search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Wagner v. Stuckagain Heights (11/8/96), 926 P 2d 456
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, telephone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
MAXINE E. WAGNER, )
) Supreme Court Nos. S-7183/7213
Cross-Appellee, ) Superior Court Nos.
) 3AN-94-2762/93-489 CI
) O P I N I O N
STUCKAGAIN HEIGHTS and WAUSAU )
INSURANCE COMPANIES, ) [No. 4427 - November 8, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward and Karen L. Hunt, Judges.
Appearances: Charles W. Coe, Anchorage for
Appellant/Cross-Appellee. Tracey L. Knutson,
DeLisio, Moran, Geraghty & Zobel, Anchorage,
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh and Fabe, Justices.
This appeal from a decision of the Alaska Workers'
Compensation Board (the Board) requires us to decide whether the
workers' compensation law that was in effect until 1988 permits an
employee to recover simultaneously for permanent partial and total
disability. We hold that it does not and affirm the superior
court's decision on this issue.
II. FACTS AND PROCEEDINGS
Maxine Wagner was involved in an auto accident on July
11, 1985, while performing an errand for her employer, Stuckagain
Heights. She injured her back, neck, right arm, right leg, and
hearing. In Wagner's application for workers' compensation, she
requested temporary total disability (TTD), temporary partial
disability (TPD), and permanent partial disability (PPD). After
initially controverting her claim, Stuckagain Heights and its
insurance carrier (collectively Stuckagain) agreed by January 1986
to pay TTD benefits at a weekly rate of $188.09.
In March 1990 Wagner applied for permanent total
disability (PTD) and PPD benefits. The PTD application was
apparently for her back and neck injuries, while the PPD
application relied on analyses that her hearing loss was rated as
a 6% impairment of her whole body, her right leg injury as an 18%
impairment, and her right arm injury as a 14% impairment. She also
requested attorney's fees. In April 1990 Stuckagain controverted
her application. In July 1990 Stuckagain began to pay PTD benefits
but maintained that Wagner's PTD classification precluded her from
receiving PPD payments.
In October 1990 Wagner filed an Affidavit of Readiness
for Hearing, effectively requesting a hearing before the Board
based on her March 1990 application. The Board scheduled a hearing
but then cancelled it, because the parties were unable to stipulate
to the facts and Wagner's attorney failed to file affidavits about
his work on the case.
Nothing happened for nearly two years. In October 1992
Wagner filed a second affidavit of readiness. Stuckagain claimed
that the hearing request was untimely under a statute that requires
an employee to request a hearing within two years after
controversion. After a hearing limited to the timeliness issue,
the Board dismissed Wagner's claim. On appeal in August 1993,
Superior Court Judge Joan M. Woodward reversed the Board's
decision, concluding that the Board had denied Wagner due process
by failing to provide notice that its cancellation of her November
1990 hearing might bar her claim. The court remanded the case to
In October 1993 Wagner filed a new affidavit of
readiness. At a hearing before the Board, Wagner requested PPD
benefits and attorney's fees. The Board granted her fees but
denied her request for PPD benefits. The Board reasoned that the
award of partial benefits in addition to the total benefits she was
already receiving would provide an inequitable windfall,
particularly where both partial and total disability payments were
for the same accident. In effect, the Board held that the maximum
permanent compensation that a claimant can receive for one accident
is total disability benefits.
On appeal to the superior court, Wagner argued that she
deserved PTD benefits for her back injury and PPD benefits for her
arm injury, leg injury, and hearing loss. In May 1995 Superior
Court Judge Karen L. Hunt affirmed the Board's decision, holding
that "once an employee becomes totally disabled . . . the schedule
for permanent partial disability . . . becomes irrelevant."
Wagner appeals Judge Hunt's May 1995 decision. Wagner
claims that she is entitled to receive PPD payments concurrently
with her PTD payments, or in the alternative, that she was entitled
at least to PPD payments for the time period between the accident
and July 1990, during which she received TTD payments. Stuckagain
cross-appeals, claiming that Judge Woodward's 1993 decision
remanding the case to the Board was in error and that Wagner's
claim should have been dismissed as untimely under AS 23.30.110(c).
III. DISCUSSION (EN1)
A. An Injured Employee May Not Be Simultaneously Entitled to
Permanent Total and Partial Disability Benefits.
Wagner asserts that, under the law in effect until 1988,
she was entitled to recover simultaneously for permanent disability
payments for both total and partial disability.
The current workers' compensation statute clearly
provides that a claimant may not receive simultaneous PTD and PPD
payments. Under it, PPD payments are awarded "[i]n case of
impairment partial in character but permanent in quality, and not
resulting in permanent total disability." AS 23.30.190(a)
(emphasis added). Moreover, PTD payments "must be reduced by the
amount of"any prior PPD award. AS 23.30.180(a). Neither of these
provisions, however, is in the versions of the statutes that govern
this case. (EN2) Ch. 70, sec.sec. 5, 7, SLA 1983.
