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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vandenberg v. State, Dept. of Health & Social Services (4/8/2016) sp-7096

Vandenberg v. State, Dept. of Health & Social Services (4/8/2016) sp-7096

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                   

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



LAURIE  E.  VANDENBERG,                                     )  

                                                             )         Supreme  Court  No.  S-15935  

                       Appellant,                           )  

                                                            )          Alaska  Workers'  Compensation  

                                                            )          Appeals  Commission  No.   14-019  

          v.                                                 )  

                                                             )                            

                                                                       O P I N I O N  

                                                             )  

STATE OF ALASKA,  

                                                                                                      

                                                     

DEPARTMENT OF HEALTH &                                       )        No. 7096 - April 8, 2016  

                

SOCIAL SERVICES,                                            )  

                                                             )
  

                       Appellee.                             )
  

                                                             )
  



                                                                                                   

                    Appeal  from the  Alaska  Workers'  Compensation Appeals  

                                                                                                    

                    Commission, Andrew M. Hemenway, Commission Chair.  



                                                                                                           

                    Appearances:   Joseph   A.   Kalamarides,   Kalamarides   &  

                                                                                                    

                    Lambert,  Anchorage,   for   Appellant.   Daniel  N.   Cadra,  

                                                                                                          

                    Assistant  Attorney  General,  Anchorage,  and  Craig  W.  

                                                                                   

                    Richards, Attorney General, Juneau, for Appellee.  



                                                                                                  

                    Before:        Fabe,  Winfree,  Maassen,  and  Bolger,  Justices.  

                                                                                      

                    [Stowers, Chief Justice, not participating.]  



                                 

                    FABE, Justice.  



I.        INTRODUCTION  



                                                                                                                         

                    After  a  work-related  injury  left  a  nurse  with  a  permanent  partial  



                                                                                                                     

impairment,  she  applied  for  reemployment  benefits.                                The  rehabilitation  specialist  



                                                                                                                              

assigned to her case used two job descriptions to describe one of the nurse's former jobs  


----------------------- Page 2-----------------------

because the specialist did not think that a single job description adequately described that                                                                                                                                                                                                                                                         



former job.                                         The Alaska Workers' Compensation                                                                                                                                     Board  decided that only one job                                                                                             



description was needed and that the nurse retained the physical capacity to perform the                                                                                                                                                                                                                                                                 



functions of that job description; it therefore denied her reemployment benefits.                                                                                                                                                                                                                                                                The  



Alaska Workers' Compensation Appeals Commission affirmed the Board's decision.                                                                                                                                                                                                                                                                                           



The nurse appeals, arguing that the Board erred in selecting only one job description                                                                                                                                                                                                                                 



because the job description it selected did not adequately describe the job she held.                                                                                                                                                                                                                                                               We   



agree and reverse the Commission's decision.                                                                                                            



II.                         FACTS AND PROCEEDINGS                                       



                                                       Laurie Vandenberg injured her right shoulder when she reached for her                                                                                                                                                                                                           



laptop computer and "paperwork bag"whileworkingfor the State, Department ofHealth                                                                                                                                                                                                                                                         



& Social Services (DHSS) as a Nurse II.                                                                                                                                       Because Vandenberg missed more than 90                                                                                                                                     



consecutive    days    of    work,   her   employer    notified    the    Rehabilitation    Benefits  



Administrator (Administrator), who assigned an independent rehabilitation specialist,                                                                                                                                                                                                                                      

Lulie Williams, to perform Vandenberg's reemployment benefits eligibility evaluation.                                                                                                                                                                                                                                                                             1  



A doctor assessed a four-percent whole-person impairment for Vandenberg after her  

                                                                                                                                                                                                                                                                                                                                                      



 surgery, making  her  potentially eligible for either reemployment or job dislocation  

                                                                                                                                                                                                                                                                                                                     

benefits.2  



                                                       To  make  an  eligibility  determination,  Williams  looked  at  the  job  

                                                                                                                                                                                                                                                                                                                                                   



Vandenberg held at the time of her injury, as well as jobs she held in the ten years before  

                                                                                                                                                                                                                                                                                                                                          



                            1                          AS 23.30.041(c) currently provides that, when an employee misses more                                                                                                                                                                                                                   



than 90 consecutive days of work because of a work-related injury, the Administrator                                                                                                                                                                                                                      

"shall, without a request, order an eligibility evaluation unless a stipulation of eligibility                                                                                                                                                                                                                              

was submitted."   



                            2                          Under  AS  23.30.041(f)(4)  an  employee  must  have  some  permanent  

                                                                                                                                                                                                                                                                                                                      

impairment to be eligible for reemployment benefits.  Job dislocation benefits can be  

                                                                                                                                                                                                                                                                                                                                                          

 selected in lieu of reemployment benefits.  AS 23.30.041(g).  

