2010-138. Wasser and Winters Company Inc. and Alaska National Insurance Co. Appellants vs. Scott E. Linke Appellee.

• Case Date: September 07, 2010
• Court: Alaska

Alaska Workers Compensation Decisions 2010. Workers' Compensation Appeals Commission 2010-138. Wasser and Winters Company Inc. and Alaska National Insurance Co. Appellants vs. Scott E. Linke Appellee Alaska Workers' Compensation Appeals CommissionWasser and Winters Company, Inc. and Alaska National Insurance Co., Appellants, vs. Scott E. Linke, Appellee.Decision No. 138 September 7, 2010AWCAC Appeal No. 09-033 AWCB Decision No. 09-0202 AWCB Case No. 200507724Final Decision Final decision on appeal from Alaska Workers' Compensation Board Decision No. 09-0202, issued at Anchorage on December 23, 2009, by southcentral panel members Judith DeMarsh, Chair, Daniel Repasky, Member for Labor, David Kester, Member for Industry. Appearances: Robert J. McLaughlin, Kram, Johnson, Wooster and McLaughlin, PS, for appellants, Wasser and Winters Company, Inc. and Alaska National Insurance Co.; Michael J. Patterson, Law Office of Michael J. Patterson, for appellee, Scott E. Linke. Commission proceedings: Appeal filed December 31, 2009; Order on Motion for Stay entered January 13, 2010; briefing completed June 29, 2010; oral argument presented August 10, 2010. Commissioners: David Richards,Stephen T. Hagedorn, Laurence Keyes, Chair.By: Laurence Keyes, Chair. Appellants, Wasser and Winters Company, Inc. and Alaska National Insurance Co. (W and W), appeal the Alaska Workers' Compensation Board's (board) decision(fn1) awarding appellee, Scott E. Linke (Linke), a truck driver at W and W's Icy Bay logging operation, an increase in his compensation rate for a work-related injury he suffered on May 24, 2005.(fn2) The adjustment was the result of a recalculation of Linke's spendable weekly wage as an hourly worker under AS 23.30.220(a)(4)(A), instead of a calculation under .220(a)(4)(B) or .220(a)(6).(fn3) As shown in the margin, subparagraph .220(a)(4)(B) provides a formula for determining an employee's spendable weekly wage under the specific circumstances described in that subparagraph; subsection .220(a)(6) provides a formula for determining an exclusively seasonal employee's spendable weekly wage. The commission concludes that Linke's compensation rate should have been computed by calculating his spendable weekly wage pursuant to the provisions of AS 23.30.220(a)(4)(B), not .220(a)(4)(A). For the reasons which follow, we vacate the board's order, only insofar as it relates to the compensation rate issue, and remand this matter to the board for recalculation of Linke's spendable weekly wage and adjustment of his compensation rate under AS 23.30.220(a)(4)(B). The commission does not retain jurisdiction. 1. Factual background and proceedings. By 1993, Linke was working as a truck driver.(fn4) He became a member of the Teamsters Union in 2000. Linke was dispatched twice in 2002, seven times in 2003, and twice in 2004 for union work.(fn5) He drove for Hos Brothers from June 2004 to September 2004 and worked a significant number of hours for Scarsella Brothers, Inc. in 2004 and 2005.(fn6) Linke's 2004 combined earnings from Hos Brothers and Scarsella Brothers totaled $32,887.64.(fn7) His 2005 earnings from Scarsella Brothers totaled $11,578.81, of which, $2,744.62 was earned between March 5, 2005, and March 19, 2005.(fn8) Linke went to work for W and W starting April 5, 2005,(fn9) and drove for W and W until he was injured on May 24, 2005.(fn10) In that period of time, he earned $15,228.50.(fn11) When he took the job, Linke was in good standing with the union and would have been allowed to go back to the union for work if he discontinued driving a truck for W and W.(fn12) There was some dispute between the parties whether Linke's employment with W and W was year-round or seasonal. Linke believed it was year-round. However, two other W and W employees at Icy Bay, Glen Hammer, the shop foreman, and Mike Waxler, the truck boss, both testified that it was seasonal.(fn13) W and W accepted Linke's claim and initially paid him temporary total disability (TTD) benefits at the maximum weekly rate of $848, reduced to $820 for a Washington state cost-of-living adjustment (COLA).(fn14) Thereafter, the adjuster decided that he was a seasonal worker, reduced his weekly compensation rate significantly,(fn15) and also claimed an overpayment in the amount of $12,422.84.(fn16) W and W ceased paying Linke TTD benefits on October 25, 2005.(fn17) As of the date of the board's hearing, June 17-18, 2009, Linke was not medically stable,(fn18) which, other considerations notwithstanding, would entitle him to ongoing TTD benefits under AS 23.30.185.(fn19) The board concluded that Linke was not a seasonal worker and ordered W and W to pay him compensation using a spendable weekly wage calculated under AS 23.30.220(a)(4)(A).(fn20) 2. Standard of review. "The board's findings of fact shall be upheld by the commission if supported by substantial evidence in light of the whole record."(fn21) "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."(fn22) "The question whether the quantum of evidence is substantial enough to support a conclusion in the contemplation of a reasonable mind is a question of law"(fn23) and therefore independently reviewed by the commission.(fn24) 3. Discussion. The issues presented in this appeal are whether there is...