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Justice v. R.M.H. Aero Logging, Inc. (2/15/2002) sp-5538
Justice v. R.M.H. Aero Logging, Inc. (2/15/2002) sp-5538
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, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DAN B. JUSTICE, )
) Supreme Court Nos. S-9513/9544
Appellant/Cross-Appellee, )
) Superior Court No. 1JU-98-2534
CI
v. )
) O P I N I O N
RMH AERO LOGGING, INC., and )
WAUSAU INSURANCE ) [No. 5538 - February 15, 2002]
COMPANIES, )
)
Appellees/Cross-Appellants. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Paul M. Hoffman, Robertson,
Monagle & Eastaugh, P.C., Juneau, for
Appellant/Cross-Appellee. Patricia L. Zobel,
DeLisio Moran Geraghty & Zobel, Anchorage,
for Appellees/Cross-Appellants.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. Did the Alaska Workers' Compensation Board erroneously
adjust an injured employee's compensation rate by departing from
the statutory formula for determining gross weekly earnings set
out in former AS 23.30.220(a)(1)? Because we conclude that our
holding in Gilmore v. Alaska Workers' Comp. Bd.1 applies with
limited retroactivity to the employee's claim for a compensation
rate adjustment, and because substantial evidence supports the
finding that the employee's past employment history is not an
accurate predictor of his future wage losses resulting from the
injury, we affirm the board's decision adjusting the employee's
compensation rate.
II. FACTS AND PROCEEDINGS
RMH Aero Logging, Inc. hired Dan Justice in February
1993 to work as a knot bumper. On June 3, 1993 Justice was
injured while working for RMH at a logging camp near Ketchikan,
when a helicopter's rotor wash caused the log on which he was
standing to roll, pinning his right foot against another log.
Justice received medical treatment and was cleared to
work without any restrictions, wearing heavy lace-up leather
boots to prevent further injury. Despite being placed on light
duty, Justice continued to experience significant pain in his
right foot. Further medical examination revealed a fracture in
his right forefoot.2 Justice's last day of employment with RMH
was June 30, 1993.
Because conservative medical treatment of Justice's
injury - such as immobilization of the foot in a cast - did not
entirely relieve the pain in his right foot, Justice underwent
surgery in February 1994. After Justice recuperated from the
surgery, Dr. Todd Kile rated Justice's permanent partial
impairment (PPI) at four percent. Dr. Kile later increased
Justice's PPI rating to eight percent.
After RMH filed a report of occupational injury or
illness with the board in June 1993, Wausau Insurance Companies,
RMH's workers' compensation insurer, voluntarily adjusted
Justice's claim. Between July 10, 1993 and August 9, 1994,
Justice received temporary total disability (TTD) benefits of
$154 per week, based on his gross income (as indicated in his
federal income tax returns) of $16,589 and $4,305 for 1991 and
1992 respectively.3 Upon reaching medical stability in August
1994, Justice received PPI benefits based on Dr. Kile's rating of
eight percent. On July 10, 1995 - when his PPI benefits expired
- Justice received a lump sum payment of $9,971 under former AS
23.30.041(k).4
Justice continued to experience pain after the February
1994 arthrodesis procedure because of degenerative arthritic
changes in his right foot. On October 13, 1997 Justice's right
foot spasmed while he was working on the roof of his house.
Justice fell from the roof, fracturing his right wrist and
sustaining a fracture/dislocation of a joint in the long finger
of his right hand. Justice underwent surgery in January 1998 to
correct the fracture/dislocation. RMH agreed that Justice's
October 1997 injuries were related to his June 1993 injury, and
reinstated his TTD benefits effective September 1, 1997.
