| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Airlines, Inc. v. Darrow (8/25/2017) sp-7192
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA AIRLINES, INC.; EBERLE )
VIVIAN, INC.; AIGA, as successor in )
interest to LUMBERMEN'S ) Supreme Court Nos. S-16127/16143
INSURANCE COMPANIES; and
NORTHERN ADJUSTERS, INC.,
Alaska
Appellants and
Cross-Appellees,
v.
PAMELA DARROW,
f/k/a/ PAMELA CREEKMORE,
Appellee and
Cross-Appellant,
and
STATE OF ALASKA, DEPARTMENT
OF LABOR & WORKFORCE
DEVELOPMENT, DIVISION OF
WORKERS' COMPENSATION,
Intervenor and
Cross-Appellee.
----------------------- Page 2-----------------------
J. John Franich, Franich Law Office, LLC, Fairbanks, for
Appellee/Cross-Appellant. Kimberly D. Rodgers, Assistant
Attorney General, Anchorage, and James E. Cantor, Acting
Attorney General, Juneau, for Intervenor/Cross-Appellee
State of Alaska.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
CARNEY, Justice.
I. INTRODUCTION
An employee continued to work for over ten years after a job-related knee
injury but had multiple surgeries on her injured knee. Over time, her employer made
several permanent partial impairment payments, and she was eventually determined to
be permanently and totally disabled because of the work injury. She began to receive
Social Security disability at about the same time she was classified as permanently and
totally disabled for workers' compensation.
Her employer asked the Alaska Workers' Compensation Board to allow
two offsets to its payment of permanent total disability (PTD) compensation: one related
to Social Security disability benefits and one related to the earlier permanent partial
impairment (PPI) payments. The Board established a Social Security offset and
permitted the employer to deduct the amount of previously paid PPI (adjusted for
inflation).
The employee appealed to the Alaska Workers' Compensation Appeals
Commission, arguing that the Board had improperly applied one of its regulations in
allowing the PPI offset and had incorrectly calculated the amount of the Social Security
offset. She also brought a civil suit against the State challenging the validity of the
regulation. The State intervened in the Commission appeal; the lawsuit was dismissed.
-2- 7192
----------------------- Page 3-----------------------
The Commission reversed the Board's calculation of the Social Security offset and
affirmed the Board's order permitting the PPI offset. The employer appealed the
Commission's Social Security offset decision to this court, and the employee cross-
appealed the PPI offset. We affirm in part and reverse in part.
II. FACTS AND PROCEEDINGS
PamelaDarrowworkedforAlaskaAirlines attheFairbanks airportin 1996.
While working, she suffered a knee injury that required multiple surgeries and ultimately
led to her becoming permanently and totally disabled. Darrow held other jobs in the
years following the 1996 injury, and Alaska Airlines paid her temporary total disability
(TTD) during times she was unable to work because of her injury. Alaska Airlines also
1
made four payments for PPI for a total of $40,500. The last payment was made in 2005.
In 2012 the Social Security Administration decided Darrow met its
standards for disability related to her knee, found her disabled as of December 2010, and
determined that her first month of eligibility for benefits was June 2011. In January 2013
Darrow filed a written workers' compensation claim for PTD benefits and an adjustment
2 She was receiving TTD at the time and was in the
of her disability compensation rate.
reemployment process.3
1 PPI is calculated by multiplying the percentage of an injured worker's
permanent impairment by a fixed amount. AS 23.30.190(a). At the time of Darrow's
injury, the fixed amount was $135,000. Former AS 23.30.190(a) (1996). Using the
medical reference named in the statute, Darrow's doctor ultimately rated Darrow as
having a 30% whole person impairment.
2 When a worker is permanently and totally disabled, AS 23.30.220(a)(10)
permits the Board to base compensation on a wage rate the employee could earn during
the period of disability rather than what she earned before the injury.
3 The reemployment process, which helps to prepare an employee to return
(continued...)
-3- 7192
----------------------- Page 4-----------------------
AlaskaAirlines initially objectedtoher reclassification, but later agreedshe
was permanently and totally disabled. It objected to the compensation rate adjustment
and noted it might be entitled to an offset for Darrow's Social Security disability (SSDI)
4 Alaska Airlines later petitioned the Board to allow it two
under AS 23.30.225(b).
offsets: one for SSDI and another one, pursuant to AS 23.30.180, for the PPI it had paid
earlier.5
During Darrow's 2014 deposition Alaska Airlines learned that she had also
been working for the State of Alaska at the time of her injury, which affected her
compensation rate.6 The parties later entered into a partial settlement in which they
agreed that: (1) Darrow's "average weekly wage" when the injury occurred was
$668.98, rather than $270 as the adjuster had initially calculated;7 (2) she became
3 (...continued)
to work in a different job when she can no longer return to her former one, is set out in
AS 23.30.041.
