Meek v. Unocal Corp.

• Decision Date: 26 April 1996
• Docket Number: No. S-6462,S-6462
• Citation: 914 P.2d 1276
• Parties: James R. MEEK, Appellant, v. UNOCAL CORPORATION (Self-Insured) and The Alaska Workers' Compensation Board, Appellees.
• Court: Alaska Supreme Court

Page 1276

914 P.2d 1276

James R. MEEK, Appellant, v. UNOCAL CORPORATION (Self-Insured) and The Alaska Workers' Compensation Board, Appellees.

No. S-6462.

Supreme Court of Alaska.

April 26, 1996.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Dana Fabe, Judge, Superior Court No. 3AN-93-6216 Civil.

William J. Soule, Law Office of William J. Soule, Anchorage, for Appellant.

Constance E. Livsey and Suzanne K. Ishii-Regan, Faulkner, Banfield, Doogan & Holmes, Anchorage, for Appellees.

Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

COMPTON, Justice.

I. INTRODUCTION

The issues in this workers' compensation case are whether Meek may claim permanent total disability benefits after requesting reemployment benefits, and whether the statute and regulation defining remunerative employability are constitutional. The Alaska Workers' Compensation Board held that Meek was not entitled to permanent total disability benefits, but declined to address the constitutional issues. On appeal, the superior court affirmed the benefits decision, and held that the statute and regulation are constitutional. We affirm the superior court's decision regarding the constitutionality of the statute and regulation, but reverse its decision regarding benefits.

II. FACTS AND PROCEEDINGS

James Meek was injured in January, 1991 in the course of his employment with Unocal. At the time of his injury, Meek worked seven days on, seven days off. He was compensated at a rate of $23 per hour, but also received significant overtime pay due to his unusual hours.

As a result of his injury, Meek collected temporary total disability (TTD) benefits under Alaska's Workers' Compensation Act (Act). AS 23.30.005-.270. After a brief return to light-duty work, Meek intermittently collected TTD and temporary partial disability (TPD) benefits. He was declared medically stable in February, 1992, and thereafter collected permanent partial impairment (PPI) benefits.

Meek requested and was deemed eligible for reemployment benefits under AS 23.30.041. That statute provides for the development of a reemployment plan, at employer expense, to return injured persons to the work place. AS 23.30.041. When Meek's PPI benefits were exhausted, Unocal began paying him subsection .041(k) interim wages. See AS 23.30.041(k). The reemployment plan eventually developed called for Meek to be retrained as an electronics technician. Unocal agreed to the plan's provisions, but Meek did not. The rehabilitation benefits administrator (RBA) approved the plan.

At a hearing before the Workers' Compensation Board (Board), Meek sought review of the RBA's approval of the reemployment plan, arguing that he was unable to perform the physical tasks required of an electronics technician, and that he could not achieve the remunerative wage the reemployment plan forecast. Meek also claimed he was eligible for permanent total disability benefits (PTD) from the time his PPI benefits were exhausted until a reemployment plan was in place, and, accordingly, that subsection .041(k) interim wages were not an appropriate substitute. Finally, Meek challenged the constitutionality of the statute and regulation used to calculate his remunerative employability wage rate.

The Board remanded the reemployment plan to the RBA to determine whether Meek could perform the physical tasks required of an electronics technician. The Board also directed the RBA to make findings of fact about the viability of Meek's forecasted remunerative employability rate of $13.98 an hour upon completion of the plan. The Board denied Meek's request for PTD benefits, concluding it would be "incongruous" to hold that an "employee, for whom a reemployment plan is being devised, is, at the same time, an employee who is permanently and totally disabled." Meek v. Unocal, AWCB No. 9101334 (June 18, 1993) (quoting Bell v. Dalton Electric, Inc., AWCB No. 92-0287 (Nov. 23, 1992). The Board declined to address Meek's constitutional arguments.

Meek appealed to the superior court, see Alaska Appellate Rules 601-611, which affirmed the Board's denial of Meek's PTD benefits claim. The superior court considered and rejected Meek's constitutional challenges. Meek appeals.

