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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bauder v. Alaska Airlines, Inc. (8/2/2002) sp-5603

Bauder v. Alaska Airlines, Inc. (8/2/2002) sp-5603

          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


BROCK C. BAUDER,              )
                              )    Supreme Court No. S-9886
               Appellant,          )
                              )    Superior Court No.
     v.                       )    1SI-99-159 CI
ALASKA AIRLINES, INC.,        )    O P I N I O N
and ALASKA WORKERS'      )
                Appellees.           )    [No. 5603 -  August  2,

          Appeal  from the Superior Court of the  State
          of  Alaska,  First Judicial District,  Sitka,
          Larry C. Zervos, Judge.

          Appearances:  David Graham, Graham Law  Firm,
          Sitka, for Appellant.  Mark L. Figura, Rose &
          Figura,   Anchorage,  for   Appellee   Alaska
          Airlines, Inc.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          PER CURIAM

           The  judgment  of  the superior  court  affirming  the

underlying decisions of the Alaska Workers' Compensation Board is

AFFIRMED for the reasons expressed in the attached opinion of the

superior                                                  court.1



BROCK C. BAUDER,                   )
               Appellant,               )
vs.                                )
ALASKA AIRLINES, INC., and              )
BOARD,                             )
                                   )    Case No. 1SI-99-159 CI
               Appellees.               )

                       DECISION ON APPEAL

           Brock  Bauder appeals the determinations by the Alaska

Workers'  Compensation  Board concerning  his  permanent  partial

impairment rating, his entitlement to additional temporary  total

disability  benefits and his compensation rate.  For the  reasons

stated  below,  however,  the  court  concludes  that  the  Board

correctly  applied the law and that its determinations  on  these

issues were supported by substantial evidence.

           Mr.  Bauder also argues that the workers' compensation

administrator   handling   his  case  frivolously   or   unfairly

controverted  his  claim.  But at the time of the  controversion,

Mr. Bauder was not entitled to a lump sum award and therefore the

controversion was not unfair or frivolous.

           Finally,  Mr.  Bauder argues that he  is  entitled  to

penalties, interest, attorney's fees, and costs.  But, again, the

court  determines that the Board correctly addressed these claims

in its decision.

                            I. FACTS

           On  July 24, 1993, Brock Bauder injured his back while

working  for  Alaska Airlines in Sitka, Alaska.2   This  workers'

compensation  case arises out of that injury and  his  employment

record with Alaska Airlines before and after July 24, 1993.

           In  the spring of 1988, Mr. Bauder graduated from high

school.3  He fished commercially that summer and then worked  for

Spenard  Builders  Supply.4   But  Mr.  Bauder  had  always  been

intrigued with aviation and flying and he thought the best way to

pursue that goal was to work for Alaska Airlines.5

          In December 1988, as Mr. Bauder tells it, he talked the

manager of the Sitka Alaska Airline Station into hiring him as  a

casual  employee  to unload a plane loaded with freight.6   After

that,  the  manager called Mr. Bauder in to work for the  airline

when employees were sick or on vacation over the holiday season.7

This  casual  employment  lasted just a few  weeks,  until  early

January 1989.8  Mr. Bauder went fishing again but was re-hired by

Alaska  Airlines on June 5, 1989 as a temporary,  part-time  ramp

agent.9   Before  Mr. Bauder began to work for  the  company,  he

filled  out an application and informed the company that  he  had

undergone  surgery  on  his  back in 1985  after  a  high  school

basketball injury.10

           Mr.  Bauder worked as a temporary employee for  Alaska

Airlines  that  summer and in August he applied for  a  permanent

position.11   On September 5, 1989, he was hired as a  permanent,

part-time employee on the ramp.12  He remembers working on and off

between  September  of  1989 and June of  1990  and  the  records

establish  that he did work over the holiday season of  1989-1990

and in the spring of that year.13

           In  June  of  1990, Alaska Airlines  reclassified  Mr.

Bauder  to  a full-time position for the summer.14  In the  fall,

because  of  a reduction in flights, he was given the  option  of

returning to part-time employment or being laid off.15  Mr. Bauder

decided  to  go to college at the University of North  Dakota  to

study aviation administration and to learn to fly.16  He was laid

off on September 3, 1990.17

           After  completing his first year of school, Mr. Bauder

wrote  to  the manager of the Sitka Alaska Airlines  station  and

asked  for summer work.18  He was hired as a temporary, part-time

ramp  agent  on June 5, 1991 and worked that summer.19   He  also

commercially  fished for one or two weeks.20   After  the  summer

season  ended, Mr. Bauder was laid off and he returned to college

in the fall.21

           In  May of 1992, Mr. Bauder again resumed working  for

Alaska  Airlines as a part-time ramp agent until being furloughed

after  the  summer season ended.22  Mr. Bauder  returned  to  the

University of North Dakota for the fall semester.23

           When  Mr.  Bauder came home to Sitka for the Christmas

holidays in 1992, he worked for Alaska Airlines for approximately

10  days.24   And, as was now becoming a pattern, he returned  to

work for the airline in the summer of 1993.25

           Mr.  Bauder injured his lower back while loading boxes

of  fish  into the belly of an airplane on July 24,  1993.26   He

sought  treatment from Dr. Donald Funk, who recommended  physical

therapy and released him to return to work provided the work  was

not  strenuous.27  Mr. Bauder did light duty work  until  he  was

again laid off after the summer season on September 7, 1993.28

           Rather than returning to North Dakota for school  that

fall,  Mr.  Bauder went to Denver, Colorado to attend  a  school-

sponsored  internship with United Airlines.29  In  Colorado,  Mr.

Bauder  sought treatment for his back from Dr. Jeffrey Kleiner.30

Dr.  Kleiner  diagnosed  the problem as "a left-sided  sacroiliac

joint arthropathy or sprain."31  After several visits, Dr. Kleiner

told Mr. Bauder that he might have to have surgery.32

           Mr. Bauder's internship ended in December of 1993, and

Dr. Kleiner released him to do light work on December 15, 1993.33

On  the same day, he returned to work for Alaska Airlines for the

holiday season, and as was usual, after the season ended  he  was

laid off in mid-January.34

          Dr. Bill Boettcher is a Seattle orthopedic surgeon.  He

performed  the  1985 surgery on Mr. Bauder's  back  when  he  was

injured in high school.35  On January 18, 1994, Mr. Bauder went to

Dr. Boettcher because of recurrent problems with his back.36  Dr.

