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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Richard Roberge v. ASRC Construction Holding Company and Arctic Slope Regional Corporation (2/4/2022) sp-7584

Richard Roberge v. ASRC Construction Holding Company and Arctic Slope Regional Corporation (2/4/2022) sp-7584

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                       

RICHARD  ROBERGE,                                                )  

                                                                 )    Supreme Court No. S-17897  



                                Appellant,                       )  

                                                                 )    Alaska  Workers'  Compensation  

           v.                                                    )    Appeals  Commission  No.  20-010  



ASRC CONSTRUCTION HOLDING                                                                 

                                                                 )    O P I N I O N  


COMPANY and ARCTIC SLOPE                                         )  



REGIONAL CORPORATION,                                            )    No. 7584 - February 4, 2022  


                                Appellees.                       )  



                     Appeal from the Alaska Workers' Compensation Appeals  



                     Appearances: Eric Croft, The Croft Law Office, Anchorage,  


                      for Appellant. Matthew T. Findley, Ashburn & Mason, P.C.,  


                      for  Appellees.           Kimberly  D.  Rodgers,  Assistant  Attorney  


                     General,  Anchorage,  and  Clyde  "Ed"  Sniffen,  Jr.,  Acting  


                     AttorneyGeneral, Juneau, for Amicus CuriaeStateofAlaska.  


                     Before:             Winfree,         Chief        Justice,       Maassen,           Carney,  


                     Borghesan, and Henderson, Justices.  


                     WINFREE, Chief Justice.  



                     An   Alaska   Workers'   Compensation   Act   provision   sets   maximum  


compensationrates for injured employees; anotherprovisionappliesacost-of-living ratio  


only  to  out-of-state recipients.                    The parties to  this appeal dispute the sequence  for  

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

applying the provisions when calculating compensation.                                                                                                                We conclude that the Act                                          

requires first applying the cost-of-living ratio and then applying the maximum rate.                                                                                                                                          

II.                FACTS AND PROCEEDINGS                     

                                      Richard Roberge injured his shoulder in May 2014 while working for                                                                                                       

ASRC Construction Holding Company; he continued working with accommodations                                                                                                                        

until the job ended in November.                                                              Roberge then returned to his Idaho residence.                                                                                    ASRC  

paidhim$834.85weeklyin                                                       temporarytotaldisabilitycompensation throughmid-August                                                                               

2015, calculated by adjusting the maximum weekly compensation rate by the prevailing                                                                                                                                   


cost-of-living adjustment                                                (COLA) percentage for his residence.                                                                            


                                      Roberge filed a written workers' compensation claim in November 2015,  



                                                                                                                                                                                                         He later filed a  

seeking the maximum allowable compensation rate of $1,143 weekly. 


compensationrateadjustment claimseeking thesame relief. InNovember 2019 Roberge  


was released to work.   The following month ASRC and Roberge settled all disputes  


except the maximum compensation rate adjustment claim through November 2019.  


                                      The parties stipulated to relevant facts and asked the Alaska Workers'  

                                                                                                                                                                                                                                 3      The  


Compensation Board to hear the rate adjustment claim on the written record. 

parties  agreed  that  Northern  Construction  v.  James,  an  earlier  Alaska  Workers'  


                   1                 See   AS   23.30.175   (setting   maximum   rate   and   providing   rules   for  

calculating compensation when recipient resides out of state).                                                                                               

                   2                 ALASKA  WORKERS' C                                             OMP. D              IV., B         ULL. N             O. 13-04 (Dec. 2, 2013), https://                               (establishing maximum weekly compensation                                                                                                                           

rate at $1,143 relevant to this appeal).                                            

                   3                 See 8 Alaska Administrative Code (AAC) 45.070(b)(1)(B) (2021) (setting  


out procedure to request hearing on written record).  


                                                                                                                      -2-                                                                                                            7584

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Compensation Appeals Commission decision,                                                                           "constrained" the Board; they asked the                                                   

Board   to   apply   James   and   deny   Roberge's   claim,   allowing   him   to  appeal   to   the  

Commission. The Board accepted the stipulated facts, noted                                                                                         James  was precedential for                                 

the Board, noted ASRC had paid compensation in accordance with                                                                                                         James, and denied  

Roberge's rate adjustment claim.                                                    

                                 Roberge appealed                               to   the Commission.                                   The parties agreed                                James   was  

"dispositive" and asked the Commission either to reconsider                                                                                          James  or apply                       James  and  

issue a final decision denying Roberge's claim, allowing him to appeal to us.                                                                                                                             The  

Commission decided not to reconsider the                                                                  James  decision and issued a final decision.                                                                  

Roberge appeals.                              

III.             STANDARD OF REVIEW                            

                                 In an appeal from the Commission, we review the Commission's decision                                                                                           


and not the Board's.                                                                                                                                                                          

                                                        "We apply our independent judgment to questions of 'statutory  


interpretation  requiring  the  application  and  analysis  of  various  canons  of  statutory  



construction.' " 

                4                AWCAC Dec. No.  251 at 18-19, 23 (July 25,  2018), https://labor.alaska.  

gov/WCcomm/memos-finals/D_251.pdf (interpreting relevant  statutes as requiring cost- 

of-living  adjustment  after  calculating  maximum  weekly  compensation  rate).  

                5               Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1121 (Alaska 2017).  


                6                Id.  (quoting ARCTEC  Servs.  v.  Cummings, 295  P.3d  916,  920  (Alaska  



                                                                                                       -3-                                                                                               7584

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

IV.              DISCUSSION  

                                 Commission decisions are binding precedent for the Board;7  

                                                                                                                                                                                              the Board   

acknowledged   this,   then   applied   James .     Roberge   contends   that   the   Commission  

incorrectly construed the Act and that                                                      James  thus is an erroneous decision. ASRCmakes                                                             

a novel statutory construction argument rather than asking us to construe the Act's                                                                                                                      

provisions in accordance with                                                James .    The parties agreed that if Roberge's argument                                                           

prevailed we should both overrule                                                        James   and reverse the Commission's decision in                                                                         

Roberge's case.                           We are persuaded by Roberge's argument.                                           

                 A.              Statutory Construction Principles And Relevant Statutory Provisions                                                                                        

                                 "Weconstrue statutes                                  according toreason,                               practicality,and common sense,                                  

considering   the   meaning   of   the   statute's   language,   its   legislative   history,   and   its  



                             "The goal of statutory construction is to give effect to the legislature's intent,  



with due regard for the meaning the statutory language conveys to others."                                                                                                                     "We give  


unambiguous  statutory  language  its  ordinary  and  common  meaning,  but  the  'plain  


meaning rule' is not an exclusionary rule; we will look to legislative history as a guide  

to construing a statute's words."10  "[W]e must, whenever possible, interpret each part  


or section of a statute with every other part or section, so as to create a harmonious  

                 7               AS 23.30.008(a);                            see Alaska Pub. Int. Rsch. Grp. v. State                                                         , 167 P.3d 27, 45                   

(Alaska 2007) (construing AS 23.30.008(a) as meaning Commission decisions are legal                                                                                                                         

precedent only for Commission and Board).                                                  

                 8               Darrow, 403 P.3d at 1121.  


                 9               Murphy v. Fairbanks North Star Borough, 494 P.3d 556, 563 (Alaska  


2021) (quoting City of Valdez v. State, 372 P.3d 240, 254 (Alaska 2016)).  


                 10               Cora G. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs., 461  


P.3d 1265, 1277 (Alaska 2020) (quoting Heller v. State, Dep't of Revenue, 314 P.3d 69,  


74 (Alaska 2013)).  


