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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Carter v. B&B Construction, Inc. (12/19/2008) sp-6328
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
FREDDIE L. CARTER,
| |||||||||||||||||||||||||||||||||||||||||||||||||
| Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge. | |||||||||||||||||||||||||||||||||||||||||||||||||
Appearances: Michael
A. Stepovich, Fairbanks, and Allen F. Vacura,
Fairbanks, for Appellant. Constance Cates
Ringstad, McConahy, Zimmerman & Wallace,
Fairbanks, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Freddie Carter was injured on the job in 1992. Since
then he has suffered from a series of health problems and is
currently unable to work. He appeals the Alaska Workers
Compensation Boards denial of his request for Permanent Total
Disability (PTD) benefits and its refusal to grant him additional
reemployment benefits. He also appeals the superior courts
denial of his claim for additional interest, attorneys fees, and
costs. Because substantial evidence did not support the boards
decision that Carter is not entitled to PTD benefits and because
Carter is entitled to additional interest on his reemployment
benefits, we reverse and remand.
II. FACTS AND PROCEEDINGS
In August 1992 Freddie Carter suffered two injuries to
his neck and left shoulder while performing heavy lifting for his
employer, B&B Construction, Inc. After the second injury Carter
filled out an occupational injury report and in September B&B
began paying Carter Temporary Total Disability (TTD) benefits.
Carter was first treated for his neck injuries by Dr.
Robert Dingeman, who requested an MRI of Carters cervical spine.
The MRI showed large herniated disks at the C5-6 and C6-7 levels
and slight disk bulging and posterior osteophytosis at the C3-4
level. Dr. Dingeman referred Carter for an evaluation and
probable surgery with Dr. John Joosse.
In October Dr. Joosse operated on Carter to fuse his
neck vertebrae. Eleven days after the surgery Dr. Joosse
reported that Carter was doing well and that he could do desk
light duty work. In December Dr. Joosse reported that [t]he C5-6
level appears solidly fused. The C6-7 is a little bit delayed in
its solid fusion. There is no evidence, however, for graft
collapse, and clinically everything looks good. Dr. Joosse
stated that by the end of the month Carter would probably be able
to return to work, starting at medium duty and progressing as he
improves. Dr. Joosse also noted that Carter said he was having
ulcer symptoms.
In January 1993 Carter injured his lower back while
shoveling snow. Dr. Joosse diagnosed this injury as an acute
lumbar strain that he doubted was related to Carters previous
work-related injury. B&B controverted both Carters claim
regarding his lower back condition and his continued receipt of
TTD benefits from his 1992 injury.
On April 2, 1993 Dr. Joosse concluded that Carters
condition was stable and that he would be able to work except for
his lower back pain. Dr. Joosse later gave Carters cervical
condition a Permanent Partial Impairment (PPI) rating of ten
percent, whole person impairment.
On April 27, 1993 Carter requested a reemployment
benefits eligibility evaluation. Because he made his request
more than ninety days after he gave B&B notice of his injuries,
he indicated that he would later submit a written statement that
explained the unusual and extenuating circumstances that
prevented him from filing in a timely manner. On May 4, 1993
(one week after Carters request) the Alaska Division of Workers
Compensation informed Carter that it could not act on Carters
request until Carter submitted his written statement of unusual
and extenuating circumstances. The division also stated that it
could not act on Carters request because it believed, mistakenly,
that Carter had been released to return to work.
In June 1993 Carter filed an application for adjustment
of claim with the Alaska Workers Compensation Board, requesting
relief that included (1) TTD benefits from February 15, 1993 to
the then-present date; (2) PPI benefits; (3) medical costs
relating to his January 1993 injury to his lower back; and (4)
review of what he referred to as the divisions decision regarding
his eligibility evaluation request.
Later that month Dr. Edwin Lindig, Carters new treating
physician, reported that Carters symptoms were essentially
unchanged and that his neck problem was his main disabling
factor. Between June 1993 and February 1994 Dr. Lindig
consistently reported that Carter had not been released for work
and needed vocational rehabilitation.
In April 1994 Dr. James Foelsch performed a follow-up
neurological evaluation of Carter. Dr. Foelsch diagnosed Carter
with chronic neck pain without evidence of radiculopathy[1]or
myelopathy.2 Dr. Foelsch also diagnosed Carter with probable
peripheral neuropathy3 but suggested that this was related to
Carters alcohol intake instead of his neck or lower back pain.
On September 9, 1994 the board ruled that (1) Carter
was not entitled to TTD benefits beyond April 2, 1993, when Dr.
