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Rockney v. Boslough Construction Co. (05/27/2005) sp-5899
Rockney v. Boslough Construction Co. (05/27/2005) sp-5899
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
KNUTE ROCKNEY, )
) Supreme Court No. S-11444
Appellant, )
) Superior Court No.
v. ) 3AN-03-10287 CI
)
BOSLOUGH CONSTRUCTION CO., )
ALASKA NATIONAL INSURANCE )
CO., and the ALASKA WORKERS ) O P I N I O N
COMPENSATION BOARD, )
)
Appellees. ) [No. 5899 - May 27, 2005]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Michael L. Wolverton, Judge.
Appearances: William J. Soule, Law Office of
William J. Soule, Anchorage, for Appellant.
Theresa Hennemann, Jeffrey D. Holloway,
Holmes Weddle & Barcott, PC, Anchorage, for
Appellees Boslough Construction Company and
Alaska National Insurance Company.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
This appeal arises from the Alaska Workers Compensation
Boards approval of a vocational reemployment plan for Knute
Rockney, who suffered a back injury while working for Boslough
Construction. Rockney challenges the plan that would retrain him
as drafter through the Architectural Engineering Technology
program at the University of Alaska Anchorage. Because we agree
that substantial evidence does not support that the plan meets
Rockneys remunerative wage and the statutory time limitation, we
reverse and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Rockney began to experience back pain from his job as a
laborer for Boslough Construction on December 26, 2000. He
applied for and was paid a variety of workers compensation
benefits through Bosloughs insurer, Alaska National Insurance
Company. Rockney also was deemed eligible for reemployment
benefits under AS 23.30.041 because he could no longer work in
construction and asbestos removal since these classifications
were too demanding for his back.
Rockneys first reemployment plan (Plan I) was abandoned
after being submitted for approval to the reemployment benefits
administrator (RBA). The second plan (Plan II) aimed to retrain
Rockney as a drafter through the Architectural Engineering
Technology program at the University of Alaska Anchorage. Among
other findings, Rehabilitation Specialist Marjorie Linder adopted
Plan Is remunerative wage of $21.58 per hour and determined that
Plan II would meet Rockneys remunerative wage of $21.58 per hour,
that the labor market for drafters is very ample, and that
Rockney had the skills and aptitude to complete Plan II. Plan II
also provided that Alaska National would pay for a computer for
Rockney, although the insurer imposed certain conditions.
RBA Douglas Saltzman approved Plan II on March 4, 2003.
Rockney appealed and began attending classes at UAA under the
plan while his appeal was pending. At his professors
suggestions, Rockney dropped his summer math course and switched
writing classes so that he could take slower-paced classes.
These changes meant Rockney was three credits behind in
completing the plan by the end of the summer of 2003.
Both the Workers Compensation Board and the superior
court rejected Rockneys challenges. He now appeals to us,
contending that the plan fails to meet his remunerative wage,
that the labor market is inadequate, that he cannot complete the
plan within the statutory time frame, and that he should not have
to buy his own computer. Additionally, he argues that the
presumption of compensability applies to evaluating whether the
plan meets the statutory requirements.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate court
of appeal, we give independent consideration to the agency
decision.1 We independently review whether substantial evidence
supports the boards factual findings.2 Substantial evidence is
in light of the record as a whole, . . . such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.3 Under this standard, we will not reweigh the
evidence or draw [our] own inferences from the evidence.4
Determining the applicability of the statutory
presumption of compensability is a question of law that we review
de novo.5
IV. DISCUSSION
A. Substantial Evidence Does Not Support the Boards
Findings that the Plan Meets Rockneys Remunerative Wage
of $21.58 at the Entry Level.
The goal of reemployment plans is to ensure[]
remunerative employability in the shortest possible time.6
Rockney argues that the plan does not meet this requirement
because no evidence supports a finding that after completing the
plan he could obtain an entry-level drafting job at his
remunerative wage rate of $21.58 per hour. Boslough7 conceded at
oral argument that the plan needed to provide Rockney with
opportunities to receive the remunerative wage at the entry
level, but argues that substantial evidence supports that the
plan does so.8
The board concluded that Rockneys plan met his
remunerative wage because the mean hourly wage for experienced
drafters was between $21.61 and $26.45 per hour. However,
substantial evidence does not support the conclusion that Rockney
could command such wages after completing the plan. The mean
entry-level wage for drafters was between $14.35 to $17.13 per
hour, well below an hourly wage rate of $21.58. Moreover,
starting salaries for drafters based on employer surveys seem to
vary from $8 to $16 per hour, with many entry-level jobs at the
lower end of that range.
