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Alyeska Pipeline Service Co. v. DeShong (10/3/2003) sp-5740
Alyeska Pipeline Service Co. v. DeShong (10/3/2003) sp-5740
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
ALYESKA PIPELINE SERVICE )
COMPANY, )
) Supreme Court No. S-10083
Appellant, )
) Superior Court No.
v. ) 3AN-00-3700 CI
)
MABEL V. DeSHONG and the )
ALASKA WORKERS )
COMPENSATION BOARD, ) O P I N I O N
)
Appellees. ) [No. 5740 - October
3, 2003]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Fred Torrisi, Judge.
Appearances: Michael A. Budzinski, Russell,
Tesche, Wagg, Cooper & Gabbert, Anchorage,
for Appellant. Mabel V. DeShong, pro se,
Fairbanks.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
EASTAUGH, Justice, with whom MATTHEWS,
Justice, joins, dissenting in part.
I. INTRODUCTION
I. A worker filed a claim for workers compensation after
injuring her elbow while working for her employer. Therapy did
little to alleviate her condition, yet she did not undergo
surgery until two years later after changing doctors. Before
undergoing that surgery, the worker was laid off by the employer.
She applied for total temporary disability benefits from the time
of her lay-off to the date of her ultimately successful surgery.
She overcame a presumption of medical stability and was awarded
benefits even though she received unemployment benefits for part
of the claimed period. Because the Workers Compensation Board
did not err in finding that the worker overcame the presumption
of medical stability, and because receipt of unemployment
benefits does not absolutely bar temporary total disability
benefits if the unemployment benefits are paid back, we affirm
the decision of the superior court that affirmed the decision of
the board.
II. FACTS AND PROCEEDINGS
A. Facts
Mabel Tiny DeShong was an administrative assistant for
Alyeska Pipeline Services Company (Alyeska) when she filed a
report of occupational injury or illness with the Alaska Workers
Compensation Board (board) on January 11, 1998. She alleged that
her job-related use of a computer mouse resulted in right elbow
joint pain.
DeShongs first doctor, Robert D. Dingeman, M.D.,
diagnosed her as having activity-related right dominant elbow
medial condylitis on January 13, 1998. Dr. Dingeman fitted her
for a splint, arranged for physical therapy, and discussed the
possibilities of cortisone injections and surgery. Alyeska
arranged for an ergonomic workstation evaluation, and then
implemented the recommendations of the evaluation, modifying
DeShongs work environment in an effort to alleviate her symptoms.
Following several rounds of therapy and use of the
improved workspace, DeShong was doing considerably better at her
April 1998 appointment with Dr. Dingeman. At that time, she told
him that she did not want cortisone injections. In June 1998 Dr.
Dingeman stated that she ought to consider having surgery in the
future. He placed DeShongs arm in a cast for two weeks. Because
of her objections to surgery, Dr. Dingeman stated in August 1998
that she was not a surgical candidate, but he recommended that
she obtain a second opinion by an orthopedist within two weeks.
In September 1998 Dr. Dingeman again recommended that
DeShong be evaluated by one of the two hand surgeons in
Anchorage, though she was rather determinedly a non-surgical
candidate as yet. In the same September 1998 report, Dr.
Dingeman said, I would state again for the record my
recommendation that she be evaluated further by one of the two
hand surgeons in Anchorage soon.
In October 1998 Alyeska requested that DeShong be
evaluated by Dr. Michael Gevaert pursuant to an employer-
sponsored independent medical evaluation (EIME). Dr. Gevaert
diagnosed her as having chronic medial epicondylitis. He found
that twelve weeks of physical therapy had failed to produce
favorable results and noted that she did not want to consider
steroid injections. Dr. Geveart, therefore, found that she had
reached medical stability1 and recommended a functional capacity
evaluation to determine her permanent work restrictions.2
DeShong returned to Dr. Dingeman in November 1998
because she continued to experience pain and discomfort in her
arm. Dr. Dingeman found her lack of improvement over so many
months to be of concern. He speculated as to surgical
exploration but recommended that such consideration be deferred
until after any disposition process occurs.3
In December 1998 DeShong was laid off by Alyeska.
During her visit on January 19, 1999, Dr. Dingeman noted that she
had reached statutory stability [but had] not reached clinical
stability in the natural course and progression of her condition.4
Such progression, Dr. Dingeman stated, could last up to eighteen
months. DeShong asked whether she should obtain an additional
opinion, and he endorsed that idea for disposition purposes.
DeShong was again seen by Alyeskas doctor, Dr. Gevaert,
in April 1999. Dr. Gevaert, finding no significant functional
change since October 26, 1998, said that she remained medically
stable. As DeShong had undergone a physical capacity evaluation
that concluded that she could perform her usual and customary
job, Dr. Gevaert found there to be no permanent work
restrictions.
The question whether DeShong was entitled to a second
opinion took on great importance. While she was being treated,
DeShong expressed her desire to both Alyeska and Dr. Dingeman
that she obtain a second opinion from a doctor of her choice.
She did not obtain a second opinion until August 1999, after Dr.
Dingeman had found her to be medically stable.
There was substantial confusion on the part of DeShong
and Dr. Dingeman over whether or not DeShong was entitled to a
second opinion. In July 1999 DeShong filed a claim with the
board alleging that Alyeska had denied her request for
authorization to visit another doctor for a second opinion.
DeShong alleged that she was told by Alyeska that the company had
already paid for a second opinion, that of Dr. Gevaert. DeShong
also asserted that she was told by Alyeskas representative that
she would still be able to have a second opinion by a doctor of
her own choice if she saw Dr. Gevaert. Alyeska replied by
asserting several affirmative defenses, including that Dr.
Dingeman was DeShongs treating physician and that he had not
referred her for a second medical opinion. Dr. Dingeman,
however, thought that it was Alyeskas responsibility to arrange a
second opinion. Dr. Dingeman noted in July 1999 that
[s]omehow the patient has the impression that
the previously recommended second opinions
and consultations can be facilitated through
this office. It was shared back that
typically the carrier must make those
arrangements with the doctors who consider
and accept such cases. Usually the
adjuster/rehabilitation specialist obtains
the physician and provides them with a list
of clinical and administrative questions to
be addressed, and that there are
circumstances making availability of
physicians for these types of evaluations
available is known to both the adjusters and
the board. The circumstances by which these
challenges arose in the last year are not
within the power of this individual office to
alter or facilitate.
Although Dr. Dingeman had requested that DeShong be evaluated by
a specialist on several occasions, he told DeShong that such
arrangements needed to be made through Alyeska. This is
incorrect. By law, Dr. Dingeman could have referred DeShong to
another doctor for further evaluation.5 When DeShong requested
permission from Alyeska to obtain a second opinion as Dr.
Dingeman advised her to do, Alyeska denied the request. When
DeShong was made aware that she could change physicians at the
prehearing conference before the board, she did so.
DeShong saw Dr. Carl Unsicker, who diagnosed her as
having medial epicondylitis6 and possible ulnar entrapment.7 He
recommended a nerve conduction study8 and a reevaluation for
surgery. Dr. Jeremy Becker reviewed the results of the nerve
conduction study and concluded that DeShong suffered from mild
median neuropathy9 in the right wrist with significant ulnar
neuropathy10 in the right elbow. Upon receiving Dr. Beckers
recommendation of surgery, DeShong consented and surgery was
successfully performed on September 15, 1999.
