Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Carter v. B&B Construction, Inc. (12/19/2008) sp-6328

Carter v. B&B Construction, Inc. (12/19/2008) sp-6328, 199 P3d 1150

     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


FREDDIE L. CARTER,
)
) Supreme Court No. S-12295
Appellant, )
) Superior Court No. 4FA-03-2813 CI
v. )
) OPINION ON REHEARING
B & B CONSTRUCTION, INC., and )
PROVIDENCE WASHINGTON ) No. 6328 December 19, 2008
INSURANCE COMPANY, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge.
Appearances:   Michael
          A. Stepovich, Fairbanks, and Allen F. Vacura,
          Fairbanks,  for  Appellant.  Constance  Cates
          Ringstad,  McConahy,  Zimmerman  &   Wallace,
          Fairbanks, for Appellees.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          Freddie  Carter was injured on the job in 1992.   Since
then  he  has  suffered from a series of health problems  and  is
currently  unable  to  work.   He  appeals  the  Alaska   Workers
Compensation  Boards  denial of his request for  Permanent  Total
Disability (PTD) benefits and its refusal to grant him additional
reemployment  benefits.   He  also appeals  the  superior  courts
denial of his claim for additional interest, attorneys fees,  and
costs.   Because substantial evidence did not support the  boards
decision that Carter is not entitled to PTD benefits and  because
Carter  is  entitled to additional interest on  his  reemployment
benefits, we reverse and remand.
II.  FACTS AND PROCEEDINGS
          In  August 1992 Freddie Carter suffered two injuries to
his neck and left shoulder while performing heavy lifting for his
employer, B&B Construction, Inc.  After the second injury  Carter
filled  out  an  occupational injury report and in September  B&B
began paying Carter Temporary Total Disability (TTD) benefits.
          Carter  was first treated for his neck injuries by  Dr.
Robert  Dingeman, who requested an MRI of Carters cervical spine.
The  MRI showed large herniated disks at the C5-6 and C6-7 levels
and  slight disk bulging and posterior osteophytosis at the  C3-4
level.   Dr.  Dingeman  referred Carter  for  an  evaluation  and
probable surgery with Dr. John Joosse.
          In  October Dr. Joosse operated on Carter to  fuse  his
neck  vertebrae.   Eleven  days  after  the  surgery  Dr.  Joosse
reported  that  Carter was doing well and that he could  do  desk
light duty work.  In December Dr. Joosse reported that [t]he C5-6
level appears solidly fused.  The C6-7 is a little bit delayed in
its  solid  fusion.   There is no evidence,  however,  for  graft
collapse,  and  clinically everything  looks  good.   Dr.  Joosse
stated that by the end of the month Carter would probably be able
to  return to work, starting at medium duty and progressing as he
improves.   Dr. Joosse also noted that Carter said he was  having
ulcer symptoms.
          In  January  1993 Carter injured his lower  back  while
shoveling  snow.  Dr. Joosse diagnosed this injury  as  an  acute
lumbar  strain  that he doubted was related to  Carters  previous
work-related   injury.   B&B  controverted  both  Carters   claim
regarding  his lower back condition and his continued receipt  of
TTD benefits from his 1992 injury.
          On  April  2,  1993 Dr. Joosse concluded  that  Carters
condition was stable and that he would be able to work except for
his  lower  back  pain.  Dr. Joosse later gave  Carters  cervical
condition  a  Permanent Partial Impairment (PPI)  rating  of  ten
percent, whole person impairment.
          On  April  27,  1993  Carter requested  a  reemployment
benefits  eligibility evaluation.  Because he  made  his  request
more  than  ninety days after he gave B&B notice of his injuries,
he  indicated that he would later submit a written statement that
explained   the   unusual  and  extenuating  circumstances   that
prevented  him from filing in a timely manner.  On  May  4,  1993
(one  week after Carters request) the Alaska Division of  Workers
Compensation  informed Carter that it could not  act  on  Carters
request  until Carter submitted his written statement of  unusual
and extenuating circumstances.  The division also stated that  it
could not act on Carters request because it believed, mistakenly,
that Carter had been released to return to work.
          In June 1993 Carter filed an application for adjustment
of  claim  with the Alaska Workers Compensation Board, requesting
relief  that included (1) TTD benefits from February 15, 1993  to
the  then-present  date;  (2)  PPI benefits;  (3)  medical  costs
relating  to his January 1993 injury to his lower back;  and  (4)
review of what he referred to as the divisions decision regarding
his eligibility evaluation request.
          Later that month Dr. Edwin Lindig, Carters new treating
physician,   reported  that  Carters  symptoms  were  essentially
unchanged  and  that  his  neck problem was  his  main  disabling
factor.    Between  June  1993  and  February  1994  Dr.   Lindig
consistently reported that Carter had not been released for  work
and needed vocational rehabilitation.
          In  April  1994 Dr. James Foelsch performed a follow-up
neurological evaluation of Carter.  Dr. Foelsch diagnosed  Carter
with  chronic  neck  pain without evidence of  radiculopathy[1]or
myelopathy.2   Dr.  Foelsch also diagnosed Carter  with  probable
peripheral   neuropathy3 but suggested that this was  related  to
Carters alcohol intake instead of his neck or lower back pain.
          On  September 9, 1994 the board ruled that  (1)  Carter
was  not entitled to TTD benefits beyond April 2, 1993, when  Dr.
Joosse  reported that Carters cervical condition had  stabilized;
(2)  Carter  was entitled to PPI benefits according to  his  ten-
percent  PPI  rating; and (3) Carters lower  back  condition  was
non-work-related and thus non-compensable.  The board also stated
that  the  division properly concluded [that Carter]  waited  too
long   to   request  reemployment  benefits  and   denied   [him]
eligibility  because he failed to provide unusual and extenuating
circumstances  to justify his untimely request.   On  October  6,
1994  Carter sent the division a written explanation  of  unusual
and extenuating circumstances.
          In  September  1995  Carter petitioned  the  board  for
rehearing  and   modification of the  boards  September  9,  1994
ruling   on  his  eligibility  evaluation  request  because,   he
asserted,  that  ruling was based on a mistake of  fact.   Carter
specifically  argued that the board mistakenly characterized  the
divisions May 4, 1993 letter to Carter as a conclusive denial  of
his  eligibility evaluation request.  After the board denied  his
petition for rehearing Carter appealed to the superior court.  On
March 13, 1998 the superior court found that the divisions May 4,
1993 letter was not a final decision and reversed and remanded to
the  board  for reconsideration of Carters eligibility evaluation
request.
          In  August  1999 the division, after receiving  Carters
case  on  remand from the board, decided that Carter was entitled
to   an   eligibility  evaluation  because  he  had  sufficiently
demonstrated unusual and extenuating circumstances that prevented
him   from   requesting  his  evaluation  on  time.   After   B&B
unsuccessfully appealed this decision to both the board  and  the
          superior court, Carter asked the division to assign him a
rehabilitation specialist to perform his eligibility  evaluation.
On   December   27,   2001  the  division   assigned   Carter   a
rehabilitation specialist and on April 2, 2002 it found Carter to
be eligible for reemployment benefits.
          In the interim period between Carters 1995 petition for
rehearing  and the April 2002 determination that he was  eligible
for   reemployment  benefits,  Carter   experienced   significant
medical difficulties.  In January 1996 he suffered a seizure  and
was admitted to the hospital, where he suffered a second seizure.
In  December 1996 he was admitted to the intensive care  unit  of
the  hospital  because of an onset of type I diabetes.   Then  in
April  1998  he  was  again hospitalized, this  time  because  of
dyspnea4  complaints.  Carter was treated by Dr. Kendrick  Blais,
who  diagnosed him at discharge with (1) pulmonary  emboli,5  (2)
deep  vein  thrombosis  in  his right calf,6  (3)  diabetes,  (4)
hypercholesterolemia,7 (5) status post anterior fusion C5-C6  and
C6-C7,  (6)  generalized tonic-clonic seizures, and  (7)  chronic
gastritis.8
          On  October  25,  1999  Carter experienced  a  syncopal
episode9  at his home and was taken to the emergency room.   When
he  was  discharged  eight days later he was diagnosed  with  (1)
pulmonary embolus; (2) deep vein thrombosis; (3) Barretts
esophagus,10  including Schatzki ring,11 pyloric  gastritis,  and
duodenal polyps;12 (4) anemia,13 iron deficiency;14 (5)  type  II
diabetes;  (6)  essential  benign  hypertension;15  (7)   seizure
disorder; (8) hyperlipidemia/hypertriglyceridemia;16 (9)  chronic
pain related to degenerative joint disease of the cervical spine;
and (10) chronic low back pain with left radiculopathy.