On December 1, 1997 Justice filed a workers'
compensation claim with the board. On May 11, 1998 Justice filed
an amended claim seeking, among other things, a retroactive
adjustment of his TTD compensation rate. Justice claimed that
his gross income in 1992 was aberrationally low and did not
accurately predict his future lost wages. Justice explained that
he had spent that year administering his mother's estate. Citing
Gilmore v. Alaska Workers' Comp. Bd.,5 Justice asked the board to
depart from the formula, contained in former AS 23.20.220(a)(1),
for determining gross weekly wages. The board agreed and
retroactively adjusted Justice's weekly compensation rate to
$424.30.
RMH appealed to the superior court, which affirmed the
"retroactive application of Gilmore to Mr. Justice's 1997 TTD
claim" and reversed "[t]he Board's order that Gilmore be applied
to Mr. Justice's 1993 TTD claim . . . ."6
Justice appeals and RMH cross-appeals.
III. DISCUSSION
A. Standard of Review
A. We independently review the merits of an agency
determination when a superior court acts as an intermediate
court of appeal.7 "In reviewing an agency's factual findings, we
employ the `substantial evidence' test."8 Substantial evidence
is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."9 When an agency decision
involves expertise regarding either complex subject matter or
fundamental policy formulation, we defer to the decision " `so
long as it is reasonable, supported by the evidence in the record
as a whole, and there is no abuse of discretion.' "10 We apply
the substitution of judgment test to legal questions where no
agency expertise is involved, such as questions of " `statutory
interpretation or other analysis of legal relationships about
which courts have specialized knowledge and experience.' "11
B. The Board Did Not Err by Applying Gilmore to Justice's Claim
for a Compensation Rate Adjustment.
On October 14, 1994 we decided Gilmore v. Alaska
Workers' Comp. Bd., which held that former AS 23.30.220(a), as
applied by the board to Gilmore, violated the equal protection
clause of the Alaska Constitution.12
When Gilmore was injured on September 17, 1989, AS
23.30.220(a) provided in relevant part:
The spendable weekly wage of an injured
employee at the time of an injury is the
basis for computing compensation. It is the
employee's gross weekly earnings minus
payroll tax deductions. The gross weekly
earnings shall be calculated as follows:
(1) the gross weekly earnings are computed
by dividing by 100 the gross earnings of the
employee in the two calendar years
immediately preceding the injury;
(2) if the employee was absent from the
labor market for 18 months or more of the two
calendar years preceding the injury, the
board shall determine the employee's gross
weekly earnings for calculating compensation
by considering the nature of the employee's
work and work history, but compensation may
not exceed the employee's gross weekly
earnings at the time of injury . . . .[13]
During the two years preceding his injury, Gilmore had worked for
a total of thirty-nine weeks.14 But for twenty-two of the thirty-
nine weeks, Gilmore had been in vocational training programs
learning to become a motorcycle mechanic.15 Gilmore argued that
he should be considered "absent from the labor market" within the
meaning of AS 23.30.220(a)(2) while he was attending vocational
training programs, and that he was therefore entitled to an
alternative wage calculation under that statute.16 The board
rejected Gilmore's contention, and the superior court affirmed.17
At our request, the parties in Gilmore filed
supplemental memoranda discussing whether AS 23.30.220(a)'s
formula for determining an injured employee's gross weekly
earnings violated the equal protection clause of the Alaska
Constitution.18 We held that it did, as applied to Gilmore, for
the following reasons:
The gross weekly wage determination method of
AS 23.30.220(a) creates large differences in
compensation between similarly situated
injured workers, bears no relationship to the
goal of accurately calculating an injured
employee's lost wages for purposes of
determining his or her compensation, is
unfair to workers whose past history does not
accurately reflect their future earning
capacity, and is unnecessary to achieve
quickness, efficiency, or predictability.[19]
But we noted that "section 220(a) may be applied constitutionally
in a number of circumstances, for example, where an injured
worker has had the same occupation for all of the past two
calendar years."20 Thus, the relevant inquiry under Gilmore is
whether an injured worker's past employment history is an