Until DeShongs surgery, Dr. Dingeman allowed her to
continue working in a light duty capacity. Alyeska had been
accommodating DeShongs work restrictions until she was laid off
on December 27, 1998. After being laid off, DeShong sought and
received unemployment benefits until her surgery, at which time
Alyeska began paying Temporary Total Disability (TTD) benefits
for the period of surgery and recovery.
B. Proceedings
In July 1999 DeShong filed a claim for TTD benefits
from the time of her layoff in December 1998 through that date.
DeShong testified at the March 2000 board hearing that she wanted
to repay her unemployment benefits and instead receive TTD
benefits from the time of her layoff to the date of her surgery.
The board considered whether DeShong was entitled to TTD benefits
for the time between her layoff and surgical treatment.
Alyeska contended before the board that DeShong was
ineligible for benefits as she had reached medical stability
during the claimed benefits period. The board found that
although Dr. Dingeman considered DeShong to be medically stable,
there was no dispute that she had improved after surgery.
Because Dr. Dingeman had consistently recommended a second
evaluation throughout his treatment and because DeShong improved
after surgery, the board found that DeShong had produced clear
and convincing evidence of no medical stability. The board
accordingly found that DeShong was entitled to TTD benefits
through the period of disability.
Alyeska also argued that DeShong remained legally
ineligible for TTD benefits because she had collected
unemployment benefits while she was laid off. The board found
that DeShong had clearly disclosed her workers compensation work
limitations on her unemployment application. Since she was
unable to find work that fit her restrictions, the board found
that her injury precluded her from finding a job in the real
market. Provided she pay back the unemployment benefits she
received from December 29, 1998 to September 15, 1999, the board
found she was eligible for TTD benefits during that time.
Alyeska appealed this decision to the superior court.
Superior Court Judge Fred Torrisi found that Dr. Dingeman did not
understand that DeShong had a legal right to a second opinion,
nor did DeShong. Given DeShongs ambivalence towards surgery and
Dr. Dingemans finding that she had not reached clinical
stability, the court found that a reasonable mind could accept
that DeShong had not during these months reached statutory
stability, and that her surgery was delayed due to her ignorance
of her right to a timely referral [for a second opinion]. The
court therefore upheld the boards decision to award TTD benefits.
The superior court next considered whether payment of
unemployment benefits constituted an absolute bar to DeShongs
receipt of TTD benefits. It found that interpretation of the
unemployment statute was within the boards expertise and that the
boards interpretation was reasonable, and it concluded that the
statute does not present an absolute bar to receipt of TTD
benefits. The court therefore affirmed the decision of the board
to allow DeShong to receive TTD benefits provided she return her
unemployment benefits. Alyeska appeals.
III. STANDARD OF REVIEW
I. When the superior court acts as an intermediate court of
appeal in an administrative matter, we independently review and
directly scrutinize the merits of the boards decision.11 Factual
findings made by the board are reviewed under the substantial
evidence standard.12 Factual findings will be upheld so long as
there is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.13
In questions of law involving the agencys expertise, a
rational basis standard will be applied and we will defer to the
agencys determination so long as it is reasonable.14 The rational
basis standard is applied where the agencys expertise is involved
or where the agency has made a fundamental policy decision.15
We will substitute our own judgment for questions of
law that do not involve agency expertise.16 In such cases we
adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.17
IV. DISCUSSION
A. DeShong Produced Clear and Convincing Evidence that She Was
Not Medically Stable During the Time in Dispute.
A. The Alaska Workers Compensation Act awards TTD benefits to
those workers who have not reached medical stability pursuant to
AS 23.30.185.18 Medical stability is reached at
the date after which further objectively
measurable improvement from the effects of
the compensable injury is not reasonably
expected to result from additional medical
care or treatment, notwithstanding the
possible need for additional medical care or
the possibility of improvement or
deterioration resulting from the passage of
time; medical stability shall be presumed in
the absence of objectively measurable
improvement for a period of 45 days; this
presumption may be rebutted by clear and
convincing evidence . . . .[19]
Alyeska argues that no physician expected that DeShong
would experience objectively measurable improvement in her
condition during the time in dispute, and hence she had reached
medical stability. Although Dr. Dingeman originally indicated
that surgery was a possibility, Alyeska asserts that subsequent
indications prevented him from recommending surgery around August
1998, four months before the benefit period in dispute.
The board found that Dr. Dingeman considered DeShongs
condition to be medically stable under AS 23.30.395(21). DeShong
was therefore required to show clear and convincing evidence that
she was not medically stable.20 But the board also found that Dr.
Dingeman recommended evaluation by a specialist and that DeShong
was reluctant to undergo surgery until she received Dr. Beckers
recommendation. Because DeShong therefore had a legitimate
reason for delay, and because the surgery was ultimately
successful, the board concluded that clear and convincing
evidence showed that DeShong was not medically stable before the
surgery and therefore was entitled to TTD benefits.
As noted above,21 Dr. Dingeman consistently suggested
surgery as an option or recommended that DeShong obtain a second
opinion. He suggested surgery for the first time in January
1998, and suggested a second opinion for the first time in August
of that year. Then, in four other reports dating from September
1998 to May 1999, Dr. Dingeman either mentioned surgery as an
option or suggested that DeShong obtain a second opinion from an
orthopedist. Under these circumstances, there was substantial
evidence to support the boards finding that she had produced
clear and convincing evidence that she was not medically stable.
B. The Board Did Not Assign to Alyeska the Responsibility
of Managing DeShongs Medical Care.
The Act allows an employee to designate his or her
treating physician.22 An employee may change physicians once
without the written consent of the employer.23 Referral to a
specialist is not considered a change in physicians.24 An
employer can require an employee to see a physician of the
employers choice as well, with this visit being separate from an
employees right to choose his or her physician.25 An employee can
also be referred to a specialist or change physicians.26
Alyeska argues that the board incorrectly held Alyeska
responsible for managing DeShongs medical care. Any delay in
DeShongs referral to a second physician, Alyeska contends, is the
result of Dr. Dingemans misreading of the workers compensation
statute. Therefore, Alyeska argues, it should not be held
responsible for the delay in DeShongs surgery.
But the boards decision does not hold Alyeska
responsible for the delay in DeShongs surgery; it merely noted
that the combination of the employers delay in providing an
evaluation for the surgery and the final outcome of the surgery
produced clear and convincing evidence of no medical stability.
And Alyeska was aware of DeShong and Dr. Dingemans confusion over
DeShongs rights under the Act, because copies of Dr. Dingemans
reports were sent to Alyeska. Alyeska, therefore, had notice of
the confusion over whether or not DeShong was a surgical
candidate; it was also aware of Dr. Dingemans desire for a second
opinion by a specialist.
The boards decision does not have the effect of making
Alyeska responsible for managing DeShongs health care. But it
does recognize DeShongs understandable confusion concerning the
scope of her rights. And the superior court properly emphasized
the traditional reluctance of courts to find that a worker has
waived procedural rights to seek compensation unless the worker
is clearly informed of those rights. As the superior court
summarized the situation:
In construing the applicable workers
compensation statutes, the Board must be
guided by the admonition of the courts over
the last 40 years that it has a duty to fully
advise injured workers. Alyeska agrees that
Dr. Dingeman did not appear to understand the
applicable law, and it is apparent that Ms.
Deshong didnt either. All of the reports
were copied to the Board contemporaneously.