                                                                                                        -4-                                                                                                7584

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

whole."11  We also "must presume 'that the legislature intended every word, sentence,   

or provision of a statute to have some purpose, force, and effect, and that no words or                                                                                            

provisions are superfluous.' "                                12  


                            Calculating an injured employee's compensation rate involves considering  


several statutory sections. "Computation of compensation . . . shall be on the basis of an  

                                                                                                                          13    Spendable weekly wage is  


employee's spendable weekly wage at the time of injury." 

derived from an employee's gross weekly earnings.14                                                                 The legislature delegated to the  


Commissioner of Labor and Workforce Development the task of "annually prepar[ing]  


formulas that shall be used to calculate an employee's spendable weekly wage on the  


basis of gross weekly earnings, number of dependents, marital status, and payroll tax  


deductions."15                     The  Board  currently  uses  an  online  benefit  calculator  to  determine  


                                                     16                                                                                                             17  set the  

                                                           Most statutory sections about indemnity benefits                                                                      

spendable weekly wage.                                                                                                      


              11            Darrow, 403 P.3d at 1127 (quoting                                            State, Dep't of Com., Cmty. & Econ.                               

Dev., Div. of Ins. v. Progressive Cas. Ins. Co.                                                  , 165 P.3d 624, 629 (Alaska 2007)).                          

              12            ProgressiveCas.Ins.Co., 165 P.3d at 629 (quoting KodiakIsland Borough  


v. Exxon Corp., 991 P.2d 757, 761 (Alaska 1999)).  


              13            AS 23.30.220(a).  


              14            AS 23.30.220(b).   The legislature provided detailed instructions about  


calculating an employee's gross weekly earnings.  See AS 23.30.220(a)(1)-(9).  


              15            AS 23.30.220(b).  


              16            Benefit Calculator, ALASKA  WORKERS' C                                                    OMP. D         IV., https://labor.alaska.   


gov/wc/benefitcalculator.htm (last visited Dec. 21, 2021). The online benefit calculator                                                                           

will also generate a "Weekly Benefit" with certain inputs, but the Board's website does                                                                                       

not fully detail how the amount is determined.                                                      Id.  

              17            See  Murphy  v.  Fairbanks  North  Star  Borough,  494  P.3d  556,  563-64  


(Alaska  2021)  (explaining  indemnity  benefits  are  "cash  benefits  that  compensate  



                                                                                         -5-                                                                                 7584

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


compensation rate as a percentage of the employee's spendable weekly wage.                                                                        A  

provision also establishes minimum and maximum compensation rates without regard                                             

to residence.         19  


                       Roberge's case involves only temporary total disability benefits, generally  

                                                                                    20   But as a high-wage earner Roberge  


calculated at 80% of the spendable weekly wage. 

falls under the maximum compensation rate provision, setting the rate at 120% of the  


statewide  average  weekly  wage.21                              Based  on  a  statewide  average  weekly  wage  of  


$952.15, the 2014 maximum compensation rate is $1,143.22   But Roberge did not reside  


            17         (...continued)  


employees for losses and expenses other than the cost of medical treatment"); see also  


AS 23.30.001(1) (expressing legislative intent that Act be interpreted "to ensure the  


quick, efficient, fair, and predictable delivery of indemnity and medical benefits to  


injured workers at a reasonable cost to the employers").  

            18         See,  e.g.,  AS  23.30.180  (setting  permanent  total  disability  at  80%  of  


spendable weekly wage). Permanent partial impairment is an exception, usually paid as  


a  lump  sum  equal  to  the  product  of  a  set  monetary  amount  and  a  percentage  of  


impairment as set out in AS 23.30.190.  


            19         AS 23.30.175(a).  


            20         AS 23.30.185 ("In case of disability total in character but temporary in  


quality, 80 percent of the injured employee's spendable weekly wages shall be paid to  


the employee during the continuance of the disability.").  


            21         AS23.30.175(a)(defining maximumcompensationrateas120%ofaverage  


weekly wage under AS 23.30.175(d) on injury date); AS 23.30.175(d) (setting out  


annual calculations for statewide average weekly wage).  


            22         ALASKA    WORKERS'                     COMP.    DIV.,    BULL.    NO.    13-04   (Dec.   2,   2013),   

                                                                        -6-                                                                  7584

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in Alaska, and additional "rules apply to benefits payable to recipients not residing in the                                                                                                                                                          

state at the time compensation benefits are payable," including a COLA.                                                                                                                                               23  


                    B.                 Northern Construction v. James  


                                       James presented a fact situation similar to this case.  James was injured  



while working in Alaska, returned to his Idaho residence, and received compensation. 

His employer contended his compensation rate should be his Alaska compensation rate  


-the maximumrate -multiplied by the applicable COLA, but James argued he should  


receive the maximum rate, using the same calculation method Roberge uses here.25  


                                       The Commission began its James  analysis by stating that AS 23.30.220  


authorized  the  online  benefit  calculator:26                                                                                       "Under  [AS  23.30.220's]  authority,  the  


Division [of Workers' Compensation] has developed an online benefit calculator to aid  


                    23                 AS 23.30.175(b); two provisions are relevant to this appeal:                                                                                                

                                        (1)  the weekly rate of compensation shall be calculated by                                                                                                             

                                       multiplying    the    recipient's    weekly    compensation    rate  

                                        calculated    under    AS    23.30.180,    23.30.185,    23.30.190,  

                                       23.30.200, or 23.30.215 by the ratio of the cost of living of                                                                                                             

                                       the area in which the recipient resides to the cost of living in                                                                                                           

                                       this state;   

                                                           . . . .  

                                        (5)  application of . . . this subsection may not result in raising                                                                                         

                                        a recipient's weekly compensation rate to an amount that                                                                                                            

                                        exceeds   the   weekly   compensation   rate   that   the   recipient  

                                       would have received if the recipient had been residing in the                                                                                                           


                    24                 N.  Constr.  v.  James,  AWCAC  Dec.  No.  251,  at  2-3  (July  25,  2018),  


                    25                 Id. at 3-5.  


                    26                 Id. at 10-11.  


                                                                                                                           -7-                                                                                                                  7584

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in arriving at the precise weekly compensation rate for each injured worker . . . ."                                                                The  

Commission   did   not   explain   how   AS   23.30.220's   explanation   for   calculating   an  

employee's spendable weekly wage also authorized calculating an employee's "precise                                                          

weekly compensation rate."                        28  

                        In theCommission's view, under AS23.30.220theonlinebenefitcalculator  


displaced the directive that an employer pay 80% of an employee's spendable weekly  


wage.29          The Commission concluded that "the determination of what constitutes 80  


percent of spendable weekly wage [under AS 23.30.185] has already been made by the  


[D]ivision and is assessed by utilizing AS 23.30.220, its authorized benefit calculator,  

and the maximum and minimum rates under AS 23.30.175."30  


                        TheCommission next considered AS23.30.175,distinguishingtwophrases  


                                                       31                                                                32 - as referring to  

                                                           and "weekly rate of compensation"                                                            

- "weekly compensation rate"                                                                   


different things.33              The Commission decided that an employee's "weekly compensation  


            27          Id.        

                              at 11.  

            28          Cf.  id.  at  8,   11-12.  

            29          Id.   at   14   ("Only   after   an   injured   worker's   compensation   rate   has   been  

determined   under   AS   23.30.220   and   AS   23.30.175,   is   it   necessary   to   look   at  

AS  23.30.185,  AS 23.30.180, AS  23.30.190,  or  AS  23.30.200  to  identify  what  kind  of  

benefit  is  due  .  .  .  depending  on  where  the  employee  is  in  the  recovery  process.").   The  

Commission  did  not  discuss  the  inclusion  of  AS  23.30.215  in  AS  23.30.175(b)(1).   Cf.  

id.  at   12,  22.  