"accurate predictor" of future wage losses due to the injury.21
Where past wage levels are an accurate predictor of losses due to
the injury, "the Board must apply the statutory formula. The
decision to depart from the statute must be based on substantial
evidence supporting the conclusion that past wage levels will
lead to an irrational workers' compensation award."22
We declined in Gilmore to address the extent to which
its holding would be applied retroactively.23 As Justice Compton
noted in his concurring opinion,
[t]he question of prospectivity or
retroactivity, and the type of prospectivity
or retroactivity, will be addressed in the
context of a case in which the question is
essential to the decision. In the meantime,
the past opinions of this court should serve
as a basis for an informed decision by the
Board.[24]
The board retroactively applied Gilmore to Justice's
claim for a compensation rate adjustment.25 Justice argues that
the board correctly applied Gilmore to his claim. RMH responds
that Gilmore should apply retroactively only "to workers who
raised the issue prior to Gilmore, had a claim open to
adjudication at that time, or who had preserved the issue for
appeal when the decision was issued." (Emphasis added.) Because
we conclude below that Justice's claim is open to adjudication,26
we could hold that the board properly applied Gilmore to
Justice's claim on the basis of RMH's concession alone. But, as
we will see, our law governing the retroactive application of our
decisions also demands that we affirm the board's decision to
accord Gilmore the limited retroactivity necessary to reach
Justice's claim.
1. The Byayuk factors dictate retroactive application of
Gilmore.
"There is no constitutional mandate, federal or state,
requiring civil decisions to be applied either retroactively or
prospectively. The determination whether to give retroactive
effect to new decisional law is made ad hoc, on the basis of the
practical and equitable considerations of each case."27 We
consider four factors in deciding whether and to what extent new
decisional law should be applied retroactively:
(1) whether the holding either overrules
prior law or decides an issue of first
impression whose resolution was not
foreshadowed; (2) whether the purpose and
intended effect of the new rule of law is
best accomplished by a retroactive or a
prospective application; (3) the extent of
reasonable reliance upon the old rule of law;
and (4) the effect on the administration of
justice of a retroactive application of the
new rule of law.[28]
In civil cases, limited retroactivity is the rule; exclusively
prospective application is the exception.29 "Absent special
circumstances, a new decision of this court will be given effect
in the case immediately before the court, and will be binding in
all subsequent cases in which the point in question is properly
raised," even if the events to which the law is applied occurred
before the court's decision.30
The first Byayuk factor - whether a decision overrules
prior law or decides an issue of first impression whose
resolution was not foreshadowed - is actually a threshold test.31
If Gilmore's holding was clearly foreshadowed, the rule will
apply retroactively; if, on the other hand, the question answered
by Gilmore was "subject to rational disagreement," we must
address the remaining factors.32
Gilmore was our first decision addressing the
constitutionality of former AS 23.30.220(a). Furthermore,
because Gilmore did not hold that AS 23.30.220(a) was facially
unconstitutional,33 but only that the statute as the board applied
it to Gilmore violated the equal protection clause of the Alaska
Constitution, the outcome in Gilmore was arguably "subject to
rational disagreement." We therefore conclude that Byayuk's
threshold test is met and proceed to consider the remaining
criteria.
The second Byayuk factor - whether the purpose and
intended effect of the new rule of law is best accomplished by a
retroactive or exclusively prospective application - "is the
single most important criterion to use in determining whether to
apply a new rule of law retroactively . . . ."34 The parties
agree that Gilmore's purpose, like the overall purpose of AS
23.30.220(a), is to ensure "a fair approximation of a claimant's
probable future earning capacity during the period in which
compensation benefits are to be paid."35 Because a purely
prospective application of Gilmore would deprive certain workers,
such as Justice, of workers' compensation benefits based on a
fair approximation of future earning capacity, Gilmore's purpose
is best accomplished by applying it retroactively.
