Camco appealed the RBA's decision to the Board. (EN6) In
August 1992 the Board held that the RBA abused her discretion in
finding Konecky eligible for reemployment benefits. The Board
concluded that Stone and the RBA were required to use the
description of the job demands provided in SCODDOT in accordance
with AS 23.30.041(e), instead of considering the job's actual
physical demands. The Board found that because SCODDOT lists the
strength demands for a "hoist operator"(EN7) at the "medium work
level,"and because Konecky could perform work at this level, he
was not eligible for reemployment benefits. The Board remanded the
claim to determine if a "hoistman"position exists in the labor
On remand, Stone conducted a labor market survey to
determine if the job of "hoistman"existed in the labor market as
described by SCODDOT under the title "hoist operator." Stone
reported the relevant labor market information, which showed that
"medium-to-heavy"work is required for the "hoist operator"
occupation. The RBA concluded that although Konecky was physically
able to perform "medium"level work, "a review of Mr. Stone's
survey shows that the occupation of Hoist Operator does not exist
as medium work." Because the job did not exist in the labor market
at the level of exertion described in SCODDOT, and because the
actual physical demands of the hoistman position exceeded Konecky's
capacities as predicted by his physician, the RBA again determined
that Konecky was eligible for reemployment benefits.
Camco again appealed to the Board. The Board reversed
the RBA in June 1993. It found that because SCODDOT considers a
hoist operator job to require medium physical capacity and because
Konecky could perform at that level, he was ineligible under AS
23.30.041(e) for reemployment benefits. The superior court
affirmed. This appeal followed.
In determining that Konecky was not eligible for
reemployment benefits, the Board strictly applied the job
description of hoist operator pursuant to AS 23.30.041(e) and
Unfortunately, this is another case in
which the law requires us to use the SCODDOT's
job description, and it does not match
reality. We find Employee's actual job at the
time of injury and other jobs in the labor
market as a hoist operator require lifting
over 50 pounds. They are clearly not medium
capacity jobs as defined in the SCODDOT.
Given the mandate in the law that the RBA
must rely upon the SCODDOT for the job's
physical demands, we conclude we have no
choice but to find the RBA did not use the
description in the SCODDOT of the physical
demands of a hoist operator's job in finding
Employee eligible. Instead, the RBA
considered the actual job demands of the job
Employee held at the time of injury. Then, in
a creative twist in the interpretation of the
statute, the RBA determined the hoist
operator's job as described in SCODDOT did not
exist in the labor market.
We find this determination is contrary to
the law. We find the law was misapplied and a
mistake was clearly made. Considering the
medical evidence, we find Employee is able to
perform jobs requiring medium physical
capacities. Based on the SCODDOT, we find
Employee's job at the time of the injury as a
hoist operator is a job which demands medium
physical capacities. Although Employee no
longer has the physical capacity to perform
the actual duties of his job at the time of
injury, we must ignore that fact and consider
a theoretical description of the physical
demands of his job. Based on Stone's
testimony and the Department of Labor
statistics, we find hoist operator jobs exist
in the labor market.
Accordingly, for the reasons stated
above, we conclude the RBA abused his
discretion. We reverse his determination and
find Employee is not eligible for reemployment
Konecky argues that the SCODDOT definition of "hoist
operator"is antiquated and that strictly applying AS 23.30.041(e)
is consequently unjust and illogical. Konecky urges us to allow
the RBA to depart from the SCODDOT description when the facts
require such action.
Camco argues that the Board correctly applied AS
23.30.041(e). Camco reasons that strict application of the SCODDOT
definitions is consistent with the legislature's purpose in
enacting the 1988 amendments to the Alaska Workers' Compensation
Resolution of whether the Board erred in determining that
Konecky was not eligible turns on the meaning of AS 23.30.041(e)
and on the Board's fact finding that hoist operator jobs exist in
the labor market. "[T]his court reviews the Board's reading of AS
23.30 under the independent judgment standard."(EN8) Rydwell v.