          In  January 2000 Dr. Blais wrote in an Application  for
Medical  Cancellation of Student Loan Debt form for  Carter  that
[c]hronic  pain  prevents constant employment.  Multiple  medical
problems.   Pulmonary  embolus has caused  permanent  respiratory
injury.   Dr.  Blais  also  stated that  Carter  was  permanently
disabled with a rating of 50% or more.  At around the same  time,
Dr.  Foelsch filled out an identical form, but he diagnosed  only
Carters neck pain, left-sided numbness, and cervical spondylosis17
and stated that Carter was totally and permanently disabled.  Dr.
Foelsch   explained  that  Carter  was  prevented  from  resuming
employment  or  vocational rehabilitation because his  neck  pain
interferes   with  all  activities  of  daily   living   and   is
progressive.
          In  October  2000 Carter was admitted to  the  hospital
with  symptoms  of acute pancreatitis.  His condition  progressed
into  a  life-threatening  illness  when  his  bowels  completely
stopped functioning.  Dr. Blais testified that Carter required  a
rather  massive surgery opening up his entire abdomen and a  very
extended  treatment  in  Intensive Care  Unit.   Carter  was  not
discharged  from the hospital until February 2001,  when  he  was
admitted  to  a  skilled nursing facility.   In  March  2001  his
surgeon,  Dr. William Montano, reported that because  of  Carters
serious  condition there was no doubt that Mr.  Carter  would  be
unable to do any sort of work at that point, and that Carter  was
          not likely to be able to do any sort of work or to participate in
retraining  for  at  least  [one] year  from  the  onset  of  his
disability in October 2000.
          As  mentioned  above,  Carter was  found  eligible  for
reemployment  benefits in April 2002.  But by  August  2002  Kaya
Kade,  the  rehabilitation specialist assigned to Carters  claim,
had  concluded  that no occupational goals or training  could  be
selected   for   Carter   because  of  his  diminished   physical
capabilities.  Based on Kades conclusion, the division determined
that  Carter  could not meet the requirements of AS  23.30.041(h)
and (i) and therefore denied Carters reemployment plan.
          In  December 2002 Carter filed with the board  a  claim
for  (1) reemployment benefits from July 14, 1994 to January  30,
1999;18  (2) PTD benefits beginning on approximately  January  3,
1999  and  possibly earlier; (3) medical costs; (4) penalty;  (5)
interest;  (6)  unfair  or  frivolous  controversion;   and   (7)
attorneys  fees and costs.  In October 2003 the board ruled  that
Carter  was entitled to two years of reemployment benefits  under
AS  23.30.041(k), but it denied Carters claim for  PTD  benefits.
The  board also granted Carter attorneys fees and costs  relating
to his subsection .041(k) claim.
          Carter  appealed to the superior court.  On  March  22,
2006  it  affirmed the boards grant of reemployment benefits  and
its  denial  of  PTD benefits.  The superior court  also  awarded
Carter interest on his subsection .041(k) benefits and $1,000  in
attorneys fees and costs.  Carter appeals.
III. DISCUSSION
     A.   Standard of Review
          Carter argues that he is entitled to PTD benefits, more
than   two  years  of  subsection  .041(k)  benefits,  additional
interest  on  his  subsection .041(k)  benefits,  and  additional
attorneys  fees.   The superior court acted  as  an  intermediate
court  of  appeal  when it reviewed the boards December  9,  2003
decision  and  order.   When  the  superior  court  acts  as   an
intermediate  court  of  appeal in an administrative  matter,  we
independently  review  the merits of the  administrative  agencys
decision.19
          In   deciding   questions  of  law   involving   agency
expertise, we apply the rational basis standard and defer to  the
agencys determination so long as it is reasonable.20  In deciding
questions  of law that do not involve agency expertise  or  where
the  agencys  specialized knowledge and experience would  not  be
particularly  probative  as  to the meaning  of  the  statute  we
substitute  our own judgment for that of the agency.21   We  will
adopt  the  rule  of  law  that is most persuasive  in  light  of
precedent, reason, and policy.22
          We   review  the  boards  factual  findings  under  the
substantial  evidence standard.23  Substantial evidence  is  such
relevant  evidence as a reasonable mind might accept as  adequate
to  support a conclusion.24  We reverse board decisions  when  we
cannot  conscientiously  find that the evidence  supporting  that
decision is substantial.25
     B.   Carter Is Entitled to PTD Benefits.
          Alaska  Statute  23.30.120(a)(1) states  that,  in  the
          absence of substantial evidence to the contrary, claims under the
Alaska Workers Compensation Act are presumed to be compensable.26
We have established the following three-step analysis:
          First,   the   employee  must   establish   a
          preliminary link between the [disability] and
          the  employment.  This step of  the  analysis
          requires consideration of only evidence  that
          tends to establish the link.
          