Joosse reported that Carters cervical condition had stabilized;
(2) Carter was entitled to PPI benefits according to his ten-
percent PPI rating; and (3) Carters lower back condition was
non-work-related and thus non-compensable. The board also stated
that the division properly concluded [that Carter] waited too
long to request reemployment benefits and denied [him]
eligibility because he failed to provide unusual and extenuating
circumstances to justify his untimely request. On October 6,
1994 Carter sent the division a written explanation of unusual
and extenuating circumstances.
In September 1995 Carter petitioned the board for
rehearing and modification of the boards September 9, 1994
ruling on his eligibility evaluation request because, he
asserted, that ruling was based on a mistake of fact. Carter
specifically argued that the board mistakenly characterized the
divisions May 4, 1993 letter to Carter as a conclusive denial of
his eligibility evaluation request. After the board denied his
petition for rehearing Carter appealed to the superior court. On
March 13, 1998 the superior court found that the divisions May 4,
1993 letter was not a final decision and reversed and remanded to
the board for reconsideration of Carters eligibility evaluation
request.
In August 1999 the division, after receiving Carters
case on remand from the board, decided that Carter was entitled
to an eligibility evaluation because he had sufficiently
demonstrated unusual and extenuating circumstances that prevented
him from requesting his evaluation on time. After B&B
unsuccessfully appealed this decision to both the board and the
superior court, Carter asked the division to assign him a
rehabilitation specialist to perform his eligibility evaluation.
On December 27, 2001 the division assigned Carter a
rehabilitation specialist and on April 2, 2002 it found Carter to
be eligible for reemployment benefits.
In the interim period between Carters 1995 petition for
rehearing and the April 2002 determination that he was eligible
for reemployment benefits, Carter experienced significant
medical difficulties. In January 1996 he suffered a seizure and
was admitted to the hospital, where he suffered a second seizure.
In December 1996 he was admitted to the intensive care unit of
the hospital because of an onset of type I diabetes. Then in
April 1998 he was again hospitalized, this time because of
dyspnea4 complaints. Carter was treated by Dr. Kendrick Blais,
who diagnosed him at discharge with (1) pulmonary emboli,5 (2)
deep vein thrombosis in his right calf,6 (3) diabetes, (4)
hypercholesterolemia,7 (5) status post anterior fusion C5-C6 and
C6-C7, (6) generalized tonic-clonic seizures, and (7) chronic
gastritis.8
On October 25, 1999 Carter experienced a syncopal
episode9 at his home and was taken to the emergency room. When
he was discharged eight days later he was diagnosed with (1)
pulmonary embolus; (2) deep vein thrombosis; (3) Barretts
esophagus,10 including Schatzki ring,11 pyloric gastritis, and
duodenal polyps;12 (4) anemia,13 iron deficiency;14 (5) type II
diabetes; (6) essential benign hypertension;15 (7) seizure
disorder; (8) hyperlipidemia/hypertriglyceridemia;16 (9) chronic
pain related to degenerative joint disease of the cervical spine;
and (10) chronic low back pain with left radiculopathy.
In January 2000 Dr. Blais wrote in an Application for
Medical Cancellation of Student Loan Debt form for Carter that
[c]hronic pain prevents constant employment. Multiple medical
problems. Pulmonary embolus has caused permanent respiratory
injury. Dr. Blais also stated that Carter was permanently
disabled with a rating of 50% or more. At around the same time,
Dr. Foelsch filled out an identical form, but he diagnosed only
Carters neck pain, left-sided numbness, and cervical spondylosis17
and stated that Carter was totally and permanently disabled. Dr.
Foelsch explained that Carter was prevented from resuming
employment or vocational rehabilitation because his neck pain
interferes with all activities of daily living and is
progressive.
In October 2000 Carter was admitted to the hospital
with symptoms of acute pancreatitis. His condition progressed
into a life-threatening illness when his bowels completely
stopped functioning. Dr. Blais testified that Carter required a
rather massive surgery opening up his entire abdomen and a very
extended treatment in Intensive Care Unit. Carter was not
discharged from the hospital until February 2001, when he was
admitted to a skilled nursing facility. In March 2001 his
surgeon, Dr. William Montano, reported that because of Carters
serious condition there was no doubt that Mr. Carter would be
unable to do any sort of work at that point, and that Carter was
not likely to be able to do any sort of work or to participate in
retraining for at least [one] year from the onset of his
disability in October 2000.
As mentioned above, Carter was found eligible for
reemployment benefits in April 2002. But by August 2002 Kaya
Kade, the rehabilitation specialist assigned to Carters claim,
had concluded that no occupational goals or training could be
selected for Carter because of his diminished physical
capabilities. Based on Kades conclusion, the division determined
that Carter could not meet the requirements of AS 23.30.041(h)
and (i) and therefore denied Carters reemployment plan.