Anchorage Sch. Dist., 864 P.2d 526, 528 (Alaska 1993) (citations
omitted). Because the superior court acted as an intermediate
court of appeal, we give no deference to its decision. Id. We
review the Board's fact findings under the substantial evidence
standard. Alaska Pulp Corp. v. Trading Union, Inc., 896 P.2d 235,
236 (Alaska 1995); Yahara v. Construction & Rigging, Inc., 851 P.2d
69, 72 (Alaska 1993); Morrison v. Afognak Logging, Inc., 768 P.2d
1139, 1141 (Alaska 1989).
Alaska Statute 23.30.041(e) authorizes the Board to grant
reemployment benefits when an employee's physician predicts that
the employee will have physical capacities
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;
(2) other jobs that exist in the labor market
that the employee has held . . . within 10
years before the injury . . . .
AS 23.30.041(e) (emphasis added).
In interpreting a statute, we "look to 'the language of
the statute construed in light of the purpose of its enactment.'"
Yahara, 851 P.2d at 72 (quoting J & L Diversified Enter. v.
Municipality of Anchorage, 736 P.2d 349, 351 (Alaska 1987)). If
the language of the statute is unambiguous and expresses the intent
of the legislature, and if no ambiguity is revealed by the
legislative history, we will not modify or extend a statute by
judicial construction. Id. (citing Alaska Pub. Employees Ass'n v.
City of Fairbanks, 753 P.2d 725, 727 (Alaska 1988)). However, if
there is some ambiguity, we apply a sliding scale approach in
interpreting the statute. Alaska Pub. Employees Ass'n v. City of
Fairbanks, 753 P.2d at 727. Under this approach, "'the plainer the
language, the more convincing contrary legislative history must
be.'" State v. Alex, 646 P.2d 203, 208-09 n.4 (Alaska 1982)
(quoting United States v. United States Steel Corp., 482 F.2d 439,
444 (7th Cir.), cert. denied, 414 U.S. 909 (1973)). By using this
approach, the court "endeavors to give effect to legislative
intent, with due consideration for the meaning that the language of
the statute conveys to others." Rydwell, 864 P.2d at 528 (citing
Forest v. Safeway Stores, Inc., 830 P.2d 778, 781 (Alaska 1992)).
The language of AS 23.30.041(e) is clear -- the Board
must compare the physical demands of a specific job as found in
SCODDOT with the employee's physical capacities. (EN9) Employees
are eligible for reemployment benefits only if their physical
capacities are less than the physical demands as described in
SCODDOT. Rydwell, 864 P.2d at 529.
The Board predicated its conclusion that Konecky was not
eligible for reemployment benefits on the fact that SCODDOT defined
the "hoist operator"position to require "medium"work. It
implicitly made a fact finding that Konecky's position was that of
hoist operator. Because it found Konecky was able to perform jobs
requiring "medium"physical capacities, the Board determined that
Konecky's physical capacities were not less than the SCODDOT-
described job duties of the hoist operator position.
The Board's reasoning was compelled by the clear language
of AS 23.30.041(e).
Konecky argues that this interpretation ignores the
physical reality of his position. It was undisputed that his
actual work demands exceeded the SCODDOT "medium"work category.
Moreover, no other hoist operator positions in Alaska, Canada, or
the lower 48 could be found that fit the "medium"category. Thus,
Konecky's actual job at Camco and hoist operator jobs elsewhere
require more lifting and strength than the SCODDOT description
Further, Konecky argues that the introduction to SCODDOT
contains a disclaimer which states:
The user should be cautious in interpreting
the information in this publication.
Occupational definitions described in the
Dictionary of Occupational Titles (DOT),
Fourth Edition are composite descriptions of
occupations as they may typically occur and
may not coincide with a specific job as
actually performed in a particular
establishment or in a given industry.
Data for the Dictionary were collected and
developed according to job analysis techniques
established by the U.S. Employment Service and
analyses conducted by occupational analysts in
affiliated State Employment Service
Occupational Analysis Field Centers. Data
obtained through these studies were evaluated
and job definitions were prepared, resulting
in significant modifications in the
occupational characteristics of most jobs.
