BUNNY B. DOHRMAN, 
Employee, 
Respondent
v. 
PAYLESS DRUG STORE #1360 (D),
Employer,
and 
TRAVELERS INSURANCE CO,
Insurer,
Petitioners.

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FINAL
DECISION AND ORDER
AWCB Case No. 199800246
AWCB Decision No.00-0064 
Filed with AWCB Anchorage, Alaska
on April, 6, 2000

We heard the employer’s request for review of the Reemployment Benefits Administrator (RBA) Designee’s decision finding the employee eligible for reemployment benefits in Anchorage, Alaska on March 9, 2000. Attorney Michael Jensen represented the employee. Attorney Constance Livsey represented the employer. We closed the record at the conclusion of the hearing.

Did the RBA Designee abuse her discretion by determining that the employee was eligible for reemployment benefits under AS 23.30.041(e)?

The employee injured her left hand, while working as a checker/cashier for the employer on January 13, 1998. Specifically, the employee cut her left small finger with a box cutter and underwent hand surgery on January 15, 1998. The surgery was performed by Leslie Dean, M.D., who determined the employee lacerated the radial nerve in her left small finger. Dr. Dean also indicated there was a possible laceration of the flexor tendon. The employer accepted the claim, providing medical benefits and temporary total disability (TTD) benefits.¹

The employee continued under the care of Dr. Dean, who referred the employee for hand therapy following the surgery. In a report dated March 6, 1998, Dr. Dean noted the employer would not let the employee work until she could use her left hand. Dr. Dean stated the employee’s work restrictions included not using her left hand. Moreover, in a report dated August 3, 1998, Dr. Dean concluded the employee was restricted from lifting over 5 pounds at work.²

Thereafter, Dr. Dean referred the employee to David Miller Wise, M.D for an evaluation in Seattle, Washington on August 5, 1998. In his report, Dr. Wise determined the employee could not return to work because she had so little grip strength.

On February 8, 1999, the employee underwent physical capacities (PCE) testing at OrthoSport/B.E.A.R. The results of the testing showed the employee could torso lift 20 pounds occasionally and 10 pounds frequently, shoulder lift 20 pounds occasionally and 10 pounds frequently, and overhead lift 15 pounds occasionally and 10 pounds frequently. The PCE further stated:

On referral from Dr. Dean, Susan Klimow, M.D. examined the employee on February 10, 1999 and diagnosed her with reflex sympathetic dystrophy of the left hand. Moreover, on March 1, 1999, Dr. Klimow determined the employee was capable of returning to her job at the time of injury with modification. Dr. Klimow noted the employee was unable to lift heavy items from the bottom of a basket per the PCE.

In a letter to the Alaska Workers’ Compensation Board dated March 25, 1999, the employer requested the employee be referred for a reemployment eligibility evaluation. At the hearing, Rehabilitation Specialist Judy Weglinski testified she was assigned to evaluate the employee’s reemployment eligibility in May of 1999 by the Alaska Workers’ Compensation Board.

Physiatrist Steven Marble, M.D. evaluated the employee for an employer independent medical examination (EIME) on June 19, 1999. In his report, Dr. Marble concluded the employee was capable of performing light-duty work with modifications in line with Dr. Klimow’s assessment.

The employee last treated with Dr. Dean on August 11, 1999, when Dr. Dean confirmed the employee could not be a cashier, if she did not have assistance lifting heavy items from the bottom of a basket. Dr. Dean specifically stated, "If her specific job requires that she be working independently then Ms. Dohrman may not be cashier-checker. She must be in a job where no lifting is required, i.e., lifting is not a requirement."

In addition, Dr. Dean completed Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCODOT) job description forms on September 16, 1999. Dr. Dean determined the employee was not capable of performing work as a cook or truck driver but could perform work as a nursery school attendant or a cashier with modification. Specifically, Dr. Dean found the employee could not lift over 10 pounds without assistance.

The SCODOT descriptions submitted in this matter indicated the job of cashier-checker was light work and required exerting up to 20 pounds of force 1/3 of the time and up to 10 pounds from 1/3 to 2/3 of the time. On September 17, 1999, Ms. Weglinski faxed copies the SCODOT job descriptions she sent to Dr. Dean and Dr. Klimow to the employer’s counsel.

On October 4, 1999, Dr. Marble forwarded a letter to the employer’s counsel stating he reviewed his EIME, the PCE and SCODOT job descriptions. Dr. Marble confirmed the employee could perform the job as cashier, as described in his June 19, 1999 report. Dr. Marble also found the employee could work as a nursery school attendant, a doughnut machine operator, a doughnut maker and a fast food manager. Dr. Marble did not believe the employee had the physical capacities to perform as a light truck driver or a specialty cook. The employer forwarded a copy of Dr. Marble’s report to Ms.Weglinski in a letter dated October 14, 1999.

