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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Leigh v. Seekins Ford (05/12/2006) sp-6011

Leigh v. Seekins Ford (05/12/2006) sp-6011, 136 P3d 214

     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


MARK LEIGH, )
) Supreme Court No. S- 11270
Appellant, )
) Superior Court No. 4FA-02-387 CI
v. )
) O P I N I O N
SEEKINS FORD and LIBERTY )
NORTHWEST INSURANCE ) No. 6011 - May 12, 2006
COMPANY, )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:  James M. Hackett, Law Office of
          James  M.  Hackett, Fairbanks, for Appellant.
          Constance E. Livsey, Holmes Weddle & Barcott,
          PC, Anchorage, for Appellees.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          After injuring his back while employed by Seekins Ford,
Mark  Leigh  unsuccessfully  claimed permanent  total  disability
(PTD)  benefits  under the Alaska Workers Compensation  Act.   He
argues  on appeal that Seekins Ford did not rebut the presumption
of  compensability  that,  he claims, arose  from  evidence  that
debilitating pain and pain medication kept him from  working  and
rendered futile efforts to find suitable employment.  We conclude
that   the  Alaska  Workers  Compensation  Board  did  not   make
sufficient  findings  addressing  Leighs  evidence  that  he  was
incapacitated  by pain and pain medication.  We therefore  vacate
the  superior court decision that affirmed the boards  denial  of
PTD benefits and remand for further proceedings.
II.  FACTS AND PROCEEDINGS
          Mark  Leigh  worked at Seekins Ford in  Fairbanks  from
1976  until February 1995, when he injured his back while working
as  a service mechanic.  After two back surgeries, Leigh returned
to  Seekins Ford in a supervisory capacity.  In August 1996 Leigh
underwent a third back surgery and has not returned to work.   He
moved  to  and currently resides in Snowflake, Arizona, where  he
had  his  fourth and most recent back surgery in March 1998.   In
March  1999  a panel of doctors conducted an independent  medical
examination  and  concluded  that Leigh  could  work  and  attend
classes with some restrictions.
          Leigh  applied to the Alaska Workers Compensation Board
for  permanent total disability (PTD) benefits in May  1999.   At
the   board  hearing,  Leigh  presented  evidence  that  he   has
restricted  motion in his back and suffers from  depression,  and
offered  rehabilitation therapist Robert  Sullivans  report  that
Leigh  cannot  return  to work due to the  effects  of  necessary
narcotic pain medications.  Numerous friends, family members, and
co-workers  also  testified about Leighs pain  and  inability  to
work.   Seekins Ford offered contrary medical evidence;  it  also
offered testimony from rehabilitation counselor Betty Cross  that
suitable work was available to Leigh.
          The   board   found  that  Leigh  had   triggered   the
presumption  of compensability.  It then found that Seekins  Ford
had  rebutted the presumption by producing evidence that  [Leigh]
has  the  physical and mental abilities to perform regularly  and
continuously  available  work that  is  available  in  the  area.
Finally,  it concluded that Leigh failed to prove his PTD  status
by a preponderance of the evidence. It therefore denied his claim
for PTD benefits.
          The  superior court affirmed.  Focusing on the  medical
evidence that persuaded the board that Leigh had the physical and
mental  capacity  to work, the superior court held  that  Seekins
Ford  presented  sufficient evidence to rebut the presumption  of
compensability.    The   superior   court   upheld   the   boards
determination  that  Leigh  did  not  prove  his   claim   by   a
preponderance  of  the  evidence  and  held  that  Seekins  Fords
evidence  of  a  regular, stable market for jobs  suiting  Leighs
abilities was sufficient.
          Leigh appeals.
III. DISCUSSION
     A.   Standard of Review
          In  appeals  from  the board, we apply the  substantial
evidence  standard of review for questions of fact.1  Substantial
evidence  is  such relevant evidence as a reasonable  mind  might
accept  as adequate to support a conclusion.2  Whether the amount
of  evidence is substantial is a question of law.3  We apply  the
reasonable  basis  standard  of  review  for  questions  of   law
involving  agency  expertise,  but  apply  the  substitution   of
judgment  standard  of review for questions of  law  outside  the
          agencys expertise.4  Whether the board made sufficient findings
is a question of law that we review de novo.5
     B.   The Board Procedurally Erred in Reaching Its Conclusion
          that Leigh Was Not Permanently and Totally Disabled.
          
