GLORIA J. ALDERDICE v. STATE OF ALASKA

ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

GLORIA J. ALDERDICE,
Employee,
Petitioner,
v.
STATE OF ALASKA,
(Self-Insured)
Employer,
Respondant. / )
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DECISION AND ORDER
AWCB Case No. 200015166
AWCB Decision No. 01-0248
Filed with AWCB Anchorage, Alaska
December 12, 2001

On November 21, 2001, in Anchorage, Alaska, the Alaska Workers’ Compensation Board (“Board”) heard the employee’s appeal of the Reemployment Benefit Administrator’s (“RBA”) decision, which found her ineligible for reemployment benefits. Attorney Chancy Croft represented the employee. Assistant Attorney General Patricia Shake represented the employer. The record closed at the conclusion of the hearing.

ISSUE

Did the RBA abuse his discretion by finding the employee ineligible for reemployment benefits?

SUMMARY OF THE EVIDENCE

A summary of the facts in this matter are detailed in a previous Decision and Order issued by the Board, Gloria J. Alderdice v. State of Alaska, AWCB Decision No. 01-0060 (April 4, 2001). The pertinent facts are restated here.

On August 14, 2000, the employee filed a report of injury claiming she injured her lower back and right hip while working as a custodial worker at the Anchorage Pioneer Home for the employer. The employee went to Charles Shannon, M.D., on August 22, 2000 for medical care. An MRI scan, taken on August 28, 2000, of the employee’s lower spine showed severe spinal stenosis at L3-4 and L4-5, and severe foraminal stenosis on the left at L3-4. Dr. Shannon referred the employee to Thomas Vasileff, M.D., an orthopedist.

Dr. Vasileff saw the employee on September 19, 2000. In his report, Dr. Vasileff determined that the employee has severe spinal stenosis at two levels, L3-4 and L4-5, with some lateral recess stenosis. He recommended aggressive physical therapy for a month and continued use of anti-inflammatories. He also suggested the employee seek another type of employment due to her severe spinal stenosis. On October 24, 2000 after a month of physical therapy, the employee reported continued low back pain. Due to the employee’s unchanged condition, Dr. Vasileff referred her to J. Michael James, M.D., of Rehabilitation Medicine Associates.

The employee saw Dr. James on November 8, 2000. Dr. James reported the employee was suffering from severe spinal stenosis at L3-4 and L4-5, and right side radiculopathy. He recommended the employee retrain to light duty because she could not return to work as a custodian.

The employee requested an eligibility evaluation for reemployment benefits on September 21, 2000. The employee later provided the Workers’ Compensation Technician with a copy of Dr. Vasileff’s medical report on October 17, 2000. On November 17, 2000, the Worker’s Compensation Technician assigned rehabilitation specialist Linda Lau to complete the evaluation.

Ms. Lau provided job descriptions for hospital cleaner and radio dispatcher to Dr. James based on her previous work history. The physical demands for radio dispatcher require sedentary work, while the physical demands for hospital cleaner require medium work. Dr. James reviewed the job descriptions for hospital cleaner and radio dispatcher and approved the job of radio dispatcher for the employee, but noted that the employee “will need to sit/stand @ her discretion.” (Dr. James’ 12/29/00 Physician Response).

The employer indicated that no permanent alternative or light work as a hospital cleaner was available for the employee. Ms. Lau completed her report on January 5, 2001 and recommended that the employee be found ineligible for reemployment benefits based on her prior work experience from 1982 to 1987 as a radio dispatch supervisor for the Anchorage International Airport.

Soon after, on January 31, 2001, the RBA determined that the employee was ineligible for reemployment benefits. The RBA found that 1) the employee’s attending physician, Dr. James, approved the job of radio dispatcher as within the employee’s physical capacities, 2) the employee had previously worked long enough as a radio dispatcher to meet the specific vocational preparation level as found in the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCODDOT), and 3) the market survey information showed that radio dispatcher jobs existed with reasonable job openings. The employee appealed the RBA’s decision and the Board heard the appeal on March 6, 2001.

At that hearing, the employee provided testimony in a deposition on February 28, 2001 that she never worked as a radio dispatch supervisor as described in the eligibility evaluation report, but instead performed clerical job duties. The employer consulted with Terry Tafs, the current radio dispatch supervisor for Alaska’s Department of Transportation. According to the employer, Mr. Tafs confirmed that ten years ago the radio dispatch supervisor position was primarily clerical in its job duties and that the position today now requires experience in sending, receiving, and evaluating information about public safety, police and fire activity, as well as possessing supervisory skills.

Based on the new evidence, the employee argued that the RBA’s decision was incorrect and the employee’s eligibility evaluation on which the RBA based his decision was also incorrect. The parties stipulated to the fact that Ms. Alderdice had not worked long enough at any dispatching job within the 10 years of injury to meet the specific vocational preparation of radio dispatcher. The parties also stipulated to have the Board vacate the RBA decision of January 31, 2001 and remand the matter to the RBA for further action.

The Board remanded the matter back to the RBA to re-determine the employee’s eligibility for reemployment benefits. Dr. James reviewed the job description of a clerk-typist. He concluded that the employee would have a permanent impairment, but was capable of performing the job of clerk-typist. However, he also noted that the employee would have “difficulty [with] prolonged sitting.” (Dr. James’ 4/25/01 Physician Response). The rehabilitation specialist wrote, “the attending physician indicated that Ms. Alderdice cannot return to her job of injury, but can return to work as a clerk-typist.” (Ms. Lau’s 7/30/01 Eligibility Evaluation Addendum Report).