                                                                                                                                                                                                                                                            



                                                                                                                                                                             -2-                                                                                                                                                                 7096
  


----------------------- Page 3-----------------------

                                                                                                            3  

the injury, as the statute required.                                                                            For purposes of this appeal, only one job is relevant:                                                                                                                        



Vandenberg had worked as a Health Facilities Surveyor (Surveyor) for DHSS for three                                                                                                                                                                                        



 and a half years during this ten-year period.                                                                                                   Williams looked at the job description for                                                                                      



the   Surveyor  position   online   and   spoke   with   a   DHSS   employee   about   the   job  



requirements. DHSS told Williams that the job required the ability to lift 50 pounds and                                                                                                                                                                                       



that "no accommodations [could] be made" to avoid this requirement. In addition the job                                                                                                                                                                                          



 descriptionrequiredapplicantstohaveprofessional                                                                                                                     training. Nursing                                        training, licensing,  



 and professional experience were preferred, but                                                                                                                    an  applicant could substitute other                                                                 



relevant professional experience; all of the alternative professional experience included                                                                                                                                                                      



 a bachelor's degree in some field related to medicine or health sciences.                                                                                                                                    



                                            Based on the information Williams received, she decided that no single job                                                                                                                                                           



 in the Selected Characteristics of Occupations Defined in the Revised Dictionary of                                                                                                                                                                                               

                                                                                                                                                                                              4     She selected two jobs from  

 Occupational Titles (SCO) matched the Surveyor position.                                                                                                                                                                                                                  



the Dictionary of Occupational Titles (Dictionary) to describe the Surveyor position:  

                                                                                                                                                                                                                                                                                              



Inspector, Health Care Facilities and Nurse, General Duty.   She included the Nurse,  

                                                                                                                                                                                                                                                                     

 General Duty job title because it is a "medium" nursing job,5 matching both the actual  

                                                                                                                                                                                                                                                                       



                      3                     See  AS 23.30.041(e).   



                      4                     AS   23.30.041(e)   requires   the   use   of   the   U.S.   Department   of   Labor's  



Selected  Characteristics  of  Occupations  Defined  in  the  Revised  Dictionary  of  

                                                                                                                                                                                                                                                                                 

 Occupational Titles when assessing eligibility for reemployment benefits; the 1993  

                                                                                                                                                                                                                                                                         

 edition was used in this case as required                                                                                                      by  statute.     As the title suggests, the job                                                                                

 descriptions themselves are in the Dictionary of Occupational Titles; the SCO sets out   

the physical requirements needed to perform the jobs described in the Dictionary.  See  

                                                                                                                                                                                                                                                                              

Morgan v. Lucky Strike Bingo, 938 P.2d 1050, 1055 (Alaska 1997) (explaining physical- 

                                                                                                                                                                                                                                                              

 demands ratings in the SCO).  

                                                                            



                      5                     The SCO has five strength levels:  Sedentary, Light, Medium, Heavy, and  

                                                                                                                                                                                                                                                                               

                                                                        EP 'T OF                   LABOR, S                         ELECTED   CHARACTERISTICS OF                                                                            OCCUPATIONS  

Very Heavy.   U.S. D 

                                               

                                                                                                                                                                                                                                                (continued...)  



                                                                                                                                         -3-                                                                                                                               7096
  


----------------------- Page 4-----------------------

strength requirements and the professional or educational requirements of the Surveyor                                                  



position.   According to a letter Williams wrote to Penny Helgeson, the Administrator's                                     

                                                                                  6  the Surveyor job required travel and  

designee who worked on Vandenberg's case,                                                                                                        



carrying "manuals, personnel files, and a computer . . . [that] cannot be checked in  

                                                                                                                                                    



baggage  because  of  [federal  Health  Insurance  Portability  and  Accountability  Act]  

                                                                                                                                                



regulations."             Williams evidently  considered  other  "medium" job  titles with  duties  

                                                                                                                                             



similar to carrying these materials, but "was unable to come up with anything suitable,  

                                                                                                                                          



such as Baggage Handler."  Consequently, she settled on Nurse, General Duty as a job  

                                                                                                                                                   



description to use in conjunction with Inspector, Health Care Facilities to describe more  

                                                                                                                                               



completely the Surveyor job.  

                                             



                       Williams  sent  these  job  descriptions,  along  with  several  others,  to  

                                                                                                                                                   



Vandenberg's doctor, who predicted that Vandenberg would not have the  physical  

                                                                                                                                         



capacity to perform the medium-strength Nurse, General Duty position; he thought she  

                                                                                                                                                  

                                                                                                                   7 of Inspector, Health  

would have the capacity to performthe sedentary physical demands                                                                             

                                                                                                     



Care Facilities.  Based on these predictions, Williams determined that Vandenberg was  

                                                                                                                                                  



eligible for reemployment benefits.  

                                                



            5           (...continued)  



DEFINED INTHE               REVISED DICTIONARY OF  OCCUPATIONAL  TITLES  C-1 (1993) [hereinafter                                    

SCO].  "Medium Work involves exerting 20 to 50 pounds of force occasionally . . . ."                                                                      

Id.  at C-2.   



            6          AS 23.30.041(a) permits the Administrator, if authorized by the Director  

                                                                                                      

of the Division of Workers' Compensation, to "select and employ additional staff."  In  

                                                                                                                                                     

theBoard's regulations,"reemploymentbenefitsadministrator"or "administrator"refers  

                                                                                                                                               

to either the Administrator or her designee.   8 Alaska Administrative Code (AAC)  

                                                                                                                                           

45.900(e) (2015).  

                   



            7           "Sedentary Work involves exerting up to 10 pounds of force occasionally  

                                                                                                                                   

or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move  

                                                                                                                                               

objects, including the human body."  SCO, supra note 5, at C-2.  