          . . . .
          
          [Second,  the  court  inquires]  whether  the
          employer   rebutted  this  presumption   with
          substantial evidence that either (1) provides
          an    alternative   explanation   which,   if
          accepted, would exclude work related  factors
          as  a  substantial cause of the [disability];
          or  (2)  directly eliminates  any  reasonable
          possibility that employment was a  factor  in
          causing the disability.
          
          . . . .
          
          [Third],  once the employer has rebutted  the
          presumption  that  the  injuries   are   work
          related, the employee can prevail only if  he
          proves  his claim by a preponderance  of  the
          evidence.[27]
          In  its  October  2003  decision and  order  the  board
employed this three-step analysis and ruled that Carter  was  not
entitled  to  PTD benefits.  Under step three, the  board  stated
that
          After  reviewing the record as  a  whole,  we
          find that the employee cannot prove his claim
          by  a  preponderance of  the  evidence.   The
          evidence shows that the employee was  injured
          in  1992 while at work.  He hurt his neck and
          shoulder,  and achieved medical stability  as
          of  April  1993,  according to  our  previous
          decision in this case.  The employee suffered
          serious  non-work-related  medical  problems,
          which   made  him  permanently  and   totally
          disabled,  probably since 1998  according  to
          his  treating  physician at  the  time.   His
          current  treating  physician  testified  that
          these  serious and more recent  problems  are
          not substantially related to the 1992 injury,
          and  that, but for these newer problems,  the
          employee  could be retrained.   Consequently,
          we  conclude his claim for PTD benefits  must
          be denied.
          
