B. Employment

9. Strength: HEAVY; Exert force of 50-100 lbs. occasionally, 2 5 -50 lbs. frequently, or 10-20 lbs.

The employee’s treating physician, Richard R. Strohmeyer, M.D., approved the employee’s return to all jobs except the job "service technician, refrigeration (any industry)." (Dr. Strohmeyer’s 10/21/99 Letter to Ms. Collins). The rehabilitation specialist found the employee ineligible for benefits. The RBA reviewed the eligibility reports and issued a decision on January 13, 2000, finding the employee not eligible for reemployment preparation benefits under AS 23.30.041(e)(1) & (2) because Dr. Strohmeyer had approved his return to the work he performed at the time of injury and prior to his injury.

The RBA sent its determination to the employee on January 13, 2000. The employee had previously changed his address, and our records indicate the board was aware of this change, but apparently, the employee’s address was not corrected in board’s computer system. Our records indicate that on January 25, 2000, the RBA received its determination letter to the employee back, with an indication that the employee had moved and his mail forwarding had expired. On January 25, 2000, the RBA called the employer’s adjuster, obtained the employee’s new address and re-sent the eligibility denial letter. The employee requested reconsideration of the RBA’s decision on February 4, 2000. The RBA sent a letter to the employee on February 22, 2000, stating the employee’s time for reconsideration had expired on January 28, 2000.

Dr. Strohmeyer found the employee was medically stable as of August 16, 1999 and suffered a permanent partial impairment (PPI) ratable under the American Medical Association "Guides to the Evaluation of Permanent Impairment." The employee has never previously been rehabilitated in a Workers’ Compensation Claim and the employer had no modified work available for the employee. (Collins’ 12/13/99 Report at 7). Ms. Collins conducted a formal labor market survey for the position of "appliance repairer," and informal market surveys for his prior jobs titles.

The employee argued that he has never worked as an "appliance repairer." He testified that he did major appliance repair, which is much heavier work than the "appliance repairer" SCODDOT description in Ms. Collins’ report. He claimed the SCODDOT description described a bench job involving small repairs, such as toasters, microwaves, blenders, etc. He testified he has never done any of this type of work, and has done major repair work, on washers, dryers, refrigerators, etc. He testified his work as a major appliance repairer involved climbing ladders to occasionally get into attics or crawl spaces, stooping, kneeling in attics or crawl spaces and crouching. He testified he is no longer physically able to do these things.

The employee testified he has not worked as an "electrical repairer" within 10 years of his injury. He testified that occasionally, as part of his work as a major appliance repairer, he did electrical repair. He estimated that this accounted for about 5-10% of the work he has done as a major appliance repairer.

The employee testified he very rarely did work as a "service technician HVACR." He testified this accounted for about ".001%" of the work he has done and he did this work in 1985 or 1987. The employee testified he did an extensive amount of work as a "service technician, refrigeration."

The employer argued that the board was bound to adhere to Konecky v. Camco Wireline, Inc., 920 P.2d 277 (Alaska 1996), and it did not matter if the employee’s actual job description differed from the SCODDOT job description. The employer also argued the employee failed to timely file his appeal.

I. DID THE EMPLOYEE TIMELY FILE THIS APPEAL?

The employer argues the employee did not file his appeal within the required time limits. We disagree. AS 23.30.041 (d) requires a party seeking review of the RBA’s decision to do so within 10 days after the decision. The RBA sent its decision to the employee on January 13, 2000. On January 25, 2000, the RBA received its determination letter back, with an indication from the Post Office that the employee had moved and his mail forwarding had expired. On January 25, 2000, the RBA called the employer’s adjuster, obtained the employee’s new address, and re-sent the eligibility letter. The employee requested reconsideration of the RBA’s decision on February 4, 2000.

8 AAC 45.054 states:

Here, the RBA sent its decision to the employee’s old address. The employee’s new address was apparently never correctly entered into the board’s computer, and therefore the RBA did not send its eligibility determination to the proper address. We find the employee was properly served on January 25, 2000. We find the employee appealed his denial determination on February 4, 2000, within the period mandated by .041(d). We find the employee timely filed his appeal.

A. Standard of Review

AS 23.30.041(d) states, "The board shall uphold the decision of the [RBA] except for abuse of discretion on the [RBA]’s part." In Sheehan v. University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985), the Alaska Supreme Court stated, "This court has explained abuse of discretion as issuing a decision which is arbitrary, capricious, manifestly unreasonable, or stems from an improper motive." The Court has also stated that abuse of discretion exists only when the Court is "left with the definite and firm conviction on the whole record that the trial judge has made a mistake." Brown v. State, 563 P.2d 275, 279 (Alaska 1977). An agency's failure to properly apply the controlling law may also be considered an abuse of discretion. We have held that misapplication of the law is an abuse of discretion. Binder v. Fairbanks Historical Preservation Foundation, AWCB Decision No. 91-0392 (December 11, 1991).

