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Justice v. RMH Aero Logging2/15/2002
1994. The board treated Justice's letter as a claim and served it on Wausau Insurance Companies on March 6, 1998.
Thus, RMH was on notice as of March 6, 1998 that Justice was seeking additional compensation for the period of disability between 1993 and 1995. But in any event, RMH candidly concedes in its opening supplemental brief that it "was first put on notice that Mr. Justice was seeking a retroactive compensation rate adjustment for benefits paid between 1993 and 1995 on August 10, 1998 at the prehearing at which it was made clear that a retroactive application of the Gilmore decision was being sought." RMH therefore had notice of Justice's claim for a retroactive compensation rate adjustment for benefits paid between 1993 and 1995 before the November 9, 1998 AWCB hearing.
Because RMH was placed on notice of Justice's claim for a retroactive compensation rate adjustment before the November 9, 1998 hearing, and because RMH did not object at that hearing to Justice's failure to file a claim within the period prescribed by AS 23.30.105(a), we hold that RMH waived its statute of limitations defense, and that Justice's claim is therefore "open to adjudication." We therefore conclude that it was not error to apply Gilmore to Justice's claim.
C. It Was Not Error to Find that Justice Was Entitled to a Compensation Rate Adjustment Under Gilmore.
RMH argues that even if the board properly applied Gilmore retroactively to Justice's claim, it erred by finding that Justice was entitled to an adjustment under Gilmore, because (1) the board applied a generalized "fairness" analysis to Justice's claim, and (2) substantial evidence does not support the finding that Justice's past employment history is not an accurate predictor of his future lost income.
1. The AWCB did not base its decision to grant Justice a compensation rate adjustment solely upon a "fairness" analysis.
In Thompson v. United Parcel Serv., we held that it was error, under Gilmore, for the board to depart from the formula in former AS 23.30.220(a)(1) by conducting a "generalized fairness inquiry rather than asking whether Thompson's past earnings could accurately be used to determine what she would have earned had she not been injured."
RMH argues that the board erred by granting Justice a compensation rate adjustment based on a generalized fairness inquiry. RMH claims that the board made no findings regarding whether Justice's past earnings were an accurate predictor of future lost earnings.
It is true that the board stated that "the court's decision in Gilmore requires that a `fairness' analysis be applied in cases such as this." But the board also found that there was "a substantial disparity in [Justice's] earnings at the time of his injury and his earnings, as computed under subsection 220(a)" and that Justice "would have worked more time per year than he had in the past, based on his desire to purchase a house and on his need to no longer care for his mother." These findings addressed the relevant inquiry under Gilmore - i.e., whether Justice's past earnings were an accurate predictor of his future lost earnings. We therefore perceive no error.
2. Substantial evidence supports the finding that Justice's past employment history is not an accurate predictor of his future lost income.
RMH next argues that substantial evidence does not support the finding that Justice's past employment history is not an accurate predictor of his future lost income. RMH argues that Justice's work history "demonstrates sporadic and seasonal employment . . . with significant periods of unemployment in every year pre-injury," and that Justice's g
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