Boettcher diagnosed the problem as being spondylolisthesis, or  a

separation  of the vertebrae in the lumbar region,  and  referred

him  to another doctor, Dr. Edwin Lauren.37  On February 4, 1994,

Dr.  Laurnen performed a fusion of the separated vertebrae in Mr.

Bauder's back.38  After the operation, Mr. Bauder was ordered  to

rest at home.39

           When Mr. Bauder was first injured in July of 1993,  he

filled  out a workers' compensation injury report.40   After  the

operation, Mr. Bauder was eligible for temporary total disability

benefits.41   A claim examiner calculated Mr. Bauder's  temporary

total  disability  benefit  as  $157.34  a  week.42   Mr.  Bauder

questioned  the  amount  of  his  disability  benefit  from   the


           Mr.  Bauder was eventually released to go back to work

provided  the work was sedentary.44  Then on April 28, 1994,  Dr.

Laurnen  released Mr. Bauder to do light work.45  Mr. Bauder  was

able  to return to work at Alaska Airlines performing light  work

on  March 14, 1994.46  His workers' compensation benefits stopped

on March 13, 1994.47

            On   May   25,  1994,  Dr.  Laurnen  told  vocational

rehabilitation counselor Denise Van Der Pol that it  was  not  in

Mr.  Bauder's best interest to continue to work as a ramp service

agent.48  Dr. Laurnen recommended that Mr. Bauder find light work

activities  that would not put excessive stress  on  his  back.49

Also, about this time, Alaska Airlines did not have further light

duty work available and Mr. Bauder was put on sick leave status.50

After  his sick leave and vacation benefits were used, Mr. Bauder

was  put  on  medical leave.51  Again Mr. Bauder began  receiving

temporary total disability payments.52

           In  the  fall  of 1994, Mr. Bauder returned  to  North

Dakota  to  complete his final year of college and  he  graduated

that  spring.53  In June he became a contract pilot with Oklahoma

Executive Jet Charter.54  Mr. Bauder took this position in  order

to  build up his flight hours.55  He was paid $35 a day to  cover

expenses.56  Mr. Bauder worked for Oklahoma Executive Jet Charter

until  November  17, 1995.57  He continued to  receive  temporary

total disability benefits during this period.58

            On  December  29,  1995,  Marilyn  Noel,  an  account

executive    with   the   workers'   compensation   administrator

representing  Alaska Airlines, filed a notice  controverting  Mr.

Bauder's  entitlement  to continuing temporary  total  disability

benefits.59   Ms.  Noel claimed that temporary  total  disability

benefits should end because Mr. Bauder was working.60  Also,  she

wrote  the  Department  of  Labor  and  requested  that  a  fraud

investigation be started because she claimed that Mr. Bauder  was

working  and receiving benefits at the same time.61  His worker's

compensation benefits were stopped on December 26, 1995.62

            After  leaving  Oklahoma  Executive  Jet  Charter  in

November,  Mr.  Bauder accepted an offer to  become  Director  of

Human  Resources/Pilot  for a start-up  corporation  called  NOVI

Global Investments (NOVI).63  Although Mr. Bauder was promised an

annual  salary  of $60,000, and in March was promised  even  more

money, he was never paid anything by NOVI.64  Because he was  not

paid, Mr. Bauder left NOVI in May of 1996 and filed a wage claim.65

He  eventually received a judgment in his favor and against  NOVI

on this claim.66

           In September of 1996, Ms. Noel wrote to Mr. Bauder and

asked  him to be seen by Dr. Boettcher for a permanent impairment

rating evaluation.67  Dr. Boettcher saw Mr. Bauder on October  4,

1996 and rated him as having a 25% permanent partial impairment.68

During  the evaluation, the doctor noted that there were problems

with the last operation and he referred Mr. Bauder to Dr. Laurnen

for an examination and perhaps, another operation.69  Dr. Laurnen

did see Mr. Bauder and performed another operation on November 7,

1996.70   Mr.  Bauder began receiving temporary total  disability

payments again on the 7th of November as well.71

           In  March  and April of 1997, Mr. Bauder worked  as  a

pilot  for  Penn Air.72  From April 21, 1997 to May 3, 1997,  Mr.

Bauder  was  employed  as  a pilot for Wings  of  Alaska.73   His

temporary disability benefits ended on April 2, 1997.74

           Mr. Bauder continued to see Dr. Laurnen and on June 2,

1997,  Dr. Laurnen determined that Mr. Bauder was able to perform

the work at Alaska Airlines with no restrictions.75

           At  the  request  of  Ms. Noel,  Mr.  Bauder  saw  Dr.

Boettcher  on  June 5, 1997 for another rating.76  Dr.  Boettcher

again rated Mr. Bauder as being 25% permanently impaired.77   But

the  doctor noted that Mr. Bauder was physically able to work  as

an airline pilot and that he was medically stable.78

           On  July  1,  1997,  Ms.  Noel  filed  another  notice

controverting  Mr. Bauder's right to a lump sum  payment  of  his

permanent partial impairment disability benefits until the  fraud

investigation  was completed.79  In addition Ms. Noel  asked  Mr.

Bauder  to be seen by Dr. Shawn Hadley for an employer's  medical

examination.80  On October 5, 1997, Dr. Hadley found Mr. Bauder to

have a permanent impairment of only 10%.81

           On August 20, 1997, Mr. Bauder, now represented by  an

attorney,  filed an application to adjust his claim for  workers'

compensation  benefits.   An attorney representing  the  workers'

compensation administrator filed yet another controversion of Mr.

Bauder's adjusted claim on September 12, 1997 and on December  8,

1998, a hearing was held before the Workers' Compensation Board.


           Mr. Bauder raised five issues before the Board.82   He

argued  that  the  administrator relied  on  the  wrong  workers'

compensation provision to calculate his total temporary  benefits

and  that  the administrator improperly terminated these benefits

before  he was medically stable.  He argued that he was  entitled

to benefits based on a permanent partial impairment rating of 25%

rather than the 10% rating the claims adjuster was offering.  And

he  argued  that the administrator's controversion of his  claims

was  frivolous and that he should be awarded penalties,  interest

and  attorney fees.  The administrator contested all these issues

and  argued  that Mr. Bauder was paid total temporary  disability

benefits when he should not have received these payments.

           After  hearing  testimony from Mr. Bauder,  an  Alaska

Airlines  employee who handles workers' compensation  issues  for

the  airline  and from Ms. Noel, the claims adjuster,  and  after

considering the record, the Board issued a written decision.   In

that  decision, the Board concluded that the claims adjuster  had

relied  on  the  correct  statutory provision  to  calculate  Mr.

