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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Justice v. R.M.H. Aero Logging, Inc. (2/15/2002) sp-5538

Justice v. R.M.H. Aero Logging, Inc. (2/15/2002) sp-5538

     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


DAN B. JUSTICE,               )
                              )    Supreme Court Nos. S-9513/9544
        Appellant/Cross-Appellee,  )
                              )    Superior Court No. 1JU-98-2534
CI
     v.                       )
                              )    O P I N I O N
RMH AERO LOGGING, INC., and   )
WAUSAU INSURANCE              )    [No. 5538 - February 15, 2002]
COMPANIES,                    )
                              )
        Appellees/Cross-Appellants.     )
________________________________)


          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances:   Paul  M.  Hoffman,  Robertson,
          Monagle   &   Eastaugh,  P.C.,  Juneau,   for
          Appellant/Cross-Appellee.  Patricia L. Zobel,
          DeLisio  Moran  Geraghty & Zobel,  Anchorage,
          for Appellees/Cross-Appellants.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          I.   Did the Alaska Workers' Compensation Board erroneously

adjust an injured employee's compensation rate by departing  from

the  statutory formula for determining gross weekly earnings  set

out  in former AS 23.30.220(a)(1)?  Because we conclude that  our

holding  in  Gilmore v. Alaska Workers' Comp. Bd.1  applies  with

limited  retroactivity to the employee's claim for a compensation

rate  adjustment, and because substantial evidence  supports  the

          finding that the employee's past employment history is not an

accurate  predictor of his future wage losses resulting from  the

injury,  we  affirm the board's decision adjusting the employee's

compensation rate.

II.  FACTS AND PROCEEDINGS

          RMH  Aero  Logging, Inc. hired Dan Justice in  February

1993  to  work  as  a knot bumper.  On June 3, 1993  Justice  was

injured  while working for RMH at a logging camp near  Ketchikan,

when  a  helicopter's rotor wash caused the log on which  he  was

standing to roll, pinning his right foot against another log.

          Justice  received medical treatment and was cleared  to

work  without  any  restrictions, wearing heavy  lace-up  leather

boots  to prevent further injury.  Despite being placed on  light

duty,  Justice continued to experience significant  pain  in  his

right  foot.  Further medical examination revealed a fracture  in

his  right forefoot.2  Justice's last day of employment with  RMH

was June 30, 1993.

          Because  conservative  medical treatment  of  Justice's

injury  - such as immobilization of the foot in a cast - did  not

entirely  relieve  the pain in his right foot, Justice  underwent

surgery  in  February 1994.  After Justice recuperated  from  the

surgery,   Dr.  Todd  Kile  rated  Justice's  permanent   partial

impairment  (PPI)  at  four percent.  Dr.  Kile  later  increased

Justice's PPI rating to eight percent.

          After  RMH  filed  a report of occupational  injury  or

illness  with the board in June 1993, Wausau Insurance Companies,

RMH's   workers'   compensation  insurer,  voluntarily   adjusted

Justice's  claim.   Between July 10, 1993  and  August  9,  1994,

Justice  received  temporary total disability (TTD)  benefits  of

$154  per  week, based on his gross income (as indicated  in  his

federal  income tax returns) of $16,589 and $4,305 for  1991  and

1992  respectively.3  Upon reaching medical stability  in  August

1994, Justice received PPI benefits based on Dr. Kile's rating of

eight  percent.  On July 10, 1995 - when his PPI benefits expired

          - Justice received a lump sum payment of $9,971 under former AS

23.30.041(k).4

          Justice continued to experience pain after the February

1994  arthrodesis  procedure because  of  degenerative  arthritic

changes  in his right foot.  On October 13, 1997 Justice's  right

foot  spasmed  while  he was working on the roof  of  his  house.