          Alaska    Statute   23.30.120(a)(1)    establishes    a
presumption  for workers compensation purposes that injuries  are
compensable.6  For the presumption to attach, the employee  first
must establish a preliminary link between the disability and  the
employment.   After  the  employee  demonstrates  the  link,  the
employer may rebut the presumption with substantial evidence that
the   employee  is  not  PTD.7   To  rebut  the  presumption   of
compensability, an employer must show that there is  regular  and
continuously  available work in the area suited to the  employees
capabilities, i.e., that [he or she] is not an odd  lot  worker.8
If  the  employer presents substantial evidence that the employee
is  not  PTD,  the presumption disappears and the  employee  must
prove [his or her] PTD claim by a preponderance of the evidence.9
          The parties agree that Leigh was injured on the job and
that  the presumption of compensability attaches.  Leigh advances
two reasons for his contention that Seekins Ford failed to adduce
substantial  evidence to rebut the presumption of compensability.
First,  he  argues that Seekins Ford did not present  substantial
evidence to rebut alternative presumptions of compensability that
he  argues  were raised by evidence of his chronic pain  and  the
futility  of searching for work.  Second, he argues that  Seekins
Ford  presented insufficient evidence of regular and continuously
available work in the statutorily defined labor market.
          1.   The  boards  findings that Leigh could  work  were
               insufficient to support its conclusion that he was
               not  totally and permanently disabled even  though
               he was suffering from severe, debilitating pain.
               