The rehabilitation specialist performed a labor market survey and found that clerk-typist jobs existed within the labor market and that reasonable vacancies existed. Based on Dr. James’ Physician Response and the labor market survey, the RBA found the employee ineligible for reemployment benefits. (RBA’s 8/23/01 Letter to the Employee). The RBA wrote:

I have determined that you are not eligible for reemployment benefits for the following reason(s):

[x] The evaluating rehabilitation specialist’s recommendations per the addendum report received in this office on July 31, 2001. In this report, Dr. James approved as within your predicted physical capacities your return to the job of clerk-typist. According to the report, the job description for clerk typist represented the tasks and duties you did from 1982-87 while employed at Anchorage Airport. A brief review of labor market information shows that this job is found to exist in the labor [market] and that reasonable vacancies occur for this job. For all these reasons, you are found not eligible for benefits.

(RBA’s 8/23/01 Letter to the Employee).

The employee now appeals that determination. At the hearing, the parties stipulated that the employee has not been offered modified work at the Pioneer’s Home because modified work does not exist there. Both parties noted that the employee has applied for several jobs with the employer, and has not received any offers. The employer argued that this was proof that the employee could work, while the employee argued that this was proof that no jobs existed for the employee.

The employee argued that Dr. James modified the SCODDOT job description of clerk-typist by indicating that the employee would have difficulty with prolonged sitting. At the hearing, the employee suggested that the Board remand this matter to the RBA to allow the RBA to perform a labor market survey to determine if clerk-typist jobs exist in the labor market where the employee can sit and stand at her discretion.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. SHALL THE BOARD AFFIRM THE DECISION OF THE RBA THAT FOUND THE EMPLOYEE INELIGIBLE FOR REEMPLOYMENT BENEFITS?

A. Standard of Review

The employee argued that the RBA erred in finding her ineligible for reemployment benefits. AS 23.30.041(o) states, “the board shall uphold the decision of the [RBA] unless evidence is submitted supporting an allegation of abuse of discretion on the part of the [RBA].” In Sheehan v. University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985), the Alaska Supreme Court stated, “This court has explained abuse of discretion as issuing a decision which is arbitrary, capricious, manifestly unreasonable, or stems from an improper motive.” The Court has also stated that abuse of discretion exists only when the Court is "left with the definite and firm conviction on the whole record that the trial judge has made a mistake." Brown v. State, 563 P.2d 275, 279 (Alaska 1977). An agency's failure to properly apply the controlling law may also be considered an abuse of discretion. We have held that misapplication of the law is an abuse of discretion. Binder v. Fairbanks Historical Preservation Foundation, AWCB Decision No. 91-0392 (December 11, 1991).

In the Administrative Procedure Act, the legislature has provided another definition to be used by the courts in considering appeals of administrative agency decisions. It contains terms similar to those reproduced above, but also expressly includes reference to a substantial evidence standard:

Abuse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence . . . . If it is claimed that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by (1) the weight of the evidence; or (2) substantial evidence in the light of the whole record. AS 44.62.570.

On appeal to the Superior Court, our decision reviewing the RBA's determination is subject to reversal under the abuse of discretion standard of AS 44.62.570, incorporating the substantial evidence test. Concern with meeting that standard on appeal leads us to apply a substantial evidence standard in our review of an RBA determination.

Applying a substantial evidence standard, a "[reviewer] may not reweigh the evidence or draw its own inferences from the evidence. If, in light of the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, then the order . . . must be upheld." Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978) (footnotes omitted).

The task of determining whether an abuse of discretion has taken place is aided by our practice of allowing additional evidence into the record at the review hearing. The practice is based on the rationale expressed in several Superior Court opinions addressing that issue on appeal. After allowing the parties to enter their evidence, we review it and the evidence before the RBA to assess whether the RBA's decision was supported by substantial evidence and therefore reasonable. See Yahara v. Construction & Rigging, Inc., 851 P.2d 69 (Alaska 1993). If, in light of all the evidence, we find the RBA's decision is not supported by substantial evidence, we conclude that the RBA abused his or her discretion and remand the matter for reexamination of the evidence and necessary action.

B. Did the RBA Err in Finding the Employee Ineligible for Reemployment Benefits?

The employee argued that this matter should be remanded to the RBA. AS 23.30.041(e) requires the employee be found eligible for reemployment benefits when, inter alia, a physician predicts that the employee will have permanent physical capacities that are less than the physical demands of the employee’s job as described in the SCODDOT.[1] In the instant matter, the employee’s treating physician indicated that the employee had or would have the physical ability to perform the job of clerk-typist, but then qualified that statement by saying that the employee would have “difficulty with prolonged sitting.” (Dr. James’ 7/6/01 Physician Response). The rehabilitation specialist and the RBA both wrote that Dr. James approved the employee’s ability to work as a clerk typist, but neither discussed the impact of Dr. James’ qualifying statement that the employee would have “difficulty with prolonged sitting.”

While it is not necessary for the RBA to discuss every piece of evidence presented to him,[2] it is unclear to what degree Dr. James’ qualifying statement was considered and what, if any, effect it has on the employee’s ability to perform the physical demands of a clerk-typist as described in the SCODDOT description. It is therefore not possible for the Board to determine at this time if the RBA abused his discretion. Accordingly, this matter is remanded to the RBA to clarify the impact of Dr. James’ qualifying statement. On remand, particular attention should be paid to Morgan v. Lucky Strike Bingo, 938 P.2d 1050 (Alaska 1997). The Board will retain jurisdiction on the issue of the employee’s attorney’s fees.

ORDER

This matter is remanded to the RBA to consider and clarify the impact of Dr. James’ statement that the employee would have “difficulty with prolonged sitting” at a clerk-typist job as described in the SCODDOT description.