MARILYN LAMOUREUX,		)
				)
Employee,			)	DECISION AND ORDER
 Respondent,			)
				)	AWCB Case No. 8917608
v.				)
				)	AWCB Decision No. 90-0053
ANCHORAGE DAILY NEWS,		)
				)	Filed with AWCB Anchorage
Employer,			)	March 23, 1990
				)
and				)
				)
FIREMAN'S FUND INSURANCE COMPANIES, )
				)
Insurer,			)
 Petitioners.			)
				)

Petitioners' request that we determine Employee's gross weekly earnings was heard at Anchorage, Alaska on March 21, 1990, based on the evidence in our record. Petitioners filed a request on September 25, 1989, that we determine Employee's gross weekly earnings to be $72.00 and her compensation rate to be $66.59. On February 26, 1990, Petitioners filed an Affidavit of Readiness for Hearing, requesting a determination based on the evidence filed with us. Employee did not request an opportunity to appear before us, nor did she object to Petitioners' request within 10 days after it was served upon her. The record was complete and ready for decision on March 21, 1990, after the time had passed for Employee to reply.

It is undisputed that Employee was injured in the course and scope of her employment on July 24, 1989. According to medical reports and compensation reports in our record, Employee is 63 years old.

Michael Eaton, M.D., indicated in his July 24, 1989, report that Employee suffered a fractured left ankle for which surgery was necessary. Although she was able to return to work full time on October 20, 1989, Dr. Eaton still restricted her from any prolonged standing or walking. (Eaton October 20, 1989 chart note). From our records, it appears Employee is a paper carrier which requires prolonged walking, and Petitioners are still paying her temporary total disability benefits.

Accompanying Petitioners' request that we determine Employee's gross weekly earnings (GWE), was an affidavit from Terry Stoddard, the adjuster handling the claim for Petitioners. The affidavit indicates that Employee provided wage documents for her earnings in the past two years, and she worked more than six months in the past two calendars years before her injury. Under AS 23.30.220(a)(1) Petitioners calculated Employee's GWE to be $72.00 and her weekly compensation rate as $66.59. Also in the file is a memorandum from Stephanie Eberhart indicating Employee's weekly profit to be about $111.50.

On November 1, 1989, our staff wrote to Employee and advised her of her rights under the Alaska Workers' Compensation Act regarding Petitioners' request. Employee did not respond.

We find that Employee did not request an opportunity to appear before us. Therefore, under AS 23.30.110 and 8 AAC 45.050(c)(2) we may act upon Petitioners' request. Based on 8 AAC 45.120, we rely upon the documents in our file in making our decision.

AS 23.30.220(a) provides in part:

Stoddard's affidavit says Employee has been employed for more than six months in the past two years. Accordingly, her spendable weekly wage must be determined under AS 23.30.220 (a) (1). Stoddard also testified that she has provided documents for all the wages earned in the two calendar years before injury and, based on those wage documents, her gross weekly earnings are $72.00. A similar affidavit was filed by K.A. Hayes on August 11, 1989.

However, the Compensation Report filed by K.A. Hayes on August 11, 1989, does not indicate that Employee submitted her wage documents to Petitioners. Instead, it indicates that Petitioners computed her compensation rate by assuming she earned $300 per month for 12 months which would equal $3,600. Petitioners then divided that sum by 50 weeks and calculated her GWE to be $72.00. Based on that GWE, Petitioners have paid her weekly temporary total disability benefits of $66.59.

We are concerned about the conflict between the affidavits and the Compensation Report. The Compensation Report does not reflect wage documents being submitted. Because of this conflict we question the accuracy of the information in the affidavits about the length of time Employee worked in the last two years. Accordingly, we conclude that we need additional information before we can determine Employee's GWE. AS 23.30.135.

We direct Petitioners to file copies of the wage documents provided by Employee and the documents that indicate she worked at least six months in the past two years. Of course, if Employee was absent from the labor market for more than 18 months in the past two years, her GWE must be determined under AS 23.30.220(a)(2) instead of AS 23.30.220(a)(1) as Petitioners requested.

Accordingly, we deny Petitioners' request until this information has been submitted and we have had an opportunity to review it. In the meantime, Employee's compensation rate is governed by AS 23.30.175(a) and is $110.00 per week.

Because Petitioners did not receive our permission to pay less than $110.00 per week, Employee is entitled to additional compensation (a penalty) under AS 23.30.155(e). Therefore, Petitioners shall pay a penalty of 25 percent of the increased compensation due from the date of injury to the present.

1. Petitioners' request that we determine Employee's gross weekly earnings under AS 23.30.220(a)(1) to be $72.00 is denied at this time. We retain jurisdiction to determine Employee's compensation rate if additional information is submitted in accordance with this decision.

2. Petitioners shall adjust Employee's compensation rate to $110.00 for each week that benefits have been paid. This rate shall continue until this order is modified by us. Petitioners may credit the benefits which they have paid to Employee to date.

3. Petitioners shall pay Employee a 25 percent penalty on the increased benefits paid under order number 2 above from the date of injury to the present.

DATED at Anchorage, Alaska this 23rd day of March, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rebecca Ostrom
Rebecca Ostrom, Designated Chairman

/s/ Mary A. Pierce
Mary Pierce, Member

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

RJO:rjo

If compensation is payable under the terms of this decision, it is due on the date of issue and penalty of 25 percent will accrue if not paid within 14 days of the due date unless an interlocutory injunction staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court brought by a part 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 Marilyn Lamoureux, employee/respondent; v. Anchorage Daily News, employer; and Fireman's Fund Insurance Companies, insurer/petitioners; Case No. 8917608; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 23rd day of March, 1990.

Clerk

SNO