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Gilstrap v. International Contractors Inc. (8/13/93), 857 P 2d 1182
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THE SUPREME COURT OF THE STATE OF ALASKA
DOYLE E. GILSTRAP, )
Appellant, ) Supreme Court File No. S-5008
) Superior Court File No.
v. ) 3AN-90-5940 Civil
INTERNATIONAL CONTRACTORS ) O P I N I O N
INC., and THE HOME INSURANCE )
Appellees. ) [No. 3996 - August 13, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Karen L. Hunt, Judge.
Appearances: Charles W. Coe, and
Michael R. Smith, Anchorage, for Appellant.
Brooks W. Chandler, Hicks, Boyd, Chandler &
Falconer, Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
BURKE, Justice, dissenting.
The principal issue presented in this appeal is whether
"substantial evidence"supports the Alaska Workers'
Compensation Board's (Board) valuation of the costs of
meals provided to Doyle Gilstrap while he worked for
International Contractors, Inc., at a remote work
site. Fairbanks North Star Borough v. Rogers & Babler,
Inc., 747 P.2d 528, 533 (Alaska 1987) (when reviewing
factual determinations, court will not reverse Board's
decision where there is "substantial evidence in light
of the whole record that a reasonable mind might accept
as adequate to support the Board's conclusion").
Gilstrap challenges the Board's finding that the meals
International Contractors furnished to him at Hidden
Falls were worth $5.00 a day. Gilstrap argues that the
Board erred in basing its valuation on a cost study1
offered by his employer, because the study, a
determination of the price of groceries in Sitka and
other Alaska towns, has little bearing on the actual
cost of feeding a person doing heavy construction labor
at a remote site.
International Contractors argues that the Board
reasonably relied on the empirical study of prices in
Sitka, because Sitka is the town nearest to Hidden
Falls and the evidence indicated that some of the food
was purchased there in fact. The study, it claims,
constitutes substantial evidence of Gilstrap's meal
costs. International Contractors also points out that
after ten years of litigation the Board had to make
some finding, and that Gilstrap's testimony and other
evidence was not so compelling that the Board acted
unreasonably in accepting the cost study. We
conclude that the cost study standing alone fails to
provide substantial evidence of the true cost of
Gilstrap's meals while he worked at Hidden Falls. The
Board's decision demonstrates that it failed to figure
reasonable transportation and food preparation costs
into its calculation of meal costs. The Board awarded
Gilstrap $1.43 per day for transportation costs despite
the fact that no evidence was presented at the May 1990
hearing to support this figure. The only evidence of
transportation costs presented at the hearing was
Gilstrap's testimony that a float plane flew in
groceries from Sitka for Gilstrap and his crew: "It was
$160 a trip, one or two times a week." The $1.43
transportation cost figure appears to be nothing more
than an arbitrary amount which was used to reach the
round figure of $5.00 per day.2
We sympathize with the Board's plight in trying to
finally resolve this case even though, by its own
admission, "the evidence to support any monetary amount
is such that it leads [the Board] into the realm of
speculation." Gilstrap v. International Contractors,
Inc., AWCB No. 81-00177 (June 13, 1990). Nonetheless,
we must once again remand the case for a new hearing to
determine meal costs.3
Gilstrap also appeals the Board's denial of his claim
for a modification of his 1986 compensation award to
account for alleged mistakes in the calculation of
interest and depreciation. We decline to resolve on
this record whether Gilstrap is time-barred from
bringing his modification claim. See AS 23.30.130(a)
(explicitly barring modification requests made more
than "one year after the date of the last payment of
compensation benefits"or more than "one year after the
rejection of a claim"). However, we disagree with the
Board's conclusion that it was precluded from
addressing the claim by the limited scope of the
superior court's remand order. Accordingly, we direct
the Board to consider Gilstrap's modification request
REVERSED and REMANDED.
BURKE, Justice, dissenting.
I respectfully dissent from the court's decision to
reverse and remand this case for further proceedings.
