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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wescott v. State, Dept. of Labor (2/18/00) sp-5241

Wescott v. State, Dept. of Labor (2/18/00) sp-5241

     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.


ANTHONY J. WESCOTT,           )
                              )    Supreme Court No. S-8688
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-8494 CI
OF LABOR,                     )    O P I N I O N
             Appellee.        )    [No. 5241 - February 18, 2000] 

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                  Joel H. Bolger, Judge Pro Tem.

          Appearances:  Randall E. Farleigh, Farleigh  &
Shamburek, Anchorage, for Appellant.  Toby N. Steinberger,
Assistant Attorney General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.

          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices. 

          BRYNER, Justice. 

          Anthony Wescott quit his roustabout job at Alaska
Petroleum Contractors, Inc., (APC) because he believed that APC was
unwilling to accommodate his disability, bilateral club feet.  He
applied for unemployment pay, but the Department of Labor denied
him waiting-week benefits, finding that he had quit suitable work
without good cause.  Under AS 23.30.385(b), when the department
decides questions of work suitability it must consider not just the
claimant's physical ability to perform the work but also the degree
of risk that the work would pose to the claimant's health.  In
deciding that Wescott's work was suitable, the department
emphasized a medical release, which indicated that he was
physically capable of doing roustabout work; but the department
overlooked other medical evidence suggesting that the "wear and
tear"of such work might pose a risk to Wescott's club feet. 
Because the department did not adequately consider risk to
Wescott's health as a factor in determining that his work was
suitable, we remand for reconsideration.  
          Wescott began working for APC in June 1996, starting as
a well service technician and eventually moving into a drilling
roustabout position.  As a drilling roustabout, Wescott had many
duties, including cleaning tanks, helping in drilling rig moves
from one drill site to another, and assisting in rigging trees on-
line.  Despite being born with club feet, Wescott had worked as a
roustabout in Prudhoe Bay for over ten years.
          On November 28, 1996, Wescott took medical leave to have
surgery on one of his feet -- one in a series of operations he had
throughout his lifetime.  Soon after Wescott took leave, and before
his surgery, orthopedic surgeon Dr. Ron Brockman examined him at
the request of the Alaska Division of Vocational Rehabilitation. 
In a report dated December 10, 1996, Dr. Brockman predicted, "This
gentleman is going to have difficult problems with his feet.  I
recommend that he tr[y] to get into an area of employment that is
less physically demanding [than that of a roustabout] and which
requires less standing and walking time." Dr. Brockman also
commented that Wescott would "certainly be capable of performing
the duties of a heavy-equipment operator."
          After the operation, Dr. Bret Mason, Wescott's treating
physician, made a similar recommendation.  Although Dr. Mason
reported on January 16, 1997, that Wescott was "healing nicely"and
would be able to return to work in three or four weeks, the doctor
also warned, "In my opinion, the patient would benefit by pursuing
a job opportunity that does not require prolonged standing,
prolonged walking, especially on hard surfaces." Noting that
Wescott had experience in equipment operation, Dr. Mason
recommended that "it would be in his best interest to pursue and
develop his aptitude in this area . . . .  With the wear and tear
and degenerative condition I found in his left foot, I think this
would give him the best chance of good longevity as a part of the
work force."
          On February 6, Dr. Mason signed a release authorizing
Wescott to return to his roustabout job without restriction as of
February 28.  The next day, February 7, Wescott gave APC a note
informing the company of the release and requesting a position
"[t]hat is not so demanding on my DISABLED CLUB FEET." He enclosed
a resume indicating that he had experience as a heavy-duty
equipment operator, and a letter from Dr. Mason explaining the
disability (evidently a copy of Dr. Mason's January 16 report). 
          APC Human Resources Office employees Christopher Boyle
and Carolyn Swangler met with Wescott that same day to discuss his
request.  They offered him the option of returning to his
roustabout job while waiting for a less demanding permanent
position to open.  They also gave Wescott ergonomic assessment
forms for five different positions -- roustabout, fire watch, well