Justice  fell  from  the roof, fracturing  his  right  wrist  and

sustaining  a fracture/dislocation of a joint in the long  finger

of  his right hand.  Justice underwent surgery in January 1998 to

correct  the  fracture/dislocation.  RMH  agreed  that  Justice's

October  1997 injuries were related to his June 1993 injury,  and

reinstated his TTD benefits effective September 1, 1997.

          On   December   1,  1997  Justice  filed   a   workers'

compensation claim with the board.  On May 11, 1998 Justice filed

an  amended  claim  seeking, among other  things,  a  retroactive

adjustment  of his TTD compensation rate.  Justice  claimed  that

his  gross  income in 1992 was aberrationally  low  and  did  not

accurately predict his future lost wages.  Justice explained that

he  had spent that year administering his mother's estate. Citing

Gilmore v. Alaska Workers' Comp. Bd.,5 Justice asked the board to

depart  from the formula, contained in former AS 23.20.220(a)(1),

for  determining  gross  weekly  wages.   The  board  agreed  and

retroactively  adjusted  Justice's weekly  compensation  rate  to

$424.30.

          RMH  appealed to the superior court, which affirmed the

"retroactive  application of Gilmore to Mr.  Justice's  1997  TTD

claim"  and reversed "[t]he Board's order that Gilmore be applied

to Mr. Justice's 1993 TTD claim . . . ."6

          Justice appeals and RMH cross-appeals.

III. DISCUSSION

     A.   Standard of Review

          A.    We  independently review the merits of an  agency

determination  when  a  superior court acts  as  an  intermediate

court of appeal.7  "In reviewing an agency's factual findings, we

          employ the `substantial evidence' test."8  Substantial evidence

is  "such relevant evidence as a reasonable mind might accept  as

adequate  to  support a conclusion."9  When  an  agency  decision

involves  expertise regarding either complex  subject  matter  or

fundamental  policy formulation, we defer to the decision  "  `so

long as it is reasonable, supported by the evidence in the record

as  a  whole, and there is no abuse of discretion.' "10  We apply

the  substitution  of judgment test to legal questions  where  no

agency  expertise is involved, such as questions of "  `statutory

interpretation  or  other analysis of legal  relationships  about

which courts have specialized knowledge and experience.' "11

     B.   The Board Did Not Err by Applying Gilmore to Justice's Claim
          for a Compensation Rate Adjustment.
          
          On  October  14,  1994  we decided  Gilmore  v.  Alaska

Workers'  Comp.  Bd., which held that former AS 23.30.220(a),  as

applied  by  the board to Gilmore, violated the equal  protection

clause of the Alaska Constitution.12

          When  Gilmore  was injured on September  17,  1989,  AS

23.30.220(a) provided in relevant part:

          The  spendable  weekly  wage  of  an  injured
          employee  at  the time of an  injury  is  the
          basis for computing compensation.  It is  the
          employee's   gross  weekly   earnings   minus
          payroll  tax  deductions.  The  gross  weekly
          earnings shall be calculated as follows:
          
          (1)   the  gross weekly earnings are computed
          by  dividing by 100 the gross earnings of the
          employee   in   the   two   calendar    years
          immediately preceding the injury;
          
          (2)   if  the  employee was absent  from  the
          labor market for 18 months or more of the two
          calendar  years  preceding  the  injury,  the
          board  shall  determine the employee's  gross
          weekly  earnings for calculating compensation
          by  considering the nature of the  employee's
          work  and work history, but compensation  may
          not   exceed  the  employee's  gross   weekly
          earnings at the time of injury . . . .[13]
          
During the two years preceding his injury, Gilmore had worked for

a total of thirty-nine weeks.14  But for twenty-two of the thirty-

nine  weeks,  Gilmore  had been in vocational  training  programs

learning to become a motorcycle mechanic.15  Gilmore argued  that

he should be considered "absent from the labor market" within the

meaning  of  AS 23.30.220(a)(2) while he was attending vocational

training  programs,  and  that he was therefore  entitled  to  an

alternative  wage  calculation under that statute.16   The  board

rejected Gilmore's contention, and the superior court affirmed.17

          At   our   request,  the  parties  in   Gilmore   filed

supplemental   memoranda  discussing  whether  AS  23.30.220(a)'s

formula  for  determining  an  injured  employee's  gross  weekly

earnings  violated  the equal protection  clause  of  the  Alaska

Constitution.18  We held that it did, as applied to Gilmore,  for

the following reasons:

          The gross weekly wage determination method of
          AS  23.30.220(a) creates large differences in
          compensation   between   similarly   situated
          injured workers, bears no relationship to the
          goal  of  accurately calculating  an  injured
          employee's   lost  wages  for   purposes   of
          determining  his  or  her  compensation,   is
          unfair to workers whose past history does not
          accurately   reflect  their  future   earning
          capacity,  and  is  unnecessary  to   achieve
          quickness, efficiency, or predictability.[19]
          
But we noted that "section 220(a) may be applied constitutionally

in  a  number  of  circumstances, for example, where  an  injured

worker  has  had  the same occupation for all  of  the  past  two

calendar  years."20  Thus, the relevant inquiry under Gilmore  is

whether  an  injured  worker's  past  employment  history  is  an

"accurate  predictor" of future wage losses due to the  injury.21

Where past wage levels are an accurate predictor of losses due to

the  injury,  "the Board must apply the statutory  formula.   The

decision  to depart from the statute must be based on substantial

evidence  supporting the conclusion that past  wage  levels  will

lead to an irrational workers' compensation award."22

          We  declined in Gilmore to address the extent to  which

its holding would be applied retroactively.23  As Justice Compton

noted in his concurring opinion,

          [t]he    question    of   prospectivity    or
          retroactivity, and the type of  prospectivity
          or  retroactivity, will be addressed  in  the
          context  of  a case in which the question  is
          essential  to the decision.  In the meantime,
          the  past opinions of this court should serve
          as  a  basis for an informed decision by  the
          Board.[24]
          
          The  board  retroactively applied Gilmore to  Justice's

claim for a compensation rate adjustment.25  Justice argues  that

the  board correctly applied Gilmore to his claim.  RMH  responds

that  Gilmore  should apply retroactively only  "to  workers  who

raised  the  issue  prior  to  Gilmore,  had  a  claim  open   to

adjudication  at that time, or who had preserved  the  issue  for

appeal  when the decision was issued."  (Emphasis added.) Because

we conclude below that Justice's claim is open to adjudication,26

we  could  hold  that  the  board  properly  applied  Gilmore  to

Justice's claim on the basis of RMH's concession alone.  But,  as

we will see, our law governing the retroactive application of our

decisions  also  demands that we affirm the board's  decision  to

accord  Gilmore  the  limited retroactivity  necessary  to  reach

Justice's claim.

          1.   The Byayuk factors dictate retroactive application of

               Gilmore.

          "There  is no constitutional mandate, federal or state,

requiring  civil decisions to be applied either retroactively  or

prospectively.   The  determination whether to  give  retroactive

effect to new decisional law is made ad hoc, on the basis of  the

practical  and  equitable considerations  of  each  case."27   We

consider four factors in deciding whether and to what extent  new

decisional law should be applied retroactively:

          (1)  whether  the  holding  either  overrules
          prior  law  or  decides  an  issue  of  first
          impression   whose   resolution    was    not
          foreshadowed;  (2) whether  the  purpose  and
          intended  effect of the new rule  of  law  is
          best  accomplished  by  a  retroactive  or  a
          prospective  application; (3) the  extent  of
          reasonable reliance upon the old rule of law;
          and  (4) the effect on the administration  of
          justice of a retroactive application  of  the
          new rule of law.[28]
          