          In  defining  permanent  total disability,  Alaska  has
adopted  the odd-lot doctrine, which states that total disability
may  be  found  in the case of workers who, while not  altogether
incapacitated for work, are so handicapped that they will not  be
employed regularly in any well-known branch of the labor market.10
Leigh  contends  that he established alternative presumptions  of
odd-lot status by demonstrating that he suffered from continuous,
severe and debilitating pain11 and that any search for employment
would  be  futile.12  Reasoning that Seekins Ford did  not  rebut
these  presumptions, Leigh concludes that he is entitled  to  PTD
status.
          Neither  of  Leighs alternative presumptions  has  been
recognized  as established in Alaska law.  Given the broad  scope
of  the  statutory  presumption of compensability,13  it  is  not
apparent  from  the present case that additional  or  alternative
presumptions are necessary to protect Alaskan workers.  Nor is it
apparent  how  the alternative presumptions would benefit  Leigh.
It  seems  likely  that  evidence  sufficient  to  rebut  Alaskas
statutory  presumption of compensability  would  also  rebut  the
presumption  Leigh  would base on evidence that  any  search  for
employment would be futile,14 or that he is incapacitated by pain.
          Likewise, it is not apparent why evidence of a debilitating
medical  condition caused by an employment injury would not  give
rise  to  the  statutory presumption.  In any event, the  parties
agree  that  the compensability of Leighs claim is presumed,  and
the  board found that the presumption of compensability  attached
to  Leigh.  It is therefore not necessary to decide here  whether
the  alternative  presumptions Leigh proposes  are  justified  or
permitted  under  the  Alaska Workers Compensation  Act.   Leighs
claim was unsuccessful not because the board failed to apply  the
presumption in his favor, but because it found that Seekins  Ford
had  overcome that presumption and that Leigh ultimately had  not
proved his claim by a preponderance of the evidence.
          We  therefore  turn to the real crux of Leighs  appeal.
Even  if  it  does  not create a presumption  of  compensability,
evidence  of  Leighs  chronic pain and of  the  effects  of  pain
medication remains relevant to determining by a preponderance  of
the  evidence  whether  he is permanently and  totally  disabled.
Leigh  argued before the board, and offered evidence  to  support
those  arguments,  that his chronic pain and the  resulting  pain
medication prevented him from obtaining employment.
          The board must make findings on all contested issues.15
When   deciding whether the issue was truly a contested  one,  we
must  examine  the  record to determine if there  are  sufficient
indicia of factual development on the point in contention .  .  .
more than a bald assertion of a theory of recovery for which  the
record  contains no evidentiary basis of support.  16   When  the
claimant  introduces evidence that chronic pain prevents  him  or
her  from  working, the board must therefore make  findings  that
address  whether  that pain, either by itself or  in  combination
with   other   circumstances,  including  the  effect   of   pain
medication,   renders  the  claimant  permanently   and   totally
disabled.
          In  this  case many of the medical professionals  noted
serious  pain, and one specifically concluded that Leigh was  not
exaggerating  the pain.  The board observed that Leighs  treating
Arizona neurosurgeon, Dr. Stephen Ritland, wrote in December 1999
that  [w]ith the ongoing medication required and with the ongoing
chronic  pain  and associated limitations, I do not believe  that
[Leigh]  would be effectively employable.  The board  also  noted
that  numerous  friends, family members and  coworkers  testified
about  Leighs pain and inability to work, despite his  motivation
to  work.   Leigh took narcotic pain medication,  and  there  was
evidence that these medications prevented him from working.
          There  was  also circumstantial evidence  permitting  a
contrary  conclusion,  that pain and pain medications  would  not
prevent  him  from working.  For example, as the board  noted,  a
psychological  counseling chart indicated that  Leigh  was  quite
active  and  mentioned activities including riding a  motorcycle,
landscaping, doing computer work, fishing and shopping.
          Nonetheless,  even though the board discussed  evidence
of  chronic pain and the effects of narcotic pain medication,  it
ultimately  made no findings directly addressing the  effects  of
Leighs  chronic  pain  and the narcotic pain  medication  on  his
ability to work or the availability of suitable jobs.
          Furthermore, it is difficult to reconcile the  comments
