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Justice v. RMH Aero Logging2/15/2002
or purposes of determining his or her compensation, is unfair to workers whose past history does not accurately reflect their future earning capacity, and is unnecessary to achieve quickness, efficiency, or predictability.[ ]
But we noted that "section 220(a) may be applied constitutionally in a number of circumstances, for example, where an injured worker has had the same occupation for all of the past two calendar years." Thus, the relevant inquiry under Gilmore is whether an injured worker's past employment history is an "accurate predictor" of future wage losses due to the injury. Where past wage levels are an accurate predictor of losses due to the injury, "the Board must apply the statutory formula. The decision to depart from the statute must be based on substantial evidence supporting the conclusion that past wage levels will lead to an irrational workers' compensation award."
We declined in Gilmore to address the extent to which its holding would be applied retroactively. As Justice Compton noted in his concurring opinion,
he question of prospectivity or retroactivity, and the type of prospectivity or retroactivity, will be addressed in the context of a case in which the question is essential to the decision. In the meantime, the past opinions of this court should serve as a basis for an informed decision by the Board.[ ]
The board retroactively applied Gilmore to Justice's claim for a compensation rate adjustment. Justice argues that the board correctly applied Gilmore to his claim. RMH responds that Gilmore should apply retroactively only "to workers who raised the issue prior to Gilmore, had a claim open to adjudication at that time, or who had preserved the issue for appeal when the decision was issued." (Emphasis added.) Because we conclude below that Justice's claim is open to adjudication, we could hold that the board properly applied Gilmore to Justice's claim on the basis of RMH's concession alone. But, as we will see, our law governing the retroactive application of our decisions also demands that we affirm the board's decision to accord Gilmore the limited retroactivity necessary to reach Justice's claim.
1. The Byayuk factors dictate retroactive application of Gilmore.
"There is no constitutional mandate, federal or state, requiring civil decisions to be applied either retroactively or prospectively. The determination whether to give retroactive effect to new decisional law is made ad hoc, on the basis of the practical and equitable considerations of each case." We consider four factors in deciding whether and to what extent new decisional law should be applied retroactively:
(1) whether the holding either overrules prior law or decides an issue of first impression whose resolution was not foreshadowed; (2) whether the purpose and intended effect of the new rule of law is best accomplished by a retroactive or a prospective application; (3) the extent of reasonable reliance upon the old rule of law; and (4) the effect on the administration of justice of a retroactive application of the new rule of law.[ ]
In civil cases, limited retroactivity is the rule; exclusively prospective application is the exception. "Absent special circumstances, a new decision of this court will be given effect in the case immediately before the court, and will be binding in all subsequent cases in which the point in question is properly raised," even if the events to which the law is applied occurred before the court's decision.
The first Byayuk factor - whether a decision overrules prior law or decides an issue of first impression whose resolution was not foreshadowed - is actually a thr
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