On November 11, 1999, Ms. Weglinski issued a report to RBA Designee Mickey Andrews. According to Ms. Weglinski, Dr. Dean indicated the employee could only perform modified light duty work as a cashier, thus she could not return to her pre-injury job. Moreover, Ms. Weglinski stated Dr. Dean disapproved the jobs of light truck driver and specialty cook. Ms. Weglinski determined other jobs referenced in this case (doughnut maker, doughnut machine operator, nursery school attendant) were not jobs held by the employee within 10 years of the injury. Ms. Weglinski noted Dr. Klimow declined to comment on the SCODOT descriptions.

At the hearing, Ms. Weglinski testified she considered a report from adjuster Taren Beck, medical information provided by the employer, and information from Dr. Dean in arriving at her reemployment eligibility recommendation. Ms. Weglinski also stated she considered the PCE evaluation. On cross-examination, Ms. Weglinski admitted she did not forward the SCODOT job descriptions to any physicians other than Dr. Dean and Dr. Klimow. Ms. Weglinski confirmed she received Dr. Marble’s report in which he referred to his review of the SCODOT job descriptions, but she received no actual SCODOT forms filled out by Dr. Marble. Further, Ms. Weglinski testified she did not contact Dr. Dean after receiving her completed SCODOT assessments to investigate any inconsistencies with the PCE evaluation.

On January 23, 2000, Douglas Smith, M.D. issued a report after examining the employee for a second independent medical examination (SIME). Regarding her ability to work, Dr. Smith determined the employee was not capable of performing as truck driver, cook, doughnut maker or doughnut machine operator. Dr. Smith determined the employee would be able to perform as a nursery school attendant with specific restrictions and stated:

At the hearing, the employee testified her condition has not changed since Dr. Smith’s examination as far as feeling and use in her left hand.

On January 28, 2000, the employer’s counsel wrote to Ms. Andrews and asserted that Dr. Dean erroneously relied upon the PCE’s job simulation task for cashier-checker, i.e., lifting items from the bottom of a basket, rather than comparing the employee’s physical capacities to the SCODOT job descriptions. The employer stated the SCODOT job description for cashier-checker made no mention of lifting items from the bottom of baskets.

The employee filed an amended workers’ compensation claim on February 13, 2000 requesting rehabilitation benefits. On February 18, 2000, RBA Designee Ms. Andrews determined the employee was eligible for rehabilitation benefits on the basis that Dr. Dean found the employee’s physical capacities were less than those required of a cashier-checker as described in SCODOT. Ms. Andrews also noted Dr. Dean disapproved the employee’s return to jobs she held in the 10 years prior to her injury. Addressing the employer’s concerns in its January 28, 2000 letter, Ms. Andrews stated she was of the opinion Dr. Dean reviewed the SCODOT job descriptions, as she stated she had. Ms. Andrews asserted Dr. Dean approved a modified version of the SCODOT description of cashier-checker by finding the employee could only perform the job with assistance lifting over 10 pounds. Ms. Andrews also noted Dr. Dean made no mention of lifting from a basket when she modified the SCODOT job description. On February 25, 2000, the employer petitioned for an appeal of RBA Designee’s determination.

At the hearing, the employee testified she still has problems with her left hand and cannot handle more than a few pounds with it. According to the employee, she could not perform the job of cashier-checker, which involves stocking, fronting and handling goods. The employee testified no employer would provide the assistance she would need to perform as a cashier-checker. The employee admitted on cross-examination that she is right-hand dominant.

After the hearing, the employee’s counsel, Mr. Jensen, submitted an Affidavit of Attorney’s Fees requesting attorney’s fees for work going back to August 18, 1999. Mr. Jensen also requested an hourly rate of $250.00 for work since March 1, 2000 and $215.00 for work prior to March 1, 2000.

The employer argued the RBA Designee abused her discretion by relying on one report by Dr. Dean when the weight of the medical evidence demonstrated the employee could perform the job of cashier-checker as described by SCODOT without any modifications. The employer relied on Konecky v. Camco Wireline, Inc., 920 P.2d 277 (Alaska 1996) in support of its position the SCODOT job descriptions must be strictly applied, even if the result is harsh and does not reflect reality.

The employer argued the PCE was deemed valid by the evaluator, who concluded the employee could lift and carry 20 pounds occasionally and 10 pounds frequently. According to the employer, the employee’s physical capacities per the PCE comported with the SCODOT job description for cashier-checker. The employer also stated the SCODOT job description does not actually require any lifting or carrying, only exerting force. Moreover, the employer contended the PCE job simulation task of lifting items from the bottom of a basket appears nowhere in the SCODOT job descriptions. Therefore, the clear reliance by all of the physicians in this case on the PCE findings is legally impermissible pursuant to Konecky.

