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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rockney v. Boslough Construction Co. (05/27/2005) sp-5899

Rockney v. Boslough Construction Co. (05/27/2005) sp-5899

     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,


KNUTE ROCKNEY,                 )
                               )   Supreme Court No. S-11444
               Appellant,      )
                               )   Superior Court No.
     v.                        )   3AN-03-10287 CI
CO., and the ALASKA WORKERS    )   O P I N I O N
               Appellees.      )   [No. 5899 - May 27, 2005]

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Michael L. Wolverton, Judge.

          Appearances:  William J. Soule, Law Office of
          William  J.  Soule, Anchorage, for Appellant.
          Theresa   Hennemann,  Jeffrey  D.   Holloway,
          Holmes  Weddle & Barcott, PC, Anchorage,  for
          Appellees  Boslough Construction Company  and
          Alaska National Insurance Company.

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

          MATTHEWS, Justice.


          This appeal arises from the Alaska Workers Compensation

Boards  approval  of  a vocational reemployment  plan  for  Knute

Rockney,  who  suffered a back injury while working for  Boslough

Construction.  Rockney challenges the plan that would retrain him

as  drafter  through  the  Architectural  Engineering  Technology

program at the University of Alaska Anchorage.  Because we  agree

that  substantial evidence does not support that the  plan  meets

Rockneys remunerative wage and the statutory time limitation,  we

reverse and remand for further proceedings.


          Rockney began to experience back pain from his job as a

laborer  for  Boslough  Construction on December  26,  2000.   He

applied  for  and  was  paid a variety  of  workers  compensation

benefits  through  Bosloughs insurer, Alaska  National  Insurance

Company.   Rockney  also  was  deemed eligible  for  reemployment

benefits  under AS 23.30.041 because he could no longer  work  in

construction  and  asbestos removal since  these  classifications

were too demanding for his back.

          Rockneys first reemployment plan (Plan I) was abandoned

after  being submitted for approval to the reemployment  benefits

administrator (RBA).  The second plan (Plan II) aimed to  retrain

Rockney  as  a  drafter  through  the  Architectural  Engineering

Technology program at the University of Alaska Anchorage.   Among

other findings, Rehabilitation Specialist Marjorie Linder adopted

Plan  Is remunerative wage of $21.58 per hour and determined that

Plan II would meet Rockneys remunerative wage of $21.58 per hour,

that  the  labor  market for drafters is  very  ample,  and  that

Rockney had the skills and aptitude to complete Plan II.  Plan II

also  provided that Alaska National would pay for a computer  for

Rockney, although the insurer imposed certain conditions.

          RBA Douglas Saltzman approved Plan II on March 4, 2003.

Rockney  appealed and began attending classes at  UAA  under  the

plan   while   his   appeal  was  pending.   At  his   professors

suggestions, Rockney dropped his summer math course and  switched

writing  classes  so  that  he could take  slower-paced  classes.

These   changes  meant  Rockney  was  three  credits  behind   in

completing the plan by the end of the summer of 2003.

          Both  the  Workers Compensation Board and the  superior

court  rejected  Rockneys challenges.   He  now  appeals  to  us,

contending  that  the plan fails to meet his  remunerative  wage,

that the labor market is inadequate, that he cannot complete  the

plan within the statutory time frame, and that he should not have

to  buy  his  own  computer.  Additionally, he  argues  that  the

presumption  of compensability applies to evaluating whether  the

plan meets the statutory requirements.


          When  the superior court acts as an intermediate  court

of  appeal,  we  give  independent consideration  to  the  agency

decision.1  We independently review whether substantial  evidence

supports  the boards factual findings.2  Substantial evidence  is

in  light  of the record as a whole, . . . such relevant evidence

as  a  reasonable  mind  might accept as adequate  to  support  a

conclusion.3   Under  this  standard, we  will  not  reweigh  the

evidence or draw [our] own inferences from the evidence.4

          Determining   the   applicability  of   the   statutory

presumption of compensability is a question of law that we review

de novo.5


     A.   Substantial  Evidence  Does  Not  Support  the   Boards
          Findings that the Plan Meets Rockneys Remunerative Wage
          of $21.58 at the Entry Level.
          The   goal   of  reemployment  plans  is  to   ensure[]

remunerative  employability  in  the  shortest  possible   time.6

Rockney  argues  that  the plan does not  meet  this  requirement

because no evidence supports a finding that after completing  the

plan  he  could  obtain  an  entry-level  drafting  job  at   his

remunerative wage rate of $21.58 per hour. Boslough7 conceded  at

oral  argument  that  the  plan needed to  provide  Rockney  with

opportunities  to  receive the remunerative  wage  at  the  entry

level,  but  argues that substantial evidence supports  that  the

plan does so.8

          The   board  concluded  that  Rockneys  plan  met   his

remunerative  wage because the mean hourly wage  for  experienced

drafters  was  between  $21.61 and  $26.45  per  hour.   However,

substantial evidence does not support the conclusion that Rockney

could  command  such wages after completing the plan.   The  mean

          entry-level wage for drafters was between $14.35 to $17.13 per

hour,  well  below  an  hourly wage rate  of  $21.58.   Moreover,

starting salaries for drafters based on employer surveys seem  to

vary  from $8 to $16 per hour, with many entry-level jobs at  the

lower end of that range.

