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Wolfer v. Veco Inc. and Home Insurance Co. (5/28/93), 852 P 2d 1171
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
DONALD M. WOLFER, )
) Supreme Court Nos. S-4466/4529
) Trial Court Nos.
v. ) 3AN-89-4119 Civil
) 3AN-89-9084 Civil
VECO, INC., and the )
HOME INSURANCE COMPANY, )
Appellees. ) O P I N I O N
VECO, INC., and the )
HOME INSURANCE COMPANY, )
DONALD M. WOLFER, VECO, Self )
Insured, and TIKIGAQ )
CONSTRUCTION CO., )
Cross-Appellees. ) [No. 3960 - May 28, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Victor D. Carlson,
Appearances: Charles W. Coe, Anchorage,
for Appellant and Cross-Appellee Wolfer.
Marilyn J. Kamm, Call, Barrett & Burbank,
Fairbanks, for Appellees and Cross-Appellants
Veco, Inc. and the Home Insurance Company.
Clay A. Young, Delaney, Wiles, Hayes, Reitman
& Brubaker, Anchorage, for Cross-Appellees
Tikigaq Construction Company and the Alaska
Insurance Guaranty Association. Phillip J.
Eide, Eide & Miller, P.C., Anchorage, for
Cross-Appellee Veco/Self Insured.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, and Compton, Justices.
[Moore, Justice, not participating.]
1. The Memorandum of Decision and Order of Remand of the
superior court entered on February 4, 1991, is reversed insofar
as it reverses the June 13, 1990 decision of the Workers'
Compensation Board. The board's findings that: (1) Wolfer was
injured in 1979 while at work for Veco when Veco was insured by
Home Insurance Company; (2) this injury was a substantial factor
in bringing about his current condition; and (3) Wolfer is
eligible for temporary total disability benefits, are all
supported by substantial evidence.
2. The superior court's decision that Wolfer did not bring
his claim within the period allowed by the statute of
limitations, AS 23.30.105, is reversed. The court erroneously
stated that the board did not address this issue. The board
ruled on the statute of limitations on April 14, 1989, finding
Wolfer did not have knowledge of the nature of his disability
until at most a matter of months before the present claim was
taken as a whole, the evidence indicates
that [Wolfer] should not be charged with
knowledge of the serious or disabling nature
of his back problem until the fall of 1987.
Until this time, [Wolfer] continued trying to
work despite the pain. He testified none
[sic] had clearly explained his problem to
him until then. We believe he tried to
minimize his disability by working and
adapting to this pain with help from other
workers and by taking pain medication. Under
these circumstances, we do not want to fault
[Wolfer] for his efforts.
This finding is supported by substantial evidence and therefore
the board's ruling that Wolfer's claim is not time barred must
3. The superior court's determination that the last
injurious exposure rule applies to employment outside the state
of Alaska is reversed. As noted by the board, the employment
relationship which is covered by the Workers' Compensation Act is
one which is "carried on in this state." AS 23.30.265(13). The
last injurious exposure rule was judicially imposed in Ketchikan
Gateway Borough v. Saling, 604 P.2d 590 (Alaska 1979). The
reasons for the rule were simplicity of administration and the
need of the worker for a "swift and inexpensive recovery." Id.
at 597-98. Extending the last injurious exposure rule to out-of-
state employers would add complexity rather than contribute to
simplicity in administration, and would make the worker's remedy
more difficult to obtain. We observed in Saling that the last
injurious exposure rule would operate to "create a windfall to
previous employers"insofar as it "impose[s] a disproportionately
higher burden of liability upon the last employer." Id. at 598.
Refusing to extend the last injurious exposure rule to out-of-
state employers eliminates "windfalls"of this nature. The in-
state employer is, of course, only liable if the board finds the
injury suffered by the employee while working for the in-state
employer to be a substantial factor in bringing about the
employee's current condition despite the subsequent out-of-state
injury. Id. at 597-98. Wolfer has sought compensation and
received a settlement for his out-of-state injury. As the board
has required that credit be given for benefits received from the
out-of-state claim, a double recovery has been avoided. We need
not determine at this juncture whether the board, in order to
relieve the Alaska employer from the whole burden of the
employee's current disability, should require an employee who has
suffered a subsequent out-of-state injury to seek compensation
for that injury in the state where it occurred. See State Indus.
Ins. Sys. v. Vernon, 787 P.2d 792 (Nev. 1990).
4. The board did not err in concluding that the claimant's
disability was not the product of his employment with Veco when
it was self insured, or with Tikigaq Construction Company. There
was substantial evidence on both sides as to whether Wolfer's
employment with Veco/Self Insured and Tikigaq was a substantial
factor in causing his disability.
5. In conclusion, the decision of the superior court
reversing the board's award to Wolfer is REVERSED. The superior
court's decision affirming the board's denial of Veco/Home
Insurance's claims against Veco/Self Insured and Tikigaq is