in  Dr.  Ritlands December 1999 report (quoted by the  board  and
also  set  out  above) with the boards statements  (made  at  two
places  in its decision) that Dr. Ritland concluded [that  Leigh]
is  neither physically, nor psychiatrically, precluded from work,
and  that  he is presently able to perform work in the  sedentary
and  light  ranges.  As the board noted earlier in its  decision,
Dr. Ritland had predicted in 1998, after performing Leighs fourth
surgery,  that Leigh would be able to perform light or  light  to
moderate  work.   Thus, Dr. Ritlands April 21, 1998  clinic  note
stated  that  Leigh  would  be limited  to  light,  or  light  to
moderate,  activity  in the long term, but  that  for  retraining
purposes he could start on things such as reading and book  work.
That note ultimately stated that whether [Leigh] would be limited
to  strictly  light activity or light to moderate activity  would
depend  on  his  recovery over the next 3 to 6 months.   But  six
months later, Dr. Ritland noted that Leigh is not ready to return
to  work. . . .  I dont anticipate that he will be able to return
to  physical work.  If he does return to work, I would anticipate
sedentary or office type work at some point in the future.
          The  board  also found it significant that Dr.  Ritland
had  agreed in August 1999 with the conclusion, contained in  the
report  of  the  employer independent medical evaluation  (EIME),
that  Leigh  could perform limited work.  But the evidence  shows
that  in  June 1999 Dr. Ritland agreed only with the EIME reports
conclusions about objective indications and limitations,  and  in
his  clinic note of August 24, 1999 he wrote that it is difficult
to  consider employment because [Leigh] does not tolerate sitting
or  standing  for more than a short period of time.  Dr.  Ritland
consistently distinguished between objective physical limitations
and   subjective  limitations  associated  with  pain  and   pain
medication.  His December 1999 clinic note expressed his  opinion
that  with  the ongoing medication required and with the  ongoing
chronic pain and associated limitations, I do not believe that he
would  be  effectively employable.  In January 2001 he  disagreed
that  Leigh  could perform the activities described  in  the  job
analysis,  given  subjective limitations resulting  from  chronic
pain and narcotics.  Dr. Ritlands statements that Leigh could  do
some work were based on his assessment of the objective status of
Leighs  back;  after  mid-1999  he  appears  to  have  invariably
qualified those statements with his opinion that chronic pain and
the   effects   of   narcotic  pain  medication  rendered   Leigh
effectively unemployable.
          It  might  have  been permissible  for  the  board,  in
weighing  the  evidence, to have accorded little  weight  to  Dr.
Ritlands  opinion  that  chronic pain and  the  effects  of  pain
medication  prevented  Leigh from obtaining  regular  employment.
But  the board did not do so explicitly.  Nor did it explain  why
it  chose  to  credit Dr. Ritlands statements  that  Leigh  could
perform light and sedentary work while disregarding his seemingly
more   comprehensive   opinion   that   Leigh   was   effectively
unemployable.
          Leighs  claim  that  chronic pain and  the  effects  of
narcotic  pain  medication prevent him from obtaining  employment
was  an important part of his claim for PTD benefits.  We express
no  opinion whether substantial evidence would support a  finding
that chronic pain and the effects of narcotic pain medication  do
not render Leigh permanently and totally disabled.  But the board
touched  on evidence of chronic pain and narcotic pain medication
in  relatively summary fashion.  And it did not squarely  address
Leighs  contention  that, in light of physical  limitations,  his
chronic  pain  and  the  required pain  medication  rendered  him
incapable  of  regular employment or retraining.  The  board  may
have thought that this contention was necessarily resolved by its
conclusion  that  Leigh  was not psychiatrically  precluded  from
work.   But in our view that conclusion does not dispose  of  his
claim  that  pain and pain medication prevented  him  from  being
employed.   We  therefore  vacate the superior  courts  appellate
decision  that  affirmed the boards denial of PTD  benefits,  and
remand for further proceedings.  On remand the board must resolve
Leighs  contentions about the effect of his ongoing pain and  his
pain medication on his employability.17
          2.    Seekins Ford did not present substantial evidence
that  work                 within Leighs abilities was  regularly
and  continuously  available              in the  relevant  labor
markets described in AS 23.30.180(a).

