Wescott v. State, Department of Labor

• Decision Date: 18 February 2000
• Docket Number: No. S-8688.,S-8688.
• Citation: 996 P.2d 723
• Parties: Anthony J. WESCOTT, Appellant, v. STATE of Alaska, DEPARTMENT OF LABOR, Appellee.
• Court: Alaska Supreme Court

996 P.2d 723

Anthony J. WESCOTT, Appellant, v. STATE of Alaska, DEPARTMENT OF LABOR, Appellee.

No. S-8688.

Supreme Court of Alaska.

February 18, 2000.

Randall E. Farleigh, Farleigh & Shamburek, Anchorage, for Appellant.

Toby N. Steinberger, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

OPINION

BRYNER, Justice.

I. INTRODUCTION

Anthony Wescott quit his roustabout job at Alaska Petroleum Contractors, Inc., (APC) because he believed that APC was unwilling to accommodate his disability, bilateral club feet. He applied for unemployment pay, but the Department of Labor denied him waiting-week benefits, finding that he had quit suitable work without good cause. Under AS 23.20.385(b), when the department decides questions of work suitability it must consider not just the claimant's physical ability to perform the work but also the degree of risk that the work would pose to the claimant's health. In deciding that Wescott's work was suitable, the department emphasized a medical release, which indicated that he was physically capable of doing roustabout work; but the department overlooked other medical evidence suggesting that the "wear and tear" of such work might pose a risk to Wescott's club feet. Because the department did not adequately consider risk to Wescott's health as a factor in determining that his work was suitable, we remand for reconsideration.

II. FACTS AND PROCEEDINGS

Wescott began working for APC in June 1996, starting as a well service technician and eventually moving into a drilling roustabout position. As a drilling roustabout, Wescott had many duties, including cleaning tanks, helping in drilling rig moves from one drill site to another, and assisting in rigging trees on-line. Despite being born with club feet, Wescott had worked as a roustabout in Prudhoe Bay for over ten years.

On November 28, 1996, Wescott took medical leave to have surgery on one of his feet — one in a series of operations he had throughout his lifetime. Soon after Wescott took leave, and before his surgery, orthopedic surgeon Dr. Ron Brockman examined him at the request of the Alaska Division of Vocational Rehabilitation. In a report dated December 10, 1996, Dr. Brockman predicted, "This gentleman is going to have difficult problems with his feet. I recommend that he tr[y] to get into an area of employment that is less physically demanding [than that of a roustabout] and which requires less standing and walking time." Dr. Brockman also commented that Wescott would "certainly be capable of performing the duties of a heavyequipment operator."

After the operation, Dr. Bret Mason, Wescott's treating physician, made a similar recommendation. Although Dr. Mason reported on January 16, 1997, that Wescott was "healing nicely" and would be able to return to work in three or four weeks, the doctor also warned, "In my opinion, the patient would benefit by pursuing a job opportunity that does not require prolonged standing, prolonged walking, especially on hard surfaces." Noting that Wescott had experience in equipment operation, Dr. Mason recommended that "it would be in his best interest to pursue and develop his aptitude in this area.... With the wear and tear and degenerative condition I found in his left foot, I think this would give him the best chance of good longevity as a part of the work force."

On February 6, Dr. Mason signed a release authorizing Wescott to return to his roustabout job without restriction as of February 28. The next day, February 7, Wescott gave APC a note informing the company of the release and requesting a position "[t]hat is not so demanding on my DISABLED CLUB FEET." He enclosed a resume indicating that he had experience as a heavy-duty equipment operator, and a letter from Dr. Mason explaining the disability (evidently a copy of Dr. Mason's January 16 report).

APC Human Resources Office employees Christopher Boyle and Carolyn Swangler met with Wescott that same day to discuss his request. They offered him the option of returning to his roustabout job while waiting for a less demanding permanent position to open. They also gave Wescott ergonomic assessment forms for five different positions — roustabout, fire watch, well service technician, vac truck operator, and equipment operator — explaining that he needed to complete the forms and return them so that APC could assess whether, given his medical condition, he would be able to perform in these positions.

