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Irvine v. Glacier General Construction (8/6/99) sp-5151
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.
THE SUPREME COURT OF THE STATE OF ALASKA
TOM IRVINE, )
) Supreme Court No. S-8347
) Superior Court No.
v. ) 3AN-96-9394 CI
GLACIER GENERAL CONSTRUCTION, ) O P I N I O N
and INDUSTRIAL INDEMNITY )
COMPANY OF ALASKA, )
Appellees. ) [No. 5151 - August 6, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sigurd E. Murphy, Judge pro tem.
Appearances: William J. Soule, Law Office of
William J. Soule, Anchorage, for Appellant. Mark L. Figura, Rose
& Figura, Anchorage, for Appellees.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Thomas Irvine appeals the denial of his claim for
reemployment benefits by the Alaska Workers' Compensation Board
(Board), arguing that the Board erred in failing to credit the
hearing testimony of his physician, Dr. Shirley Fraser, and in
deferring instead to the findings of its Rehabilitation Benefits
Administrator (RBA), who did not consider Dr. Fraser's opinion. We
agree that under AS 23.30.041(e) the RBA had a duty to consider the
views of Irvine's designated physician and that, absent such
consideration, the Board erred in deferring to the RBA's findings.
We nevertheless conclude that this error is harmless, because the
record conclusively establishes that Irvine would not have
prevailed even if the RBA had considered Dr. Fraser's opinions.
II. FACTS AND PROCEEDINGS
Thomas Irvine started to work for Glacier General
Construction (Glacier Construction) in January 1994 as a
construction estimator and superintendent. In the fall of that
year, several accidents at Irvine's work site caused injuries to
his lower back and aggravated preexisting injuries in his back and
neck. Initially, Irvine saw Drs. Michael James and Ed Voke
regarding his lower back and Dr. Fraser only for his neck. Later,
in January 1996, Irvine decided to seek treatment with Dr. Fraser
for his lower back injuries as well, because he felt that Drs.
James and Voke did not have as good an understanding of his
Irvine applied to the Board for vocational rehabilitation
benefits under AS 23.30.041(c). The RBA selected Elisa Conley of
Northern Rehabilitation Services to perform an evaluation and to
submit a recommendation concerning Irvine's eligibility to receive
Conley consulted with Drs. Voke and James; she also
considered an independent medical evaluation prepared by Dr. Eric
Carlsen. These doctors concurred that Irvine was ineligible for
benefits because he could perform a number of jobs that were
classified under the United States Department of Labor's "Selected
Characteristics of Occupations Defined in the Dictionary of
Occupational Titles"(SCODDOT) as equivalent to those jobs that he
had held during the ten years preceding his 1994 injuries.
Though Irvine designated Dr. Fraser as a treating
physician and specifically requested Conley to contact Dr. Fraser,
Conley declined to do so, evidently because she considered Dr. Voke
to be primarily in charge of treating Irvine's 1994 injuries.
Based on Irvine's work history and on the opinions of
Drs. Voke, James, and Carlsen, Conley reported to the RBA that she
had determined that Irvine was not eligible for vocational
rehabilitation benefits. RBA designee Mickey Andrew accepted
Conley's report and issued a formal decision denying Irvine's
application for reemployment benefits.
Irvine appealed to the Board, contending that Conley
should have based her evaluation exclusively on the opinion of the
doctor he had designated as his treating physician -- Dr. Fraser.
At a hearing on Irvine's appeal, the Board considered testimony
from both Conley and Dr. Fraser. Conley testified consistently
with her report and indicated that she did not believe it necessary
for her to consult with Dr. Fraser. Dr. Fraser testified that as
a result of his 1994 injuries, Irvine was totally disabled and was
incapable of holding any gainful employment.
The Board concluded that Irvine had no right to dictate
which physicians Conley was to rely upon to evaluate his benefits
claim and that Conley had acted within her discretion in relying on
the opinions of Drs. James, Voke, and Carlsen without seeking, much
less considering, any evaluation by Dr. Fraser. Correspondingly,
the Board found no abuse of discretion in the RBA's approval of
Conley's recommendation to deny benefits. The Board also noted
that Dr. Fraser's testimony at the hearing would not suffice to
support Irvine's claim in any event, since Dr. Fraser did not rely
on the SCODDOT standards.
Irvine appealed the Board's ruling to the superior court,
which affirmed, concluding, as had the Board, that in preparing her
evaluation, Conley was not required to consult with Dr. Fraser:
"The RBA and the Board have the authority to determine which
physicians to rely upon in assessing Irvine's eligibility for
reemployment benefits." After noting that the Board properly
rejected Dr. Fraser's hearing testimony because the doctor did not
use the SCODDOT listings, the court concluded that substantial
evidence supported the Board's decision.
