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Justice v. RMH Aero Logging2/15/2002
No. 5538
I. INTRODUCTION
Did the Alaska Workers' Compensation Board erroneously adjust an injured employee's compensation rate by departing from the statutory formula for determining gross weekly earnings set out in former AS 23.30.220(a)(1)?
Because we conclude that our holding in Gilmore v. Alaska Workers' Comp. Bd. applies with limited retroactivity to the employee's claim for a compensation rate adjustment, and because substantial evidence supports the finding that the employee's past employment history is not an accurate predictor of his future wage losses resulting from the injury, we affirm the board's decision adjusting the employee's compensation rate.
II. FACTS AND PROCEEDINGS
RMH Aero Logging, Inc. hired Dan Justice in February 1993 to work as a knot bumper. On June 3, 1993 Justice was injured while working for RMH at a logging camp near Ketchikan, when a helicopter's rotor wash caused the log on which he was standing to roll, pinning his right foot against another log.
Justice received medical treatment and was cleared to work without any restrictions, wearing heavy lace-up leather boots to prevent further injury. Despite being placed on light duty, Justice continued to experience significant pain in his right foot. Further medical examination revealed a fracture in his right forefoot. Justice's last day of employment with RMH was June 30, 1993.
Because conservative medical treatment of Justice's injury - such as immobilization of the foot in a cast - did not entirely relieve the pain in his right foot, Justice underwent surgery in February 1994. After Justice recuperated from the surgery, Dr. Todd Kile rated Justice's permanent partial impairment (PPI) at four percent. Dr. Kile later increased Justice's PPI rating to eight percent.
After RMH filed a report of occupational injury or illness with the board in June 1993, Wausau Insurance Companies, RMH's workers' compensation insurer, voluntarily adjusted Justice's claim. Between July 10, 1993 and August 9, 1994, Justice received temporary total disability (TTD) benefits of $154 per week, based on his gross income (as indicated in his federal income tax returns) of $16,589 and $4,305 for 1991 and 1992 respectively. Upon reaching medical stability in August 1994, Justice received PPI benefits based on Dr. Kile's rating of eight percent. On July 10, 1995 - when his PPI benefits expired - Justice received a lump sum payment of $9,971 under former AS 23.30.041(k).
Justice continued to experience pain after the February 1994 arthrodesis procedure because of degenerative arthritic changes in his right foot. On October 13, 1997 Justice's right foot spasmed while he was working on the roof of his house. Justice fell from the roof, fracturing his right wrist and sustaining a fracture/dislocation of a joint in the long finger of his right hand. Justice underwent surgery in January 1998 to correct the fracture/dislocation. RMH agreed that Justice's October 1997 injuries were related to his June 1993 injury, and reinstated his TTD benefits effective September 1, 1997.
On December 1, 1997 Justice filed a workers' compensation claim with the board. On May 11, 1998 Justice filed an amended claim seeking, among other things, a retroactive adjustment of his TTD compensation rate. Justice claimed that his gross income in 1992 was aberrationally low and did not accurately predict his future lost wages. Justice explained that he had spent that year administering his mother's estate. Citing Gilmore v. Alaska Workers' Comp. Bd., Justice asked the board to depart from the formula, contained in former AS 23.20.220(a)(1), for deter
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