RICHARD A. SIVERLY,		)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)
				)	AWCB Case No. 822192
v.				)
				)	AWCB Decision No. 90-0017
AOKI BROTHERS CONSTRUCTION,	)
				)	Filed with AWCB Fairbanks
Employer,			)	January 31, 1990
				)
and				)
				)
ALASKA NATIONAL INSURANCE,	)
				)
Insurer,			)
Defendants.			)
				)

We heard this claim for a compensation rate adjustment, penalties, attorney fees, and legal costs in Fairbanks, Alaska on January 30, 1990. Attorney Michael Stepovich represented the applicant employee and paralegal Peter Stepovich appeared to represent him at the hearing, and attorney Michael McConahy represented the defendant employer and insurer. We closed the record at the hearing's conclusion.

1. Is the employee entitled to a compensation rate adjustment under AS 23.30.220(a) (2)?

2. Is the employee entitled to a penalty under AS 23.30.155(e)?

3. Is the employee entitled to statutory minimum attorney fees and legal costs under AS 23.30.145?

The employee slipped on a piece of plastic sheeting in the snow, rupturing a disc at L5-S1, while working as an electrician for the employer on October 18, 1988. He was treated by James Gollogly, M.D., who performed a lumbar laminectomy on February 22, 1989. Dr. Gollogly found him medically stable and released him to modified work on June 21, 1989, rating his impairment at 15 percent of the whole man. On June 21, 1989 the employee was paid $20,250.00 in permanent partial benefits following the rating. On July 19, 1989 the employer filed a Notice of Controversion dated July 14, 1989, controverting all further compensation and vocational rehabilitation benefits.

The employee's attorney filed an Application for Adjustment of Claim on July 20, 1989, among other claims requesting a compensation rate adjustment under AS 23.30.220(a)(2). His attorney filed an Affidavit of Readiness for hearing on September 15, 1989, swearing that his discovery was completed and requesting a hearing.

The parties appeared for the hearing on this issue on January 30, 1990, but the paralegal representing the employee admitted that his office had not yet obtained the critical records concerning the employee's daily hours and work history from the employee's union, the International Brotherhood of Electrical Workers. The paralegal assured us that he would pursue the discovery. The documents already in the record reflect that the employee was paid for a total of 1,382 hours during 1986 through 1987, but did not indicate what days or months the employee worked. The employer did not dispute that a compensation rate might be due, but was awaiting documentation. Both parties requested a continuance. Using our discretion under 8 AAC 45.070(a) we closed the hearing.

I. Continuance

Continuances of our hearings are governed by our regulations at 8 AAC 45.074(a). That regulation provides that a continuance will only be granted for good cause. The regulation defines six categories of good cause, but the unconscionable delay in discovery by the employee's counsel does not fit within any of those categories. We conclude that a continuance under 8 AAC 45.074(a) is not warranted.

II. The Merits of the Case

AS 23.30.220 provides, in part:

Determination of spendable weekly wage.

The terms "month" and "absent from the labor market" as used in this section are not defined in statute, regulation, or Alaska State Court or case law. The Alaska Workers' Compensation Board proposed a regulation clarifying this section of the statute in 1989, but this regulation has not yet been adopted. The proposed regulation defines absence from the labor market as unemployment, and defines six months as 180 days. If the proposed regulation had been adopted, we would find it controlling for this case. Nevertheless, until such a provision is adopted we must decide each case by the preponderance of the evidence and on the basis of its peculiar facts, without the guidance of general rules.

The legislation containing the provision of AS 23.30.220(a) (2) in 1988, Senate bill 322, carried an "intent" section as a preamble. It required that the benefits system be quick, efficient, fair, and predictable. The parties each provide cogent arguments over the meaning of "absent from the labor market", but any definition involving availability for work, search for work, voluntary removal of self from work, and so on, invariably leads into a gray area of disputed fact, a fertile ground for litigation, delay, and waste. The clearest rule and the rule least subject to dispute would be to interpret "absent from the labor force" to mean "unemployed", and we would interpret the statute that way for this case. See also Langley v. Alaska Commercial Investments, AWCB No. 89-0167 (July 5, 1989). In this case the employee has failed to provide evidence concerning his days and hours of employment to enable us to interpret the statutory term "month" as it might apply to his work history. Because of this gap in the employee's presentation of facts, we would not be able to find that the preponderance of the evidence shows that the employee was unemployed for more than 18 months during 1986 through 1987. We would have to deny his request to adjust his compensation rate under AS 23.30.220(a)(2).

The resolution of the claims for penalties under AS 23.30.155(e) and attorney's fee and costs under AS 23.30.145 would be contingent to our ruling an the compensation rate adjustment.

IIV. Preservation of the Issues

8 AAC 45.195 provides, in part:

The holes in the employee's case are the result of his attorney's lack of diligence, and for that reason he is not entitled to a continuance. To consider the merits and apply the law at this time would result in the denial of the claim, penalizing the applicant for his attorney's inaction and for relying on the attorney's misleading Affidavit of Readiness to Proceed. Nevertheless, the record reflects, and the employer concurs, that there may be some merit to the request for a compensation rate adjustment claim.

8 AAC 45.195 gives us the authority to waive our procedures to prevent a manifest injust. Although this provision is rarely used, we find that this case warrants its invocation. We will waive our normal procedures, void the employee's Affidavit of Readiness as far as it relates to these issues, and preserve these issues for future consideration.

We will retain jurisdiction over these issues for 30 days. Within that time the employee must complete discovery and file a new Affidavit of Readiness to Proceed. If the affidavit is not filed within that time period we will deny and dismiss these issues from the claim.

1. We stay our proceedings under 8 AAC 45.070(a) and retain jurisdiction over the employee's claim for a compensation rate adjustment, penalty, attorney's fee, and costs for 30 days.

2. We void the employee's Affidavit of Readiness to Proceed.

3. The employee shall complete his discovery and preparation for the case, and shall file a new Affidavit of Readiness to Proceed within 30 days or we will deny and dismiss the issues being considered in this decision.

DATED at Fairbanks, Alaska, this 31st day of January, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William S.L. Walters
William S.L. Walters, Designated Chairman

/s/ Joe J. Thomas
Joe J. Thomas, Member

/s/ Steve M. Thompson
Steve M. Thompson, Member

WSLW/ml

If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 20 percent will accrue if not paid within 14 days of the due date unless interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in the Superior Court 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 compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Richard Siverly, employee/applicant; v. Aoki Brothers construction, employer; and Alaska National Insurance, insurer/defendants; Case No. 822192; dated and filed in the office of the Alaska Workers' Compensation Board at Fairbanks, Alaska this 31st day of January, 1990.

Clerk

SNO