In  civil  cases, limited retroactivity is the rule;  exclusively

prospective  application  is  the exception.29   "Absent  special

circumstances, a new decision of this court will be given  effect

in  the case immediately before the court, and will be binding in

all  subsequent cases in which the point in question is  properly

raised,"  even if the events to which the law is applied occurred

before the court's decision.30

          The  first Byayuk factor - whether a decision overrules

prior   law  or  decides  an  issue  of  first  impression  whose

resolution was not foreshadowed - is actually a threshold test.31

If  Gilmore's  holding was clearly foreshadowed,  the  rule  will

apply retroactively; if, on the other hand, the question answered

by  Gilmore  was  "subject  to rational  disagreement,"  we  must

address the remaining factors.32

          Gilmore   was   our  first  decision   addressing   the

constitutionality   of  former  AS  23.30.220(a).    Furthermore,

because  Gilmore did not hold that AS 23.30.220(a)  was  facially

unconstitutional,33 but only that the statute as the board applied

it  to Gilmore violated the equal protection clause of the Alaska

Constitution,  the  outcome in Gilmore was arguably  "subject  to

rational  disagreement."   We therefore  conclude  that  Byayuk's

threshold  test  is  met  and proceed to consider  the  remaining

criteria.

          The  second  Byayuk factor - whether  the  purpose  and

intended effect of the new rule of law is best accomplished by  a

retroactive  or  exclusively prospective application  -  "is  the

single most important criterion to use in determining whether  to

apply  a  new  rule of law retroactively . . . ."34  The  parties

agree  that  Gilmore's purpose, like the overall  purpose  of  AS

23.30.220(a), is to ensure "a fair approximation of a  claimant's

probable  future  earning capacity during  the  period  in  which

compensation  benefits  are  to be  paid."35   Because  a  purely

prospective application of Gilmore would deprive certain workers,

          such as Justice, of workers' compensation benefits based on a

fair  approximation of future earning capacity, Gilmore's purpose

is best accomplished by applying it retroactively.

          The  third  Byayuk  factor - the extent  of  reasonable

reliance  on the old rule of law - "is used to further weigh  the

merits of a [purely] prospective application and also to set  the

limits  of retroactivity."36  However, "this factor is of minimal

importance where the purpose and intended effect of the new  rule

of   law   clearly   justifies   a  retroactive   application."37

Furthermore,  we  have  held  that  "  `[a]n  insurer's  reliance

interest is insufficient to [defeat retroactive] application of a

change  in the law unless the insurer presents a compelling  case

of  grave financial consequences.' "38  RMH argues that "the cost

of  opening  and  litigating all prior claims  under  former  [AS

23.30.220(a)]  . . . constitutes a grave financial circumstance."

But opening and litigating all prior claims is not the effect  of

limited  retroactivity.  Limited retroactivity  does  not  reopen

final  judgments; instead, it applies the new rule only to  cases

still  open to adjudication.  RMH has not demonstrated that grave

financial   circumstances   would  result   from   this   limited

retroactive application of the Gilmore decision.

          The   fourth  Byayuk  factor  -  the  effect   on   the

administration of justice of retroactively applying the new  rule

of  law  - is "useful in determining not only whether a new  rule

should  apply  retroactively but also  how  far  the  application

should extend."39  RMH argues that retroactively applying Gilmore

would  burden the entire workers' compensation system by allowing

the  relitigation  of  "all prior workers' compensation  payments

under  former  AS 23.30.220(a)."  We disagree.  Because  we  hold

below  that  Gilmore is retroactively applicable  only  to  cases

which  remain open to adjudication,40 final judgments  and  other

cases   not   open  to  adjudication  will  not  be  subject   to

relitigation.   Furthermore, we have previously noted  that  "the

fact  that  retroactive application of [a new rule  of  law]  may

          increase the number of suits is not sufficient reason to limit

retroactive  application . . . .  An increase in  the  amount  of

justice   should   not  be  recognized  as  a   burden   on   the

administration of justice."41  Thus, the final Byayuk factor does

not weigh against retroactive application.

