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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alyeska Pipeline Service Co. v. DeShong (10/3/2003) sp-5740

Alyeska Pipeline Service Co. v. DeShong (10/3/2003) sp-5740

     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

ALYESKA PIPELINE SERVICE      )
COMPANY,                                     )
                              )    Supreme Court No. S-10083
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-00-3700 CI
                              )
MABEL V. DeSHONG and the           )
ALASKA WORKERS                          )
COMPENSATION BOARD,                )    O P I N I O N
                              )
             Appellees.                  )    [No. 5740 - October
                              3, 2003]
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Fred Torrisi, Judge.

          Appearances:  Michael A. Budzinski,  Russell,
          Tesche,  Wagg,  Cooper & Gabbert,  Anchorage,
          for  Appellant.   Mabel V. DeShong,  pro  se,
          Fairbanks.

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

          CARPENETI, Justice.
          EASTAUGH,   Justice,  with   whom   MATTHEWS,
          Justice, joins, dissenting in part.

I.   INTRODUCTION

          I.   A worker filed a claim for workers compensation after

injuring  her elbow while working for her employer.  Therapy  did

little  to  alleviate  her condition, yet  she  did  not  undergo

surgery  until  two years later after changing  doctors.   Before

undergoing that surgery, the worker was laid off by the employer.

She applied for total temporary disability benefits from the time

of  her lay-off to the date of her ultimately successful surgery.

She  overcame a presumption of medical stability and was  awarded

benefits even though she received unemployment benefits for  part

of  the  claimed period.  Because the Workers Compensation  Board

did  not  err in finding that the worker overcame the presumption

of   medical  stability,  and  because  receipt  of  unemployment

benefits  does  not  absolutely bar  temporary  total  disability

benefits  if the unemployment benefits are paid back,  we  affirm

the decision of the superior court that affirmed the decision  of

the board.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          Mabel Tiny DeShong was an administrative assistant  for

Alyeska  Pipeline  Services Company (Alyeska) when  she  filed  a

report  of occupational injury or illness with the Alaska Workers

Compensation Board (board) on January 11, 1998.  She alleged that

her  job-related use of a computer mouse resulted in right  elbow

joint pain.

          DeShongs  first  doctor,  Robert  D.  Dingeman,   M.D.,

diagnosed  her  as having  activity-related right dominant  elbow

medial  condylitis on January 13, 1998.  Dr. Dingeman fitted  her

for  a  splint, arranged for physical therapy, and discussed  the

possibilities  of  cortisone  injections  and  surgery.   Alyeska

arranged  for  an  ergonomic  workstation  evaluation,  and  then

implemented  the  recommendations of  the  evaluation,  modifying

DeShongs work environment in an effort to alleviate her symptoms.

          Following  several rounds of therapy  and  use  of  the

improved workspace, DeShong was doing considerably better at  her

April 1998 appointment with Dr. Dingeman.  At that time, she told

him that she did not want cortisone injections.  In June 1998 Dr.

Dingeman stated that she ought to consider having surgery in  the

future.  He placed DeShongs arm in a cast for two weeks.  Because

of  her objections to surgery, Dr. Dingeman stated in August 1998

that  she  was not a surgical candidate, but he recommended  that

she obtain a second opinion by an orthopedist within two weeks.

          In  September 1998 Dr. Dingeman again recommended  that

DeShong  be  evaluated  by  one  of  the  two  hand  surgeons  in

Anchorage,  though  she  was rather determinedly  a  non-surgical

candidate  as  yet.   In  the  same September  1998  report,  Dr.

Dingeman   said,   I  would  state  again  for  the   record   my

recommendation that she be evaluated further by one  of  the  two

hand surgeons in Anchorage soon.

          In  October  1998  Alyeska requested  that  DeShong  be

evaluated  by  Dr.  Michael  Gevaert  pursuant  to  an  employer-

sponsored  independent medical evaluation  (EIME).   Dr.  Gevaert

diagnosed her as having chronic medial epicondylitis.   He  found

that  twelve  weeks  of physical therapy had  failed  to  produce

favorable  results and noted that she did not  want  to  consider

steroid  injections.  Dr. Geveart, therefore, found that she  had

reached  medical stability1 and recommended a functional capacity

evaluation to determine her permanent work restrictions.2

          DeShong  returned  to  Dr. Dingeman  in  November  1998

because  she continued to experience pain and discomfort  in  her

arm.   Dr.  Dingeman found her lack of improvement over  so  many

months   to  be  of  concern.   He  speculated  as  to   surgical

exploration  but recommended that such consideration be  deferred

until after any disposition process occurs.3

          In  December  1998  DeShong was laid  off  by  Alyeska.

During her visit on January 19, 1999, Dr. Dingeman noted that she

had  reached  statutory stability [but had] not reached  clinical

stability in the natural course and progression of her condition.4

Such  progression, Dr. Dingeman stated, could last up to eighteen

months.   DeShong asked whether she should obtain  an  additional

opinion, and he endorsed that idea for disposition purposes.

          DeShong was again seen by Alyeskas doctor, Dr. Gevaert,

in  April  1999.  Dr. Gevaert, finding no significant  functional

change  since October 26, 1998, said that she remained  medically

stable.   As DeShong had undergone a physical capacity evaluation

that  concluded  that she could perform her usual  and  customary

          job,  Dr.  Gevaert found there to be no permanent  work

restrictions.

          The  question whether DeShong was entitled to a  second

opinion  took on great importance.  While she was being  treated,

DeShong  expressed her desire to both Alyeska  and  Dr.  Dingeman

that  she  obtain a second opinion from a doctor of  her  choice.

She  did not obtain a second opinion until August 1999, after Dr.

Dingeman had found her to be medically stable.

          There  was substantial confusion on the part of DeShong

and  Dr. Dingeman over whether or not DeShong was entitled  to  a

second  opinion.   In July 1999 DeShong filed a  claim  with  the

board   alleging  that  Alyeska  had  denied  her   request   for

authorization  to  visit another doctor  for  a  second  opinion.

DeShong alleged that she was told by Alyeska that the company had

already  paid for a second opinion, that of Dr. Gevaert.  DeShong

also  asserted that she was told by Alyeskas representative  that

she  would still be able to have a second opinion by a doctor  of

her  own  choice  if  she saw Dr. Gevaert.   Alyeska  replied  by

asserting  several  affirmative  defenses,  including  that   Dr.

Dingeman  was  DeShongs treating physician and that  he  had  not

referred  her  for  a  second  medical  opinion.   Dr.  Dingeman,

however, thought that it was Alyeskas responsibility to arrange a

second opinion.  Dr. Dingeman noted in July 1999 that

          [s]omehow the patient has the impression that
          the  previously  recommended second  opinions
          and  consultations can be facilitated through
          this   office.   It  was  shared  back   that
          typically   the  carrier  must   make   those
          arrangements  with the doctors  who  consider
          and   accept   such   cases.    Usually   the
          adjuster/rehabilitation  specialist   obtains
          the  physician and provides them with a  list
          of  clinical and administrative questions  to
          be    addressed,   and   that    there    are
          circumstances    making    availability    of
          physicians  for  these types  of  evaluations
          available is known to both the adjusters  and
          the  board.  The circumstances by which these
          challenges  arose in the last  year  are  not
          within the power of this individual office to
          alter or facilitate.
          
Although Dr. Dingeman had requested that DeShong be evaluated  by

a  specialist  on  several occasions, he told DeShong  that  such

arrangements  needed  to  be  made  through  Alyeska.   This   is

incorrect.   By law, Dr. Dingeman could have referred DeShong  to

another  doctor for further evaluation.5  When DeShong  requested

permission  from  Alyeska  to obtain  a  second  opinion  as  Dr.

Dingeman  advised  her to do, Alyeska denied the  request.   When

DeShong  was made aware that she could change physicians  at  the

prehearing conference before the board, she did so.

          DeShong  saw  Dr. Carl Unsicker, who diagnosed  her  as

having medial epicondylitis6 and possible ulnar entrapment.7   He

recommended  a  nerve conduction study8 and  a  reevaluation  for

surgery.   Dr.  Jeremy Becker reviewed the results of  the  nerve

conduction  study and concluded that DeShong suffered  from  mild

median  neuropathy9  in  the right wrist with  significant  ulnar

neuropathy10  in  the  right elbow.  Upon receiving  Dr.  Beckers

recommendation  of  surgery, DeShong consented  and  surgery  was

successfully performed on September 15, 1999.

