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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.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                        

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                          

           corrections@akcourts.gov.  



                      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  

                     Commission.  



                                                                                                    

                     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.  



I.         INTRODUCTION  



                                                                                                                          

                     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                                                                                                                                   



                                                                                                                                                                                     1  

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



                                                                                                                                                                                                                                   

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



                                                                                                                                                                                                    2  

                                                                                                                                                                                                                                                

                                                                                                                                                                                                         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://                                    



labor.alaska.gov/wc/bulletins/13-04.pdf (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
  


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

                                                                                                                 4  

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                                                                                           



                                                  5  

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  



                                       6  

                                    

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  

                                                                                                                                                                                                  

2013)).  



                                                                                                       -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  



                        8  

purpose."                                                                                                                                                                                               

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



                                                                                                                                                                                          9  

                                                                                                                                                                                                             

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  

                                                                                                                                                             

                                                                                                                                                           (continued...)  



                                                                                         -5-                                                                                 7584
  


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

                                                                                                                                            18  

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),  



https://labor.alaska.gov/wc/bulletins/13-04.pdf.   



                                                                        -6-                                                                  7584
  


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

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  



                                                                                                                                                                                                                                                          24  

                                                                                                                                                                                                                                                                

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                                                                                                           

                                        state.  



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

                                                                                                                                                                                                                                          

https://labor.alaska.gov/WCcomm/memos-finals/D_251.pdf.  



                    25                 Id. at 3-5.  

                                                        



                    26                 Id. at 10-11.  

                                                        



                                                                                                                           -7-                                                                                                                  7584
  


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

                                                                                                                                               27  

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  



                                                                                                    34  

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  

                                                                                                                                 



                                                                                       40  

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),  



                                                                                                                 (continued...)  



                                                                 -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)  



                                                                                                                                                                                                                   

https://labor.alaska.gov/wc/bulletins/19-09.pdf.  



                                                                                                                                                                                     -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  

(1995))).   



               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  



 1984).  



                                                                                                   -13-                                                                                                     7584  


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

                                                                                                                                           52  

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)),  

                                                                                                                                                                    

http://www.akleg.gov/library/worker's%20comp/SB%20322%20(1988)/SL&C15%  

                                                                    

20SB%20322%20(File16).pdf.  



                                                                                        -14-                                                                                 7584
  


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

                                                                 55  

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   



                                                                                                                             60  

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  



                                                                                                   61  

                                                                                        

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



                                                    

                                 a.         AS 23.30.175(a)  



                                                                                                                             62  

                                                                                                                                 

                      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  



                                                                                                                                             63  

                                                                                                                                                  

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  

                                                                                                                                   

2013)).  



           62         Ch. 79,  30, SLA 1988.  

                                                       



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

                                                                                                                           

(1988).  



                                                                     -16-                                                              7584
  


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

               64  

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  

                                                                              

WILSON).  



           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  

                                                                                                                                           

                                                                                                                           (continued...)  



                                                                     -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  



                                                                                                                             69  

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  



                             70  

                                  

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  



                                                                                71  

                                                                                                                                                                              

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  

 services."   U.S. BUREAU OF  LABOR  STAT., CONSUMER  PRICE  INDEX, https://www.bls.gov/  

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-----------------------

                                                                                                                                                            72  

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                                                                               



                                                                                                                                                                    73  

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  

                          Alaska.[75]  



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  

                                                                                                                                                        

                                                                                                                                             (continued...)  



                                                                                -19-                                                                          7584
  


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

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



                                                                                                                                                                                77  

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)  



section).  



              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).                             



                                                                                     -20-                                                                                7584
  


----------------------- 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  



purpose:  



                                                                                                                     

                      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  

                                                                                                                      [81]  

                                                                                                                            

                      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).                



           81  

                                                                                                                            

                      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,  

2005).  



                                                                     -21-                                                               7584
  


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

                                                                                                 82  

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,                                                          



2018), https://labor.alaska.gov/WCcomm/memos-finals/D_251.pdf.   



              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.  



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

                                                                                                            87  

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-----------------------

                                   91  

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),  

https://labor.alaska.gov/wc/bulletins/19-09.pdf,   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), https://labor.alaska.gov/wc/bulletins/19-09.pdf.                                                                                      

 D                                                                         



                               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  



            93  

$1,375,                                                                                                                   

               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),  



https://labor.alaska.gov/wc/bulletins/19-09.pdf.  



                                                               -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  



                                                                                                                                                                                                                                                                    (continued...)  



                                                                                                                                                   -26-	                                                                                                                                          7584
  


----------------------- Page 27-----------------------

                                                            97  

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                                                             



                                                                                                                                     98  

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),           https://labor.alaska.gov/wc/2003rate/WCR-Complete.pdf;  

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

https://labor.alaska.gov/wc/forms/2003_WC_Compensation_Worksheet.pdf.  



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

                                                                       

alaska.gov/wc/benefitcalculator.htm (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),  

                                                                                                                                                    

https://labor.alaska.gov/WCcomm/memos-finals/D_251.pdf.  



                                                                             -27-                                                                      7584
  


----------------------- Page 28-----------------------

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                                                                                                                     



                   100  

power. 



                                    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.  

                                                                                                                                



                                                                                                               -28-                                                                                                         7584
  


----------------------- Page 29-----------------------

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.
   



                103  

                                              

                               Id. at 15.
  



                104  

                                                 

                                See id.
  



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



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

                                                                          



                107  

                                                                                                                                                                                                  

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

                                                                                               

thus may be the "weekly compensation rate."  



                                                                                                  -29-                                                                                           7584
  


----------------------- Page 30-----------------------

                                                                                                                                                                             

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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