In December 2002 Carter filed with the board a claim
for (1) reemployment benefits from July 14, 1994 to January 30,
1999;18 (2) PTD benefits beginning on approximately January 3,
1999 and possibly earlier; (3) medical costs; (4) penalty; (5)
interest; (6) unfair or frivolous controversion; and (7)
attorneys fees and costs. In October 2003 the board ruled that
Carter was entitled to two years of reemployment benefits under
AS 23.30.041(k), but it denied Carters claim for PTD benefits.
The board also granted Carter attorneys fees and costs relating
to his subsection .041(k) claim.
Carter appealed to the superior court. On March 22,
2006 it affirmed the boards grant of reemployment benefits and
its denial of PTD benefits. The superior court also awarded
Carter interest on his subsection .041(k) benefits and $1,000 in
attorneys fees and costs. Carter appeals.
III. DISCUSSION
A. Standard of Review
Carter argues that he is entitled to PTD benefits, more
than two years of subsection .041(k) benefits, additional
interest on his subsection .041(k) benefits, and additional
attorneys fees. The superior court acted as an intermediate
court of appeal when it reviewed the boards December 9, 2003
decision and order. When the superior court acts as an
intermediate court of appeal in an administrative matter, we
independently review the merits of the administrative agencys
decision.19
In deciding questions of law involving agency
expertise, we apply the rational basis standard and defer to the
agencys determination so long as it is reasonable.20 In deciding
questions of law that do not involve agency expertise or where
the agencys specialized knowledge and experience would not be
particularly probative as to the meaning of the statute we
substitute our own judgment for that of the agency.21 We will
adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.22
We review the boards factual findings under the
substantial evidence standard.23 Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.24 We reverse board decisions when we
cannot conscientiously find that the evidence supporting that
decision is substantial.25
B. Carter Is Entitled to PTD Benefits.
Alaska Statute 23.30.120(a)(1) states that, in the
absence of substantial evidence to the contrary, claims under the
Alaska Workers Compensation Act are presumed to be compensable.26
We have established the following three-step analysis:
First, the employee must establish a
preliminary link between the [disability] and
the employment. This step of the analysis
requires consideration of only evidence that
tends to establish the link.
. . . .
[Second, the court inquires] whether the
employer rebutted this presumption with
substantial evidence that either (1) provides
an alternative explanation which, if
accepted, would exclude work related factors
as a substantial cause of the [disability];
or (2) directly eliminates any reasonable
possibility that employment was a factor in
causing the disability.
. . . .
[Third], once the employer has rebutted the
presumption that the injuries are work
related, the employee can prevail only if he
proves his claim by a preponderance of the
evidence.[27]
In its October 2003 decision and order the board
employed this three-step analysis and ruled that Carter was not
entitled to PTD benefits. Under step three, the board stated
that
After reviewing the record as a whole, we
find that the employee cannot prove his claim
by a preponderance of the evidence. The
evidence shows that the employee was injured
in 1992 while at work. He hurt his neck and
shoulder, and achieved medical stability as
of April 1993, according to our previous
decision in this case. The employee suffered
serious non-work-related medical problems,
which made him permanently and totally
disabled, probably since 1998 according to
his treating physician at the time. His
current treating physician testified that
these serious and more recent problems are
not substantially related to the 1992 injury,
and that, but for these newer problems, the
employee could be retrained. Consequently,
we conclude his claim for PTD benefits must
be denied.
Carter contends that he was entitled to PTD benefits as
of January 31, 1999. He argues that B&B has not rebutted the
compensability presumption. Alternatively, he argues that even
if B&B rebutted the presumption, substantial evidence does not
support the boards finding that he failed to prove his claim by a
preponderance of the evidence. B&B counters that substantial
evidence supports the boards finding that Carters serious non-
work[-]related medical conditions, and not his work injury,
caused Carters PTD, and that such evidence both rebutted the
compensability presumption and prevented Carter from proving his
claim by a preponderance of the evidence.