          Until  DeShongs  surgery, Dr. Dingeman allowed  her  to

continue  working  in a light duty capacity.   Alyeska  had  been

accommodating DeShongs work restrictions until she was  laid  off

on  December 27, 1998.  After being laid off, DeShong sought  and

received  unemployment benefits until her surgery, at which  time

Alyeska  began  paying Temporary Total Disability (TTD)  benefits

for the period of surgery and recovery.

     B.   Proceedings

          In  July  1999  DeShong filed a claim for TTD  benefits

from  the time of her layoff in December 1998 through that  date.

DeShong testified at the March 2000 board hearing that she wanted

to  repay  her  unemployment benefits  and  instead  receive  TTD

benefits  from the time of her layoff to the date of her surgery.

The board considered whether DeShong was entitled to TTD benefits

for the time between her layoff and surgical treatment.

          Alyeska  contended before the board  that  DeShong  was

          ineligible for benefits as she had reached medical stability

during  the  claimed  benefits  period.   The  board  found  that

although Dr. Dingeman considered DeShong to be medically  stable,

there  was  no  dispute  that  she had  improved  after  surgery.

Because  Dr.  Dingeman  had  consistently  recommended  a  second

evaluation throughout his treatment and because DeShong  improved

after  surgery,  the board found that DeShong had produced  clear

and  convincing  evidence  of no medical  stability.   The  board

accordingly  found  that  DeShong was entitled  to  TTD  benefits

through the period of disability.

          Alyeska  also  argued  that  DeShong  remained  legally

ineligible   for   TTD  benefits  because   she   had   collected

unemployment  benefits while she was laid off.  The  board  found

that  DeShong had clearly disclosed her workers compensation work

limitations  on  her  unemployment application.   Since  she  was

unable  to  find work that fit her restrictions, the board  found

that  her  injury precluded her from finding a job  in  the  real

market.   Provided  she  pay back the unemployment  benefits  she

received from December 29, 1998 to September 15, 1999, the  board

found she was eligible for TTD benefits during that time.

          Alyeska  appealed this decision to the superior  court.

Superior Court Judge Fred Torrisi found that Dr. Dingeman did not

understand  that  DeShong had a legal right to a second  opinion,

nor  did DeShong.  Given DeShongs ambivalence towards surgery and

Dr.   Dingemans  finding  that  she  had  not  reached   clinical

stability,  the court found that a reasonable mind  could  accept

that  DeShong  had  not  during these  months  reached  statutory

stability, and that her surgery was delayed due to her  ignorance

of  her  right to a timely referral [for a second opinion].   The

court therefore upheld the boards decision to award TTD benefits.

          The  superior court next considered whether payment  of

unemployment  benefits constituted an absolute  bar  to  DeShongs

receipt  of  TTD benefits.  It found that interpretation  of  the

unemployment statute was within the boards expertise and that the

boards  interpretation was reasonable, and it concluded that  the

statute  does  not  present an absolute bar  to  receipt  of  TTD

benefits.  The court therefore affirmed the decision of the board

to  allow DeShong to receive TTD benefits provided she return her

unemployment benefits.  Alyeska appeals.

III. STANDARD OF REVIEW

          I.   When the superior court acts as an intermediate court of

appeal  in an administrative matter, we independently review  and

directly scrutinize the merits of the boards decision.11  Factual

findings  made  by the board are reviewed under  the  substantial

evidence standard.12  Factual findings will be upheld so long  as

there is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.13

          In questions of law involving the agencys expertise,  a

rational basis standard will be applied and we will defer to  the

agencys determination so long as it is reasonable.14  The rational

basis standard is applied where the agencys expertise is involved

or where the agency has made a fundamental policy decision.15

          We  will  substitute our own judgment for questions  of

law  that  do not involve agency expertise.16  In such  cases  we

adopt  the  rule  of  law  that is most persuasive  in  light  of

precedent, reason, and policy.17

IV.  DISCUSSION

     A.   DeShong Produced Clear and Convincing Evidence that She Was
          Not Medically Stable During the Time in Dispute.
          
          A.   The Alaska Workers Compensation Act awards TTD benefits to

those workers who have not reached medical stability pursuant  to

AS 23.30.185.18  Medical stability is reached at

          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 . . . .[19]

          Alyeska  argues that no physician expected that DeShong

would  experience  objectively  measurable  improvement  in   her

condition  during the time in dispute, and hence she had  reached

medical  stability.   Although Dr. Dingeman originally  indicated

that  surgery was a possibility, Alyeska asserts that  subsequent

indications prevented him from recommending surgery around August

1998, four months before the benefit period in dispute.

          The  board found that Dr. Dingeman considered  DeShongs

condition to be medically stable under AS 23.30.395(21).  DeShong

was therefore required to show clear and convincing evidence that

she was not medically stable.20  But the board also found that Dr.

Dingeman recommended evaluation by a specialist and that  DeShong

was  reluctant to undergo surgery until she received Dr.  Beckers

recommendation.   Because  DeShong  therefore  had  a  legitimate

reason   for  delay,  and  because  the  surgery  was  ultimately

successful,  the  board  concluded  that  clear  and   convincing

evidence showed that DeShong was not medically stable before  the

surgery and therefore was entitled to TTD benefits.

          As  noted  above,21 Dr. Dingeman consistently suggested

surgery as an option or recommended that DeShong obtain a  second

opinion.    He  suggested surgery for the first time  in  January

1998, and suggested a second opinion for the first time in August

of  that year.  Then, in four other reports dating from September

1998  to  May 1999, Dr. Dingeman either mentioned surgery  as  an

option or suggested that DeShong obtain a second opinion from  an

orthopedist.   Under these circumstances, there  was  substantial

evidence  to  support the boards finding that  she  had  produced

clear and convincing evidence that she was not medically stable.

     B.   The  Board Did Not Assign to Alyeska the Responsibility
          of Managing DeShongs Medical Care.
          
          The  Act  allows an employee to designate  his  or  her

treating  physician.22   An employee may change  physicians  once

without  the  written consent of the employer.23  Referral  to  a

specialist  is  not  considered a  change  in  physicians.24   An

employer  can  require  an employee to see  a  physician  of  the

employers choice as well, with this visit being separate from  an

employees right to choose his or her physician.25  An employee can

also be referred to a specialist or change physicians.26

          Alyeska  argues that the board incorrectly held Alyeska

responsible  for managing DeShongs medical care.   Any  delay  in

DeShongs referral to a second physician, Alyeska contends, is the

result  of  Dr. Dingemans misreading of the workers  compensation

statute.   Therefore,  Alyeska argues,  it  should  not  be  held

responsible for the delay in DeShongs surgery.

          But   the   boards  decision  does  not  hold   Alyeska

responsible  for the delay in DeShongs surgery; it  merely  noted

that  the  combination  of the employers delay  in  providing  an

evaluation  for the surgery and the final outcome of the  surgery

produced  clear and convincing evidence of no medical  stability.

And Alyeska was aware of DeShong and Dr. Dingemans confusion over

DeShongs  rights under the Act, because copies of  Dr.  Dingemans

reports were sent to Alyeska.  Alyeska, therefore, had notice  of

the  confusion  over  whether  or  not  DeShong  was  a  surgical

candidate; it was also aware of Dr. Dingemans desire for a second

opinion by a specialist.

          The  boards decision does not have the effect of making

Alyeska  responsible for managing DeShongs health care.   But  it

does  recognize DeShongs understandable confusion concerning  the

scope  of her rights.  And the superior court properly emphasized

the  traditional reluctance of courts to find that a  worker  has

waived  procedural rights to seek compensation unless the  worker

is  clearly  informed  of those rights.  As  the  superior  court

summarized the situation:

          In    construing   the   applicable   workers
          compensation  statutes,  the  Board  must  be
          guided  by the admonition of the courts  over
          the last 40 years that it has a duty to fully
          advise injured workers.  Alyeska agrees  that
          Dr. Dingeman did not appear to understand the
          applicable law, and it is apparent  that  Ms.
          Deshong  didnt  either.  All of  the  reports
          were  copied  to the Board contemporaneously.
          In October and November of 1998, Dr. Dingeman
          was  still  mentioning  surgery,  while  also
          saying  Ms.  Deshong didnt want  it,  and  in
          January  of 1999 he said she had not  reached
          clinical stability.  He specifically said she
          asked  about an additional opinion.   In  May
          they were still talking in the same vein, and
          in  July  Dr. Dingeman noted that  there  had
          been   no   additional  inquiries  from   the
          carrier.  Under these circumstances, based on
          the  entire  record, a reasonable mind  could
          accept that Ms. Deshong had not during  these
          months reached statutory stability, and  that
          her  surgery was delayed due to her ignorance
          of her right to a timely referral.
          Given DeShongs confusion and our unwillingness to  find

that  a  worker has waived procedural rights to seek compensation

unless  the worker is clearly informed of those rights, we  agree

with the superior courts resolution of this issue.