Boslough argues that Rockneys construction background
and the plans provision of fourteen hours of drafting courses
above the certification requirements would move Rockney out of
the entry-level salary ranges. However, Boslough does not point
to substantial evidence supporting this contention. The
additional classes apparently would not provide Rockney with on-
the-job drafting experience. Although the plan notes his
construction experience will provide a practical orientation to
his work, and a few of the surveyed employers said construction
experience would be a plus, none of the surveyed employers
indicated that they would consider Rockney an experienced drafter
based on his work history.
Therefore, we conclude substantial evidence does not
support a finding that the plan would meet Rockneys remunerative
wage of $21.58 per hour at the entry level.
B. Substantial Evidence Does Not Support the Boards
Finding that the Plan Could Be Completed Within the
Statutory Time Frame of Two Years.
Alaska Statute 23.30.041(k) limits the plan time to two
years.9 Rockney argues that because of necessary changes to his
course work, substantial evidence does not support that he could
complete his plan within this time frame.
Boslough asserts that Rockney presented only conjecture
that the plan would exceed the statutory time frame. We
disagree. At the time the board approved Rockneys plan, he had
dropped his summer math course and switched writing classes at
his professors suggestion because he needed slower-paced classes.
The board acknowledged his plan needed to be modified, but
nevertheless concluded that it remained viable. However, there
is not substantial evidence in the record showing that Rockney
could rearrange his schedule to accommodate the slower-paced
classes without exceeding two years.10 The plan already included
six semesters of courses over a full two years. Dropping the
course put Rockney three credits behind, which he believed would
likely take a seventh semester to complete.11
C. The Presumption of Compensability under AS 23.30.120
Does Not Apply in Rockneys Case.
Lastly, Rockney argues that the board should have
applied the presumption of compensability to determine the true
facts underlying each of his challenges to the reemployment plan
and then should have considered whether the RBA abused his
discretion.
Alaska Statute 23.30.120 establishes a presumption that
an employees claim for injury comes within the scope of the
Alaska Workers Compensation Act in the absence of substantial
evidence to the contrary. In a proceeding for the enforcement of
a claim for compensation under this chapter it is presumed, in
the absence of substantial evidence to the contrary, that (1) the
claim comes within the provisions of this chapter[.]12
We have broadly interpreted the presumption to apply to
any claim for compensation under the workers compensation
statute.13 Consequently, we have applied the presumption to any
disputes over the employees eligibility for benefits,14 including
eligibility for reemployment benefits.15 Additionally, the
presumption applies when an employer or insurer disputes who must
pay for the benefits.16 Using the presumption in these cases
simplif[ies] proceedings before the Board and thus reduce[s] the
hazards interinsurer disputes pose for the injured worker.17
However, the presumption of compensability does not
apply to Rockneys case because Alaska National and Boslough do
not dispute Rockneys entitlement to reemployment benefits or
their liability for those benefits. In effect, all the parties
agree that Rockneys claim comes within the provisions of this
chapter.18 Rockney is not seeking coverage; instead, he disputes
the plan under which his benefits will be provided. Moreover,
applying the presumption to evaluating reemployment plans does
not promote the goals of encouraging coverage and prompt benefit
payments.
Therefore, we conclude that the board should not apply
the presumption of compensability in evaluating a reemployment
plan.
V. CONCLUSION
We REVERSE the superior court decision concluding the
reemployment benefits administrator and the board did not abuse
their discretion in approving Rockneys reemployment plan. We
REMAND for further proceedings consistent with this opinion.19
_______________________________
1 Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).
2 See AS 23.30.041(j) (requiring the board to review the
RBAs approval of a vocational reemployment plan for an abuse of
discretion); AS 44.62.570(b)&(c) (noting an agency abuses its
discretion when it lacks substantial evidence to support its
findings); Morgan v. Lucky Strike Bingo, 938 P.2d 1050, 1055
(Alaska 1997) (same).