At step two of the analysis the board must determine
whether the employer has rebutted the presumption of
compensability with substantial evidence that either (1) provides
an alternative explanation which, if accepted, would exclude work
related factors as a substantial cause of the [disability]; or
(2) directly eliminates any reasonable possibility that
employment was a factor in causing the disability.28 Substantial
evidence is evidence that a reasonable mind might accept as
adequate to support a conclusion.29 Whether the amount of
evidence was substantial is a legal question, subject to
independent review by the court.30
The board does not weigh the evidence at step two.31
But if the only medical evidence offered by the employer at step
two is uncontroverted, yet inconclusive, the presumption of
compensability is not overcome.32
The board relied exclusively on the uncontroverted
testimony of Dr. Blais, Carters treating physician, when it
concluded at step two that B&B had rebutted the presumption of
compensability. Thus, the boards decision and order states:
In order to rebut the presumption that
the employee is entitled to PTD benefits, the
employer relies on Dr. Blais hearing
testimony that none of the current health
problems from which the employee suffers
since 1999, and which make him unemployable
are substantially related to or caused by the
1992 work-related injury. The employer also
relies on Dr. Blais testimony that the
employee would be able to be retrained for
gainful employment, but for these non work-
related diagnoses. Based on this evidence,
we find that the employer has rebutted the
presumption that the employee is entitled to
PTD benefits. Once the presumption drops out
we must determine whether the employee can
prove his claim for PTD benefits by a
preponderance of the evidence.
(Emphasis added.)
Parts of Dr. Blaiss testimony directly supported
Carters argument that his work-related injures were a substantial
factor in his PTD. Thus, on direct examination by Carters
lawyer, Dr. Blais offered this testimony:
Q: In terms of the work [injuries] being a
part, a component of [Carters] overall
permanent total disability, would you
say that the cervical injury is a
substantial factor in the permanent
total disability?
A: Yes, substantial factor would be an
appropriate choice of words.
Q: And would you say also that the work
injury is a substantial factor in that
it is combined with these other
maladies, these other conditions, that
weve discussed to render Mr. Carter
permanently totally disabled?
A: Yes.
. . . .
Q: And your opinions today, Doctor, are
given to a reasonable degree of medical
certainty, is that correct?
A: Yes, it is.
This testimony directly supported Carters PTD claim.
As we saw above, the board relied on other passages in
Dr. Blaiss testimony when it ruled that B&B had rebutted the
presumption of compensability. On appeal B&B argues that Dr.
Blaiss testimony established that the 1992 work-related injury
did not cause the serious health problems that now render Carter
unemployable, and that Carter would be employable if he did not
have these major health problems. In the passages discussed by
B&B, Dr. Blais testified that if Carter only had his work-related
injuries it was conceivable he could do some very light types of
[work] activities and that in such a situation there was a
reasonable chance [Carter] could work an eight-hour day, with
breaks. He also testified, in response to questions of a board
member, that, with one qualification, Carters current problems
with esophagitis, diabetes, hypertension, recurrent pulmonary
embolus, deep vein thrombosis, seizure disorder, and
hyperlipidemia were not related to the neck injury or the pain
medication for that injury.33 This testimony is consistent with
Dr. Blaiss responses to a June 2002 letter from Northern
Rehabilitation Services. In that letter Northern Rehabilitation
Services asked Dr. Blais whether, in relation to Carters 1992
injury and cervical fusion only, Carter was competitively
employable in the labor market on a full-time basis. Dr. Blais
responded, Yes and added that his response related to Carters
anterior cervical fusion only. Dr. Blais also stated in his
response to that letter that Carters 1992 injury and cervical
fusion were medically stable and that, in relation to those two
factors only, Carter could be immediately targeted for sedentary
and light work.
For purposes of the step-two analysis, the evidence
relied on by B&B must be read in light of Dr. Blaiss opinion,
discussed and quoted above, that the work injury was a
substantial factor in rendering Carter permanently and totally
disabled. It must also be read in context of his testimony that
Northern Rehabilitation Servicess written questions were very
hypothetical, somewhat fictitious, and bogus. Thus, even though
some passages in Dr. Blaiss testimony and his responses to
Northern Rehabilitation Servicess letter support a conclusion
that Carters non-work-related health conditions are a substantial
factor in his PTD, they do not rule out his work injury as
another substantial factor. There can be more than one
substantial factor in a disability. Therefore, to rebut the
presumption of compensability at step two, the employer must
offer evidence that either excludes work-related factors as a
substantial cause of the disability, or directly eliminates any
reasonable possibility employment was a factor in causing the
disability.34
Because Dr. Blaiss substantial factor testimony
directly supporting Carters claim was uncontroverted by any other
witness, and because the passages in Dr. Blaiss testimony relied
on by the employer and the board at step two failed to establish
that the work injury was not a substantial factor in bringing
about Carters permanent total disability, the evidence must be
regarded as insufficient to rebut the presumption of
compensability.35 Because substantial evidence does not support
the boards decision that B&B rebutted the compensability
presumption, we reverse and hold that Carter is entitled to PTD
benefits as a matter of law.
C. Carter Is Entitled to Two Years of Reemployment
Benefits.