4 AlaskaStatute23.30.225(b) authorizes anoffset to an employer's disability
payments when an employee gets both workers' compensation and SSDI for the same
injury.
5 Alaska Statute 23.30.180 provides in part, "If a permanent partial disability
award has been made before a permanent total disability determination, permanent total
disability benefits must be reduced by the amount of the permanent partial disability
award, adjusted for inflation, in a manner determined by the board."
6 Pursuant to AS 23.30.220(a)(7), "when the employee is working under
concurrent contracts with two or more employers, the employee's earnings from all
employers is considered as if earned from the employer liable for compensation."
7 The partial settlement indicated that the average weekly wage was
"computed under the 1996 version of AS 23.30.220(a)(4)(A)" and that the initial
calculation "did not take into account" Darrow's concurrent employment with the State.
No records were available to show how the adjuster at the onset of the case determined
(continued...)
-4- 7192
----------------------- Page 5-----------------------
disabled for purposes of the Alaska Workers' Compensation Act (Act) on October 8,
2012; (3) Alaska Airlines would pay Darrow an additional $15,000 related to penalties
and interest "in satisfaction of all claims prior to March 8, 2012"; and (4) Darrow's
attorney would receive "minimum statutory fees on all previously disputed benefits."
They listed four unresolved issues in the partial settlement: one related to the Board's
exerciseofdiscretion under AS23.30.220(a)(10) to determineawageratefor calculating
8 one regarding the percentage of PTD that could be withheld for
Darrow's PTD amount,
any overpayment, and the two raised in this appeal.
The Board held a hearing in August 2014; because the contested issues
were primarily legal, no witnesses testified. Darrow argued that, contrary to Alaska
Airlines' assertion, AS 23.30.180 did not permit Alaska Airlines to offset the amount of
PPI it had previously paid her because the statute authorized an offset for permanent
9 Although aBoardregulation
partial disability rather thanpermanent partial impairment.
7 (...continued)
the average weekly wage. The applicable subsections of the 1996 version of
AS 23.30.220(a) used the phrases gross weeklyearnings and spendableweeklywage, see
former AS 23.30.220(a) (1996), but the parties referred to the average weekly wage in
the partial settlement.
8 Alaska Statute 23.30.220(a)(10) permits the Board to "determine gross
weekly earnings by considering the nature of the employee's work, work history, and
resulting disability" when an employee is PTD and the Board decides that the amount
of gross weekly earnings under other statutory subsections "does not fairly reflect the
employee's earnings during the period of disability." The amount of compensation is
tied to an employee's gross weekly earnings. AS 23.30.175, .180, .185, .200, .220(a).
Alaska Airlines later agreed with Darrow's calculation of $1,390 as her adjusted average
weekly wage under subsection .220(a)(10). Counsel told the Board the figure was based
on a vocational expert's report.
9 Compare AS 23.30.190(a) (providing for compensation "[i]n case of
(continued...)
-5- 7192
----------------------- Page 6-----------------------
provided that "[f]or purposes of (b) of this section and AS 23.30.180, permanent partial
disability benefits include permanent partial impairment benefits paid under
10 Darrow contended the regulation was against legislative intent. She
AS 23.30.190,"
asked the Board to adopt the reasoning of Miller v. Municipality of Anchorage, in which
the Board based an offset on the worker's adjusted weekly wage,11 when calculating the
SSDI offset. Under Darrow's analysis, Alaska Airlines would not be entitled to an SSDI
offset because the offset calculation resulted in a negative number.
Alaska Airlines argued first that it was entitled to an SSDI offset based on
Darrow's actual wages in 1996 rather than the amount it had agreed to as an adjusted
wage under AS 23.30.220(a)(10). It contended that the statement in Underwater
Construction, Inc. v. Shirley that the phrase average weekly wages in AS 23.30.225(b)
12 meant that only
was "the same as 'gross weekly earnings' in AS 23.30.220(a)(1)"
AS 23.30.220(a)(1) could be used to establish gross weekly earnings. Alaska Airlines
maintained that the purpose of AS 23.30.225 was to save the employer money and that
the way to effectuate this purpose was to calculate the offset using Darrow's actual 1996
9 (...continued)
impairment partial in character but permanent in quality, and not resulting in permanent
total disability"), with AS 23.30.180(a) (requiring reduction of PTD by "the amount of
the permanent partial disability award, adjusted for inflation").