The information in the Dictionary reflects
findings of the Employment Service from more
than 75,000 on-site analyses and extensive
contacts with professional and trade
associations relating to individual job
situations. An occupation found to have
certain characteristics in job situations
observed by the Employment Service does not
necessarily preclude the same occupations from
having different characteristics in other job
SCODDOT at v (1981) (emphasis added). Konecky argues that this
disclaimer contemplates the very situation in which he finds
himself -- that the SCODDOT definition does not coincide with
Konecky's job as actually performed. He argues that the Board
erred in strictly applying the SCODDOT definition pursuant to AS
23.30.041(e)(1) because SCODDOT acknowledges the possibility that
its definitions may not reflect the actual physical demands of a
specific job. (EN10)
Konecky also relies on legislative history. The 1988
amendments to the Alaska Workers' Compensation Act regarding
reemployment benefits "redefine an employee's eligibility for
rehabilitation benefits as the inability to return to the job held
at time of injury or other jobs held or trained for within 10 years
prior to injury or following injury." House Judiciary Comm.,
Sectional Analysis, House Comm. Substitute for Comm. Substitute SB
322, 15th Legis., 2d Sess. sec. 10.4 (Comm. Print 1988)
[hereinafter Sectional Analysis]. Thus, according to Konecky,
strict application of the SCODDOT definition of "hoist operator"
frustrates the legislature's intention of awarding benefits to
employees who are unable to return to the job held at the time of
injury. He also notes the overall legislative purpose of the 1988
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
Ch. 79, sec. 1, SLA 1988.
These circumstances, however, cannot overcome the clear
language of the statute. The legislature's language is plain, and
demands that reemployment benefit eligibility be determined by the
SCODDOT job descriptions. The legislature neither expressed nor
implied any exceptions. The statute's plain language was
apparently intended to minimize or avoid prolonged and expensive
disputes about eligibility for reemployment benefits by inflexibly
relying on the Department of Labor's extensive occupational
dictionary and job analyses. In doing so, the legislature may have
been acting in accordance with its expressed intention to reduce
costs to employers and reduce litigation. Ch. 79, sec. 1, SLA
1988, quoted above. See also Sectional Analysis sec. 10.5 ("The
overall goal of these changes [to the workers' compensation
rehabilitation system] is to promote a prompter, more efficient,
more cost-effective, successful, and less litigated rehabilitation
system."(emphasis added)); cf. Rydwell, 864 P.2d at 530 (agreeing
with party's argument that provisions requiring objective bases for
claims are one means by which the legislature sought to reduce
baseless claims and thus lower costs). The Board itself recognized
this purpose in Rydwell v. Anchorage School District, AWCB No.
9003980 (May 17, 1991). In assessing the 1988 reenactment of AS
23.30.041, the Board found that some of the specific purposes of
the reenactment were
1) to create a less expensive system with
fewer employees participating in it; 2) to
reduce the use of vocational rehabilitation as
a litigation tool; 3) to encourage the use of
vocational rehabilitation services for
employees "most likely to benefit and who
truly desire and need them"; [and] 4) to
speed up the vocational rehabilitation process
in the expectation of producing more
Id. at 10 (emphasis added) (footnotes omitted).
If the court were to accept Konecky's argument, each time
an injured worker applies for these benefits, questions would arise
about the accuracy of the SCODDOT job descriptions. Employees
could be expected to argue that SCODDOT underestimates the physical
demands of the job, or that the job listed in SCODDOT is not
available in the labor market. Employers could be expected to
counter with arguments that SCODDOT exaggerates the physical
demands of the job, or that actual demands of the job are less than
those listed in SCODDOT. As a result, the predictability,
objectivity, and cost reduction that the legislature intended would
be greatly reduced. We rejected that result in Rydwell. Rydwell,
864 P.2d at 530. The legislature intended to redesign the Alaska
Workers' Compensation Act to meet its stated goals. Nothing in the
language cited above from the Sectional Analysis or the legislative
purpose establishes otherwise.
Thus, applying our sliding scale approach to statutory
interpretation, Konecky's arguments are insufficient to overcome
the plain language of AS 23.30.041(e). That language compels us to
conclude that the Board did not err in finding Konecky ineligible
for reemployment benefits. Although we are sympathetic to the
reservations expressed by the Board and by the superior court,
those reservations cannot allow us to ignore the clear statutory
language absent any compelling indication the legislature intended
some different result.
AFFIRMED.RABINOWITZ, Justice, dissenting.