     C.   The  Board  Did  Not Err in Awarding  TTD  Benefits  to
          DeShong for a Period of Time in Which She Was Receiving
          Unemployment Benefits on Condition that She  Repay  the
          Unemployment Benefits.
          
          Alaska Statute 23.30.187 provides:

               Compensation  is  not  payable   to   an
          employee under AS 23.30.180 [compensation for
          permanent   total  disability]  or  23.30.185
          [compensation for temporary total disability]
          for  a  week  in which the employee  receives
          unemployment benefits.
          
          Alyeska argues that the board erred as a matter of  law

under  this  statute in awarding TTD benefits to  DeShong  for  a

period  of  time  in which she had already received  unemployment

benefits.   The  board found that the entire record  showed  that

DeShong  clearly  disclosed her light  duty  limitations  in  her

application  for unemployment.  Because she was  unable  to  find

work  under  these  restrictions, the board  concluded  that  her

injury  precluded her from a job in the real market.   The  board

awarded  her  TTD  benefits for the claimed period  provided  she

repays the [unemployment insurance] benefits received as required

by [] AS 23.30.187.

          In  upholding  the boards decision, the superior  court

found the boards interpretation of AS 23.30.187 to be within  the

boards  area  of  expertise and applied the deferential  rational

basis  standard of review.  But the statute does not involve  any

interpretation  or  question  of  law  relating  specifically  to

workers  compensation.   Where the question  presented  does  not

involve  agency expertise, the substitution of judgment  standard

is  used.27  This standard is appropriate where the knowledge and

experience  of the agency is of little guidance to the  court  or

where  the  case  concerns   statutory  interpretation  or  other

analysis   of   legal  relationships  about  which  courts   have

specialized knowledge.  28  Accordingly, we use our own  judgment

in reviewing the boards decision.

          We have not previously faced the issue now before us.29

We  must  interpret AS 23.30.187 to determine if it  presents  an

absolute bar to receipt of TTD benefits by an injured worker  who

has already received unemployment benefits.

          In  interpreting a statute, we consider  its  language,

its  purpose, and its legislative history, in an attempt to  give

effect  to  the  legislatures intent, with  due  regard  for  the

meaning  the statutory language conveys to others.30  As we  have

explained,  [i]n  order to interpret a statute  contrary  to  its

          plain meaning,  the plainer the language, the more convincing

contrary legislative history must be.  31

          Alaska   Statute   23.30.187  clearly   precludes   the

contemporaneous   receipt  of  temporary   or   permanent   total

disability benefits and unemployment benefits.32  Yet on its face,

the  statute  says  nothing about whether  an  employee  who  has

received  unemployment benefits for a week during which  she  was

eligible for, but did not receive, workers compensation benefits,

may repay the former in order to qualify for the latter.33 Because

of this inherent ambiguity, we turn to the purpose of the statute

and  its  accompanying  legislative history  for  indications  of

whether the legislature intended that such action be prohibited.

          The  purpose of the workers compensation system  is  to

compensate the victims of work-related injury for a part of their

economic loss.34  Under this system, each employer is required to

have  workers  compensation  insurance  to  cover  its  potential

compensation costs,35 resulting in the employer and the consumers

of  its  goods bearing much of the financial cost of the  system.

As we explained in Wright v. Action Vending Co.,36

          [t]he   ultimate  social  philosophy   behind
          compensation  liability  is  belief  in   the
          wisdom  of  providing, in the most efficient,
          most   dignified,  and  most  certain   form,
          financial  and  medical  benefits   for   the
          victims  of work-connected injuries which  an
          enlightened community would feel obligated to
          provide in any case in some less satisfactory
          form,  and of allocating the burden of  these
          payments  to the most appropriate  source  of
          payment, the consumer of the product.37
          
          Turning  to  the  legislative  history,  there  is   no

indication  that the legislature sought to render ineligible  for

workers  compensation  benefits an employee  who  has  previously

collected  unemployment insurance.  Instead, what it does  reveal

are  concerns regarding double recovery, the receipt  of  workers

compensation  benefits  by  employees who  have  already  reached

medical stability, and the disincentive to return to work created

by overpayment to injured workers.

          At  the  beginning  of the Twelfth Legislatures  second

session,  Representative Terry Martin, Chair of the  House  Labor

and Commerce Committee, circulated an open letter regarding House

Bill  159  (H.B.  159) to [a]ll concerned about  Alaskas  Workers

Compensation.38  In the letter, Representative Martin explained:

          Changes  have taken place in our state  which
          now  result in a number of claimants  drawing
          excessively large benefit amounts or  drawing
          benefits when they should not be entitled  to
          them  at  all.  An effort should be  made  to
          seek   alternatives  that   would   eliminate
          oversized,  unearned  benefits  while   still
          protecting   the   vast   majority   of   the
          workforce.[39]
          
Representative  Martin  recognized  the  possibility  of  overlap

between  workers compensation and unemployment insurance benefits

received  by  partially disabled workers  who,  while  unable  to

perform  their previous jobs, were still eligible  to  work,  and

proposed  that  they receive a dollar-for-dollar offset.40   This

proposal  was  not adopted, leaving open the possibility  that  a

partially  disabled  worker  could  simultaneously  receive  both

unemployment and workers compensation benefits.

          The concerns of Alaskas businesses were reflected in  a

report prepared by the Alaska Conference of Employers, Inc. (ACE)

entitled  Recommended Changes to the Alaskan Workers Compensation

Act.41   One of the suggestions made in this report pertained  to

employees receiving or eligible to receive both unemployment  and

workers compensation benefits.42  Concerned about overcompensating

injured employees, ACE explained:

          The  Workers Compensation Act has been called
          upon   throughout  the  years  to  compensate
          employees  after  they  reach  the  date   of
          maximum  medical improvement and before  that
          point  in  time when employment opportunities
          improve  and  jobs  become  available.    The
          practice  is  based upon the  theory  that  a
          compensable injury caused a loss of the  job,
          and  therefore the unemployment is the result
          of   the   industrial  injury   and   workers
          compensation  is proper until a  new  job  is
          available.[43]
          
Believing  that the workers compensation system should  not  bear

the  burden of supporting employees whose physical conditions are

not expected to improve, ACE proposed that the primary benefit in

such  situations  be  unemployment insurance,  and  that  workers

compensation,  if  available at all, should be  used  only  as  a

supplement.44  ACEs version of the statute provided  in  relevant

part:

          (a)  No  compensation shall  be  payable  for
          temporary total disability or permanent total
          disability under this chapter for any week in
          which  the injured employee has received,  or
          is receiving, or is eligible for unemployment
          compensation benefits.
          (b)  If  an  employee  is  entitled  to  both
          compensation  for wage-loss  pursuant  to  AS
          23.30.190(b)  and  unemployment  compensation
          benefits,   such  unemployment   compensation
          benefits   shall   be   primary    and    the
          compensation   for   wage-loss    shall    be
          supplemental  only,  the  sum  of   the   two
          benefits  not to exceed the amount  of  wage-
          loss  compensation which would  otherwise  be
          payable.[45]
          
ACEs  version,  which specifically addressed which  system  would

bear  the  burden of compensating dually-eligible employees,  was

not adopted by the legislature.

