2009-098. Bradford T. Wilson Appellant vs. Eastside Carpet Co. and AIG Claim Services Appellees.

• Case Date: February 02, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-098. Bradford T. Wilson Appellant vs. Eastside Carpet Co. and AIG Claim Services Appellees Alaska Workers' Compensation Appeals CommissionBradford T. Wilson, Appellant, vs. Eastside Carpet Co. and AIG Claim Services, Appellees.Decision No. 098 February 2, 2009AWCAC Appeal No. 08-013 AWCB Decision No. 08-0043 AWCB Case No. 200709372Memorandum Decision and Order Motion to Certify Appeal to the Supreme Court from Alaska Workers' Compensation Board Decision No. 08-0043, issued at Anchorage, Alaska, on March 5, 2008, by southcentral panel members Janel Wright, Chair, Patricia Vollendorf, Member for Labor, and Janet Waldron, Member for Industry. Appearances: William J. Soule, Esq., for appellant, Bradford T. Wilson.(fn1) Colby Smith, Griffin and Smith, for appellees Eastside Carpet Co. and AIG Claim Services. Commission proceedings: Appeal filed April 3, 2008. Appellant's request for extension of time to file opening brief granted June 19, 2008. Motion for Order Certifying Appeal to the Alaska Supreme Court filed June 10, 2008. Order denying appellant's motion to certify appeal to the Supreme Court issued July 16, 2008.(fn2)Appeals Commissioners: Philip Ulmer, Kristin Knudsen, David Richards.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. Appellant filed a motion on June 10, 2008, asking that the commission issue an order certifying this appeal to the Alaska Supreme Court without action by the commission because his appeal is based on a challenge to the constitutionality of AS 23.30.220(a)(4) as applied to him. Appellant argues that the commission does not have jurisdiction to rule on the constitutionality of a statute, that it cannot decide his appeal and that it would be more efficient and less costly if he were not required to brief an appeal twice. Appellees did not file a timely response to the motion. 1. Introduction. The factual summary is drawn from the board's decision. Appellant filed a claim for a compensation rate adjustment based on the disparity between his $30 per hour wage, received when he was injured, and his "earnings at the time of injury" on which his compensation rate was based. Prior to his employment with the employer-appellee, appellant was self-employed. He argued that the compensation rate calculated under AS 23.30.220(a)(4) did not accurately predict his loss of earnings during his disability. Appellant further argued to the board that AS 23.30.220 was tainted with corruption and was unfair. He asserted that a prior statute, based on the "13 week rule," would have provided him a fair compensation rate. The board concluded that the adjuster had properly applied AS 23.30.220(a)(4), using the annual earnings of appellant's business as the basis for the calculation. The board's decision did not address whether self-employment profits are a proper basis for determining an employee's wages under AS 23.30.220(a)(4), instead of requiring application of AS 23.30.220(a)(5) in light of 8 Alaska Admin. Code 45.220(b). Appellant had not challenged the calculation of his self-employment earnings, and the board's decision contains no discussion of the evidentiary basis of the calculation. The appellant raised these points on appeal:

A. The board's decision and AS 23.30.220, as applied to the appellant, violate the equal protection clause of the Alaska Constitution because

1. The statute treats similarly situated workers differently and results in substantially different compensation rates for similarly situated workers;

2. The statute fails to accurately predict an injured workers' loss of earning capacity;

3. No alternative is found in the statute to accurately predict lost earnings and, consequently, results

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