                                                                                                          



                                                                         -4-                                                                   7096
  


----------------------- Page 5-----------------------

                               Helgeson disagreed with                                   Williams's conclusion that Inspector, HealthCare   



Facilities was not, by itself, an adequate description of the job duties (as opposed to the                                                                                                         



qualifications) oftheSurveyor                                          position. Sheinstructed                                 Williams to"[a]pportion                                   the time  



the employee spent performing the duties for each job title identified if multiple titles are                                                                                                        



used." In response, Williams explained the reasons she selected the job descriptions and                                                                                                           



reported  that   she   did   not   think   it   would   "add   anything   important   to   the   report"   to  



apportion time between different job titles.                                            



                               Helgeson rejected Williams's rationale for including the Nurse, General                                                                                   



Duty   job   description   to   complete   the   Surveyor   job   description,   expressing   her  



understanding that "titles are not selected based on the strength demands but rather on                           



                                                                                                                                                                                                         8  

the duties the employee                                     performed."     Based on                                   Konecky v. Camco Wireline, Inc.                                                  ,  



Helgeson insisted that "reemployment benefits eligibility is determined by the [SCO] job  

                                                                                                                                                                                                    



descriptions, even when the actual physical demands of the job may exceed the strength  

                                                                                                                                                                                         



demands  as  outlined"  there.                                             Helgeson  determined  "the  title  for  Health  Facilities  

                                                                                                                                                                                     



Inspector [was] sufficient" to describe the Surveyor position.  

                                                                                                                           



                               Helgeson  instructed  Williams  to  "[c]onduct  labor  market  research  to  

                                                                                                                                                                                                      



document whether or not the job for a Health Facilities Inspector exists in the labor  

                                                                                                                                                                                               



market."  Williams did so, concluding that jobs for Inspector, Health Care Facilities do  

                                                                                                                                                                                                      



exist. Helgeson then determined Vandenberg was not eligiblefor reemployment benefits  

                                                                                                                                                                                          



becauseofher decision that only the Inspector, Health Care Facilities job description was  

                                                                                                                                                                                                   



needed to describe the Surveyor position; the doctor's prediction that Vandenberg could  

                                                                                                                                                                                               



perform the physical demands of that job description; and the existence of Inspector,  

                                                                                                                                                                                    



Health Care Facilities jobs in the labor market.  

                                                                                                                



                8               920  P.2d  277  (Alaska   1996).  



                                                                                                  -5-                                                                                                   7096  


----------------------- Page 6-----------------------

                           Vandenberg appealed the denial to the Board, which held a hearing on her                                                                   



                                                                   9  

reemployment benefits eligibility.                                                                                                                        

                                                                       Vandenberg and Williams both testified.  Williams  



                                                                                                                                                                 

 identified  the  differences  in  qualification  level  between  the  Inspector,  Health  Care  



                                                                                                                                                            

Facilities job description in the Dictionary and DHSS's Surveyor position: She testified  



                                                                                                                                                    

that the Surveyor position was a "journeyman" position, having higher educational  



                                                                                                                                                                        

requirements for all areas than the Inspector, Health Care Facilities position as set out in  



                                                                                                                                                                     

the Dictionary.  She reiterated her opinion that the Inspector, Health Care Facilities job  



                                                                                                                                                                   

 description alone did not adequately describe the Surveyor job Vandenberg held.  



                                                                                                                                                                     

                           Williams agreed that Vandenberg met the strength requirements for the  



                                                                                                                                                               

 Inspector position in the Dictionary.   She also agreed that "[t]he position of health  



                                                                                                        

 facilities surveyor does not require the employee to perform the functions of a nurse,"  



                                                                                                                                                    

but  she  thought  there  was  a  difference  between  a  nurse  observing  medication  



                                                                                                                                                       

 administration  and  a  person  who  was  not  trained  as  a  nurse  doing  so.                                                                      On  cross- 



                                                                                                                                                           

 examination Williams reaffirmed her opinion that the two job descriptions required  



                                                                                                                                                       

 different levels of professional knowledge.  She testified that rehabilitation specialists  



                                                                                                                                                     

 "don't just look at the duties" when they pick job descriptions to match an employee's  



job.  



                                                                                                                                                                 

                           Vandenberg testified about her job as a Surveyor. She explained that being  



                                                                                                                                                          

 a nurse "was the only way [she] got that job."  She testified that her duties included  



                                                                                                                                                                    

 looking at wounds, checking medications, and doing "[a] lot of chart review"; she also  



                                 

reported that in extreme situations, a Surveyor and her team could take over a facility,  



              9            As aresult ofsuperior courtdecisions                                     predatingtheCommission,                             theBoard   



 conducts   evidentiary   hearings   in   reemployment   eligibility  appeals.     The   Board,   by  

 statute, must uphold the Administrator's decision "except for abuse of discretion on the                                                                             

 administrator's   part."     AS   23.30.041(d).     As   the   Board   noted   here,   "[d]etermining  

whether an abuse of discretion has taken place is aided by the practice of allowing                                                                       

 additional evidence at the review hearing."                        