          Ultimately,  the  legislature settled on  the  language

substantially  similar to that currently  used  in  section  187,

which   does   not  prefer  unemployment  insurance  to   workers

compensation,  does  not  provide for an  offset,  and  does  not

discuss  permanent  or temporary partial disability.   The  final

version provided:

          Sec.   23.30.227.    OTHER   BENEFITS.     No
          compensation shall be payable to an  employee
          under   180  [permanent total disability]  or
          185  [temporary  total  disability]  of  this
          chapter  for  any week in which the  employee
          receives unemployment benefits (AS 23.20).[46]
          
          In  response to the final version of section  227,  the

committee  heard  a  position statement from  Dick  Block,  then-

president  of  the  Alaska  National  Insurance  Company,47   who

expressed  concern  that  an employee would  reject  unemployment

          insurance and take workers compensation.48  Rejecting the idea

that  the statute permitted a totally disabled employee to select

among  potential remedies, Representative Rogers  explained  that

this  section applies only to total disability, and  one  who  is

totally disabled cannot draw unemployment.49

          In  the  analysis  of the final bill prepared  for  the

Senate Labor and Commerce Committee, current section AS 23.30.187

was explained as follows:

          This   section   clarifies  the  relationship
          between workers compensation and unemployment
          benefits.    Temporary  total  and  permanent
          total   disability   compensation   are   not
          consistent with the eligibility of an injured
          worker to receive unemployment benefits,  and
          accordingly,  are not payable to  an  injured
          worker receiving unemployment benefits.  This
          section  does  not  affect  the  payment   of
          temporary   partial   or  permanent   partial
          disability  compensation to a worker  who  is
          receiving unemployment benefits.[50]
          
          Nowhere   in  the  legislative  record  is  there   any

indication  that the legislature intended receipt of unemployment

benefits  to  permanently bar an injured employee from  receiving

workers  compensation  benefits when appropriate.   Instead,  the

legislative history indicates that the legislature was  aware  of

the  potential  for  overlap  between  unemployment  and  workers

compensation benefits and sought to prevent a double recovery  by

claimants.   It  certainly does not appear that  the  legislature

envisioned  the  situation currently before this court,  where  a

temporarily  injured  worker  receives  misinformation  from  her

physician with the knowledge of her employer, is released to work

with   restrictions  that  effectively  bar  her   from   finding

employment, is laid off by that employer, prompting her to  apply

for  unemployment  benefits, and then finally receives  a  second

opinion,  after  which she undergoes surgery, displays  signs  of

recovery,  and  then  retroactively applies for  temporary  total

disability benefits.

          The  dissent  concludes that the statute is  completely

          unambiguous, effectively arguing that the statute admits only one

interpretation: that an employee is forever barred from receiving

workers  compensation benefits for any week in which the employee

has  ever  received unemployment compensation.  But  the  statute

does  not say that; it says that the compensation is not  payable

for  a week in which the employee receives unemployment benefits.

The  boards interpretation of the statute  that a week for  which

the  employee  has  repaid benefits is not a week  in  which  the

employee  receives unemployment benefits  is consistent with  the

language of the statute.  Moreover, under the facts of this case,

the  boards  interpretation  leads  to  the  result  the  workers

compensation  system  was  created  to  provide:  the  award   of

compensation benefits to which the injured worker was entitled.

          The  Workers Compensation Board concluded that  DeShong

had  demonstrated by clear and convincing evidence that  she  had

never  been medically stable and therefore had been eligible  for

temporary  total  disability benefits since December  1998.   The

superior  court concluded that there was substantial evidence  to

support  that  finding and we agree.  Because we can  discern  no

language,  either  in the statute itself or  in  the  legislative

history,  that erects a permanent bar to the receipt  of  workers

compensation benefits if unemployment benefits have been  repaid,

we  affirm  the  holding of the board.  To hold  otherwise  would

forever bar an unknowing and  injured employee from receiving the

workers  compensation benefits to which she is otherwise entitled

merely because she first applied for unemployment insurance.  The

language of the statute does not require this result, nor  do  we

believe   such  an  outcome  would  be  desirable.    Given   the

discernable purposes of the legislature in enacting AS  23.30.187

preventing double recovery, denying workers compensation coverage

for  workers  who  have  reached maximum medical  stability,  and

maintaining  incentives to return to work  requiring  DeShong  to

repay her unemployment benefits before she is entitled to receive

TTD benefits was an appropriate response to her situation.51   We

          therefore affirm the boards decision.

V.   CONCLUSION

          A.   Because the board did not err in concluding that DeShong

produced clear and convincing evidence that she was not medically

stable  during the time in dispute and did not err  in  requiring

DeShong  to  repay  her unemployment benefits  before  she  could

receive TTD benefits, we AFFIRM the superior courts decision that

affirmed the decision of the board.

          

EASTAUGH, Justice, with whom MATTHEWS, Justice, joins, dissenting

in part.

A.   Introduction

          This appeal turns in part on the interplay between  the

Alaska  Employment Security Act, AS 23.20, and the Alaska Workers

Compensation  Act, AS 23.30.  Both protect workers  against  wage

loss.   A  worker  recovering under both schemes  is  potentially

overcompensated.   The  statute  that  controls  this  case,   AS

23.30.187,  avoids overcompensation by prohibiting  workers  from

receiving  total  disability workers  compensation  benefits  for

weeks  for  which they received unemployment compensation.   This

method of avoiding overcompensation reflects a legislative policy

choice.   The method the court chooses here  allowing the  worker

to repay unemployment compensation benefits to regain eligibility

for  workers compensation benefits  also avoids overcompensation.

But  the  clear words of the statute preclude that  choice.   The

legislative history does not permit us to read the statute to say

something  it  does  not; rather, it conflicts  with  the  courts

interpretation  of  section .187.  Because it  is  impossible  to

square  the  result  reached  here with  the  statutes  words,  I

respectfully dissent from that part of the opinion permitting the

worker  to  recover workers compensation benefits for weeks  when

she received unemployment compensation.

B.   Background Facts

          Mabel DeShong suffered an employment-related injury  in

1997  while  employed  by  Alyeska  Pipeline  Service  Co.    She

continued  to perform light-duty work for Alyeska until  December

2,  1998,  when she was laid off.  Invoking the Alaska Employment

Security  Act  (AESA)  after she was laid  off,  she  sought  and

received unemployment compensation for 1999.  Invoking the Alaska

Workers Compensation Act (AWCA), she also sought temporary  total

disability  (TTD)  benefits for the period between  December  27,

1998  to  September  15, 1999 (when she had successful  surgery).

The  Alaska  Workers Compensation Board, rejecting the  employers

argument to the contrary, concluded that DeShong was eligible  to

receive  workers  compensation for  that  eight-and-a-half  month

period,   even  though  she  had  already  received  unemployment

compensation  for  the  same  period,  provided  she  repays  the

[unemployment  benefits] received as required  by  AS  23.30.180.

The   superior   court  affirmed,  observing  that   the   boards

interpretation of the statute is within its expertise.

C.   The Result the Court Reaches

          Applying,  as it must, the nondeferential  standard  of

its  own judgment to the statutory interpretation issue presented

here,  this court affirms the superior court and the board.1   It

reasons that requiring DeShong to repay her unemployment benefits

before she is entitled to receive TTD benefits was an appropriate

response to her situation.2

D.   The Result We Should Reach

          Workers  compensation is purely a creature of statute.3

There  is  no  common law right to it.4  Our sole  responsibility

here is to determine what AS 23.30.187 means.  No other provision

in the AWCA or the AESA addresses the issue presented.

          In interpreting a statute we have rejected a mechanical

application of the plain meaning rule in favor of a sliding scale

approach.    The  plainer  the statutory language  is,  the  more

convincing the evidence of contrary legislative purpose or intent

must  be.   The language of a statute is construed in  accordance

with  [its] common usage,  unless the word or phrase in  question

has acquired a peculiar meaning by virtue of statutory definition

or judicial construction. 5  In ascertaining the plain meaning of

a  statute, we refrain from adding terms.6  We have observed that

legislative  history may provide an insight which is  helpful  in

making  a  judgment concerning what a statute  means,  and  since

words  are  necessarily  inexact  and  ambiguity  is  a  relative

concept.7

          Section  .187  is conceptually simple.  Its  words  are

simple,  clear, and unambiguous.  It states that Compensation  is

          not payable to an employee under AS 23.30.180 or 23.30.185 for a

week  in  which  the  employee  receives  unemployment  benefits.

(Emphasis  added.)   It  thus  renders  a  worker  who   received

unemployment   compensation   ineligible   to   receive   workers

compensation for total disability for the same period.8   DeShong

received  unemployment compensation for the same weeks for  which

she  seeks  TTD benefits.  To receive is commonly defined  as  to

acquire  or  take  (something given, offered,  or  transmitted).9

Whether  or  not  DeShong repays her unemployment  benefits,  she

received  them  as that word is used in section  .187.    Section

.187  therefore  prevents her from recovering  TTD  benefits  for

those weeks.

          The  meaning  of  section  .187  is  confirmed  by   AS

01.10.050(a),  which  dictates how we  are  to  read  the  Alaska

Statutes.   It provides in pertinent part: Words in  the  present

tense  include the past and future tenses . . . .  This provision

requires  us  to  interpret  receives  to  include  received  and

precludes  us  from distinguishing between receives and  received

when we apply AS 23.30.187.

          The  extraordinary clarity of the words of section .187

would  allow  us to deviate from its text only if the legislative

history were extremely convincing.  Its words are so clear, it is

hard  to  imagine  any legislative history that could  contradict

them.10  But as we will see, the legislative history confirms the

words plain meaning.  It certainly does not permit the result the

courts opinion reaches.