Bauder's temporary benefits, but did not decide any of the  other


           The delay in resolving the other issues had to do with

the  Board's  decision to request a second  medical  exam  before

deciding  what  Mr. Bauder's permanent partial impairment  rating

should be.  The Board noted the dispute between Dr. Hadley's  10%

rating  and  Dr. Boettcher's 25% rating.  And even  though  there

were  procedural  problems with Dr. Boettcher's 25%  rating,  the

Board  still placed sufficient weight on his opinion to  ask  for

another opinion.84

           After the Board's December decision, Mr. Bauder  filed

an  appeal to the superior court.  He also saw Dr. Douglas  Smith

for the Board's requested medical examination.85  Dr. Smith rated

Mr. Bauder's permanent impairment at 15%.86

           In  July  of  1999, the Board issued a second  written

decision.   The  Board  found that Dr.  Boettcher's  opinion  was

sufficient  to raise the presumption that Mr. Bauder  suffered  a

25% permanent impairment rating, but that Dr. Hadley's 10% rating

was  substantial  evidence rebutting the higher rating.87   After

considering  the entire medical record, the Board concluded  that

Dr. Smith's rating of 15% properly took into account Mr. Bauder's

prior  high  school injury and, based on a preponderance  of  the

evidence, that was the appropriate rating.88

           The  Board  also  addressed most of  the  issues  left

unresolved in its December decision.  Mr. Bauder sought temporary

total  benefits between March 17, 1994 through May 31,  1994  and

from  December 27, 1995 through November 6, 1996.  But the  Board

concluded  that Mr. Bauder was employed during these periods  and

therefore found that Mr. Bauder was not due temporary benefits.89

The  Board also found that the adjuster's controversions were not

frivolous  or  unfair.   In  addition, the  Board  dismissed  Mr.

Bauder's  claim  for  penalties because  it  concluded  that  the

controversion of Dr. Boettcher's impairment rating was timely and

that  the  administrator  timely paid  the  permanent  impairment

benefits  due  Mr. Bauder.  The Board dismissed  and  denied  Mr.

Bauder's  claim  for interest as there was no evidence  that  the

benefits  were not timely paid.  Finally, the Board  awarded  Mr.

Bauder $3,125 in attorney's fees and $1,168.92 in costs.90

           One issue was left unresolved by the Board.  The Board

did  not  resolve  the  adjuster's claim  that  it  had  overpaid

temporary  benefits  to Mr. Bauder.  The  Board  elected  not  to

address  this issue because the amount of temporary benefits  was

on appeal.91

           Mr.  Bauder  appealed the Board's July  decision,  and

eventually  the  appeals over the first decision and  the  second

decision were consolidated.

                      III. ISSUES ON APPEAL

           Mr.  Bauder  raises  five main  arguments  on  appeal.

First,  he  argues that he is entitled to benefits based  on  Dr.

Boettcher's  opinion that he was permanently impaired  at  a  25%

level.   Next,  he argues that he is entitled to temporary  total

disability  benefits  during the time he worked  at  NOVI  Global

Investments from about November 1995 to May of 1996.92

            Third,  Mr.  Bauder  argues  the  Board  should  have

determined his spendable weekly wage for temporary benefits under

former  workers'  compensation statute AS 23.30.220(a)(2)  rather

than subsection (1).93  Further, Mr. Bauder argues that as applied

to him, AS 23.30.220(a)(1) is unconstitutional.

           Fourth,  Mr.  Bauder  claims that  the  July  1,  1997

controversion was frivolous or unfair.  And finally,  Mr.  Bauder

asserts  that  he is entitled to penalties, interest,  attorney's

fees and costs.

                     IV. STANDARDS OF REVIEW

           The Alaska Supreme Court recognizes four standards  to

be  employed by courts when reviewing administrative decisions.94

When  factual  issues  are  disputed the  court  must  apply  the

"substantial evidence" standard.95  "Substantial evidence is such

relevant  evidence as a reasonable mind might accept as  adequate

to support a conclusion."96

           When  legal  issues  are raised  that  involve  agency

expertise or fundamental policy formation, the court employs  the

deferential "reasonable basis" test.97  That is, the court defers

to  the agency decision as long as it is reasonable and supported

by the evidence.98  For legal determinations not involving agency

expertise  courts use the "substitution of judgment"  standard.99

Application of this standard means that the court can  substitute

its   judgment  on  a  legal  question  that  involves  statutory

interpretation  or  other  legal issues  where  the  courts  have

specialized knowledge and experience.100

           In  this case, all Mr. Bauder's arguments involve some

question of law and some question of fact.  The court employs the

substitution  of  judgment test to issues of law  raised  by  Mr.

Bauder  and  the  substantial evidence test to all  questions  of


           The  disputes  over  the permanent partial  impairment

rating  and  whether  Mr. Bauder should have  received  temporary

total  disability benefits from November 1995 to May 1996, raise,

primarily,  questions of fact.  Therefore, the court must  review

the  Board  findings  on these issues to  see  whether  they  are

supported  by  substantial evidence.  But some  of  Mr.  Bauder's

arguments  on  these issues also raise questions of  law.   These

issues are addressed under the substitution of judgment standard.

           The  issue  concerning the temporary total  disability

benefit  calculation  raises,  primarily,  a  question  of   law.

Because  this  legal  question  centers  on  the  application  of

statutes  and  case  law,  the court must  reach  an  independent


            The  issues  concerning  the  controversion  notices,

penalties, interest, fees and costs raise questions of  fact  and

law.   Therefore the court employs the substantial evidence  test

and the substitution of judgment test.


           Several  doctors over the years treated  Mr.  Bauder's

back  injury.   Dr.  Boettcher treated Mr. Bauder's  high  school

injury  and  operated on his back in 1985.  Drs.  Funk,  Kleiner,

Boettcher  and  Laurnen  treated Mr. Bauder's  1993  work-related

injury.  Dr. Laurnen twice operated on Mr. Bauder's back and  Dr.

Boettcher  twice  rated  Mr. Bauder as  having  a  25%  permanent

partial impairment.  Dr. Hadley, the adjuster's physician,  rated

Mr.  Bauder  as  having  a 10% impairment and,  after  the  first

hearing,  Dr.  Smith  saw Mr. Bauder at the Board's  request  and

rated him as having a 15% impairment.