service technician, vac truck operator, and equipment operator --
explaining that he needed to complete the forms and return them so
that APC could assess whether, given his medical condition, he
would be able to perform in these positions. 
          Wescott opted to return to work as a roustabout the next
month.  On March 6 -- nine weeks after the surgery -- he obtained
from Dr. Mason another release, which confirmed his ability to
return to his roustabout job without restriction.  In his nine-week
postoperative report Dr. Mason wrote, "The patient feels that he is
able to return to his original job position with absolutely no
problems.  Therefore, today, I am going to release him to return to
work full duties, no restrictions." Dr. Mason nonetheless adhered
to his earlier view that roustabout work could be detrimental to
Wescott's condition; in his report the doctor emphasized that even
though Wescott felt that roustabout work was "well within his
capabilities"and wanted to return to his old job, "it would be in
[Wescott's] best interest to pursue more of a position that did not
require standing so long, ambulating on hard or uneven surfaces,
          After Wescott met again with Swangler in APC's Anchorage
office and gave her the March 6 medical release, Swangler indicated
that APC would allow Wescott to return to a drilling roustabout
position.  But Swangler and Wescott also discussed the availability
of less demanding positions.  Swangler indicated that various
positions were open on a temporary basis but that their
availability to Wescott remained uncertain because he had not
returned the completed assessment forms.  But since the available
positions were only temporary, Wescott told Swangler that he would
reject them in any event. 
          Wescott resumed work with APC on March 11 or 12, 1997. 
Upon his return to Prudhoe Bay, APC certified him to work as a
tractor-trailer operator and to handle loaders and forklifts.  Soon
after his return, however, Wescott heard that one of his
supervisors, Rick Nelson, had recently filled four heavy-equipment
operator positions and that Nelson had no intention of ever giving
Wescott such a position.  Although Wescott did not confirm this
information or ascertain whether the four positions had been filled
before his return, he did ask Nelson about the possibility of a job
change.  According to Wescott, Nelson responded that he "wasn't
going to play any favorites."
          On April 22, 1997, while in Anchorage between shifts at
Prudhoe Bay, Wescott called Swangler to say that he did not know
how much longer he could tolerate the pain in his current position
and that he feared further damage to his feet.  Complaining that
Nelson was acting "unprofessionally"in his hiring practices,
Wescott requested an immediate transfer.  Since Wescott was
scheduled to return to work the next day, Swangler suggested that
he talk to Russell Pittman, another APC supervisor at Prudhoe Bay,
and she tried to arrange a meeting.  But Wescott did not pursue
this suggestion.  Instead, he stayed in Anchorage and submitted his
          After resigning, Wescott applied to the Department of
Labor, Division of Employment Security, for unemployment benefits
under the Alaska Employment Security Act. [Fn. 1]  The division
notified Wescott that under AS 23.20.379 and 8 Alaska
Administrative Code (AAC) 85.095 he was disqualified from receiving
benefits for his first six weeks of unemployment -- "waiting week"
benefits -- because he had voluntarily left suitable work without
good cause. Wescott appealed to the division's appeal tribunal. 
The tribunal held an evidentiary hearing and affirmed the
division's decision. Wescott then appealed to the commissioner of
labor, who affirmed the appeal tribunal's decision, adopting its
findings.  The superior court heard Wescott's next appeal and
affirmed the commissioner's ruling.  Wescott now appeals the
superior court's decision. 
     A.   Standard of Review
          When the superior court acts as an intermediate court of
appeal, we independently review the merits of the administrative
determination. [Fn. 2]  Unless the case calls for reliance on
agency expertise, we apply the "substitution of judgment"test to
review questions of law [Fn. 3] and the "substantial evidence"test
to review questions of fact. [Fn. 4]
     B.   Overview of Applicable Law
          Alaska Statute 23.20.379(a) denies "waiting week credit
or benefits"for six weeks if a worker leaves suitable work without
good cause:
               An insured worker is disqualified for
waiting-week credit or benefits for the first week in which the
insured worker is unemployed and for the next five weeks of
unemployment following that week if the insured worker

               (1)  left the insured worker's last
suitable work voluntarily without good cause . . . .