In October and November of 1998, Dr. Dingeman
was still mentioning surgery, while also
saying Ms. Deshong didnt want it, and in
January of 1999 he said she had not reached
clinical stability. He specifically said she
asked about an additional opinion. In May
they were still talking in the same vein, and
in July Dr. Dingeman noted that there had
been no additional inquiries from the
carrier. Under these circumstances, based on
the entire record, a reasonable mind could
accept that Ms. Deshong had not during these
months reached statutory stability, and that
her surgery was delayed due to her ignorance
of her right to a timely referral.
Given DeShongs confusion and our unwillingness to find
that a worker has waived procedural rights to seek compensation
unless the worker is clearly informed of those rights, we agree
with the superior courts resolution of this issue.
C. The Board Did Not Err in Awarding TTD Benefits to
DeShong for a Period of Time in Which She Was Receiving
Unemployment Benefits on Condition that She Repay the
Unemployment Benefits.
Alaska Statute 23.30.187 provides:
Compensation is not payable to an
employee under AS 23.30.180 [compensation for
permanent total disability] or 23.30.185
[compensation for temporary total disability]
for a week in which the employee receives
unemployment benefits.
Alyeska argues that the board erred as a matter of law
under this statute in awarding TTD benefits to DeShong for a
period of time in which she had already received unemployment
benefits. The board found that the entire record showed that
DeShong clearly disclosed her light duty limitations in her
application for unemployment. Because she was unable to find
work under these restrictions, the board concluded that her
injury precluded her from a job in the real market. The board
awarded her TTD benefits for the claimed period provided she
repays the [unemployment insurance] benefits received as required
by [] AS 23.30.187.
In upholding the boards decision, the superior court
found the boards interpretation of AS 23.30.187 to be within the
boards area of expertise and applied the deferential rational
basis standard of review. But the statute does not involve any
interpretation or question of law relating specifically to
workers compensation. Where the question presented does not
involve agency expertise, the substitution of judgment standard
is used.27 This standard is appropriate where the knowledge and
experience of the agency is of little guidance to the court or
where the case concerns statutory interpretation or other
analysis of legal relationships about which courts have
specialized knowledge. 28 Accordingly, we use our own judgment
in reviewing the boards decision.
We have not previously faced the issue now before us.29
We must interpret AS 23.30.187 to determine if it presents an
absolute bar to receipt of TTD benefits by an injured worker who
has already received unemployment benefits.
In interpreting a statute, we consider its language,
its purpose, and its legislative history, in an attempt to give
effect to the legislatures intent, with due regard for the
meaning the statutory language conveys to others.30 As we have
explained, [i]n order to interpret a statute contrary to its
plain meaning, the plainer the language, the more convincing
contrary legislative history must be. 31
Alaska Statute 23.30.187 clearly precludes the
contemporaneous receipt of temporary or permanent total
disability benefits and unemployment benefits.32 Yet on its face,
the statute says nothing about whether an employee who has
received unemployment benefits for a week during which she was
eligible for, but did not receive, workers compensation benefits,
may repay the former in order to qualify for the latter.33 Because
of this inherent ambiguity, we turn to the purpose of the statute
and its accompanying legislative history for indications of
whether the legislature intended that such action be prohibited.
The purpose of the workers compensation system is to
compensate the victims of work-related injury for a part of their
economic loss.34 Under this system, each employer is required to
have workers compensation insurance to cover its potential
compensation costs,35 resulting in the employer and the consumers
of its goods bearing much of the financial cost of the system.
As we explained in Wright v. Action Vending Co.,36
[t]he ultimate social philosophy behind
compensation liability is belief in the
wisdom of providing, in the most efficient,
most dignified, and most certain form,
financial and medical benefits for the
victims of work-connected injuries which an
enlightened community would feel obligated to
provide in any case in some less satisfactory
form, and of allocating the burden of these
payments to the most appropriate source of
payment, the consumer of the product.37
Turning to the legislative history, there is no
indication that the legislature sought to render ineligible for
workers compensation benefits an employee who has previously
collected unemployment insurance. Instead, what it does reveal
are concerns regarding double recovery, the receipt of workers
compensation benefits by employees who have already reached
medical stability, and the disincentive to return to work created
by overpayment to injured workers.
At the beginning of the Twelfth Legislatures second
session, Representative Terry Martin, Chair of the House Labor
and Commerce Committee, circulated an open letter regarding House
Bill 159 (H.B. 159) to [a]ll concerned about Alaskas Workers
Compensation.38 In the letter, Representative Martin explained:
Changes have taken place in our state which
now result in a number of claimants drawing
excessively large benefit amounts or drawing
benefits when they should not be entitled to
them at all. An effort should be made to
seek alternatives that would eliminate
oversized, unearned benefits while still
protecting the vast majority of the
workforce.[39]
Representative Martin recognized the possibility of overlap
between workers compensation and unemployment insurance benefits
received by partially disabled workers who, while unable to
perform their previous jobs, were still eligible to work, and
proposed that they receive a dollar-for-dollar offset.40 This
proposal was not adopted, leaving open the possibility that a
partially disabled worker could simultaneously receive both
unemployment and workers compensation benefits.
The concerns of Alaskas businesses were reflected in a
report prepared by the Alaska Conference of Employers, Inc. (ACE)
entitled Recommended Changes to the Alaskan Workers Compensation
Act.41 One of the suggestions made in this report pertained to
employees receiving or eligible to receive both unemployment and
workers compensation benefits.42 Concerned about overcompensating
injured employees, ACE explained:
The Workers Compensation Act has been called
upon throughout the years to compensate
employees after they reach the date of
maximum medical improvement and before that
point in time when employment opportunities
improve and jobs become available. The
practice is based upon the theory that a
compensable injury caused a loss of the job,
and therefore the unemployment is the result
of the industrial injury and workers
compensation is proper until a new job is
available.[43]
Believing that the workers compensation system should not bear
the burden of supporting employees whose physical conditions are
not expected to improve, ACE proposed that the primary benefit in
such situations be unemployment insurance, and that workers
compensation, if available at all, should be used only as a
supplement.44 ACEs version of the statute provided in relevant
part:
(a) No compensation shall be payable for
temporary total disability or permanent total
disability under this chapter for any week in
which the injured employee has received, or
is receiving, or is eligible for unemployment
compensation benefits.
(b) If an employee is entitled to both
compensation for wage-loss pursuant to AS
23.30.190(b) and unemployment compensation
benefits, such unemployment compensation
benefits shall be primary and the
compensation for wage-loss shall be
supplemental only, the sum of the two
benefits not to exceed the amount of wage-
loss compensation which would otherwise be
payable.[45]
ACEs version, which specifically addressed which system would
bear the burden of compensating dually-eligible employees, was
not adopted by the legislature.