                                                                                   -6-                                                                           7096
  


----------------------- Page 7-----------------------

thereby taking on a nurse's role because the team would "excuse everybody from their                                                                                                                                                                                                      



duties" and "get them out of the facility," with the State assuming management of the                                                                                                                                                                                                          



facility for a period of time.                                                                   Alternatively, in those situations the team could "move all                                                                                                                                     



the patients or clients out" of the facility. In describing why she could no longer perform                                                                                                                                                                                   



the functions of the Surveyor job, Vandenberg testified that she could no longer "carry                                                                                                                                                                                             



that weight limit" and that "if [she] were around clients or patients and something                                                                                                                                                                                 



happened to one of them," she might not be able to help them because of her injury.                                                                                                                                                                                                                



                                              Initsdecision                                  theBoard                          agreed with Vandenberg that Helgeson had                                                                                                           abused  

                                                                                                                                                                                                                                                                                         10          It  

her   discretion   by   exceeding   her   authority   under  applicable   Board   regulations.                                                                                                                                                                                                    



nonetheless  decided  the  error  was  harmless  because  it  agreed  substantively  with  

                                                                                                                                                                                                                                                                                        



Helgeson. The Board compared the duties set out in the two job descriptions, and it then  

                                                                                                                                                                                                                                                                                        



looked at the duties set out in the Nurse, General Duty job from the Dictionary.  The  

                                                                                                                                                                                                                                                                                          



Board concluded that "thejob titleofInspector, Health CareFacilitiesreasonably reflects  

                                                                                                                                                                                                                                                                                 



Employee's job as a Health Facilities Surveyor."  It did not explain the origin of the  

                                                                                                                                                                                                                                                                                              



"reasonably reflecting" standard.   The fact that a Surveyor might "in rare cases" be  

                                                                                                                                                                                                                                                                                                



required "to assume care of patients" did not change its analysis.  

                                                                                                                                                                                                                                 



                                              The Board then construed the statute and this court's decisions interpreting  

                                                                                                                                                                                                                                                                  



section .041. It concluded that inclusion of the Nurse, General Duty job description was  

                                                                                                                                                                                                                                                                                             



contrary  to  Konecky  because  under  Konecky,  the  Board  reasoned,  "an  employee's  

                                                                                                                                                                                                                                                                



                       10                     8 AAC 45.525 governs reemployment benefits eligibility determinations;                                                                                                                                



8   AAC   45.445   designates   certain   activities   that   "only   the   certified   rehabilitation  

specialist assigned to a case may perform," including "selecting appropriate job titles in                                                                                                                                                                                                         

accordance with 8 AAC 45.525(a)(2)."                                                                                                       8 AAC 45.445(3).                                                    Under the regulations the                                                       

Administrator   "may   not   decide"   the   question  of   eligibility   if   the   Administrator  

determines that the eligibility evaluation the rehabilitation specialist prepared "is not in                                                                                                                                                                                                       

accordance with                                             8   AAC 45.525."                                                8 AAC 45.530(b)(1).                                                                The regulation                                             gives the   

Administrator only two options:                                                                                  ask for more information or reassign the employee to                                                                                                                              

another rehabilitation specialist.                                                                              8 AAC 45.530(b)(2).          



                                                                                                                                                -7-                                                                                                                                      7096
  


----------------------- Page 8-----------------------

physical capacities must be compared to the physical demands of the [Dictionary] job                                                                                                                              



description, not the employee's actual job."                                                                       The Board also construed the statute as                                                           

                                                                                                   11 and educational components of job titles when  

disregarding the vocational-preparation                                                                                                                                                                      



 selecting the appropriate ones because, the Board reasoned, under AS 23.30.041(e)(2)  

                                                                              



"the [specific vocational preparation] is only relevant to determine if an employee held  

                                                                                                                                                                                                                



a job 'long enough to obtain the skills to compete in the labor market.' "  The Board  

                                                                                                                                                                                                           



acknowledged that the "result may seem harsh," but maintained that it is "the approach  

                                                                                                                                                                                                   



the legislature has chosen."  The Board denied the claim for reemployment benefits.  

                                                                                                                                                                                               



                                  Vandenberg appealed to the Commission, which  affirmed the Board's  

                                                                                                                                                                                                      



decision.  The Commission began its analysis by representing that 8 AAC 45.525(b)(2)  

                                                                                                                                                                                          



directs the rehabilitation specialist to select the most appropriate job title or titles for an  

                                                                                                                                                                                                                     

                                                                                                12      According to the Commission, "[t]he 'most  

employee's job from the Dictionary.                                                                                                                                                                        

                                                                   



appropriate' [Dictionary] job title is the title or titles whose job description as set forth  

                                                                                                                                                                                                              



in the [Dictionary] best matches the employee's job."  The Commission agreed with the  

                                                                                                                                                                                                                   



Board that Nurse, General Duty did not "appropriately describe" Vandenberg's job as  

                                                                                                                                             



                 11               "Specific Vocational Preparation," or "SVP," is one factor the SCO uses                                                               



to classify jobs. SCO,                                  supra  note 5, at ix. "Specific Vocational Preparation (SVP) is the                                                                                        

amount of lapsed time required by a typical worker to learn the techniques, acquire the                                                                                                                            

information, and develop the facility needed for average performance in a specific job-                                                                                                                         

worker situation."                              Id.  at B-1. Education beyond high school is included in the SVP.                                                                                                  Id.  