III. DISCUSSION [Fn. 1]
Alaska law provides that an employee who suffers a
compensable injury that may permanently preclude return to the
employee's occupation at the time of injury may apply to the RBA
for reemployment benefits to obtain retraining in a new occupation.
[Fn. 2] When an employee applies for benefits, the RBA selects a
rehabilitation specialist to perform an eligibility evaluation and
prepare a report. [Fn. 3]
Under AS 23.30.041(d), the RBA then makes a determination
as to eligibility based solely on the evaluator's report and
informs the employee and employer of the decision. [Fn. 4] Either
party may seek review of the RBA's decision by requesting a hearing
before the Board under AS 23.30.110. [Fn. 5] The Board reviews the
RBA's decision for abuse of discretion. [Fn. 6] Both the employer
and the employee are entitled to "present evidence in respect to
the claim"at the hearing. [Fn. 7]
Under AS 23.30.041(e), the injured employee becomes
eligible for benefits upon the employee's written request and by
having a physician predict that the employee will have permanent
physical capacities that are less than the physical demands of the
employee's job. [Fn. 8] For purposes of determining "the physical
demands of the employee's job,"subsection (e) adopts the job
descriptions set out in SCODDOT and considers not just the
employee's job at the time of injury, but also "other jobs that
exist in the labor market that the employee has held or received
training for within 10 years before the injury or that the employee
has held following the injury for a period long enough to obtain
the skills to compete in the labor market . . . ."[Fn. 9]
On appeal, Irvine faults the evaluator, Conley, for
failing to honor his request to consider the opinion of Dr. Fraser
before making her initial eligibility evaluation. Irvine maintains
that AS 23.30.041(e) gives applicants the right to choose the
physician whom the RBA evaluator must consult for purposes of
determining eligibility; Irvine further maintains that the
evaluator is bound by the designated physician's prediction. In
advancing this argument, Irvine relies on the language in
subsection (e) providing that an injured employee who applies for
reemployment benefits "shall be eligible"to receive benefits "by
having a physician predict"the employee's inability to continue in
the occupation the employee was performing at the time of injury.
Irvine similarly faults the Board for deferring to the
RBA's decision to deny him benefits and for ignoring Dr. Fraser's
testimony at the evidentiary hearing. Because Dr. Fraser testified
that Irvine "could do no work at all,"Irvine reasons that under
AS 23.30.041(e) the Board was required to find him eligible for
benefits, just as Conley would have been required to find him
eligible had she consulted with Dr. Fraser in performing the
initial eligibility evaluation.
Glacier Construction responds that the Board properly
determined that the RBA did not commit an abuse of discretion in
denying Irvine benefits. Glacier contends that because the RBA's
decision is governed by the "abuse of discretion"standard, [Fn.
11] the RBA and the RBA's designated evaluator necessarily have
discretion to determine how to perform an eligibility evaluation.
Hence, in Glacier's view, Conley was free to choose which potential
sources of medical information to consider in evaluating Irvine's
eligibility for benefits.
Glacier's position comports with the Board's view of the
applicable law. In affirming the RBA's decision, the Board stated:
[W]e find we would exceed our statutory
authority if we interpreted AS 23.30.041(e) as requiring the RBA
Designee to get and rely only upon Dr. Fraser's prediction. We
find the RBA is free to choose which physician's opinion she will
rely upon. We believe a corollary of this principle is that the
RBA Designee may also decide from which physician she will seek
opinions. We do not believe it is necessary for the RBA Designee
to seek opinions from all physicians that have seen or treated
But in our view, neither Irvine nor Glacier correctly
interprets the statutory requirements governing the evaluation of
an applicant's eligibility for benefits. Though we believe that
AS 23.30.041(d) vests the RBA's designated evaluator with
considerable discretion in performing an eligibility evaluation and
does not confer eligibility automatically to an applicant who
offers a favorable medical opinion, we also believe that
AS 23.30.041(e) allows the applicant to designate a treating
physician who must be consulted, and whose views must be
considered, in the evaluation process.
In providing that "[a]n employee shall be eligible for
benefits . . . by having a physician predict that the employee will
have permanent physical capacities that are less than the physical
demands of the employee's job,"AS 23.30.041(e) strongly suggests
that the employee who applies for benefits is entitled to designate
a physician to support the application. The clause "by having a
physician predict"refers back to the "employee"; the employee is
the agent in this evidentiary process. Accordingly, the language
puts the prerogative with the employee in the first instance.