I dissent. Even if the court is correct that SCODDOT
definitions must be applied strictly, this does not address the
question of whether a particular job falls within a SCODDOT job
title. As Konecky's job in particular, hoistman, evidently does
not fall under any existing SCODDOT title, I would hold that his
case is beyond the scope of SCODDOT, and that therefore SCODDOT
should not be used in determining whether he is eligible for
vocational re-employment benefits under AS 23.30.041(e). Also, I
do not think that AS 23.30.041(e) requires this court to apply
particular SCODDOT definitions strictly in every case.
In the case at bar, the SCODDOT description of the job is
not the job as performed by Konecky. In fact, as Konecky and the
court both point out, not only does the SCODDOT job description
fail to describe Konecky's work, but "no other hoist operator
positions in Alaska, Canada, or the lower 48 could be found that
fit the 'medium' category."(EN1)
A similarity in job titles, and a substantial overlap in
duties, should not obscure the fact that Konecky's job is not the
job described in SCODDOT. In fact, the job described in SCODDOT
apparently does not exist. The fact that a job similar to
Konecky's is described by SCODDOT does not mean that Konecky was
performing that job.
Even the court's strict application of SCODDOT
definitions should not require that a job which is not included in
SCODDOT be forced to fit into a SCODDOT job title. Konecky's job
involved substantially different demands from the job of "hoist
operator,"which is found in SCODDOT. In fact, no one's job fits
the description of "hoist operator"as described in SCODDOT. Thus,
under the circumstances of this case, I would hold that Konecky was
not a "hoist operator"as defined by SCODDOT, that Konecky's job
does not appear in SCODDOT, and that therefore SCODDOT should not
have been used to measure the physical demands of his job. For
this reason, I would reverse the decisions of the superior court
and the Board.
Furthermore, even if Konecky is in fact a "hoist
operator"as defined in SCODDOT, the proper application of SCODDOT
allows for variability in the physical requirements of jobs. As
the court notes, the SCODDOT itself contains a disclaimer which
states: "Occupational definitions described in the [SCODDOT] . . .
may not coincide with a specific job as actually performed in a
particular establishment or in a given industry." SCODDOT at v
(1981). It also warns that "[a]n occupation found to have certain
characteristics in job situations observed by the Employment
Service does not necessarily preclude the same occupation from
having different characteristics in other job situations." Id.
Thus, SCODDOT itself recognizes that its definitions are not
exhaustive descriptions of jobs as they actually exist.
Therefore, the requirement of AS 23.30.041(e) that the
employee's physical capacities be compared to "the physical demands
of the employee's job as described in the [SCODDOT] for . . . the
employee's job at the time of injury . . ."must be understood to
encompass SCODDOT's own provision that the definitions should be
read to include a degree of variability in the physical
requirements of actual jobs. In effect, a truly strict application
of SCODDOT definitions requires allowance for the variability of
the physical demands of jobs. (EN2)
Konecky's job required greater physical capacity than the
description of "hoist operator"in SCODDOT. This variation was
anticipated by SCODDOT, and should be acknowledged. For this
reason, too, I would reverse the decisions of the superior court
and the Board.
1. Konecky describes his "hoistman"position as "having trucks
ready for a job with ARCO or Standard and going out to that job and
proceeding to rig up on the [production] well." Rigging up the
well entails hooking tools to a long wire which runs down the well
to obtain information regarding temperature, pressure, and fluids.
2. This rating of Konecky's physical capacity is based on the
categories of physical demands of employment as provided in the
United States Department of Labor's Selected Characteristics of
Occupations Defined in the Dictionary of Occupational Titles
(SCODDOT). SCODDOT contains detailed occupational characteristics
data, including training time, physical demands and environmental
conditions of jobs as listed in the Dictionary of Occupational
Titles (DOT). The DOT was compiled as a result of the need for a
comprehensive body of standardized occupational information for
purposes of job placement, employment counseling, occupational and
career guidance, and labor market information services. U.S. Dep't
of Labor, Introduction to DOT at xiii-xiv (4th ed. 1977). The
material in the current edition is based on more than 75,000 on-
site job analyses conducted from 1965 to the mid-1970's in various
industries. These analyses were conducted in an effort to ensure
that the definitions contained in the DOT are not based on
obsolescent industrial practices. Id.
SCODDOT lists five categories of work based on physical
Sedentary work: involves "lifting [ten
pounds] maximum and occasionally lifting
and/or carrying such articles as dockets,
ledgers, and small tools."