          Carter contends that he was entitled to PTD benefits as
of  January  31, 1999.  He argues that B&B has not  rebutted  the
compensability presumption.  Alternatively, he argues  that  even
          if B&B rebutted the presumption, substantial evidence does not
support the boards finding that he failed to prove his claim by a
preponderance  of  the evidence.  B&B counters  that  substantial
evidence  supports the boards finding that Carters  serious  non-
work[-]related  medical  conditions, and  not  his  work  injury,
caused  Carters  PTD, and that such evidence  both  rebutted  the
compensability presumption and prevented Carter from proving  his
claim by a preponderance of the evidence.
          At  step  two of the analysis the board must  determine
whether   the   employer   has  rebutted   the   presumption   of
compensability with substantial evidence that either (1) provides
an alternative explanation which, if accepted, would exclude work
related  factors  as a substantial cause of the [disability];  or
(2)   directly   eliminates  any  reasonable   possibility   that
employment was a factor in causing the disability.28  Substantial
evidence  is  evidence  that a reasonable mind  might  accept  as
adequate  to  support  a  conclusion.29  Whether  the  amount  of
evidence  was  substantial  is  a  legal  question,  subject   to
independent review by the court.30
          The  board  does not weigh the evidence at step  two.31
But  if the only medical evidence offered by the employer at step
two  is  uncontroverted,  yet inconclusive,  the  presumption  of
compensability is not overcome.32
          The  board  relied  exclusively on  the  uncontroverted
testimony  of  Dr.  Blais, Carters treating  physician,  when  it
concluded  at  step two that B&B had rebutted the presumption  of
compensability.  Thus, the boards decision and order states:
               In  order to rebut the presumption  that
          the employee is entitled to PTD benefits, the
          employer   relies   on  Dr.   Blais   hearing
          testimony  that  none of the  current  health
          problems  from  which  the  employee  suffers
          since  1999,  and which make him unemployable
          are substantially related to or caused by the
          1992  work-related injury.  The employer also
          relies  on  Dr.  Blais  testimony  that   the
          employee  would be able to be  retrained  for
          gainful  employment, but for these non  work-
          related  diagnoses.  Based on this  evidence,
          we  find  that the employer has rebutted  the
          presumption that the employee is entitled  to
          PTD benefits.  Once the presumption drops out
          we  must  determine whether the employee  can
          prove  his  claim  for  PTD  benefits  by   a
          preponderance of the evidence.
          
(Emphasis added.)
          Parts   of  Dr.  Blaiss  testimony  directly  supported
Carters argument that his work-related injures were a substantial
factor  in  his  PTD.   Thus, on direct  examination  by  Carters
lawyer, Dr. Blais offered this testimony:
          Q:   In terms of the work [injuries] being  a
               part,  a  component of [Carters] overall
               permanent  total disability,  would  you
          say that    the   cervical   injury   is    a
               substantial  factor  in  the   permanent
               total disability?
          A:   Yes,  substantial  factor  would  be  an
               appropriate choice  of words.
          Q:   And  would  you say also that  the  work
               injury  is a substantial factor in  that
               it   is   combined  with   these   other
               maladies,  these other conditions,  that
               weve  discussed  to  render  Mr.  Carter
               permanently totally disabled?
          A:   Yes.
          . . . .
          Q:   And  your  opinions today,  Doctor,  are
               given  to a reasonable degree of medical
               certainty, is that correct?
          A:   Yes, it is.
               