Ultimately, the legislature settled on the language
substantially similar to that currently used in section 187,
which does not prefer unemployment insurance to workers
compensation, does not provide for an offset, and does not
discuss permanent or temporary partial disability. The final
version provided:
Sec. 23.30.227. OTHER BENEFITS. No
compensation shall be payable to an employee
under 180 [permanent total disability] or
185 [temporary total disability] of this
chapter for any week in which the employee
receives unemployment benefits (AS 23.20).[46]
In response to the final version of section 227, the
committee heard a position statement from Dick Block, then-
president of the Alaska National Insurance Company,47 who
expressed concern that an employee would reject unemployment
insurance and take workers compensation.48 Rejecting the idea
that the statute permitted a totally disabled employee to select
among potential remedies, Representative Rogers explained that
this section applies only to total disability, and one who is
totally disabled cannot draw unemployment.49
In the analysis of the final bill prepared for the
Senate Labor and Commerce Committee, current section AS 23.30.187
was explained as follows:
This section clarifies the relationship
between workers compensation and unemployment
benefits. Temporary total and permanent
total disability compensation are not
consistent with the eligibility of an injured
worker to receive unemployment benefits, and
accordingly, are not payable to an injured
worker receiving unemployment benefits. This
section does not affect the payment of
temporary partial or permanent partial
disability compensation to a worker who is
receiving unemployment benefits.[50]
Nowhere in the legislative record is there any
indication that the legislature intended receipt of unemployment
benefits to permanently bar an injured employee from receiving
workers compensation benefits when appropriate. Instead, the
legislative history indicates that the legislature was aware of
the potential for overlap between unemployment and workers
compensation benefits and sought to prevent a double recovery by
claimants. It certainly does not appear that the legislature
envisioned the situation currently before this court, where a
temporarily injured worker receives misinformation from her
physician with the knowledge of her employer, is released to work
with restrictions that effectively bar her from finding
employment, is laid off by that employer, prompting her to apply
for unemployment benefits, and then finally receives a second
opinion, after which she undergoes surgery, displays signs of
recovery, and then retroactively applies for temporary total
disability benefits.
The dissent concludes that the statute is completely
unambiguous, effectively arguing that the statute admits only one
interpretation: that an employee is forever barred from receiving
workers compensation benefits for any week in which the employee
has ever received unemployment compensation. But the statute
does not say that; it says that the compensation is not payable
for a week in which the employee receives unemployment benefits.
The boards interpretation of the statute that a week for which
the employee has repaid benefits is not a week in which the
employee receives unemployment benefits is consistent with the
language of the statute. Moreover, under the facts of this case,
the boards interpretation leads to the result the workers
compensation system was created to provide: the award of
compensation benefits to which the injured worker was entitled.
The Workers Compensation Board concluded that DeShong
had demonstrated by clear and convincing evidence that she had
never been medically stable and therefore had been eligible for
temporary total disability benefits since December 1998. The
superior court concluded that there was substantial evidence to
support that finding and we agree. Because we can discern no
language, either in the statute itself or in the legislative
history, that erects a permanent bar to the receipt of workers
compensation benefits if unemployment benefits have been repaid,
we affirm the holding of the board. To hold otherwise would
forever bar an unknowing and injured employee from receiving the
workers compensation benefits to which she is otherwise entitled
merely because she first applied for unemployment insurance. The
language of the statute does not require this result, nor do we
believe such an outcome would be desirable. Given the
discernable purposes of the legislature in enacting AS 23.30.187
preventing double recovery, denying workers compensation coverage
for workers who have reached maximum medical stability, and
maintaining incentives to return to work requiring DeShong to
repay her unemployment benefits before she is entitled to receive
TTD benefits was an appropriate response to her situation.51 We
therefore affirm the boards decision.
V. CONCLUSION
A. Because the board did not err in concluding that DeShong
produced clear and convincing evidence that she was not medically
stable during the time in dispute and did not err in requiring
DeShong to repay her unemployment benefits before she could
receive TTD benefits, we AFFIRM the superior courts decision that
affirmed the decision of the board.
EASTAUGH, Justice, with whom MATTHEWS, Justice, joins, dissenting
in part.
A. Introduction
This appeal turns in part on the interplay between the
Alaska Employment Security Act, AS 23.20, and the Alaska Workers
Compensation Act, AS 23.30. Both protect workers against wage
loss. A worker recovering under both schemes is potentially
overcompensated. The statute that controls this case, AS
23.30.187, avoids overcompensation by prohibiting workers from
receiving total disability workers compensation benefits for
weeks for which they received unemployment compensation. This
method of avoiding overcompensation reflects a legislative policy
choice. The method the court chooses here allowing the worker
to repay unemployment compensation benefits to regain eligibility
for workers compensation benefits also avoids overcompensation.
But the clear words of the statute preclude that choice. The
legislative history does not permit us to read the statute to say
something it does not; rather, it conflicts with the courts
interpretation of section .187. Because it is impossible to
square the result reached here with the statutes words, I
respectfully dissent from that part of the opinion permitting the
worker to recover workers compensation benefits for weeks when
she received unemployment compensation.
B. Background Facts
Mabel DeShong suffered an employment-related injury in
1997 while employed by Alyeska Pipeline Service Co. She
continued to perform light-duty work for Alyeska until December
2, 1998, when she was laid off. Invoking the Alaska Employment
Security Act (AESA) after she was laid off, she sought and
received unemployment compensation for 1999. Invoking the Alaska
Workers Compensation Act (AWCA), she also sought temporary total
disability (TTD) benefits for the period between December 27,
1998 to September 15, 1999 (when she had successful surgery).
The Alaska Workers Compensation Board, rejecting the employers
argument to the contrary, concluded that DeShong was eligible to
receive workers compensation for that eight-and-a-half month
period, even though she had already received unemployment
compensation for the same period, provided she repays the
[unemployment benefits] received as required by AS 23.30.180.
The superior court affirmed, observing that the boards
interpretation of the statute is within its expertise.
C. The Result the Court Reaches
Applying, as it must, the nondeferential standard of
its own judgment to the statutory interpretation issue presented
here, this court affirms the superior court and the board.1 It
reasons that requiring DeShong to repay her unemployment benefits
before she is entitled to receive TTD benefits was an appropriate
response to her situation.2
D. The Result We Should Reach
Workers compensation is purely a creature of statute.3
There is no common law right to it.4 Our sole responsibility
here is to determine what AS 23.30.187 means. No other provision
in the AWCA or the AESA addresses the issue presented.
In interpreting a statute we have rejected a mechanical
application of the plain meaning rule in favor of a sliding scale
approach. The plainer the statutory language is, the more
convincing the evidence of contrary legislative purpose or intent
must be. The language of a statute is construed in accordance
with [its] common usage, unless the word or phrase in question
has acquired a peculiar meaning by virtue of statutory definition
or judicial construction. 5 In ascertaining the plain meaning of
a statute, we refrain from adding terms.6 We have observed that
legislative history may provide an insight which is helpful in
making a judgment concerning what a statute means, and since
words are necessarily inexact and ambiguity is a relative
concept.7
Section .187 is conceptually simple. Its words are
simple, clear, and unambiguous. It states that Compensation is
not payable to an employee under AS 23.30.180 or 23.30.185 for a
week in which the employee receives unemployment benefits.
(Emphasis added.) It thus renders a worker who received
unemployment compensation ineligible to receive workers
compensation for total disability for the same period.8 DeShong
received unemployment compensation for the same weeks for which
she seeks TTD benefits. To receive is commonly defined as to
acquire or take (something given, offered, or transmitted).9
Whether or not DeShong repays her unemployment benefits, she
received them as that word is used in section .187. Section
.187 therefore prevents her from recovering TTD benefits for
those weeks.
The meaning of section .187 is confirmed by AS
01.10.050(a), which dictates how we are to read the Alaska
Statutes. It provides in pertinent part: Words in the present
tense include the past and future tenses . . . . This provision
requires us to interpret receives to include received and
precludes us from distinguishing between receives and received
when we apply AS 23.30.187.
The extraordinary clarity of the words of section .187
would allow us to deviate from its text only if the legislative
history were extremely convincing. Its words are so clear, it is
hard to imagine any legislative history that could contradict
them.10 But as we will see, the legislative history confirms the
words plain meaning. It certainly does not permit the result the
courts opinion reaches.
E. The Problem of Overlapping Benefits
The preeminent workers compensation treatise has
addressed the possibility of cumulative wage loss benefits.