            30          Id. at 14.  


            31          AS 23.30.175(b)(1), (3)-(5).  


            32          AS 23.30.175(a), (b)(1).  


            33          James, AWCAC Dec. No. 251, at 18-19.  


                                                                           -8-                                                                    7584

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

rate"   first   is   calculated   under   AS   23.30.220;   the   employee's   "weekly   rate   of  


compensation" then is determined by applying AS 23.30.175(a).                                            

                     Under theCommission's analysis, AS23.30.175(b)requiresthat an out-of- 


state recipient's weekly compensation rate, derived from the online benefit calculator,  

be multiplied by the applicable COLA.35                         Although interpreting AS 23.30.175(b)(5) as  


applying only to an employee "whose compensation rate is not at the cap and who moves  


out of state," the Commission nonetheless relied on that provision's legislative history  


when  interpreting  the  rest  of  AS  23.30.175(b)'s  compensation  rate  rules.36                                             The  


Commission decided that the COLA's purpose was "to provide a non-resident recipient  


with benefits equating to the cost of living where the recipient is living."37                                            But the  


Commission did not consider whether AS 23.30.175(b)(5)'s language met that purpose,  


particularly for a recipient in a location with a higher cost of living than Alaska's.38  


                     TheBoard applied James to Roberge's casebecauseCommissiondecisions  


are binding precedent for the Board and the Commission.39  The Department of Labor  

and Workforce Development published revised COLA information in 2019, and it also  



required applying the COLA in accordance with James .  


          34        Id.   at   8,   11-12.     The   Commission   did   not   explain   how   AS   23.30.220  

authorized  calculating  the  weekly  compensation  rate.  

          35        Id.  at   18-19,  23.  

          36        Id.  at   16-17.  

          37        Id.  at   12-13.  

          38        Id.  at   12-13,   17-18.  

          39        Alaska Pub. Int. Rsch. Grp. v. State, 167 P.3d 27, 45 (Alaska 2007).  


          40         ALASKA   WORKERS'   COMP.   DIV.,   BULL.   NO.    19-09   (Dec.   10,   2019),  


                                                                 -9-                                                          7584

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

                              C.	                          Under    AS    23.30.175(b)    The    COLA    Ratio    Applies   Before    The  

                                                           AS 23.30.175(a) Maximum Rate.                                                                                                   

                                                           The   parties   agree   on   a   number  of   facts   as   well   as   some   steps   in   the  

compensation   rate   calculation.     They   agree   that   the   first   step   in   calculating   the  

compensation rate is determining the spendable weekly wage under AS 23.30.220 and                                                                                                                                                                                                                                                                                          

that Roberge's spendable weekly wage is $2,190.98.                                                                                                                                                                                          They agree that the next step is                                                                                                        

multiplying spendable weekly wage by                                                                                                                                                    80% under AS 23.30.185 and that 80% of                                                                                                                                                   

 $2,190.98 is $1,752.78.                                                                                  But the parties' analyses then diverge.                                                                                                

                                                           Roberge   contends   that   the   next   step   is   multiplying   $1,752.78   by   the  

applicable COLA, and he quotes AS 23.30.175(b)(1)'s plain language that requires                                                                                                                                                                                                                                                                      

"multiplyingtherecipient's                                                                                              weeklycompensation ratecalculatedunder AS. . . 23.30.185                                                                                                                                                         

 . . . by the ratio of the cost of living of the area in which the recipient resides to the cost                                                                                                                                                                                                                                                                          

of living in this state."                                                                         The parties agree Roberge's COLA is 72.04% for 2017 through                                                                                                                                                                                            

2019; $1,752.78 multiplied by 72.04% is $1,262.70.                                                                                                                                                                                      Because that amount exceeds the                                                                                                       

applicable    maximum    compensation    rate,   Roberge   argues    that    he    is  entitled    to  

AS 23.30.175(a)'s $1,143 maximum rate.                                                                                                                                                    

                                                           ASRC agrees that AS 23.30.185 requires multiplying spendable weekly                                                                                                                                                                                                                             

wage   by   80%   and   that   80%   of   $2,190.98   is   $1,752.78.     But  ASRC   contends   that  

Roberge's compensation first should be reduced to the $1,143 maximum rate under                                                                                                                                                                                                                                                                                  

AS   23.30.175(a)   and   that   $1,143   then   should   be   multiplied   by   the   COLA   under  

AS 23.30.175(b)(1), resulting in a weekly $823.42 benefit.                                                                                                                                                                                                           

                                                           1.	                          Statutory language   

                                                           The    instructions    in    AS    23.30.175(b)(1)    -    without    reference    to  

AS 23.30.175(a) - require first calculating a recipient's weekly compensation rate                                                                                                                                                                                                                                                                                        

                             40                            (...continued)  


                                                                                                                                                                                     -10-	                                                                                                                                                                                                7584  

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

according to the relevant statutory section and then applying the COLA; the instructions                                                                                                                                                              

do not refer                               to   "Alaska," indicate that the base rate is the Alaska rate,                                                                                                                                             or   mention  

applying   the   maximum   rate   before   applying   the   COLA.    But   the   language   in  

AS 23.30.175(a) is important because it sets the maximum compensation rate tied to                                                                                                                                                                                                   

Alaska's average weekly wage, not to Alaska's cost of living.                                                                                                                         

                                            ASRC maintains that AS 23.30.175(b)(1)'s instructions must be read to                                                                                                                                                                    

require calculating the compensation rate that would be paid if the recipient resides in                                                                                                                                                                                             

Alaska because the listed statutes apply only in Alaska.                                                                                                                                     ASRC's argument relies on                                                             

statutory amendments made decades ago, and at oral argument before us it contended                                                                                                                                                                        

there was no evidence the 1982 amendment first including                                                                                                                                   theindemnity                                  benefits list was                      

a substantive change.                                                   We reject these arguments.                             

                                                                  a.                    1980s amendments   

                                            Sincestatehood                                      theAct                  hassetamaximumcompensationrateon temporary                                                                                         

                                                  41  but the Act has not always provided different rates for out-of-state  

total disability,                                                                                                                                                                                                                                    

recipients.                                In  1976  the  legislature  first  authorized  different  compensation  rate  


calculations for out-of-state recipients;42   it set an out-of-state resident's rate at "the  


weekly grant he would have received if he resided in Alaska times the ratio of the  


average weekly wage of the state in which he resides and the average weekly wage of  


Alaska."43                             The 1976 statute had a maximum rate for recipients residing in Alaska.44  


                      41                    See  ch.  193,    5(2),  7(2),  SLA  1959  (setting  maximum  compensation  rate  

for  temporary  total  disability).  

                      42                    Ch.  252,    5(d),  SLA   1976.  

                      43                    Former  AS  23.30.175(d)  (1976).  

                      44                    Former  AS  23.30.175(a)  (1976).  

                                                                                                                                        -11-                                                                                                                                7584

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

Taken together, the 1976 statutory language suggests that the                                                                        maximumratethen applied                     

before any adjustment for living out of state.                                                        

                              In 1982 the Act was amended to require that an out-of-state recipient's                                                                    

compensation rate "be calculated by multiplying the recipient's weekly compensation                                                                               

rate calculated in accordance with AS 23.30.180, 23.30.185, 23.30.190, 23.30.200, or                                                                                                        

23.30.215 times the ratio of the average weekly wage of the jurisdiction in which the                                                                                                     

                                                                                                                                  45  but it did not remove the  

recipient resides to the average weekly wage of Alaska,"                                                                                                                                  

maximum compensation rate for recipients living in Alaska.46  


                              ASRCcontends that the 1982 amendment replacing the phrase "the weekly  


grant he would have received if he resided in Alaska" by listing the indemnity benefit  


statutory sections did not change the law's substance.  ASRC asserts that the list in the  


current statute "is synonymous with" the replaced phrase and asks:  "Where else would  


these  named  statutes  apply?"                                         But  this  argument  is  contrary  to  the  basic  statutory  