8 AAC 85.095(a) similarly provides that "[a] disqualification under
AS 23.20.379(a) . . . remains in effect for six consecutive weeks
. . . ."
          In discussing this provision, the department's policy
manual [Fn. 5] construes "suitable work"to mean "the worker's
usual occupation or work for which the worker is reasonably fitted
by training, experience, and physical condition."[Fn. 6]  But when
a worker suffers from a disability, being physically capable of
performing a job does not necessarily mean that the worker has
suitable work.  Under the policy manual, even though a worker is
able to perform certain work, that work may be unsuitable if it has
a detrimental effect on the worker's condition:  "If accepting work
is detrimental to the claimant's health, or if the claimant's
health or physical condition prevent[s] the claimant's performing
the work, there is no issue [under the waiting-week
disqualification] statute."[Fn. 7]
          When an existing health problem is obvious, the worker
need not present medical evidence to establish its existence.  In
other cases, the department ordinarily requires the worker to
submit a physician's statement. [Fn. 8]  
          The department interprets the suitable-work requirement
of AS 23.20.379(a) to deny work-week benefits upon proof that a
worker left suitable work and that the departure was without good
cause. [Fn. 9]  Under this interpretation, then, a worker needs
good cause only to quit suitable work; the worker always remains
free to quit unsuitable work.  "There is no disqualification if a
worker leaves unsuitable work."[Fn. 10]
          In contrast, once suitable work is found to exist, the
"good cause"rule applies to the case.  The department defines
"good cause"for leaving suitable work by reference to an
objective, reasonably prudent person standard: 
               Good cause for voluntarily leaving work
under AS 23.20.379(a)(1) includes

               (1)  leaving work for reasons that would
compel a reasonable and prudent person of normal sensitivity,
exercising ordinary common sense, to leave work; the reasons must
be of such gravity that the individual has no reasonable
alternative but to leave work[.][ [Fn. 11]]