          Leigh  also  argues  that  Seekins  Fords  evidence  of
regular  and  continuously available work  in  the  area  is  not
substantial  because the employer did not conduct a labor  market
survey  in  accordance  with  AS  23.30.180(a).18   That  statute
provides that [i]n making [the PTD] determination the market  for
the  employees services shall be (1) area of residence; (2)  area
of last employment; (3) the state of residence; and (4) the State
of Alaska.19
          We   interpret  statutes  so  that  no  part  will   be
inoperative or superfluous, void, or insignificant.20  The list of
relevant labor markets in AS 23.30.180(a) would be superfluous if
evidence  from  the  national labor  market  were  sufficient  to
demonstrate  that regular employment was continuously  available.
We  have  held  that  the requirement that the  employer  provide
evidence  of  regular  and continuously  available  work  in  the
statutorily  defined  market has been  satisfied  by  surveys  of
specific and relevant markets.21  This implies that evidence about
the   specific  market  is  required.   Moreover,  as  a  general
proposition, we note that conditions affecting employment markets
in  Alaska  are sufficiently different from conditions  affecting
employment  markets in other parts of the country  that  evidence
specific to Alaska is normally required when Alaska is a relevant
labor market under AS 23.30.180(a).
          In  this  case, Leigh relocated to Snowflake,  Arizona.
The  Snowflake  area  and  the state  of  Arizona  are  therefore
relevant  labor markets under AS 23.30.180(a)(1)  and  (3).   But
because  neither this court nor presumably the board has a  great
deal  of knowledge about job markets in Snowflake or Arizona,  we
are  unwilling to assume that they mirror national trends  absent
specific evidence to that effect.  Evidence that suitable regular
employment  is  continuously available elsewhere  in  the  United
States   generally  does  not  prove  regular  and   continuously
available  employment  in  the  labor  markets  specified  by  AS
23.30.180(a),  absent evidence that the pertinent  labor  markets
are similar to the national market.
          Seekins  Ford presented the testimony of rehabilitation
counselor  Betty  Cross as evidence of regular  and  continuously
available work in the relevant labor markets.  Leigh argues  that
this testimony is insufficient to support the boards finding that
Seekins   Ford   successfully   rebutted   the   presumption   of
compensability.   Cross had reviewed Leighs file  and  catalogued
his  abilities,  but had not spoken with Leigh or  examined  him.
She  identified a number of jobs Leigh could perform despite  his
limitations.22   But  rather than testify that  these  jobs  were
available  in  the  labor markets described by  AS  23.30.180(a),
Cross testified simply that these jobs were available to Leigh in
the  real  world.   Cross testified that the  positions  of  auto
rental clerk and airline security representative are available in
airports  across  this  country.  She  testified  that  food  and
          beverage order clerks may find work in fast food restaurants and
other  establishments.  Because there are airports and fast  food
restaurants in Alaska and Arizona, by implication these jobs  are
available within the labor markets described by AS 23.30.180(a).23
Cross  also testified that surveillance monitors are employed  in
most  major  retail establishments, including a  Sears  store  in
Anchorage.
          Cross  did  not  expressly  testify  that  regular  and
continuously  available employment existed in the specific  labor
markets listed in AS 23.30.180(a).  It may be inferable from  her
testimony  that  Cross  believed  that  the  sorts  of  jobs  she
discussed are indeed available in the statutory markets pertinent
to Leigh.  Although the evidence is sufficiently nonspecific that
we  do  not feel compelled to draw that inference, the board  may
have  done  so.   The  board did not reject  Crosss  evidence  as
insufficient,  and did not fault the absence of specific  surveys
of the pertinent markets.  We note that market survey evidence is
often  offered by employers.  We have not held that a failure  to
offer evidence of surveys of the statutorily specified employment
markets necessarily results in a failure to rebut the presumption
of  compensability, even though the employer only  offers  other,
more general, evidence of employment availability.24  Because  we
have  not so held, and because we are remanding for consideration
of   Leighs  claim  that  pain  and  pain  medication  made   him
unemployable, we also remand for consideration of the adequacy of
the  labor  market evidence.  On remand Seekins Ford may  present
specific   evidence   of   regular  and  continuously   available
employment in the relevant labor markets listed in the statute.25
          Leigh also argues that Seekins Ford failed to rebut the
presumption   of  compensability  because  it  did  not   present
sufficient  evidence that jobs were actually  available  to  him.
Our cases have not required employers to show job availability to
satisfy the statute.  We decline here to adopt the United  States
Court of Appeals for the Ninth Circuits apparent requirement that
under  the federal Longshore and Harbor Workers Compensation  Act
the  employer  identify  a specific job  as  available.26   Other
circuits have not construed the Act to contain that requirement.27
We  are  not persuaded that the fortuity of a specific  positions
availability  at any given time determines that a regular  market
for  the  job exists.  Instead, the proper focus must  remain  on
whether  the  employer  has presented substantial  evidence  that
there  are jobs reasonably available in the relevant labor market
that the employee could realistically obtain and hold.28
          Here,  as  we saw above, Cross testified that  openings
occur  for  the jobs that she identified as suitable  for  Leigh.
She  did not, however, testify that Leigh had a realistic  chance
of  obtaining  and holding these jobs.  On remand,  Seekins  Ford
will  have  the  opportunity to supplement Crosss testimony  with
additional evidence on this point.
          Leigh  additionally argues that by relying only on  the
medical  evidence  and  Crosss deposition  testimony,  the  board
erroneously  placed the burden of proof on Leigh to disprove  the
universal  negative of not being employable at any  work.29   The
boards conclusion that an employer has successfully rebutted  the
          presumption of compensability may be based on medical evidence
and  expert testimony of the availability of suitable jobs.   And
once  the  employer  adduces substantial evidence  to  rebut  the
presumption of compensability, the burden of proving  PTD  status
by  a  preponderance of the evidence is properly shifted  to  the
claimant.30   Moreover, the presumption of compensability  shifts
only the burden of production, not the burden of persuasion.31  On
remand,  more  specific  evidence  of  regular  and  continuously
available  jobs  suiting  Leighs  abilities  in  the  statutorily
defined  job markets may help focus both parties arguments  about
whether  Leigh is permanently and totally disabled.   Leigh  will
therefore  not be required to disprove, as he fears, a  universal
negative.
V.   CONCLUSION
          We   therefore  REMAND  to  the  superior  court   with
instructions to VACATE the boards decision and to REMAND  to  the
board for further proceedings consistent with this opinion.
_______________________________
     1     Blanas  v.  Brower  Co., 938 P.2d 1056,  1059  (Alaska
1997).