The third Byayuk factor - the extent of reasonable
reliance on the old rule of law - "is used to further weigh the
merits of a [purely] prospective application and also to set the
limits of retroactivity."36 However, "this factor is of minimal
importance where the purpose and intended effect of the new rule
of law clearly justifies a retroactive application."37
Furthermore, we have held that " `[a]n insurer's reliance
interest is insufficient to [defeat retroactive] application of a
change in the law unless the insurer presents a compelling case
of grave financial consequences.' "38 RMH argues that "the cost
of opening and litigating all prior claims under former [AS
23.30.220(a)] . . . constitutes a grave financial circumstance."
But opening and litigating all prior claims is not the effect of
limited retroactivity. Limited retroactivity does not reopen
final judgments; instead, it applies the new rule only to cases
still open to adjudication. RMH has not demonstrated that grave
financial circumstances would result from this limited
retroactive application of the Gilmore decision.
The fourth Byayuk factor - the effect on the
administration of justice of retroactively applying the new rule
of law - is "useful in determining not only whether a new rule
should apply retroactively but also how far the application
should extend."39 RMH argues that retroactively applying Gilmore
would burden the entire workers' compensation system by allowing
the relitigation of "all prior workers' compensation payments
under former AS 23.30.220(a)." We disagree. Because we hold
below that Gilmore is retroactively applicable only to cases
which remain open to adjudication,40 final judgments and other
cases not open to adjudication will not be subject to
relitigation. Furthermore, we have previously noted that "the
fact that retroactive application of [a new rule of law] may
increase the number of suits is not sufficient reason to limit
retroactive application . . . . An increase in the amount of
justice should not be recognized as a burden on the
administration of justice."41 Thus, the final Byayuk factor does
not weigh against retroactive application.
2. To what extent should Gilmore be retroactively applied?
In Vienna v. Scott Wetzel Servs., Inc.,42 we considered
whether and to what extent Alaska Pacific Assurance Co. v. Brown43
should be applied retroactively. Brown held that former AS
23.30.175(d) unconstitutionally reduced the compensation benefits
of injured workers residing outside Alaska.44 We held in Vienna
that the Brown decision applied retroactively to those workers
whose claims remained open to adjudication, and to those who had
preserved the issue for appeal.45 Similarly, in Metcalf v. Felec
Servs., we held that the holding in that case would extend to
workers' compensation cases "in the pipeline" as of the date of
the court's decision.46 This included "workers whose claims
remain[ed] open to adjudication and those who [had] preserved the
issue for appeal, assuming the time for appeal [had] not
expired."47
We now hold that Gilmore is likewise retroactively
applicable to workers whose claims remain open to adjudication,
and to those who have preserved the issue for appeal. Indeed, as
we noted above, RMH concedes that Gilmore should apply
retroactively "to workers who raised the issue prior to Gilmore,
had a claim open to adjudication at that time, or who had
preserved the issue for appeal when the decision was issued."
3. Justice's claim for a compensation rate adjustment is open
to adjudication.
RMH argues that Gilmore may not be retroactively
applied to Justice's claim for a compensation rate adjustment
because it is not "open to adjudication." RMH contends that
because it did not controvert Justice's claim for workers'
compensation benefits, and because Justice received the last
benefits payment on July 10, 1995, AS 23.30.105(a)'s two-year
statute of limitations expired on July 11, 1997.48 Because
Justice did not seek a compensation rate adjustment until May 11,
1998, RMH asserts that his claim is not "open to adjudication."
Alaska Statute 23.30.105(a) permits claims within two
years after the date of the last payment of workers' compensation
benefits paid without an award. But AS 23.30.105(b) provides
that "[f]ailure to file a claim within the period prescribed in
(a) of this section is not a bar to compensation unless objection
to the failure is made at the first hearing of the claim in which
all parties in interest are given reasonable notice and
opportunity to be heard." Justice contends that because RMH did
not object at the November 9, 1998 hearing - the first (and only)
hearing before the board - his claim is not barred by AS
23.30.105(a)'s two-year statute of limitations, and is therefore
open to adjudication.