          2.   To what extent should Gilmore be retroactively applied?

          In Vienna v. Scott Wetzel Servs., Inc.,42 we considered

whether and to what extent Alaska Pacific Assurance Co. v. Brown43

should  be  applied  retroactively.  Brown held  that  former  AS

23.30.175(d) unconstitutionally reduced the compensation benefits

of  injured workers residing outside Alaska.44  We held in Vienna

that  the  Brown decision applied retroactively to those  workers

whose claims remained open to adjudication, and to those who  had

preserved the issue for appeal.45  Similarly, in Metcalf v. Felec

Servs.,  we  held that the holding in that case would  extend  to

workers' compensation cases "in the pipeline" as of the  date  of

the  court's  decision.46  This included  "workers  whose  claims

remain[ed] open to adjudication and those who [had] preserved the

issue  for  appeal,  assuming  the  time  for  appeal  [had]  not

expired."47

          We  now  hold  that  Gilmore is likewise  retroactively

applicable  to  workers whose claims remain open to adjudication,

and to those who have preserved the issue for appeal.  Indeed, as

we   noted   above,  RMH  concedes  that  Gilmore  should   apply

retroactively "to workers who raised the issue prior to  Gilmore,

had  a  claim  open  to adjudication at that  time,  or  who  had

preserved the issue for appeal when the decision was issued."

          3.   Justice's claim for a compensation rate adjustment is open
               to adjudication.
               
          RMH  argues  that  Gilmore  may  not  be  retroactively

applied  to  Justice's claim for a compensation  rate  adjustment

because  it  is  not "open to adjudication."  RMH  contends  that

because  it  did  not  controvert Justice's  claim  for  workers'

compensation  benefits,  and because Justice  received  the  last

benefits  payment  on  July 10, 1995, AS 23.30.105(a)'s  two-year

          statute of limitations expired on July 11, 1997.48  Because

Justice did not seek a compensation rate adjustment until May 11,

1998, RMH asserts that his claim is not "open to adjudication."

          Alaska  Statute 23.30.105(a) permits claims within  two

years after the date of the last payment of workers' compensation

benefits  paid  without  an award.  But AS 23.30.105(b)  provides

that  "[f]ailure to file a claim within the period prescribed  in

(a) of this section is not a bar to compensation unless objection

to the failure is made at the first hearing of the claim in which

all   parties  in  interest  are  given  reasonable  notice   and

opportunity to be heard."  Justice contends that because RMH  did

not object at the November 9, 1998 hearing - the first (and only)

hearing  before  the  board  - his claim  is  not  barred  by  AS

23.30.105(a)'s two-year statute of limitations, and is  therefore

open to adjudication.

          We   ordered   supplemental  briefing  in   this   case

addressing the following issues: (1) "When and to what extent RMH

was  placed  on  notice  that  Justice  was  seeking  to  recover

additional compensation for the period of disability between 1993

and  1995"; and (2) "What opportunity RMH had to argue  that  any

attempt to make a change in the compensation rate applied to  the

period between 1993-95 was untimely."

          Justice  argued in his opening supplemental brief  that

RMH  was  placed  on notice that Justice was seeking  to  recover

additional compensation for the period of disability between 1993

and  1995  on March 1, 1998, when he sent a letter to  the  board

asking  "for  an  adjustment of [his]  weekly  compensation  rate

retroactive to 7-10-93 to 8-9-94 (56 weeks) [and] 9-1-97 to  3-1-

9[8]  (26 weeks) and beyond." (Emphasis added.)  In that  letter,

Justice  requested  back compensation of  $11,180.70  and  a  new

weekly  compensation  rate  of  $290.35.   Justice  enclosed  his

calculations  explaining  how he arrived  at  $11,180.70.   Those

calculations  reveal  that  Justice  was  seeking  an  additional

$7,635.60  in compensation for the period between July  10,  1993

          and August 9, 1994.  The board treated Justice's letter as a

claim  and  served it on Wausau Insurance Companies on  March  6,

1998.