Wescott opted to return to work as a roustabout the next month. On March 6 — nine weeks after the surgery — he obtained from Dr. Mason another release, which confirmed his ability to return to his roustabout job without restriction. In his nine-week postoperative report Dr. Mason wrote, "The patient feels that he is able to return to his original job position with absolutely no problems. Therefore, today, I am going to release him to return to work full duties, no restrictions." Dr. Mason nonetheless adhered to his earlier view that roustabout work could be detrimental to Wescott's condition; in his report the doctor emphasized that even though Wescott felt that roustabout work was "well within his capabilities" and wanted to return to his old job, "it would be in [Wescott's] best interest to pursue more of a position that did not require standing so long, ambulating on hard or uneven surfaces, etc."

After Wescott met again with Swangler in APC's Anchorage office and gave her the March 6 medical release, Swangler indicated that APC would allow Wescott to return to a drilling roustabout position. But Swangler and Wescott also discussed the availability of less demanding positions. Swangler indicated that various positions were open on a temporary basis but that their availability to Wescott remained uncertain because he had not returned the completed assessment forms. But since the available positions were only temporary, Wescott told Swangler that he would reject them in any event.

Wescott resumed work with APC on March 11 or 12, 1997. Upon his return to Prudhoe Bay, APC certified him to work as a tractor-trailer operator and to handle loaders and forklifts. Soon after his return, however, Wescott heard that one of his supervisors, Rick Nelson, had recently filled four heavyequipment operator positions and that Nelson had no intention of ever giving Wescott such a position. Although Wescott did not confirm this information or ascertain whether the four positions had been filled before his return, he did ask Nelson about the possibility of a job change. According to Wescott, Nelson responded that he "wasn't going to play any favorites."

On April 22, 1997, while in Anchorage between shifts at Prudhoe Bay, Wescott called Swangler to say that he did not know how much longer he could tolerate the pain in his current position and that he feared further damage to his feet. Complaining that Nelson was acting "unprofessionally" in his hiring practices, Wescott requested an immediate transfer. Since Wescott was scheduled to return to work the next day, Swangler suggested that he talk to Russell Pittman, another APC supervisor at Prudhoe Bay, and she tried to arrange a meeting. But Wescott did not pursue this suggestion. Instead, he stayed in Anchorage and submitted his resignation.

After resigning, Wescott applied to the Department of Labor, Division of Employment Security, for unemployment benefits under the Alaska Employment Security Act.¹ The division notified Wescott that under AS 23.20.379 and 8 Alaska Administrative Code (AAC) 85.095 he was disqualified from receiving benefits for his first six weeks of unemployment — "waiting week" benefits — because he had voluntarily left suitable work without good cause. Wescott appealed to the division's appeal tribunal. The tribunal held an evidentiary hearing and affirmed the division's decision. Wescott then appealed to the commissioner of labor, who affirmed the appeal tribunal's decision, adopting its findings. The superior court heard Wescott's next appeal and affirmed the commissioner's ruling. Wescott now appeals the superior court's decision.

III. DISCUSSION

A. Standard of Review

When the superior court acts as an intermediate court of appeal, we independently review the merits of the administrative determination.² Unless the case calls for reliance on agency expertise, we apply the "substitution of judgment" test to review questions of law³ and the "substantial evidence" test to review questions of fact.⁴

B. Overview of Applicable Law

Alaska Statute 23.20.379(a) denies "waiting week credit or benefits" for six weeks if a worker leaves suitable work without good cause:

An insured worker is disqualified for waiting-week credit or benefits for the first week in which the insured worker is unemployed and for the next five weeks of unemployment following that week if the insured worker

(1) left the insured worker's last suitable work voluntarily without good cause....

8 AAC 85.095(a) similarly provides that "[a] disqualification under AS 23.20.379(a) ... remains in effect for six consecutive weeks...."

In discussing this provision, the department's policy manual⁵ construes "suitable work" to mean "the worker's usual occupation or work for which the worker is reasonably fitted by training, experience, and physical condition."⁶ But when a worker suffers from a disability, being physically capable of performing a job does not necessarily mean that the worker has suitable work. Under the policy manual, even though a worker is able to perform certain work, that work may be unsuitable if it has a detrimental effect on the worker's condition: "If accepting work is detrimental to the claimant's health, or if the claimant's health or physical condition prevent[s] the claimant's performing the work, there is no issue [under the waiting-week disqualification] ...