                                                                                                                                                  47  unless they can be  

construction principle that statutory amendments change the law                                                                                                        


                                                          48   ASRC does not suggest that the pre-1982 statute, requiring  

shown to be clarifications.                                                                                                                                                  


               45             Ch.  93,     17,  SLA   1982.  

               46             Former  AS  23.30.175(a)  (1982).   

               47             Torkko/Korman/Eng'rs  v.  Penland  Ventures,  673  P.2d  769,  773-74  (Alaska  

 1983) ("An amendment to  an  unambiguous statute is generally presumed to indicate a  

substantive  change  in  the  law."  (footnote  omitted)  (citing  City  of  Anchorage  v.  Thomas,  

624  P.2d  271,  273  (Alaska  1981)));  Ross  v.  Blake,  578  U.S.  632,  641-42  (2016)  ("When  

Congress  amends  legislation,  courts  must  'presume  it  intends  [the  change]  to  have  real  

and  substantial  effect.'  "  (alteration  in  original)  (quoting  Stone  v.  INS,  514  U.S.  386,  397  


               48             Cf. Angelica  C. v. Jonathan  C., 459 P.3d  1148, 1157-58 (Alaska 2020)  


(holding that amendment responding to  superior court's interpretation of statute was  


clarification and not amendment of statute).  


                                                                                            -12-                                                                                      7584

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

a   calculation   of   the   rate   the   employee   would   receive   as   an   Alaska   resident,   was  

ambiguous.    And if in 1982 the legislature thought the phrase "the weekly grant he                                                                                                                      

would have received if he resided in Alaska" needed clarification, not including the                                                                                                                    

statutory   maximum   rate   in   a   clarifying   amendment   would   indicate   a   legislative  

understanding that the calculation did not include imposing the cap.                                                                                                        If in 1982 the              

legislature thought the phrase "the weekly grant he would have received if he resided in                                                                                                                    

Alaska"   was   not   ambiguous  and  encompassed   applying   the   maximum   rate,   then  

substituting the statutory list of indemnity benefit types without the maximumrate would                                                                                                          

indicate an intent to change the substantive law.                                                         

                                ASRC's argument about the 1982 amendments also fails to account for the                                                                                                  

                                                                                                                                                                  49  We "presume the  

legislature retaining a maximumrate applicable to in-state recipients.                                                                                                                                   

legislature is aware of other statutory sections on the same subject . . . when enacting  


legislation."50  The legislature presumably was aware that previous statutory language  


included a maximum compensation rate and that the subsection setting that maximum  


rate was not part of the statutory list included in the amendment.  Considered together,  


these statutory construction principles and the legislature's actions support a conclusion  


that  in  1982  the  legislature  intended  to  exclude  the  maximum  compensation  rate  


subsection from the list of statutes applied before adjusting for out-of-state recipients.  


                                After we held unconstitutional the use of a wage-based COLA ratio,51  in  


 1988 the legislature repealed and reenacted AS 23.30.175; it changed the ratio used for  


adjusting an out-of-state recipient's compensation rate, but it did not amend the statutory  


                49              Former  AS  23.30.175(a)  (1982).  

                50              Burke  v.  Raven  Elec.,  Inc.,  420  P.3d   1196,   1208  (Alaska  2018).  

                51              Alaska  Pac.  Assurance  Co.  v.  Brown,  687  P.2d  264,  267  n.1,  274  (Alaska  


                                                                                                   -13-                                                                                                     7584  

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


sectionslistusedwhen calculating out-of-statecompensation                                                                      rates.           Thelegislaturealso              

made the statutory maximum benefit applicable to all workers' compensation recipients,                                                                             

not just those living in Alaska.                                 53  


                            Roberge points to the 1988 legislative history showing that the committee  


amending  the  bill  to  apply  the  maximum  rate  to  all  compensation  recipients  had  


information about the difference in cost savings when applying the COLA before and  

                                          54   In other words, although the committee considering the statutory  


after the maximum. 

language knew theremight be ambiguity about when the maximumrate would apply, the  


committee did not amend the bill to include AS 23.30.175(a) in AS 23.30.175(b)(1)'s  


list. In light of previous statutory changes, we cannot see how the legislature's continued  


use in 1988 of the indemnity benefits list instead of the phrase "the weekly grant [an  


employee]  would  have  received  if  he  resided  in  Alaska"  can  demonstrate  that  the  


legislature understood these to be equivalent.  


                                           b.            Application of expressio unius est exclusio alterius  


                            As part of Roberge's plain language argument, he invokes the statutory  


construction principle  expressio unius est exclusio alterius, which "is essentially an  


              52             Compare  former AS 23.30.175(b)-(c) (1984) (requiring calculation of out-                                                                          

of-state recipient's compensation rate by applying ratio related to average weekly wage),                                                                                 

with  AS 23.30.175(b)(1),                             and  ch. 79,  30, SLA 1988 (requiring application of COLA).                                                     

              53             Ch. 79,  30, SLA 1988.  


              54            Memorandum from Chuck Caldwell, Chief, Rsch. & Analysis, to Jacque  


McClintock, Dir., Workers' Comp. Div. 3 (Feb. 22, 1988) (in File 16, Sen. Labor &  


Com.   Comm.   Files   on   S.B.   322,   15th   Leg.,   2d   Sess.   at   203-07   (1988)),  




                                                                                        -14-                                                                                 7584

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


application of common sense and logic"                                and "establishes the inference that, where                

certain   things   are   designated   in  a   statute,   'all   omissions   should   be   understood   as  

                      56   He maintains that excluding AS 23.30.175(a) from the statutory list  

exclusions.' "                                                                                                                      

demonstrates legislative intent that it not be included, and he cites the 1988 legislative  


history information about differences in cost savings under each application priority as  


supporting his expressio unius argument.  


                     ASRC  repeats  its  assertion  that  calculation  under  any  listed  section  


"inherently includes application" of AS 23.30.175(a). ASRC minimizes the importance  


of the Division's input in 1988, arguing that information before one committee cannot  


be evidence of the whole legislature's intent.  


                     "Where a statute expressly enumerates the things or persons to which it  


                                                                                                      57  We have stated that  

applies, we often invoke . . . expressio unius est exclusio alterius."                                                              


this principle "is particularly compelling" when interpreting the Act, which "is purely  


                                                                                   58   Consistent with this principle,  

statutory and without a basis in the common law."                                                                         


leaving  AS  23.30.175(a)  off  the  list  of  sections  used  to  calculate  an  employee's  


compensation rate before applying the COLA implies that the legislature intended to  


exclude it.59        The legislative history shows the drafters were aware they had a choice to  


           55        Puller  v.  Municipality  of  Anchorage ,  574  P.2d  1285,  1287  (Alaska  1978).  

           56        Ranney  v.   Whitewater  Eng'g,   122  P.3d  214,  218  (Alaska 2005)  (quoting  

Croft  v.  Pan  Alaska  Trucking,  Inc.,  820  P.2d   1064,   1066  (Alaska   1991)).  

           57        Id.  

           58        Id. at 218-19 (quoting Croft, 820 P.2d at 1066).  


           59        See  Croft,  820  P.2d  at   1066  (inferring  that  inclusion  of  "specified  remedy  

was  intended  to  exclude  other  remedies  for  overcompensation").  

                                                                 -15-                                                            7584

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

include AS 23.30.175(a); its exclusion                               from the list supports                 a   conclusion   that the   


legislature did not intend to apply the maximum rate cap before the COLA.                                                         


                      2.         Purpose and legislative history  


                      Under our sliding scaleapproachtostatutory interpretation, "theplainer the  


statutory language is, the more convincing the evidence of contrary legislative purpose  



or intent must be" to guide our understanding of the statute. 