          Thus,  RMH  was  on  notice as of March  6,  1998  that

Justice  was  seeking additional compensation for the  period  of

disability between 1993 and 1995.  But in any event, RMH candidly

concedes in its opening supplemental brief that it "was first put

on notice that Mr. Justice was seeking a retroactive compensation

rate adjustment for benefits paid between 1993 and 1995 on August

10,  1998  at  the prehearing at which it was made clear  that  a

retroactive  application  of  the  Gilmore  decision  was   being

sought."  RMH  therefore  had notice of  Justice's  claim  for  a

retroactive  compensation  rate  adjustment  for  benefits   paid

between 1993 and 1995 before the November 9, 1998 AWCB hearing.

          Because RMH was placed on notice of Justice's claim for

a retroactive compensation rate adjustment before the November 9,

1998  hearing, and because RMH did not object at that hearing  to

Justice's failure to file a claim within the period prescribed by

AS   23.30.105(a),  we  hold  that  RMH  waived  its  statute  of

limitations defense, and that Justice's claim is therefore  "open

to adjudication."  We therefore conclude that it was not error to

apply Gilmore to Justice's claim.

     C.   It Was Not Error to Find that Justice Was Entitled to a

          Compensation Rate Adjustment Under Gilmore.

          RMH  argues  that  even if the board  properly  applied

Gilmore  retroactively to Justice's claim, it  erred  by  finding

that Justice was entitled to an adjustment under Gilmore, because

(1)  the  board  applied  a generalized  "fairness"  analysis  to

Justice's  claim, and (2) substantial evidence does  not  support

the  finding  that Justice's past employment history  is  not  an

accurate predictor of his future lost income.

          1.   The AWCB did not base its decision to grant Justice a
               compensation rate adjustment solely upon a "fairness" analysis.
               
          In Thompson v. United Parcel Serv., we held that it was

error, under Gilmore, for the board to depart from the formula in

former  AS 23.30.220(a)(1) by conducting a "generalized  fairness

inquiry rather than asking whether Thompson's past earnings could

accurately  be used to determine what she would have  earned  had

she not been injured."49

          RMH  argues that the board erred by granting Justice  a

compensation  rate  adjustment based on  a  generalized  fairness

inquiry.   RMH  claims that the board made no findings  regarding

whether  Justice's  past earnings were an accurate  predictor  of

future lost earnings.

          It  is  true  that the board stated that  "the  court's

decision  in  Gilmore  requires that  a  `fairness'  analysis  be

applied  in  cases such as this."  But the board also found  that

there was "a substantial disparity in [Justice's] earnings at the

time of his injury and his earnings, as computed under subsection

220(a)"  and that Justice "would have worked more time  per  year

than  he had in the past, based on his desire to purchase a house

and  on  his  need  to  no longer care for  his  mother."   These

findings  addressed the relevant inquiry under  Gilmore  -  i.e.,

whether Justice's past earnings were an accurate predictor of his

future lost earnings.  We therefore perceive no error.

          2.   Substantial evidence supports the finding that Justice's
               past employment history is not an accurate predictor of his
               future lost income.
               
          RMH  next  argues  that substantial evidence  does  not

support the finding that Justice's past employment history is not

an accurate predictor of his future lost income.  RMH argues that

Justice's  work  history  "demonstrates  sporadic  and   seasonal

employment  .  .  . with significant periods of  unemployment  in

every year pre-injury," and that Justice's gross earnings in 1991

and 1992 are not "a great aberration compared with his historical

wages . . . ."

          Because  the question of the reliability of an  injured

employee's past work history as a predictor of future lost income

is  factual  in  nature, we review the board's findings  on  that

issue  "under the substantial evidence test, viewing whether  the

          evidence relied upon was substantial in light of the record as a

whole."50

          Here, substantial evidence supports the board's finding

that  Justice's  past  employment  history  is  not  an  accurate

predictor  of  his  future  lost income.   First,  there  was  "a

substantial disparity in [Justice's] earnings at the time of  his

injury  and  his earnings, as computed under subsection  220(a)."