Larsons treatise recognizes that duplication of benefits from
different parts of the system of protecting workers against wage
loss should not ordinarily be allowed.11 The treatise recognizes
that in reality, a worker experiences only one wage loss and in
any logical system should receive only one wage-loss benefit.12
Larson observes that some jurisdictions have permitted collection
of both unemployment and workers compensation benefits for the
same period, in the absence of any statutory prohibition.13 The
treatise notes, however, that [t]he majority of unemployment
statutes . . . now specifically forbid benefits to anyone drawing
workers compensation.14 The treatise cites AS 23.30.187 as an
example of one such statutory provision.15 Larson summarizes
acts from other states and observes that state statutes vary
considerably, some restricting eligibility under the unemployment
compensation acts and some restricting eligibility under the
workers compensation acts.16 Larson observes that a few
compensation acts have recently added an offset for unemployment
insurance benefits, and describes how some courts have struggled
to coordinate inconsistent statutory systems.17
Before 1982, the legislature offered no clear guidance
for how to resolve this potential problem in Alaska. There were
possible implicit inconsistencies in seeking both remedies. A
worker is entitled to unemployment compensation benefits if the
worker is able to work,18 and a disabled worker is not
necessarily able to work. Conversely, a worker who is able to
work is not obviously disabled, and is therefore not obviously
eligible for workers compensation benefits.19 It is at least
arguable that applying for unemployment compensation benefits
would be inconsistent with applying for temporary total
disability benefits, whether or not the employee, as DeShong did
here, indicated that she could only work at light duty tasks. If
the two applications are inherently inconsistent, the worker has
arguably misrepresented either her ability to work or her
disability. Making a misrepresentation or false statement
potentially disqualifies a worker from unemployment
compensation.20 A person making a false statement or
representation to obtain workers compensation benefits may be
required to repay them.21
Yet a worker who is only partially disabled may be able
to return to work in some capacity. So in theory, a partially
disabled employee who has been laid off is able to work in some
capacity, and is thereby eligible for both unemployment
compensation benefits under AS 23.20, and temporary partial
disability or permanent partial disability workers compensation
benefits under AS 23.30.190 or AS 23.30.200. This theoretical
dual eligibility is more problematic for a worker who, like
DeShong, claims to be totally disabled for workers compensation
purposes.
In 1982 the legislature addressed this problem by
enacting AS 23.30.187.
The concept behind section .187 is simple. It does only one
thing: it precludes an otherwise eligible workers compensation
claimant from receiving temporary total or permanent total
disability workers compensation benefits for a week in which
unemployment compensation benefits were received. It thus
withdraws eligibility for workers compensation benefits for those
weeks. It does so unconditionally. It contains no words
describing or implying a procedure for restoring a claimants
eligibility to recover workers compensation benefits for those
weeks. It contains no words offering an interpretative finger
hold for finding such a procedure.
There are many other possible ways to avoid
overcompensation. For example, one way might make one scheme or
the other the exclusive remedy. Another might permit an offset,
reducing workers compensation benefits by unemployment
compensation received for the same period. Another might require
pro rata apportionment of benefits under both schemes. And
another might require the employee to repay the unemployment
compensation benefits before receiving workers compensation
benefits for the same period. Each way allocates burdens and
benefits differently. Some favor the worker; some favor the
employer who purchases workers compensation insurance; and some
favor the states employment security fund (which is in turn
funded by employer contributions). Legislatures are best suited
for making such choices, because they can decide how best to
balance all the interests involved. Courts are ill-suited for
choosing among so many possibilities. We have been provided with
none of the facts bearing on which way is socially superior,
which is the most efficient way to protect workers against wage
loss, who best can bear that loss, and how best to apportion the
loss if it is to be shared.22
No doubt the legislature could have rationally chosen
the method adopted by the board and this court (placing the
entire loss on the workers compensation insurer for the duplicate
weeks and reimbursing the unemployment compensation fund). But
the legislature did not choose that method. It enacted a statute
that treats the receipt of unemployment compensation benefits as
an event that disqualifies the worker from receiving workers
compensation benefits.
These policy choices are for the legislature. Our job
here is to determine what choice the legislature made. Because
its choice is clear, we must adhere to it.
F. Legislative History
The legislative history does not contradict the
statutes text and provides no support for rewriting its words.
Instead, it suggests that the legislature was aware of other
possible ways to avoid overcompensation and nonetheless adopted
the simple ineligibility scheme described in section .187.
House Bill 159, introduced in 1981 at the first session
of the Twelfth Legislature, was proposed in part because some
employers were concerned that injured workers were receiving
workers compensation after they reached medical stability; the
employers thought that the primary benefit should be unemployment
compensation.23 The employers proposed that workers
compensation, if still payable, was to be supplemental to the
unemployment compensation benefits.24 This proposal contained
two provisions, one which was equivalent to section .187 as it
now exists, and a second which contemplated eligibility for both
unemployment and workers compensation benefits, in which event
the unemployment compensation benefits were to be primary and the
workers compensation benefits were to be only supplemental.25
The origins of section .187 do not support an interpretation
such as the courts that makes workers compensation the primary
wage-loss benefit.
A Senate Labor and Commerce Committee section-by-
section analysis of the bill noted that the provision that became
section .187 clarified the relationship between workers
compensation and unemployment benefits.
Temporary total and permanent total
disability compensation are not consistent
with the eligibility of an injured worker to
receive unemployment benefits, and
accordingly, are not payable to a injured
worker receiving unemployment benefits. This
section does not affect the payment of
temporary partial or permanent partial
disability compensation to a worker who is
receiving unemployment benefits.[26]
This analysis confirms that the legislature considered
total disability workers compensation benefits to be not
consistent with eligibility for unemployment benefits, and chose
to resolve this inconsistency by making them not payable to
workers receiving unemployment benefits. It also notes that the
bill preserved the eligibility of workers who seek only partial
disability benefits. DeShong sought total disability benefits,
not partial disability workers compensation benefits.
The history also reveals that legislators were aware of
other possible ways of avoiding an overlap. During consideration
of HB 159, Representative Terry Martin circulated a memorandum
discussing several issues and referring specifically to
unemployment compensation.27 He noted that there were situations
in which a person could be able to work but could not perform his
old job because of the disability. He proposed this result: If
he is receiving unemployment compensation for any such week, the
worker compensation should reduce dollar for dollar any
unemployment benefit the individual could otherwise receive.28
Representative Martin thus proposed a dollar-for-dollar
reduction, what this court seems to characterize as an offset.29
But the statute as enacted says nothing of such a reduction.
Although the legislature was aware of other ways to
address the issue of overlapping benefits, it enacted the flat
prohibition expressed in section .187. There is no possibility
that in doing so it thought that it was allowing an employee to
repay unemployment compensation benefits to regain eligibility
for workers compensation benefits, or that it was making workers
compensation the primary wage-loss remedy. Because employer cost
was a motivating factor in adopting section .187, it seems
unlikely the legislature wished to adopt a means of preventing
double recovery that was apparently the most costly way (for
employers) of resolving the problem.
In short, the legislative history reveals nothing
ambiguous about section .187. It confirms that the legislature
made a policy choice that is inconsistent with the courts
interpretation of the statute.
G. Problems with the Courts Rationale
The court permits DeShong to recover TTD benefits even
though the statute does not.