In short, the employer argued Dr. Dean’s conclusion that the employee could not lift more than 10 pounds was flatly inconsistent with the PCE evaluation. Moreover, both Dr. Marble and Dr. Smith approved the employee’s ability to perform the job of cashier-checker per the SCODOT description, and they only modified the job insofar as the PCE job simulation task of lifting items from the bottom of a basket. Overall, the employer contended the RBA Designee abused her discretion by relying on one report from Dr. Dean without at least requesting Dr. Dean explain her report’s inconsistency with the weight of the medical evidence.

The employer further argued reemployment benefits were not contested until February 25, 2000, and, therefore, the employee’s request for attorney’s fees going back to August 18, 1999 is improper. Furthermore, the employer claimed the requested hourly rate of $250.00 is excessive in light of the hourly rate charged by appropriate comparators.

The employee argued the RBA Designee’s decision must be reviewed under an abuse of discretion standard under AS 23.30.041(e). The employee argued the abuse of discretion standard, as outlined in Tobeluk v. Lind, 589 P.2d 873 (Alaska 1979), requires that the Board affirm the RBA Designee’s decision, unless we find it was arbitrary, capricious, manifestly unreasonable or that it stemmed from and improper motive. According to the employee, the RBA Designee’s determination was none of the above.

The employee asserted the RBA Designee may choose a physician to rely upon, and she chose Dr. Dean, the employee’s treating physician. The employee asserted the only requirement of the RBA Designee is that she consider the treating physician’s opinion as determined in Irvine v. Glacier General Construction, 984 P.2d 1103 (Alaska 1999). Dr. Dean determined on September 16, 1999 that the employee could perform the job of cashier-checker as described in SCODOT only with assistance lifting over 10 pounds. The employee pointed out Dr. Dean made no reference in this report to lifting from the bottom of a basket.

The employee argued the RBA Designee did not abuse her discretion by relying upon Dr. Dean’s opinion. Further, the determination that the employee was eligible for reemployment benefits falls squarely within the Konecky case, as Dr. Dean modified the SCODOT, and an employee cannot be approved for a job with any modification of the SCODOT.

I. REEMPLOYMENT BENEFITS ELIGIBILITY

Under AS 23.30.041(d), we must uphold a decision of the RBA Designee absent "an abuse of discretion on the administrator’s part." 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). Additionally, 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 (Alaska 1962).

In the Administrative Procedure Act, the legislature has provided another definition to be used by the courts in considering appeals of administrative agency decisions:

AS 44.62.570.

On appeal to the courts, our decision reviewing the RBA Designee’s determination is subject to reversal under the abuse of discretion standard of AS 44.62.570, incorporating the substantial evidence test. The Board’s concern with meeting that standard on appeal leads it 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 by upheld." Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978)(footnotes omitted).

AS 23.30.041 provides, in part:

1. the employee’s job a the time of injury; or
2. other jobs that exist in the labor market that the employee has held or received training for within ten years before the injury or that the employee has held following the injury for a period long enough to obtain the skills to compete in the labor market, according to specific vocational preparation codes as described in the 1993 edition of the United States Department of Labor’s, "Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles."

We now consider whether the RBA Designee’s decision is supported by substantial evidence. See, Yahara v. Construction & Rigging, Inc., 851 P.2d 69 (Alaska 1993). Substantial evidence is that which a reasonable mind, reviewing the record as a whole, might accept as adequate. Id. In Yahara, the Supreme Court found one medical opinion that employee was only capable of light to medium work was substantial evidence to support the RBA’s decision, despite the opinion of another physician that the employee was capable of heavy work. Id. If, in light of the record as a whole, we find the RBA Designee’s decision is not supported by substantial evidence, we will conclude the RBA Designee abused her discretion and will remand the matter for reexamination of the record and necessary action.

We find we must strictly apply the SCODOT job descriptions when determining reemployment benefits eligibility under AS 23.30.041(e). Konecky v. Camco Wireline, Inc., 920 P.2d 277 (Alaska 1996). We find Dr. Dean, the employee’s treating physician, completed SCODOT assessment forms on September 16, 1999 and determined the employee could perform the job of cashier-checker, though she could not lift over 10 pounds and "must have assistance in exerting force or lifting over 10 pounds." We find Dr. Dean’s modification of the SCODOT description amounts to a disapproval of the employee’s ability to return to work as a cashier-checker. We note that nowhere in Dr. Dean’s September 16, 1999 report does she mention lifting from the bottom of the basket, despite the employer’s concern that the physicians in this case impermissibly relied upon the PCE findings. Rather, Dr. Dean squarely addressed the requirements in the SCODOT job description as requested.

