CLAYTON J. FLAGG, 
Employee, 
Applicant
v. 
ARAMARK CORP (SHIP CREEK),
Employer,
and 
RELIANCE NATIONAL INDEMNITY,
Insurer,
Defendants.

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INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 199815789
AWCB Decision No. 00-0044
Filed with AWCB Fairbanks, Alaska
on March 10th , 1999

We heard the employee's appeal of the Reemployment Benefits Administrator (RBA) Designee’s decision denying eligibility for reemployment benefits in Fairbanks, Alaska on March 2, 2000. Attorney Michael Patterson represented the employee. Attorney Tasha Porcello represented the employer and insurer (employer). Both attorneys participated by teleconference, and he employee appeared in person. We closed the record at the conclusion of the hearing.

Did the RBA abuse her discretion by finding the employee not eligible for reemployment benefits under AS 23.30.041(e)?

The employee injured his back on or about July 26, 1998, while working as an automotive mechanic / mechanic’s helper for the employer. The employee saw Lindsey Roberts, P.A.C., at the Healy Clinic, who referred him to John Joosse, M.D. Dr. Joosse ordered a magnetic resonance imaging study (MRI), which was done on August 11, 1998. The MRI showed a central disc herniation at L3-4, a central and left-sided herniation at L4-5, and multilevel degenerative disc disease of the lumbar spine. The employee underwent a decompression and laminectomy surgery at L3-4 and L4-5 on August 15, 1998.

On October 31, 1998 the employee’s symptoms recurred. On November 4, 1998 he underwent a second MRI, which revealed a recurrent disc herniation. On November 5, 1998, Dr. Joosse again performed surgery. At the employer’s request, the employee was evaluated by Bryan Laycoe on January 9, 1999. Dr. Laycoe found the employee not yet medically stable, but indicated the employee would be able to return to his former work after he reached medical stability. On February 23, 1999, Dr Joosse found the employee medically stable, rated him with a ten percent whole-person permanent partial impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, and released the employee to return to his work at the time of injury.

The employer requested reemployment benefits for the employee on March 9, 1999. The RBA assigned the employee for an eligibility evaluation with rehabilitation specialist Douglas Cluff on April 12, 1999. Dr. Joosse approved the job descriptions of Automobile Mechanic and Automobile Mechanic Helper, as described in the U.S. Department of Labor's "Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles" (SCODDOT), but recommended limitations on bending, stooping, or lifting greater than 50 pounds. In his August 10, 1999 eligibility evaluation report, Mr. Cluff recommended the RBA find the employee eligible for reemployment benefits, based on Dr. Joosse’s opinion that the employee did not have the residual capacities to perform his job at the time of injury or any job he held during the ten years preceding his injury. In his letter of September 7, 1999, Dr. Joosse found the employee had returned to his pre-injury status, and that any remaining disability resulted from the employee’s pre-existing degenerative disc disease.

On October 12, 1999, the RBA issued a determination denying reemployment benefits based on the recommendation of rehabilitation specialist "Tom Clark" [sic], and on Dr. Joosse’s release of the employee to return to modified work. In the determination, the RBA found "the injury of 10-21-98 [sic] does not prevent your return to work in your job at time of injury." The employee filed an appeal concerning this RBA decision on October 19, 2000. We heard this appeal on March 2, 2000.

In his brief and at the hearing the employee noted Dr. Joosse released the employee to his work at the time of injury, but with limitations on bending, stooping, or lifting greater than 50 pounds. He argued these limitations were not consistent with the physical capacity requirements in the SCODDOT job description for Automobile Mechanic Helper. Consequently, he contends, Dr. Joosse did not actually approve the complete job description. He points out the RBA determination erroneously referred to an eligibility evaluation by Tom Clark, and erroneously referred to an injury on October 21, 1998. He contends the employee’s rehabilitation specialist was still attempting to clarify Dr. Joosse’s opinion when the RBA issued her determination. He argues the RBA determination was arbitrary and capricious, and should be remanded.