We ordered supplemental briefing in this case
addressing the following issues: (1) "When and to what extent RMH
was placed on notice that Justice was seeking to recover
additional compensation for the period of disability between 1993
and 1995"; and (2) "What opportunity RMH had to argue that any
attempt to make a change in the compensation rate applied to the
period between 1993-95 was untimely."
Justice argued in his opening supplemental brief that
RMH was placed on notice that Justice was seeking to recover
additional compensation for the period of disability between 1993
and 1995 on March 1, 1998, when he sent a letter to the board
asking "for an adjustment of [his] weekly compensation rate
retroactive to 7-10-93 to 8-9-94 (56 weeks) [and] 9-1-97 to 3-1-
9[8] (26 weeks) and beyond." (Emphasis added.) In that letter,
Justice requested back compensation of $11,180.70 and a new
weekly compensation rate of $290.35. Justice enclosed his
calculations explaining how he arrived at $11,180.70. Those
calculations reveal that Justice was seeking an additional
$7,635.60 in compensation for the period between July 10, 1993
and August 9, 1994. The board treated Justice's letter as a
claim and served it on Wausau Insurance Companies on March 6,
1998.
Thus, RMH was on notice as of March 6, 1998 that
Justice was seeking additional compensation for the period of
disability between 1993 and 1995. But in any event, RMH candidly
concedes in its opening supplemental brief that it "was first put
on notice that Mr. Justice was seeking a retroactive compensation
rate adjustment for benefits paid between 1993 and 1995 on August
10, 1998 at the prehearing at which it was made clear that a
retroactive application of the Gilmore decision was being
sought." RMH therefore had notice of Justice's claim for a
retroactive compensation rate adjustment for benefits paid
between 1993 and 1995 before the November 9, 1998 AWCB hearing.
Because RMH was placed on notice of Justice's claim for
a retroactive compensation rate adjustment before the November 9,
1998 hearing, and because RMH did not object at that hearing to
Justice's failure to file a claim within the period prescribed by
AS 23.30.105(a), we hold that RMH waived its statute of
limitations defense, and that Justice's claim is therefore "open
to adjudication." We therefore conclude that it was not error to
apply Gilmore to Justice's claim.
C. It Was Not Error to Find that Justice Was Entitled to a
Compensation Rate Adjustment Under Gilmore.
RMH argues that even if the board properly applied
Gilmore retroactively to Justice's claim, it erred by finding
that Justice was entitled to an adjustment under Gilmore, because
(1) the board applied a generalized "fairness" analysis to
Justice's claim, and (2) substantial evidence does not support
the finding that Justice's past employment history is not an
accurate predictor of his future lost income.
1. The AWCB did not base its decision to grant Justice a
compensation rate adjustment solely upon a "fairness" analysis.
In Thompson v. United Parcel Serv., we held that it was
error, under Gilmore, for the board to depart from the formula in
former AS 23.30.220(a)(1) by conducting a "generalized fairness
inquiry rather than asking whether Thompson's past earnings could
accurately be used to determine what she would have earned had
she not been injured."49
RMH argues that the board erred by granting Justice a
compensation rate adjustment based on a generalized fairness
inquiry. RMH claims that the board made no findings regarding
whether Justice's past earnings were an accurate predictor of
future lost earnings.
It is true that the board stated that "the court's
decision in Gilmore requires that a `fairness' analysis be
applied in cases such as this." But the board also found that
there was "a substantial disparity in [Justice's] earnings at the
time of his injury and his earnings, as computed under subsection
220(a)" and that Justice "would have worked more time per year
than he had in the past, based on his desire to purchase a house
and on his need to no longer care for his mother." These
findings addressed the relevant inquiry under Gilmore - i.e.,
whether Justice's past earnings were an accurate predictor of his
future lost earnings. We therefore perceive no error.
2. Substantial evidence supports the finding that Justice's
past employment history is not an accurate predictor of his
future lost income.
