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Morgan v. Lucky Strike Bingo (6/13/97), 938 P 2d 1050
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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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
SHIRLEY F. MORGAN, )
) Supreme Court No. S-7445
Appellant, )
) Superior Court No.
v. ) 3AN-95-2619 CI
)
LUCKY STRIKE BINGO, ROYAL )
INSURANCE COMPANY/GAB ) O P I N I O N
BUSINESS SERVICES, )
) [No. 4832 - June 13, 1997]
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Milton M. Souter, Judge.
Appearances: Charles W. Coe, Anchorage, for
Appellant. Robert B. Mason, Mason & Griffin, Anchorage, for
Appellees.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
The Alaska Workers' Compensation Board denied Shirley
Morgan's claim for vocational reemployment benefits because it
found her to be ineligible under AS 23.30.041(e). [Fn. 1] Morgan
appeals from the superior court decision affirming the Board's
denial. We affirm, because that statute compelled the Board to
follow the United States Department of Labor's "Selected
Characteristics of Occupations Defined in the Dictionary of
Occupational Titles"(SCODDOT) description of the physical demands
of Morgan's job in determining her eligibility, and because there
was substantial evidence that Morgan was able to perform the
physical demands of her job as described in SCODDOT.
II. FACTS AND PROCEEDINGS
Morgan, a general manager at Lucky Strike Bingo, was
stacking boxes on January 17, 1994, when a box fell on her,
injuring her head, neck, and shoulder. G. Lee Waldroup, D.C.,
Morgan's treating chiropractor, saw her numerous times over the
following year for headaches, severe neck pain, and arm and
shoulder pain. Morgan was laid off from her job shortly after her
injury. She timely requested an eligibility evaluation for
reemployment benefits pursuant to AS 23.30.041(c).
Leonard Mundorf, MSEd, CAS, CRC, from Crawford & Co.
Healthcare Management, performed the eligibility assessment. As
part of the evaluation, he selected the job titles "Accountant,
Budget"and "Supervisor/Manager"from SCODDOT on the theory they
most closely represented Morgan's work history with Lucky Strike
Bingo. [Fn. 2] SCODDOT classifies both positions as "sedentary
work."[Fn. 3] Mundorf prepared job descriptions that replicate
SCODDOT's definition of "sedentary work"almost verbatim.
Mundorf submitted these job descriptions to Dr. Waldroup
for review. Dr. Waldroup concluded that Morgan currently had the
physical capability of performing both positions as described by
SCODDOT and that she would also be able to perform the positions
after reaching medical stability. Consequently, Mundorf stated in
his Eligibility Assessment Report that, based upon Dr. Waldroup's
approval of the job descriptions, it appeared Morgan was not
eligible for reemployment benefits.
About one week later, Dr. Waldroup telephoned Crawford &
Co. Healthcare Management and spoke with another eligibility
assessor, Dennis Johnson. When Dr. Waldroup explained that it
would not be advisable for Morgan to return to the specific job she
held when she was injured because of her difficulty with some of
the repetitive motions involved, Johnson explained to Dr. Waldroup
that the SCODDOT job titles describe the type of work performed
rather than a specific job held at the time of injury. According
to Johnson, Dr. Waldroup stated that
he would have no reason to answer those
descriptions any differently than he did initially based on the
information contained in the descriptions. He also agreed that she
may likely function quite well in this type of work in a different
work setting.
According to Johnson, Dr. Waldroup also then stated that Morgan
should avoid jobs involving constant repetitive motion or requiring
her to remain stationary for extended periods of time.
Johnson conveyed Dr. Waldroup's new concerns to the
Reemployment Benefits Administrator (RBA) in the form of an
addendum to the Eligibility Assessment Report. Basing her decision
on both the initial report and the addendum, the RBA determined
that Morgan was not eligible for reemployment benefits because Dr.