E.   The Problem of Overlapping Benefits

          The   preeminent  workers  compensation  treatise   has

addressed  the  possibility  of cumulative  wage  loss  benefits.

Larsons  treatise  recognizes that duplication of  benefits  from

different parts of the system of protecting workers against  wage

loss should not ordinarily be allowed.11  The treatise recognizes

that  in reality, a worker experiences only one wage loss and  in

any  logical system should receive only one wage-loss  benefit.12

          Larson observes that some jurisdictions have permitted collection

of  both  unemployment and workers compensation benefits for  the

same period, in the absence of any statutory prohibition.13   The

treatise  notes,  however,  that [t]he majority  of  unemployment

statutes . . . now specifically forbid benefits to anyone drawing

workers  compensation.14  The treatise cites AS 23.30.187  as  an

example  of  one  such statutory provision.15  Larson  summarizes

acts  from  other  states and observes that state  statutes  vary

considerably, some restricting eligibility under the unemployment

compensation  acts  and  some restricting eligibility  under  the

workers  compensation  acts.16   Larson  observes  that   a   few

compensation  acts have recently added an offset for unemployment

insurance  benefits, and describes how some courts have struggled

to coordinate inconsistent statutory systems.17

          Before  1982, the legislature offered no clear guidance

for  how to resolve this potential problem in Alaska.  There were

possible  implicit inconsistencies in seeking both  remedies.   A

worker  is entitled to unemployment compensation benefits if  the

worker  is  able  to  work,18  and  a  disabled  worker  is   not

necessarily able to work.  Conversely, a worker who  is  able  to

work  is  not obviously disabled, and is therefore not  obviously

eligible  for workers compensation benefits.19  It  is  at  least

arguable  that  applying for unemployment  compensation  benefits

would   be   inconsistent  with  applying  for  temporary   total

disability benefits, whether or not the employee, as DeShong  did

here, indicated that she could only work at light duty tasks.  If

the  two applications are inherently inconsistent, the worker has

arguably  misrepresented  either  her  ability  to  work  or  her

disability.   Making  a  misrepresentation  or  false   statement

potentially    disqualifies    a   worker    from    unemployment

compensation.20    A   person  making  a   false   statement   or

representation  to obtain workers compensation  benefits  may  be

required to repay them.21

          Yet a worker who is only partially disabled may be able

          to return to work in some capacity.  So in theory, a partially

disabled employee who has been laid off is able to work  in  some

capacity,   and   is  thereby  eligible  for  both   unemployment

compensation  benefits  under  AS 23.20,  and  temporary  partial

disability  or permanent partial disability workers  compensation

benefits  under  AS 23.30.190 or AS 23.30.200.  This  theoretical

dual  eligibility  is more problematic for  a  worker  who,  like

DeShong,  claims to be totally disabled for workers  compensation

purposes.

          In  1982  the  legislature addressed  this  problem  by

enacting AS 23.30.187.

The  concept  behind section .187 is simple.  It  does  only  one

thing:  it  precludes an otherwise eligible workers  compensation

claimant  from  receiving  temporary  total  or  permanent  total

disability  workers compensation benefits for  a  week  in  which

unemployment  compensation  benefits  were  received.   It   thus

withdraws eligibility for workers compensation benefits for those

weeks.   It  does  so  unconditionally.   It  contains  no  words

describing  or  implying a procedure for  restoring  a  claimants

eligibility  to recover workers compensation benefits  for  those

weeks.   It  contains no words offering an interpretative  finger

hold for finding such a procedure.

          There   are   many  other  possible   ways   to   avoid

overcompensation.  For example, one way might make one scheme  or

the  other the exclusive remedy.  Another might permit an offset,

reducing    workers   compensation   benefits   by   unemployment

compensation received for the same period.  Another might require

pro  rata  apportionment  of benefits under  both  schemes.   And

another  might  require  the employee to repay  the  unemployment

compensation   benefits  before  receiving  workers  compensation

benefits  for  the same period.  Each way allocates  burdens  and

benefits  differently.   Some favor the worker;  some  favor  the

employer  who purchases workers compensation insurance; and  some

favor  the  states  employment security fund (which  is  in  turn

funded  by employer contributions).  Legislatures are best suited

for  making  such choices, because they can decide  how  best  to

balance  all  the interests involved.  Courts are ill-suited  for

choosing among so many possibilities.  We have been provided with

none  of  the  facts  bearing on which way is socially  superior,

which  is the most efficient way to protect workers against  wage

loss, who best can bear that loss, and how best to apportion  the

loss if it is to be shared.22

          No  doubt the legislature could have rationally  chosen

the  method  adopted  by the board and this  court  (placing  the

entire loss on the workers compensation insurer for the duplicate

weeks  and reimbursing the unemployment compensation fund).   But

the legislature did not choose that method.  It enacted a statute

that treats the receipt of unemployment compensation benefits  as

an  event  that  disqualifies the worker from  receiving  workers

compensation benefits.

          These policy choices are for the legislature.  Our  job

here  is  to determine what choice the legislature made.  Because

its choice is clear, we must adhere to it.

F.   Legislative History

          The   legislative  history  does  not  contradict   the

statutes  text and provides no support for rewriting  its  words.

Instead,  it  suggests that the legislature was  aware  of  other

possible  ways to avoid overcompensation and nonetheless  adopted

the simple ineligibility scheme described in section .187.

          House Bill 159, introduced in 1981 at the first session

of  the  Twelfth Legislature, was proposed in part  because  some

employers  were  concerned that injured  workers  were  receiving

workers  compensation after they reached medical  stability;  the

employers thought that the primary benefit should be unemployment

compensation.23     The   employers   proposed    that    workers

compensation,  if  still payable, was to be supplemental  to  the

unemployment  compensation benefits.24  This  proposal  contained

two  provisions, one which was equivalent to section .187  as  it

          now exists, and a second which contemplated eligibility for both

unemployment  and workers compensation benefits, in  which  event

the unemployment compensation benefits were to be primary and the

workers  compensation  benefits were to be  only  supplemental.25

The  origins  of  section .187 do not support  an  interpretation

such  as  the courts  that makes workers compensation the primary

wage-loss benefit.

          A  Senate  Labor  and  Commerce  Committee  section-by-

section analysis of the bill noted that the provision that became

section   .187   clarified  the  relationship   between   workers

compensation and unemployment benefits.

          Temporary    total   and   permanent    total
          disability  compensation are  not  consistent
          with the eligibility of an injured worker  to
          receive     unemployment    benefits,     and
          accordingly,  are not payable  to  a  injured
          worker receiving unemployment benefits.  This
          section  does  not  affect  the  payment   of
          temporary   partial   or  permanent   partial
          disability  compensation to a worker  who  is
          receiving unemployment benefits.[26]
          
          This  analysis confirms that the legislature considered

total   disability  workers  compensation  benefits  to  be   not

consistent with eligibility for unemployment benefits, and  chose

to  resolve  this  inconsistency by making them  not  payable  to

workers receiving unemployment benefits.  It also notes that  the

bill  preserved the eligibility of workers who seek only  partial

disability  benefits.  DeShong sought total disability  benefits,

not partial disability workers compensation benefits.

          The history also reveals that legislators were aware of

other possible ways of avoiding an overlap.  During consideration

of  HB  159,  Representative Terry Martin circulated a memorandum

discussing   several   issues  and  referring   specifically   to

unemployment compensation.27  He noted that there were situations

in which a person could be able to work but could not perform his

old job because of the disability.  He proposed this result:   If

he  is receiving unemployment compensation for any such week, the

worker   compensation  should  reduce  dollar  for   dollar   any

          unemployment benefit the individual could otherwise receive.28

Representative   Martin   thus   proposed   a   dollar-for-dollar

reduction, what this court seems to characterize as an  offset.29

But the statute as enacted says nothing of such a reduction.

          Although  the  legislature was aware of other  ways  to

address  the issue of overlapping benefits, it enacted  the  flat

prohibition  expressed in section .187.  There is no  possibility

that  in doing so it thought that it was allowing an employee  to

repay  unemployment  compensation benefits to regain  eligibility

for  workers compensation benefits, or that it was making workers

compensation the primary wage-loss remedy.  Because employer cost

was  a  motivating  factor in adopting  section  .187,  it  seems

unlikely  the  legislature wished to adopt a means of  preventing

double  recovery  that was apparently the most  costly  way  (for

employers) of resolving the problem.