In affirming, the court approves the procedure adopted
by the board: Because the board . . . did not err in requiring
DeShong to repay her unemployment benefits . . . , we AFFIRM.30
But the board based that result on the boards fundamental
misreading of section .187. Thus, the board concluded that
DeShong was eligible for TTD benefits for the disputed period,
provided she repays the [unemployment] benefits received as
required by AS 23.30.187. (Emphasis added.) If the statute had
contained such a requirement, it would have implied the remedy
the board fashioned. But nothing in section .187 requires
repayment of other benefits. The linchpin of the boards remedy
does not exist. Indeed, the statute says nothing about
repayment. And it says nothing about regaining eligibility for
workers compensation. Because the statute makes receipt of
unemployment benefits the disqualifying event, and because
repayment does not negate the fact of past receipt, the statutes
words expressly and implicitly foreclose the boards notion that
repayment restores eligibility.
This courts opinion also seems to rest on a similar
misapprehension. It reasons that repayment enabled DeShong to
receive the workers compensation benefits she was entitled to.31
But per section .187, for the weeks for which DeShong received
unemployment compensation, she is entitled to no workers
compensation benefits.
The courts opinion also implicitly reads the statute to
make retention of unemployment compensation the disqualifying
event. If it were, repayment might be a fair way to avoid the
statutory bar. But the statutes words make receipt, not
retention, the disqualifying event.32 Ineligibility does not
arise exclusively out of present receipt of benefits; per the
plain language of section .187 and AS 01.10.050(a), past receipt
is also a disqualifier. DeShong received unemployment benefits
in the past; she is consequently ineligible for TTD benefits for
those weeks.
The procedure fashioned by the board and endorsed by
this courts opinion has the unavoidable effect of adding new
words to the statute.33 By limiting the preclusion, the opinion
creates a procedure, not implied or expressed by the legislature
in section .187 or anywhere else, by which workers compensation
claimants seeking TTD benefits can restore their eligibility.
This procedure gives claimants an option the legislature did not
choose to give them. Section .187 does not provide injured
workers a choice between benefit systems.
Given the clarity of the statute, the legislative
history would have to be remarkably clear to support the courts
interpretation of the statute. I do not read the legislative
history discussed by the court to imply, much less clearly and
unequivocally express, an intention to allow the reading the
board and this court attribute to the statute. Moreover, after
reviewing the legislative history, the courts opinion observes
that It certainly does not appear that the legislature envisioned
the situation currently before this court . . . .34 That
observation seems to conflict with any contention that the
statute is ambiguous because it fails to carry out the
legislatures intentions with respect to the present situation, or
that the legislature actually intended the statute to provide
relief in a situation like DeShongs.
At first glance, it may seem to make sense to condition
recovery of workers compensation benefits on repayment of
unemployment compensation. But section .187 gives the Alaska
Workers Compensation Board no authority to order a workers
compensation claimant to repay benefits the claimant recovered
under AS 23.20. The board does not administer unemployment
compensation claims. Its authority is limited to claims under AS
23.30. Had DeShong declined to repay the unemployment benefits,
section .187 would have given the board no legal basis for
requiring her to do so as a condition for becoming eligible for
TTD benefits. Her refusal would have forced the board to decide
whether section .187 permits a worker to receive (and retain)
overlapping benefits, or whether (as I think) section .187
prohibits recovery of TTD benefits for the same period. A
claimants willingness to repay the unemployment benefits cannot
unilaterally alter the meaning of a statute. The legislature
elsewhere gave the board authority to order a person improperly
obtaining benefits under AS 23.30 to reimburse the cost of all
such benefits, but that authority only covers benefits under this
chapter, i.e., workers compensation benefits.35 That grant of
authority reveals that the legislature knew how to write a
statute giving the board authority to require repayment when that
was what the legislature intended. Nothing I see in AS 23.30
gives the board general authority to do what it did here.
Assuming the board has inherent authority to resolve disputes
fairly and in a way that maximizes workers compensation benefits,
that authority would not justify reading section .187 to require
repayment, or to authorize a procedure for regaining eligibility.
The existence of express remedies in other provisions
in these acts militates against the procedure approved here. An
AESA section, AS 23.20.390, provides for repayment of
unemployment compensation benefits, but only if the worker was
not entitled to receive them. Section .390 does not refer to the
Alaska Workers Compensation Act or to receipt of workers
compensation benefits; there is no claim here that DeShong was
not eligible for Alaska Employment Security Act benefits when she
sought and received unemployment compensation payments. Nor does
the AESA disqualify a worker from receiving unemployment
compensation benefits if the worker also received workers
compensation benefits. Other provisions in these remedial acts
reveal that the legislature knew how to enact statutory
provisions calling for reductions in benefits (AS 23.20.362),
repayment (AS 23.20.390), offsets (AS 23.30.225), or
reimbursement (AS 23.30.155(j)), when it wished to do so.
Implicit in the decisions of the board and this court
is the notion that the statute permits a partially disabled
worker, like DeShong, to be treated differently from a totally
disabled worker. But insofar as this distinction seemingly turns
on whether a worker, in applying for unemployment compensation,
candidly reveals that she was only partially disabled, it is
foreclosed by the words of section .187. They flatly preclude
recovery of total disability benefits for the weeks for which an
employee received unemployment compensation, without regard to
what she said in her unemployment compensation application. This
distinction is also factually foreclosed here: DeShong sought
temporary total, not temporary partial, workers compensation
benefits. Section .187 expressly applies to an employee seeking
workers compensation benefits for total disability.
The court relies on the purpose of the legislation,
characterizing it as having the purpose of precluding double
recovery.36 Treating that purpose as controlling, the court
reads the statute in a way that avoids double recovery, by making
DeShong repay the unemployment benefits in order to be eligible
to receive TTD benefits. This purpose does not justify
misreading the statute. First, this is not the only statutory
purpose; the legislative history reveals a variety of
motivations; the section-by-section analysis refers to
eligibility.37 Second, the words of the statute are so
transparent that they control.38 Third, having a purpose of
avoiding double recovery does not say how it is to be achieved.
The method the legislature chose to prevent double recovery
ineligibility is effective. That other methods arguably might
have been equally effective or socially more desirable does not
allow us to rewrite the statute.
The court declines to decide whether an offset might
have been superior to reimbursement.39 An offset would be
another way to avoid an overlap. An offset would also require
both schemes to contribute. On its face, the statute would not
permit that result. Of course, it does not permit the result the
court reaches, either. Because it declines to consider the
offset method, the court simply chooses the repayment method.
Each method implicates policy choices best left to the
legislature. Permitting a claimant to repay unemployment
benefits before receiving TTD benefits means that the full loss
is ultimately borne by the workers compensation system. The
choice the court makes today is a policy choice. That there is
more than one way to fashion a remedy and that choosing one way
necessarily burdens one interest or another confirms that these
are choices we should not be making. That is especially so given
the complete absence of words in section .187 giving the court
any basis for deviating from the choice the legislature made.
The opinion says that requiring DeShong to repay her
unemployment benefits before she is entitled to receive TTD
benefits is an appropriate response to DeShongs situation.40
Likewise, the court assumes the legislature did not envision the
situation now before us. It then describes DeShongs precise
situation.41 That the legislature was arguably not omniscient
when it enacted section .187 would not give us authority to craft
a remedy the legislature did not. But in this case, the words of
the statute are broad enough to include DeShongs situation. It
does not matter that her situation is only a subset, even one
that may be unique and sympathy provoking, of the situations
swept up by AS 23.30.187. This circumstance does not make the
statute less applicable to her, or justify altering it.
Finally, the opinion today creates a problematic legacy
for legislators trying to write statutes and parties and courts
trying to apply them. If this statute does not mean what it so
clearly says, when will a statute ever be applied as written?