at B-2.            Many professional positions, such as attorney or nuclear engineer, have an SVP                                                                                                              

of eight.              Id.  at 48, 385.                       All of the nursing positions in the SCO have an SVP of seven                                                                                  

or higher except Nurse, Licensed Practical.                                                                      Id.  at 373.                  The SVP for Nurse, General                             

Duty is seven; that of Inspector, Health Care Facilities is six.                                                                                 



                 12               In fact, the regulation directs use of the SCO, not the Dictionary.  8 AAC  

                                                                                                                                                                                                             

45.525(b)(2) provides that "[t]he rehabilitation specialist shall . . . review the appropriate  

                                                                                                                                                                                              

volume  [of  the  Selected  Characteristics  of  Occupations  Defined  in  the  Revised  

                                                                                                                                                                                                     

Dictionary of Occupational Titles] and select the most appropriate job title or titles that  

                                                                                                                                                                                                                 

describe the jobs held and training received."  

                                                                                         



                                                                                                          -8-                                                                                                 7096
  


----------------------- Page 9-----------------------

a Surveyor.                             The Commission rejected Vandenberg's argument that certification as a                                                                                                                   



registered nurse was a job requirement for the Surveyor position because "a nurse                                                                                                                                                                                   



certificate and experience is just one of a variety of alternative minimum qualifications."                                                                                                                                           



It acknowledged Vandenberg's testimony that the Surveyor worked as part of a teamand                                                                                                                                                                                        



that she had been hired because she was a nurse. It reasoned that this "requirement is not                                                                                                                                                                                   



a barrier to her reemployment as a Health Facilities Surveyor in the same position she                                                                                                                                                          



previously occupied." The Commission concluded that a licensing requirement was not                                                                                                                                                                                          



relevant to the selection of a job title unless the "licensing requirement has a physical                                                                                                                                                                



demands component." It also determined that "substantial evidence supports the board's                                                                                                                                                                         



factual  finding that the [Dictionary] job title Inspector, Health Care Facilities most                                                                                                                                                                               



appropriately describes [the] job [of] a Health Facilities Surveyor."                                                                                                                 



                                           Vandenberg appeals.   



III.                  STANDARDS OF REVIEW                                             



                                           In    an    appeal                                    from                  the    Alaska    Workers'    Compensation    Appeals  



                                                                                                                                                                                                                                                 13  

Commission, we review the Commission's decision rather than the Board's.                                                                                                                                                                                              

                                                                                                                                                                                                                                                        We apply  



                                                                                                                                                                                                                                                       

our independent judgment to questions of law that do not involve agency expertise,  

                                                                                                                                        14  We interpret a statute "according to reason,  

                                                                                                                                                                                                                                                                

including issues of statutory interpretation. 



practicality, and common sense, considering the meaning of the statute's language, its  

                                                                                                                                                                                                     

legislative history, and its purpose."15  

                                                                                     



                      13                   Humphrey  v.  Lowe's  Home  Improvement  Warehouse,  Inc.,  337  P.3d  1174,  



 1178  (Alaska  2014)  (citing  Shehata  v.  Salvation Army,  225  P.3d   1106,   1113  (Alaska  

2010)).  



                      14                   Monzulla  v. Voorhees  Concrete Cutting, 254 P.3d 341, 343-44 (Alaska  

                                                                                                                                                                                                                                                             

2011).  



                      15                   Louie v. BP Exploration (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014)  

                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                            (continued...)  



                                                                                                                                       -9-                                                                                                                             7096
  


----------------------- Page 10-----------------------

                        By statute the Board reviews the Administrator's decisions for an abuse of                                                         



                   16                                                                                                             17  

discretion.                                                                                                                                             

                         In this case the Commission, based on its own precedent,                                                     reviewed the  



                                                                                                                                                         

Board's decision using the substantial evidence standard. We independently review the  



                                                                                                                                                  

Commission's legal conclusion that substantial evidence supports the Board's factual  



                                                                                                                                                           18  

                                                                                                                                         

findings by "independently review[ing] the record and the Board's factual findings." 



IV.         DISCUSSION  



                                                                                                                                         

            The Commission Erred In Deciding That Substantial Evidence Supported  

                                      

            The Board's Decision.  



                                                                                                                                                        

                        Alaska  Statute  23.30.041  sets  out  the  process  and  qualifications  for  



                                                                                                                       

reemployment benefits; for purposes of this appeal, the relevant subsection is .041(e),  



             

which provides:  



                                                                                                                               

                                    An employee shall be eligible for benefits under this  

                                                                                                                                    

                        section upon the employee's written request and by having a  

                                                                                                                  

                        physician  predict  that  the  employee  will  have  permanent  

                                                                                                                                  

                        physical capacities that are less than the physical demands of  

                                                                                                                                

                        the employee's job as described in the 1993 edition of the  

                                                                                                                

                        United            States          Department                  of       Labor's             "Selected  

                                                                                                                      

                        Characteristics  of  Occupations  Defined  in  the  Revised  

                                                                                                

                        Dictionary of Occupational Titles" for  



            15          (...continued)  



                                                                                                   

(citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)).  