In this case, Conley considered an evaluation performed
by a doctor chosen by Glacier Construction but disregarded Irvine's
selection of Dr. Fraser as his primary physician and instead
consulted with two other doctors who had treated Irvine's injuries
-- Drs. Voke and James. To permit Conley to disregard Irvine's
choice of medical opinion would deprive Irvine of a choice that
AS 23.30.041(e) apparently meant to give him. This court has
recognized that failing to consider statutorily mandated factors
amounts to an abuse of discretion. [Fn. 12] Because
AS 23.30.041(e) required Conley to consult Dr. Fraser in preparing
Irvine's eligibility evaluation, Conley had no discretion to ignore
the doctor completely. In relying on Conley's flawed report, the
RBA abused its discretion; and in upholding the RBA's decision as
a sound exercise of discretion, the Board committed legal error.
Irvine urges us to go further and make eligibility for
benefits turn exclusively on the favorable recommendation of an
applicant's designated physician. Under Irvine's proposed reading,
subsection (e) would leave neither the RBA nor the Board any
discretion to consider or weigh conflicting medical evidence. The
designated physician's opinion would be binding and the entitlement
to benefits would be virtually automatic.
Irvine recognizes that his proposed interpretation is at
odds with Yahara v. Construction & Rigging, Inc., where we held
that when the Board hears two conflicting medical opinions
concerning eligibility for reemployment benefits, both of which
qualify as substantial evidence, the Board has discretion to favor
either opinion over the other. [Fn. 14] But, relying on the plain
language of AS 23.30.041(e), Irvine argues that we should overrule
Yahara as incorrectly decided, contending that the Board only has
discretion to determine whether someone is a "physician."
We decline Irvine's invitation to overrule Yahara. This
court held in Kirby v. Alaska Treatment Center that the presumption
of compensability established in AS 23.30.120 extends to claims for
vocational rehabilitation. [Fn. 15] But this statutory presumption
is not irrebuttable. [Fn. 16] Rather, only where the employer
fails to produce substantial evidence does the presumption compel
a decision favoring the employee. [Fn. 17] Moreover, as we have
already noted, the provisions of AS 23.30.041 governing
reemployment benefits expressly grant the RBA discretion in
determining applicants' eligibility for reemployment benefits; [Fn.
18] and they also vest employers and employees alike with the right
to present evidence to and have their arguments considered by the
Board. [Fn. 19] Our review of these provisions convinces us that
AS 23.30.041(e) cannot properly be read to hinge the right to
reemployment benefits entirely on the prediction of the applicant's
designated physician. We therefore conclude that
the Board erred in deferring to the RBA's decision and in failing
to recognize Irvine's right to have Dr. Fraser's views considered
during the eligibility evaluation. But, in doing so, we decline to
hold that AS 23.30.041(e) entitled Irvine to benefits based solely
on Dr. Fraser's favorable recommendation. Indeed, our review of
the record convinces us that the RBA's failure to consider Dr.
Fraser's views amounted to harmless error.
Under AS 23.30.041(e), an injured employee is entitled to
reemployment benefits by having a physician predict that the
employee will permanently lack the physical capacity to meet "the
physical demands of the employee's job as described in the
[SCODDOT] . . . ."[Fn. 20] This court has consistently enforced
subsection (e)'s requirement that medical opinions concerning
eligibility for reemployment benefits be specifically referenced to
the SCODDOT standards. [Fn. 21]
For instance, in Konecky v. Camco Wireline, Inc., an
injured employee, Konecky, argued that the SCODDOT's job
descriptions were antiquated and unrelated to his job's actual
physical demands, which were much greater than those listed in the
SCODDOT. [Fn. 22] Because Konecky was unable to perform the work
for which he was trained, he argued that the Board should be able
to "depart from the [SCODDOT] description when the facts require
such action."[Fn. 23] We rejected Konecky's argument. [Fn. 24]
While acknowledging that unfairness would result in certain
circumstances, we maintained that the plain language of
AS 23.30.041(e) leaves no room for the suggested departure: "[The
statutory language] is plain and demands that reemployment benefit
eligibility be determined by the [SCODDOT] job descriptions. The
legislature neither expressed nor implied any exceptions."[Fn. 25]
In the present case, although Dr. Fraser testified at the
hearing before the Board that Irvine "could do no work at all,"the
doctor did not couch her opinion in terms of the SCODDOT standards.
In fact, the record establishes beyond question that Dr. Fraser
felt uncomfortable with the SCODDOT standards and would not rely on
them as a basis for evaluating Irvine's physical capacity to
perform work comparable to the job he held when injured. We note,
in particular, Dr. Fraser's response to the Board's questions at
Q So I guess I'm trying to -- can you or
can you not express an opinion about his [Irvine's] ability to work
just based on his low back X-ray?