In its brief and at the hearing the employer argued the employee’s residual physical limitations are exclusively the result of a pre-existing condition, and not his work injury. It argues the RBA determination is supported by substantial evidence, and must be affirmed.

I. STANDARD OF REVIEW

Under AS 23.30.041(d), we must uphold a decision of the RBA absent "an abuse of discretion on the administrator's part." Several definitions of the phrase "abuse of discretion" appear in the laws of Alaska, although none occur in the Alaska Workers' Compensation Act. The Alaska Supreme Court has stated abuse of discretion consists of "issuing a decision which is arbitrary, capricious, manifestly unreasonable, or which stems from an improper motive." Sheehan v. University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985); Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)(footnote omitted). An agency's failure to properly apply the controlling law may also be considered an abuse of discretion. Manthey v. Collier, 367 P.2d 884, 889 (Alaska 1962); Black's Law Dictionary 25 (4th ed. 1968).

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:

AS 44.62.570.

On appeal to the courts, 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).

II. ELIGIBILITY FOR REEMPLOYMENT BENEFITS UNDER AS 23.30.041

AS 23.30.041 provides, in part:

(1) the employee's job at the time of injury; or

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 of our decisions following the review hearings. See, e.g., Kelley v. Sonic Cable Television, 3AN 89-6531 CIV (Alaska Ct. of Appeals, February 2, 1991); Quirk v. Anchorage School District, 3AN-90-4509 CIV (Alaska Ct. of Appeals, August 21, 1991).

Nevertheless, under 8 AAC 45.070(b)(1)(A), we are precluded from considering additional evidence if the party offering that evidence has failed to exercise reasonable diligence in developing and presenting that evidence. See Kin v. Norcon, AWCB Decision No. 99-0041 (March 1, 1999); Lemire v. B&R Construction, AWCB Decision No. 99-0019 (January 28, 1999); Buxton v. Cameron Corporation, AWCB Decision No. 99-0005 (January 8, 1999).

In this case, no new medical records were provided by the parties; but the employee points to evidence of error in the RBA determination itself. The RBA determination was written (and, so, this evidence arose) after the record closed for the RBA to decide the employee’s eligibility. Consideration of this additional information is not barred by a lack of diligence on the part of the parties. 8 AAC 45.070(b)(1)(A).

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.

In this case, the RBA determination referred to an eligibility evaluation by "Tom Clark," and referred to an injury on "October 21, 1998." Neither this rehabilitation specialist nor this injury date are reflected in the record. Whether the RBA simply confused the name and date, or inadvertently mixed the contents of two separate case files, we can only speculate. We cannot be certain what evidence the RBA was considering at the time of her determination denying eligibility. In light of our review of the record, and in light of the absence of reference to either this rehabilitation specialist or this injury date in the record, we cannot find substantial evidence in the record to support the RBA determination. Accordingly, we must remand this determination to the RBA.

We are remanding this determination to the RBA, based on apparent mistakes of fact in the determination itself. The RBA shall re-examine the evidence, and shall redetermine whether or not the employee is eligible for reemployment benefits under the criteria of AS 23.30.041(e). Accordingly, we decline to address whether or not the employee is precluded from returning to his work at the time of his injury, as defined in the SCODDOT standards. We also decline to consider whether he could return to any jobs held during ten year period before his injury, rendering him ineligible under AS 23.30.041(e)(2). Anderson v. Four Star Terminal, AWCB Decision No. 96-0480 (December 23, 1996).

The Reemployment Benefits Administrator Designee's October 12, 1999 determination, finding the employee not eligible for reemployment benefits, is remanded under AS 23.30.041(e).

Dated at Fairbanks, Alaska this 10^th day of March, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Walters
William Walters,
Designated Chairman

/s/ John Guichici
John Guichici, Member

/s/ Dorothy Bradshaw
Dorothy Bradshaw, Member

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of CLAYTON J. FLAGG employee / applicant; v. ARAMARK CORP (SHIP CREEK), employer; RELIANCE NATIONAL INDEMNITY, insurer / defendants; Case No. 199815789; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 10^th day of March, 2000.

Lora J. Eddy, Clerk

SNO