Waldroup had indicated to Mundorf that Morgan's predicted permanent
physical capacities would enable her to perform the job as
described by SCODDOT. The RBA also stated that in the addendum
report Dr. Waldroup "continued to note that [Morgan] can do the job
as it is described in the Dictionary of Occupational Titles
although he felt that [she] might not function as well in some work
settings."
Morgan appealed the RBA's decision to the Board. At the
hearing, Dr. Waldroup testified that he wished to withdraw his
earlier approval of the job descriptions because they did not
include as a physical demand sitting with the head forward. [Fn. 4]
He was most concerned with this aspect of the accountant/manager
position. He also testified that he still approved of the job
descriptions as written. [Fn. 5]
The Board concluded that AS 23.30.041(e) requires that
the RBA use "the theoretical description of the physical
requirements of the job as described in the SCODDOT . . . [and] not
the actual duties the employee was required to perform in the job."
Since the RBA met the requirements of the statute by applying
SCODDOT's job description, the Board found that she did not abuse
her discretion in denying benefits, and thus upheld her
determination. The superior court affirmed the Board's decision.
This appeal followed.
II. DISCUSSION
A. Did the Board Err in Affirming the RBA's Determination
that Morgan Was Ineligible for Reemployment Benefits?
Morgan argues that the RBA abused her discretion in
finding Morgan ineligible for benefits under AS 23.30.041(e) and
that the Board erred in affirming the RBA's determination. Morgan
contends that the RBA and Board did not consider evidence that she
was unable to meet one of the physical requirements of the job as
described in SCODDOT -- "sitting most of the time." The evidence
that she alleges the RBA and Board ignored includes Dr. Waldroup's
reported statement to Dennis Johnson that "[s]he should avoid a
work setting involving constant repetitive motion or remaining in
a stationery [sic] position for long periods of time." Morgan also
points to Dr. Waldroup's Board testimony in which he withdrew his
earlier approval of the job descriptions prepared by Mundorf.
The Board is required to uphold the RBA's determination
unless the RBA has abused her discretion. AS 23.30.041(d). An
abuse of discretion exists when a decision is arbitrary,
capricious, manifestly unreasonable, or stems from improper motive.
Sheehan v. University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985).
Lucky Strike contends that the Board correctly upheld the RBA's
determination because substantial evidence -- Dr. Waldroup's
approvals of the job descriptions -- existed to support her
decision.
This court reviews findings of fact made by the Board
under the substantial evidence standard. Morrison v. Afognak
Logging, Inc., 768 P.2d 1139, 1141 (Alaska 1989). We determine
"whether there is substantial evidence in light of the whole record
that a reasonable mind might accept as adequate to support the
Board's conclusion." Id. at 1141. The court does not
independently reweigh the evidence. Id.
Dr. Waldroup's repeated statements and testimony that
Morgan could perform the job as it is described in SCODDOT are
substantial evidence supporting the Board's affirmation of the
RBA's determination. Moreover, the record does not support
Morgan's contention that "sitting most of the time"was itself a
problem. [Fn. 6]
B. Did the Board Err when It Relied Exclusively on the
SCODDOT Description of the Position and Failed to Consider the
Actual Physical Demands of Morgan's Specific Job?
While substantial evidence supports the conclusion that
Morgan could perform the job as described in SCODDOT, there is also
evidence that supports her claim that she could not perform her
actual job because it required sitting with her neck continuously
bent -- a motion that her chiropractor testified caused her much
difficulty. [Fn. 7] Morgan argues that when SCODDOT is silent
about a particular physical demand -- here, sitting with the neck
bent -- the RBA is required to look at the demands of the actual
job in determining eligibility. [Fn. 8]
Morgan argues that the bending of one's neck is such an
obvious lesser-included part of the physical requirements of a
sedentary job that SCODDOT does not even list it as a physical
demand. She contends that the Board must infer this physical
requirement. Morgan fails to present any evidence that supports
her contention that "neck-bending"is an inherent part of sitting.
