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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Unisea, Inc. v. Morales (2/8/2019) sp-7333

Unisea, Inc. v. Morales (2/8/2019) sp-7333

          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  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

UNISEA,  INC.  and  ALASKA                                        )  

NATIONAL  INSURANCE  COMPAN                                                                            

                                                            Y,  )      Supreme Court Nos. S-16851/16861  




                              Appellants and                      )   Alaska Workers' Compensation  


                              Cross-Appellees,                    )   Appeals Commission No.  16-011  

                                                                  )    (Consolidated)  

          v.                                                      )  


                                                                  )   O P I N I O N  


SOFIA MORALES de LOPEZ,                                           )  


                                                                      No. 7333 - February 8, 2019  


                              Appellee and Cross-                 )  

                              Appellant.                          )  




                    Appeal from the Alaska Workers' Compensation Appeals  



                    Appearances:  Constance E. Livsey, Barlow Anderson LLC,  


                    Anchorage,            for     Appellants/Cross-Appellees.                        Selena  


                    Hopkins-Kendall  and  Eric  Croft,  The  Croft  Law  Office,  


                    Anchorage, for Appellee/Cross-Appellant.  


                    Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  


                    and Carney, Justices.  


                    WINFREE, Justice.  



                    The primary issue in this workers' compensation appeal is the answer to  


this question:  When must an employer pay compensation related to permanent partial  


impairment ratings if doctors in different medical specialities provide different dates of  

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


medical stability and separate impairment ratings for injuries to different body systems  


arising out of one work-related accident?  


                    An employer asked medical specialists to evaluate a worker with injuries  


to different body systems arising out of one work-related accident. The doctors gave two  


separate  opinions,  almost  a  year  apart,  about  final  medical  stability  and  relevant  


permanent  impairment ratings in their separate specialities.   The employer paid no  


compensation based on the impairment ratings until almost three months after the second  


impairment rating. Theworker askedtheAlaskaWorkers' Compensation Board to order  


a penalty for late payment of impairment-related compensation benefits, but the Board  


agreedwith the employer that no impairment-related compensation was payable until the  


employer obtained a combined impairment rating. The Alaska Workers' Compensation  


Appeals Commission reversed the Board's decision, concluding that initial impairment- 


related compensation was payable upon notice of the first impairment rating and further  


impairment-related compensation was payable upon notice of the second impairment  



                    The  employer  appeals.                  For  the  reasons  that  follow,  we  affirm  the  


Commission's decision.  




          A.        The Claimant's Injury  


                    In June 2013 Sofia Morales de Lopez, age 54, was employed by Unisea,  


Inc. as a fish sorter at a Dutch Harbor processing plant. While working she fell about 15  


feet  from  a  platform  onto  a  concrete  floor  and  suffered  several  fractures.                                      After  


stabilizing  in  Unalaska,  she  was  medivaced  to  Anchorage;  she  received  medical  


treatment there for a few weeks before returning home to California, where she was in  


a rehabilitation facility for several months.  In addition to her orthopedic problems, she  


developed depression and post-traumatic stress disorder (PTSD) symptoms.  Morales's  

                                                               -2-                                                         7333

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treating psychiatrist later diagnosed her with PTSD; Unisea's psychiatrist thought she                                                                                                                                                                

did not meet the full criteria for PTSD.                                                                             

                    B.                  Relevant Statutory Sections And Related Workers' Compensation                                                                                                      

                                        Because this appeal raises issues related to workers' compensation benefits                                                                                                                      

paid under several interrelated statutory sections, we describe the statutory framework                                                                                                                                        

here to provide a better understanding of this case's factual development.                                                                                                       

                                        1.                 Temporary total disability compensation                                               

                                        Temporary total disability (TTD) compensation is payable while a worker                                                                                                                          

temporarily   is   totally   disabled   by   a   work-related   injury;   disability   is   defined   as  

"incapacity because of injury to earn the wages which the employee was receiving at the                                                                                                                                                                

                                                1                                                                                                                                                                                                            2  

time of injury."                                                                                                                                                                                                                                                 

                                                       A worker's TTD eligibility ends at the date of medical stability. 


Medical stability is statutorily defined as  


                                        the            date              after               which                   further                    objectively                            measurable  


                                        improvement from the effects of the compensable injury is  


                                        not reasonably expected to result from additional medical  


                                        care  or  treatment,  notwithstanding  the  possible  need  for  


                                        additional medical care or the possibility of improvement or  

                                                                                                                                                                                      [  ]  



                                        deterioration resulting from the passage of time. 

                                        2.                 Reemployment benefits  


                                        An injured worker also may be eligible for reemployment benefits, as set  


 out in AS 23.30.041, if a work-related injury results in certain permanent impairments  


preventing return to the worker's prior employment.4                                                                                                                   The reemployment process is  


                    1                   AS 23.30.185, .395(16).                     

                    2                   AS 23.30.185.   

                    3                   AS 23.30.395(28).  


                    4                   See Rydwell v. Anchorage Sch. Dist.                                                                       , 864 P.2d 526, 528-29 (Alaska 1993)                                                         


                                                                                                                            -3-                                                                                                                  7333

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

intended    to    provide    the    injured    worker    training    for    alternative    remunerative  



                      If the injured worker is unable to return to the worker's prior employment  

                                                                                                          6   is  required  to  



for  90  consecutive  days,  the  Reemployment  Benefits  Administrator 

                                                                                                   7   Eligibility requires  

evaluate whether the worker is eligible for reemployment benefits.                                                     


a doctor's prediction that the injured worker will have "permanent physical capacities  


that are less than the physical demands" of the worker's job at the time of injury (as  


described in a specific U.S. Department of Labor reference book) or any other job the  


worker had in the ten years preceding the injury.8                            An injured worker initially found  


eligible for reemployment benefits may later be found ineligible if, "at the time of  


medical stability, no permanent impairment is identified or expected."9  


                    In 2005 the legislature created a new and alternative job dislocation benefit  


for injured workers who qualify for reemployment benefits but who do not want to  


engage in the reemployment process.10                        The job dislocation benefit is a fixed amount  


          4         (...continued)  


(holding that injured worker must both be unable to return to former job and have  


rateable impairment greater than zero to be eligible for reemployment benefits).  

          5         Arnesen v. Anchorage Refuse, Inc. , 925 P.2d 661, 665 (Alaska 1996); see  


AS 23.30.041(r)(7) (defining "remunerative employability").  


          6         AS23.30.041(a) authorizes theReemployment Benefits Administrator and  


its staff as part of the Division of Workers' Compensation.  AS 23.30.041(a), .395(17).  


          7         AS 23.30.041(c).  


          8         AS 23.30.041(e); see also Vandenberg v. State, Dep't of Health & Soc.  


Servs., 371 P.3d 602, 606-08 (Alaska 2016) (describing reference used to identify jobs).  