     2     Cowen  v.  Wal-Mart, 93 P.3d 420,  424  (Alaska  2004)
(internal quotation marks omitted); see also Miller v. ITT Arctic
Servs., 577 P.2d 1044, 1049 (Alaska 1978).

     3    Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985).

     4    Robinson v. Municipality of Anchorage, 69 P.3d 489, 493
(Alaska 2003).

     5     See  Bolieu v. Our Lady of Compassion Care  Ctr.,  983
P.2d  1270,  1276 (Alaska 1999) (remanding because of the  Boards
failure  to  make  reviewable  findings  of  fact  concerning   a
contested  issue).   Cf. L.G. v. State, Dept  of  Health  &  Soc.
Servs.,  14  P.3d  946, 950 (Alaska 2000) (holding  that  whether
superior  courts  findings comport with  requirements  of  Indian
Child Welfare Act is reviewed de novo as question of law).

     6     AS 23.30.120 provides that (a) 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 . . . .

     7     Carlson v. Doyon Universal-Ogden Servs., 995 P.2d 224,
227 (Alaska 2000).

     8    Id. at 229 (internal quotation marks omitted).

     9    Id. at 227.

     10    Id. at 228 (quoting Olson v. AIC/Martin J.V., 818 P.2d
669, 674 (Alaska 1991)).

     11    Kester v. Colonial Manor of Custer, 571 N.W.2d 376, 381
(S.D. 1997).

     12     See Jarvis v. Rexburg Nursing Ctr., 38 P.3d 617,  622
(Idaho 2001).

     13     Meek  v. Unocal Corp., 914 P.2d 1276, 1279-80 (Alaska
1996) (holding that presumption of compensability applies to  all
claims  under workers compensation statute, including claims  for
PTD benefits).

     14     Compare  Kester,  571 N.W.2d  at  381  (requiring  as
rebuttal  showing that there is suitable employment available  in
the   claimants   community  that  will   accommodate   claimants
limitations)  with Carlson, 995 P.2d at 229 ([A]n  employer  must
show  that there is regularly and continuously available work  in
the area suited to the employees capabilities, i.e., that [he  or
she]  is  not  an  odd  lot  worker.) (internal  quotation  marks
omitted).

     15    See Bolieu, 983 P.2d at 1276 (remanding because of the
Boards  failure to make reviewable findings of fact concerning  a
contested issue).

     16    Id. at 1275 (quoting Davis v. Dist. of Columbia Dept of
Employment Servs., 542 A.2d 815, 820 (D.C. 1988)).

     17     Leigh  argues  that Seekins Ford did  not  rebut  the
presumption  of  compensability  arising  from  his  showing   of
alternative  grounds for odd-lot PTD entitlement.   He  therefore
concludes  that  he  is  entitled to a remand  for  an  award  of
benefits.  We do not regard these theories as stand-alone grounds
for conferring PTD benefits on Leigh.  These theories necessarily
require  assessment  of what Dr. Ritland regarded  as  subjective
considerations.   We  think the board had to decide  whether  the
evidence supported these subjective considerations.

     18    As a preliminary matter, we note that Leighs brief does
not  document the preservation of this issue before the board and
the  superior  court.  An unsupported statement at oral  argument
that  the  issue  had  been  preserved  would  not  satisfy   the
controlling rule.  See Alaska R. App. P. 212(c)(8)(B) (Appellants
brief shall indicate the pages of the record where each point  on
appeal was raised in the trial court.  If the point on appeal was
not  raised in the trial court, the brief shall explain  why  the
point  is raised for the first time on appeal.).  Because  we  do
not  ordinarily consider arguments raised for the first  time  on
appeal,  Crittell v. Bingo, 83 P.3d 532, 536 n.19 (Alaska  2004),
it  is  important that an appellant explain exactly how and where
each   issue  on  appeal  was  preserved  in  proceedings  below.
Fortunately for appellant, appellees counsel candidly  stated  at
oral  argument that the appellant had preserved the issue  below.
We therefore consider the merits of this argument.

