90-0051

ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

SAUNDRA HUMPHREY,		)
				)
Employee,			)	DECISION AND ORDER
 Respondent,			)
				)	AWCB Case No. 8906482
v.				)
				)	AWCB Decision No. 90-0051
ANCHORAGE SCHOOL DISTRICT,	)
(Self-Insured),			)	Filed with AWCB Anchorage
				)	March 22, 1990
Employer,			)
 Petitioner.			)
				)

We decided this petition based on the written record. Employee, who represents herself, was served with a copy of the Petition, an Affidavit of Readiness for Hearing, and a letter from our staff outlining her rights and responsibilities in this matter, (May 15, 1989 letter by Patricia Shira). Employee has never responded to any of these documents. Employer and Insurer are represented by adjuster Katie Matson. We closed this record on February 21, 1990 when we next met following the expiration of the statutory time for Employee to respond to Petitioners' Affidavit of Readiness for Hearing. AS 23.30.110.

ISSUE

Under AS 23.30.175, should we grant the May 9, 1989 Petition which requests approval to adjust Employee's temporary total disability (TTD) Compensation rate to $70.91?

CASE SUMMARY

The adjuster's petition, filed May 11, 1989, indicates Employee's date of injury as April 7, 1989. A compensation report filed May 22, 1989 indicates Employee's disability began May 4, 1989 and insurer began paying TTD compensation benefits of $70.91 weekly effective May 7, 1989. (May 19, 1989 compensation report).

The compensation report also indicates Employee provided Employer with documents on Employee's gross earnings in 1987 and 1988, the two years preceding the year of injury. These wages totaled $8,000.00. Accordingly, the adjuster divided $8,000.00 by 100 to get $80.00 as Employee's gross weekly earnings (GWE). AS 23.30.220(a)(1) The adjuster found that this calculate to a TTD rate of $70.91 based on the status of single person with one dependent.

The adjuster's petition further states:

Durring [sic] the last two years claimant has only worked seven months. Of that time four months was as a home health provider and probably does not fall within the definition of being within the labor market. Durring [sic] the other three months she worked only two hours a day. Claimant now works two hours a day, for $80.00 a week.

Attached to the petition is a memorandum to Tricia Anderson from Peggy McElroy dated May 4, 1989. It states that Employee "works two hours daily as a noon duty attendant. She earns $8.00 per hour."

As noted, Patricia Shira, an Anchorage Workers' Compensation Officer sent Employee a letter outlining Employee's and Petitioners' rights and responsibilities on the petition. The letter also invites Employee to file a written objection if she believes her compensation rate would differ from that requested by Petitioners. The May 15, 1989 letter requested that Employee file this objection within 20 days. Employee has never filed an objection.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

We first find that Employee has not responded to the petition, affidavit of readiness for hearings or Ms. Shira's May 15, 1989 letter. Under 8 AAC 45.120(f), we may (but are not required to) rely on any document properly served on other parties and properly filed into our record, provided there is no request to cross-examine the author of the document. Here, we find that the documents in our record were properly served on Employee who did not request any opportunity for cross-examination. Therefore, we conclude that we may rely on the documents in the record.

Effective July 1, 1988 AS 23.30.220(a) was amended. now states in pertinent part:

The spendable weekly wage of an injured employee at the time of an injury is the basis for computing compensation. it is the employee's gross weekly earnings minus payroll tax deductions. The gross weekly earnings shall be calculated as follows:

(1) The gross weekly earnings are computed by dividing by 100 the gross earnings of the employee in the two calendar years immediately preceding the injury.

(2) if the employee was absent from the labor market for 18 months or more of the two calendar years preceding the injury, the board shall determine the employee's gross weekly earnings for calculating compensation by considering the nature of the employee's work and work history, but compensation may not exceed the employee's gross weekly earnings at the time of the injury;

(3) If an employee when injured is a minor, an apprentice, or a trainee in a formal training program, as determined by the board, whose wages under normal conditions would increase during the period of disability, the projected increase may be considered by the board in computing the gross weekly earnings of the employee.

There is no indication in the record Employee was a minor, apprentice or trainee when injured. Therefore, we conclude AS 23.30.220(a)(3) is inapplicable here.

We next determine Employee's gross weekly earnings (GWE) under AS 23.30.220(a)(1). We find, based on adjuster Matson's unsworn statement in the May 19, 1989 compensation report that Employee earned $8,000.00 in 1987 and 1988. Based on these earnings, we find here her GWE is $80.00, and her temporary total disability (TTD) compensation rate is $70.91.

Regarding a calculation of GWE under AS 23.30.220(a)(2), it appears Employee was absent from the labor market for 18 months or more in 1987 and 1988, and we find this to be the case.

There is no evidence regarding Employee's work history. Nonetheless, Employee apparently worked two hours per day and earned $80.00 per week at the time of her injury. Since compensation under subsection .220(a)(2) may not exceed GWE at the time of injury, Employee's GWE would be $80.00 anyway. Accordingly, we conclude Employee's GWE is the same amount whether calculated under subsection .220(a)(1) or .220(a)(2).

We have no reason to doubt the adjuster's assertions on the petition and the compensation report. However, in the future, we prefer that the adjuster provide wage information on a sworn affidavit. This information should include gross earnings in the two years before injury and earnings at the time of injury, and as much information as available on work and work history.

Under the above analysis, we conclude Employee's GWE is $80.00, and her TTD compensation rate is $70.91. Accordingly, the petition in this matter is granted.

ORDER

Under AS 23.30.175(a) and AS 23.30.220(a)(1), Employee's weekly rate of temporary total disability benefits shall be $70.91. The petition of Employer and Insurer is granted.

Dated at Anchorage, Alaska, this 22nd day of March 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ MR Torgerson
Mark R. Torgerson, Designated Chairman

/s/ D.F. Smith
Darrel F. Smith, Member

MRT/mrt//jw

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 an interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

a compensation order may be appealed through proceedings in 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 a-re 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 Saundra Humphrey, employee/respondent; v. Anchorage School District, (self-insured), employer/petitioner; Case No. 8906482; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 22nd day of March 1990.

Jamie Whitt, Clerk

SNO