          9         AS 23.30.041(f)(4).  


          10        Ch. 10,  19, FSSLA 2005; Sen. Labor & Commerce Comm., Section by  



                                                               -4-                                                        7333

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based on the worker's permanent partial impairment (PPI) rating; the maximum job                                                                                                                   


dislocation benefit is $13,500.                                                                                                                                                  

                                                                          Reemployment benefits,in contrast,includeformulation  

                                                                                                                         12  along with stipend benefits to the  



of and payment for an approved reemployment plan 

injured worker if other specified benefits, including PPI compensation, end during the  


plan's implementation.13  An injured worker found eligible for reemployment benefits  

must select one of the two options - the job dislocation benefit or the reemployment  


benefits - within 30 days of the eligibility notification.14  


                               3.              PPI compensation   

                               Alaska   Statute   23.30.190   authorizes   PPI   compensation;   subsection   (a)  


                               In case of impairment partial in character but permanent in                                                                             

                               quality, and not resulting in permanent total disability, the                                                                        

                               compensation  is  $177,000  multiplied  by  the  employee's  


                               percentage of permanent impairment of the whole person.                                                                                       

                               Thepercentageofpermanent impairment of the wholeperson  


                               is the percentage of impairment to the particular body part,                                                                      

                               system,                or       function                 converted                   to       the         percentage                    of  


                               impairment to the whole person as provided under (b) of this                                                                         

                               section.   The compensation is payable in a single lump sum,                                                                      

                               except   as  otherwise   provided   in   AS   23.30.041,   but   the  

                10             (...continued)  


Section Analysis of SB 130 at 9, Alaska Leg. Microfiche Collection No. 11903 (Mar. 3,  


2005) (stating that this section "provides a small benefit not previously available to those  


employees who genuinely desire to retire from the active labor market or to pursue plans  


of their own without direction from the workers' compensation system").  

                11             AS 23.30.041(g)(2).  


                12             See AS 23.30.041(h)-(j), (l).  


                13             AS 23.30.041(k).  


                14             AS 23.30.041(g).  


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                               compensation may not be discounted for any present value                                                                       


                               AlaskaStatute23.30.190(b) requiresusing                                                            aspecificmedical                         reference, the  

American Medical Association Guides to the Evaluation of Permanent Impairment (the                                                                                                               

Guides), to calculate compensation:                                                  "All determinations of the existence and degree of                                                              

permanent   impairment   shall   be   made   strictly   and   solely   under   the   whole   person  

determination as set out in [the Guides], except that an impairment rating may not be                                                                                                               

rounded to the next five percent."                                              Subsection .190(d) requires the Board to update the                                                                

Guides as new editions are issued.                                                PPI is          not  linked to medical stability in the statute.                                      

                               The sixth edition of the Guides was adopted by the Board in January                                                                                     

             15       The  Guides has  consistently  evaluated  different  organs  and  body  systems  


separately, using medical testing and examination to estimate the extent a particular  


organ or body system impairment limits a person's activities of daily living.16  


                               An evaluation using the Guides is done when the injured worker reaches  


maximum medical improvement (MMI), defined as  


                                [t]he point at which a condition has stabilized and is unlikely  


                               to change (improve or worsen) substantially in the next year,  


                               with or without treatment.  While symptoms and signs of the  


                               condition  may  wax  and  wane  over  time,  further  overall  


                               recovery or deterioration is not anticipated.  However, both  


                               the name given to and exact definition of this status vary  


                15             Alaska               Workers'                   Comp.                Div.,           Bulletin                08-02             (Jan.           15,         2008),  

                16             AM.M           ED.A         SS'N,G          UIDESTOTHE                     EVALUATIONOF                         PERMANENT  IMPAIRMENT  

2, 5, 21 (6th ed. 2008) [hereinafter G                                                UIDES  6TH ED.].  

                                                                                                  -6-                                                                                         7333

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

                     depending  on    the    jurisdiction.      Among    the    numerous  

                     synonyms for MMI are . . . medical stability . . . .                        [17]  

The Guides's MMI definition differs fromAS 23.30.395's definition of medical stability  


because the MMI definition centers on a condition's stabilization, not on whether further  


medical carewould lead to objectivelymeasurablefurther improvement from"theeffects  


of the compensable injury."18  Because a single work-related injury can affect more than  


one body system or cause more than one condition, medical stability and MMI may not  


always be coextensive.   And the MMI definition does not indicate that all separate  


conditions need to have stabilized before any single condition can be evaluated using the  



                    A rating of an organ or body system under the Guides generally shows how  


the loss affects the whole person, even though ratings are performed on organs or body  


systems separately.19   The Guides also provides a method for combining different body  


system impairments, set out in both the text and the Combined Values Chart appendix.20  


Essentially the greatest impairment value is combined with the next largest remaining  


value by looking to where the numbers intersect on a chart.21  "The method of combining  


          17        Id.  at  612.   

          18        AS  23.30.395(28).  

          19         GUIDES   6TH  ED.,  supra  note   16,  at 21 ("The  Guides'  impairment  ratings  

reflect  the  severity  of  the  organ  or  body  system  impairment  and  the  resulting  functional  

limitations   of   the   whole  person ."   (emphasis   in   original)).    The   Guides   has   regional  

impairment ratings for a few body systems,  id., but these ratings are not at  issue here.    

          20        Id. at 23, 604-06.  


          21        Id.  This method is also used for "[r]elated but separate conditions," but a  


slightly different rating may be needed when "the impairing condition involves several  


organ systems."  Id. at 23.  


                                                                -7-                                                          7333

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

impairments is based on the idea that a second or a succeeding impairment should apply                                                                    

not to the whole but only to the part that remains after the first and other impairments                                                    

                                        22     The  Combined  Values  Chart's  values  are  derived  from  a  

have   been   applied."                                                                                                                                          

mathematical formula; using the Chart requires that each organ system's impairment  


"must first be expressed as a whole person impairment percent."23  


                         The Guides  sets out a three-step  rating  process consisting of "clinical  


evaluation, analysis of the findings, and discussion of how the impairment rating was  


calculated."24               According to the Guides, "[t]he first 2 steps must be performed by a  


licensed physician, and if the clinical findings are fully described, any knowledgeable  


                                                                                                                             25    The Guides also  

observer may check the findings against the  Guides'[s] criteria." 


"emphasize[s]" that "nonphysician evaluators may analyze an impairment evaluation to  



determine if it was performed in accordance with the Guides." 


             C.          Morales's Claim Process And Administrative Proceedings  


                         The day after Morales's June 2013 injury, Unisea began paying her TTD  


compensation; it continued to do so through early August 2015, when it controverted the  


TTD compensation for reasons unrelated to this appeal.  