          In  short,  the  legislative  history  reveals  nothing

ambiguous  about section .187.  It confirms that the  legislature

made  a  policy  choice  that  is inconsistent  with  the  courts

interpretation of the statute.

G.   Problems with the Courts Rationale

          The  court permits DeShong to recover TTD benefits even

though the statute does not.

          In  affirming, the court approves the procedure adopted

by  the  board:  Because the board . . . did not err in requiring

DeShong  to repay her unemployment benefits . . . , we  AFFIRM.30

But  the  board  based  that  result on  the  boards  fundamental

misreading  of  section  .187.  Thus, the  board  concluded  that

DeShong  was  eligible for TTD benefits for the disputed  period,

provided  she  repays  the [unemployment]  benefits  received  as

required by AS 23.30.187.  (Emphasis added.)  If the statute  had

contained  such a requirement, it would have implied  the  remedy

the  board  fashioned.   But  nothing in  section  .187  requires

repayment of other benefits.   The linchpin of the boards  remedy

does   not  exist.   Indeed,  the  statute  says  nothing   about

          repayment.  And it says nothing about regaining eligibility for

workers  compensation.   Because the  statute  makes  receipt  of

unemployment  benefits  the  disqualifying  event,  and   because

repayment does not negate the fact of past receipt, the  statutes

words  expressly and implicitly foreclose the boards notion  that

repayment restores eligibility.

          This  courts  opinion also seems to rest on  a  similar

misapprehension.   It reasons that repayment enabled  DeShong  to

receive the workers compensation benefits she was entitled  to.31

But  per  section .187, for the weeks for which DeShong  received

unemployment  compensation,  she  is  entitled  to   no   workers

compensation benefits.

          The courts opinion also implicitly reads the statute to

make  retention  of  unemployment compensation the  disqualifying

event.   If  it were, repayment might be a fair way to avoid  the

statutory  bar.   But  the  statutes  words  make  receipt,   not

retention,  the  disqualifying event.32  Ineligibility  does  not

arise  exclusively  out of present receipt of benefits;  per  the

plain  language of section .187 and AS 01.10.050(a), past receipt

is  also  a disqualifier.  DeShong received unemployment benefits

in  the past; she is consequently ineligible for TTD benefits for

those weeks.

          The  procedure fashioned by the board and  endorsed  by

this  courts  opinion has the unavoidable effect  of  adding  new

words  to the statute.33  By limiting the preclusion, the opinion

creates  a procedure, not implied or expressed by the legislature

in  section  .187 or anywhere else, by which workers compensation

claimants  seeking  TTD benefits can restore  their  eligibility.

This procedure gives claimants an option the legislature did  not

choose  to  give  them.  Section .187 does  not  provide  injured

workers a choice between benefit systems.

          Given  the  clarity  of  the statute,  the  legislative

history  would have to be remarkably clear to support the  courts

interpretation  of  the statute.  I do not read  the  legislative

          history discussed by the court to imply, much less clearly and

unequivocally  express, an intention to  allow  the  reading  the

board  and this court attribute to the statute.  Moreover,  after

reviewing  the  legislative history, the courts opinion  observes

that It certainly does not appear that the legislature envisioned

the  situation  currently before this court  .  .  .  .34    That

observation  seems  to  conflict with  any  contention  that  the

statute   is  ambiguous  because  it  fails  to  carry  out   the

legislatures intentions with respect to the present situation, or

that  the  legislature actually intended the statute  to  provide

relief in a situation like DeShongs.

          At first glance, it may seem to make sense to condition

recovery  of   workers  compensation  benefits  on  repayment  of

unemployment  compensation.  But section .187  gives  the  Alaska

Workers  Compensation  Board  no authority  to  order  a  workers

compensation  claimant to repay benefits the  claimant  recovered

under  AS  23.20.   The  board does not  administer  unemployment

compensation claims.  Its authority is limited to claims under AS

23.30.   Had DeShong declined to repay the unemployment benefits,

section  .187  would  have given the board  no  legal  basis  for

requiring  her to do so as a condition for becoming eligible  for

TTD benefits.   Her refusal would have forced the board to decide

whether  section  .187 permits a worker to receive  (and  retain)

overlapping  benefits,  or  whether (as  I  think)  section  .187

prohibits  recovery  of  TTD benefits for  the  same  period.   A

claimants  willingness to repay the unemployment benefits  cannot

unilaterally  alter  the meaning of a statute.   The  legislature

elsewhere  gave the board authority to order a person  improperly

obtaining  benefits under AS 23.30 to reimburse the cost  of  all

such benefits, but that authority only covers benefits under this

chapter,  i.e., workers compensation benefits.35  That  grant  of

authority  reveals  that the legislature  knew  how  to  write  a

statute giving the board authority to require repayment when that

was  what  the legislature intended.   Nothing I see in AS  23.30

          gives the board general authority to do what it did here.

Assuming  the  board has inherent authority to  resolve  disputes

fairly and in a way that maximizes workers compensation benefits,

that  authority would not justify reading section .187 to require

repayment, or to authorize a procedure for regaining eligibility.

          The  existence of express remedies in other  provisions

in  these acts militates against the procedure approved here.  An

AESA   section,   AS   23.20.390,  provides  for   repayment   of

unemployment  compensation benefits, but only if the  worker  was

not entitled to receive them.  Section .390 does not refer to the

Alaska   Workers  Compensation  Act  or  to  receipt  of  workers

compensation  benefits; there is no claim here that  DeShong  was

not eligible for Alaska Employment Security Act benefits when she

sought and received unemployment compensation payments.  Nor does

the   AESA   disqualify  a  worker  from  receiving  unemployment

compensation  benefits  if  the  worker  also  received   workers

compensation  benefits.  Other provisions in these remedial  acts

reveal   that  the  legislature  knew  how  to  enact   statutory

provisions  calling  for reductions in benefits  (AS  23.20.362),

repayment   (AS   23.20.390),   offsets   (AS   23.30.225),    or

reimbursement (AS 23.30.155(j)), when it wished to do so.

          Implicit  in the decisions of the board and this  court

is  the  notion  that  the statute permits a  partially  disabled

worker,  like DeShong, to be treated differently from  a  totally

disabled worker.  But insofar as this distinction seemingly turns

on  whether  a worker, in applying for unemployment compensation,

candidly  reveals  that she was only partially  disabled,  it  is

foreclosed  by the words of section .187.   They flatly  preclude

recovery of total disability benefits for the weeks for which  an

employee  received unemployment compensation, without  regard  to

what she said in her unemployment compensation application.  This

distinction  is  also factually foreclosed here:  DeShong  sought

temporary  total,  not  temporary partial,  workers  compensation

benefits.  Section .187 expressly applies to an employee  seeking

workers compensation benefits for total disability.

          The  court  relies  on the purpose of the  legislation,

characterizing  it  as  having the purpose of  precluding  double

recovery.36   Treating  that purpose as  controlling,  the  court

reads the statute in a way that avoids double recovery, by making

DeShong  repay the unemployment benefits in order to be  eligible

to   receive  TTD  benefits.   This  purpose  does  not   justify

misreading  the  statute.  First, this is not the only  statutory

purpose;   the   legislative  history  reveals   a   variety   of

motivations;   the   section-by-section   analysis   refers    to

eligibility.37   Second,  the  words  of  the  statute   are   so

transparent  that  they control.38  Third, having  a  purpose  of

avoiding  double recovery does not say how it is to be  achieved.

The  method  the  legislature chose to  prevent  double  recovery

ineligibility   is effective.  That other methods arguably  might

have  been equally effective or socially more desirable does  not

allow us to rewrite the statute.

          The  court  declines to decide whether an offset  might

have  been  superior  to reimbursement.39   An  offset  would  be

another  way to avoid an overlap.  An offset would  also  require

both  schemes to contribute.  On its face, the statute would  not

permit that result.  Of course, it does not permit the result the

court  reaches,  either.   Because it declines  to  consider  the

offset  method,  the court simply chooses the  repayment  method.

Each   method  implicates  policy  choices  best  left   to   the

legislature.    Permitting  a  claimant  to  repay   unemployment

benefits  before receiving TTD benefits means that the full  loss

is  ultimately  borne  by the workers compensation  system.   The

choice  the court makes today is a policy choice.  That there  is

more  than one way to fashion a remedy and that choosing one  way

necessarily burdens one interest or another confirms  that  these

are choices we should not be making.  That is especially so given

the  complete absence of words in section .187 giving  the  court

any basis for deviating from the choice the legislature made.