This question is one of first impression. Other
jurisdictions have allowed concurrent PTD and PPD payments.
Magness Constr. Co. v. Waller, 269 A.2d 554, 556 (Del. 1970);
Cuarisma v. Urban Painters, Ltd., 583 P.2d 321, 324-28 (Haw. 1978);
Buechler v. North Dakota Workmen's Compensation Bureau, 222 N.W.2d
858, 862 (N.D. 1974); State ex rel. Consolidation Coal Co. v.
Industrial Comm'n of Ohio, 404 N.E.2d 141, 143 (Ohio 1980). Others
reach the opposite result. Korineck v. General Dynamics Corp.,
Elec. Boat Div., 835 F.2d 42, 43 (2d Cir. 1987) (applying federal
Longshore & Harbor Workers' Compensation Act (LHWCA) (EN3));
Grimshaw v. L. Peter Larson Co., 691 P.2d 805, 806-09 (Mont. 1984)
(applying statutory bar against multiple benefit categories);
Varela v. Arizona Pub. Serv., 784 P.2d 1049, 1051-52 (N.M. App.
1989) (holding worker who meets standards for both PPD and PTD
"entitled only to benefits under the section providing the most"),
cert. denied, 784 P.2d 1005 (N.M. 1989, 1990); Carothers v. Ti-
Caro, 350 S.E.2d 95, 98 (N.C. App. 1986); Buechler, 222 N.W.2d at
862-64 (Erickstad, C.J., dissenting).
The statute in effect at the time specifically allowed
PPD benefits to run concurrently with TTD or TPD benefits but did
not mention PTD payments:
In case of disability partial in character but
permanent in quality the compensation is 80
percent of the injured employee's spendable
weekly wages in addition to compensation for
temporary total disability or temporary
partial disability paid in accordance with AS
23.30.185 or 23.30.200, respectively. . . .
AS 23.30.190(a) as amended by Ch. 70, sec. 7, SLA 1983. The
express mention of TTD and TPD benefits and omission of PTD
suggests a legislative intent that compensation for PTD and PPD may
not be received concurrently.
Furthermore, the statute provided PPD benefits for
injuries to multiple body parts only where they were "not amounting
to permanent total disability." AS 23.30.190(a)(21) as amended by
Ch. 70, sec. 7, SLA 1983. This limitation implies that permanent
partial and total disability benefits are exclusive. In another
case, we reached the same conclusion. Ratliff, 721 P.2d at 1142
n.8. In Ratliff we noted hypothetically that if the claimant, who
was receiving PPD benefits, was later found to be permanently
totally disabled, he would not have been limited to the PPD benefit
schedule and that "[i]f . . . an employee is totally disabled . .
. , the schedule [for PPD] becomes irrelevant." Id.
Finally, the statute's structure, which addresses in
different sections the concepts of "total disability"and "partial
disability,"indicates that the two are intended as alternatives.
Moreover, the statutory phrase "total disability"suggests a
disability that is the greatest a worker can suffer (EN4) and that
therefore triggers the maximum in compensation.
Policy arguments also favor Stuckagain's position. Each
of the four types of disability is based on a different rationale.
Each is calculated differently, and not all require proof of lost
earning capacity. McKean v. Municipality of Anchorage, 783 P.2d
1169, 1172 (Alaska 1989); Providence Washington Ins. Co. v. Grant,
693 P.2d 872, 876 (Alaska 1985); London v. Fairbanks Mun. Utils.,
Employers Group, 473 P.2d 639, 642 (Alaska 1970). However, the
purpose of all workers' compensation law is partial reimbursement
for loss of earning capacity due to injury. Wien Air Alaska v.
Arant, 592 P.2d 352, 357 (Alaska 1979); Vetter v. Alaska Workmen's
Compensation Bd., 524 P.2d 264, 266 (Alaska 1974).
Interpreting the four types of workers' compensation as
a consistent whole with a common objective favors the conclusion
that simultaneous payment of PTD and PPD benefits should be avoided
as redundant and to prevent overcompensation. In a similar vein,
Professors Larson and Larson explain that
awards for successive or concurrent permanent
injuries should not take the form of weekly
payments higher than the weekly maxima for
total disability. The theoretical reason is
that, at a given moment in time, a person can
be no more than totally disabled. The
practical reason is that if he is allowed to
draw weekly benefits simultaneously from a
permanent total and a permanent partial award,
it may be more profitable for him to be
disabled than to be well--a situation which
compensation law always studiously avoids in
order to prevent inducement to malingering.