            16          AS 23.30.041(d).   



            17          See Witbeck v. Superstructures, Inc.                                 , AWCAC Dec. No.                        014 at 14-15     



(July 13, 2006) (footnotes omitted),                                 available at            labor.alaska.gov/wcComm/memos- 

finals/F_06-001.pdf  (setting  out  standards  of  review  for  reemployment  benefits  

                                                                                                                                              

decisions).  



            18          Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).  

                                                                                                                             



                                                                           -10-                                                                     7096
  


----------------------- Page 11-----------------------

                                                                                 (1)                       the employee's job at the time of injury; or                                                                                                                        



                                                                                 (2)                       other jobs that exist in the labor market that the                                                                                                                             

                                                      employee has held or received training for within 10 years                                                                                                                                                               

                                                      before the injury or that the employee has held following the                                                                                                                                                                      

                                                      injury for a period long enough to obtain the skills to compete                                                                                                                                               

                                                      in    the    labor    market,    according    to    specific    vocational  

                                                      preparation codes as described in the 1993 edition of the                                                                                                                                                                         

                                                      United                                 States                              Department                                                  of                  Labor's                                     "Selected  

                                                      Characteristics    of    Occupations    Defined    in    the    Revised  

                                                      Dictionary of Occupational Titles."                                                                             



                                                      The   Board   has   promulgated   regulations   related   to   the   reemployment  



process; the most salient here is 8                                                                                                               AAC 45.525,                                                   which   sets out the reemployment                                              



benefits eligibility evaluation process. To determine eligibility, rehabilitation specialists                                                                                                                                                                                                                      



must "interview the employee and the employer and review all written job descriptions"                                                                                                                                                                                                                



that describe the employee's job at the time of injury; interview the employee to "obtain                                                                                                                                                                                                                                     



descriptions of the tasks and duties for other jobs the employee held . . . within 10 years                                                                                                                                                                                                                                           



before   the   injury";   review   the   correct   version   of   the   SCO   and   "select  the   most  



appropriate job title or titles that describe the employee's job"; for past jobs, "identify                                                                                                                                                                                  



all  [relevant]   job   titles   .   .   .   for   which   the   employee   meets   the   specific   vocational  



preparation codes"; and submit identified job titles to the employee's physician, the                                                                                                                                                                                                                                                         

                                                                                                                                                                                                  19  Only a rehabilitation specialist may  

employee, the employer, and the Administrator.                                                                                                                                                                                                                                                                                            

"select[] appropriate job titles in accordance with 8 AAC45.525(a)(2)."20  The Board has  

                                                                                                                                                                                                                                                                                                                                              



construed its regulations as permitting a rehabilitation specialist to select more than one  

                                                                                                                                                                                                                                                                                                                                            



                           19                         8 AAC 45.525(a)-(b).          



                           20                         8 AAC 45.445(3).  

                                                                                    



                                                                                                                                                                      -11-                                                                                                                                                                               7096  


----------------------- Page 12-----------------------

                                                                                        21  

job  description  for  an  employee's  actual  job,                                          and   DHSS   does   not   challenge   that  



regulatory interpretation here.                 



                         Reemployment   benefits  are   intended   to   return   an   injured   worker   to  



remunerative employment when she cannot return to her former job or jobs for which she                                                                     

                                                                        22   The record indicates that Vandenberg cannot  

has the relevant training or experience.                                                                                                             



 in fact return to her former job as a Health Facilities Surveyor because the job required  

                                                                                                                                                  



the ability to lift 50 pounds and Vandenberg no longer has the physical capacity to do  

                                                                                           

 so. We have strictly construed the provisions of AS 23.30.041,23 noting the legislature's  

                                                                                                                                           



 intent to "promote a prompter, more efficient, more cost-effective, successful, and less  

                                                                                                                                                          

 litigated rehabilitation system."24   But our prior decisions have not considered how a job  

                                                                                                                                                           

 description is selected,25  nor have they addressed whether the Administrator and the  

                                                                                                                                                           



             21          See Gonzales v. Ketchikan Pulp Co.                               , AWCBDec.               No. 98-0228at4-5, 1998               



WL 771213, at *4-5 (Sept. 3, 1998).                      



             22          See Rockney v. Boslough Constr. Co., 115 P.3d 1240, 1242 (Alaska 2005)  

                                                                                                                                                      

 (describing goal of rehabilitation plan); see also Arnesen v. Anchorage Refuse, Inc., 925  

                                                                                                                                                          

P.2d  661,  665  (Alaska  1996)  (identifying  purpose  of  reemployment  benefits  as  

                                                                                                                                                            

 "ensur[ing] that an injured employee has some skills with which . . . she can earn a living  

                                                                                                                                                      

 after an injury"); Konecky v. Camco Wireline, Inc., 920 P.2d 277, 284 n.2 (Alaska 1996)  

                                                                                                                                                       

 (Rabinowitz, J., dissenting) (citing purpose of "awarding benefits to employees who are  

                                                                                                                                                            

unable to return to the job held at the time of injury" as goal of reemployment benefits).  

                                                                                                                                                



             23          See Irvine v. Glacier Gen. Constr., 984 P.2d 1103, 1108 & n.21 (Alaska  

                                                                                                                                                   

 1999).  



             24          Konecky, 920 P.2d  at 282-83  (majority opinion)  (emphasis in original)  

                                                                                                                                           

 (quoting House Judiciary Comm., Sectional Analysis, House Committee Substitute for  

                                                                                                                                                            

 Committee Substitute for SB 322, 15th Legis., 2d Sess.  10.5 (1988)).  