                         In October 2013 Unisea initiated the reemployment process paperwork,  


notifying theReemployment Benefits Administrator thatMoraleshadbeentotally unable  


             22          Id.  at 22-23.   

             23          Id.  at 604.   

             24          Id.  at 28.   

             25          Id.  

             26          Id.  at 23.   

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


to return to her employment for 45 consecutive days.                                                                                                       After Morales remained unable                                          

to return to her work for 90 consecutive days, an eligibility evaluation was ordered in                                                                                                                                                        

California.   Reemployment Benefits Administrator staff wrote to Morales, with a copy                                                                                                                                                

to Unisea, telling her she was eligible for reemployment benefits and within 30 days she                                                                                                                                                    

needed to choose whether to go through the reemployment process or receive a job                                                                                                                                                           

dislocation benefit.                                    Morales had not yet been rated for a permanent impairment, and a                                                                                                                          

                                                                                                                                                                                                                     28       Morales  

rating would have been necessary to calculate the job dislocation benefit.                                                                                                                                                  

returned the signed and notarized form electing the job dislocation benefit, and Unisea  


was served a copy of the form in April 2014.  At no time did Unisea contest Morales's  


entitlement  to  reemployment  benefits  in  general  or  the  job  dislocation  benefit  in  




                                      In early November 2014 Morales traveled to Seattle for an employer's  


medical evaluation (EME) by a panel of three doctors - a neurologist, an orthopedist,  


and a psychiatrist - all working for the same organization.  The psychiatrist gave an  


opinion that the work injury was the substantial cause of her psychiatric condition, but  


he did not think her psychiatric condition was medically stable.  The other two doctors  


evaluated Morales's physical condition and determined that her orthopedic problems  


caused by the accident were medically stable. Using the Guides, they rated her as having  


a 5% whole person permanent impairment. In February 2015, relying on the orthopedic  


andneurologyEMEreport,Uniseacontroverted further medicalcarefor Morales's neck,  


back, and right foot conditions, as well as any related personal-attendant care.   The  


controversion noticementionedneither PPIcompensationnorthejob dislocation benefit.  


                   27                 See  AS23.30.041(c) (requiringeligibilityfor reemploymentbenefitsnotice                                                                                                                       

to employee unable to return to original work for 45 consecutive days).                                                                                                                  

                   28                 See AS 23.30.041(g)(2).  


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Unisea   continued   paying   Morales   TTD   compensation,   now   based   solely  on   her  

psychiatric condition.                            

                             Morales - representing herself - filed her first workers' compensation                                                             

claim in June 2015, seeking continued medical care and other benefits. Later that month                                                                                          

Unisea filed its first medical summary with the Board, listing the two November 2014   

                              29     Unisea answered Morales's claim, admitting that she was entitled to  

EME reports.                                                                                                                                                                              

continued TTD compensation and psychiatric care but denying that she was entitled to  


continued physical medical care.  In early August Morales obtained the counsel who  


would ultimately represent her before the Board. About the sametime, Unisea scheduled  


a second psychiatric EME, but Morales did not attend.  In September Morales filed a  


compensation claim for continued medical costs, continued TTD compensation (which  


Unisea had discontinued when Morales did not attend the second psychiatric EME30),  


penalties for Unisea's late payments,31  interest, and attorney's fees.  


                             Morales attended a second psychiatric EME in November 2015; the EME  


psychiatrist determined her psychiatric condition was medically stable and rated her as  


having  a  resulting  10%  impairment.                                                    Unisea  later  communicated  with  the  EME  


psychiatrist  -  although  the  communication  itself  is  not  in  the  record  -  seeking  


clarification  of  the  November  2015  rating.                                                         In  a  February  8,  2016  addendum  the  


               29            A Board regulation requires the parties to file medical summaries only                                                                                 

when they file a petition or claim.                                             8 Alaska Administrative Code (AAC) 45.052(a)                                            


               30            The reasons for  her  nonattendance are discussed in the Commission's  


decision, but because this issue is not on appeal we omit discussion of it.  


               31            AS 23.30.155(e)-(f) impose a 25% penalty when an employer fails to pay  


compensation promptly; a penalty is not imposed when an employer files a good faith  


controversion.                       See  Harris  v.  M-K  Rivers,  325  P.3d  510,  517-18  (Alaska  2014)  


(describing penalty and good faith controversion).  


                                                                                           -10-                                                                                    7333

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 psychiatrist explained that the 10% psychiatric impairment was a whole person rating                                                                                                                                                                                                                                                                                     

 that, when combined with the 5% orthopedic impairment, would be a 15% whole person                                                                                                                                                                                                                                                                                    

 impairment rating.                                                                   On February 17 Unisea then paid Morales a job dislocation benefit                                                                                                                                                                                                              

 and PPI compensation based on the 15% permanent impairment rating.                                                                                                                                                                                                                                                                 

                                                             In March Morales filed a compensation claim for penalty and interest on                                                                                                                                                                                                                                                     

 the PPI payment. She also sought a Board ruling invalidating her job dislocation benefit                                                                                                                                                                                                                                                                             

 election because of Unisea's delay in paying her that benefit.                                                                                                                                                                                                                         Unisea's controversion   

 response covered all of Morales's requests:                                                                                                               

                                                             The [employee] signed an Election to Waive Reemployment                                                                                                                                                 

                                                             Benefits and Receive a Job Dislocation Benefit Instead form                                                                                                                                                                                           

                                                             on 03/03/14.   Payment has been issued.                                                                                                                                                . . . No penalty is                    

                                                             owed on PPI payments as the [employer] & carrier did not                                                                                                                                                                                                     

                                                            have   a   completed   combined   whole   body   rating   until   the  

                                                            report . . . dated February 8, 2016 was provided to the carrier.                                                                                                                                                                             

                                                             The [employee] was not entitled                                                                                                               to receive her job dislocation                                               

                                                            benefit until after she was medically stable & rated for her                                                                                                                                                                                                 

                                                            whole body PPI.                                                              

                                                             The   Board   held   two  hearings   and   issued   three   decisions,   one   on  

 reconsideration, related to Morales's claims.                                                                                                                                                               No witnesses testified at either hearing.                                                                                                                                                 

 The first hearing primarily concerned a penalty on Morales's PPI compensation. Unisea                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                                                                      32  to argue that it had  

 relied on a Commission decision,                                                                                                                        Lowe's HIW, Inc. v. Anderson                                                                                                               ,                                                                               

 timely  paid  PPI  compensation,  in  part  because  it  had  continued  to  pay  TTD  


 compensation after receiving the orthopedic impairment rating. Morales contended that  


Anderson did not apply to her case.  She argued that Unisea should have paid her lump- 


 sum PPI compensation related to the 5% orthopedic impairment rating within weeks of  


                               32                            AWCAC Dec. No. 130 (Mar. 17, 2010) (deciding that employer cannot be                                                                                                                                                                                                                                                         

 ordered to pay TTD and PPI concurrently when employee is in reemployment process),                                                                                                                                                                                                                                                                    

                                                                                                                                                                                          -11-                                                                                                                                                                                 7333

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receiving the EME report and should havepaid her theremaining 10%PPI compensation  


after the November 2015 psychiatric EME report. Unisea maintained that it was justified  


in waiting until February 2016, when it receivedthe addendumfromits EME psychiatrist  


showing the combined whole person impairment rating.  