RMH next argues that substantial evidence does not
support the finding that Justice's past employment history is not
an accurate predictor of his future lost income. RMH argues that
Justice's work history "demonstrates sporadic and seasonal
employment . . . with significant periods of unemployment in
every year pre-injury," and that Justice's gross earnings in 1991
and 1992 are not "a great aberration compared with his historical
wages . . . ."
Because the question of the reliability of an injured
employee's past work history as a predictor of future lost income
is factual in nature, we review the board's findings on that
issue "under the substantial evidence test, viewing whether the
evidence relied upon was substantial in light of the record as a
whole."50
Here, substantial evidence supports the board's finding
that Justice's past employment history is not an accurate
predictor of his future lost income. First, there was "a
substantial disparity in [Justice's] earnings at the time of his
injury and his earnings, as computed under subsection 220(a)."
Justice earned $23,425 between February and June 1993 working for
RMH. In contrast, he earned $16,589 in 1991 and $4,305 in 1992.
Although a "substantial difference" between an injured worker's
award under former AS 23.30.220(a)(1) and his or her gross weekly
earnings at the time of injury "does not per se indicate a lack
of predictive value," it is relevant evidence that the board may
consider.51 Furthermore, Justice testified that he intended to
increase the amount of his employment in order to earn the
necessary funds for a down payment on a house. An injured
worker's intentions at the time of injury regarding future
employment are relevant to determining the reliability of the
employee's past work history as a predictor of future lost
income.52 Finally, at the time of his injury, Justice no longer
needed to care for his ailing mother, who passed away in March
1992. We therefore hold that the board did not err by granting
Justice a compensation rate adjustment under Gilmore.
IV. CONCLUSION
For these reasons, we agree with the Alaska Workers'
Compensation Board's resolution of Justice's claim for a
compensation rate adjustment. Accordingly, we AFFIRM that part
of the superior court's decision affirming the board and REVERSE
that part of the superior court's decision reversing the board
and REMAND with instructions to affirm the entirety of the
board's resolution of Justice's claim for a compensation rate
adjustment.
_______________________________
1 882 P.2d 922 (Alaska 1994).
2 Justice was diagnosed with a "medial cuneiform
fracture" in his right foot as well as a "possible Linsfranc
injury."
3 Justice's weekly TTD benefits were calculated under
former AS 23.30.220(a)(1). In 1993 AS 23.30.220 provided in
relevant part:
(a) The spendable weekly wage of an injured
employee at the time of an injury is the
basis for computing compensation. It is the
employee's gross weekly earnings minus
payroll tax deductions. The gross weekly
earnings shall be calculated as follows:
(1) the gross weekly earnings are
computed by dividing by 100 the gross
earnings of the employee in the two calendar
years immediately preceding the injury.
AS 23.30.220 was amended effective September 4, 1995. See ch.
75, 9-10, SLA 1995.
4 Former AS 23.30.041(k) provided:
Benefits related to the reemployment plan may
not extend past two years from date of plan
approval or acceptance, whichever date occurs
first, at which time the benefits expire. If
an employee reaches medical stability before
completion of the plan, temporary total
disability benefits shall cease and permanent
impairment benefits shall then be paid at the
employee's temporary total disability rate.
If the employee's permanent impairment
benefits are exhausted before the completion
or termination of the reemployment plan, the
employer shall provide wages equal to 60
percent of the employee's spendable weekly
wages but not to exceed $525, until the
completion or termination of the plan. A
permanent impairment benefit remaining unpaid
upon the completion or termination of the
plan shall be paid to the employee in a
single lump sum. The fees of the
rehabilitation specialist or rehabilitation
professional shall be paid by the employer
and may not be included in determining the
cost of the reemployment plan.
AS 23.30.041(k) was amended effective July 1, 2000. See ch. 105,
4, SLA 2000.
5 882 P.2d 922 (Alaska 1994).