What could the legislature have said to make its intentions
clearer?
H. Conclusion
The court reaches a result the statute does not permit.
We should reverse and remand to the board with instructions to
deny TTD benefits during the period when DeShong received
unemployment compensation.
_______________________________
1 Medical stability is defined by AS 23.30.395(21) as the
date after which further objectively measurable improvement from
the effects of the compensable injury is not reasonably expected
to result from additional medical care or treatment. Medical
stability is presumed in the absence of objectively measurable
improvement for a period of forty-five days; this presumption can
be rebutted by clear and convincing evidence.
2 Although he found that DeShong had reached medical
stability, Dr. Geveart apparently believed that the chronic
nature of her injury might require adjustments to her work
environment and duties.
3 It is unclear what Dr. Dingeman meant by disposition
process. He may have been referring to the disposition of her
workers compensation claim before the board, believing that
surgery should be delayed until the board had heard her claim for
benefits.
4 It is unclear what Dr. Dingeman meant by statutory
stability and clinical stability. Taken in context, the whole
sentence seems to suggest that although DeShong had reached a
period of forty-five days with no measurable improvement, the
degeneration of her elbow would continue over the next eighteen
months before stabilizing.
5 AS 23.30.095(a).
6 Medial epicondylitis refers to the inflammation of the
tendons on the inside of the elbow. See
http://www.intelihealth.com (last visited Aug. 18, 2003).
7 Ulnar entrapment occurs when pressure is placed on the
nerve that runs down the inside of the elbow, causing pain in the
elbow or wrist. See
http://www.emedicine.com/orthoped/topic574.htm (last visited Aug.
18, 2003).
8 A nerve conduction study is used to document the extent
of nerve damage by measuring the rate at which electrical
impulses move along a nerve. See
http://www.neurologyhealth.com/ncs.htm (last visited Aug. 18,
2003).
9 Median neuropathy occurs when the median nerve in the
wrist, which runs through the wrist bones and ligaments which
compose the carpal tunnel, is compressed, causing tingling,
numbness, weakness, or pain in the fingers, hand, forearm, and/or
elbow. It is commonly referred to as carpal tunnel syndrome.
See http://www.emedicine.com/neuro/topic208.htm (last visited
Aug. 18, 2003); http://www.intelihealth.com (last visited Aug.
18, 2003).
10 Ulnar neuropathy refers to an injury of the nerve along
the inside of the elbow resulting in muscle weakness, pain,
numbness, redness, and/or burning or tingling sensations. See
http://www.neurosurgeon.com/conditions/ulnar_neuropathy.htm;
http://my.webmd.com (last visited Aug. 18, 2003).
11 DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000);
Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896,
903 (Alaska 1987).
12 Id.
13 Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456
(Alaska 1997) (quoting Miller v. ITT Arctic Servs., 577 P.2d
1044, 1046 (Alaska 1978)).
14 Tesoro Alaska Petroleum Co., 746 P.2d at 903.
15 Id.
16 Id.
17 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
18 AS 23.30.185 states:
In case of disability total in character but
temporary in quality, 80 percent of the
injured employees spendable weekly wages
shall be paid to the employee during the
continuance of the disability. Temporary
total disability benefits may not be paid for
any period of disability occurring after the
date of medical stability.
19 AS 23.30.395(21).
20 Id.
21 See supra Part II.A.
22 AS 23.30.095(a) provides, in relevant part:
When medical care is required, the injured
employee may designate a licensed physician
to provide all medical and related benefits.
The employee may not make more than one
change in the employees choice of attending
physician without the written consent of the
employer. Referral to a specialist by the
employees attending physician is not
considered a change in physicians.
23 Id.
24 Id.
25 AS 23.30.095(e) provides, in relevant part:
The employee shall, after an injury, at
reasonable times during the continuance of
the disability, if requested by the employer
or when ordered by the board, submit to an
examination by a physician or surgeon of the
employers choice authorized to practice
medicine under the laws of the jurisdiction
in which the physician resides, furnished and
paid for by the employer.
26 Id.
27 Madison v. State, Dept of Fish & Game, 696 P.2d 168,
173 (Alaska 1985).
28 Id. (quoting Earth Res. Co. v. State, Dept of Revenue,
665 P.2d 960, 965 (Alaska 1983) (quoting Kelly v. Zamarello, 486
P.2d 906, 916 (Alaska 1971))).
29 Indeed, we have cited AS 23.30.187 only twice, and
neither case involved the question before us today. See Wien Air
Alaska v. Kramer, 807 P.2d 471, 473 n.3 (Alaska 1991) (noting
that AS 23.30.187 prohibits a recipient of unemployment benefits
from simultaneously collecting disability compensation); Alaska
Pacific Assurance Co. v. Brown, 687 P.2d 264, 272 n.13 (Alaska
1984) (observing that one of the purposes served by AS 23.30.187
is to maintain benefits at a level which does not discourage the
recipient from returning to work).
30 Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783,
787 (Alaska 1996).
31 Alderman v. Iditarod Props., Inc., 32 P.3d 373, 393
(Alaska 2001) (quoting State v. Alex, 646 P.2d 203, 208-09 n.4
(quoting United States v. United States Steel Corp., 482 P.2d
439, 444 (7th Cir. 1973))).
32 AS 23.30.187.
33 Id.
34 Wien Air Alaska v. Arant, 592 P.2d 352, 357 (Alaska
1979) overruled on other grounds by Fairbanks N. Star Borough
Sch. Dist. v. Crider, 736 P.2d 770, 775 (Alaska 1987).
35 AS 23.30.075(a).
36 544 P.2d 82 (Alaska 1975).
37 Id. at 86-87 (quoting 1 Arthur Larson, Workmens
Compensation Law 2.20 (1972), now Arthur Larson & Lex Larson,
Larsons Workers Compensation Law 1.03[2] at 1-5 (May 2003)).
38 Letter from Representative Terry Martin, Chairman House
Labor & Commerce Comm., Alaska State Legislature, to All
Concerned About Alaskas Workers Compensation, Referencing More
Points of View to Consider for Alaskas Workers Compensation
Legislation, H.B. 159, 1981 (January 5, 1982) (House Labor &
Commerce Comm. File, H.B. 159 (1981-82)).
39 Id. at 1 (emphasis added).
40 In his letter, Representative Martin explained:
Normally an individual receiving workers compensation for any
week would not be able to work, and therefore would not qualify
for unemployment compensation. There are situations, however,
where the person could be able to work but cannot perform his old
job because of the disability. If he is receiving unemployment
compensation for any such week, the worker compensation should
reduce dollar for dollar any unemployment benefit the individual
could otherwise receive. Id. at 2.
41 Edward L. Hite, Recommended Changes to the Alaskan
Workers Compensation Act, Prepared for the Alaska Conference of
Employers, Inc. (1982) (House Labor & Commerce Comm. File, H.B.
159 (1981-1982)).
42 Id. at 74-75.
43 Id. at 74 (emphasis added).
44 Id.
45 Id. at 74-75 (emphasis added).
46 Committee Substitute for House Bill (C.S.H.B.) 159,
12th Leg., 2d Sess. (1982).
47 The Alaska National Insurance Company performs policy
issue and loss adjusting services for the Alaska Assigned Risk
Pool, which was established by the State of Alaska for those
employers unable to find an insurance company to write workers
compensation insurance on a voluntary basis. See Alaska National
Insurance Company website,
http://www.alaskanational.com/index.php?action=akworkers (last
visited Aug. 14, 2003).