Justice earned $23,425 between February and June 1993 working for

RMH.   In contrast, he earned $16,589 in 1991 and $4,305 in 1992.

Although  a "substantial difference" between an injured  worker's

award under former AS 23.30.220(a)(1) and his or her gross weekly

earnings at the time of injury "does not per se indicate  a  lack

of  predictive value," it is relevant evidence that the board may

consider.51   Furthermore, Justice testified that he intended  to

increase  the  amount  of his employment in  order  to  earn  the

necessary  funds  for  a down payment on  a  house.   An  injured

worker's  intentions  at  the  time of  injury  regarding  future

employment  are  relevant to determining the reliability  of  the

employee's  past  work  history as a  predictor  of  future  lost

income.52  Finally, at the time of his injury, Justice no  longer

needed  to care for his ailing mother, who passed away  in  March

1992.   We  therefore hold that the board did not err by granting

Justice a compensation rate adjustment under Gilmore.

IV.  CONCLUSION

          For  these  reasons, we agree with the Alaska  Workers'

Compensation  Board's  resolution  of  Justice's  claim   for   a

compensation rate adjustment.  Accordingly, we AFFIRM  that  part

of  the superior court's decision affirming the board and REVERSE

that  part  of the superior court's decision reversing the  board

and  REMAND  with  instructions to affirm  the  entirety  of  the

board's  resolution  of Justice's claim for a  compensation  rate

adjustment.

_______________________________
     1    882 P.2d 922 (Alaska 1994).

     2      Justice   was  diagnosed  with  a  "medial  cuneiform
fracture"  in  his  right foot as well as a  "possible  Linsfranc
injury."

     3     Justice's  weekly TTD benefits were  calculated  under
former  AS  23.30.220(a)(1).  In 1993 AS  23.30.220  provided  in
relevant part:

          (a)   The spendable weekly wage of an injured
          employee  at  the time of an  injury  is  the
          basis for computing compensation.  It is  the
          employee's   gross  weekly   earnings   minus
          payroll  tax  deductions.  The  gross  weekly
          earnings shall be calculated as follows:
               (1)    the  gross  weekly  earnings  are
          computed   by  dividing  by  100  the   gross
          earnings  of the employee in the two calendar
          years immediately preceding the injury.
          
AS  23.30.220 was amended effective September 4, 1995.   See  ch.
75,  9-10, SLA 1995.

     4    Former AS 23.30.041(k) provided:

          Benefits related to the reemployment plan may
          not  extend past two years from date of  plan
          approval or acceptance, whichever date occurs
          first, at which time the benefits expire.  If
          an  employee reaches medical stability before
          completion  of  the  plan,  temporary   total
          disability benefits shall cease and permanent
          impairment benefits shall then be paid at the
          employee's  temporary total disability  rate.
          If   the   employee's  permanent   impairment
          benefits  are exhausted before the completion
          or  termination of the reemployment plan, the
          employer  shall  provide wages  equal  to  60
          percent  of  the employee's spendable  weekly
          wages  but  not  to exceed  $525,  until  the
          completion  or termination of  the  plan.   A
          permanent impairment benefit remaining unpaid
          upon  the  completion or termination  of  the
          plan  shall  be  paid to the  employee  in  a
          single   lump   sum.    The   fees   of   the
          rehabilitation  specialist or  rehabilitation
          professional  shall be paid by  the  employer
          and  may  not be included in determining  the
          cost of the reemployment plan.
          
AS 23.30.041(k) was amended effective July 1, 2000.  See ch. 105,
 4, SLA 2000.

     5    882 P.2d 922 (Alaska 1994).

     6     The  parties agree that the superior court  mistakenly
assumed  that  Justice  had  asserted  two  separate  claims  for
compensation  rate adjustment - i.e., a claim for the  June  1993
foot injury and a claim for the October 1997 wrist injury.