          The Board found that Dr. Boettcher's report and ratings

and Dr. Laurnen's report were sufficient to raise the presumption

that  Mr. Bauder had a 25% work-related impairment.101   But  the

Board  also found Dr. Hadley's testimony rebutted the presumption

at least as far as the rate of the impairment.102  To resolve this

conflict, the Board ordered another medical examination and found

Dr.  Smith's  15%  rating, after considering the  entire  medical

record, persuasive.103

          Alaska Statute 23.30.122 provides that the Board is the

sole  evaluator  of  the  credibility and  weight  of  witnesses,

including medical testimony and reports.  The Board's findings of

credibility   and  weight  are  conclusive  even  if  conflicting

evidence exists.104

           The  only question for the court is whether  there  is

substantial  evidence  supporting the Board's  conclusion.   Even

though  there is conflicting medical testimony, the  Board  acted

reasonably   in  trying  to  resolve  the  medical  disagreement.

Ordering  another medical examination allowed a third  doctor  to

review  the  record, examine Mr. Bauder and reach an  independent

conclusion.   Dr.  Smith's  report and  conclusion  are  relevant

factors  that  a  reasonable mind might  accept  as  adequate  to

support the Board's conclusion.105

           Mr. Bauder argues, however, that the Board should have

awarded  him the 25% permanent partial impairment benefit  as  of

October  4, 1996, when Dr. Boettcher first rated him.106   But  a

rating  for  permanent impairment is governed  by  AS  23.30.190.

This  statute  requires among other things  that  the  injury  be

"partial  in character but permanent in quality[.]"107  When  Dr.

Boettcher evaluated Mr. Bauder on October 4, 1996, he wrote:

          I  do not believe [Mr. Bauder's] claim should
          be  closed  at this time.  He has significant
          impairment, namely the chronic back pain  and
          the neurologic deficit in his right leg which
          can  be  successfully treated  by  successful
          surgery.   I believe he should be reevaluated
          by   Dr.   Laurnen  and  reoperation   should
          strongly be considered.  Due to his pain  and
          neurologic deficit, I believe he is unable to
          perform  any  type of work at this  time  and
          this  condition is permanent until successful
          surgery is accomplished.[108]
Based  on  this, Dr. Boettcher's October 4, 1996 rating  was,  at

best,   premature  because  Mr.  Bauder's  impairment   was   not

"permanent in quality."

           On June 5, 1997, Dr. Boettcher re-evaluated Mr. Bauder

and  again  assigned him a 25% impairment rating.109  Mr.  Bauder

argues  that  the Board erred in failing to adopt Dr. Boettcher's

second rating. The adjuster, under 8 AAC 45.052(c),110 submitted a

request  to  cross-examine Dr. Boettcher about this report.   But

Mr.   Bauder  never  made  Dr.  Boettcher  available  for  cross-

examination, and the Board did not err by declining to adopt  Dr.

Boettcher's  June 5, 1997 rating.  Nonetheless, contrary  to  Mr.

Bauder's  assertion  that  the  Board  excluded  Dr.  Boettcher's

report,  the  Board specifically stated that it  "accept[ed]  the

hearsay  evidence  concerning Dr. Boettcher's  opinion  into  the

record  for  the  purpose of explaining and  supplementing  other

medical evidence in the reports of Drs. Hadley and Laurnen."111

           Mr.  Bauder  also  argues that  the  Board  failed  to

consider   and   apply  the  statutory  time   limits   for   the

controversion  of  permanent  impairment  benefits.   Mr.  Bauder

correctly   argues   that   although  the   administrator   filed

controversions on December 29, 1995112 and July 1, 1997,113 it did

not controvert Mr. Bauder's impairment rating until September 12,

1997.114  This is almost a year after Dr. Boettcher's first rating

and over three months after Dr. Boettcher's second rating.

           Under AS 23.30.155(d), the employer has 21 days  after

the  date of learning of a doctor's impairment rating to pay that

amount or to controvert the need to pay impairment benefits.115 Mr.

Bauder argues that because the insurer did not controvert or  pay

the  impairment  benefit  within  the  21  days,  the  Board  was

obligated to accept the 25% rating.

           But  as  the  insurer correctly argues,  Mr.  Bauder's

argument is premised on a misunderstanding of the consequences of

not  timely  filing  a controversion.  When an  employer  neither

timely  pays  nor  controverts  a  claim  for  compensation,   AS

23.30.155(e) imposes a 25% penalty to be paid "at the  same  time

as,  and  in  addition  to" the unpaid compensation.   Thus,  the

failure  to controvert compensation within 21 days does  not  bar

the  employer from later filing a controversion nor does it  mean

that the level of impairment is established.116

          Instead, failure to file a controversion within 21 days

results in a 25% penalty under AS 23.30.155(e) if the employer is

ultimately   found   liable  for  the  disputed  compensation.117

Accordingly, Mr. Bauder's argument that Alaska Airlines'  failure

to  controvert either of Dr. Boettcher's ratings within  21  days

precludes them from doing so later is without merit.


           Mr.  Bauder  next argues that the Board erred  in  not

awarding  him  temporary total disability benefits while  he  was

working  for NOVI Global Investments.  Temporary total disability

benefits are governed by AS 23.30.185:

               In case of disability total in character
          but  temporary in quality, 80 percent of  the
          injured  employee's  spendable  weekly  wages
          shall  be  paid  to the employee  during  the
          continuance  of  the  disability.   Temporary
          total disability benefits may not be paid for
          any  period of disability occurring after the
          date of medical stability.[118]
Alaska  Statute 23.30.395(1) defines "disability" as  "incapacity

because  of  injury  to  earn the wages which  the  employee  was

receiving  at  the time of his injury in the same  or  any  other

employment."  AS 23.30.395(21) defines "medical stability" as

          the  date  after  which  further  objectively
          measurable  improvement from the  effects  of
          the  compensable  injury  is  not  reasonably
          expected  to  result from additional  medical
          care   or   treatment,  notwithstanding   the
          possible need for additional medical care  or
          the    possibility    of    improvement    or
          deterioration resulting from the  passage  of
          time; medical stability shall be presumed  in
          the   absence   of   objectively   measurable
          improvement  for a period of  45  days;  this
          presumption  may  be rebutted  by  clear  and
          convincing evidence[.]
           The  presumption of compensability in AS  23.30.120(a)

applies  when  an employer controverts continuing entitlement  to

temporary benefits.119  To overcome this presumption, the employer

must  introduce "substantial evidence" to the contrary.120   From

late  November 1995 until May of 1996, Mr. Bauder worked  as  the

Director of Human Resources/Pilot for NOVI Global Investments.121

He  was  supposed to be paid a yearly salary of  $60,000  and  in

March was given a raise to $90,000.  But NOVI never paid him.122

           In  denying Mr. Bauder's claim for temporary  benefits

during this period, the Board found:

                Although  the  employee  may  not  have
          received  his  pay from NOVI, the  record  is
          clear he worked for pay, and was entitled  to
          pay.   We find the employee's argument he  is
          due  [temporary  total  disability]  benefits
          because NOVI violated its contract to pay him
          is  disingenuous.   We  find  the  employee's
          resulting  earning loss, and his  resignation
          from  that position, were not related to  his
          work  injury and not compensable.  Vetter  v.
          AWCB, 524 P.2d 264, 266 (Alaska 1974).[123]
But  Mr.  Bauder argues that the Board erred in not awarding  him

temporary  benefits  during the time  he  was  employed  by  NOVI

because he was never actually paid a salary.

