2009-116. Dan Reeder Appellant vs. Municipality of Anchorage Appellee.

• Case Date: September 28, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-116. Dan Reeder Appellant vs. Municipality of Anchorage Appellee Alaska Workers' Compensation Appeals Commission Dan Reeder, Appellant, vs. Municipality of Anchorage, Appellee.Decision No. 116 September 28, 2009AWCAC Appeal No. 09-003 AWCB Dec. No. 08-0259 Case Nos. 200421190, 200316604, 200316605, 199613691Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 08-0259, issued at Anchorage, Alaska, on December 31, 2008, by southcentral panel members Darryl Jacquot, Chair, Don Gray, Member for Industry, and Tony Hanson, Member for Labor. Appearances: Charles W. Coe, Esq., for appellant Dan Reeder. Shelby L. Nuenke-Davison, Davison and Davison, Inc., for appellee Municipality of Anchorage. Commission proceedings: Appeal filed January 30, 2009. Briefing completed June 15, 2009. Oral argument presented July 23, 2009.Commissioners: David Richards, Philip Ulmer,Kristin Knudsen.By: Kristin Knudsen. Appellant asks the commission to reverse the board's decision that it had no jurisdiction to order his employer to cease withholding overpaid injury leave from his paycheck. The injury leave overpayment was discovered following an audit after appellant settled his workers' compensation claims. Appellant asserts that the workers' compensation settlement agreement was a complete settlement of all claims, including claims for repayment of injury leave benefits he became entitled to because of his status as a workers' compensation recipient. The board had jurisdiction to so interpret the agreement and thus, he argues, to enforce the agreement against his employer. Appellee asserts the Memorandum of Agreement entered into with the appellant's union established the method of calculation of injury leave during workers' compensation disability. An audit was conducted and some employees benefitted by the collectively bargained method, and others, including appellant, were found to have been overpaid by their employer. Appellee argues that the board has no jurisdiction to enforce, or stay enforcement of, the Memorandum of Agreement or terms of the appellant's employment. The workers' compensation settlement agreement did not enlarge the appellant's rights in the collective bargaining agreement; the settlement agreement is limited to the workers' compensation claims and it has been fully discharged. Therefore, appellee argues, the board lacks jurisdiction to order it to cease collecting overpaid injury leave. The parties' contentions require the commission to decide if the board could require an employer to cease withholding an overpayment of collectively bargained benefits because they are coordinated with, or triggered by, workers' compensation payments. The commission concludes that the settlement agreement does not give the board such authority and affirms the board's decision. The settlement agreement concerns only claims that could arise under the Workers' Compensation Act; appellant failed to demonstrate that the Municipality waived a claim for repayment of collectively bargained benefits in the settlement agreement. However, the commission holds that the board had jurisdiction to direct appellee to provide an accounting of the compensation payments made to him, so that he may determine if the withheld amount is correct. 1. Factual background and board proceedings. Dan Reeder is a police officer employed by the Municipality of Anchorage and a member of a labor union, the Anchorage Police Department Employees Association (APDEA). Reeder injured his back in 1996 when his patrol car was struck by an uninsured motorist. The Municipality paid compensation during periods of temporary disability in 1996 and 1997, as well as medical benefits and permanent partial impairment. Reeder filed a claim against his own uninsured motorist insurance (UIM) carrier and the Municipality asserted rights to any recovery from the UIM policy under AS 23.30.015. Reeder disputed the Municipality's right to the recovery, but, once the UIM carrier paid the claim, in 1998 he tendered the $15,328.00 to the Municipality. During his absence from work, the Municipality also placed Reeder on "injury leave," a benefit negotiated by APDEA. While on injury leave, he received supplemental pay. The Municipality paid Reeder during injury leave to supplement his workers' compensation payments up to a negotiated percentage of base wages. Thus, he received a workers' compensation payment from the adjuster and a supplemental injury leave payment from the Municipality. In 2003 and 2004, Reeder suffered a series of injuries at his work. Again, he was on injury leave during periods he also received workers' compensation. In December 2004, APDEA notified Reeder that the Municipality and APDEA had reached a Memorandum of Agreement regarding calculation of the injury leave amount.(fn1) The message alerted him that the Municipality's payroll supervisor, Toni Prokish, would notify him of deductions from his payroll "reference . . . 2004 Workers Comp benefits."(fn2) In 2006, Reeder filed a workers' compensation claim for additional permanent partial impairment compensation and other benefits.(fn3) A dispute arose between the parties regarding Reeder's claim for repayment of the UIM recovery.(fn4) Reeder asserted the Municipality had no right to the $15,328 under AS 23.30.015 and should repay it with interest; the Municipality asserted a number of defenses, including collateral estoppel, waiver, laches, and the statute of limitations.(fn5) The parties entered into a settlement agreement, or "partial compromise and release agreement" in August 2007.(fn6) The agreement recited, "It is the intent of this agreement to compromise all past non-medical benefits and claims for reimbursement which might be due the employee pursuant to the terms of the Alaska Workers' Compensation Act arising out of the work-related injuries referred to herein."(fn7) The agreement recites the disputes between the parties: return of the UIM recovery, penalties for late payment of medical benefits, an outstanding bill to a physician, and increased permanent partial impairment compensation.(fn8) The heart of the agreement is found in this paragraph:

In order to resolve all past, present or future disputes between the parties with respect to any claim for past nonmedical benefits which might otherwise be due under the Alaska Workers' Compensation Act, including but not limited to claims for a past compensation rate adjustment or past compensation for disability, regardless of whether the same be temporary total, temporary partial, permanent partial impairment, permanent total, penalties, interest, costs, vocational reemployment benefits or third-party recovery, upon approval of this agreement by the Alaska Workers Compensation Board, the employer will pay the employee the sum of $41,750.00 (FORTY ONE THOUSAND SEVEN HUNDRED FIFTY AND NO/100 DOLLARS). In addition, the employer will pay Dr. Kiester's outstanding medical bills.(fn9)

In the release portion of the settlement, the parties stated

[t]he parties agree that this settlement is the compromise of their disputed claims referred to above, and hereby agree and acknowledge that any of their claims against each other known or unknown for the injuries described herein or past non-medical losses, expenses or claims of any nature whatsoever, are forever abandoned and any right to assert such claims for any past non-medical benefits based on the injuries this described herein, are hereby forever waived and barred. It is expressly agreed that no claims for past the non-medical benefits arising out of the injuries described herein are excepted or reserved from the terms of this release.(fn10)

The agreement was approved by the board on August 24, 2007.(fn11) The parties agree that appellee timely paid the full amount required by the settlement. In January 2008, Toni Prockish completed an audit of Reeder's pay. She established that he had been overpaid $8,437.95.(fn12) She met with Reeder to inform him of the overpayment and decide how the amount should be withheld.(fn13) Reeder took the position that the Municipality was barred from seeking reimbursement of overpaid injury leave by the settlement agreement approved August 24, 2007.(fn14) The Municipality took the position that reimbursement of supplemental pay "would have no relationship to the Workers' Compensation Claim or the Compromise and Release."(fn15) On June 13, 2008, Reeder filed a petition "seeking the employer to uphold the Partial Compromise and Release approved by the Board."(fn16) Reeder's petition was heard on October 7, 2008.(fn17) Reeder argued that the compromise and release agreement affects what his pay is and what the overpayment would be because it impacts his ability to argue that his compensation was miscalculated.(fn18) He argued the existence of an overpayment was an undisclosed situation, that should have been resolved by, or discovered by, the Municipality, but which Reeder thought was resolved in the settlement.(fn19) Reeder argued the Municipality waived any claim to reimbursement in the settlement.(fn20) Reeder argued that the board had the power to [interpret and] enforce the agreement, and thus to order, "if there is anything that's workers' comp. related, they should not have the right to go back and collect it."(fn21) Reeder argued, "Everything that is controlled by comp. should be kept by...