                    The Board first decided that no penalty was owed on the PPI compensation  


payment.  The Board reasoned that PPI compensation should be paid in a single lump  


sum and that Unisea did not have "a true 'whole person' rating" until the February 2016  


addendum from the EME psychiatrist.   The Board also reasoned that because TTD  


compensation is "not payable after the date of medical stability" and because Morales  


was paid TTD compensation from June 24, 2014 through August 7, 2015, Unisea "was  


not obligated under the Act to issue [Morales] a PPI benefit concurrently with ongoing  


TTD payments."  Morales asked the Board to reconsider its decision; the Board denied  




                    TheBoard'ssecondhearingconsidered thejobdislocationbenefit. Morales  


sought a ruling from the Board that Unisea's delay in paying the job dislocation benefit  


made  her  election  invalid,  thus  freeing  her  to  pursue  reemployment  benefits.  


Alternatively she asked the Board to consider a penalty on the job dislocation benefit.  


                    The  Board  decided  there  had  been  no  undue  delay  in  paying  the  job  


dislocation benefit even though the delay "was unusually long."  The Board thought  


delay in paying job dislocation benefits was common "because of the difference between  


the statutory requirements for eligibility for reemployment benefits and the calculation  


of  the  amount  of  the  dislocation  benefit."                     According  to  the  Board's  analysis,  job  


dislocation benefit payment is dependent on a PPI rating that includes all conditions;  


because the Board earlier had decided that Unisea did not have a complete PPI rating  


until February 2016, the Board decided the job dislocation benefit was timely paid.  

                                                              -12-                                                         7333

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

                                              Morales separately appealed the Board's decisions to the Commission; the                                                                                                                                                                           

 Commission consolidated the appeals.                                                                                                  

                                              The Commission first considered the job dislocation benefit and decided                                                                                                                                                          

that Unisea had not timely paid that benefit.                                                                                                          The Commission looked at the language of                                                                                                     

AS 23.30.041(g), requiring payment to an employee "who has been given a [PPI] rating                                                                                                                                                                                                   

by a physician," and decided that Unisea was required to pay Morales at least an initial                                                                                                                                                                                               

payment after the first PPI rating by the EME doctors.                                                                                                                                         The Commission indicated its                                                                       

 decision was based in part on Unisea's failure to controvert, writing, "Perhaps, more                                                                                                                                                                                                  

importantly, Unisea never                                                                        bothered to tell Ms. Morales why it was not paying the                                                                                                                                        

 dislocation benefit."                                                  

                                              TheCommissionnextdiscussedPPI compensationand                                                                                                                                             decided that                               Unisea  

 also had not timely paid that compensation.                                                                                                                    The Commission considered statutory                                                                        

 language in the Alaska Workers' Compensation Act, our decisions in                                                                                                                                                                              Sumner v. Eagle                      

                                      33                                                                                                                              34  and information in the Guides.  The  

                                              and Hammer v. City of Fairbanks,                                                                                                                                                                                                             

Nest Hotel                                                                                                                     

 Commission decided that nothing in the Guides requires all body systems or organs to  


reach MMI at the same time for a final PPI rating.  The Commission decided that under  


 our precedent PPI compensation became due when Unisea received the EME reports  


with the impairment ratings.  The Commission distinguished its Anderson decision by  


 interpreting it to apply only to claimants actively engaged in the reemployment process.  


Finally,  the  Commission  agreed  with  the  Board  that  Morales  could  not  rescind  or  


 otherwise avoid the consequence of her election to receive a job dislocation benefit in  


                       33                      894 P.2d 628, 631 (Alaska 1995) (holding lump-sum PPI due within 21                                                                                                                                                                                

 days of receiving rating).                                   

                       34                      953 P.2d 500, 505-06 (Alaska 1998) (holding penalty appropriate when  


 employer sought rating clarification from doctor but did not controvert payment).  


                                                                                                                                               -13-                                                                                                                                       7333

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

lieu of reemployment benefits and that Unisea was "not estopped from relying on the                                                                                                                    

Election Waiver by Ms. Morales."                                                     

                                UniseaappealstheCommission's                                                    decision about                     thetimeliness                    ofUnisea's   

PPI compensation and job dislocation benefit payments.                                                                                       Morales cross-appeals the                                 

Commission's decision that she cannot avoid her job dislocation benefit election.                                                                                                                   

III.	           STANDARD OF REVIEW                           

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


and not the Board's.                                                                                                                                                                                     

                                                      "We apply our independent judgment to questions of law that do  



not  involve  agency  expertise,  including  issues  of  statutory  interpretation."                                                                                                                "We  


interpret a statute 'according to reason, practicality, and common sense, considering the  



meaning of the statute's language, its legislative history, and its purpose.' " 

IV.	            DISCUSSION  


                A.	             The Commission Correctly Decided That A Penalty Was Due On Both  


                                The Job Dislocation Benefit And PPI Compensation.  


                                In Harris v. M-K Rivers  we observed that the Act "sets up a system in  



which payments are made without need of Board intervention unless a dispute arises." 


An employer is required to pay compensation when it is "due" unless the employer  



                                                                                                                                                       If the employer fails to  

disputes payment, in which case it must file a controversion. 

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

                36               Vandenberg v. State, Dep't of Health & Soc. Servs.                                                                           , 371 P.3d 602, 606        


(Alaska 2016).  

                37              Id. (quoting Louie v. BP Expl. (Alaska), Inc., 327 P.3d 204, 206 (Alaska  



                38              325 P.3d 510, 518 (Alaska 2014).  