                                                                                                                     



             25          In Konecky, which Helgeson and the Board both relied on, the employee  

                               

 did not  "argue on appeal that he was  a  'hoistman' (the title  [his employer] gave his  

                                                                                                                                                           

position) and not a 'hoist operator.' "  Id. at 279 n.7.  We observed that the SCO did not  

                                                                                                                                                           

                                                                                                                                        (continued...)  



                                                                             -12-                                                                      7096
  


----------------------- Page 13-----------------------

Board can disregard either the actual physical requirements of a position or non-physical                                                



 aspects, such as educational or vocational prerequisites, identified in the SCO when                                                                 

 selecting the most appropriate job description or descriptions.                                                   26  



                                                                                                                                                        

                         Vandenberg disputes whether the job title Helgeson and the Board used  



                                                                                                                                                           

 adequately describes her position as a Health Facilities Surveyor.  She contends that the  



                                                                                                                                                            

job description identified - Inspector, Health Care Facilities - is not equivalent to the  



                                                                                                                                                

 description of the Surveyor job she actually held, in part because her job as a Surveyor  



                                                                                                                                                

required different educational and skill levels than the Inspector, Health Care Facilities  



                                                                                                                                                          

job.        She  also  argues  that  her  duties  as  a  Surveyor  required  application  of  her  



                                                                                                                                                          

professional knowledge, making the Dictionary job title inadequate to describe her  



               

 former job.  



                                                                                                                                                                   

                         WeagreewithVandenbergthatthetwopositions aresignificantly different.  



                                                                                                                                                      

As set out in the Board's decision, an Inspector, Health Care Facilities "[i]nspects health  



                                                                                                                                                                   

 care facilities   .  .  .  to  enforce  public  health  laws  and  to  investigate  complaints."  



                                                                                                                                          

 (Emphasis added.)   In contrast, a Health Facilities Surveyor "appl[ies] professional  



                                                                                                                                                

knowledge  and  expertise  .  .  .  to  analyze  and  assess  the  activities  in  the  facility."  



                                                                                                                                                     

 (Emphasis added.)  Inspecting physical facilities and analyzing the delivery of health  



             25          (...continued)  



                                                                                                                                            

 list a "hoistman" position and that the Board had used "hoist operator" and "hoistman"  

                                                                                                                                                          

throughout its decision; we said the Board had "implicitly made a fact finding that  

                                                                                                                                                      

Konecky's position was that of hoist operator."  Id. at 281.  Here, in contrast, the Board  

                                                                                                                                            

made an explicit finding that Inspector, Health Care Facilities "reasonably reflect[ed]"  

                                                                                                                                                         

the Surveyor position, and Vandenberg contests this determination. We thus agree with  

                                                                                                                                                         

Vandenberg that Konecky  is not controlling here because her case concerns the step  

                               

before Konecky applies.  



             26          Cf. Morgan v. Lucky Strike Bingo, 938 P.2d 1050, 1055 (Alaska 1997)  

                                                                                                                                                      

 (observing that "neck bending" is not one of 20 different physical-demands factors in the  

                                                                                                                                                            

 SCO and thus is not "a physical requirement for any job").  

                                                                                                   



                                                                             -13-                                                                      7096
  


----------------------- Page 14-----------------------

                                                                                                                          

care are very different activities that require different education and training.  Indeed  



                                                                                                                

Vandenberg testified that her job included medical chart review as well as "looking at  



                                                                                                                                   

the  patients,  watching  medications,  [and]  checking  wounds."                                   She  added  that  as  a  



                                                                                                                            

 Surveyor, she observed "the nurses and the nurses aid[e]s" as well as patients when  



                                                                                                                                  

fulfilling her inspection duties. Vandenberg's testimony that DHSS "always [had] to  



                                                                                                                                

have somebody who's a lab person or they have to contract that out" underscores the  



                                                                                      

need for specific professional training for the Surveyor position.  



                                                                                                                       

                    Nothing in the Inspector, Health Care Facilities job description indicates  



                                                                                                                               

that professional expertise or training in health care or nursing  is  required for that  



                                                                                                                                

position, nor does the Inspector, Health Care Facilities description require analysis of the  



                                                                                                                    

performanceofmedical procedures. Theposition as set out in the Dictionary emphasizes  



                                                                                                                    

inspection of facilities and reviewing reports related to "staffing, personal references,  



                                                                                                                           

floor plans, fire inspections, and sanitation."  Finally, nothing in the Inspector, Health  



                                                                                                                  

Care Facilities job description indicates that a person with that job would ever have to  



                                                                                                                                   

take care of patients, as a Surveyor might if a team deemed it necessary to shut down a  



                                                                                                                   

facility.   As Williams testified at the hearing, the SCO assigns a lower vocational- 



educational code to Inspector, Health Care Facilities than to Nurse, General Duty; she  



                                                                                                                          

justified her inclusion of the Nurse, General Duty job description as necessary to capture  



                                                                                                                      

the  professional  background  as  well  as  the strength  requirements  for  the  Surveyor  



                                                                                                                              

position.  Based on our review of the record and the Board's findings, we agree with  



                                                                                                                                

Vandenberg that substantial evidence does not support the Board's decision that the  



                                                                                                                        

Inspector, Health Care Facilities job in the Dictionary was sufficient by itself to describe  



                      

the Surveyor position.  



