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Justice v. RMH Aero Logging2/15/2002
mining gross weekly wages. The board agreed and retroactively adjusted Justice's weekly compensation rate to $424.30.
RMH appealed to the superior court, which affirmed the "retroactive application of Gilmore to Mr. Justice's 1997 TTD claim" and reversed " he Board's order that Gilmore be applied to Mr. Justice's 1993 TTD claim . . . ."
Justice appeals and RMH cross-appeals.
III. DISCUSSION
A. Standard of Review
We independently review the merits of an agency determination when a superior court acts as an intermediate court of appeal. "In reviewing an agency's factual findings, we employ the `substantial evidence' test." Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." When an agency decision involves expertise regarding either complex subject matter or fundamental policy formulation, we defer to the decision " `so long as it is reasonable, supported by the evidence in the record as a whole, and there is no abuse of discretion.' " We apply the substitution of judgment test to legal questions where no agency expertise is involved, such as questions of " `statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and experience.' "
B. The Board Did Not Err by Applying Gilmore to Justice's Claim for a Compensation Rate Adjustment.
On October 14, 1994 we decided Gilmore v. Alaska Workers' Comp. Bd., which held that former AS 23.30.220(a), as applied by the board to Gilmore, violated the equal protection clause of the Alaska Constitution.
When Gilmore was injured on September 17, 1989, AS 23.30.220(a) provided in relevant part:
The spendable weekly wage of an injured employee at the time of an injury is the basis for computing compensation. It is the employee's gross weekly earnings minus payroll tax deductions. The gross weekly earnings shall be calculated as follows:
(1) the gross weekly earnings are computed by dividing by 100 the gross earnings of the employee in the two calendar years immediately preceding the injury;
(2) if the employee was absent from the labor market for 18 months or more of the two calendar years preceding the injury, the board shall determine the employee's gross weekly earnings for calculating compensation by considering the nature of the employee's work and work history, but compensation may not exceed the employee's gross weekly earnings at the time of injury . . . .[ ]
During the two years preceding his injury, Gilmore had worked for a total of thirty-nine weeks. But for twenty-two of the thirty- nine weeks, Gilmore had been in vocational training programs learning to become a motorcycle mechanic. Gilmore argued that he should be considered "absent from the labor market" within the meaning of AS 23.30.220(a)(2) while he was attending vocational training programs, and that he was therefore entitled to an alternative wage calculation under that statute. The board rejected Gilmore's contention, and the superior court affirmed.
At our request, the parties in Gilmore filed supplemental memoranda discussing whether AS 23.30.220(a)'s formula for determining an injured employee's gross weekly earnings violated the equal protection clause of the Alaska Constitution. We held that it did, as applied to Gilmore, for the following reasons:
The gross weekly wage determination method of AS 23.30.220(a) creates large differences in compensation between similarly situated injured workers, bears no relationship to the goal of accurately calculating an injured employee's lost wages f
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