10 8 Alaska Administrative Code (AAC) 45.134(c) (2011). 8 AAC 45.134(b)
provides, "In accordance with AS 23.30.155(j), the employer may reduce permanent
total disability benefits to recover permanent partial disability benefits previously paid
by the employer for the same injury."
11 AWCB Dec. No. 13-0099 at 27, 2013 WL 4508816, at *20 (Aug. 20,
2103).
12 884 P.2d 150, 154 (Alaska 1994).
-6- 7192
----------------------- Page 7-----------------------
wage, even though Darrow would get less money in combined SSDI and PTD than she
13
would get in PTD alone under this proposal.
Alaska Airlines acknowledged that AS 23.30.180provided for an offset for
permanent partial disability (PPD) rather than PPI. But it argued that in enacting
AS 23.30.180, the legislature intended "to avoid double payment for injuries" that cause
first a permanent impairment and later a permanent total disability. Alaska Airlines
pointed out that AS 23.30.190(a), the statute authorizing PPI, directs payment of PPI
only when the partial impairment does not "result[] in permanent and total disability."
It argued that if an employee was paid PPI and later became permanently and totally
disabled, the employer should get a credit for the previously paid PPI as an advance
payment of PTD. Alaska Airlines cited several Board decisions that allowed an offset
for PPI when a claimant received PTD, and maintained that the Board's regulation
"equat[ing] permanent and partial disability with permanent and partial impairment"
required the Board to consider the terms synonymous.
In its decision the Board adopted the approach used in Miller, but its
application of Miller did not give Darrow the outcome she wanted.14 Instead, the
Board's result when it calculated the SSDI offset was the same as Alaska Airlines'
proposal. When it turned to the PPI offset, the Board referred to the legislative history
of the 1988 amendments to the Act that replaced permanent partial disability with
permanent partial impairment. It also quoted from Larson's Workers' Compensation
13 Under Alaska Airlines' calculation of the SSDI offset, Darrow would
receive $535.18 a week in combined SSDI and PTD instead of $668.98 in PTD alone.
14 In applying Miller, the Board limited Darrow's adjusted wages under
AS 23.30.220(a)(10) to $668.90. As the Commission pointed out, this was erroneous.
-7- 7192
----------------------- Page 8-----------------------
----------------------- Page 9-----------------------
18
SSDI offset, even though its analysis was somewhat different from hers. Under the
Commission's analysis, the average weekly wage the parties agreed to under
AS 23.30.220(a)(10) was the average weekly wage to be used in calculating the offset.
It noted Alaska Airlines' argument that the statutory language of AS 23.30.225(b) said
"average weekly wages at the time of injury." But it interpreted the legislature's 1995
19 to include wages calculated under any subsection of
amendment of AS 23.30.220(a)
AS 23.30.220(a), including subsection .220(a)(10), within the definition of average
weekly wages under AS 23.30.225(a). The Commission thought that to interpret the
statute otherwise would lead to an unfair result: Darrow would receive less in combined
SSDI and PTD than she would in PTD alone. The Commission observed that the
statutory language permitted an offset, but that Alaska Airlines' argument would result
in a reduction of total benefits.
Next the Commission decided that Darrow's PPI did not now meet the
terms of AS 23.30.190(a) - "impairment partial in character but permanent in quality,
and not resulting in permanent total disability" - and thus the earlier PPI payments were
effectively an advance payment of PTD. It allowed Alaska Airlines to offset the PPI
amountunder AS23.30.155(j),20 andordered that "AlaskaAirlinesis entitled to withhold
20% of [Darrow's] permanent total disability payments, without regard to AS 23.30.180
18 The parties also disputed howtheBoardshould apply the maximumbenefit
cap, but neither party has raised that issue before us. We therefore do not address it.
19 This amendment added subsection .220(a)(10) and allowed the Board
discretion to vary gross weekly earnings when an employee was eligible for PTD.
Ch. 75, § 9, SLA 1995.
20 Alaska Statute 23.30.155(j) permits an employer to offset overpayments or
advance payments "by withholding up to 20 percent . . . of unpaid installments of
compensation."