                                                                                                                               

                     While the Commission applied the substantial evidence standard in this  



                                                                                                                                 

case, underlying both its decision and that of the Board is a legal interpretation of  



                                                                                                                                 

AS  23.30.041(e)  and  its  implementing  regulations  as  prohibiting  consideration  of  



                                                               -14-                                                         7096
  


----------------------- Page 15-----------------------

physical   and   vocational   factors  when  selecting   job   titles.     We   do   not   read   these  



authorities so narrowly.                  



                      The   Board's   regulations   require   a   rehabilitation   specialist   to   gather  



information   about both                  the "tasks" and             the "duties" of a job before consulting                              the  

                                                                                                               27   A task is defined  

relevant edition of the SCO to select an appropriate job description.                                                               

in the dictionary as "[a] piece of work assigned or carried out as part of one's duties."28  

                                                                                                                                                  



Here, a reason Vandenberg could no longer work as a Health Facilities Surveyor was her  

                                                                                                                                           



inability to perform the task of carrying confidential materials; she needed to perform  

                                                                                                                                   



this task as part of her job duty of performing "on-site inspections and reviews of health  

                                                                                                                                       



care facilities."  By focusing solely on the duties of the Surveyor job in discerning the  

                                                                                                                                           



most appropriate job description, the Board effectively excluded from consideration a  

                                                                                                                                              



factor that is mandatory under its regulation.  

                                                         



                      After the rehabilitation specialist obtains the necessary information about  

                                                                                                                                       



both tasks and duties, the regulation instructs the specialist to use the correct edition of  

                                                                                                                                             



the SCO to "select the most appropriate job title or titles that describe the jobs held and  

                                                                                                                                           

training received."29   The SCO classifies jobs using a number of different factors, one of  

                                                                                                                                             

which is strength and one of which encompasses education and vocational training.30  

                                                                                                                                                  



Requiring use of the SCO to identify job descriptions permits a rehabilitation specialist  

                                                                                                                                 



to  take into  account the strength  demands of a worker's job when  deciding  which  

                                                                                                                                      



           27         8  AAC  45.525(b).  



           28         WEBSTER 'S  II  NEW  COLLEGE  DICTIONARY   1156  (3d  ed.  2005).    



           29         8  AAC  45.525(b)(2).   



           30         See  supra  note   11;   SCO, supra  note   5,  B-1  to  C-4  (discussing   SVP  and  



physical-demands   classifications  used   in   SCO).   See   also  Morgan,   938  P.2d   at   1055  

(setting  out  different  factors  used  in  SCO  to  describe  physical  demands  of  jobs).  



                                                                     -15-                                                              7096
  


----------------------- Page 16-----------------------

position is "most appropriate" because strength is an important physical factor used to                                                                                                                                         



classify jobs in that reference's matrix.                                                                                Similarly, vocational preparation is a factor the                                                                                       



 SCO uses to classify positions, so in deciding which positions best match the jobs held                                                                                                                                                                     



by the employee, a rehabilitation specialist could justify her selection in part based on   



this factor.   



                                         We    disagree    with    the    Commission's    decision    that    educational    or  



professional requirements should only be considered if "a licensing requirement has a                                                                                                                                                                                  



physical demands component." Education is a component of the vocational-preparation                                                                                                                  



categorization in the SCO and consequently of the classification of job titles there; on a                                                                                                                                                                             



practical level, a nursing job cannot be filled by someone without the required education                                                                                                                                                    



or professional training.                                                     Additionally, AS 23.30.041(e) and the Board's regulations                                                                                                



interpreting   the   statute   both   mandate   inclusion   of   jobs   for   which   an   employee   has  

                                                                                                                                                                                                     31        If training prompts  

received training, not just jobs an employee has actually held.                                                                                                                                                                                 



inclusion of a job description in the possible jobs the applicant is qualified for, it is  

                                                                                                                                                                                                                                                                     



difficult to understand the Board's interpretation of the statute as limiting consideration  

                                                                                                                                                                                                                                 



of professional training to the length of time the applicant has held a job.  We conclude  

                                                                                                                                                                                                                                               



that neither thestatutenor its implementing regulations prohibit arehabilitationspecialist  

                                                                                                                                                                                                                                               



from                  considering                                education                           or            vocational                             requirements                                  or            physical-strength  

                                                                                                                                                                                                                 



classifications when selecting the most appropriate job title or titles from the SCO.  

                                                                                                                                                                                                                                              



V.                   CONCLUSION  



                                         For the foregoing reasons, we REVERSE the Commission's decision and  

                                                                                                                                                                                                                                                               



REMAND for further proceedings consistent with this opinion.  

                                                                                                                                                                          



                     31                  AS   23.30.041(e)   (requiring   consideration   of   "other   jobs   .   .   .  that   the  



employee   has   held   or   received   training   for   within   10   years   before   the   injury");  

 8   AAC   45.525(b)(2)   (mandating   that   a   rehabilitation   specialist   "select   the   most  

appropriate job title or titles that describe the jobs held and training received").                                                                                                                              



                                                                                                                               -16-                                                                                                                        7096
  

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