A Based on his low back? If I had to -- I
think on his low back I would probably -- if he had a normal neck
and head, his low back -- I don't -- it's really hard to get a job
where you can't sit comfortably or can't stand. I think he's
pretty disabled. You know, I don't do these evals. I'm not very
clever at it.
Q Does that mean you're not very
comfortable making that kind of an evaluation?
A I'm not comfortable because I don't do
Q Okay. I guess I can understand that.
Thank you, Dr. Fraser.
Irvine argues that Dr. Fraser's testimony fulfilled the
statute's requirements as a matter of law because her more global
assessment would encompass any job description in the SCODDOT. But
Dr. Fraser's opinion does not satisfy the demands of
AS 23.30.041(e). Moreover, her categorical statement, "I don't do
these [SCODDOT] evals,"makes it clear that it would be futile to
remand this case for a new RBA eligibility evaluation based on
consultation with Dr. Fraser.
Because we conclude that the Board's error was harmless,
we AFFIRM the superior court's judgment.
This case presents questions of statutory interpretation, to
which this court accords de novo review, adopting the rule of law
that is most persuasive in light of precedent, reason, and policy.
See Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996).
See AS 23.30.041(c). The section provides in full:
If an employee suffers a compensable
injury that may permanently preclude an employee's return to the
employee's occupation at the time of injury, the employee or
employer may request an eligibility evaluation for reemployment
benefits. The employee shall request an eligibility evaluation
within 90 days after the employee gives the employer notice of
injury unless the administrator determines the employee has an
unusual and extenuating circumstance that prevents the employee
from making a timely request. The administrator shall, on a
rotating and geographic basis, select a rehabilitation specialist
from the list maintained under (b)(6) of this section to perform
the eligibility evaluation.
See AS 23.30.041(c) & (d).
AS 23.30.041(d) provides:
Within 30 days after the referral by the
administrator, the rehabilitation specialist shall perform the
eligibility evaluation and issue a report of findings. The
administrator may grant up to an additional 30 days for performance
of the eligibility evaluation upon notification of unusual and
extenuating circumstances and the rehabilitation specialist's
request. Within 14 days after receipt of the report from the
rehabilitation specialist, the administrator shall notify the
parties of the employee's eligibility for reemployment preparation
benefits. Within 10 days after the decision, either party may seek
review of the decision by requesting a hearing under AS 23.30.110.
The hearing shall be held within 30 days after it is requested.
The board shall uphold the decision of the administrator except for
abuse of discretion on the administrator's part.
See AS 23.30.041(e). The section reads in full:
An employee shall be eligible for
benefits under this section upon the employee's written request and
by having a physician predict that the employee will have permanent
physical capacities that are less than the physical demands of the
employee's job as described in the United States Department of
Labor's "Selected Characteristics of Occupations Defined in the
Dictionary of Occupational Titles"for
(1) the employee's job at the
time of injury; or
(2) other jobs that exist in
the labor market that the employee has held or received training
for within 10 years before the injury or that the employee has held
following the injury for a period long enough to obtain the skills
to compete in the labor market, according to specific vocational
preparation codes as described in the United States Department of
Labor's "Selected Characteristics of Occupations Defined in the
Dictionary of Occupational Titles."
See McDanold v. McDanold, 718 P.2d 467, 469 (Alaska 1986).
We note that, for similar reasons, the "abuse of discretion"
standard prescribed by AS 23.30.041(d) must yield to the Board's
authority to make de novo determinations under AS 23.30.110 when,
on appeal from an RBA decision granting or denying reemployment
benefits, the parties present relevant evidence to the Board that
the RBA failed to consider. Because the RBA's decision in such
cases would not have been based on all of the relevant evidence
properly before the Board, the Board's deference to the RBA under
the "abuse of discretion"standard would be inappropriate.
Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72
See Kirby v. Alaska Treatment Ctr., 821 P.2d 127, 129 (Alaska
See AS 23.30.041(d).
See id. (providing for a hearing under AS 23.30.110 upon
either party's request in reemployment-benefit cases);
AS 23.30.110(d) (providing that either party may present evidence
in a hearing under AS 23.30.110).
AS 23.30.041(e) (emphasis added).
See, e.g., Konecky v. Camco Wireline, Inc., 920 P.2d 277, 280
(Alaska 1996); Yahara v. Construction & Rigging, Inc., 851 P.2d 69,
73 (Alaska 1993); see also Rydell v. Anchorage Sch. Dist., 864 P.2d
526, 529 (Alaska 1993) (interpreting "permanent impairment"
language of the statute and noting that we require strict
compliance with the express statutory language).
Konecky, 920 P.2d at 280.
See id. at 283.
Id. at 282.