           In  Bailey,  the Supreme Court held that returning  to

work  "is  sufficient  evidence  to  rebut  the  presumption   of

continuing  compensability  for temporary  total  disability."124

Because   Mr.  Bauder  returned  to  work,  the  presumption   of

compensability  is  overcome.  But in Olson, the  Alaska  Supreme

Court  noted  that it has "never indicated that  obtaining  `any'

work   terminates   an  employee's  right  to  [temporary   total

disability] benefits."125  Mr. Bauder relies on this case.

           In  Olson,  the  Board denied the  employee  temporary

benefits during the time he was capable of working as a tire shop

manager.126  The Board emphasized that the employee had joined his

father's retreading shop as an organizer/supervisor.127  But  the

Supreme Court reversed.  The court ordered the Board to "consider

Olson's earning potential and the availability of employment."128

The court emphasized that Mr. Olson was not paid for his work  in

his father's shop.129  Further, the court distinguished Bailey by

noting  that  the employee in Bailey was earning more  after  his

injury than he did prior to being injured.130

           Mr. Bauder's situation is distinguishable from that in

Olson.  First, Mr. Bauder was eligible for, and fully expected to

be  paid  by NOVI.  Moreover, his agreed-upon salary far exceeded

what  he had been earning at Alaska Airlines at the time  of  his

injury.   In  fact,  when  he  received  the  December  29,  1995

controversion notice for temporary benefits, Mr. Bauder testified

that  he  did not contest it because he was expecting to be  paid

and did not need the benefits.131  Furthermore, Mr. Bauder filed a

wage claim against NOVI and received a judgment in his favor.132

          Second, and most importantly, there is no evidence that

Mr.  Bauder's not being paid by NOVI was related to  his  injury.

The   purpose   of   workers'  compensation   law   is   "partial

reimbursement for loss of earning capacity due to injury."133  In

other  words, workers' compensation disability is based primarily

on  an impairment in working capacity.134  As the Board correctly

noted,  Mr. Bauder's failure to be paid for his work at NOVI  was

not related to his work injury.  Therefore he is not entitled  to

temporary benefits during the time he was employed by NOVI.135


           Mr.  Bauder  argues  that  the  workers'  compensation

administrator and subsequently the Board miscalculated the amount

of temporary total disability benefits he was entitled to.  Under

AS   23.30.185,   the  compensation  rate  for  temporary   total

disability  benefits is calculated by taking 80% of  the  injured

employee's  "spendable  weekly wages."  An employee's  "spendable

weekly wages" are defined in former AS 23.30.220(a), which at the

time of Mr. Bauder's injury, provided:

     (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;
     (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[.]
           The  administrator calculated Mr. Bauder's  "spendable

weekly   wage"   under  AS  23.30.220(a)(1).   The  administrator

determined  that Mr. Bauder had gross earnings over the  previous

two  calendar  years  before the accident of $23,563.00.   Eighty

percent of this number after deducting payroll taxes and dividing

by 100 as required by the statute is $157.34.136  The Board agreed

with this calculation because it found that Mr. Bauder was absent

from the labor market less than 18 months during 1991 and 1992.137

          Mr. Bauder argues that the Board should have calculated

his  spendable  weekly wage under AS 23.30.220(a)(2)  because  he

claims he was absent from the labor market for 18 months in  1991

and  1992 while he was a student in North Dakota.  The issue then

is  whether there is substantial evidence to support the  Board's

finding  that  Mr. Bauder "was absent from the labor  market  for

less than 18 months during 1991 and 1992."

          The Board has interpreted "18 months or more of the two

calendar  years preceding the injury" to mean working  less  than

183  days  of the two previous years or less than 1040  hours  of

work  during  those two years.138  The Board concluded  that  Mr.

Bauder  worked  13 weeks in 1991 and roughly 18  weeks  in  1992.

Therefore, according to the Board's calculations, Mr. Bauder  was

present  in  the  labor market for a total of 31 weeks,  or  7.75

months in 1991 and 1992.139

           The  Board's  calculations appear to be  supported  by

substantial evidence.  The evidence establishes that  Mr.  Bauder

worked  for  Alaska Airlines for approximately 12  weeks  in  the

summer  of  1991 and he commercial fished for one or  two  weeks.

Similarly,  in  1992, the evidence establishes  that  Mr.  Bauder

again worked for Alaska Airlines for approximately 12 weeks  over

the   summer  and  commercial  fished  for  one  or  two   weeks.

Additionally,  he  worked at Alaska Airlines for  about  10  days

during the Christmas holiday in 1992.

           This evidence establishes that Mr. Bauder was employed

for at least 28 weeks (seven months), or to put it in terms of AS

23.30.220(a)(2), Mr. Bauder was absent from the labor market  for

17 months during 1991 and 1992.140  Although the court finds that

Mr. Bauder worked for three fewer weeks than the Board, this does

not change the Board's determination that AS 23.30.220(a)(2) does

not  apply.   Even by the court's more conservative calculations,

Mr. Bauder was not "absent from the labor market for 18 months or

more of the two calendar years preceding the injury."

           As  an  alternative method of determining  whether  AS

23.30.220(a)(2) applies, the Board calculated the number of hours

that  Mr.  Bauder worked in 1991 and 1992.  The Board found  that

Mr. Bauder worked 1705 hours during these two years.  In arriving

at  this  conclusion, the Board relied on Mr. Bauder's  testimony

that he worked on average 55 hours a week.141

          This calculation is problematic because it appears that

Mr. Bauder's answer about the number of hours he worked had to do

with  the summer of 1993.142  The number of hours worked  by  Mr.