In order to resolve the valuation issue, I believe this
court must first determine which party carried the
burden of proving the value of the meals provided at
Hidden Falls -- Gilstrap or his employer. In Brunke v.
Rogers & Babler, 714 P.2d 795, 801 (Alaska 1986), we
held that "it was not an unreasonable or unfair burden"
to require the employee to produce evidence of post-
injury earnings. We noted that the employee is
generally in the best position to produce this
In this case, the value of Gilstrap's meals at Hidden
Falls are an element of his 1980 pre-injury earnings.
See Former Alaska Statute 23.30.265(20) (defining
"wages"to include the "reasonable value of board . . .
received from the employer");4 see also AS 23.30.200 &
23.30.220. While it is appropriate for the employer to
carry the burden of producing evidence of an employee's
pre-injury earnings when the employer actually controls
this information, in this case Gilstrap was the only
party with first hand information on the cost of meals
at Hidden Falls. Although he has been deemed an
"employee"for workers compensation purposes, Gilstrap
essentially worked as an independent contractor at the
Hidden Falls job site. He purchased the food for
himself and his crew and provided for its
transportation and preparation. On these facts, I
believe Brunke supports the conclusion that Gilstrap
carried the burden of proving the cost of his meals at
The record reveals that Gilstrap's evidence at the 1990
hearing was no more substantial than his former
employer's evidence. Nonetheless, the court is today
giving Gilstrap another hearing despite the fact that
he failed to present the Board with sufficient evidence
the first time around.
In the divorce setting, where neither party carries a
specific burden of proof, we have consistently refused
to set aside factual findings when the party
challenging the finding failed to present sufficient
evidence at trial. See Miles v. Miles, 816 P.2d 129,
132 (Alaska 1991); Hartland v. Hartland, 777 P.2d 636,
639-40 (Alaska 1989). In Hartland, we rejected
substantially the same argument which Gilstrap has made
in this case:
[Hartland] argues that the valuations of
the parties' retirement benefits are unjust
because the court should have recognized the
insufficiency of the evidence presented and
required additional evidence before
attempting to value these benefits. This
argument is without merit.
Id. at 639. In Miles, we refused to set aside a trial court's
factual finding for reasons which are equally
applicable to the case before us:
As neither party was able to produce
documentation of the actual payments on the
property, there is no reason to conclude that
the superior court's finding was clearly
erroneous. A party who fails to present
sufficient evidence at trial should not be
allowed to challenge the inadequacy of
evidence on appeal.
Miles, 816 P.2d at 132 (citations omitted). On policy grounds, I
fail to see how the present case can be distinguished
from Hartland and Miles. Given the insubstantial
evidence Gilstrap presented, I do not believe the Board
should be faulted for arriving at some meal cost
figure, even if the figure appears somewhat low.
It is also a great waste of judicial resources to
remand this case to the Board once again when the
amount in dispute is so small.6 I recognize that this
amount does not qualify as "de minimis"under our prior
rulings. Compare Scavinius v. City of Anchorage, 539
P.2d 1161, 1165 (Alaska 1975) (the difference between
$0.00 compensation and nominal damages is de minimis)
with Wickwire v. City & Borough of Juneau, 557 P.2d
783, 786 (Alaska 1976) (this court remanded for a
hearing on damages even though the amount of damages
could not possibly exceed $100.00). Nonetheless, the
relative insignificance of the claim when compared to
the costs of a remand should spur this court to avoid a
remand if at all possible.7
Aside from the meal cost valuation which I would
affirm, the only issue is whether the Board properly
refused to address Gilstrap's claim for a modification
of his compensation rate to account for alleged
interest and depreciation mistakes in the Board's 1986
compensation award. I agree with the court that the
Board erred in relying on the scope of the remand order
as the reason for refusing to address his claim.
Nonetheless, the legal arguments supporting Gilstrap's
claim are unconvincing and should be dismissed as a
matter of law.