Before it was amended in 2005, AS 23.30.041(k) stated
that
If the employees permanent impairment
benefits are exhausted before the completion
or termination of the reemployment plan, the
employer shall provide compensation equal to
70 percent of the employees spendable weekly
wages, but not to exceed 105 percent of the
average weekly wage, until the completion or
termination of the plan . . . .[36]
Carter asked the board to award subsection .041(k) benefits from
July 14, 1994 to January 30, 1999. In its October 9, 2003
decision the board relied on Townsend v. United Parcel Service37
and Tindera v. Qwick Construction Co.,38 to conclude that an
employee may be eligible for subsection .041(k) benefits prior to
approval or acceptance of a reemployment plan so long as he has
begun the reemployment process. Because the board found that B&B
submitted no evidence to contradict the efficacy of a
reemployment plan within two years after [Carters] initial
request for [an eligibility evaluation], it granted him
reemployment benefits for the statutorily allowed maximum period
of two years. Thus, the board implicitly held that Carter had
begun the reemployment process when he initially applied for an
eligibility evaluation. The board also implicitly rejected
Carters argument that subsection .041(k) benefits are not capped
at two years. On October 29, 2003 B&B paid Carter two years of
reemployment benefits.
Carter then appealed the boards October 9 ruling to the
superior court, arguing that the board erred in only awarding two
years of .041(k) benefits. In considering Carters appeal, the
superior court read this courts opinion in Raris v. Greek Corner39
to mean that an employee must be developing or executing a
reemployment plan to be eligible for benefits. Moreover, the
superior court held that Carter began developing or executing a
reemployment plan when he was assigned a rehabilitation
specialist to conduct his eligibility evaluation. The superior
court held that Carter was entitled to subsection .041(k)
benefits only from December 27, 2001 (when he was assigned a
rehabilitation specialist) until August 9, 2002 (when his
rehabilitation specialist reported that no reemployment plan
could be formulated for him).40
On appeal, Carter argues that the superior court erred
because he is entitled to more than four years of reemployment
benefits, from July 14, 1994 (when his PPI lump sump payment was
exhausted) to January 31, 1999 (when he became permanently
totally disabled). B&B counters that Carter is not entitled to
more than two years of reemployment benefits because AS
23.30.041(k) has a strict two-year time limit on benefit awards.
It also argues that Carter is merely trying to use subsection
.041(k) benefits as an income-replacement vehicle without any
relationship to any plans approval, acceptance, completion or
termination or to Carters participation in any plan.
Because the superior court acted as an intermediate
court of appeal, we will independently review the merits of the
boards decision.41 Carters request for additional reemployment
benefits turns on whether an employee may be entitled to
subsection .041(k) benefits before his reemployment plan is
approved or accepted and, if so, when that entitlement begins.
These are questions of law that do not involve the boards
expertise; we will therefore substitute our own judgment for that
of the board.42 We will adopt the rule of law that is most
persuasive in light of precedent, reason, and policy.43
We note initially that B&B is correct that AS
23.30.041(k) contains a two-year cap on benefits after a
reemployment plan is accepted or approved. In Binder v.
Fairbanks Historical Preservation Foundation, the claimant sought
benefits for a period exceeding two years.44 We rejected that
contention, reasoning that the language of subsection .041(k)
unambiguously states that an employers total exposure for any
number of reemployment plans an employee pursues must be capped
at . . . two years in time.45 In so holding, we noted that the
legislative history of the Act indicates that the two-year
reemployment benefits cap was intended to return injured workers
to the work force as expeditiously as possible.46
With respect to Carters argument that he became
entitled to subsection .041(k) benefits before his reemployment
plan was approved, we agree with the boards ruling that an
employee may be eligible for subsection .041(k) benefits before
approval or acceptance of a reemployment plan so long as he has
begun the reemployment process. The board has explained that it
has consistently held that when PPI benefits are exhausted,
[subsection .041(k)] stipend benefits are to be provided during
the reemployment process, not just during the course of a
reemployment plan.47 This practice is in accord with Raris, in
which we observed that reemployment benefits are paid contingent
on the employees participation in the development and execution
of a reemployment plan.48 In other words, employees become
eligible for reemployment benefits when they begin participating
in the reemployment process.49
The more difficult question is this: When does an
employee begin participating in the reemployment process? The
answer to this question potentially determines whether there was
a delay in providing benefits, and thus whether and when interest
began accruing on the benefits. The superior court concluded that
Carter began participating in the reemployment process when he
was assigned a rehabilitation specialist to perform his
eligibility evaluation. Although this is not an implausible
reading of AS 23.30.041(k), we conclude that it is incorrect.
