2008-078. Municipality of Anchorage Appellant vs. Raymond P. Faust Appellee.

Case DateMay 22, 2008
CourtAlaska
Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-078. Municipality of Anchorage Appellant vs. Raymond P. Faust Appellee Alaska Workers' Compensation Appeals Commission Alaska Workers' Compensation Appeals Commission Municipality of Anchorage, Appellant, vs. Raymond P. Faust, Appellee.Decision No. 078 May 22, 2008AWCAC Appeal No. 07-028 AWCB Dec. No. 07-0156 AWC Case No. 200321800Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 07-0156, final decision and order issued June 18, 2007 by southcentral panel members William Walters, Chairman, Patricia A. Vollendorf, Member for Labor, and Janet L. Waldron, Member for Industry. Appearances: Nora Barlow, Delisio, Moran, Geraghty and Zobel, for appellant Municipality of Anchorage. William J. Soule, Esq., for appellee Raymond P. Faust. Commission proceedings: Hearing on appellant's motion for stay of board order pending appeal held August 8, 2007. Stay granted by commission order September 7, 2007; reconsideration denied October 17, 2007. Hearing on appellee's motion to require recusal of the chair held on March 4, 2008, denied by bench order delivered telephonically on March 5, 2008.(fn1) Oral argument on appeal presented March 6, 2008.Commissioners: Jim Robison,Stephen T. Hagedorn,Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. This case originated from the reemployment benefits administrator's denial of an eligibility evaluation to Raymond Faust, who was injured in 2003. The appellant asserts the board erred in reversing the administrator's denial and ordering the administrator to assign a qualified provider to perform an eligibility evaluation, on the basis of retrospective application of a 2005 amendment to AS 23.30.041(c).(fn2) The appellee disagrees; he also contends the board's decision is supportable because remand is required because the administrator failed to consider the appellee's continued employment as an extraordinary circumstance preventing him from making a timely request. The parties' assertions require the appeals commission to decide if the November 2005 amendment to AS 23.30.041(c) applies retrospectively to requests for eligibility evaluation arising from injuries before the effective date of the amendment, notwithstanding AS 01.10.090.(fn3) The commission concludes that the 2005 amendment is substantive, not merely procedural. Therefore, the board erred in directing the administrator to apply the amended version of AS 23.30.041(c) retrospectively. Because remand to the administrator is not required, the board's decision is reversed. 1. Factual background. Raymond Faust was hired as a police recruit by the Municipality of Anchorage in May 2002. During his second month of training at the police academy, he injured his right shoulder. His physician treated the shoulder injury conservatively, but for other reasons Faust was unable to complete the academy. He was assigned to a light duty position. Faust returned to the full duties of his position as a police officer recruit in April 2003, and later re-entered the academy. In December 2003, while still in training, Faust again re-injured his shoulder and he was assigned to light duty. This time, surgery was needed to repair the shoulder; Faust had the surgery in August 2004. He returned to light duty work for the Municipality in October 2004. Faust remained on a light duty assignment for the remainder of his employment by the Municipality. Faust received a permanent partial impairment rating for his December 2003 shoulder injury. The Municipality paid Faust the permanent partial disability compensation based on the rating in a lump sum ($44,250.00) in October 2005. Faust also applied for and received a "medical retirement"(fn4) from the Municipality. Faust has not worked for the Municipality since December 1, 2005, when he began receiving occupational disability benefits. 2. Procedural history. Faust filed a request for an eligibility evaluation for reemployment benefits on December 5, 2006, almost three years after he gave notice of his injury, and more than a year after retiring and accepting occupational disability payments. The reemployment benefits administrator denied his request because it was filed too late, more than 90 days after he knew, or should have known, that he might not be able to return to work as a police officer. Faust appealed the denial to the board in a claim filed December 26, 2006. a. Proceedings before the board. The board heard Faust's appeal on May 30, 2007. Faust testified by deposition and before the board. He testified he received an information booklet from the board in May 2004, with copies of information regarding his workers' compensation injuries.(fn5) He recalled going to the Workers' Compensation Division office, where he "talked to Janet upstairs about my injury and wanted to make sure that I had all my paper work correctly done and - and some issues with my injury because I wasn't exactly sure what all diff - things I needed to do so I know I contacted her."(fn6) He testified he continued to work for the Municipality, receiving his pay as a police recruit, on light duty, from October 2004 until November 30, 2005.(fn7) On light duty, he worked in the police lab processing film, digital images, and some fingerprint evidence.(fn8) Bonnie Carmen, an adjuster, testified regarding Faust's contacts with the Municipality's adjusters. At the board, Faust argued that the reemployment benefits administrator failed to consider that his continued employment by the Municipality on light duty was an "unusual and extenuating circumstance" that should excuse his late request.(fn9) He argued the adjuster failed to inform him about reemployment benefits, or how to request an eligibility evaluation, and that this prevented him from timely filing a request. He also argued the Municipality should be estopped to contest his request because his continued employment worked to his detriment. Finally, he argued that the administrator improperly considered when he "should have known" he would not be able to return to work. Faust did not argue that his request for an eligibility evaluation was governed by the 2005 amended version of AS 23.30.041(c). The Municipality argued that Faust was informed of the benefits through a brochure titled "Workers' Compensation and You" mailed to him. The "discovery rule," the Municipality argued, has been upheld by the courts, so the administrator's use of it was not an error. The burden is on the employee to show unusual and extenuating circumstances; if the employee failed to give the administrator information regarding his continued employment, the administrator did not err by failing to consider it. The Municipality also argued that even if Faust's continued employment were considered an extraordinary and unusual circumstance, it was not sufficient to excuse a delay of a year after his employment ended and he began receiving occupational disability benefits. b. The board's decision. The board reviewed the standard it applies to appeals from reemployment benefits administrator decisions.(fn10) It then found that the administrator had failed to consider evidence in her determination that Faust had worked in modified employment until December 1, 2005.(fn11) Because continued employment is an extenuating circumstance under 8 AAC 45.520(b), the board concluded the administrator's failure to consider Faust's employment was an abuse of discretion.(fn12) The board reversed the administrator's denial and remanded the request to the administrator.(fn13) The board instructed the administrator that on remand she was to assign a qualified provider to perform the eligibility evaluation rather than determine if Faust's employment in light duty was an unusual and extraordinary circumstance excusing his late request.(fn14) Relying on the southeast panel's decision in Carrell v. Pacific Log and Lumber, LTD.,(fn15) and the Alaska Supreme Court's decision in Pan Alaska Trucking, Inc. v. Crouch,(fn16) the board held that the 2005 amendment to AS 23.30.041(c) was procedural because it "made the road easier, by shifting the obligation to order the eligibility evaluation to the [administrator], a mandate required once the employee had been unable to return to work for a 90-day period."(fn17) The board panel agreed with the southeast panel's conclusion in Dan L. Carrell that the eligibility evaluation referral provision of amended AS 23.30.041(c) was to be applied retrospectively as a merely procedural change; therefore, after November 7, 2005 "if an injured employee is unable to return to employment after 90 consecutive days" the administrator must order an eligibility evaluation, regardless of date of injury.(fn18) The Municipality appealed. c. Arguments before the commission. The appellant argues that the board's analysis is flawed because the board did not consider the amendment as a whole, nor whether the amendment affected the substantive rights of more parties than the employee before it. The appellant, like other employers, has a new obligation imposed on it by the amendment, as do employees, who formerly could avoid an evaluation by simply not requesting one. The appellant also argues that the board violated the due process rights of the parties by deciding an issue not raised by the parties in the hearing, without notice and opportunity to...

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