                                 a.         AS 23.30.175(a)  



                      In 1988 the legislature repealed and reenacted AS 23.30.175,                                              changing  


the maximum compensation rate from a variable rate based on the average weekly wage  



applicable only to Alaska residents to a fixed weekly rate applicable to all recipients. 


The legislature rewrote the minimum and maximum compensation benefit calculation  


with  the  specific  intent  of  redistributing  compensation  dollars  toward  lower-paid  

           60         Cf.  Marx  v.  Gen.  Revenue  Corp.,  568  U.S.  371,  381  (2013)  ("We  have  long  

held   that   the   expressio   unius   canon   does   not   apply 'unless   it   is   fair   to   suppose   that  

Congress   considered   the   unnamed   possibility   and   meant   to   say   no   to   it.'   "   (quoting  

Barnhart  v.  Peabody  Coal  Co.,  537  U.S.   149,   168  (2003))).  

           61         Adamson  v. Municipality  of Anchorage , 333 P.3d  5,  11 (Alaska 2014)  


(quoting McDonnell  v. State Farm Mut. Auto.  Ins.  Co., 299  P.3d  715,  721  (Alaska  



           62         Ch. 79,  30, SLA 1988.  


           63         Compare former AS 23.30.175(a) (1984), with former AS 23.30.175(a)  



                                                                     -16-                                                              7584

----------------------- Page 17-----------------------


workers.           Legislative history indicates that the legislature anticipated minimal impact;                                     

one representative stated that only 11 "cases" exceeded the new maximum amount.                                                             65  

                       In 2000 the legislature amended AS 23.30.175(a), returning to a variable  


                                                                                                                    66   The legislative  

maximum compensation rate tied to the state's average weekly wage.                                                               


history shows that the legislature recognized the 1988 compensation rates had eroded in  


value due to inflation; increasing the maximum weekly compensation rate and tying it  


to the average wage addressed those concerns.67                                     The standard measure of inflation is  


based on consumer prices,68  but the legislature did not sanction an increase in workers'  


           64         See,  e.g.,  H.  Judiciary  Comm.,  Sectional  Analysis,  House  C.S.  for  C.S.  for  

S.B.   322,   15th   Legis.,   2d  Sess.    29   (Apr.   6,   1988),   in   PAT   WILSON,   ALASKA  

LEGISLATIVE  HISTORY: WORKERS' COMP. SB 322  (1988)  (compiled   1993)  (hereinafter  



           65          Minutes,   H.   Fin.   Comm.,   Hearing on House   C.S.   for   C.S.   for   S.B.   322  

(L&C),  Tape  HFC  88-73,  side  1,  15th  Leg.,  2d  Sess.  (Apr.  29,  1988)  (statement  of  Rep.  

John   Sund),   in   WILSON, supra  note  64.                            The  $700  statutory  cap  on  compensation  


remained  in place  until  2000.   Louie  v. BP  Expl.  (Alaska), Inc., 327 P.3d  204, 207  


(Alaska 2014).  


           66          Ch. 105,  15, SLA 2000. The maximum compensation rate was a variable  


amount tied to average weekly wage from 1975 until 1988. See former AS 23.30.175(a)  


(1975) (providing maximum compensation rate based on average wage).  


           67          Minutes, H. Labor & Com. Comm., Hearing on H.B. 419, Tape 00-28, Side  


A, No. 2275, 21st Leg., 2d Sess. (Mar. 8, 2000) (testimony of Paul Grossi, Dir., Div. of  


Workers' Comp.); id. at Tape 00-28, Side B, No.  1163-1844; id. at Tape 00-28, Side B,  


No. 0217-0350 (testimony of Willie Van Hemert, Co-chair Alaska Labor-Mgmt. Ad Hoc  


Comm. on Workers' Comp.); id. at Tape 00-28, Side B, No. 0759 (testimony of Kevin  


Dougherty, Co-chair Alaska Labor-Mgmt. Ad Hoc Comm. on Workers' Comp.).  


           68         See id. at Tape 00-28, Side B, No. 0217-0350 (testimony of Willie Van  


Hemert) (discussing use of Consumer Price Index as well as average wages in proposed  


amendments). The Consumer Price Index "is a measure of the average change over time  



                                                                     -17-                                                                7584

----------------------- Page 18-----------------------

compensationbenefitsifthecost                                      ofliving         increased independently ofwages. Legislative                            

history from 2000 thus indicates an intent that the weekly compensation rate continue                                                                   

to correspond to employee income.                        

                                         b.            AS 23.30.175(b)(1)-(4)   

                            The         only         cost-of-living                  adjustment                for       compensation                    rates         is     in  


AS 23.30.175(b).                      Subsections (1)-(4) were adopted in 1988,                                                                                     

                                                                                                                                  after our Alaska Pacific  


Assurance Co. v. Brown decision holding unconstitutional the rule adjusting an out-of- 


 state recipient's compensation based on the local average weekly wage rather than the  



cost of living. 


                            We recognized in Brown that "the State has important interests in avoiding  


disincentives to rehabilitation and in creating incentives for injured workers to go back  


to work" and acknowledged that paying the full Alaska rate to an employee residing in  


a location with a much lower cost of living might "discourage a return to work" because  


the "unadjusted compensation benefits may in terms of real income be in excess of the  



actual wage" the employee could earn.                                                 We decided that a COLA reduction based on  

              68            (...continued)  

in   the   prices   paid   by   urban   consumers   for   a   market   basket of   consumer   goods   and  


cpi/  (last  visited  Nov.  8,  2021).  

              69            Ch.  79,    30,  SLA   1988.    

              70            687   P.2d   264,   267   n.1,   274   (Alaska   1984);   see   H.   Judiciary  Comm.,  

 Sectional  Analysis,  House  C.S.  for  C.S.  for  S.B.  322,  15th  Legis.,  2d  Sess.    29  (Apr.  6,  

 1988)  (noting  Brown  decision's  suggestions),  in  WILSON, supra note 64.  


              71            687 P.2d at 273.  


                                                                                     -18-                                                                               7584

----------------------- Page 19-----------------------


the average wage "imposes a substantial penalty" on an employee's right to travel                                                                               and  

suggested that an adjustment that "equalize[d] the buying power of benefit dollars in                                                                               


each state" would more likely meet the means-to-end part of our equal protection test.                                                                                    


                          The legislature relied on Brown in 1988 when rewriting AS 23.30.175(b)  

                                                  74   The legislature stated its intent "in amending AS 23.30.175  


to address these concerns. 

regarding benefits payable to recipients not residing in the state" to:  


                          (1)  recognize  the  levels  of  workers'  compensation  benefits  

                          brought  about  by  the  high  cost  of  living  that  exists  in  the  state  

                          as  compared  to  other  localities;  

                          (2)  increase  the  incentive  to  return  to  work;  and  

                          (3)    remove    obstacles    to    the    utilization    of    vocational  

                          rehabilitation  that may be  brought  about  by  the  payment  of  

                          workers'  compensation  benefits  at the  high  levels  provided  

                          by   the   Alaska   workers'   compensation   law   to   individuals  

                          residing   in   localities   with   living   costs   lower   than   those   in  


The legislature also made clear its intent that the Act be construed "to ensure the quick,  


efficient, fair, and predictable delivery of indemnity . . . benefits to injured workers at a  


reasonable cost to . . . employers."76  The legislature unquestionably intended benefits  



             72           Id.  

             73           Id.  at  274.  

             74           H.  Judiciary  Comm.,  Sectional  Analysis,  House  C.S.  for  C.S.  for  S.B.  322,  

 15th  Legis.,  2d   Sess.     29   (Apr.   6,   1988)   ("[T]he   court   suggested   [in  Brown]  that   an  

adjustment  based  on  actual  cost  of  living  may  pass  constitutional  muster."),  in  WILSON,  

supra note 64.  