48 See House Labor & Commerce Standing Comm. Meeting
Minutes, H.B. 159, Tape No. 19, No. 103 (House Labor & Commerce
Comm. File, H.B. 159 (Feb 18, 1982)).
49 Id. In order to collect unemployment insurance, an
individual must be able to work and available for suitable work.
AS 23.20.378(a). Because one who is totally disabled for the
purposes of workers compensation is temporarily unable to work,
she cannot be legally eligible for both. See Bailey v. Litwin
Corp., 713 P.2d 249, 253 (Alaska 1986) (endorsing territorial
courts definition of temporary total disability in Phillips
Petroleum Co. v. Alaska Indus. Bd., 17 Alaska 658, 665 (D. Alaska
1958) (quoting Gorman v. Atl. Gulf & Pac. Co., 12 A.2d 525, 529
(Md. 1940)) as the time during which the workman is wholly
disabled and unable by reason of his injury to work ).
50 Section by Section Analysis, C.S. for House Bill No.
159 19 (Senate Labor & Commerce Comm. File, H.B. 159 (1981-82))
(emphasis added).
51 We recognize that other states have taken varying
approaches to the situation presented by this case: some allow
for offset through the workers compensation system for employees
who have already collected unemployment insurance, see, e.g.,
Brooks v. Chrysler Corp., 405 A.2d 141, 143 (Del. Super. 1979)
(holding that receipt of unemployment does not necessarily
disqualify one from receiving disability benefits but that any
disability award should be reduced by the amount of unemployment
benefits received); some statutorily provide for offset in their
workers compensation statutes, see, e.g., Colo. Rev. Stat. Ann.
8-42-103(1)(f) (West, WESTLAW through 2003 Sess.) (allowing an
offset of TTD by any unemployment benefits received); and some
hold that prior receipt of unemployment benefits does not bar
receipt of workers compensation benefits. See J.E. Leonarz,
Annotation, Application for, or Receipt of, Unemployment
Compensation Benefits as Affecting Claim for Workmen's
Compensation, 96 A.L.R.2d 941, 3 (1964). While using workers
compensation to offset DeShongs receipt of unemployment insurance
might have been a viable option in this case, neither party
advocated for such a result. Rather, DeShong sought an order for
reimbursement and Alyeska argued that no award was appropriate.
Because offset has not been sought by either party, and because
we have received no briefing on the issue, we reserve for future
decision the question of whether offset might ordinarily provide
a remedy preferable to reimbursement.
1 Slip Op. at 14-15, 22.
2 Slip Op. at 23.
3 See Nickels v. Napolilli, 29 P.3d 242, 247 (Alaska
2001) (explaining that the Workers Compensation Act is a mutual
arrangement of reciprocal rights between employer and employee,
whereby both parties give up and gain certain advantages; in
exchange for guaranteed recovery for post-injury wage loss and
medical expenses, employees give up opportunity to seek full
scope of tort or negligence damages); AS 23.30.
4 Nickels, 29 P.3d at 248 ([T]he remedies offered by the
workers compensation statute supercede any common law remedies
outside of the statutory scheme.).
5 Municipality of Anchorage v. Suzuki, 41 P.3d 147, 150-
51 (Alaska 2002) (quoting Muller v. BP Exploration (Alaska) Inc.,
923 P.2d 783, 788 (Alaska 1996) (footnotes omitted)).
6 Id. (citing Hickel v. Cowper, 874 P.2d 922, 927-28
(Alaska 1994) (Our analysis of a constitutional provision begins
with, and remains grounded in, the words of the provision itself.
We are not vested with the authority to add missing terms or
hypothesize differently worded provisions in order to reach a
particular result.)).
7 Bullock v. State, Dept of Cmty. & Regl Affairs, 19 P.3d
1209, 1214 (Alaska 2001) (quoting State, Dept of Natural Res. v.
City of Haines, 627 P.2d 1047, 1049 n.6 (Alaska 1981)).
8 The two statutes cited in section .187 both deal with
total, not partial, disability claims. AS 23.30.180 provides for
awards of permanent total disability. AS 23.30.185 governs
awards of temporary total disability, the sort of claim DeShong
made here. Section .187s prohibition therefore applies only to
applicants for total disability benefits.
9 Websters II New College Dictionary 924 (1995).
10 See Enders v. Parker, 66 P.3d 11, 14 (Alaska 2003)
(Where a statutes meaning appears clear and unambiguous, . . .
the party asserting a different meaning bears a correspondingly
heavy burden of demonstrating contrary legislative intent.
(quoting Univ. of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska
1997))). See also Evans ex rel. Kutch v. State, 56 P.3d 1046,
1065 (Alaska 2002) (When interpreting the language of a statute,
we normally give unambiguous language its plain meaning. We may
also rely on legislative history as a guide to interpretation,
but the plainer the language of a statute, the more convincing
contrary legislative history must be to interpret a statute in a
contrary manner.) (citations and quotations omitted).
11 Arthur Larson & Lex Larson, Larsons Workers
Compensation Law 97.00 (1999).
12 Id. 97.10, at 18-9, 18-11.
13 Id. 97.20, at 18-12.
14 Id.
15 Id.
16 Id. at 18-12 n.13.1.
17 Id. at 18-12 to 18-21; see also app. B-18A (offset
provisions in state workers compensation laws).
18 AS 23.20.378(a).
19 AS 23.30.180, .185, .190, .200.
20 AS 23.20.387.
21 AS 23.30.250(b).
22 In addressing the various policy considerations raised
by the problem of overlapping benefits, Larsons treatise notes
that the optimum solution is to have this coordination achieved
by the legislature, since detailed questions are certain to arise
that can only be handled by carefully considered legislation.
Larson & Larson, supra note 11 97.20, at 18-18.
23 House Bill (H.B.) 159, 12th Leg., 1st Sess. (Feb. 13,
1981); Edward L. Hite, Recommended Changes to the Alaskan Workers
Compensation Act, Prepared for the Alaska Conference of
Employers, Inc. (1982) (House Labor & Commerce Comm. File, H.B.
159 (1981-82)).
24 Hite, supra note 23.
25 Id.
26 Section by Section Analysis, C.S. for House Bill No.
159 (Senate Labor & Commerce Comm. File, H.B. 159 (1981-82)); see
also Comm. Substitute for House Bill (C.S.H.B.) 159, 12th Leg.,
2d Sess. (1982).
27 Letter from Representative Terry Martin, Chairman House
Labor and Commerce Committee, Alaska State Legislature, to All
Concerned About Alaskas Workers Compensation, Referencing More
Points of View to Consider for Alaskas Workers Compensation
Legislation, H.B. 159, 1981 (January 5, 1982) (House Labor &
Commerce Comm. File, H.B. 159 (1981-82)).
28 Id.
29 Slip Op. at 18, 19.
30 Slip Op. at 23.
31 Slip Op. at 22.
32 Retention would prove unworkable as a disqualifying
event under section .187 because the statute does not specify how
long one would have to retain unemployment benefits to be
disqualified from workers compensation benefits.
33 See supra note 6.
34 Slip Op. at 21.
35 AS 23.30.250(b).
36 Slip Op. at 21, 22.
37 The only legislative intent expressed in the act that
included AS 23.30.187 addressed a completely different provision,
and said nothing of double recovery. Ch. 93, 1, SLA 1982.
38 See supra notes 5-7, 9.
39 Slip Op. at 23 n.51.
40 Slip Op. at 23.
41 Slip Op. at 21.