          This testimony directly supported Carters PTD claim.
          As  we saw above, the board relied on other passages in
Dr.  Blaiss  testimony when it ruled that B&B  had  rebutted  the
presumption  of  compensability.  On appeal B&B argues  that  Dr.
Blaiss  testimony  established that the 1992 work-related  injury
did  not cause the serious health problems that now render Carter
unemployable, and that Carter would be employable if he  did  not
have  these major health problems.  In the passages discussed  by
B&B, Dr. Blais testified that if Carter only had his work-related
injuries it was conceivable he could do some very light types  of
[work]  activities  and  that in such a  situation  there  was  a
reasonable  chance  [Carter] could work an eight-hour  day,  with
breaks.   He also testified, in response to questions of a  board
member,  that,  with one qualification, Carters current  problems
with  esophagitis,  diabetes, hypertension,  recurrent  pulmonary
embolus,   deep   vein   thrombosis,   seizure   disorder,    and
hyperlipidemia were not related to the neck injury  or  the  pain
medication for that injury.33  This testimony is consistent  with
Dr.  Blaiss  responses  to  a  June  2002  letter  from  Northern
Rehabilitation  Services.  In that letter Northern Rehabilitation
Services  asked  Dr. Blais whether, in relation to  Carters  1992
injury   and  cervical  fusion  only,  Carter  was  competitively
employable in the labor market on a full-time basis.   Dr.  Blais
responded,  Yes  and added that his response related  to  Carters
anterior  cervical  fusion only.  Dr. Blais also  stated  in  his
response  to  that letter that Carters 1992 injury  and  cervical
fusion  were medically stable and that, in relation to those  two
factors  only, Carter could be immediately targeted for sedentary
and light work.
          For  purposes  of the step-two analysis,  the  evidence
relied  on  by  B&B must be read in light of Dr. Blaiss  opinion,
discussed  and  quoted  above,  that  the  work  injury   was   a
substantial  factor in rendering Carter permanently  and  totally
disabled.  It must also be read in context of his testimony  that
Northern  Rehabilitation Servicess written  questions  were  very
hypothetical, somewhat fictitious, and bogus.  Thus, even  though
          some passages in Dr. Blaiss testimony and his responses to
Northern  Rehabilitation Servicess letter  support  a  conclusion
that Carters non-work-related health conditions are a substantial
factor  in  his  PTD,  they do not rule out his  work  injury  as
another   substantial  factor.   There  can  be  more  than   one
substantial  factor  in  a disability. Therefore,  to  rebut  the
presumption  of  compensability at step two,  the  employer  must
offer  evidence  that either excludes work-related factors  as  a
substantial  cause of the disability, or directly eliminates  any
reasonable  possibility employment was a factor  in  causing  the
disability.34
          Because   Dr.   Blaiss  substantial  factor   testimony
directly supporting Carters claim was uncontroverted by any other
witness, and because the passages in Dr. Blaiss testimony  relied
on  by the employer and the board at step two failed to establish
that  the  work injury was not a substantial factor  in  bringing
about  Carters permanent total disability, the evidence  must  be
regarded   as   insufficient   to  rebut   the   presumption   of
compensability.35   Because substantial evidence does not support
the   boards   decision  that  B&B  rebutted  the  compensability
presumption, we reverse and hold that Carter is entitled  to  PTD
benefits as a matter of law.
     C.   Carter   Is  Entitled  to  Two  Years  of  Reemployment
          Benefits.
          Before  it was amended in 2005, AS 23.30.041(k)  stated
that
          If   the   employees   permanent   impairment
          benefits  are exhausted before the completion
          or  termination of the reemployment plan, the
          employer shall provide compensation equal  to
          70  percent of the employees spendable weekly
          wages,  but not to exceed 105 percent of  the
          average weekly wage, until the completion  or
          termination of the plan . . . .[36]
Carter asked the board to award subsection .041(k) benefits  from
July  14,  1994  to  January 30, 1999.  In its  October  9,  2003
decision  the board relied on Townsend v. United Parcel Service37
and  Tindera  v.  Qwick Construction Co.,38 to conclude  that  an
employee may be eligible for subsection .041(k) benefits prior to
approval or acceptance of a reemployment plan so long as  he  has
begun the reemployment process.  Because the board found that B&B
submitted   no   evidence  to  contradict  the  efficacy   of   a
reemployment  plan  within  two  years  after  [Carters]  initial
request   for   [an  eligibility  evaluation],  it  granted   him
reemployment benefits for the statutorily allowed maximum  period
of  two  years.  Thus, the board implicitly held that Carter  had
begun  the reemployment process when he initially applied for  an
eligibility  evaluation.   The  board  also  implicitly  rejected
Carters argument that subsection .041(k) benefits are not  capped
at  two years.  On October 29, 2003 B&B paid Carter two years  of
reemployment benefits.
          Carter then appealed the boards October 9 ruling to the
superior court, arguing that the board erred in only awarding two
          years of .041(k) benefits.  In considering Carters appeal, the
superior court read this courts opinion in Raris v. Greek Corner39
to  mean  that  an  employee must be developing  or  executing  a
reemployment  plan  to be eligible for benefits.   Moreover,  the
superior  court held that Carter began developing or executing  a
reemployment   plan  when  he  was  assigned   a   rehabilitation
specialist  to conduct his eligibility evaluation.  The  superior
court  held  that  Carter  was  entitled  to  subsection  .041(k)
benefits  only  from December 27, 2001 (when he  was  assigned  a
rehabilitation  specialist)  until  August  9,  2002  (when   his
rehabilitation  specialist  reported that  no  reemployment  plan
could be formulated for him).40
          On  appeal, Carter argues that the superior court erred
because  he  is entitled to more than four years of  reemployment
benefits, from July 14, 1994 (when his PPI lump sump payment  was
exhausted)  to  January  31,  1999 (when  he  became  permanently
totally  disabled).  B&B counters that Carter is not entitled  to
more   than  two  years  of  reemployment  benefits  because   AS
23.30.041(k) has a strict two-year time limit on benefit  awards.
It  also  argues  that Carter is merely trying to use  subsection
.041(k)  benefits  as an income-replacement vehicle  without  any
relationship  to  any plans approval, acceptance,  completion  or
termination or to Carters participation in any plan.
          Because  the  superior court acted as  an  intermediate
court  of appeal, we will independently review the merits of  the
boards  decision.41  Carters request for additional  reemployment
benefits  turns  on  whether  an  employee  may  be  entitled  to
subsection  .041(k)  benefits before  his  reemployment  plan  is
approved  or  accepted and, if so, when that entitlement  begins.
These  are  questions  of  law that do  not  involve  the  boards
expertise; we will therefore substitute our own judgment for that
of  the  board.42   We will adopt the rule of law  that  is  most
persuasive in light of precedent, reason, and policy.43
          We   note  initially  that  B&B  is  correct  that   AS
23.30.041(k)  contains  a  two-year  cap  on  benefits  after   a
reemployment  plan  is  accepted  or  approved.   In  Binder   v.
Fairbanks Historical Preservation Foundation, the claimant sought
benefits  for  a period exceeding two years.44  We rejected  that
contention,  reasoning  that the language of  subsection  .041(k)
unambiguously  states that an employers total  exposure  for  any
number  of reemployment plans an employee pursues must be  capped
at  . . . two years in time.45  In so holding, we noted that  the
legislative  history  of  the  Act indicates  that  the  two-year
reemployment benefits cap was intended to return injured  workers
to the work force as expeditiously as possible.46
          With   respect  to  Carters  argument  that  he  became
entitled  to  subsection .041(k) benefits before his reemployment
plan  was  approved,  we  agree with the boards  ruling  that  an
employee  may be eligible for subsection .041(k) benefits  before
approval or acceptance of a reemployment plan so long as  he  has
begun the reemployment process.  The board has explained that  it
has  consistently  held  that when PPI  benefits  are  exhausted,
[subsection  .041(k)] stipend benefits are to be provided  during
          the reemployment process, not just during the course of a
reemployment plan.47  This practice is in accord with  Raris,  in
which  we observed that reemployment benefits are paid contingent
on  the  employees participation in the development and execution
of  a  reemployment  plan.48  In other  words,  employees  become
eligible  for reemployment benefits when they begin participating
in the reemployment process.49