          The  opinion says that requiring DeShong to  repay  her

unemployment  benefits  before she is  entitled  to  receive  TTD

benefits  is  an  appropriate response to  DeShongs  situation.40

Likewise, the court assumes the legislature did not envision  the

situation  now  before  us.  It then describes  DeShongs  precise

situation.41   That the legislature was arguably  not  omniscient

when it enacted section .187 would not give us authority to craft

a remedy the legislature did not.  But in this case, the words of

the  statute are broad enough to include DeShongs situation.   It

does  not  matter that her situation is only a subset,  even  one

that  may  be  unique and sympathy provoking, of  the  situations

swept  up by AS 23.30.187.   This circumstance does not make  the

statute less applicable to her, or justify altering it.

          Finally, the opinion today creates a problematic legacy

for  legislators trying to write statutes and parties and  courts

trying to apply them.   If this statute does not mean what it  so

clearly  says,  when will a statute ever be applied  as  written?

What  could  the  legislature have said to  make  its  intentions

clearer?

H.   Conclusion

          The court reaches a result the statute does not permit.
We  should  reverse and remand to the board with instructions  to
deny  TTD  benefits  during  the  period  when  DeShong  received
unemployment compensation.
_______________________________
     1    Medical stability is defined by AS 23.30.395(21) 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.   Medical
stability  is  presumed in the absence of objectively  measurable
improvement for a period of forty-five days; this presumption can
be rebutted by clear and convincing evidence.

     2     Although  he  found that DeShong had  reached  medical
stability,  Dr.  Geveart  apparently believed  that  the  chronic
nature  of  her  injury  might require adjustments  to  her  work
environment and duties.

     3     It  is  unclear what Dr. Dingeman meant by disposition
process.   He may have been referring to the disposition  of  her
workers  compensation  claim before  the  board,  believing  that
surgery should be delayed until the board had heard her claim for
benefits.

     4     It  is  unclear what Dr. Dingeman meant  by  statutory
stability  and clinical stability.  Taken in context,  the  whole
sentence  seems to suggest that although DeShong  had  reached  a
period  of  forty-five days with no measurable  improvement,  the
degeneration  of her elbow would continue over the next  eighteen
months before stabilizing.

     5    AS 23.30.095(a).

     6     Medial epicondylitis refers to the inflammation of the
tendons     on     the    inside    of    the     elbow.      See
http://www.intelihealth.com (last visited Aug. 18, 2003).

     7     Ulnar entrapment occurs when pressure is placed on the
nerve that runs down the inside of the elbow, causing pain in the
elbow                or                wrist.                 See
http://www.emedicine.com/orthoped/topic574.htm (last visited Aug.
18, 2003).

     8    A nerve conduction study is used to document the extent
of  nerve  damage  by  measuring the  rate  at  which  electrical
impulses        move       along       a       nerve.         See
http://www.neurologyhealth.com/ncs.htm  (last  visited  Aug.  18,
2003).

     9     Median neuropathy occurs when the median nerve in  the
wrist,  which  runs through the wrist bones and  ligaments  which
compose  the  carpal  tunnel,  is compressed,  causing  tingling,
numbness, weakness, or pain in the fingers, hand, forearm, and/or
elbow.   It  is  commonly referred to as carpal tunnel  syndrome.
See   http://www.emedicine.com/neuro/topic208.htm  (last  visited
Aug.  18,  2003); http://www.intelihealth.com (last visited  Aug.
18, 2003).

     10    Ulnar neuropathy refers to an injury of the nerve along
the  inside  of  the  elbow resulting in muscle  weakness,  pain,
numbness,  redness, and/or burning or tingling  sensations.   See
http://www.neurosurgeon.com/conditions/ulnar_neuropathy.htm;
http://my.webmd.com (last visited Aug. 18, 2003).

     11    DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000);
Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896,
903 (Alaska 1987).

     12    Id.

     13     Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456
(Alaska  1997)  (quoting Miller v. ITT Arctic  Servs.,  577  P.2d
1044, 1046 (Alaska 1978)).

     14    Tesoro Alaska Petroleum Co., 746 P.2d at 903.

     15    Id.

     16    Id.

     17    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     18    AS 23.30.185 states:

          In  case of disability total in character but
          temporary  in  quality,  80  percent  of  the
          injured  employees  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.
          
     19    AS 23.30.395(21).

     20    Id.

     21    See supra Part II.A.

     22    AS 23.30.095(a) provides, in relevant part:

          When  medical care is required,  the  injured
          employee  may designate a licensed  physician
          to  provide all medical and related benefits.
          The  employee  may  not make  more  than  one
          change  in  the employees choice of attending
          physician without the written consent of  the
          employer.   Referral to a specialist  by  the
          employees   attending   physician   is    not
          considered a change in physicians.
          
     23    Id.

     24    Id.

     25    AS 23.30.095(e) provides, in relevant part:

          The  employee  shall,  after  an  injury,  at
          reasonable  times during the  continuance  of
          the  disability, if requested by the employer
          or  when ordered by the board, submit  to  an
          examination by a physician or surgeon of  the
          employers   choice  authorized  to   practice
          medicine  under the laws of the  jurisdiction
          in which the physician resides, furnished and
          paid for by the employer.
          
     26    Id.

     27     Madison v. State, Dept of Fish & Game, 696 P.2d  168,
173 (Alaska 1985).

     28    Id. (quoting Earth Res. Co. v. State, Dept of Revenue,
665  P.2d 960, 965 (Alaska 1983) (quoting Kelly v. Zamarello, 486
P.2d 906, 916 (Alaska 1971))).

     29     Indeed,  we have cited AS 23.30.187 only  twice,  and
neither case involved the question before us today.  See Wien Air
Alaska  v.  Kramer, 807 P.2d 471, 473 n.3 (Alaska  1991)  (noting
that  AS 23.30.187 prohibits a recipient of unemployment benefits
from  simultaneously collecting disability compensation);  Alaska
Pacific  Assurance Co. v. Brown, 687 P.2d 264, 272  n.13  (Alaska
1984)  (observing that one of the purposes served by AS 23.30.187
is  to maintain benefits at a level which does not discourage the
recipient from returning to work).

     30     Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783,
787 (Alaska 1996).

     31     Alderman v. Iditarod Props., Inc., 32 P.3d  373,  393
(Alaska  2001) (quoting State v. Alex, 646 P.2d 203,  208-09  n.4
(quoting  United  States v. United States Steel Corp.,  482  P.2d
439, 444 (7th Cir. 1973))).

     32    AS 23.30.187.

     33    Id.

     34     Wien  Air Alaska v. Arant, 592 P.2d 352, 357  (Alaska
1979)  overruled  on other grounds by Fairbanks N.  Star  Borough
Sch. Dist. v. Crider, 736 P.2d 770, 775 (Alaska 1987).

     35    AS 23.30.075(a).

     36    544 P.2d 82 (Alaska 1975).

     37     Id.  at  86-87  (quoting 1  Arthur  Larson,  Workmens
Compensation  Law  2.20 (1972), now Arthur Larson &  Lex  Larson,
Larsons Workers Compensation Law  1.03[2] at 1-5 (May 2003)).

     38    Letter from Representative Terry Martin, Chairman House
Labor  &  Commerce  Comm.,  Alaska  State  Legislature,  to   All
Concerned  About  Alaskas Workers Compensation, Referencing  More
Points  of  View  to  Consider for Alaskas  Workers  Compensation
Legislation,  H.B.  159, 1981 (January 5, 1982)  (House  Labor  &
Commerce Comm. File, H.B. 159 (1981-82)).

     39    Id. at 1 (emphasis added).

     40      In  his  letter,  Representative  Martin  explained:
Normally  an  individual receiving workers compensation  for  any
week  would not be able to work, and therefore would not  qualify
for  unemployment  compensation.  There are situations,  however,
where the person could be able to work but cannot perform his old
job  because  of the disability.  If he is receiving unemployment
compensation  for  any such week, the worker compensation  should
reduce  dollar for dollar any unemployment benefit the individual
could otherwise receive.  Id. at 2.

     41     Edward  L. Hite, Recommended Changes to  the  Alaskan
Workers  Compensation Act, Prepared for the Alaska Conference  of
Employers,  Inc. (1982) (House Labor & Commerce Comm. File,  H.B.
159 (1981-1982)).