When an employee exhausts PPI benefits before
completion or termination of the reemployment process, AS
23.30.041(k) provides a fall-back source of income.50 Given this
purpose, we think that the legislature did not intend that there
should be a gap between the expiration of PPI benefits and the
commencement of reemployment benefits for employees who are
vigorously pursuing eligibility evaluations before their PPI
benefits expire.51 We therefore conclude that the reemployment
process begins when the employee begins his active pursuit of
reemployment benefits.
Because Carter began to actively pursue reemployment
benefits on April 27, 1993 when he requested an eligibility
evaluation, and because he continued to actively pursue those
benefits by petitioning the board for review of the divisions May
4, 1993 decision, by petitioning the board for a rehearing, and
by appealing to the superior court, we conclude that the board
did not err in awarding him reemployment benefits, beginning when
his PPI payment was exhausted on July 14, 1994, for the statutory
maximum period that a reemployment plan can last two years. We
do not decide whether subsection .041(k) benefits may be payable
for more than two years if they start before acceptance or
approval of a reemployment plan. That issue has not been briefed
or argued here. Carter has not convinced us that the board erred
under the circumstances of this case in awarding him subsection
.041(k) benefits for only two years.
D. Carter Is Entitled to Additional Interest on His
Reemployment Benefits.
Carter argues that he should have been awarded
additional interest on his reemployment benefits. Having
concluded that Carter was entitled to reemployment benefits from
December 27, 2001 to August 9, 2002, the superior court
calculated the interest payable to Carter on the benefits Carter
would have accrued during that period. Interest on the first
payment due therefore began running December 27, 2001. But
because we held above that Carter was entitled to reemployment
benefits beginning on July 14, 1994, that is the date on which
interest began running on the first payment due. We consequently
remand for calculation of the amount of interest B&B owes Carter,
at the applicable statutory rate.
E. Carters Attorneys Fees Request Should Be Reconsidered
on Remand.
Carter argues that the superior court failed to award
him full reasonable attorneys fees in his superior court appeal.
There is no reason for us to consider this issue.
Because Carter did not prevail on his PTD claim below,
the superior court only awarded Carter partial attorneys fees and
costs. Since we are reversing with respect to Carters PTD claim,
the superior court should reconsider the issue of attorneys fees
and costs and may request supplemental affidavits and memoranda
on the matter.
IV. CONCLUSION
We therefore REVERSE and REMAND for further proceedings
consistent with this opinion.
In the Supreme Court of the State of Alaska
Freddie L. Carter, )
) Supreme Court No. S-12295
Appellant, )
v. ) Order
) Petition for Rehearing
B&B Construction, et al., )
)
Appellees. ) Date of
Order: 12/19/08
Trial Court Case # 4FA-03-02813CI
Before: Fabe, Chief Justice, Matthews, Eastaugh, and
Carpeneti, Justices. [Winfree, Justice, not
participating.]
The parties have filed cross-petitions for rehearing from
our 6/27/08 opinion. Upon consideration of the employers
petition for rehearing, the employees cross-petition for
rehearing, and the parties respective responses filed at the
courts request,
It is Ordered:
1. The employers petition for rehearing is Denied.
2. The employees cross-petition for rehearing is Granted
in Part, to clarify that the court, in affirming the boards award
of two years of compensation under AS 23.30.041(k), did not
decide or intend to imply that compensation payable under the
subsection can never be paid for a period exceeding two years.
The following changes have therefore been made:
a. On page 19, line 3, this sentence is
changed to read:
We note initially that B&B is correct that AS
23.30.041(k) contains a two-year cap on
benefits after a reemployment plan is
accepted or approved.
b. On pages 21-22, this sentence is changed
to read:
Because Carter began to actively pursue
reemployment benefits on April 27, 1993 when
he requested an eligibility
Freddie Carter v. B&B Construction, et al.,
Supreme Court No. S-12295
Page Two
evaluation, and because he continued to
actively pursue those benefits by petitioning
the board for review of the divisions May 4,
1993 decision, by petitioning the board for a
rehearing, and by appealing to the superior
court, we conclude that the board did not err
in awarding him reemployment benefits,
beginning when his PPI payment was exhausted
on July 14, 1994, for the statutory maximum
period that a reemployment plan can last two
years.
c. This text is added on page 22 following
the sentence quoted above:
We do not decide whether subsection .041(k)
benefits may be payable for more than two
years if they start before acceptance or
approval of a reemployment plan. That issue
has not been briefed or argued here. Carter
has not convinced us that the board erred
under the circumstances of this case in
awarding him subsection .041(k) benefits for
only two years.
3. Opinion No. 6277 issued on 6/27/08 is withdrawn.
4. Opinion No. 6328 is issued on this date in its place.
Entered by direction of the court.