Bauder in 1993 is not relevant.  The issue is the number of hours

worked  in the two calendar years preceding the injury, 1991  and


          Another way to calculate the number of hours Mr. Bauder

worked  in  1991 and 1992 is to divide his income by  his  hourly

wage.  In 1991, Mr. Bauder earned $6,131.57143 at Alaska Airlines

and was paid $9.70 per hour.144  Thus, he worked approximately 632

hours  in  1991 at the airline.  Similarly, in 1992,  Mr.  Bauder

earned  $8,355.94145 at Alaska Airlines and was paid  $11.63  per

hour.146  Thus, he worked approximately 718 hours in 1992.  Based

on  his yearly earnings and hourly wage, Mr. Bauder worked for  a

total of approximately 1350 hours for Alaska Airlines in 1991 and


           But, as pointed out by Mr. Bauder, this calculation is

also  problematic because it fails to take into account  overtime

pay.   Similarly,  Mr. Bauder asserts that because  he  sometimes

worked  only  part-time, and not seven days  a  week,  the  court

should  subtract  some workdays from the total concluded  by  the


           The administrator argued and the Board found that  Mr.

Bauder  bore  the  burden of proof on these issues  and  that  he

failed  to provide the evidence that would establish that he  was

absent  for more than 18 months over those two years.  Mr. Bauder

forcefully argues that this was a misapplication of the burden of

proof.   He  also  argues  that  applying  this  formula  to  his

circumstances does not address his actual loss and  therefore  is

unconstitutional.  But the court need not resolve these  disputes

because  even  if  the  Board applied subsection  (a)(2)  of  the

statute, the result would be the same.

           The  Alaska  Supreme  Court  has  determined  that  AS

23.30.220(a)(1) may be unconstitutional in certain circumstances.

In  Gilmore v. Alaska Workers' Compensation Board,147  the  court

expressed  its concern that the formula may, in some cases,  lead

to an unfair earning determination.  The court explained:

          Because  this formula divides the  employee's
          total gross wages over the two year period by
          100 regardless of how many weeks the employee
          actually  worked  during  this  period,   the
          employee's   actual  wage  earning   capacity
          during  periods of employment is  reduced  in
          proportion  to  any  period  in   which   the
          employee was unemployed for any reason.   The
          resulting  benefits  therefore  may  only  be
          randomly  related  to  the  injured  worker's
          actual loss.  This formula applies regardless
          of  any  discrepancy, no  matter  how  large,
          between  the  result of the formula  and  the
          actual wages lost by the employee during  the
          period of his or her disability.[148]
           But the Board specifically addressed this issue.   The

Board determined that:

          The  employee's tax records and his testimony
          show  the  employee's work for  the  employer
          during   1991   and   1992   was   reasonably
          consistent  with his earnings and pattern  of
          work  for  the period of the disability.   We
          find    that    the   application    of    AS
          23.30.220(a)(2) would not have  substantially
          altered his compensation rate, in any  event.
          The employee had a consistent pattern over  a
          number  of  years, working for this  employer
          and  going  to college to prepare for  career
          employment.  The employee moved into aviation
          career  (or  career preparation) work  almost
          immediately after graduation.
                 If  we  consider  the  nature  of  the
          employee's  work  and work history  under  AS
          23.30.220(a)(2), we find the  employee  would
          have  continued the pattern of work and study
          during  the  period  he  received  [temporary
          total disability] benefits.[149]
           The reliability of Mr. Bauder's past work history as a

predictor of his earning potential during the time he is entitled

to  temporary total disability benefits presents a factual issue.

Therefore, the court must determine "whether the evidence  relied

on  [by  the Board] was substantial in light of the record  as  a


           A  primary  purpose of Alaska's workers'  compensation

laws "is to predict accurately what wages would have been but for

a  worker's  injury."151  Under Gilmore the issue is whether  Mr.

Bauder's past work history is an accurate predictor of his future

earning  capacity.152   "[W]here past wage  levels  are  accurate

predictors,  the  Board  must apply  the  statutory  formula  [AS


           The Board found, and Mr. Bauder does not dispute, that

in  1991  and  1992 Mr. Bauder worked as a seasonal employee  for

Alaska  Airlines.  However, Mr. Bauder disagrees with the Board's

conclusion that he would have continued to attend school and work

as  a  seasonal  employee during the time he  received  temporary

benefits.  Mr. Bauder argues that the Board ignored his testimony

that  he  would  have  foregone school and accepted  a  full-time

yearly position working as a ramp agent had it been available.154

Further, Mr. Bauder testified that by 1995 or 1996 he would  have

had enough seniority to hold a full-time position.155

           Mr.  Bauder  correctly notes that the  Alaska  Supreme

Court  has recognized that " `intentions as to employment in  the

future   are  relevant  to  a  determination  of  future  earning

capacity' in determining proper compensatory awards"156 and  that

"[l]imited  working hours following injury are  not  particularly

relevant  to a determination of a worker's probable work patterns

had  no  injury  been  sustained."157  But there  is  substantial

evidence in the record to support the Board's conclusion that the

temporary  benefits  accurately reflect Mr.  Bauder's  wage  loss

because of the injury.

           Mr. Bauder has wanted to fly since at least 1988.  His

initial  interest in working for Alaska Airlines  was  to  pursue

this  goal.  By 1990, he started a work pattern that would  allow

him to achieve his goal.  He began college to pursue a degree  in

aviation administration and he started to fly.  He went to school

during  the school year, and like untold numbers of other college

students, he worked during the summers and, sometimes,  over  the

Christmas school breaks to support his education.

           Mr.  Bauder was never a full-time, year-round employee

and  for  good  reason.  Working as a ramp agent would  not  have

allowed him to get the education and flying time he needed to  be

a pilot.158  He was a seasonal employee who worked to support his

college education.  To require Alaska Airlines' insurance company

to  pay  him  benefits  as  if he were  a  full-time,  year-round

employee would not accurately reflect Mr. Bauder's work history.

           In  addition,  according to Alaska  Airlines  workers'

compensation manager Donna Eglund, there were no full-time  ramp-

agent  positions available for Mr. Bauder.159  In light of  these

factors,  the  Board's  conclusion that  Mr.  Bauder  would  have

continued to attend school full-time while working seasonally for

Alaska Airlines is supported by substantial evidence.

           Finally, Mr. Bauder argues that the disparity  between

his  weekly  earnings  prior  to his  injury160  and  his  weekly

compensation  rate of $157.34 is unconstitutional because  it  is

"grossly  unfair."   However, Gilmore  does  not  stand  for  the

proposition  that  a  discrepancy between what  an  employee  was

earning at the time of his injury and his compensation rate under

AS   23.30.220(a)(1)  makes  the  application  of   the   statute


           Instead,  the  goal is to compensate  injured  workers

"based on their actual losses."162  As already discussed,  it  is

undisputed  that  during the two years prior to his  injury,  Mr.

Bauder was a college student and a seasonal employee163 who worked

during  the  summers  in 1991 and 1992 and during  the  Christmas

holiday in 1992.