[Fn. 9] Nor does she provide any support for her argument that the
Board is required or even permitted to imply "lesser-included"
physical requirements when they are not expressly listed in SCODDOT
descriptions. Indeed, the Board concluded that since SCODDOT does
not list continuous neck bending as a physical demand of the job,
Morgan's neck problems were inconsequential to the determination of
eligibility.
The Board noted that the legislature amended the
Worker's Compensation Act in 1988 to provide for "quick, efficient,
fair and predictable delivery of indemnity and medical benefits to
injured workers at a reasonable cost to employers . . . ."Ch. 79,
 1, SLA 1988. This court has recognized the legislature's desire
for objective, predictable and bright-line measurements in the
administration of the worker's compensation system in Rydwell v.
Anchorage School District, 864 P.2d 256 (Alaska 1993). See also,
Konecky v. Camco Wireline, Inc., 920 P.2d 277, 283 (Alaska 1996).
The Board thus concluded that "[i]f the RBA was [sic]
required to examine every SCODDOT job description for errors or
silences, the legislative intent and the requirement for the use of
the SCODDOT would be undermined." See Konecky, 920 P.2d at 282-83.
According to SCODDOT, the physical demands ratings
"provide a systematic way of describing the physical activities
that an occupation requires of a worker." SCODDOT at Appendix C-1.
The physical demands are described in relationship to twenty
different factors. We have already discussed the first factor,
strength, which lists "sedentary work"as the easiest level.
Included among the other nineteen physical demands are activities
such as climbing, crawling, balancing, stooping, kneeling,
crouching, reaching, handling, fingering, talking, and seeing. AS
23.30.041(p)(5). "Neck bending"is neither a listed physical
demand under AS 23.30.041(p)(5), nor is it included in the SCODDOT
description of sedentary work. [Fn. 10] "Neck bending"thus does
not appear as a physical requirement for any job.
SCODDOT rates the twenty factors in terms of the
frequency of the occurrence of the activity for the particular job
title. For example, the positions of Accountant, Budget and
Supervisor/Manager involve no stooping, kneeling, crawling, or
crouching; occasional reaching and handling, frequent fingering,
and the ability to see clearly at twenty inches or less. All
physical requirements of all the occupations listed in SCODDOT are
evaluated exclusively in terms of the frequency of these twenty
factors and no others. The physical demands of SCODDOT are
necessarily incomplete and nonexhaustive. Requiring the Board to
go beyond these twenty factors to fill gaps that invariably exist
would undermine the legislature's purpose of ensuring a quick,
objective, and efficient system. This would effectively require
the Board to engage in precisely the sort of individualistic, job-
specific inquiry that the legislature intended to avoid by enacting
the 1988 amendments.
We recently addressed the question of whether the Board
should consider the SCODDOT description or the actual requirements
of the injured employee's specific job in Konecky, 920 P.2d 277.
We there affirmed a Board decision reversing the RBA's award of
reemployment benefits because the RBA failed to use the SCODDOT
description to determine eligibility and instead incorrectly used
the actual physical demands of the employee's job. Id. at 281.
The rehabilitation specialist found that Konecky was able
to perform the "medium work"requirement of lifting a maximum of
fifty pounds as specified in the SCODDOT's description of his job
as hoist operator. Id. at 279. The requirements of his actual
job, however, required lifting in excess of 100 pounds -- a
physical demand he was unable to perform. Id. In addition, a
survey conducted by the rehabilitation specialist found that the
position of "hoist operator"as it was defined by SCODDOT did not
exist in the labor market. Id. at 279-80.
The Board agreed that Konecky's actual job and other
hoist operator positions in the labor market require lifting more
than fifty pounds: "[t]hey are clearly not medium capacity jobs as
defined in the SCODDOT." Id. at 280. The Board concluded,
however, that AS 23.30.041(e) required the RBA to use the SCODDOT
description and not the actual physical demands of his specific
job, and that the RBA's failure to use the SCODDOT was an abuse of
discretion. Id. We affirmed the Board's reversal of the RBA and
held that
[t]he 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.