          When a worker quits because of health or a physical
condition, the department will find good cause if four conditions
are met: "[(1) t]he conditions of work materially and adversely
affect the physical condition of the worker; [(2) t]he worker's
physical condition compels the leaving; [(3) t]he worker has no
reasonable alternative; and [(4) t]he worker attempts to preserve
the employment relationship."[Fn. 12]  If a worker quits on the
advice of a physician, the department normally finds good cause.
[Fn. 13]
          Alaska Statute 23.20.385(b) requires the department to
consider various factors when it determines whether a worker left
"suitable work"and whether "good cause"exists, chief among them
being "the degree of risk to the claimant's health [and] safety
. . . [and] the claimant's physical fitness for the work."[Fn. 14] 
The worker bears the burden of establishing a lack of suitable work
or the existence of good cause for a voluntary termination. [Fn.
15]  The statutory scheme applies an objective standard,
encompassing any factor "that [would] influence a reasonably
prudent person in the claimant's circumstances."[Fn. 16]
     C.   The Appeal Tribunal and the Commissioner Erred in
Determining that Wescott's Job as a Roustabout Was Suitable Work.
          The hearing officer for the Employment Security Division
Appeal Tribunal found that Wescott's roustabout job was suitable
work.  In entering this finding, the hearing officer relied almost
exclusively on Wescott's medical release, which established his
physical ability to perform roustabout work: 
          In light of Mr. Wescott's full medical
release, without restrictions, the roustabout position was
medically suitable for Mr. Wescott.  The doctor's suggestion that
Mr. Wescott pursue other work in the future, absent specific advice
for him to quit work or immediately change occupations, failed to
show that the roustabout job was unsuitable.
          Wescott challenges this finding, arguing that the hearing
officer failed to consider all of the relevant factors listed in
AS 23.20.385(b).  Specifically, Wescott observes that in focusing
on the medical release that authorized him to return to roustabout
work, the hearing officer considered only one statutory factor --
"physical fitness"-- and neglected to consider a second
significant factor, "the degree of risk to the claimant's health
[and] safety."[Fn. 17]  Wescott argues that the hearing officer
erred in finding that his physician's willingness to release him to
work as a roustabout established that this work was suitable. 
Wescott points out that his physician also advised that it would be
best for him to find a different job.  This advice, Wescott
contends, indicates that roustabout work was unsuitable.  Wescott's
argument is persuasive.  
          As we have already pointed out above, physical ability
does not necessarily establish work-suitability in the case of a
worker with an existing health problem since -- according to the
department's policy manual -- "[i]f accepting work is detrimental
to the claimant's health, or if the claimant's health or physical
condition prevent the claimant's performing the work, there is no
issue under [the waiting-week disqualification] statute."[Fn. 18] 
"Suitability"is thus an inquiry that encompasses more than short-
term physical capability.  A claimant may be "capable"of
performing a particular job and yet be "unsuited"for it.  As we
stated in Lucas v. Anchorage Police & Fire Retirement Board,
"although someone . . . is not well suited for work . . . he [may]
nonetheless [be] capable of performing it."[Fn. 19]  This is a
distinction that the hearing officer in this case failed to
recognize.  To find suitability the hearing officer was required to
consider not only Wescott's "physical fitness"for the job, that
is, whether he was capable of performing roustabout work, but also
any detriment that the work might cause to Wescott's undisputed
physical impairment, club feet. 
          Cases in other jurisdictions support this distinction
between capability and suitability.  For example, in Israel v.
Bally's Park Place, Inc., a closely analogous case, a New Jersey
appellate court reversed the denial of benefits to a casino
employee whose work environment threatened her recovery from
alcoholism. [Fn. 20]  The court held that Israel qualified for
benefits even though her physician had released her back to work.
[Fn. 21]  The court decided that Israel was "not required to show
. . . that her illness . . . prevent[ed] her from performing the
duties of her employment,"[Fn. 22]  but only that "the environment
at her job aggravated her illness or will impair her continued
recovery."[Fn. 23]  Since Israel's therapist expressed concern
that the casino environment was "high risk,"the appellate court
concluded that Israel had met this standard. [Fn. 24]  Although
Israel was undeniably capable of performing her duties, the job was
not suitable for her because it threatened her sobriety and
recovery. [Fn. 25]  
          In finding that the roustabout position was suitable
work, the hearing officer focused on Wescott's medical release to
determine that Wescott was medically capable, i.e., physically fit,
to perform the job.  The hearing officer found that, "in light of
[his] full medical release, without restrictions, the roustabout
position was medically suitable for Mr. Wescott." But the medical
release addressed the issue of Wescott's physical ability to
perform roustabout work, not the risks that this work might pose to
his club feet. [Fn. 26]  In fact, in the nine-week postoperative
report that he prepared contemporaneously with Wescott's medical
release of March 6, 1997, Dr. Mason expressed reservations about
the potential harmful effects that roustabout work might have on
Wescott's congenital condition, emphasizing that "it would be in
[Wescott's] best interest to pursue more of a position that did not
require standing so long, ambulating on hard or uneven surfaces,
          These observations echoed Dr. Mason's first post-
operative report, in which he advised that Wescott "would benefit
by pursuing a job opportunity that does not require prolonged
standing, prolonged walking, especially on hard surfaces. . . .
With the wear and tear and degenerative condition I found in his
left foot, I think that this would give him the best chance of good
longevity as part of the work force." They are reinforced by Dr.
Brockman's independent evaluation, which unequivocally recommended
that Wescott try "to get into an area of employment that is less
physically demanding and which requires less standing and walking
          The hearing officer did not ignore this evidence
entirely, finding that "absent specific advice for [Wescott] to
quit work or immediately change occupations,"Dr. Mason's
"suggestion that Mr. Wescott pursue other work in the future . . .
failed to show that the roustabout job was unsuitable." But in
viewing Dr. Mason's "suggestion"as advice for "the future"and
determining that, as such, it was insufficient to overcome the
doctor's "full medical release, without restrictions,"the hearing
officer confined her consideration to the issue of physical
capacity.  The hearing officer made no separate findings concerning
-- and evidently failed to consider independently -- the risk that
roustabout work might have adverse effects on Wescott's impairment,
thereby rendering the work unsuitable despite his physical ability
to perform it.
          It is immaterial that the hearing officer went on to find
that Wescott lacked good cause to quit his roustabout job.  For as
we have observed, the "good cause"standard -- and its attendant
requirements that a worker have compelling reason to leave work and
exhaust all reasonable alternatives before quitting [Fn. 27] --
attaches only when a worker quits work that is suitable.  A worker
is always free to quit unsuitable work. [Fn. 28]  And in the case
of a worker who suffers from a physical disability, work is
unsuitable when it "is detrimental to the claimant's health."[Fn.
          While the hearing officer's finding on suitability
emphasized that Dr. Mason had not advised Wescott to "quit work or
immediately change occupations,"neither the statute governing
work-suitability [Fn. 30] nor the department's precedent manual
[Fn. 31] requires that a risk of adverse effects be imminent to
render work unsuitable.  
          To the contrary, under AS 23.20.385(b) the hearing
officer was required to evaluate the significance of the risk of
harm that roustabout work posed to Wescott's condition by
objectively inquiring whether "a reasonably prudent person in
[Wescott's] circumstances"would have continued to work as a
roustabout. [Fn. 32]  
          Since the hearing officer failed to apply this standard
in concluding that Wescott's work was suitable, and since the
commissioner adopted the hearing officer's findings as the basis
for his decision affirming the department's denial of work-week
benefits, we must vacate the decision and remand for
reconsideration under the foregoing standard. [Fn. 33]  
          Because the department incorrectly applied the law and
based its decision on an erroneous standard, we REVERSE its
decision and REMAND for reconsideration under the standard set out
in this opinion.


Footnote 1:

     AS 23.20.005-23.20.535.

Footnote 2:

     See Faulk v. Board of Equalization, 934 P.2d 750, 751 n.2
(Alaska 1997).

Footnote 3:

     See State, Dep't of Revenue v. OSG Bulk Ships, Inc., 961 P.2d
399, 403 n.6 (Alaska 1998).

Footnote 4:

     See Municipality of Anchorage, Police & Fire Retirement Bd. v.
Coffey, 893 P.2d 722, 726 (Alaska 1995).   

Footnote 5:

     The Department of Labor maintains a precedent manual
interpreting the provisions of AS 23.20 in accordance with 8 AAC
85.360.  See Alaska Department of Labor, Employment Security
Division, Precedent Manual [hereinafter Precedent Manual].  Since
the department periodically revises and updates the Precedent
Manual, some of the current provisions that relate to Wescott's
case differ slightly from corresponding provisions in effect when
the department and the superior court considered Wescott's case and
when the parties filed their briefs.  We have chosen to rely on the
current Precedent Manual in this opinion because none of its
relevant provisions reflect substantive changes to earlier

Footnote 6:

     Precedent Manual at VL 5-3 (Oct. 1999). 

Footnote 7:

     Id. at SW 235.05-1 (July 1999) (emphasis added). 

Footnote 8:

     See id. at SW 235.05-2 (July 1999).

Footnote 9:

     The Precedent Manual at VL 5-1 provides in part:

          The provisions of AS 23.20.379(a)(1) apply
only in relation to the worker's last work.  It is necessary to

               Did the worker voluntarily leave work? 

               Was the work suitable? and

               Did the worker have good cause for

Precedent Manual at VL 5-1 (June 1999).      

Footnote 10:

     Id. at VL 5-3 (Oct. 1999).

Footnote 11:

     8 AAC 85.095(c); see also Precedent Manual at VL 5-3 (Oct.
1999) ("[1] The underlying  reason for leaving work must be
compelling; and[] [2] [t]he worker must exhaust all reasonable
alternatives before leaving the work.").

Footnote 12:

     Precedent Manual at VL 235.05-1 (Oct. 1999) (citations
omitted) (emphasis added).  Under the good cause requirement,
conditions that have an "adverse affect"on a worker can be
"established only if the conditions of work actually impair the
worker's health, or the worker has a reasonably-founded belief that
the conditions impair the worker's health, or the worker's physical
condition prevents the worker from performing the work." Id. 
(bullets omitted).