          The  more  difficult question is this:   When  does  an
employee  begin participating in the reemployment  process?   The
answer to this question potentially determines whether there  was
a delay in providing benefits, and thus whether and when interest
began accruing on the benefits. The superior court concluded that
Carter  began participating in the reemployment process  when  he
was   assigned  a  rehabilitation  specialist  to   perform   his
eligibility  evaluation.  Although this  is  not  an  implausible
reading of AS 23.30.041(k), we conclude that it is incorrect.
          When   an   employee  exhausts  PPI   benefits   before
completion  or  termination  of  the  reemployment  process,   AS
23.30.041(k) provides a fall-back source of income.50  Given this
purpose, we think that the legislature did not intend that  there
should  be a gap between the expiration of PPI benefits  and  the
commencement  of  reemployment benefits  for  employees  who  are
vigorously  pursuing  eligibility evaluations  before  their  PPI
benefits  expire.51  We therefore conclude that the  reemployment
process  begins  when the employee begins his active  pursuit  of
reemployment benefits.
          Because  Carter  began to actively pursue  reemployment
benefits  on  April  27,  1993 when he requested  an  eligibility
evaluation,  and  because he continued to actively  pursue  those
benefits by petitioning the board for review of the divisions May
4,  1993 decision, by petitioning the board for a rehearing,  and
by  appealing to the superior court, we conclude that  the  board
did not err in awarding him reemployment benefits, beginning when
his PPI payment was exhausted on July 14, 1994, for the statutory
maximum period that a reemployment plan can last  two years.   We
do  not decide whether subsection .041(k) benefits may be payable
for  more  than  two  years if they start  before  acceptance  or
approval of a reemployment plan.  That issue has not been briefed
or argued here.  Carter has not convinced us that the board erred
under  the  circumstances of this case in awarding him subsection
.041(k) benefits for only two years.
     D.   Carter  Is  Entitled  to  Additional  Interest  on  His
          Reemployment Benefits.
          Carter   argues  that  he  should  have  been   awarded
additional   interest  on  his  reemployment  benefits.    Having
concluded that Carter was entitled to reemployment benefits  from
December  27,  2001  to  August  9,  2002,  the  superior   court
calculated the interest payable to Carter on the benefits  Carter
would  have  accrued during that period.  Interest on  the  first
payment  due  therefore  began running December  27,  2001.   But
          because we held above that Carter was entitled to reemployment
benefits  beginning on July 14, 1994, that is the date  on  which
interest began running on the first payment due.  We consequently
remand for calculation of the amount of interest B&B owes Carter,
at the applicable statutory rate.
     E.   Carters  Attorneys Fees Request Should Be  Reconsidered
          on Remand.
          
          Carter  argues that the superior court failed to  award
him  full reasonable attorneys fees in his superior court appeal.
There is no reason for us to consider this issue.
          Because Carter did not prevail on his PTD claim  below,
the superior court only awarded Carter partial attorneys fees and
costs.  Since we are reversing with respect to Carters PTD claim,
the  superior court should reconsider the issue of attorneys fees
and  costs  and may request supplemental affidavits and memoranda
on the matter.
IV.  CONCLUSION
          We therefore REVERSE and REMAND for further proceedings
consistent with this opinion.








          In the Supreme Court of the State of Alaska
Freddie L. Carter,              )
                                ) Supreme Court No. S-12295
                                   Appellant,  )
                   v.           )            Order
                                )   Petition for Rehearing
B&B Construction, et al.,       )
                                )
                                    Appellees.  )        Date  of
Order: 12/19/08
Trial Court Case # 4FA-03-02813CI

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

     The  parties  have filed cross-petitions for rehearing  from
our   6/27/08  opinion.   Upon  consideration  of  the  employers
petition   for   rehearing,  the  employees  cross-petition   for
rehearing,  and  the parties respective responses  filed  at  the
courts request,

     It is Ordered:

     1.   The employers petition for rehearing is Denied.

     2.    The  employees cross-petition for rehearing is Granted
in Part, to clarify that the court, in affirming the boards award
of  two  years  of  compensation under AS 23.30.041(k),  did  not
decide  or  intend to imply that compensation payable  under  the
subsection  can never be paid for a period exceeding  two  years.
The following changes have therefore been made:

          a.   On  page  19,  line 3, this sentence  is
               changed to read:

          We note initially that B&B is correct that AS
          23.30.041(k)  contains  a  two-year  cap   on
          benefits   after  a  reemployment   plan   is
          accepted or approved.

          b.   On pages 21-22, this sentence is changed
               to read:

          Because  Carter  began  to  actively   pursue
          reemployment benefits on April 27, 1993  when
          he requested an eligibility
Freddie Carter v. B&B Construction, et al.,
Supreme Court No. S-12295
Page Two
     
          evaluation,  and  because  he  continued   to
          actively pursue those benefits by petitioning
          the board for review of the divisions May  4,
          1993 decision, by petitioning the board for a
          rehearing,  and by appealing to the  superior
          court, we conclude that the board did not err
          in   awarding   him  reemployment   benefits,
          beginning when his PPI payment  was exhausted
          on  July  14, 1994, for the statutory maximum
          period that a reemployment plan can last  two
          years.

          c.    This text is added on page 22 following
          the sentence quoted above:

          We  do  not decide whether subsection .041(k)
          benefits  may  be payable for more  than  two
          years  if  they  start before  acceptance  or
          approval of a reemployment plan.  That  issue
          has  not been briefed or argued here.  Carter
          has  not  convinced us that the  board  erred
          under  the  circumstances  of  this  case  in
          awarding him subsection .041(k) benefits  for
          only two years.
     3.   Opinion No. 6277 issued on 6/27/08 is withdrawn.