-9- 7192
----------------------- Page 10-----------------------
----------------------- Page 11-----------------------
----------------------- Page 12-----------------------
----------------------- Page 13-----------------------
33
computing compensation." We noted that even though the legislature had changed the
language of AS 23.30.220 in 1983, the method used to calculate a weekly wage rate in
34 From this we
the 1977 and 1983 versions of the statute remained "very similar."
concluded that average weekly wages in AS 23.30.225(b) was "the same as 'gross
weekly earnings' in AS 23.30.220(a)(1)," the subsection used to calculate the
employee's compensation in that case.35
Alaska Airlines asserts that AS 23.30.225(b)'s use of the phrase at the time
of injury only permits the use of Darrow's income from 1996, the year of her injury.
This argument ignores the use of the same phrase in AS 23.30.220, which currently
provides that compensation is calculated "on the basis of an employee's spendable
weekly wage at the time of injury."36 (Emphasis added.) In spite of this language,
AS 23.30.220(a)(10) allows the Board to set a different wage rate for certain workers
who are permanently and totally disabled.
Historically AS 23.30.220 has permitted the Board some discretion in
setting the wage used as a base for compensation calculation. When AS 23.30.225(b)
was added to the Act in 1977, for example, former AS 23.30.220 permitted the Board to
set a worker's average weekly wages at the time of injury by considering wages for
33 Id. at 153 (quoting former AS 23.30.220 (1977)).
34 Id. at 153-54 (quoting former AS 23.30.220(2) (1977) and former
AS 23.30.220(a)(1) (1983)).
35 Id. at 154. We also observed that the version of AS 23.30.220 in effect
when Shirley was injured was unconstitutional. See id. at 151 n.2 (citing Gilmore v.
Alaska Workers' Comp. Bd., 882 P.2d 922 (Alaska 1994)).
36 Spendable weekly wages are based on gross weekly earnings and serve as
the basis for calculating compensation under the Act. See AS 23.30.220(a).
AS 23.30.220(a)(10) allows the Board to vary an employee's gross weekly earnings
when an employee is PTD, which changes the amount of compensation.
-13- 7192
----------------------- Page 14-----------------------
----------------------- Page 15-----------------------
----------------------- Page 16-----------------------
----------------------- Page 17-----------------------
----------------------- Page 18-----------------------
----------------------- Page 19-----------------------
----------------------- Page 20-----------------------
----------------------- Page 21-----------------------
----------------------- Page 22-----------------------
AS 23.30.190(a) and AS 23.30.155(j) and decided that Alaska Airlines could recover the
PPI as an overpayment of PTD "without regard to AS 23.30.180 and without regard to
8 AAC [45].134." It did not mention the additional $11,338.
Darrow argues that the Commission misinterpreted the Act by allowing
Alaska Airlines to offset the PPI it had previously paid her against her PTD award. Her
argument is based on statutory language: AS 23.30.180(a) requires an offset when "a
permanent partial disability award has been made before a permanent total disability
determination" (emphasis added) - not a permanent partial impairment award - yet
permanent partial disability as a benefit was removed from the Act in 1988. 69 Darrow
contends that disability and impairment are distinct concepts. She points out that a
person may be disabled from working without having a permanent impairment,70 and
conversely, a person who has a permanent impairment may not be disabled from
working, as illustrated by Darrow herself. Darrow maintains that the Board correctly
recognized that PPI was intended to compensate for a separate loss related to a physical
harm, rather than wage loss from an injury, which would be a disability benefit.
Darrow points to a different statutory subsection, AS 23.30.041(k), which
concernsanemployee's eligibility for reemployment benefits,toshowthatthelegislature
understood that PPD and PPI are in fact different. In that subsection the legislature
explicitly differentiated between PPD and PPI.71 She concludes that AS 23.30.180 does
69 Ch. 79, § 34, SLA 1988.
70 For example, in Rydwell v. Anchorage School District , 864 P.2d 526, 529-
30 (Alaska 1993), the parties agreed the injured worker could not return to her former
job even though she had a 0% impairment rating.
71 Alaska Statute 23.30.041(k) provides in part, "If permanent partial
disability or permanent partial impairment benefits have been paid in a lump sum before
(continued...)