             75           Ch. 79,  1(c)(1)-(3), SLA 1988.  


             76           Id.  1(a); see also AS 23.30.001(1) (identifying same purpose in codified  



                                                                                -19-                                                                          7584

----------------------- Page 20-----------------------

to have some relationship to the cost of living where the recipient resided to ensure the                                                                                    


compensation rate was not so generous that the employee would decide not to work.                                                                                                    

But the legislature still based compensation on an employee's spendable weekly wage  


at  the  time  of  injury;  high-wage  earners  thus  would  be  paid  higher  workers'  


compensation benefits - up to the maximum amount - than lower-wage earners.  


                            ASRC argues that its proposed interpretation better fulfills the legislative  


purpose in circumstances like Roberge's, implying that the relationship between the  


amount of compensation and the cost of living is the appropriate way to gauge whether  


an employee has adequate incentive to return to work.  Roberge argues that under the  


Commission's calculation method he receives only about 38% of his spendable weekly  


wage and that the maximum compensation rate is about 52% of his spendable weekly  


wage; under either scenario, he receives far less than the 80% rate the legislature deemed  


generally an adequate incentive for employees to return to work.  


                            The Act is to be construed so that compensation coverage is not unduly  


                                           78 but it also balances the goals of "replacing enough income with  

costly to employers,                                                                            


enough money that an injured worker's standard of living [will] not be dramatically  


reduced [and] keeping benefits low enough to provide an incentive to return to work."79  


It seems unlikely that paying only about 38%ofspendable wages rather than 52%fulfills  


              76            (...continued)  


              77            Ch. 79,  1(c)(1)-(3), SLA 1988.                         

              78            AS 23.30.001(1).   

              79           Alaska Airlines, Inc. v. Darrow                                   , 403 P.3d 1116, 1124 (Alaska 2017).                             

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----------------------- Page 21-----------------------

the legislature's intent that the                      Act  be construed               to   ensure the fair           and predictable   

delivery of compensation benefits to injured workers.                                     80  


                                  c.         AS 23.30.175(b)(5)  


                      In 2005 the legislature added AS 23.30.175(b)(5), capping an out-of-state  


recipient's  compensation  at  the  rate  received  in  Alaska.                                      The  then-Director  of  the  


Workers'  Compensation  Division,  Paul  Lisankie,  testified  about  the  amendment's  



                      Currently  .  .  .  there's  a  cost  of  living  adjustment  in  the  


                      Workers' Compensation Act and it only applies outside the  


                      state.  So, people who are injured within the State of Alaska  


                      get a unified rate, and it's based on a blended assessment of  


                      the cost of living in Anchorage, Fairbanks, and Juneau . . . .  


                       So, no matter where you reside in Alaska, no matter how  


                      expensive or inexpensive, you get the same rate.  However,  


                      if you are a non-resident worker at the time of your injury  


                      working in Alaska or if you move out after you get injured  


                      and you go to someplace that has an arguably higher cost of  


                      living, my division is tasked by the current statute to do a cost  


                      of  living  analysis  and  .  .  .  allow  you  to  receive  a  higher  


                      compensation rate than you could have anywhere in the state.  


                      I don't really think that that's appropriate to pay people who  


                      are non-resident injured workers more than we pay our own  


                      injured workers.  So, section 32 would preclude that and cap  


                      the rate that can be paid to a non-resident at the same amount  



                      that would be paid someone who was residing in Alaska. 

Lisankie expressed concern that people living in high-cost areas of Alaska, like Bethel,  


could not receive an adjustment for their high living costs, although people residing in  


           80         AS 23.30.001(1).                



                      Testimony of Paul Lisankie, Dir., Div. of Workers' Comp. at 31:11-32:28,  


Hearing on S.B. 130 Before Sen. Labor & Com. Comm., 24th Leg., 1st Sess. (Mar. 10,  


                                                                     -21-                                                               7584

----------------------- Page 22-----------------------


areas like Orange County, California could.                                                            The proposed solution was to cap                                               a  

recipient's rate at the Alaska rate.                           

                            In   James   the   Commission   focused   exclusively   on   the   2005   statutory  

amendment capping COLA adjustments when interpreting the legislative intent of all the                                                                                            

                                                    83   The Commission quoted an analysis that concluded the 2005  

Act's COLA provisions.                                                                                                                                                        

amendment capped a non-resident's compensation rate "at the compensation rate the  


recipient would receive if residing in Alaska."84   The Commission then discussed a post- 


enactment Department of Law letter noting that the Alaska Constitution does not require  


that the right to travel "be  rewarded by an increase in benefits over the benefit the  


employee would receive had the employee remained in Alaska."85                                                                                     The Commission  


cited this letter as supporting "an express intent not to reward an injured worker who  


lives somewhere outside of Alaska, where there is a lower cost of living, with higher  


benefits than the same category of injured worker who remains in Alaska."86  


                            Neither AS 23.30.175(b)(5)'s statutory language nor its legislative history  


demonstrates "an express intent not to reward an injured worker who lives somewhere  


outside of Alaska, where there is a lower cost of living, with higher benefits than the  


              82            See id.   

              83            N. Constr. v. James                         , AWCAC Dec. No. 251, at 12-14, 16-18 (July 25,                                                          


              84            Id.  at  12  (quoting  Dep't  of  Law,  Section  by  Section  Analysis,  CSSB  


 130(FIN)am (Apr. 15, 2005), in H. Labor & Com. Comm. Files on S.B. 130, 24th Leg.,  


2d Sess.).  


              85            Id. at 13 (emphasis in original) (quoting Letter from Scott J. Nordstrand,  


Assistant Atty. Gen., to Governor Frank H. Murkowski 41 (on file with the Department  


of Law), 2005 WL 3734058, at *24 (July 18, 2005)).  


              86            Id.  

                                                                                        -22-                                                                                 7584

----------------------- Page 23-----------------------


same category of injured worker who remains in Alaska."                                                         The statutory language and                   

legislative history address recipients residing in areas with a                                                    higher  cost of living than  

                                                                                     88   Nothing supports "an intent to provide  

Alaska, as the Commission itself recognized.                                                                                                         

a non-resident recipient with benefits equating to the cost of living where the recipient  


is living" as the Commission identified.89                                           And the Department of Law's sectional  


analysis summarizing the amendment's effect to the legislature did not suggest that it  


would  directly  impact  employees  living  in  lower-cost  areas,90                                                              possibly  because  


subsection .175(b)(1) already dealt with lower-cost areas.  


                         The 2005 legislative history of AS 23.30.175(b)(5) cannot displace the  


 1988 legislative history enacting AS 23.30.175(b)(1)-(4).  And although either party's  


proposed construction fulfills the goal of encouraging a return to work, Roberge's is  


more consistent with other legislative purposes identified in 1988.  


                         3.           Policy arguments  


                         ASRC contends that Roberge's proposed construction of the Act "means  


that any high[-]wage earner whose benefits are subject to the cap in Section .175(a) are  


exempt from the Act's COLA provisions."  But Roberge's analysis applies the COLA  


provision in all cases before considering AS 23.30.175(a)'s maximum rate cap.  Under  


Roberge's analysis, whether AS 23.30.175(a) applies when an employee moves out of  


state depends both on the spendable weekly wage and the COLA where the employee  


             87          Id.  (emphasis added).   

             88          Id.  at 22 (noting statutory intent to ensure that "compensation rate cannot                                                  


be  adjusted  to  a  rate  higher  than  the  Alaskan  maximum compensation  rate"  when  

employee moves to higher-cost area).                                     

             89          Id. at 13.  


             90          Dep't of Law, Section by Section Analysis, CSSB 130(FIN)am (Apr. 15,  


2005), in H. Labor & Com. Comm. Files on S.B. 130, 24th Leg., 2d Sess.  