     4.   Opinion No. 6328 is issued on this date in its place.

     Entered by direction of the court.

                                   Clerk of the Appellate Courts

                                   
                                   Marilyn May
cc:  Supreme Court Justices
     Judge Wood
     Trial Court Appeals Clerk
     West Publishing
     Other Publishers

Distribution:

     Allen Vacura
     Stepovich  &  Vacura  Law
Office
     543  Second Avenue  Suite
A
     Fairbanks AK 99701
     John F Wallace
     McConahy   Zimmerman    &
Wallace
     711  Gaffney Road   Suite
202
     Fairbanks AK 99701

_______________________________
     1      Radiculopathy  is  a  disease  of  the  nerve  roots.
Dorlands Illustrated Medical Dictionary 1404 (28th ed. 1994).

     2     Myelopathy  is  a  general  term  denoting  functional
disturbances and/or pathological changes in the spinal cord.  Id.
at 1090.

     3     Neuropathy is a functional disturbance or pathological
change  in  the peripheral nervous system, sometimes  limited  to
noninflammatory  lesions as opposed to  those  of  neuritis;  the
etiology may be known or unknown.  Id. at 1132.

     4    Dyspnea is difficult or labored breathing.  Id. at 518.

     5    A pulmonary embolus is a mass of clotted blood or other
formed  elements  brought by the blood from  another  vessel  and
forced  into  a  smaller one [of the lung], thus obstructing  the
circulation.  Id. at 542, 1386.

     6     Thrombosis is the formation, development, or  presence
of . . . an aggregation of blood factors, primarily platelets and
fibrin  with entrapment of cellular elements, frequently  causing
vascular  obstruction  at the point of  its  formation.   Id.  at
1707-08.

     7    Hypercholesterolemia is an excess of cholesterol in the
blood.   Dorlands Illustrated Medical Dictionary  792  (28th  ed.
1994).

     8     Gastritis is an inflammation of the stomach.   Id.  at
680.

     9     A  syncopal  episode is an episode  pertaining  to  or
characterized  by  . . . a temporary suspension of  consciousness
due  to generalized cerebral ischemia; a faint or swoon.  Id.  at
1622.

     10     Barretts  esophagus is a peptic ulcer  of  the  lower
esophagus,   often  with  stricture,  due  to  the  presence   of
columnar-lined  epithelium.  Id. at 1625.   Dr.  Blais  testified
that  Barretts esophagus refers to a chronic inflammation of  the
lower  end  of  the  esophagus where acid  has  chronically  been
affecting an area thats not really supposed to have acid to it.

     11     Schatzki  ring, also called esophageal  ring,  is  an
annular  constriction  of  the lower esophagus,  usually  at  the
junction of the esophageal and gastric mucosa.  Id. at 1467.

     12      A  duodenal  polyp  is  a   morbid  excrescence,  or
protruding growth, from [the] mucous membrane of, pertaining  to,
or  situated in, the . . . first or proximal portion of the small
intestine,  extending from the pylorus to the  jejunum.   Id.  at
511, 1330.

     13     Anemia  is a reduction below normal in the number  of
erythrocytes  per cu. mm., in the quantity of hemoglobin,  or  in
the  volume of packed red cells per 100 ml. of blood which occurs
when  the  equilibrium  between blood loss (through  bleeding  or
destruction)   and  blood  production  is  disturbed.    Dorlands
Illustrated Medical Dictionary 72  (28th ed. 1994).

     14     Iron  deficiency is anemia characterized  by  low  or
absent  iron stores, low serum iron concentration, elevated  free
erythrocyte  porphyrin,  low  transferrin  saturation,   elevated
transferrin, low serum ferritin, low hemoglobin concentration  or
hematocrit, and hypochromic microcytic red blood cells.   Id.  at
73.

     15    Essential hypertension is high arterial blood pressure
. . . occurring without discoverable organic cause.  Id. at 801.

     16      Hyperlipidemia  is  a  general  term  for   elevated
concentrations  of  any  or  all of the  lipids  in  the  plasma,
including   hypertriglyceridemia,   hypercholesterolemia,    etc.
Id.  at  795.  Hypertriglyceridemia is an excess of triglycerides
in  the  blood.  Id. at 802.  Dr. Blais testified that  the  term
hyperlipidemia/hypertriglyceridemia as used in Carters  discharge
report  refers  to  fats in the blood including cholesterol  that
were  linked  to  Carters diabetes and that  led  to  an  extreme
life-threatening illness in October, 2000 . . . when [Carter] was
hospitalized for an extensive period of time.

     17     Cervical spondylosis is a degenerative joint  disease
affecting  the  cervical  vertebrae,  intervertebral  disks,  and
surrounding ligaments and connective tissue, sometimes with  pain
or paresthesia radiating down the arms as a result of pressure on
the nerve roots.  Id. at 1564.

     18     Carter  originally  requested  reemployment  benefits
beginning  on  April 3, 1993, but he modified his  claim  at  the
board  hearing to a request for such benefits from July 14,  1994
to January 30, 1999.

     19    Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).

     20    Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987).

     21    Id.

     22    Williams, 53 P.3d at 139.

     23    Id.

     24    Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006).