     7     Thompson v. United Parcel Serv., 975 P.2d 684,  687-88
(Alaska  1999)  (citing Handley v. State, Dep't of  Revenue,  838
P.2d 1231, 1233 (Alaska 1992) (citation omitted)).

     8     Id. at 688 (citing Jager v. State, 537 P.2d 1100, 1107
(Alaska 1975) (citation omitted)).

     9     Id.  (quoting Interior Paint Co. v. Rodgers, 522  P.2d
164, 170 (Alaska 1974) (citation omitted)).

     10    Id. (quoting Ellis v. State, Dep't of Natural Res., 944
P.2d 491, 493 (Alaska 1997) (citation omitted)).

     11    Id. (quoting Earth Res. Co. v. State, Dep't of Revenue,
665 P.2d 960, 965 (Alaska 1983) (citation omitted)).

     12    Gilmore, 882 P.2d at 922-30.

     13     Ch. 79,  37, SLA 1988; see also Gilmore, 882 P.2d  at
923  n.1.  AS 23.30.220 was amended effective September 4,  1995.
See ch. 75,  9-10, SLA 1995.

     14    Gilmore, 882 P.2d at 924.

     15    Id.

     16    Id. at 924-25.

     17    Id. at 925.

     18    Id. at 923.

     19    Id. at 929.

     20    Id. at 930 n.17.

     21    Thompson, 975 P.2d at 689.

     22    Id.

     23    See Gilmore, 882 P.2d at 930 n.18, 932.

     24    Id. at 932 (Compton, J., concurring) (citing Metcalf v.
Felec  Servs., 784 P.2d 1386 (Alaska 1990) ; Morrison v.  Afognak
Logging,  Inc.,  768  P.2d 1139 (Alaska 1989);  Vienna  v.  Scott
Wetzel  Servs., Inc., 740 P.2d 447 (Alaska 1987);  Suh  v.  Pingo
Corp., 736 P.2d 342 (Alaska 1987)).

     25    Justice was injured on June 3, 1993, before we decided
Gilmore on October 14, 1994.  See 882 P.2d at 922.

     26    See infra Part III.B.3.

     27    Suh, 736 P.2d at 344 (citation omitted).

     28     Commercial Fisheries Entry Comm'n v. Byayuk, 684 P.2d
114, 117 (Alaska 1984).

     29     Id. at 117 (citing Plumley v. Hale, 594 P.2d 497, 502
(Alaska 1979)).

     30     Vienna, 740 P.2d at 449 (quoting Plumley, 594 P.2d at
502).

     31    Byayuk, 684 P.2d at 117-18.

     32    Truesdell v. Halliburton Co., 754 P.2d 236, 239 (Alaska
1988) (citing Vienna, 740 P.2d at 450).

     33    Gilmore, 882 P.2d at 929 n.17.

     34    Byayuk, 684 P.2d at 118.

     35    Gilmore, 882 P.2d at 927 (citation omitted).

     36    Byayuk, 684 P.2d at 119.

     37    Id.

     38     Vienna, 740 P.2d at 451 (quoting Suh, 736 P.2d at 348
(Matthews, J., dissenting)).

     39    Byayuk, 684 P.2d at 119.

     40    See infra Part III.B.2.

     41    Truesdell, 754 P.2d at 241.

     42    740 P.2d 447, 449-52 (Alaska 1987).

     43    687 P.2d 264 (Alaska 1984).

     44    Id. at 269-74.

     45    Vienna, 740 P.2d at 452.

     46    784 P.2d 1386, 1391 n.4 (Alaska 1990).

     47    Id.

     48      AS   23.30.105(a)  provides  that  "if  payment   of
compensation  has been made without an award on account  of  [an]
injury or death, a claim may be filed within two years after  the
date of the last payment of benefits . . . ."  (Emphasis added.)

     49    Thompson, 975 P.2d at 689.

     50    Id. at 690 (citations omitted).

     51    Id. at 689.

     52    Id. at 690.