2 Arthur Larson & Lex K. Larson, The Law of Workmen's Compensation
sec. 59.41(a), at 10-561 to 10-567 (1995) (footnotes omitted). The
Board relied on this argument to rule in Stuckagain's favor. We
also find it persuasive. (EN5)
Where possible, courts should interpret workers'
compensation as one consistent structure intended to further this
overall purpose and should award compensation for one type of
disability in light of compensation for others, particularly where
both are for the same accident. See Wien, 592 P.2d at 356 (holding
that court should interpret statute in light of purpose of whole
instrument); see, e.g., Grant, 693 P.2d at 876 (requiring
consideration of compensation for one type of disability when
compensating other types).
Although the law then in effect did allow recovery of
more than 100% of wages in some situations, because it allowed PPD
benefits to run concurrently with temporary benefits, the
difference between permanent and temporary forms of workers'
compensation justifies a prohibition against simultaneous PTD and
PPD benefits despite the possibility of simultaneous PPD and TTD or
TPD benefits. See McKean, 783 P.2d at 1172-73.
Because statutory interpretation and policy arguments
both favor this result, we hold that under the workers'
compensation statutes in effect between 1984 and 1988, an employee
may not receive concurrent PPD and PTD benefits for the same
B. Wagner Waived Her Argument in the Alternative.
In the alternative, Wagner argues that she was entitled
to PPD benefits at least until July 19, 1990, when Stuckagain
changed her status from TTD to PTD. (EN6) She bases this argument
on the premise that a claimant may receive PPD payments
simultaneously with either type of temporary payments. However,
Wagner did not raise this issue in her arguments before the Board,
nor did she list or brief this issue in her administrative appeal
to the superior court. Wagner has therefore waived this argument
through failure to raise it adequately below. Gates v. City of
Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991). (EN7)
We hold that the workers' compensation statutes that were
in effect between 1983 and 1988 do not allow simultaneous permanent
total and partial disability payments. While permanent partial
payments and temporary total disability payments may overlap,
Wagner waived her alternative argument to that effect by failing to
make that argument before the Board and the superior court.
Therefore, we AFFIRM the superior court's May 1995 decision.
1. In administrative review cases, we review conclusions of
law that involve statutory construction and not special agency
expertise under the independent judgment standard. Municipality of
Anchorage v. Leigh, 823 P.2d 1241, 1243 n.5 (Alaska 1992). We
conduct statutory interpretation de novo, not bound by the Board's
or the superior court's interpretations. Moesh v. Anchorage Sand
& Gravel, 877 P.2d 763 (Alaska 1994).
2. The 1983 amendments to AS 23.30.180 and AS 23.30.190(a)
applied "only to injuries sustained on or after January 1, 1984."
Ch. 70, sec.16, SLA 1983. The next, and most recent, amendments
applied to injuries sustained on or after July 1, 1988. Ch. 79,
sec. 48, SLA 1988.
3. In interpreting our workers' compensation act, we have
heeded federal courts' interpretations of similar provisions of the
LHWCA. Ratliff v. Alaska Workers' Compensation Bd., 721 P.2d 1138,
1140-41 (Alaska 1986).
4. Dictionary definitions for "total"include "of or
relating to something in its entirety,""complete in all details,"
"unqualified in extent or degree,"and "unlimited in character."
Webster's Third New International Dictionary 2414 (1969).
5. The Board and the superior court both note, quoting the
Professors Larson, that these policy reasons are most convincing
"when the injuries involved are concurrent rather than
consecutive,"i.e., if they result from a single injurious episode.
Larson, supra, at 10-572 to 10-573. While policy reasons may favor
limiting the rule against concurrent PTD and PPD benefits to a
single injurious episode, the statutes upon which we also rely make
no such distinction. We therefore do not resolve the question of
whether, under the pre-1988 statute, a claimant may receive
simultaneous PTD and PPD benefits for multiple injurious episodes.
6. Stuckagain says that it began paying PTD benefits on June
26, 1989, but it offers no record support for this assertion and we
7. Because our resolution of Wagner's appeal in favor of
Stuckagain is dispositive of this case, we need not reach
Stuckagain's claim on cross-appeal that the superior court erred in
allowing Wagner's claim to proceed, despite the two-year limitation
in AS 23.30.110(c). However, we note that two cases decided after
we heard this case interpret sec. 110(c) and resolve some of the
issues raised by the cross-appeal. Tipton v. ARCO Alaska, Inc.,
922 P.2d 910, 913 (Alaska 1996); Huston v. Coho Electric, ___ P.2d
___, Op. No. 4410 (Alaska, September 27, 1996). Heeding the plain
language of the statute, Tipton and Huston read sec. 110(c) as a
requirement that an employee simply request a hearing within two
years after an employer's controversion, and not as a comprehensive
"no progress rule."