                39              AS 23.30.155(a), (d).  


                                                                                                   -14-	                                                                                           7333

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timely pay compensation, it may be subject to a penalty,                                                              but an employer who files a                            


good-faith controversion is protected from a penalty.                                                                                                 

                                                                                                                We agree with the Commission  


that a penalty was appropriate in this case under our previous Sumner  and Hammer  



                           Not long after the legislature changed the Act's benefit structure from  


permanent  partial  disability  to  permanent  partial  impairment,  we  were  required  in  


Sumner  to  decide  when  a  lump-sum  PPI  compensation  payment  was  "due"  for  

                                                                                                      42    We agreed with the Board in that  


determining whether a penalty should be imposed. 

case that a PPI compensation payment was "due" within 21 days of the date an employer  


received notice of a PPI rating.43                                  In Hammer we later affirmed the Board's imposition  


of a penalty when the employer delayed paying all PPI compensation while it sought  


clarification  of  a  rating  instead  of  paying  the  uncontested  PPI  compensation  and  


controverting the remainder within 21 days of receiving notice of the initial rating.44  


                           Unisea justifies its delay in paying Morales anything until February 2016  


by arguing that TTD and PPI compensation cannot be paid concurrently and that a job  


dislocation benefit is not payable until a final PPI rating. But even if Unisea were correct  


that TTD and PPI compensation never can be paid concurrently, a penalty nonetheless  


would be appropriate.  Unisea controverted and stopped paying TTD compensation in  


August 2015, and the Board's later order required Unisea to pay TTDcompensation only  


              40           AS 23.30.155(e)-(f).   

              41           Harp v. ARCO Alaska, Inc.                               , 831 P.2d 352, 358 (Alaska 1992).                        

              42           Sumner v. Eagle Nest Hotel                              , 894 P.2d 628, 631 (Alaska 1995).                                       

              43           Id.  

              44           Hammer v. City of Fairbanks                                 , 953 P.2d 500, 505-06 (Alaska 1998).                                          

                                                                                    -15-                                                                             7333

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

through November 13, 2015, the date of the second psychiatric EME.                                                                                                        If Unisea had,            

consistent with                      Hammer, promptly paid whatever part of the PPI compensation it did not                                                                                            

contest after receiving the November 2015 EME and controverted the remaining PPI                                                                                                                     

compensation, it would not have paid PPI and TTD compensation concurrently.                                                                                    

                                Unisea also justifies its delay in paying PPI compensation and the job                                                                                                

dislocation benefit by arguing that Morales "did not have a true, final, whole person PPI                                                                                                             

rating" until February 2016.                                           But we faced a similar issue in                                               Hammer   and approved   

imposition of a penalty because the employer had knowledge of "the injury resulting in                                                                                                                    

                                                                                                                                             45      We said, "To conclude  

the PPI not later                           than  receipt of the [initial] PPI rating."                                                                                                 

otherwise would  permit an employer  to  conduct an investigation  of  the  PPI  rating  


without  controverting,  thus  thwarting  the  policy  of  the  Act  - to  promote  prompt  



payment by the employer to the injured employee."                                                                                


                                The facts here are analogous.   Unisea's more than two-month delay in  


getting clarification of the PPI rating from its own doctors is unexplained.  Unisea did  


not contest that Morales was entitled to the job dislocation benefit she elected in 2013  

or to PPI compensation.  As the Commission correctly observed, Unisea was aware as  


early  as  November  2014  that  it  would  need  to  pay  Morales  at  least  a  $5,000  job  


dislocation benefit in addition to PPI compensation.  Using Unisea's reasoning - that  


it did not have to pay or controvert until it got from its own doctors an additional rating  


or clarification about what those doctors' ratings meant - there is no limit on the  


amount of time an employer can delay until a payment is due after an initial rating.  If  


Unisea could not get clarification from its doctors within the 21 days following the  


November  2015 EME, it could have paid Morales the uncontested part of the PPI  


                45              Id.  at  505.  

                46              Id.  at  505-06.  

                                                                                                  -16-                                                                                                     7333  

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

compensation   and   job   dislocation   benefits   and  filed   a   controversion   of   anything  



                    Because Unisea paid Morales nothing within 21 days of either EME report  


and filed no controversion contesting the ratings, the Commission correctly determined  


Unisea owed Morales a penalty on the PPI compensation and job dislocation benefit.  


          B.	       The Commission Did Not Err In Determining That Unisea Should  


                    Have Paid The Job Dislocation Benefit Related To The Orthopedic  


                    Rating When It Got That Rating.  


                    Because Morales is entitled to interest on compensation that was not timely  



          we next consider whether the job dislocation benefit should have been paid in part  


in 2014, when Unisea's orthopedist and neurologist rated Morales as having a 5% whole  


person  impairment  due  to  her  lumbar  condition,  with  the remainder  paid  after  her  


psychiatric condition was rated.  


                    The Commission decided Unisea was obligated to pay at least $5,000 to  


Morales  as  a  job  dislocation  benefit  in  November  2014  after  it  received  the  EME  



orthopedic PPI rating.              Unisea contends it had no obligation to pay or controvert the job  


dislocation benefit until February 2016, after its psychiatrist provided the addendum to  


his report, because Morales "did not have a true, final, whole person PPI rating" until  


then.   Morales responds that a job dislocation benefit corresponding to a 5% whole  


person  impairment  was  due  in  November  2014  because  she  met  the  statutory  


requirements and Unisea knew then that it would owe at least $5,000 in job dislocation  


benefits, with additional benefits payable later "[i]f and when a higher PPI rating was  



          47        See  id.  at  506-07.  

          48        Land  &  Marine  Rental  Co.  v.  Rawls,  686  P.2d  1187,  1192  (Alaska  1984).  

          49        Under  AS  23.30.041(g)(2)(A),  a  job  dislocation  benefit  is  $5,000  "if  the  

employee's  [PPI]  rating  is  greater  than  zero  and  less  than   15  percent."  

                                                              -17-	                                                       7333

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

                           Alaska Statute 23.30.041(g)(2) provides that "an employee who elects to                                                                          

accept a job dislocation benefit in place of reemployment benefits and who has been                                                                                   

given a [PPI] rating by a physician shall be paid" a sum of money depending on the                                                                                       

employee's PPI.  The statute thus requires payment when two conditions are met:  the   

employee has elected a job dislocation benefit and "has been given                                                                       a  [PPI] rating by a  

                       50  As theCommissionobserved,thelanguagein AS 23.30.041(g)(2) does not  


indicate the rating must be a final, combined rating because the subsection uses the  


indefinite article to indicate when a person qualifies for payment.  Morales met both  


statutory conditions in November 2014, after Unisea's EME doctors had given her a PPI  


rating for her orthopedic condition.  Her job dislocation benefit corresponding to that  


rating was due at that point, and Unisea needed to pay the benefit or, if Unisea disputed  


its liability, controvert the benefit.51  


                           Unisea has suggested that a valid PPI rating cannot be done before reaching  


medical stability as defined in AS 23.30.395, but at oral argument before us Unisea  


agreed that the Act does not specify when PPI is to be rated and acknowledged that in  


cases involving multiple body systems, different systems may reach MMI at different  


times.  Using the Guides, an injured worker may at different times get valid PPI ratings  


as different systems reach MMI.  Unisea contended at oral argument that requiring it to  


pay  the  job  dislocation  benefit  corresponding  to  the  orthopedic  impairment  before  


Morales had been rated for the psychiatric condition put it at risk of paying $10,000 -  


$5,000 for the5%orthopedicimpairment and $5,000for the10%psychiatricimpairment  


- rather than the $8,000 it would be required to pay for the combined rating.  Morales  