-22- 7192
----------------------- Page 23-----------------------
not authorize an offset against her PTD for PPI. Darrow argues that the Commission's
construction of AS 23.30.190 could permit an employer a double recovery of PPI when
AS 23.30.041(k) had been used to suspend benefits. Both Darrow and Alaska Airlines
currently take the position that permanent partial disability in AS 23.30.180(a) refers to
the permanent partial benefit that existed before the 1988 statutory amendments.
AlaskaAirlines asks us toaffirmtheCommission's interpretation oftheAct
allowing it to recoup PPI under AS 23.30.190(a) and .155(j). Alaska Airlines argues that
the 1988 addition of the offset provision to subsection .180(a) "only . . . related to
injuries occurring prior to the statutory changes . . . which changed permanent partial
disability benefits to permanent partial impairment benefits." Therefore, it continues,
after the 1988 amendments to the Act, "neither the credit provision of § .180 nor the
board's regulation in 8 AAC 45.134(c) is required to address recovery of PPI paid when
an employee is rendered permanently and totally disabled." It does not mention the
Board's adjustment of the PPI amount for inflation or the Commission's failure to
address it.
The State supports the Commission's interpretation of the statute, arguing
that Darrow "is not entitled to PPI benefits for her knee injury because her impairment
resulted in permanent total disability." The State relies on the plain meaning of
AS 23.30.190(a) - which refers to PPI as not resulting in permanent total disability -
and the common meaning of overpayment, but also maintains that the Board's regulation
is consistent with both AS 23.30.180 and .190 and "harmonizes the two statutes." It
contends that the concepts of disability and impairment are distinct but related, as shown
71 (...continued)
the employee requested or was found eligible for reemployment benefits, payment of
benefits under this subsection is suspended until permanent partial disability or
permanent partial impairment benefits would have ceased . . . . "
-23- 7192
----------------------- Page 24-----------------------
by language in AS 23.30.180(a) that classifies a worker who suffers certain impairments
as presumptively permanently and totally disabled. It argues that not requiring an offset
would overcompensate Darrow. At oral argument before us the State postulated that,
because both statutes took effect on the same date, the statutory language in
AS 23.30.180(a) was a drafting error and that the legislature meant to use impairment
rather than disability in the statutory language.
As noted, the Commission's decision relied solely on AS 23.30.190(a) and
AS 23.30.155(j) to permit Alaska Airlines' recovery of previously paid PPI and failed
to explore the meaning of AS 23.30.180(a) and its interaction with AS 23.30.190(a). The
Commission effectively wrote out of the statute AS 23.30.180(a)'s provision for
recovery of previously paid PPD by saying that "Alaska Airlines is entitled to withhold
20% of [Darrow's] permanent total disability payments, without regard to AS 23.30.180
and without regard to 8 AAC [45].134."
Alaska Airlines asks us to ignore AS 23.30.180(a), the Board's regulation,
and the Board's decision applying that statute and regulation, narrowing its focus to the
statutory subsections relied on by the Commission. Although we review the
72 when construing a statute, "we must,
Commission's decision, not the Board's,
whenever possible, interpret each part or section of a statute with every other part or
section, so as to create a harmonious whole."73 "When a statute or regulation is part of
a larger framework or regulatory scheme, even a seemingly unambiguous statute must
72 Humphrey v. Lowe's Home Improvement Warehouse, Inc. , 337 P.3d 1174,
1178 (Alaska 2014) (citing Shehata v. Salvation Army , 225 P.3d 1106, 1113 (Alaska
2010)).
73 State, Dep't of Commerce, Cmty. &Econ. Dev., Div. of Ins. v. Progressive
Cas. Ins. Co., 165 P.3d 624, 629 (Alaska 2007) (quoting Kodiak Island Borough v.
Exxon Corp., 991 P.2d 757, 761 (Alaska 1999)).
-24- 7192
----------------------- Page 25-----------------------
----------------------- Page 26-----------------------
----------------------- Page 27-----------------------
----------------------- Page 28-----------------------
----------------------- Page 29-----------------------
----------------------- Page 30-----------------------
----------------------- Page 31-----------------------
----------------------- Page 32-----------------------
----------------------- Page 33-----------------------
103
inconsistent with those definitions. The separation of powers doctrine "prohibits this
104
court from enacting legislation or redrafting defective statutes."
When the legislature
105 The statutory language in
makes a drafting error, we do not rewrite the statute.
AS 23.30.180(a) does not authorize an employer to reduce a PTD award when an
employee has previously received PPI. Alaska Statute 23.30.180(a) authorizes recovery
of previously paid permanent partial disability, not impairment, benefits. The
Commission's construction of AS 23.30.190(a) fails to interpret that subsection in the
context of the entire Act, including AS 23.30.180(a), and essentially eliminates the
Board's regulation. We therefore reverse the Commission's decision.
C. 8 AAC 45.134(c) Is Invalid Because It Is Inconsistent With The Act.
Darrow's cross-appeal asks us to consider the validity of 8 AAC45.134(c),
which the Board applied to authorize Alaska Airlines' recovery of previously paid PPI
and to increase the amount Alaska Airlines was entitled to recover for the PPI by
adjusting for inflation. Alaska Airlines does not directly address the validity of the
regulation, arguing instead that its recovery of the overpayment does not rely on the
regulation. The State agreed with Alaska Airlines that under the Commission's
construction of the statute, the regulation is not needed to recover previously paid PPI.
But neither Alaska Airlines nor the State addressed whether PPI should be adjusted for
inflation, as permitted by AS 23.30.180(a) and 8 AAC 45.134(c) and ordered by the
Board. And the State did not discuss why the Board would have adopted this regulation
103 262 P.3d 593, 597-98 (Alaska 2011).
104 State v. Campbell , 536 P.2d 105, 111 (Alaska 1975) (citing Alaska Const.
art. II, § 1, art. IV, § 1), overruled on other grounds by Kimoktoak v. State , 584 P.2d 25
(Alaska 1978).
105 Alyeska Pipeline Serv. Co., 262 P.3d at 597-98.
-33- 7192
----------------------- Page 34-----------------------
if the Commission's construction of the statute were correct. The State argues that the
regulation's validity is not properly before us because the superior court case was
dismissed and the Commission determined it did not have jurisdiction to decide this
issue. It concludes that "no ruling on the regulation's validity exists to support this
Court's appellate jurisdiction."
Alaska Statute 23.30.129(a) gives a party the right to appeal a decision by
the Commission to this court rather than the superior court. This is precisely the posture
of the case before us; we therefore have jurisdiction. The question of the regulation's
validity may not technically be ripe for review because the Commission correctly
decided it lacked jurisdiction to determine a regulation's validity and, according to the
106 But the parties briefed the merits of this
State, the superior court case was dismissed.
issue before the Commission and this court, and our construction of the relevant statutes
leaves no question as to the validity of 8 AAC 45.134 (c).
Because Darrow does not challenge whether the regulation was properly
promulgated, we consider only "whether the regulation is consistent with and reasonably
necessary to carry out the purposes of the statutory provisions" and "whether the
regulation is reasonable and not arbitrary."107 "We exercise our independent judgment
in determining the validity of an administrative regulation . . . ."108 A regulation that
106 Cf. Nelson v. Municipality of Anchorage , 267 P.3d 636, 644 (Alaska 2011)
(deciding that as-applied constitutional challenge was not ripe because claim had not
been litigated before Board or superior court).
107 Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971); see also Lauth v.
State, 12 P.3d 181, 184 (Alaska 2000).
108 Lauth, 12 P.3d at 184.
-34- 7192
----------------------- Page 35-----------------------
109
"differs substantively from the clear language of the statute" is invalid. Here
AS23.30.180(a) specifies thatan employer can reducepermanent totaldisability benefits
by the amount of previously paid permanent partial disability benefits, adjusted for
inflation. While the State advances some policy arguments in support of the regulation,
110
such a policy decision is for the legislature rather than for the Board or this court.
Becausetheregulation effectively rewrites AS23.30.180(a), substituting impairment for
disability, 8 AAC 45.134 (c) is not valid.
V. CONCLUSION
We AFFIRM that part of the Commission's decision reversing the Board's
calculation of the Social Security disability offset and REVERSE that part of the
Commission's decision permitting an offset for permanent partial impairment benefits.
WethereforeREMANDthis matter to theCommission for furtherproceedingsconsistent
with this opinion.
109 Muller v. BP Expl. (Alaska) Inc. , 923 P.2d 783, 792 n.9 (Alaska 1996); see
also Madison v. Alaska Dep't of Fish & Game , 696 P.2d 168, 178 (Alaska 1985)
(holding that agency regulation was invalid because it unduly restricted subsistence
hunting, contrary to legislative intent).
110 Fairbanks N. Star Borough Sch. Dist. v. NEA-Alaska, Inc., 817 P.2d 923,
926 (Alaska 1991).
-35- 7192
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