6 The parties agree that the superior court mistakenly
assumed that Justice had asserted two separate claims for
compensation rate adjustment - i.e., a claim for the June 1993
foot injury and a claim for the October 1997 wrist injury.
7 Thompson v. United Parcel Serv., 975 P.2d 684, 687-88
(Alaska 1999) (citing Handley v. State, Dep't of Revenue, 838
P.2d 1231, 1233 (Alaska 1992) (citation omitted)).
8 Id. at 688 (citing Jager v. State, 537 P.2d 1100, 1107
(Alaska 1975) (citation omitted)).
9 Id. (quoting Interior Paint Co. v. Rodgers, 522 P.2d
164, 170 (Alaska 1974) (citation omitted)).
10 Id. (quoting Ellis v. State, Dep't of Natural Res., 944
P.2d 491, 493 (Alaska 1997) (citation omitted)).
11 Id. (quoting Earth Res. Co. v. State, Dep't of Revenue,
665 P.2d 960, 965 (Alaska 1983) (citation omitted)).
12 Gilmore, 882 P.2d at 922-30.
13 Ch. 79, 37, SLA 1988; see also Gilmore, 882 P.2d at
923 n.1. AS 23.30.220 was amended effective September 4, 1995.
See ch. 75, 9-10, SLA 1995.
14 Gilmore, 882 P.2d at 924.
15 Id.
16 Id. at 924-25.
17 Id. at 925.
18 Id. at 923.
19 Id. at 929.
20 Id. at 930 n.17.
21 Thompson, 975 P.2d at 689.
22 Id.
23 See Gilmore, 882 P.2d at 930 n.18, 932.
24 Id. at 932 (Compton, J., concurring) (citing Metcalf v.
Felec Servs., 784 P.2d 1386 (Alaska 1990) ; Morrison v. Afognak
Logging, Inc., 768 P.2d 1139 (Alaska 1989); Vienna v. Scott
Wetzel Servs., Inc., 740 P.2d 447 (Alaska 1987); Suh v. Pingo
Corp., 736 P.2d 342 (Alaska 1987)).
25 Justice was injured on June 3, 1993, before we decided
Gilmore on October 14, 1994. See 882 P.2d at 922.
26 See infra Part III.B.3.
27 Suh, 736 P.2d at 344 (citation omitted).
28 Commercial Fisheries Entry Comm'n v. Byayuk, 684 P.2d
114, 117 (Alaska 1984).
29 Id. at 117 (citing Plumley v. Hale, 594 P.2d 497, 502
(Alaska 1979)).
30 Vienna, 740 P.2d at 449 (quoting Plumley, 594 P.2d at
502).
31 Byayuk, 684 P.2d at 117-18.
32 Truesdell v. Halliburton Co., 754 P.2d 236, 239 (Alaska
1988) (citing Vienna, 740 P.2d at 450).
33 Gilmore, 882 P.2d at 929 n.17.
34 Byayuk, 684 P.2d at 118.
35 Gilmore, 882 P.2d at 927 (citation omitted).
36 Byayuk, 684 P.2d at 119.
37 Id.
38 Vienna, 740 P.2d at 451 (quoting Suh, 736 P.2d at 348
(Matthews, J., dissenting)).
39 Byayuk, 684 P.2d at 119.
40 See infra Part III.B.2.
41 Truesdell, 754 P.2d at 241.
42 740 P.2d 447, 449-52 (Alaska 1987).
43 687 P.2d 264 (Alaska 1984).
44 Id. at 269-74.
45 Vienna, 740 P.2d at 452.
46 784 P.2d 1386, 1391 n.4 (Alaska 1990).
47 Id.
48 AS 23.30.105(a) provides that "if payment of
compensation has been made without an award on account of [an]
injury or death, a claim may be filed within two years after the
date of the last payment of benefits . . . ." (Emphasis added.)
49 Thompson, 975 P.2d at 689.
50 Id. at 690 (citations omitted).
51 Id. at 689.
52 Id. at 690.