              50           AS  23.30.041(g)(2)  (emphasis  added).  

              51           See  AS  23.30.155(a).  

                                                                                    -18-                                                                                    7333  

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

responded that she sought only $8,000, with $5,000 payable after the orthopedic rating                                                                                           

and an additional $3,000 payable after the psychiatric rating.                                                                          

                             Construing   AS   23.30.041(g)(2)   together   with   the   Guides   shows   that  

Unisea's concern is unfounded.                                         Alaska Statute 23.30.041(g)(2) sets out three payment                                               

levels for the job dislocation benefit; each level corresponds to a range of impairment                                                                             

values.     The   total   job   dislocation   benefit  is   tied   to   "the   employee's   [PPI]   rating,"  

                                                                                                                                                                  52       Because  

indicating   that   the   total  due   depends   on   the   total   impairment   rating.                                                                                 

AS 23.30.190(b) provides that "[a]ll determinations of the existence and degree of  


permanent  impairment  shall  be  made  strictly  and  solely  under"  the  Guides,53                                                                                                 the  


orthopedic EME using the Guides and assessing a 5% PPI rating met the statutory  


conditions for payment.  The Guides requires that all subsequent impairment ratings be  


                                                                                                                                                                   54    The final  

combined when calculating total impairment and can never exceed 100%.                                                                                                              


combined rating "is always equal to or less than the collective sum of all the impairment  


                                                            55     Consistent with the Guides's formulation, the total job  

values taken individually."                                                                                                                                                           


dislocation benefit should correspond to the total, final rating, meaning that an employer  


is not at risk of paying extra when it pays the job dislocation benefit as the employee is  



                             Requiring  an  employer  to  pay  that  part  of  the  job  dislocation  benefit  


corresponding to the first of what may be several ratings is consistent with Hammer,  


where we held the employer needed to timely pay any benefit it agreed was due and  


               52            AS 23.30.041(g)(2)(A)-(C).   

               53            It   is   undisputed  that  a   PPI   rating   for   purposes   of   AS   23.30.041(g)   is  

evaluated the same way.                    

               54            GUIDES  6TH  ED.,  supra  note 16, at 21-23.                                 

               55            Id. at 23.  


                                                                                          -19-                                                                                    7333

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


controvert any remaining benefit.                                                       Because Morales had elected the job dislocation                                                

benefit in 2013, Unisea was required to pay the job dislocation benefit corresponding to                                                                                                                     

her orthopedic impairment rating in November 2014, and it was required to pay any                                                                                                                        

remaining job dislocation benefit after receiving the psychiatric EME rating.                                                                                             

                C.	             The   Commission   Correctly   Determined   That   PPI   Compensation  

                                 Should Have Been Paid Or Controverted After Each EME Rating.                                                                                             

                                As with the job dislocation benefit, Morales is entitled to interest on any                                                                                              


PPI compensation not timely paid.                                                                                                                                              

                                                                                          Unisea's chief argument is that the Commission's  


decision about part of the PPI compensation being "due" within 21 days of the first EME  


is contrary to the Act because the Act follows what Larson's treatise describes as "a four- 



way classification of disabilities,"                                                   meaning temporary and permanent benefits should  


be paid "sequentially and separated by a physician's declaration of medical stability."  


Unisea  maintains  that  instructions  in  the  Guides  "preclude  a  rating  prior  to  a  


determination of medical stability (or MMI)" and that a rating using the Guides was  


"appropriate" only at medical stability.  Unisea argues that MMI and medical stability  


"are in fact the same concept." In Morales's view, MMI and medical stability are distinct  


but related concepts, with MMI tied to a condition and medical stability related to all of  


a  compensable  injury's  effects;  those  effects  could  include  many  conditions.                                                                                                                   She  


maintains that because different conditions may stabilize at different rates, a condition  


may be at MMI before a worker is medically stable as defined in the statute.  At oral  


argument before us, Unisea agreed that conditions may reach MMI and be validly rated  

                56              Hammer  v.  City  of  Fairbanks,  953  P.2d  500,  505-06  (Alaska   1998).  

                57              Land  &  Marine  Rental  Co.  v.  Rawls,  686  P.2d  1187,  1192  (Alaska  1984).  

                58               6 ARTHUR   LARSON   ET   AL.,   LARSON 'S   WORKERS'   COMPENSATION   LAW  

  80.03[1]  (2018).

                                                                                                    -20-	                                                                                             7333

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

at different times, but it contended that PPI compensation needs to be                                                                                                                            paid  only after all                       

conditions are rated and a combined impairment calculated under the Guides.                                                                                                                                                   

                                      Alaska Statute 23.30.190 is silent about the timing for both rating of and   

                                                                                                           59  It does not indicate that PPI is tied to medical  

payment for a permanent impairment.                                                                                                                                                                                          

stability  as  defined  in  the  Act  for  purposes  of  either  rating  or  payment.                                                                                                                                           Alaska  


 Statute 23.30.190(a) requires payment of PPI compensation "in a single lump sum,  


except  as  otherwise  provided  in  AS  23.30.041,"  but  it  does  not  indicate  that  PPI  


compensation is payable only after medical stability or only after TTD compensation  


ends.  Alaska Statute 23.30.190(b) provides that "[a]ll determinations of the existence  


and degree of permanent impairment shall be made strictly and solely" under the Guides.  


The Guides permits jurisdictions to define MMI differently than the Guides,60  but the  


legislature did not direct that an injured worker be evaluated for a permanent impairment  


at medical stability.  Instead the legislature required that ratings be done "strictly and  


solely" under the Guides.61  


                                      The Guides allows rating at MMI, which is defined in terms of a condition,  


not in terms of an individual or in reference to all effects of an injury.62                                                                                                                               Because of the  


way the Guides is structured, with different body systems rated independently of each  


                   59                 See   Sumner   v.   Eagle   Nest   Hotel,   894   P.2d   628,   631   (Alaska   1995)  

(observing that "no statutory time frame is clearly specified" for payment of PPI).                                                                                                                                                      

                   60                 GUIDES  6TH ED                             .,  supra  note 16, at 612 (recognizing that "the name given                                                                                       

to and exact definition of [MMI] vary depending on the jurisdiction").                                                                                         

                   61                 AS 23.30.190(b).  


                   62                 See GUIDES  6TH ED                                   .,  supra  note 16, at 20 (allowing rating only after MMI);                                                                           


id.  at 612 (defining MMI).                                                   We agree with Morales that                                                         medical stability                               as currently   

defined in AS 23.30.395(28) is different from the MMI definition in the Guides.  As a   

result, we use the term MMI to discuss the timing of PPI ratings.                                                                                                                       

                                                                                                                    -21-                                                                                                              7333

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

other, medical conditions may reach MMI at different times, as Morales's two injury-                                                                                                                                                                                                                                      

related conditions did in this case. We have found no specific requirement in the current                                                                                                                                                                                                                                 

edition of the Guides that all conditions be at MMI before any condition can be rated.                                                                                                                                                                                                                                                                   