III. DISCUSSION

A. Standard of Review

We review the Board's denial of Meek's PTD benefits claim under the independent judgment standard, making our own interpretation of the statutes involved. Rydwell v. Anchorage School Dist., 864 P.2d 526, 528 (Alaska 1993). We review Meek's constitutional challenges de novo, adopting the " 'rule of law that is most persuasive in light of precedent, reason, and policy.' " Municipality of Anchorage v. Leigh, 823 P.2d 1241, 1243 n. 5 (Alaska 1992) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). Because the superior court acted as an intermediate court of appeal, we give no deference to its decision. Rydwell, 864 P.2d at 528.

B. The PTD Benefits Claim

1. A claim for PTD benefits is not incompatible with a

request for reemployment benefits.

Unocal argues, in line with the Board's holding, that Meek cannot claim PTD benefits after requesting reemployment benefits. Nothing in the Act, however, implies that an employee must be less than permanently and totally disabled to be eligible for reemployment benefits, nor is it "incongruous" for an employee who has requested reemployment benefits to claim PTD benefits.

The Act defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment." AS 23.30.265(10). We have held that "total" disability means "the inability because of injuries to perform services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist." J.B. Warrack Co. v. Roan, 418 P.2d 986, 988 (Alaska 1966). Under the "odd-lot" doctrine, which we have adopted, " 'total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market.' " Olson v. AIC/Martin J.V., 818 P.2d 669, 674 (Alaska 1991) (quoting 2 Arthur Larson, Workmen's Compensation, § 57.51, p. 10-53 (Desk Ed.1990)).

The concept of total disability includes an education component. See Roan, supra; Vetter v. Alaska Workmen's Compensation Bd., 524 P.2d 264, 266 (Alaska 1974) ("Factors to be considered in making [a finding that a person's earning capacity was decreased due to a work-related injury] include not only the extent of the injury, but also age, education, employment available in the area for persons with the capabilities in question, and intentions as to employment in the future."). Thus, a person's lack of education, as much as his physical injury, may be the "handicap" preventing him from obtaining all but "odd-lot" jobs. See generally 1C Arthur Larson, Workmen's Compensation Law § 57.51(d), p. 10-336 (1994) ("A considerable number of the odd-lot cases involve claimants whose adaptability to the new situation created by their physical injury was constricted by lack of mental capacity or education.").

If a lack of education can be overcome through vocational rehabilitation, then a disability that was once "total" may no longer be so. This is precisely what section .041 aims to do; its goal is to retrain and educate permanently impaired employees ¹ so that they can attain "remunerative employability." ² Id. "Reemployment benefits" available under section .041 include on-the-job training, vocational training, academic training, and self-employment. AS 23.30.041(i). Through the rehabilitation process established by section .041, a person suffering from a "total" disability can gain the skills and education necessary to allow him or her to reenter the job market and attain "remunerative employability." As this analysis makes clear, a claim for PTD benefits is not incompatible with a request for reemployment benefits. The Board therefore erred in holding that Meek could not claim PTD benefits after requesting reemployment benefits. ³

2. The presumption of compensability applies to Meek's claim.

AS 23.30.120(a)(1) ⁴ establishes a presumption of compensability which places the burden of producing evidence on the employer. Sokolowski v. Golden Lion Hotel, 813 P.2d 286, 292 (Alaska 1991). Unocal argues that AS 23.30.120(a)(1) only creates a presumption that an injury is work-related, and does not apply to an employee's claim that his or her disability "fits within a particular category, such as PTD." However, "[i]t is well established that the presumption [of compensability] goes far beyond the issue of whether an injury is work-related." Cluff v. Nana-Marriott, 892 P.2d 164, 170 n. 5 (Alaska 1995). We have held that "the text of AS 23.30.120(a)(1) indicates that the presumption of compensability is applicable to any claim for compensation under the workers' compensation statute." Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991) (emphasis added). In Wien Air Alaska v. Kramer, 807 P.2d 471, 474 (Alaska 1991), we applied the presumption of compensability to a temporary total disability claim. We now hold that the "pro-worker" presumption in AS 23.30.120(a)(1), Nana-Marriott, 892 P.2d at 170, also applies to PTD claims. ⁵

On remand, the Board should apply the presumption of compensability to Meek's claim. Unocal may rebut the presumption with substantial evidence that Meek is not permanently totally disabled. ⁶ See Olson, 818 P.2d at 672. If Unocal produces such substantial evidence, the presumption will "drop out," and Meek will then have the burden of proving all elements of his PTD claim. ⁷ Burgess Const. Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981).

3. Meek may receive PTD benefits while participating in the

reemployment plan.

Unocal argues that once Meek agreed to...