                                                                              -23-                                                                        7584

----------------------- Page 24-----------------------


resides.                                    ASRC's claim that Roberge seeks a special exemption from the COLA for                                                                                                                                                                                                                                                                              

high-wage earners who move or reside out of state is demonstrably inaccurate.                                                                                                                                                                                                                                                                                                

                                                              ASRC   relatedly   asserts   that   Roberge's   analysis   would   lead   to   absurd  

results, positing a hypothetical employee with an unadjusted (or Alaska) compensation                                                                                                                                                                                                                                                        

rate   of   $1,100.     Using   Roberge's   analysis,   an   employee   with   this   unadjusted  

 compensation  rate   who moved to the same area as Roberge would have a COLA-                                                                                                                                                                                                                                                                                          

 adjusted compensation rate of $792.44.                                                                                                                                                    ASRC contrasts these facts with Roberge's:                                                                                                                                                                             

under Roberge's analysis he would receive $1,143, the same compensation rate as if he                                                                                                                                                                                                                                                                                                              

resided in Alaska, which ASRC contends is an absurd result privileging high-wage                                                                                                                                                                                                                                                                           

 earners.    But ASRC's argument does not take into account the statutory provisions                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                         92          A hypothetical employee with an  

relating the employee compensation rate to wages.                                                                                                                                                                                                                                                                                                                                                 

                               91                             Hypothetically contrasting James's and Roberge's facts using Roberge's                                                                                                                                                                                                                         

method   illustrates   this   point.     Both   were   injured   in   2014,   so   the   same   maximum  

 compensation rate ($1,143) applies.                                                                                                                                   James, AWCAC Dec. No. 251 at 2-3.                                                                                                                                                   Roberge's  

 spendable weekly wage was $2,190.98. James's spendable weekly wage was $2,000.28.                                                                                                                                                                                                                                                                                                                                

Id.  at 6.                            Assuming both resided in the Elkhart-Goshen, Indiana, area, with a 70.69%                                                                                                                                                                                                                                                    

 COLA,    ALASKA                                                                         WORKERS'                                                    COMP.                                DIV.,                          BULL.                               NO.                      19-09    (Dec.    10,    2019),,   Roberge's   rate   would   be   subject   to  

AS 23.30.175(a)'s cap but James's would not.                                                                                                                                                                           Roberge would have a COLA-adjusted                                                                      

rate of $1,239.04 ($2,190.98 x 80% x 70.69%), exceeding the maximum compensation                                                                                                                                                                                                                                                             

rate.     James   would   have   a   COLA-adjusted   rate   of   $1,131.20   ($2000.28   x   80%   x  

 70.69%), below the applicable maximum compensation rate.                                                                                                                                                                                                          

                                                              The location where a recipient lives also can determine whether the cap                                                                                                                                                                                                                                                        

 applies. If Roberge resided in Joplin, Missouri, under his proposed method his adjusted                                                                                                                                                                                                                                                                               

rate would be $1,104.78 per week, less than                                                                                                                                                                             the $1,143 applicable maximum rate;                                                                                                                            

 $1,104.78 is the product of Roberge's spendable weekly wage ($2,190.98) times 80%                                                                                                                                                                                                                                                                          

times the 2017-19 COLA for Joplin, Missouri (63.03%).                                                                                                                                                                                                                      ALASKA  WORKERS ' C                                                                                          OMP.  

         IV., BULL. NO.19-09 (Dec. 10, 2019),                                                                                      


                               92                             AS   23.30.220(a)   (basing   compensation   on   spendable   weekly   wage);  

AS 23.30.185 (setting temporary total disability at 80% of spendable weekly wage).                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                              -24-                                                                                                                                                                                      7584

----------------------- Page 25-----------------------

unadjusted   compensation   rate   of   $1,100   would   have   a   spendable   weekly   wage   of  



               and $792.44 is 57.632% of $1,375.  ASRC does not dispute that the $1,143  


maximum compensation rate is about 52% of Roberge's spendable weekly wage; under  


Roberge's  analysis  he  receives  a  lower  percentage  of  his  wages  than  ASRC's  


hypothetical employee under any scenario.  Nor does ASRC dispute that its calculation  


method gives Roberge only  about  38% of his spendable weekly wage.   Roberge's  


interpretation of the statute brings the percentage of spendable weekly wage available  


to high-wage earners closer to that of medium- or low-wage earners, minimizing the risk  


that the reduction could be interpreted as a penalty.  


                    A final hypothetical involving a move to McAllen, Texas, with 2019's  

                                                                                                                      94  Under  


lowest COLA at 59.36%, illustrates a potential weakness in ASRC's analysis. 

Roberge's calculation method, his weekly compensation rate would be $1,040.45, equal  


to  47.488% of  his  spendable  weekly  wage  and  less  than  the  maximum rate.                                            And  


47.488%is the same wage percentage for any other McAllen recipient whose unadjusted  


compensation rate is less than AS 23.30.175(a)'s maximum rate if AS 23.30.175(a) is  


applied  after  making  the  COLA  adjustment.                             Under  ASRC's  calculation  method,  


Roberge's  weekly  compensation  rate  would  be  $678.48,  equal  to  30.967%  of  his  


spendable weekly wage.  ASRC does not justify the difference in treatment between  


injured   workers   in   the   same   out-of-state   location   when   the   explicit   steps   in  


AS 23.30.175(b)(1) yield a compensation rate below the AS 23.30.175(a) maximum.  


                    We reject ASRC's arguments that AS 23.30.175(b)(1) requires applying  


AS  23.30.175(a)'s  maximum  rate  before  applying  the  COLA  provision.                                             Because  


          93        $1,375.00 x 80% = $1,100.00.                     

          94        ALASKA   WORKERS'    COMP.    DIV.,    BULL.    NO.    19-09   (Dec.   10,   2019),  

                                                               -25-                                                         7584

----------------------- Page 26-----------------------

ASRC's application method mirrors                                                                                                   James, our construction of the statute overrules                                                                                             

James .     But   because   the   Commission's   James   analysis   differed   significantly   from  

ASRC's proposed construction, we address the Commission's analysis as well.                                                                                                                                                                                             

                        D.	                     The                    Commission                                             Incorrectly                                       Interpreted                                         AS                  23.30.220                                   And  

                                                Consequently Misconstrued AS 23.30.175.                                                                                   

                                               James  presentedthesamelegal                                                                                 issueaboutapplyingthestatutorymaximum                                                                                

 and the COLA, but the Commission did not focus on AS 23.30.175(b) to the extent the                                                                                                                                                                                                                     

parties do in this appeal.                                                                  Roberge sets out three arguments about the Commission's                                                                                                            

James  decision.   He contends that the Commission:                                                                                                                                     (1) erroneously "appeared to defer                                                                        

to the results of the Board['s] online website calculator rather than the text of the statute";                                                                                                                                                                                        

 (2)   inappropriately   used   2005   legislative   history   when   interpreting   1988   statutory  

 amendments; and (3) apparently preferred a statutory interpretation "that minimizes the                                                                                                                                                                                                                 

number of calculations."                                                                 ASRC's legal argument cites                                                                               James  only for its discussion of                                                                        

 legislative purpose.                                                   

                                                We agree that                                    James  failed to give appropriate weight to the statute's text.                                                                                                                                                       

 The Commission's error appears to be                                                                                                 based on a misunderstanding of AS 23.30.220 and                                                                                                                  

the   benefit   calculator.     The   benefit   calculator   generates  two  numbers   when   a   user  

 calculates temporary total disability:                                                                                                  the spendable weekly wage and the "Weekly                                                                                                 

Benefit."     It   appears   that   the   Commissioner   or   the   Board   historically   fulfilled   the  

 legislature's mandate to "prepare formulas that shall be used to calculate an employee's                                                                                                                                                                                  