Unisea's doctors obviously interpreted the Guides to permit ratings as each condition                                                                                                                                                                                                                          

reached MMI: the orthopedist and neurologist rated Morales's orthopedic condition the                                                                                                                                                                                                                                                    

day after the psychiatrist said Morales was not medically stable to rate the psychiatric                                                                                                                                                                                                                  

condition. The                                             psychiatrist did not question theorthopedicrating'svalidity                                                                                                                                                                             when Unisea  

later communicated to him that in November 2014 Morales had been "given a 5% whole                                                                                                                                                                                                                                           

person rating for her lumbar spine."                                                                                                             

                                                     Unisea    argues    that   AS    23.30.190(a),    requiring    conversion    of    the  

"percentage   of   impairment   to   the   particular   body   part,   system,   or   function"   to   the  

"percentage of impairment to the whole person" as provided in the Guides, mandates                                                                                                                                                                                                                             

only one payment, made after all body systems or organs are medically stable.                                                                                                                                                                                                                                                       But  

nothing in the record here suggests that either EME rating was anything but a whole                                                                                                                                                                                                                                     

person impairment rating.                                                                               As set out earlier, the Guides provides for regional ratings of                                                                                                                                                                      

 some body systems; depending on the jurisdiction's law, the regional ratings then are                                                                                                                                                                                                                                                   

                                                                                                                                                                                                             63           And the Guides states  that its  

converted   into   a whole person impairment rating.                                                                                                                                                                                                                                                                                      

"impairment ratings reflect the severity of the organ or body system impairment and the  


resulting functional  limitations  of  the  whole  person ."64                                                                                                                                                                             We  interpret  the  statutory  


language as addressing the question of regional ratings, not as directing only one PPI  


compensation payment when several body systems reach MMI at different times.  


                                                     Although   Unisea   looks   to   Larson's   treatise's   disability   payment  


classifications for support, Larson's indicates that some jurisdictions have adopted what  


                           63                        GUIDES  6TH ED.,  supra  note   16,  at  21.  

                           64                       Id.  (emphasis  in  original).  

                                                                                                                                                                   -22-                                                                                                                                                                            7333  

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

it calls a "physical-impairment theory" that does not consider wage-earning capacity in                                                                                  


awarding   permanent   partial   benefits.                                                                                                                   

                                                                                   The  Act  awards  PPI  compensation  without  

                                                                                                                                                                66   We  



consideration of the worker's earning capacity and appears to follow that theory. 

considered  the 1988 Act amendments, changing the compensation from permanent  



partial disability to permanent partial impairment, in Alaska Airlines, Inc. v. Darrow .  


Although in Darrow we looked at AS 23.30.190's interaction with a different part of the  


Act, we nonetheless considered section .190's meaning and discussed testimony before  


the 1988 legislature explaining some differences related to compensation for impairment  


rather than disability.68                         We observed that "compensation for impairment is awarded  


independent of earning capacity and for a different type of loss than . . . permanent  


disability  compensation."69                                 The  same  can  be  said  of  TTD  compensation;  TTD  


                                                                                                      70                                                           71   A  

                                                                                                          but PPI compensation is not.                                   

compensation is explicitly tied to earning capacity,                                                                                                        


             65            LARSON,  supra  note 58, at  80.05[7].                  

             66            See  AS 23.30.190 (tying PPI compensation to degree of impairment rated                                                                 

under Guides); see also GUIDES  6TH ED                                         .,  supra  note 16, at 5-6 (distinguishing between                           


impairment and disablement and indicating that an "impairment rating is one of several                                                                         

determinants of disablement").     

             67            403 P.3d 1116 (Alaska 2017).  


             68           Id. at 1128-30.  


             69           Id. at 1130.  


             70            AS 23.30.185 (requiring payment "[i]n case of disability total in character  


but temporary  in quality"); AS  23.30.395(16)  (defining disability in terms  of wage- 


earning ability).  


             71            AS 23.30.190(a) (setting out PPI formula based on multiplying percent of  


impairment by a fixed amount).  


                                                                                  -23-                                                                            7333

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

 worker disabled from working may have no rateable PPI.                                                                                                                                                        72  Because PPI and TTD are   

 compensation for different types of loss and because the legislature did not tie PPI rating                                                                                                                                                                                                      

 or compensation to medical stability, nothing distinguishes the date PPI was "due" here                                                                                                                                                                                                               

 from   our  earlier   Hammer   and   Sumner   decisions.     Unisea   was   required   to   pay   or  

 controvert PPI compensation within 21 days of the November 2014 EME report for the                                                                                                                                                                                                                         

physical condition and within 21 days of the November 2015 report for the psychiatric                                                                                                                                                                                          


                                                There is no indication in the record that Unisea contested its doctors' 5%                                                                                                                                                                                

whole person impairment rating for Morales's physical condition, and because Morales                                                                                                                                                                                                     

was not at MMI for the psychiatric condition in November 2014, Unisea could not then                                                                                                                                                                                                                   

 know whether she would have an impairment related to her psychiatric condition.                                                                                                                                                                                                                      The  

 Act sets up a system under which compensation is to be paid "promptly, and directly to                                                                                                                                                                                                                         

 the person entitled to it, without an award,  except where liability to pay compensation                                                                                                                                                                           

                                                                                                                             73          Unisea has never contested its liability for PPI  

 is controverted by the employer                                                                                       ."                                                                                                                                                                               

 compensation corresponding to the physical rating, yet it neither controverted nor paid  


 anything related to the physical condition within 21 days of its knowledge of the PPI  




                                                Unisea  has  relied  in  this  litigation  on  the  Commission's  decision  in  


Anderson , contending that it was justified in not paying PPI related to the physical  


 condition  within  21  days  of  notice  of  that  rating  because  the  Commission  said  in  


Anderson that until an injured worker "has received a true 'whole person' rating of . . .  