          Boslough  argues that Rockneys construction  background

and  the  plans  provision of fourteen hours of drafting  courses

above  the certification requirements would move Rockney  out  of

the  entry-level salary ranges.  However, Boslough does not point

to   substantial   evidence  supporting  this  contention.    The

additional classes apparently would not provide Rockney with  on-

the-job  drafting  experience.   Although  the  plan  notes   his

construction  experience will provide a practical orientation  to

his  work,  and a few of the surveyed employers said construction

experience  would  be  a  plus, none of  the  surveyed  employers

indicated that they would consider Rockney an experienced drafter

based on his work history.

          Therefore,  we conclude substantial evidence  does  not

support  a finding that the plan would meet Rockneys remunerative

wage of $21.58 per hour at the entry level.

     B.   Substantial  Evidence  Does  Not  Support  the   Boards
          Finding  that  the Plan Could Be Completed  Within  the
          Statutory Time Frame of Two Years.
          Alaska Statute 23.30.041(k) limits the plan time to two

years.9  Rockney argues that because of necessary changes to  his

course work, substantial evidence does not support that he  could

complete his plan within this time frame.

          Boslough asserts that Rockney presented only conjecture

that  the  plan  would  exceed  the  statutory  time  frame.   We

disagree.  At the time the board approved Rockneys plan,  he  had

dropped  his summer math course and switched writing  classes  at

his professors suggestion because he needed slower-paced classes.

The  board  acknowledged  his plan needed  to  be  modified,  but

nevertheless  concluded that it remained viable.  However,  there

          is not substantial evidence in the record showing that Rockney

could  rearrange  his  schedule to accommodate  the  slower-paced

classes without exceeding two years.10  The plan already included

six  semesters  of courses over a full two years.   Dropping  the

course put Rockney three credits behind, which he believed  would

likely take a seventh semester to complete.11

     C.   The  Presumption of Compensability under  AS  23.30.120
          Does Not Apply in Rockneys Case.
          Lastly,  Rockney  argues that  the  board  should  have

applied  the presumption of compensability to determine the  true

facts underlying each of his challenges to the reemployment  plan

and  then  should  have considered whether  the  RBA  abused  his


          Alaska Statute 23.30.120 establishes a presumption that

an  employees  claim for injury comes within  the  scope  of  the

Alaska  Workers  Compensation Act in the absence  of  substantial

evidence to the contrary.  In a proceeding for the enforcement of

a  claim  for compensation under this chapter it is presumed,  in

the absence of substantial evidence to the contrary, that (1) the

claim comes within the provisions of this chapter[.]12

          We have broadly interpreted the presumption to apply to

any   claim  for  compensation  under  the  workers  compensation

statute.13  Consequently, we have applied the presumption to  any

disputes over the employees eligibility for benefits,14 including

eligibility  for  reemployment  benefits.15   Additionally,   the

presumption applies when an employer or insurer disputes who must

pay  for  the  benefits.16  Using the presumption in these  cases

simplif[ies] proceedings before the Board and thus reduce[s]  the

hazards interinsurer disputes pose for the injured worker.17

          However,  the  presumption of compensability  does  not

apply  to  Rockneys case because Alaska National and Boslough  do

not  dispute  Rockneys  entitlement to reemployment  benefits  or

their  liability for those benefits.  In effect, all the  parties

agree  that  Rockneys claim comes within the provisions  of  this

chapter.18  Rockney is not seeking coverage; instead, he disputes

          the plan under which his benefits will be provided. Moreover,

applying  the presumption to evaluating reemployment  plans  does

not  promote the goals of encouraging coverage and prompt benefit


          Therefore, we conclude that the board should not  apply

the  presumption of compensability in evaluating  a  reemployment



          We  REVERSE the superior court decision concluding  the

reemployment benefits administrator and the board did  not  abuse

their  discretion  in approving Rockneys reemployment  plan.   We

REMAND for further proceedings consistent with this opinion.19

     1     Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).