3 Cheeks v. Wismer & Becker, 742 P.2d 239, 244 n.6
(Alaska 1987).
4 Id.
5 E.g., Kirby v. Alaska Treatment Ctr., 821 P.2d 127, 129
n.5 (Alaska 1991).
6 AS 23.30.041(i). AS 23.30.041(r)(7) defines
remunerative employability as having the skills that allow a
worker to be compensated with wages or other earnings equivalent
to at least 60 percent of the workers gross hourly wages at the
time of injury.
7 Throughout this opinion, we use Boslough to refer to
the positions of both Boslough and Alaska National.
8 Boslough also argues Rockneys remunerative wage should
be $8.40 per hour, or 60 percent of his hourly wages at Boslough
under AS 23.30.041(r)(7), and that substantial evidence supports
that the plan would satisfy this rate. However, the
rehabilitation specialist classified a $40 Christmas gift
certificate as a bonus under 8 Alaska Administrative Code (AAC)
45.490, which led to a calculation based on Rockneys higher union
wages in prior jobs, rather than merely on his non-union Boslough
wages. The board indicated it would conclude that Rockneys
appropriate remunerative wage was $21.58 per hour. Given the
possibility of an equally high remunerative wage even if we
reject that the gift certificate was a bonus under 8 AAC 45.490,
we assume $21.58 is the appropriate remunerative wage.
9 AS 23.30.041(k) provides that [b]enefits related to the
reemployment plan may not extend past two years from the date of
plan approval or acceptance, whichever date occurs first, at
which time the benefits expire.
10 Boslough cites some testimony by Rockney suggesting
that his rehabilitation specialist was working with school
counselors to try to cram the math class into one of the six
semesters covered by the plan. But we think that Rockneys
testimony as a whole does not constitute substantial evidence
that Rockney would have succeeded in completing the course work
over six semesters.
11 Because we reverse the approval of the plan on the
grounds that substantial evidence is lacking to support that the
plan meets the remunerative employability requirement and time
limitations, we do not consider Rockneys arguments that the labor
market is inadequate and that Alaska National impermissibly
imposed conditions on paying for his computer.
12 AS 23.30.120(a).
13 Municipality of Anchorage v. Carter, 818 P.2d 661, 665
(Alaska 1991) (applying presumption to claim for continuing
medical care).
14 Meek v. Unocal Corp., 914 P.2d 1276, 1279-80 (Alaska
1996) (applying presumption to claim for permanent total
disability); Wien Air Alaska v. Kramer, 807 P.2d 471 (Alaska
1991) (applying presumption to claim for continuing temporary
total disability); Sokolowski v. Best W. Golden Lion Hotel, 813
P.2d 286, 292 (Alaska 1991) (holding presumption applies to
analyzing whether injury suffered going to work was compensable
because route constituted special hazard); Anchorage Roofing Co.
v. Gonzales, 507 P.2d 501, 504-05 (Alaska 1973) (holding injuries
suffered on trip for business and pleasure were compensable);
Thornton v. Alaska Workmens Comp. Bd., 411 P.2d 209, 211 (Alaska
1966) (applying presumption to question of whether work
contributed to employees heart attack).
15 Kirby, 821 P.2d at 129.
16 Veco, Inc. v. Wolfer, 693 P.2d 865, 868 (Alaska 1985)
(applying presumption to dispute between insurer and self-insured
employer over who pays workers benefits); Providence Wash. Ins.
Co. v. Bonner, 680 P.2d 96 (Alaska 1984) (applying presumption to
dispute between successive insurance companies over who pays for
workers benefits).
17 Bonner, 680 P.2d at 100 (Rabinowitz, J., concurring).
18 AS 23.30.120(a).
19 The statutory time and cost limitations in AS
23.30.041(k) and (l) will restart for any new plan. Although
Binder v. Fairbanks Historical Pres. Found. held that the caps do
not start over for a second plan when the first plan is
unsuccessful, that case is not on point because Rockney never
approved of his plan and challenged it as invalid at its
inception. See 880 P.2d 117, 120-23 (Alaska 1994).