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:

On appeal to the judiciary, 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).

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. 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.

B. The Employee’s "Appliance Repairer" Job

The employee requested reemployment benefits on May 30, 1999. AS 23.30.041 provides, in part:

Regarding Ms. Collins’ selection of DOT#: 723.584-010, "appliance repairer," we find this was not an appropriate SCODDOT selection. 8 AAC 45.525 (a) (2) states the rehabilitation specialist must "choose the most appropriate job title or titles based on the description of the employee’s job." We find the SCODDOT description selected by the rehabilitation specialist describes a bench job repairing small appliances, such as toasters, blenders or microwaves. We find this description – while having a similar title to the employee’s actual job -- is entirely different than the job the employee has done throughout his career as a major appliance repairer and installer.

The employee testified he has never worked as an "appliance repairer." The SCODDOT job description for appliance repairer indicates that medium strength (20 to 50 lbs.) is needed for the job. We note the employee’s injury occurred while delivering a stacked washer / dryer that weighed several hundred pounds. The SCODDOT description for "appliance repairer" indicates that no climbing, stooping, kneeling, crouching or crawling are required. However, we find the employee was climbing up three flights of stairs at the time his injury occurred, climbed ladders into attics and crawl spaces, and, at least occasionally, was required to stoop, kneel, couch and crawl as part of his job as a major appliance repairer and installer. Therefore, we conclude that the selection by the rehabilitation specialist of DOT#: 723.584-010, "appliance repairer" was not the most appropriate selection, considering the employee’s job description. We find the rehabilitation specialist erred in applying this SCODDOT description to the employee’s job.

Our regulations permit the use of multiple SCODDOT titles where one title does not accurately depict an employee’s job. 8 AAC 45.525(a) states, in part:

We have previously held that, when one SCODDOT description does not accurately describe an employee’s job, the RBA should apply multiple SCODDOT titles. In Gonzales v. Ketchikan Pulp Co., AWCB Decision No. 98-0228 (September 3, 1998), a case where the RBA applied multiple SCODDOT descriptions for one job, the board stated:

We find the rehabilitation specialist’s selection of the SCODDOT job description "appliance repairer" was not "the most appropriate job title or titles based on the description of the employee’s job." 8 AAC 45.525 (a) (2). We find that a combination of job selections would more appropriately depict the employee’s job description. It appears that a more appropriate description of the employee’s most recent job would include the jobs "household-appliance installer," DOT#: 827.661-010 and "service technician, refrigeration (any industry)," DOT#:637.261-026. Accordingly, we find the RBA erred in relying on the description "appliance repairer" to describe the employee’s most recent job and we remand this matter to the RBA to determine what combination of job titles appropriately describe the employee’s job description.

1. The Employee’s Prior Jobs

The rehabilitation specialist found the employee could return to his prior jobs as an "electrical repairer," DOT#: 829.261-018, and a "service technician HVACR," DOT#: 637.261-014. The specific vocational preparation (SVP) for "electrical repairer" is 8. According to the SCODDOT manual, a job with an SVP of 8 requires from 4 to 10 years of training. The employee testified he has "never really done" this type of work, and performed this job ancillary to his other work, and this work accounted for only 5-10% of his total job. We have no evidence rebutting this testimony. We find the evidence in the record does not support the finding that the employee has met the SVP for this position.

The rehabilitation specialist found the employee could return to his prior job as a "service technician HVACR," DOT#: 637.261-014. The specific vocational preparation (SVP) for "service technician HVACR" is 7. According to the SCODDOT manual, a job with an SVP of 7 requires from 2 to 4 years of training. The employee testified this type of work accounted for approximately ".001%" of his job, and he did this between 1985 and 1987. We have no evidence rebutting this testimony. We find the evidence in the record does not support the finding that the employee has met the SVP for this position. Since the evidence in the available record does not support the finding that the employee has the requisite SVPs for the positions "electrical repairer" and "service technician HVACR", we must remand this matter back to the RBA to determine if the employee is capable of performing these jobs.

This matter is remanded to the RBA, in accordance with the above Decision.

Dated at Anchorage, Alaska this 4, day of April, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Wielechowski
William P. Wielechowski,
Designated Chairman

/s/ John A. Abshire
John A. Abshire, Member

/s/ Marc D. Stemp
Marc Stemp, 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 WILLIAM L. ATTWOOD employee / applicant; v. ANCHOR APPLIANCE, employer; STATE FARM FIRE, insurer / defendants; Case No. 199713582; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 4, day of April, 2000.

Brady D. Jackson, III, Clerk

SNO