Light work: involves "lifting [twenty pounds]
maximum with frequent lifting and/or carrying
of objects weighing up to [ten pounds]."
Medium work: involves "lifting [fifty pounds]
maximum with frequent lifting and/or carrying
of objects weighing up to [twenty-five
Heavy work: involves "lifting [one hundred
pounds] maximum with frequent lifting and/or
carrying of objects weighing up to [fifty
Very heavy work: involves "lifting objects in
excess of [one hundred pounds] with frequent
lifting and/or carrying of objects weighing
[fifty pounds] or more."
U.S. Dep't of Labor, SCODDOT 465 (1981).
3. This appeal raises no issues about Konecky's eligibility for
any workers' compensation benefits other than vocational
4. Stone's recommendation characterized Dr. Fu's prediction of
Konecky's physical capacities as being "Medium-Heavy - Exerting up
to 75 lbs of force occ[asionally], up to 35 lbs freq[uently] and up
to 15 lbs constantly."
5. In the ten years before Konecky's first injury, Konecky worked
at a number of other jobs. Stone found that although some of the
past jobs fell within Konecky's physical capabilities, they did not
meet remunerative employability criteria.
6. References to "Camco"include Camco's compensation insurer
7. SCODDOT does not list a "hoistman"position, but does list a
"hoist operator"position. The Board's decision uses both terms
throughout. The Board implicitly found that these terms describe
the same position, and Konecky does not argue on appeal that he was
a "hoistman"(the title Camco gave his position) and not a "hoist
8. Camco argues that the court should apply the reasonable basis
standard of review. This standard of review is generally
appropriate when "the agency is making law by creating standards to
be used in evaluating the case before it and future cases,"and
"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. of
Alaska v. State, Dep't of Revenue, 665 P.2d 960, 964 (Alaska 1983)
(citing Galt v. Stanton, 591 P.2d 960, 965-66 (Alaska 1979)
(Rabinowitz, J., concurring)). However, when the "issue to be
resolved turns on statutory interpretation rather than formulation
of fundamental policy involving particularized expertise of
administrative personnel, . . . we shall independently consider the
meaning of statute." Hood v. State, Workmen's Compensation Bd.,
574 P.2d 811, 813 (Alaska 1978). As the issue to be resolved in
this case "turns on statutory interpretation,"the use of the
independent judgment standard is appropriate.
9. In Yahara, we held:
Under the express language of AS 23.30.041(e),
medical evidence of eligibility must satisfy
three requirements. First, the evidence must
take the form of a prediction. Second, the
person making the prediction must be a
physician. Third, the prediction must compare
the physical demands of the employee's job, as
the U.S. Department of Labor describes them,
with the employee's physical capacities.
Yahara, 851 P.2d at 73 (final emphasis added).
10. Konecky also argues that AS 23.30.041(e) is ambiguous because
it does not expressly address situations in which SCODDOT
definitions do not reflect the actual physical demands of a job.
This argument has no merit. As we noted previously, the statute is
clear on its face.
1. SCODDOT defines a hoist operator job to require only medium
physical capacity. Because Konecky was able to perform at that
level, he was held to be ineligible under AS 23.30.041(e) for re-
In its decision the Board stated in part:
Unfortunately, this is another case in which
the law requires us to use the SCODDOT's job
description, and it does not match reality.
We find Employee's actual job at the time of
injury and other jobs in the labor market as a
hoist operator require lifting over 50 pounds.
They are clearly not medium capacity jobs as
defined in the SCODDOT.
2. Konecky's reliance on relevant legislative history is also of
significance. As the majority notes, the 1988 amendments to the
Alaska Workers' Compensation Act regarding re-employment benefits
were intended to "redefine an employee's eligibility for
rehabilitation benefits as the inability to return to the job held
at time of injury or other jobs held or trained for within 10 years
prior to injury or following injury." House Judiciary Comm.
Substitute S.B. 322, 15th Leg., 2d Sess. sec. 10.4 (Comm. Print
1988). Given this history, I think there is considerable merit in
Konecky's argument that strict application of the SCODDOT
definition of "hoist operator"frustrates the legislature's
intention of awarding benefits to employees who are unable to
return to the job held at the time of injury.