As International Contractors argues on appeal, the
"mistakes" which Gilstrap claims occurred in the
Board's 1986 wage calculation are not true
miscalculations or mistakes of fact at all; Gilstrap is
actually arguing for the inclusion of additional
elements into the wage calculation process. These are
legal arguments which should have been raised before
the Board in 1986. See Interior Paint Co. v. Rodgers,
522 P.2d 164, 169 (Alaska 1987) ("It is clear that an
allegation of mistake should not be allowed to become a
back-door route to retrying a case because one party
thinks he can make a better showing on a second
attempt.") (quoting 3 Larson, The Law of Workmen's
Compensation 81.52 at 354.8 (1971)).
Furthermore, the language of AS 23.30.130(a), the
statute upon which Gilstrap based his modification
claim, explicitly time-bars modification requests made
more than "one year after the date of the last payment
of compensation benefits." International Contractors
asserts that the "last payment of compensation benefits
had been made to Gilstrap more than three years before
he first raised the claimed 'mistake.'" Gilstrap does
not dispute this statement but only argues that the
modification request was "still timely because the
underlying case was under appeal for a number of years
prior to this."
Neither AS 23.30.130(a) nor our cases interpreting the
statute provide that the limitations period is tolled
while a workers' compensation award is being appealed.
As we have previously held, "[A] modification
proceeding under AS 23.30.130(a) 'originates in the
initial claim for compensation.' . . . [and] invokes
the Board's jurisdiction over the original claim."
Hulsey v. Johnson & Holen, 814 P.2d 327, 328 (Alaska
1991) (quoting in part Interior Paint Co. v. Rodgers,
522 P.2d 164, 167 (Alaska 1974)). If a mistake was
made in the original decision, sound policy dictates
that the party negatively affected by the mistake bring
the matter to the Board's attention in an expeditious
manner. As I read the statute, this means no later
than one year after the final compensation payment is
made under the original award.
If a party were excused from this obligation simply
because an appeal was proceeding from the original
award so that the possibility of further compensation
existed, the Board's final decision would hang in limbo
for an indeterminate period of time. This result is
unnecessary because, by definition, a "mistake" or
"change in conditions"must be completely independent
of the issues on appeal to even qualify as a valid
basis for modification. See Fischback & Moore of
Alaska v. Lynn, 453 P.2d 478 (Alaska 1969) (to justify
modification on the basis of mistake, the subsequent
showing must be something more than a reiteration or
reassessment of facts or positions previously known or
established). Therefore, because a party is not
hindered during an appeal from bringing the
modification request to the board's attention, the
limitations period for bringing the request should not
be tolled during the pendency of the appeal. For the
reasons stated above, I would affirm the denial of
Gilstrap's modification claim.
1. The cost study (conducted in 1981) put the weekly cost
of groceries purchased in Sitka for a man between 20-54
years of age at $24.99. The Board arrived at the $5.00
per day figure by dividing $24.99 by seven ($3.57) and
adding $1.43 per day for transportation costs.
2. We do not disagree with the dissent's starting point:
"In order to resolve the valuation issue, I believe
this court must first determine which party carried the
burden of proving the value of the meals provided at
Hidden Falls -- Gilstrap or his employer." The dissent
relies on Brunke v. Rogers & Babler, 714 P.2d 795
(Alaska 1986), in arguing that the employee -- in this
case, Gilstrap -- shoulders the burden of proof.
Brunke involved an injured employee's claim for
permanent partial disability compensation (PPD). In
calculating compensation for a PPD, the Board may fix a
reasonable wage if the employee has no actual post-
injury wages, or the employee's actual post-injury
wages are below the employee's earning capacity. In
making this determination, the Board focuses on the
employee's actual post-injury wages, if any.
In Brunke the employee offered no evidence of his
actual post-injury wages. The Board denied the
employee compensation for lost post-injury wages due to
his PPD, apparently placing the burden of proving post-
injury wages on the employee. We upheld that
allocation of the burden of proof, stating:
Since Alaska relies on earning capacity
and not physical impairment, the impact of an
unscheduled injury must be proven. The
employee can best produce information of his
post-injury earnings. It is not an
unreasonable or unfair burden to place on the
employee. The Board still retains the power
to make a separate calculation if justice so
requires, pursuant to the statute.