                                                                                        95 by calculating compensation rates and publishing the rates in  

 spendable weekly wage"                                                                                                                                                                                                                                                                                      

table form, supplemented with worksheets allowing for certain hand calculations when  


needed.96                               The Division or Board later changed to a website that permits individual  


                        95                      AS 23.30.220(b).   

                        96                      See, e.g., ALASKA  WORKERS' C                                                                                    OMP. B                    D., 2003 W                             EEKLY  COMPENSATION  


                                                                                                                                                   -26-	                                                                                                                                          7584

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calculations given certain inputs.                               Because AS 23.30.220 provides no instruction about                                    

calculating benefit amounts, the only reasonable weekly benefit calculation uses the                                                             

applicable   statutory   sections   to   determine   the   appropriate   percentage   of   spendable  

weekly wage.                If the benefit amount is above AS 23.30.175(a)'s maximum rate, the                                                             


calculator apparently limits the "Weekly Benefit" to the maximum rate.                                                                    

                         The  Commission  implied  that  the  benefit  calculator  displaced  other  


statutory provisions about calculating  compensation,  writing about AS 23.30.185's  


requirement that temporary total disability be 80% of spendable weekly wage that "the  


determination of what constitutes 80[%] of spendable weekly wage has already been  


made by the [D]ivision and is assessed by utilizing AS 23.30.220, its authorized benefits  


calculator,  and  the  maximum  and  minimum  rates  under  AS  23.30.175."99                                                                            The  


Commission  did  not  explain  how  the  benefit  calculator  determined  whether  the  


maximum or minimum rate applied.  Nothing in AS 23.30.220 authorizes the benefit  


calculator; although the Board may have hoped to minimize rate calculation disputes -  


            96           (...continued)  

RATE           TABLES             (2003), ;  

Worksheet    for    Computation   of    80%    Spendable    Income    Compensation,    2003,  

            97           See  Benefit  Calculator,  ALASKA   WORKERS' C                                           OMP. D         IV.,   https://labor.  

                                                                (last visited Dec. 21, 2021).                                                          

            98           Although the website does not explicitly say this, information on the page  


about the existence of the maximum compensation rate as well as the stipulation in  


Roberge's case that the online benefit calculator shows his "TTD Weekly Benefit is  


$1,143 per week" - coincidentally the maximum compensation rate for his injury date  


- indicates the online benefit calculator calculates an employee's spendable weekly  


wage and Alaska compensation rate.  


            99           N.  Constr.  v.  James,  AWCAC  Dec.  No.  251  at  14  (July  25,  2018),  


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a reasonable goal - creating the benefit calculator cannot alter statutory language. The                                                                                                                                       

Commission essentially decided that the calculator removed or modified AS 23.30.185's                                                                                                                     

statutory language about calculating temporary total disability.                                                                                                            There is no indication     

this was the Board's intent; even if it were, rewriting the statute would be beyond its                                                                                                                     



                                    The  Commission  was  concerned  that  applying  the  COLA  before  the  


maximum rate cap would render parts of the Act meaningless; it said this construction  


of the statute "ignored" AS 23.30.175(a) and "deemed irrelevant" AS 23.30.220 when  


an  employee  does  not  reside  in  Alaska.101                                                                             We  cannot  imagine  how  any  workers'  


compensationratecalculation candispensewith AS23.30.220; its gross weekly earnings  


and spendable weekly wages rules underlie all compensation rate calculations.   As  


previously noted, the parties agree that AS 23.30.220 is used to determine an employee's  


spendable                        weekly                   wage.                      And              Roberge's                         interpretation                            does              not           "ignore"  


AS 23.30.175(a); his method uses the explicit steps in AS 23.30.175(b)(1) then applies  


AS 23.30.175(a) if compensation exceeds the maximum rate.  


                                    We agree with Roberge that in James  the Commission inappropriately  


relied on 2005 legislative history to construe all parts of AS 23.30.175, as reflected in our  


earlier discussion.  And the statutory language itself shows the Commission incorrectly  


interpreted the legislative history it discussed.  The Commission identified the statutory  


purpose of AS 23.30.175(b)(5) as "to provide a non-resident recipient with benefits  


                  100               See Kelly v. Zamarello                                      , 486 P.2d 906, 911 (Alaska 1971) ("[N]o regulation                                                            

adopted is valid or effective unless consistent with the statute . . . ." (quoting former                                                                                                                             

AS 44.62.030 (1967))); AS 44.62.030 ("[A] regulation is not valid or effective unless                                                                                                                                   

consistent with the statute . . . .").                                        

                  101               James, AWCAC Dec. No. 251 at 15.  


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equating to the cost of living where the recipient is living."                                                                               102  This cannot be the goal  

becausesubsection                             .175(b)(5)limitscompensationtoan employee's                                                                     Alaskarate,                  thereby  

prohibiting increased benefits to those living in areas with higher living costs.                                                                                          

                                Roberge finally objects to the Commission's consideration of the number                                                                                    

of calculations required when the COLA is applied first. This issue appears to be related                                                                                                    

to the Commission's misconstruing AS 23.30.175. The Commission was concerned that                                                                                                                    

applying   the   COLA   first   would   require   recalculation   of   "an   injured   worker's   base  

                                                                                                                                          103       It is not clear what the  

compensation rate when a worker                                                       moves from Alaska."                                                                                            

Commission meant because it used the phrase "base compensation rate" on only one  


page of its decision.104                                   But, as we noted earlier, the Commission distinguished the  


"weekly compensation rate"105 and the "weekly rate of compensation,"106 indicating that  


an employee's "weekly compensation rate" is calculated under AS 23.30.220 and that  


AS 23.30.175(a) then applies to determine the "weekly rate of compensation."107  


                                Considering how AS 23.30.175(b)(1) uses the terms, the Commission's  


reasoning  is  opaque.                                      Subsection  .175(b)(1)  provides  that  "the  weekly  rate  of  


compensation" -whichtheCommission saidincluded applicationofsubsection .175(a)  


to the "weekly compensation rate" derived from the benefit calculator - "shall be  


calculated by multiplying the recipient's weekly compensation rate . . . by the ratio of the  


                102            Id.  at 13.



                               Id. at 15.



                                See id.

                105             AS 23.30.175(b)(1), (3)-(5).

                106             AS 23.30.175(a), (b)(1).




                               James, AWCAC Dec. No. 251 at 8, 11-12.  The "base compensation rate"


thus may be the "weekly compensation rate."  

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cost of living of the area in which the recipient resides to the cost of living in this state."  


If AS 23.30.175(a) determines "the weekly rate of compensation" and applies before  


AS 23.30.175(b), why would AS 23.30.175(b)(1) require calculating an out-of-state  


recipient's "weekly rate of compensation" based on the "weekly compensation rate"  


calculated under AS 23.30.185 in Roberge's case?  We see no difference in the number  


of calculations required under the parties' differing interpretations.  


                           As previously discussed, we conclude that the statutory language supports  


Roberge's calculation method.  James 's reasoning does not provide a comprehensive  


alternative construction.  


             E.            Constitutional Issues  


                           The parties have provided briefing about constitutional issues, and ASRC  


contends that Roberge's arguments amount to a constitutional challenge to the statutory  


COLA  provision.                          But  Roberge  did  not  ask  us  to  declare  the  COLA  provision  


unconstitutional; he seeks an order that he be paid compensation consistent with his  


construction of the statute. We thus see no need to consider the constitutional issues the  


parties briefed.  

V.            CONCLUSION  

                           We OVERRULE the Commission's decision in                                                      Northern Construction v.                        

James, REVERSE its decision in this case, and REMAND this case to the Commission                                                                   

with instructions to remand to the Board to award Roberge compensation accordingly.                                                                

                                                                                  -30-                                                                           7584

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