     25    Robinson v. Municipality of Anchorage, 69 P.3d 489, 493
(Alaska 2003) (quoting Bouse v. Firemans Fund Ins. Co., 932  P.2d
222, 231 (Alaska 1997)).

     26    See also Leigh, 136 P.3d at 216.

     27     Robinson,  69 P.3d at 494 (quoting Temple  v.  Denali
Princess Lodge, 21 P.3d 813, 816 (Alaska 2001)).

     28     Lindhag v. State, Dept of Natural Res., 123 P.3d 948,
953 (Alaska 2005).

     29     Norcon,  Inc. v. Alaska Workers Comp. Bd.,  880  P.2d
1051, 1054 (Alaska 1994).

     30    Bouse, 932 P.2d at 235.

     31    Id. (citing Norcon, 880 P.2d at 1054).

     32     Id. (citing Grainger v. Alaska Workers Comp. Bd., 805
P.2d 976, 979 (Alaska 1991)).

     33     The one qualification noted by Dr. Blais was that the
legal issues related to the workers compensation claim in a sense
affected Carters stressors and blood sugar and therefore affected
his diabetes.

     34    Robinson v. Municipality of Anchorage, 69 P.3d 489, 494
(Alaska  2003) (quoting Temple v. Denali Princess Lodge, 21  P.3d
813, 816 (Alaska 2001)).

     35    Grainger, 805 P.2d at 979.

     36     Former AS 23.30.041.  In 2005 the phrase reemployment
plan  was replaced with reemployment process.  Ch. 10,  20, FSSLA
2005.

     37     Townsend  v. United Parcel Serv., AWCB  Decision  No.
91-0216 (August 3, 1991).

     38    Tindera v. Qwick Constr. Co., AWCB Decision No. 90-0056
(March 27, 1990).

     39     Raris  v. Greek Corner, 911 P.2d 510, 512-13  (Alaska
1996).

     40     Despite  this holding the superior court  ruled  that
Carter  could  keep the two years of subsection .041(k)  benefits
that  B&B  had  already  paid him because B&B  conceded  at  oral
argument  below  that  Carter could keep those  benefits  in  the
interest of closing the case, . . . irrespective of proof  as  to
whether  his hypothetical reemployment training would have  taken
two years.

     41    Rockney v. Boslough Constr. Co., 115 P.3d 1240, 1241-42
(Alaska   2005)  (independently  reviewing  boards  approval   of
appellants reemployment plan).

     42     Arnesen v. Anchorage Refuse, Inc., 925 P.2d 661,  664
(Alaska  1996) (The interpretation of AS 23.30.041 .  .  .  is  a
question of law suitable to judicial determination de novo.).

     43    Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).

     44     Binder v. Fairbanks Historical Pres. Found., 880 P.2d
117, 121 (Alaska 1994).

     45    Id. at 122.

     46    Id.

     47     Wagner  v.  Furniture Enters. of Alaska,  Inc.,  AWCB
Decision  No.  04-0253  (October 26, 2004)  (citing  Townsend  v.
United  Parcel Serv., AWCB Decision No. 91-0216 (August 3,  1991)
(holding  that it is not necessary for an employee to commence  a
plan before benefits can be awarded under AS 23.30.041(k))).

     48    Raris, 911 P.2d at 512-13.

     49     The  legislature adopted this view in  2005  when  it
amended AS 23.30.041(k) by replacing the phrase reemployment plan
with  reemployment  process in several places.   The  legislative
history  shows  that this change was made to ratify  the  way  in
which  the board was applying AS 23.30.041(k).  On April 5,  2005
Paul  Lisankie,  Director of the Workers  Compensation  Division,
testified before the Senate Judiciary Committee that:

          Over the years, because of the nature of  the
          system,  the workers compensation  board  has
          interpreted    the   current    version    of
          [subsection] .041(k) to permit the payment of
          [subsection .041(k)] benefits to  people  who
          are not yet in a retraining plan, even though
          the  current  statute refers  to  if  certain
          things  happen  before the  completion  of  a
          plan.    So  they  are  essentially   saying,
          currently, we are treating it as if you  were
          in  this  process you can qualify  for  these
          time loss benefits.  The ad hoc committee has
          proposed  that  we  make explicit  what  were
          already   doing  by  changing  to  the   word
          process.  So when you see the word process in
          place of the word plan, that was designed  to
          simply,   essentially  ratify  whats  already
          being   done,   and  make  the  verbiage   of
          [subsection]  .041(k) consistent  with  whats
          being  done.  So its kind of a broadening  of
          the  benefit, as far as the literal  version,
          literal  verbiage,  but reflective  of  whats
          actually  been  happening for years,  as  the
          board interpreted this section.
          
Minutes,  S. Judiciary Comm. on S.B. 130, Apr. 5, 2005, testimony
of  Paul Lisankie, Director, Dept of Labor & Workforce Dev., Div.
of Workers Comp. (9:50-9:52).

     50     Rydwell  v. Anchorage Sch. Dist., 864 P.2d  526,  530
(Alaska 1993).

     51     See Carlson v. Doyon Universal-Ogden Servs., 995 P.2d
224,  230  n.45 (Alaska 2000) (stating in dictum that if employee
had  actively  pursued reemployment benefits it might  have  been
appropriate  to  award  reemployment  benefits  retroactively  to
remove   gap   between  expiration  of  PPI  and  initiation   of
reemployment benefits).

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC