2009-099. 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 2009-099. Bradford T. Wilson Appellant vs. Eastside Carpet Co. and AIG Claim Services Appellees Alaska Workers' Compensation Appeals Commission Bradford T. Wilson, Appellant, vs. Eastside Carpet Co. and AIG Claim Services, Appellees.Decision No. 099February 2, 2009AWCAC Appeal No. 08-013 AWCB Decision No. 08-0043 AWCB Case No. 200709372Final Decision Appeal 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: Bradford T. Wilson, pro se, appellant.(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. Order denying appellant's motion to certify appeal to the Supreme Court issued July 16, 2008.(fn2) Appellees' request for extension of time to file brief partially granted August 18, 2008. Appellees' request for extension of time granted August 28, 2008. Oral argument on appeal presented November 4, 2008.Appeals commissioners: Philip Ulmer, Kristin Knudsen,David Richards.This decision has been edited to conform to technical standards for publication. By: Philip Ulmer, Appeals Commissioner. This is an appeal of the board's denial of a compensation rate adjustment. Wilson sought the compensation rate adjustment because of the disparity between his actual hourly wage when he was injured and his "spendable weekly wage at the time of injury" under AS 23.30.220(a)(4) on which his compensation rate was based. Wilson argues AS 23.30.220, as applied to him, violates the equal protection clause of the Alaska Constitution and is unfair. At the time of his injury, Wilson had a gross weekly income of about $1,200 and earned $30 per hour working for Eastside Carpet. But calculating his "spendable weekly wage" under AS 23.30.220(a)(4), which requires dividing a prior calendar year's worth of the employee's wages by 50, led to a compensation rate based on gross weekly earnings of $894 because Wilson worked only six months in 2006 and was self-employed in 2005. Eastside Carpet and AIG Claim Services [hereafter Eastside Carpet] contend that AS 23.30.220(a)(4) applies because it most closely fits Wilson's earning fact pattern because he was paid hourly at the time of injury. Eastside Carpet argues that Wilson's spendable weekly wage was properly calculated by dividing his 2005 business profits by 50. Moreover, Eastside Carpet claims that Wilson stipulated that the self-employment earnings could be used to determine a gross weekly wage, waiving any argument that his self-employment profits did not approximate wages. The parties' contentions require the commission to decide whether substantial evidence supports a finding that AS 23.30.220(a)(4) most closely fits Wilson's earnings fact pattern and whether the board correctly applied AS 23.30.220 to the facts established. The commission concludes that the board erred in assuming Wilson's self-employment profits were equivalent to employee wages without substantial evidence in the record about the nature of Wilson's business. The commission believes that applying AS 23.30.220(a)(5), which requires determining the usual wage for similar services when performed by paid employees, would more closely approximate the value of Wilson's services rendered to his subcontracting business in 2005. Additionally, the commission concludes Wilson merely stipulated that if his 2005 business profits were used, the calculation was done correctly. This stipulation does not waive the argument that his self-employment profits were not the proper basis for his gross weekly earnings calculation. The commission vacates the board's decision and remands the case to the board for rehearing to calculate Wilson's spendable weekly wage under AS 23.30.220(a)(5). 1. Factual background and board proceedings. Wilson injured his back lifting and moving carpet and resetting a toilet while working at jobs for Eastside Carpet in June 2007.(fn3) He began receiving temporary total disability payments in July 2007.(fn4) On August 2, 2007, Wilson filed a claim requesting a compensation rate adjustment. Wilson testified that "I think [my compensation rate is] not fair. . . . I think that I was making a lot more money on a weekly basis for my entire employment with Eastside Carpet."(fn5) Wilson was paid $30 per hour at Eastside Carpet and consistently earned about $1,200 per week, excluding overtime hours.(fn6) Wilson began working at Eastside Carpet on July 6, 2006, after spending the first six months of that year out of the labor market.(fn7) Wilson also supplied information about his earnings in 2005. In that year, he ran his own business, BDW Enterprises, Inc. According to Wilson's accountant and his tax records, in 2005, the corporation had a gross income of $95,304, less $50,617 in wages paid to other employees and other expenses, leaving $44,687 available to Wilson.(fn8) Wilson paid himself $12,000(fn9) and the remainder of the $44,687 was corporate profits of $32,687.(fn10) Wilson testified that he wound down his subcontracting business in late 2005 and voluntarily withdrew from the labor market for nine months, including the...