     19    AS 23.30.180(a).

     20    See City of St. Marys v. St. Marys Native Corp., 9 P.3d
1002,  1008  (Alaska  2000)  (internal quotation  marks  omitted)
(interpreting state statute regulating municipal taxation).

     21     See Carlson v. Doyon Universal-Ogden Servs., 995 P.2d
224,  229  (Alaska  2000)  (evidence of  Anchorage  labor  market
survey); Summerville v. Denali Ctr., 811 P.2d 1047, 1051  (Alaska
1991) (evidence of Anchorage labor market survey).

     22    Cross testified that Leigh could work as an auto rental
clerk, gate guard, surveillance system monitor, food and beverage
order  clerk, charge account clerk, parking enforcement  officer,
and airline security representative.

     23     We note that the court could take judicial notice  of
the  fact  that  there are airports, fast food  restaurants,  and
department  stores in Alaska and Arizona.  See  Alaska  R.  Evid.
201(b)  (A  judicially noticed fact must be one  not  subject  to
reasonable  dispute  in  that it is either  (1)  generally  known
within   this  state  or  (2)  capable  of  accurate  and   ready
determination   by  resort  to  sources  whose  accuracy   cannot
reasonably be questioned.).

     24     However, as Professor Larson has noted, it should not
be  enough  to  show  that  claimant  is  physically  capable  of
performing  light  work, and then round out  the  case  for  non-
compensability  by  adding  a  presumption  that  light  work  is
available.   4  Arthur Larson, Larsons Workers  Compensation  Law
84.01[3]  (2000).  Professor Larson bases this view on the  well-
known  fact of modern economic life that the demand for unskilled
and  semiskilled labor has been rapidly declining and recognition
that  the great bulk of the persistent hard-core unemployment  of
the United States is in these categories. Id.

     25     Cf.  Robles v. Providence Hosp., 988 P.2d 592 (Alaska
1999).   We  there  remanded for award of benefits after  holding
that  the  employer, by failing to offer evidence of availability
of  work,  failed  to overcome the presumption of compensability.
Id. at 598.  Here Seekins Ford offered at least some evidence  on
the issue.

     26     See, e.g., Hairston v. Todd Shipyards Corp., 849 F.2d
1194, 1196 (9th Cir. 1988).

     27     See, e.g., Bunge Corp. v. Carlisle, 227 F.3d 934, 941
(7th Cir. 2000); Trans-State Dredging v. Benefits Review Bd., 731
F.2d  199, 201 (4th Cir. 1984); New Orleans (Gulfwide) Stevedores
v.  Turner, 661 F.2d 1031, 1042-43 (5th Cir. 1981); Air Am., Inc.
v. Dir., Office of Workers Comp. Programs, 597 F.2d 773, 779 (1st
Cir. 1979).

     28    Accord Carlisle, 227 F.3d at 941 (requiring employer to
show that there were jobs Carlisle was capable of performing  and
that  those  jobs were reasonably available in the  community  in
which  Carlisle  was  able  to compete  and  whether  they  could
realistically be secured). The United States Court of Appeals for
the Fifth Circuit has also stated that:

          Job   availability  should  incorporate   the
          answer to two questions.  (1) Considering the
          claimants age, background, etc., what can the
          claimant physically and mentally do following
          his injury, that is, what types of jobs is he
          capable  of  being trained to do? (2)  Within
          this  category of jobs that the  claimant  is
          reasonably capable of performing,  are  there
          jobs  reasonably available in  the  community
          for which the claimant is able to compete and
          which   he  could  realistically  and  likely
          secure.
          
     29    See Lyons v. Indus. Special Indem. Fund, 565 P.2d 1360,
1363 (Idaho 1977).

     30    Carlson, 995 P.2d at 227.

     31     See  Veco, Inc. v. Wolfer, 693 P.2d 865, 869  (Alaska
1985).

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