                         72                     See Rydwell v. Anchorage Sch. Dist.                                                                                              , 864 P.2d 526, 529-30 (Alaska 1993)                                                                             

 (holding   worker   who   was   unable   to   return   to   former  work  was   not   eligible   for  

 reemployment benefits because she had 0% impairment rating).                                                                                                                                              

                         73                     AS 23.30.155(a) (emphasis added).  


                                                                                                                                                     -24-                                                                                                                                            7333

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


permanent   partial   impairment,  the   single   lump   sum of                                                 PPI   is   not   payable."                      The  

 Commission distinguished                           Anderson  becausetheclaimant                               in  Anderson  elected to receive           

reemployment   benefits   rather   than   a   job   dislocation  benefit.     We   agree   with   the  

 Commission   that   Anderson   can   be   distinguished   from   Morales's   case.     Alaska  

 Statute 23.30.190(a) explicitly references AS 23.30.041 as changing the timing and                                                                             

                                                         75   Additionally, Anderson predated our Darrow decision,  

method of PPI compensation.                                                                                                                            

 and Darrow 's interpretation of the Act undercuts the Anderson reasoning relied on by  




                          Finally, werejectUnisea'sargumentthatbecauseAS23.30.190(a) says PPI  


 "compensation  is  payable  in  a  single  lump  sum,  except  as  otherwise  provided  in  


AS 23.30.041," the PPI compensation here could not have been "due" until Unisea had  


 its psychiatrist's combined rating in February 2016. Under AS 23.30.155(a), the general  


 section about compensation payment, compensation is payable "periodically."   The  


provisionrequiring payment ofPPI compensationin a single lump sumdistinguishes PPI  


             74           Lowe's HIW, Inc. v. Anderson                                , AWCAC Dec. No. 130 at 11 (Mar. 17,                                       


             75           See AS 23.30.190(a) ("The [PPI] compensation is payable in a single lump  


 sum, except as otherwise provided in AS 23.30.041 . . . .").  AS 23.30.041(k) requires  


that PPI compensation be paid at the TTD rate during the reemployment process, with  


 any remaining PPI benefit paid as a lump sum "upon completion or termination" of the  


reemployment plan; subsection .041(k) also provides for suspension of stipend benefits  


 if PPI benefits have been paid in a lump sum "before the employee requested or was  


 found eligible for reemployment benefits."  


             76           Compare Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1128-31 (Alaska  


2017)  (discussing  differences  between  disability  and  impairment  and  holding  that  


AS  23.30.180(a)  permits  offset  for  permanent  partial  disability  but  not  PPI  after  


 employee became permanently totally disabled), with Anderson, AWCAC Dec. No. 130  


 at 12  (citing  potential reduction  of permanent total disability  by  amount of PPI  as  


justification for decision that PPI should not be paid "based on piecemeal ratings").  


                                                                                -25-                                                                          7333

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

compensation   from   other   compensation   and   underscores   that   PPI   compensation   is  

                                                                                      77                                  78  

different -         paid for impairment rather than disability.                                                                   

                                                                                          As discussed above,                in Sumner  


and  Hammer  we  decided  when  PPI  compensation  was  "due."                                                  Unisea  offers  no  


persuasive argument that PPI compensation here was due at a different time.  


                      Unisea had notice of its doctors' rating of Morales's physical impairment  


in   November   2014;   payment   for   that   impairment   was   due   within   21   days,  


notwithstanding Morales's continued receipt of TTD compensation for her psychiatric  


condition. Similarly, payment for the second impairment rating was due within 21 days  


of November 13, 2015, the date of the second EME report.  If, after the second EME  


rating, Unisea needed clarification from its psychiatrist about the second rating or about  


the combined rating, Unisea was required under Hammer to pay whatever part of the PPI  


rating it did not contest and to controvert the remainder.  


           D.	        The  Commission  Did  Not  Err  By  Refusing  To  Apply  Equitable  


                      Principles To Invalidate The Job Dislocation Benefit Selection.  


                      Morales's cross-appeal asks us to decide whether equitable principles can  


be used to rescind a job dislocation benefit selection.  She compares her election of the  


job  dislocation  benefit  to  a  partial  settlement  and  further  analogizes  it  to  contract  


formation.  She argues that the long delay in payment of any benefit deprived her of her  


bargain such that the "contract" should be set aside.   She sets out several equitable  


doctrines that she contends permit her to avoid her job dislocation benefit selection.  


Unisea counters that the benefit selection represented unilateral action by Morales, not  


a contract, and that the benefit selection is effective upon service of the signed and  

           77         SeeDarrow          ,403P.3dat1126-28(discussing                         differencesbetween               disability  

and impairment).  Disability is tied to wage loss and inability to work, but impairment   

is not.     Id.  

           78         See supra notes 42-46 and accompanying text.  


                                                                    -26-	                                                             7333

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

notarized formon                                  theDivision. Uniseaargues                                                    that the Commission correctly determined  

estoppel should not apply against Unisea to void the job dislocation selection.                                                                                                                                             

                                     We are not persuaded that Morales's job dislocation benefit selection is                                                                                                                                

analogous to a contract or partial settlement.  The job dislocation benefit is a workers'   

compensation benefit under the Act just like TTD or PPI compensation, not something                                                                                                                                  

she bargained for with Unisea.                                                          There also is no indication that Unisea in any way was                                                                                         

                                                                                                                                                                         79           Unisea  initiated  the  

involved    in    her    selection    of    a    job    dislocation   benefit.                                                                                                                                                         

reemployment eligibility determination by filing a notice that Morales had not worked  


for 45 consecutive days, but this appears to be the extent of its involvement in the  


reemploymentprocess. TheReemploymentBenefitsAdministratorsupplied Morales the  


information about the job dislocation benefit, and she returned the form while she was  


still receiving both TTD compensation and full medical benefits.  Equitable principles  


may apply against the government,80  but Morales does not seek relief against the State,  


even though it provided her the information and forms related to the benefits.  


                                      The Commission did not explicitly say that equitable principles can never  


apply when an employee seeks to rescind a job dislocation benefit selection, writing that  


"Unisea is not estopped from relying on the Election Waiver."  It evidently considered  


equitable estoppel and implied waiver, but it did not find them applicable.  But Morales  


                   79                We have recognized the applicability of equitable principles in workers'                                                                                                            

compensation cases when allegations of fraud or material misrepresentation are present                                                                                                                                        

-   see   Seybert   v.   Cominco   Alaska   Expl.,   182   P.3d   1079,   1093-97   (Alaska   2008)  

(material misrepresentation);                                                      Blanas v. Brower Co.                                           , 938 P.2d 1056, 1060-63 (Alaska                                          

 1997) (fraud) - but Morales suggests nothing more than delay in payment.                                                                                                                  

                   80                See Crum v. Stalnaker, 936 P.2d 1254, 1257-58 (Alaska 1997) (applying  


estoppel against agency and requiring it to accept late application).  


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does not identify any assertion Unisea made                                                                                                                     and so cannot explain how equitable                                                             

estoppel should apply here.                                                                 Ultimately, Unisea's assertion that it could justifiably delay                                                                                                                    

payment until February 2016 was rejected by the Commission in a legal proceeding, and                                                                                                                                                                                              

the Commission determined Morales was entitled to a statutory penalty, the legal remedy                                                                                                                                                                                

provided in the Act for late payment.                                                                                       This was the appropriate resolution of the matter.                                                                                          

V.                    CONCLUSION  

                                            We AFFIRM the Commission's decision.  


                      81                     The first element of equitable estoppel is assertion by words or conduct.  


Schmidt v. Beeson Plumbing & Heating, Inc., 869 P.2d 1170, 1175 n.7 (Alaska 1994).  


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