Clerk of the Appellate Courts
Marilyn May
cc: Supreme Court Justices
Judge Wood
Trial Court Appeals Clerk
West Publishing
Other Publishers
Distribution:
Allen Vacura
Stepovich & Vacura Law
Office
543 Second Avenue Suite
A
Fairbanks AK 99701
John F Wallace
McConahy Zimmerman &
Wallace
711 Gaffney Road Suite
202
Fairbanks AK 99701
_______________________________
1 Radiculopathy is a disease of the nerve roots.
Dorlands Illustrated Medical Dictionary 1404 (28th ed. 1994).
2 Myelopathy is a general term denoting functional
disturbances and/or pathological changes in the spinal cord. Id.
at 1090.
3 Neuropathy is a functional disturbance or pathological
change in the peripheral nervous system, sometimes limited to
noninflammatory lesions as opposed to those of neuritis; the
etiology may be known or unknown. Id. at 1132.
4 Dyspnea is difficult or labored breathing. Id. at 518.
5 A pulmonary embolus is a mass of clotted blood or other
formed elements brought by the blood from another vessel and
forced into a smaller one [of the lung], thus obstructing the
circulation. Id. at 542, 1386.
6 Thrombosis is the formation, development, or presence
of . . . an aggregation of blood factors, primarily platelets and
fibrin with entrapment of cellular elements, frequently causing
vascular obstruction at the point of its formation. Id. at
1707-08.
7 Hypercholesterolemia is an excess of cholesterol in the
blood. Dorlands Illustrated Medical Dictionary 792 (28th ed.
1994).
8 Gastritis is an inflammation of the stomach. Id. at
680.
9 A syncopal episode is an episode pertaining to or
characterized by . . . a temporary suspension of consciousness
due to generalized cerebral ischemia; a faint or swoon. Id. at
1622.
10 Barretts esophagus is a peptic ulcer of the lower
esophagus, often with stricture, due to the presence of
columnar-lined epithelium. Id. at 1625. Dr. Blais testified
that Barretts esophagus refers to a chronic inflammation of the
lower end of the esophagus where acid has chronically been
affecting an area thats not really supposed to have acid to it.
11 Schatzki ring, also called esophageal ring, is an
annular constriction of the lower esophagus, usually at the
junction of the esophageal and gastric mucosa. Id. at 1467.
12 A duodenal polyp is a morbid excrescence, or
protruding growth, from [the] mucous membrane of, pertaining to,
or situated in, the . . . first or proximal portion of the small
intestine, extending from the pylorus to the jejunum. Id. at
511, 1330.
13 Anemia is a reduction below normal in the number of
erythrocytes per cu. mm., in the quantity of hemoglobin, or in
the volume of packed red cells per 100 ml. of blood which occurs
when the equilibrium between blood loss (through bleeding or
destruction) and blood production is disturbed. Dorlands
Illustrated Medical Dictionary 72 (28th ed. 1994).
14 Iron deficiency is anemia characterized by low or
absent iron stores, low serum iron concentration, elevated free
erythrocyte porphyrin, low transferrin saturation, elevated
transferrin, low serum ferritin, low hemoglobin concentration or
hematocrit, and hypochromic microcytic red blood cells. Id. at
73.
15 Essential hypertension is high arterial blood pressure
. . . occurring without discoverable organic cause. Id. at 801.
16 Hyperlipidemia is a general term for elevated
concentrations of any or all of the lipids in the plasma,
including hypertriglyceridemia, hypercholesterolemia, etc.
Id. at 795. Hypertriglyceridemia is an excess of triglycerides
in the blood. Id. at 802. Dr. Blais testified that the term
hyperlipidemia/hypertriglyceridemia as used in Carters discharge
report refers to fats in the blood including cholesterol that
were linked to Carters diabetes and that led to an extreme
life-threatening illness in October, 2000 . . . when [Carter] was
hospitalized for an extensive period of time.
17 Cervical spondylosis is a degenerative joint disease
affecting the cervical vertebrae, intervertebral disks, and
surrounding ligaments and connective tissue, sometimes with pain
or paresthesia radiating down the arms as a result of pressure on
the nerve roots. Id. at 1564.
18 Carter originally requested reemployment benefits
beginning on April 3, 1993, but he modified his claim at the
board hearing to a request for such benefits from July 14, 1994
to January 30, 1999.
19 Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).
20 Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987).
21 Id.
22 Williams, 53 P.3d at 139.
23 Id.
24 Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006).
25 Robinson v. Municipality of Anchorage, 69 P.3d 489, 493
(Alaska 2003) (quoting Bouse v. Firemans Fund Ins. Co., 932 P.2d
222, 231 (Alaska 1997)).