          Therefore, Mr. Bauder's employment with Alaska Airlines

in  1991 and 1992 accurately reflected the circumstances existing

at  the time of his injury.164  Under either subsection (a)(1) or

subsection (a)(2) of AS 23.30.220, the temporary total disability

benefits were an accurate reflection of Mr. Bauder's wage loss.165


           Mr.  Bauder argues that the Board erred by failing  to

conclude that the workers' compensation administrator frivolously

and  unfairly controverted his right to benefits.  Of  the  three

controversions  filed  in this case, Mr. Bauder  focuses  on  the

controversion  of  his right to a lump sum payment  of  permanent

partial impairment benefits filed on July 1, 1997.166  The relevant

statute, AS 23.30.155(o), provides as follows:

                The  board  shall promptly  notify  the
          division of insurance if the board determines
          that  the  employer's insurer has frivolously
          or  unfairly  controverted  compensation  due
          under  this chapter.  After receiving  notice
          from  the  board, the division  of  insurance
          shall  determine if the insurer has committed
          an  unfair claim settlement practice under AS
           The  Board  considered three arguments supporting  the

administrator's  position  that  the  controversions   were   not

frivolous  but  only  two  arguments involve  the  July  1,  1997

controversion.  One of those arguments, that Mr. Bauder committed

fraud, was sharply rejected by the Board.168  The Board found very

little  evidence  of fraud and found that the evidence  presented

about that investigation was hearsay.169

           But  the  Board  did  find that at  the  time  of  the

controversion, Mr. Bauder was being considered for  "reemployment

benefits."   According to the Board, during this  evaluation  and

determination phase for reemployment benefits, an employee is not

entitled to receive a lump sum impairment award.170

           Furthermore,  the July 1, 1997 controversion  did  not

contest the payment of permanent partial impairment benefits;  it

just  contested a lump sum payment.171   Therefore,  the  Board's

conclusion that the July 1, 1997 controversion was not  frivolous

or  unfair  because it did not deny Mr. Bauder any  "compensation

due" under AS 23.30.155(o) is supported by substantial evidence.


           In  its  July 6, 1997 decision, the Board  denied  and

dismissed  Mr.  Bauder's claim for penalties and  his  claim  for

interest, but awarded him $3,125 in attorney's fees and $1,168.92

in costs under AS 23.30.145(b).

          In his opening brief, Mr. Bauder requested that

          the  maximum statutory penalties be  assessed
          against  the employer, due to the substantial
          and  egregious underpayment, the  refusal  to
          pay amounts clearly and undisputedly due, and
          the  failure of the employer to come  forward
          with any substantial evidence to support  its
          controversion  or  its  failure  to  pay  the
          proper amount of compensation which was due.
                 Indeed,   had  the  employer  properly
          considered  Bauder's  eligibility  under  the
          alternative method of computation of his  TTD
          rate, the problems that are now presented  by
          the lack of detailed records as to the number
          of days or hours which he worked would not be
               Furthermore, substantial and intentional
          violations  of  the statutes and  regulations
          applicable  to compensation proceedings  have
          occurred  in  this  case.    Therefore,   all
          unpaid amounts should have interest assessed,
          and  all  attorney's  fees  incurred  by  the
          employee should be awarded.172
            Mr.   Bauder's  arguments  for  penalties,  interest,

attorney's  fees,  and  costs  are dependent  on  his  successful

overturning of the Board's decision on the other issues raised in

his  appeal.  Because the court has upheld the Board's  decision,

there  is substantial evidence supporting the Board's conclusions

regarding penalties, interest, attorney's fees, and costs.

                         X.  CONCLUSION

           For  the foregoing reasons, the decision of the Alaska

Workers' Compensation Board is affirmed.  The Board reserved  the

issue  concerning  the overpayment of temporary total  disability

benefits  until  after  the decision  on  appeal.   The  case  is

therefore remanded to the Board to resolve this final issue.

          Dated at Wrangell, Alaska, this 29 day of August, 2000.