Id. at 801 (emphasis added). Brunke placed the burden of proof
on the employee because of the employee's unique
position with regard to his post-injury wages. In
other words, unless the employee continues his post-
injury employment with the same employer, the former
employer will have almost no information regarding the
employee's actual post-injury earnings. The employee,
conversely, will have this information.
The dissent argues that Brunke supports placing the
burden on the employee to prove actual pre-injury
wages. We disagree that the Brunke rationale supports
this conclusion. The dissent notes that "Gilstrap
actually purchased the food for himself and his crew .
. . and provided for its transportation and
preparation." The applicable statute, however,
provides that wages include the "reasonable value of
board . . . received from the employer." Former AS
23.30.265(20) (emphasis added). The employee is
compensated for the value of meals "received from the
employer." In order to compensate the employee for
meals, the employer presumably must receive information
regarding the employee's meal expenses. The employer
should have roughly the same information as the
employee regarding the value of meals "received from
the employer." Gilstrap is unlike the employee in
Brunke who could "best produce"the relevant evidence.
For this reason, Brunke does not support shifting the
burden of proof regarding the value of pre-injury wages
to the employee.
3. Gilstrap argues that the valuation of his meal costs is
very significant because the issue of his entitlement
to permanent partial disability can be reopened if his
meals are valued at a much higher rate. Gilstrap's
attempt to bootstrap his way into a new disability
classification plainly fails on res judicata grounds as
we have already affirmed the Board's denial of his
claim for permanent partial disability. See Gilstrap
v. International Contractors, Inc., Mem. Op. & J. No.
448 (Alaska, April 26, 1989).
4. Former AS 23.30.265(20) still controls this case as
Gilstrap's injury occurred in 1980. The legislature
repealed this section while Gilstrap's case was
proceeding through the appellate process.
5. I am not dissuaded from this view by our decision in
Wien Air Alaska v. Kramer, 807 P.2d 471 (Alaska 1991),
which held that employees may rely on the presumption
of compensability, AS 23.30.120(a)(1), to meet their
burden of production in establishing the existence of a
compensable disability. Id. at 474. In this case, the
Board had already determined that Gilstrap had suffered
a compensable disability and was entitled to temporary
partial disability benefits. The only issue before the
Board in 1990 was the meal cost figures which were to
be used in establishing those benefits. On this issue,
I believe Brunke is the more useful precedent. See
Kramer, 807 P.2d at 474 ("In Brunke, we were concerned
with the employee/claimant's obligation to present
evidence concerning his current earning capacity so
that the Board could make a reasoned assessment of his
lost earning capacity . . . .").
6. At the Board hearing, Gilstrap argued that his meals at
Hidden Falls should be valued at $43.33 per day. The
employer argued for the $5.00 per day figure. Because
Gilstrap only worked at the Hidden Falls site for 60
days, the difference in the two figures (i.e. $43.33 x
60 = $2,599.00 and $5.00 x 60 = $300.00) amounts to
$2,199.00. However, Gilstrap is not entitled to
recover his meal costs outright; they are simply added
to his 1980 earnings for the purpose of calculating his
temporary partial disability benefits. See AS
23.30.200, 23.30.220 & (former) AS 23.30.265(20).
Thus, the actual benefit Gilstrap would gain from a
higher meal cost figure is less than $2,199.00.
7. Noting the great time and effort already spent on a
case involving no significant principle or substantial
sum, Justice Boochever commented in his dissent in
Wickwire that it was the type of case that "Dickens
must have had in mind when he had Mr. Bumble state 'the
law is an ass--an idiot.'"Id. at 786 (Boochever, J.
dissenting). Gilstrap's workers' compensation case has
gone on for more than ten years and has been to this
court twice before. Another remand from our court over
such a small amount will no doubt invite Alaskans to
echo Mr. Bumble's assessment of the legal system.