26 See also Leigh, 136 P.3d at 216.
27 Robinson, 69 P.3d at 494 (quoting Temple v. Denali
Princess Lodge, 21 P.3d 813, 816 (Alaska 2001)).
28 Lindhag v. State, Dept of Natural Res., 123 P.3d 948,
953 (Alaska 2005).
29 Norcon, Inc. v. Alaska Workers Comp. Bd., 880 P.2d
1051, 1054 (Alaska 1994).
30 Bouse, 932 P.2d at 235.
31 Id. (citing Norcon, 880 P.2d at 1054).
32 Id. (citing Grainger v. Alaska Workers Comp. Bd., 805
P.2d 976, 979 (Alaska 1991)).
33 The one qualification noted by Dr. Blais was that the
legal issues related to the workers compensation claim in a sense
affected Carters stressors and blood sugar and therefore affected
his diabetes.
34 Robinson v. Municipality of Anchorage, 69 P.3d 489, 494
(Alaska 2003) (quoting Temple v. Denali Princess Lodge, 21 P.3d
813, 816 (Alaska 2001)).
35 Grainger, 805 P.2d at 979.
36 Former AS 23.30.041. In 2005 the phrase reemployment
plan was replaced with reemployment process. Ch. 10, 20, FSSLA
2005.
37 Townsend v. United Parcel Serv., AWCB Decision No.
91-0216 (August 3, 1991).
38 Tindera v. Qwick Constr. Co., AWCB Decision No. 90-0056
(March 27, 1990).
39 Raris v. Greek Corner, 911 P.2d 510, 512-13 (Alaska
1996).
40 Despite this holding the superior court ruled that
Carter could keep the two years of subsection .041(k) benefits
that B&B had already paid him because B&B conceded at oral
argument below that Carter could keep those benefits in the
interest of closing the case, . . . irrespective of proof as to
whether his hypothetical reemployment training would have taken
two years.
41 Rockney v. Boslough Constr. Co., 115 P.3d 1240, 1241-42
(Alaska 2005) (independently reviewing boards approval of
appellants reemployment plan).
42 Arnesen v. Anchorage Refuse, Inc., 925 P.2d 661, 664
(Alaska 1996) (The interpretation of AS 23.30.041 . . . is a
question of law suitable to judicial determination de novo.).
43 Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).
44 Binder v. Fairbanks Historical Pres. Found., 880 P.2d
117, 121 (Alaska 1994).
45 Id. at 122.
46 Id.
47 Wagner v. Furniture Enters. of Alaska, Inc., AWCB
Decision No. 04-0253 (October 26, 2004) (citing Townsend v.
United Parcel Serv., AWCB Decision No. 91-0216 (August 3, 1991)
(holding that it is not necessary for an employee to commence a
plan before benefits can be awarded under AS 23.30.041(k))).
48 Raris, 911 P.2d at 512-13.
49 The legislature adopted this view in 2005 when it
amended AS 23.30.041(k) by replacing the phrase reemployment plan
with reemployment process in several places. The legislative
history shows that this change was made to ratify the way in
which the board was applying AS 23.30.041(k). On April 5, 2005
Paul Lisankie, Director of the Workers Compensation Division,
testified before the Senate Judiciary Committee that:
Over the years, because of the nature of the
system, the workers compensation board has
interpreted the current version of
[subsection] .041(k) to permit the payment of
[subsection .041(k)] benefits to people who
are not yet in a retraining plan, even though
the current statute refers to if certain
things happen before the completion of a
plan. So they are essentially saying,
currently, we are treating it as if you were
in this process you can qualify for these
time loss benefits. The ad hoc committee has
proposed that we make explicit what were
already doing by changing to the word
process. So when you see the word process in
place of the word plan, that was designed to
simply, essentially ratify whats already
being done, and make the verbiage of
[subsection] .041(k) consistent with whats
being done. So its kind of a broadening of
the benefit, as far as the literal version,
literal verbiage, but reflective of whats
actually been happening for years, as the
board interpreted this section.
Minutes, S. Judiciary Comm. on S.B. 130, Apr. 5, 2005, testimony
of Paul Lisankie, Director, Dept of Labor & Workforce Dev., Div.
of Workers Comp. (9:50-9:52).
50 Rydwell v. Anchorage Sch. Dist., 864 P.2d 526, 530
(Alaska 1993).
51 See Carlson v. Doyon Universal-Ogden Servs., 995 P.2d
224, 230 n.45 (Alaska 2000) (stating in dictum that if employee
had actively pursued reemployment benefits it might have been
appropriate to award reemployment benefits retroactively to
remove gap between expiration of PPI and initiation of
reemployment benefits).
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