Unisea, Inc. v. De Lopez, 020819 AKSC, S-16851

Docket Nº:S-16851, S-16861
Opinion Judge:WINFREE, JUSTICE.
Party Name:UNISEA, INC. and ALASKA NATIONAL INSURANCE COMPANY, Appellants and Cross-Appellees, v. SOFIA MORALES de LOPEZ, Appellee and Cross-Appellant.
Attorney: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.
Judge Panel:Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
Case Date:February 08, 2019
Court:Supreme Court of Alaska
 
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UNISEA, INC. and ALASKA NATIONAL INSURANCE COMPANY, Appellants and Cross-Appellees,

v.

SOFIA MORALES de LOPEZ, Appellee and Cross-Appellant.

Nos. S-16851, S-16861

Supreme Court of Alaska

February 8, 2019

Appeal from the Alaska Workers' Compensation Appeals Commission No. 16-011.

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.

OPINION

WINFREE, JUSTICE.

I. INTRODUCTION

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 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. The worker asked the Alaska Workers' Compensation Board to order a penalty for late payment of impairment-related compensation benefits, but the Board agreed with 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 rating.

The employer appeals. For the reasons that follow, we affirm the Commission's decision.

II. FACTS AND PROCEEDINGS

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 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 time of injury."1 A worker's TTD eligibility ends at the date of medical stability.2 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.3

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 intended to provide the injured worker training for alternative remunerative employment.[5] If the injured worker is unable to return to the worker's prior employment for 90 consecutive days, the Reemployment Benefits Administrator6 is required to evaluate whether the worker is eligible for reemployment benefits.[7] Eligibility requires 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 based on the worker's permanent partial impairment (PPI) rating; the maximum job dislocation benefit is $ 13, 500.11 Reemployment benefits, in contrast, include formulation of and payment for an approved reemployment plan12 along with stipend benefits to the 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) provides: 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. The percentage of permanent impairment of the whole person 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 compensation may not be discounted for any present value considerations.

Alaska Statute 23.3 0.190(b) requires using a specific medical 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 2008.15 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 depending on the jurisdiction. Among the numerous synonyms for MMI are . . . medical stability . . . .17

The Guides's MMI definition differs from AS 23.3 0.3 95's definition of medical stability because the MMI definition centers on a condition's stabilization, not on whether further medical care would lead to objectively measurable further improvement from "the effects 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 Guides.

A rating of an organ or body system under the Guides...

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