Employees are eligible for reemployment
benefits only if their physical capacities are less than the
physical demands as described in SCODDOT.
Id. at 281.
We stated that
[t]he 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.
Id. at 282.
III. CONCLUSION
The superior court's decision is accordingly AFFIRMED.
FOOTNOTES
Footnote 1:
AS 23.30.041(e) provides:
[a]n 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 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 as described in the United States Department of Labor's
"Selected Characteristics of Occupations Defined in the Dictionary
of Occupational Titles."
Footnote 2:
The parties do not dispute Mundorf's choice of job titles.
For ease of discussion, we will refer to the two SCODDOT job titles
as a single occupation -- "accountant/manager."
Footnote 3:
SCODDOT describes the physical demands of an occupation in
terms of twenty different factors. Similar factors are listed in
the definition of "physical demands"found in AS 23.30.041(p)(5).
The first demand is strength, which is defined by five different
levels: sedentary, light, medium, heavy, and very heavy.
Sedentary work involves
exerting up to 10 pounds of force occasionally
or a negligible amount of force frequently to lift, carry, push,
pull, or otherwise move objects, including the human body.
Sedentary work involves sitting most of the time, but may involve
walking or standing for brief periods of time.
U.S. Dep't of Labor, Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles Appendix
C-2 (1993) (emphasis added). It is not relevant here that the
Dictionary of Occupational Titles was revised in 1993, after the
legislature repealed and reenacted AS 23.30.041 in 1988.
Footnote 4:
Dr. Waldroup testified:
. . . as the job description was listed I
didn't have . . . a problem, but there was no mention in there
about how Ms. Morgan was sitting -- about how long she would be
sitting with her head forward and things like that, which was what
was causing her a lot of problems, and that was my major concern.
Footnote 5:
At the hearing, Dr. Waldroup was asked:
Q: Okay. The main thing I want to establish
today is, Doctor, that you still approve of the job descriptions as
they were written.
A: As they were written, I would have to,
yes.
Footnote 6:
For example, one doctor who assessed her for work release did
not include a restriction on sitting as a work release limitation.
He noted that she should not lift more than ten pounds on a
repetitive basis for about a month, when she would be able to
return to her full duties. In addition, a physical therapist
concluded that she could sit for sixty minutes at a time for a
total of eight hours in a workday.
Footnote 7:
Dr. Waldroup testified that he was concerned about any type of
work Morgan had to perform which required her to sit "with her head
forward for any length of time."
Footnote 8:
Whether the RBA is to consider the physical demands contained
in the theoretical description of a job in the SCODDOT or the
actual job turns on a question of statutory interpretation, which
we review under the independent judgment standard. Konecky v.
Camco Wireline, Inc., 920 P.2d 277, 280 (Alaska 1996); Rydwell v.
Anchorage Sch. Dist., 864 P.2d 526, 528 (Alaska 1993). When the
superior court acts as an intermediate court of appeal, this court
gives no deference to its decision. Konecky, 920 P.2d at 281;
Rydwell, 864 P.2d at 528.
Footnote 9:
Lucky Strike points out that the amount of required neck
bending would vary depending upon the height of her desk, the
height and angle of her computer screen, and how much time she
spent at various activities such as reading, working at the
computer, and talking on the telephone. Presumably her work-site
conditions could be modified to reduce substantially, if not
eliminate, the amount of neck bending.
Footnote 10:
Note that other physical demands describe the physical motions
involved in the activity. For example, "stooping"is defined in
part as "[b]ending body downward and forward by bending spine at
the waist, requiring full use of the lower extremities and back
muscles." "Stooping"thus could be interpreted as requiring the
delineated use of these specified body parts. SCODDOT, supra note
3, at Appendix C-1. "Sitting"is not expressly defined, nor is
neck bending mentioned.
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