     2     See AS 23.30.041(j) (requiring the board to review the
RBAs  approval of a vocational reemployment plan for an abuse  of
discretion);  AS  44.62.570(b)&(c) (noting an agency  abuses  its
discretion  when  it lacks substantial evidence  to  support  its
findings);  Morgan  v. Lucky Strike Bingo, 938  P.2d  1050,  1055
(Alaska 1997) (same).

     3     Cheeks  v.  Wismer & Becker, 742  P.2d  239,  244  n.6
(Alaska 1987).

     4    Id.

     5    E.g., Kirby v. Alaska Treatment Ctr., 821 P.2d 127, 129
n.5 (Alaska 1991).

     6       AS   23.30.041(i).    AS   23.30.041(r)(7)   defines
remunerative  employability as having the  skills  that  allow  a
worker  to be compensated with wages or other earnings equivalent
to  at least 60 percent of the workers gross hourly wages at  the
time of injury.

     7     Throughout this opinion, we use Boslough to  refer  to
the positions of both Boslough and Alaska National.

     8     Boslough also argues Rockneys remunerative wage should
be  $8.40 per hour, or 60 percent of his hourly wages at Boslough
under  AS 23.30.041(r)(7), and that substantial evidence supports
that   the   plan   would  satisfy  this  rate.    However,   the
rehabilitation   specialist  classified  a  $40  Christmas   gift
certificate as a bonus under 8 Alaska Administrative  Code  (AAC)
45.490, which led to a calculation based on Rockneys higher union
wages in prior jobs, rather than merely on his non-union Boslough
wages.  The  board  indicated  it would  conclude  that  Rockneys
appropriate  remunerative wage was $21.58 per  hour.   Given  the
possibility  of  an equally high remunerative  wage  even  if  we
reject  that the gift certificate was a bonus under 8 AAC 45.490,
we assume $21.58 is the appropriate remunerative wage.

     9    AS 23.30.041(k) provides that [b]enefits related to the
reemployment plan may not extend past two years from the date  of
plan  approval  or  acceptance, whichever date occurs  first,  at
which time the benefits expire.

     10     Boslough  cites some testimony by Rockney  suggesting
that  his  rehabilitation  specialist  was  working  with  school
counselors  to  try to cram the math class into one  of  the  six
semesters  covered  by  the plan.  But  we  think  that  Rockneys
testimony  as  a  whole does not constitute substantial  evidence
that  Rockney would have succeeded in completing the course  work
over six semesters.

     11     Because  we reverse the approval of the plan  on  the
grounds that substantial evidence is lacking to support that  the
plan  meets the remunerative employability requirement  and  time
limitations, we do not consider Rockneys arguments that the labor
market  is  inadequate  and  that Alaska  National  impermissibly
imposed conditions on paying for his computer.

     12    AS 23.30.120(a).

     13    Municipality of Anchorage v. Carter, 818 P.2d 661, 665
(Alaska  1991)  (applying  presumption to  claim  for  continuing
medical care).

     14     Meek  v. Unocal Corp., 914 P.2d 1276, 1279-80 (Alaska
1996)   (applying  presumption  to  claim  for  permanent   total
disability);  Wien  Air Alaska v. Kramer, 807  P.2d  471  (Alaska
1991)  (applying  presumption to claim for  continuing  temporary
total  disability); Sokolowski v. Best W. Golden Lion Hotel,  813
P.2d  286,  292  (Alaska  1991) (holding presumption  applies  to
analyzing  whether injury suffered going to work was  compensable
because route constituted special hazard); Anchorage Roofing  Co.
v. Gonzales, 507 P.2d 501, 504-05 (Alaska 1973) (holding injuries
suffered  on  trip  for business and pleasure were  compensable);
Thornton v. Alaska Workmens Comp. Bd., 411 P.2d 209, 211  (Alaska
1966)   (applying  presumption  to  question  of   whether   work
contributed to employees heart attack).

     15    Kirby, 821 P.2d at 129.

     16     Veco, Inc. v. Wolfer, 693 P.2d 865, 868 (Alaska 1985)
(applying presumption to dispute between insurer and self-insured
employer  over who pays workers benefits); Providence Wash.  Ins.
Co. v. Bonner, 680 P.2d 96 (Alaska 1984) (applying presumption to
dispute between successive insurance companies over who pays  for
workers benefits).

     17    Bonner, 680 P.2d at 100 (Rabinowitz, J., concurring).

     18    AS 23.30.120(a).

     19      The  statutory  time  and  cost  limitations  in  AS
23.30.041(k)  and  (l) will restart for any new  plan.   Although
Binder v. Fairbanks Historical Pres. Found. held that the caps do
not  start  over  for  a  second plan  when  the  first  plan  is
unsuccessful,  that  case is not on point because  Rockney  never
approved  of  his  plan  and challenged  it  as  invalid  at  its
inception.  See 880 P.2d 117, 120-23 (Alaska 1994).