     42    Id. at 74-75.

     43    Id. at 74 (emphasis added).

     44    Id.

     45    Id. at 74-75 (emphasis added).

     46     Committee  Substitute for House Bill (C.S.H.B.)  159,
12th Leg., 2d Sess. (1982).

     47     The Alaska National Insurance Company performs policy
issue  and  loss adjusting services for the Alaska Assigned  Risk
Pool,  which  was  established by the State of Alaska  for  those
employers  unable to find an insurance company to  write  workers
compensation insurance on a voluntary basis.  See Alaska National
Insurance                    Company                     website,
http://www.alaskanational.com/index.php?action=akworkers    (last
visited Aug. 14, 2003).

     48     See  House  Labor & Commerce Standing  Comm.  Meeting
Minutes,  H.B. 159, Tape No. 19, No. 103 (House Labor &  Commerce
Comm. File, H.B. 159 (Feb 18, 1982)).

     49     Id.   In order to collect unemployment insurance,  an
individual must be able to work and available for suitable  work.
AS  23.20.378(a).   Because one who is totally disabled  for  the
purposes  of workers compensation is temporarily unable to  work,
she  cannot be legally eligible for both.  See Bailey  v.  Litwin
Corp.,  713  P.2d  249, 253 (Alaska 1986) (endorsing  territorial
courts  definition  of  temporary total  disability  in  Phillips
Petroleum Co. v. Alaska Indus. Bd., 17 Alaska 658, 665 (D. Alaska
1958)  (quoting Gorman v. Atl. Gulf & Pac. Co., 12 A.2d 525,  529
(Md.  1940))  as   the time during which the  workman  is  wholly
disabled and unable by reason of his injury to work ).

     50     Section by Section Analysis, C.S. for House Bill  No.
159   19 (Senate Labor & Commerce Comm. File, H.B. 159 (1981-82))
(emphasis added).

     51     We  recognize  that other states have  taken  varying
approaches  to the situation presented by this case:  some  allow
for  offset through the workers compensation system for employees
who  have  already collected unemployment insurance,  see,  e.g.,
Brooks  v.  Chrysler Corp., 405 A.2d 141, 143 (Del. Super.  1979)
(holding  that  receipt  of  unemployment  does  not  necessarily
disqualify  one from receiving disability benefits but  that  any
disability  award should be reduced by the amount of unemployment
benefits received); some statutorily provide for offset in  their
workers  compensation statutes, see, e.g., Colo. Rev. Stat.  Ann.
8-42-103(1)(f)  (West, WESTLAW through 2003 Sess.)  (allowing  an
offset  of TTD by any unemployment benefits received);  and  some
hold  that  prior receipt of unemployment benefits does  not  bar
receipt  of  workers compensation benefits.   See  J.E.  Leonarz,
Annotation,   Application  for,  or  Receipt   of,   Unemployment
Compensation   Benefits   as  Affecting   Claim   for   Workmen's
Compensation,  96 A.L.R.2d 941,  3 (1964).  While  using  workers
compensation to offset DeShongs receipt of unemployment insurance
might  have  been  a  viable option in this case,  neither  party
advocated for such a result.  Rather, DeShong sought an order for
reimbursement  and Alyeska argued that no award was  appropriate.
Because  offset has not been sought by either party, and  because
we  have received no briefing on the issue, we reserve for future
decision the question of whether offset might ordinarily  provide
a remedy preferable to reimbursement.

1    Slip Op. at 14-15, 22.

     2    Slip Op. at 23.

     3     See  Nickels  v. Napolilli, 29 P.3d 242,  247  (Alaska
2001)  (explaining that the Workers Compensation Act is a  mutual
arrangement  of reciprocal rights between employer and  employee,
whereby  both  parties  give up and gain certain  advantages;  in
exchange  for guaranteed recovery for post-injury wage  loss  and
medical  expenses,  employees give up opportunity  to  seek  full
scope of tort or negligence damages); AS 23.30.

     4     Nickels, 29 P.3d at 248 ([T]he remedies offered by the
workers  compensation statute supercede any common  law  remedies
outside of the statutory scheme.).

     5     Municipality of Anchorage v. Suzuki, 41 P.3d 147, 150-
51 (Alaska 2002) (quoting Muller v. BP Exploration (Alaska) Inc.,
923 P.2d 783, 788 (Alaska 1996) (footnotes omitted)).

     6     Id.  (citing  Hickel v. Cowper, 874 P.2d  922,  927-28
(Alaska 1994) (Our analysis of a constitutional provision  begins
with, and remains grounded in, the words of the provision itself.
We  are  not  vested with the authority to add missing  terms  or
hypothesize  differently worded provisions in order  to  reach  a
particular result.)).

     7    Bullock v. State, Dept of Cmty. & Regl Affairs, 19 P.3d
1209, 1214 (Alaska 2001) (quoting State, Dept of Natural Res.  v.
City of Haines, 627 P.2d 1047, 1049 n.6 (Alaska 1981)).

8     The  two  statutes  cited in section .187  both  deal  with
total, not partial, disability claims.  AS 23.30.180 provides for
awards  of  permanent  total disability.   AS  23.30.185  governs
awards  of temporary total disability, the sort of claim  DeShong
made  here.  Section .187s prohibition therefore applies only  to
applicants for total disability benefits.

     9    Websters II New College Dictionary 924 (1995).

     10    See  Enders  v. Parker, 66 P.3d 11, 14  (Alaska  2003)
(Where a statutes meaning appears clear and unambiguous,  .  .  .
the  party  asserting a different meaning bears a correspondingly
heavy   burden  of  demonstrating  contrary  legislative  intent.
(quoting  Univ. of Alaska v. Tumeo, 933 P.2d 1147,  1152  (Alaska
1997))).   See also Evans ex rel. Kutch v. State, 56  P.3d  1046,
1065  (Alaska 2002) (When interpreting the language of a statute,
we  normally give unambiguous language its plain meaning.  We may
also  rely  on  legislative history as a guide to interpretation,
but  the  plainer the language of a statute, the more  convincing
contrary legislative history must be to interpret a statute in  a
contrary manner.) (citations and quotations omitted).

     11     Arthur   Larson   &  Lex  Larson,   Larsons   Workers
Compensation Law  97.00 (1999).

     12   Id.  97.10, at 18-9, 18-11.

13   Id.  97.20, at 18-12.

     14   Id.

     15   Id.

     16   Id. at 18-12 n.13.1.

     17    Id.  at  18-12 to 18-21; see also app.  B-18A  (offset
provisions in state workers compensation laws).

     18   AS 23.20.378(a).

     19   AS 23.30.180, .185, .190, .200.

     20   AS 23.20.387.

     21   AS 23.30.250(b).

22    In  addressing  the  various policy  considerations  raised
by  the  problem of overlapping benefits, Larsons treatise  notes
that  the  optimum solution is to have this coordination achieved
by the legislature, since detailed questions are certain to arise
that  can  only  be handled by carefully considered  legislation.
Larson & Larson, supra note 11  97.20, at 18-18.

     23    House Bill (H.B.) 159, 12th Leg., 1st Sess. (Feb.  13,
1981); Edward L. Hite, Recommended Changes to the Alaskan Workers
Compensation   Act,  Prepared  for  the  Alaska   Conference   of
Employers,  Inc. (1982) (House Labor & Commerce Comm. File,  H.B.
159 (1981-82)).

     24   Hite, supra note 23.

25   Id.

     26    Section by Section Analysis, C.S. for House  Bill  No.
159 (Senate Labor & Commerce Comm. File, H.B. 159 (1981-82)); see
also  Comm. Substitute for House Bill (C.S.H.B.) 159, 12th  Leg.,
2d Sess. (1982).

     27   Letter from Representative Terry Martin, Chairman House
Labor  and Commerce Committee, Alaska State Legislature,  to  All
Concerned  About  Alaskas Workers Compensation, Referencing  More
Points  of  View  to  Consider for Alaskas  Workers  Compensation
Legislation,  H.B.  159, 1981 (January 5, 1982)  (House  Labor  &
Commerce Comm. File, H.B. 159 (1981-82)).

28   Id.

     29   Slip Op. at 18, 19.

     30   Slip Op. at 23.

31   Slip Op. at 22.

     32    Retention  would prove unworkable as  a  disqualifying
event under section .187 because the statute does not specify how
long  one  would  have  to  retain unemployment  benefits  to  be
disqualified from workers compensation benefits.

     33   See supra note 6.

34   Slip Op. at 21.

     35   AS 23.30.250(b).

     36   Slip Op. at 21, 22.

     37    The only legislative intent expressed in the act  that
included AS 23.30.187 addressed a completely different provision,
and said nothing of double recovery.  Ch. 93,  1, SLA 1982.

     38   See supra notes 5-7, 9.

     39   Slip Op. at 23 n.51.

     40   Slip Op. at 23.

     41   Slip Op. at 21.