Moreover, we find a review of the medical records demonstrate Dr. Dean carefully monitored the employee’s use of her left hand. Dr. Dean initially restricted the employee to no use after surgery and then restricted her to no lifting over 5 pounds in February, June and August of 1998. In addition, on August 11, 1999, Dr. Dean determined the employee must be in a job in which no lifting is required. We find Dr. Dean’s continued attention to the employee’s ability to lift weight with her left hand lends credibility to the conclusions in her September 16, 1999 SCODOT assessment.

We recognize that Dr. Marble and Dr. Smith modified the employee’s return to work as a cashier-checker with an apparent eye towards the PCE findings. Nevertheless, we conclude Dr. Dean’s September 16, 1999 SCODOT assessment, bolstered by her August 11, 1999 findings, is substantial evidence supporting the RBA Designee’s determination that the employee could not return to work as a cashier-checker and, thus, was eligible for reemployment benefits. Pursuant to Yahara, the RBA Designee could properly rely upon one physician’s medical opinion.

We further note Dr. Smith concluded that the employee "might possibly" be able to perform work as a cashier-checker with help lifting items out of the cart. Regardless of Dr. Smith’s reference to the PCE job simulation task, his approval of the employee’s return to work as a cashier-checker is clearly speculative.

For the above reasons, we conclude the RBA Designee did not abuse her discretion in finding the employee eligible for reemployment benefits.

2. ATTORNEY’S FEES

We next consider the employee’s request for attorney’s fees and costs. AS 23.30.145 provides in part:

1. If an employer fails to file timely notice of controversy or fails to pay compensation or medical and related benefits within 15 days after it becomes due or otherwise resists the payment of compensation or medical and related benefits and if the claimant has employed an attorney in the successful prosecution of his claim, the board shall make an award to reimburse the claimant for his costs in the proceedings, including a reasonably attorney fee. The award is in addition to the compensation or medical and related benefits ordered.

We have previously concluded a rehabilitation evaluation under former AS 23.30.041 is a valuable benefit for which attorney’s fees are due under AS 23.30.145(b). Emery v. Buchanan Construction, AWCB Decision No. 93-0184 (July 23, 1993). Based on the facts in this case, we find the employer has resisted payment of reemployment benefits since October 14, 1999 for the purposes of an award of attorney’s fees under AS 23.30.145(b). In its October 14, 1999 letter to Ms. Weglinski, the employer asserted the employee was physically capable of working as a nursery school attendant, a doughnut machine operator, a doughnut maker and a fast food manager per Dr. Marble. We find this represents the first indication of substantial resistance on the employer’s part. Thus, we award the employee attorney’s fees in accordance with Mr. Jensen’s March 14, 2000 affidavit since October 14, 1999.

Subsection 145(b) requires that the attorney’s fees awarded be reasonable. Our regulation 8 AAC 45.180(d) requires that a fee awarded under subsection 145(b) be reasonably commensurate with the work performed. It also requires that we consider the nature length and complexity of the services performed, as well as the amount of benefits involved.

The employer objected to Mr. Jensen’s request for a $250.00 hourly rate on the basis that attorneys with comparable experience receive less than $250.00 per hour. We find Mr. Jensen was recently awarded an hourly rate of $215.00 per hour for attorney’s fees and $90.00 per hour for paralegal fees in Custard v. Municipality of Anchorage, AWCB Decision No. 99-0216 (October 28, 1999), as he noted in his March 14, 2000 Affidavit of Counsel.

Consequently, we find the award of attorney’s fees at an hourly rate of $215.00 (paralegal rate of $90.00 per hour) is reasonable in light of employee’s counsel’s experience, the nature, length and complexity of the services performed, as well as the amount of benefits involved. Moreover, we find the employer did not specifically object to the amount of legal costs in this matter. Therefore, in accordance with the above, we will award attorney’s fees totaling $3,440.00 and costs totaling $213.60.

1. The RBA Designee did not abuse her discretion in finding the employee was eligible for reemployment benefits. The employer’s appeal is denied and dismissed.
2. The employee is awarded attorney’s fees and costs since October 14, 1999 in accordance with the above.

Dated at Anchorage, Alaska this 6, day of April, 2000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Kathleen M. Snow
Kathleen M. Snow,
Designated Chairperson

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

/s/ Philip E. Ulmer
Philip E. Ulmer, Member

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

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 Decision and Order in the matter of BUNNY B. DOHRMAN employee/respondent; v. PAYLESS DRUG STORE #1360 (D), employer; TRAVELERS INSURANCE CO, insurer/petitioners; Case No. 199800246; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 6, day of April, 2000.

Brady D. Jackson, III, Clerk

SNO