                                        Larry C. Zervos
                                        Superior Court Judge
1The  opinion  of the superior court has been edited  to  conform
with the formal standards of this court.
2Record on Appeal at 1 (hereinafter "R.").
3Transcript   of   Proceedings   Before   the   Alaska   Workers'
Compensation  Board,  December 8, 1998 at 39 (hereinafter  "Board
5Board Tr. 40.
7Tr. 41;  R. 101-04.
9Tr. 41-42;  R. 93.
10Board Tr. 38, 74; R. 98-99.
11R. 88.
12R. 85.
13Board Tr.  42; R.  75-83.
14R. 74.
15R. 73.
16Board Tr. 44-45.
17R. 70.
18R. 69.
19Board Tr. 45, 118; R. 57.
20Board Tr. 46.
21Board Tr. 118; R. 52, 55.
22Board Tr. 49; R. 957-58, 118-19.
23Tr. 51; R. 947.
24Board Tr. 51; R. 960, 116.
25R. 115.
26Board Tr. 53-54; R.1.
27Board Tr. 55; R. 970.
28Board Tr. 55; R. 972.
29Board Tr. 56-57; R. 973.
30R. 994-98.
31R. 994-96.
32R. 997.
33Tr. 59; R. 968,  998.
34Board Tr. 59.
35R. 890, 1003-04.
36R. 1003.
37R. 1005-06.
38R. 1026-27.
39R. 1032.
40R. 1.
41R. 2.
42R. 2-5.
43Board Tr.  72-73; R. 1051.
44R. 1033.
45R. 1035.
46R. 112.
47R. 7.
48R. 1049.
50R. 1010, 1051, 111.
51R. 111.
52R. 7.
53R. 280, 947.
54Board Tr. 80; R. 280.
55Board Tr. 80.
56Board Tr. 80-83.
57Board Tr. 83; R. 280.
58R. 10.
59Board Tr. 130-31; R. 6.
60R. 6.
61Board Tr. 152; R. 1061, 1062.
62R. 7.
63Board Tr. 83-84; R. 280
64Board Tr. 84.
65Board Tr. 84-85, 101.
66Board Tr. 101.
67R. 1065.
68R. 1066-68.
69R. 1067.
70R. 1070-71.
71R. 16.
72R. 1111.
74R. 16.
75R. 1098.
76R. 1100.
77R. 1100-01.
78R. 1100-04.
79R. 14.
80Report of Dr. Shawn Hadley, Exhibit 1 attached to deposition of
Dr.  Shawn  Hadley  dated  December 1, 1998  (hereinafter  Hadley
81Hadley Report at 5.
82R. 906.
83Decision  and  Opinion, 98-0322, at 12, 15, December  31,  1998
(hereinafter December Decision).
84Id. at 15.
85Decision  and Opinion, 99-0144, at 5, July 6, 1999 (hereinafter
July Decision).
86Id. at 6.
87Id. at 9.
89Id. at 12.
90July Decision at 12-16.
91Id. at 11.
92In his briefing, Mr. Bauder sought temporary benefits for other
periods.  But at oral argument, he waived these arguments.
93This  statute  was  amended after  Mr.  Bauder's  injury.   The
amendment  took  effect September 4, 1995.  See  75  SLA  ch  75,
sections 9, 10 (1995).
94Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska
95Peninsula Correctional Health Care v. Dep't of Corrections, 924
P.2d 425, 426 (Alaska 1996).
96Thompson  v. United Parcel Service, 975 P.2d 684,  688  (Alaska
101July Decision at 8.
102Id. at 9.
104AS 23.30.122; Thompson, 975 P.2d at 688.
105Thompson, 975 P.2d at 688.
106The Board did not address this issue in either of its decisions.
107AS 23.30.190(a).
108R. 1067-68.
109R. 1100-01.
110R. 875-76.
111July Decision at 8.
112R. 6.
113R. 14.
114R. 17.
115Sumner v. Eagle Nest Hotel, 894 P.2d 628, 631 (Alaska 1995).
116In support of his argument, Mr. Bauder cites Hammer v. City of
Fairbanks, 953 P.2d 500 (Alaska 1998), and Bockness v. Brown Jug,
Inc.,  980 P.2d 462 (Alaska 1999).  But Mr. Bauder's reliance  on
these  cases  is  misplaced.  In Hammer, the  court  imposed  the
statutory  penalty on the employer for failing to timely  pay  or
file  a controversion.  Hammer, 953 P.2d at 507.  Hammer did  not
even   suggest   that  a  potential  remedy  for   a   late-filed
controversion was issue preclusion.  In Bockness, the issue of an
untimely  controversion was not discussed.  Neither  case  stands
for  the  proposition  that if an employer  does  not  controvert
benefits  within  21 days, it is forever barred  from  doing  so.
Further,  8  AAC 45.182, which governs controversions,  does  not
provide  that  controversions must be made within a certain  time
period or thereafter waived.
117Because  the  Board agreed with Dr. Smith and found  that  Mr.
Bauder  sustained a 15% impairment and the additional  award  was
promptly paid, no penalty is appropriate under AS 23.30.155(e).
118The  Board  accepted Dr. Boettcher's opinion that  Mr.  Bauder
reached  medical  stability as of June 5, 1997.   AWCB  decision,
July 6, 1999 at 11.
119Olson v. AIC/Martin J.V., 818 P.2d 669, 672 (Alaska 1991).
120Id. at 672, citing Bailey v. Litwin Corp., 713 P.2d 249,  252,
254 (Alaska 1986).
121Board Tr. 83-85.
122Board Tr. 84.
123July Decision at 12.
124Bailey, 713 P.2d at 254.
125Olson, 818 P.2d at 673.
126Id. at 671-72.
127Id. at 674.
128Id. at 673.
129Id. at 674.
130Bailey, 713 P.2d at 251-52.
131Tr. 86.
132Board Tr. 101.
133Wagner v. Stuckagain Heights, 926 P.2d 456, 458-59 (Alaska 1996)
(citations omitted) (emphasis added).
134Vetter v. Alaska Workmen's Comp. Bd., 524 P.2d 264, 266 (Alaska
136R.  2.   Neither party disagrees with this math.  As discussed
below,  however,  Mr. Bauder does dispute the  statutory  formula
used to calculate his "spendable weekly wages."
137December Decision at 11.
140This calculation gives Mr. Bauder the benefit of the doubt  by
assuming that he commercial fished for only one week in both 1991
and 1992.
141Board Tr. 63.  Fifty-five hours per week times 31 weeks of work
equals 1705 hours.
142Board Tr. 62-63.
143R. 795, Board Tr. 47.
144Board Tr. 119.
145R. 788.
146Board Tr. 63.
147882 P.2d 922, 929 n.17 (Alaska 1994).
148Gilmore, 882 P.2d at 924.
149December Decision at 11-12.
150Thompson, 975 P.2d at 690.
151Id. at 689.
152Id. at 690.
153Id. at 689.
154Board Tr. 102-03.
155Board Tr. 170.
156Thompson, 975 P.2d at 690, quoting State Dep't of Transp. & Pub.
Facilities  v.  Gronroos, 697 P.2d 1047, 1049 n.2  (Alaska  1985)
(citation omitted).
157Id. at 691.
158Board Tr. 114.
159Board Tr. 113-14.  Further, there is no evidence in the record
to support Mr. Bauder's assertion that he had enough seniority to
qualify  for a full-time yearly ramp position at Alaska  Airlines
by 1995 or at the latest in 1996.  Board Tr. 170-71.
160In  his  brief on appeal, Mr. Bauder asserts that  his  weekly
earnings  in  1991-1993 were approximately $900.   In  his  reply
brief,  he  states that his weekly earnings prior to  his  injury
were  $639.65.  Finally, at oral argument, Mr. Bauder's  attorney
said  that  Mr.  Bauder's weekly earnings in 1991 and  1992  were
approximately $450 or $500.
161Thompson, 975 P.2d at 689 ("the disparity is only relevant  if
past  wages  do not accurately predict future earning  potential.
The  disparity  does  not per se indicate a  lack  of  predictive
162Gilmore, 882 P.2d at 928.
163In Gilmore, the court noted with disapproval that Alaska is "the
only state which includes significant periods of unemployment  in
calculating  the  worker's  average  wage  without  requiring   a
preliminary  finding that the worker was employed in  a  seasonal
occupation at the time of the injury."  Gilmore, 882 P.2d at 929.
165See  Deuser  v.  State, 697 P.2d 647, 650 n.2  (Alaska  1985),
quoting  2  A.  Larson, The Law of Workmen's  Compensation   60.-
21(c), at 10-592 (1983) ("If claimant's part-time relation to the
labor  market is `clear, and above all if there is no  reason  to
suppose it will change in the future period into which disability
extends,  then it is unrealistic to turn a part-time  able-bodied
worker  into  a  full-time  disabled  worker.'  ")  (emphasis  in
166R. 14.
167Emphasis added.
168July Decision at 13.
170AS 23.30.041(k).  Neither party disputes the Board's findings on
this issue.
171R. 14; Board Tr. 138-39, 143-44.
172Mr. Bauder's Opening Brief at 16. (Citations to record omitted.)