Footnote 13:

     But the lack of a medical recommendation is not dispositive
"if other facts show that continued employment was dangerous to the
worker's health or physical condition, and the worker made a
reasonable effort to obtain an adjustment of the work situation
before quitting." Id. at VL 235.05-3 (June 1999) (citation

Footnote 14:

     AS 23.20.385(b) provides:

               In determining whether work is suitable
for a claimant and in determining the existence of good cause for
leaving or refusing work, the department shall . . . consider the
degree of risk to the claimant's health, safety, and morals, the
claimant's physical fitness for the work, the claimant's prior
training, experience, and earnings, the length of the claimant's
unemployment, the prospects for obtaining work at the claimant's
highest skill, the distance of the available work from the
claimant's residence, the prospects for obtaining local work, and
other factors that influence a reasonably prudent person in the
claimant's circumstances.

Footnote 15:

          See Reedy v. M.H. King Co., 920 P.2d 915, 918 (Idaho

Footnote 16:

     AS 23.20.385(b).

Footnote 17:

     AS 23.20.385(b); see supra note 14. 

Footnote 18:

     Precedent Manual at SW 235.05-1 (July 1999) (emphasis added).

Footnote 19:

          960 P.2d 1151, 1157 (Alaska 1998).

Footnote 20:

     See Israel v. Bally's Park Place, Inc., 660 A.2d 1259 (N.J.
Super. App. Div. 1995).

Footnote 21:

     See id. at 1260.

Footnote 22:

     Id. at 1261.

Footnote 23:


Footnote 24:

     See id. at 1260.

Footnote 25:

     Other cases lend further support to the notion that a worker
may be physically capable and yet unsuited for a job.  See Rooney
v. Employment Appeal Bd., 448 N.W.2d 313 (Iowa 1989) (holding that
if working at a bar and liquor store aggravated claimant's
alcoholism, as his nurse advised it would, then he would have good
cause to leave); Kramer v. New Mexico Employment Sec. Div., 845
P.2d 808 (N.M. 1992) (holding that a secretary had good cause to
resign from her secretary position since her doctor indicated that
the job aggravated her pre-existing back condition).

Footnote 26:

     As the precedent manual appropriately cautions, "[a]lthough a
physician's statement is valuable in determining . . . a claimant's
[condition], it is of less value in determining whether a
particular job is detrimental to a claimant's health."[Fn. 34] 
That is because the physician is "usually not familiar with the
conditions of the job itself." See Precedent Manual at SW 235.05-2
(July 1999).

Footnote 27:

     See AS 23.20.379(a)(1); 8 AAC 85.095(c); Precedent Manual at
VL 5-3 to -4 (Oct. 1999). 

Footnote 28:

     See id. at VL 5-3 (Oct. 1999). 

Footnote 29:

     See id. at SW 235.25-1 (July 1999).

Footnote 30:

     AS 23.20.385(b) (quoted supra, note 14).

Footnote 31:

     See Precedent Manual at SW 235.25-1.

Footnote 32:

     See AS 23.20.385(b) (quoted supra, note 14).  To apply a more
stringent test would, in our view, discourage workers with
disabilities from accepting challenging employment by penalizing
them for attempting work that ultimately proves to have detrimental
effects.  We note that courts in other jurisdictions have expressed
reluctance to penalize employees for accepting jobs that proved to
be unsuitable for them.  See Krulla v. Barnett Bank, 629 So. 2d
1005 (Fla. Dist. App. 1993) (awarding benefits to a man who
terminated his employment because he was physically unable to
perform the manual labor required, and reasoning that an unemployed
claimant should not be penalized for taking an unsuitable
position); Herman v. Florida Dep't of Commerce, Indus. Relations
Comm'n, 323 So. 2d 608 (Fla. Dist. App. 1975) (finding employee
eligible for benefits and reasoning that she ought not be penalized
for seeking employment which was beyond her physical ability and
hence unsuitable).

Footnote 33:

     Wescott separately argues that the hearing officer's
suitability finding is not supported by the evidence, that the
commissioner effectively reversed the hearing officer's finding of
suitable work by concluding that Wescott's physical condition would
require APC to make some accommodations in his job assignment, and
that even if his work was suitable, he had good cause to leave. 
Our decision to remand for reconsideration makes it unnecessary to
address these arguments. 

Footnote 34:

       See id.