90-0066

ALASKA WORKERS' COMPENSATION BOARD

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

MICHAEL COOPER,			)
				)
Employee,			)	DECISION AND ORDER
Respondent,			)	AWCB Case No. 8932439
				)	AWCB Decision No. 90-0066
v.				)
				)	Filed with AWCB Fairbanks
BEAVER SPORTS,			)	April 10, 1990
				)
Employer,			)
				)
and				)
				)
STATE FARM FIRE & CASUALTY,	)
				)
Insurer,			)
Petitioners.			)
				)

We are deciding this petition to adjust the employee's compensation rate on the basis of the written record, The responding employee represents himself. Gayle, White, an insurance adjuster, represents the petitioning employer and insurer. We closed the record to consider this case when we met in Fairbanks, Alaska on April 10, 1990.

ISSUE

Should the employee's compensation rate be adjusted to less than $154.00 per week under AS 23.30.175(a) and AS 23.30.220(a)(2)?

SUMMARY OF THE EVIDENCE

The employee suffered a left hernia while carrying weights downstairs on September 2, 1989, working as a sales clerk for the employer, but continued to perform his duties. He came under the care of James Borden, M.D., who performed hernia surgery on January 17, 1990. Dr. Borden restricted the employee from work from the time of the operation until February 13, 1990.

The employee paid temporary total disability benefits during the period of work restriction. It filed a petition to adjust the employee's compensation rate under AS 23.30.175(a) and AS 23.30.220(a)(1), together with an Affidavit of Compensation Rate of Less Than $154.00, which stated that the employee is a full-time student who had no documented earnings for the two years preceding his injury. The employer calculated his gross weekly earnings on his earnings at the time of the injury: $4.75 per hour, eight hours per day, and three days per week. This yielded a gross weekly wage of $114.00. The employer used this to calculate a weekly compensation rate of $97.26 from the workers' compensation rate table.

A workers' compensation officer wrote to the employee on March 9, 1990, explaining the employers' petition, its possible consequences, and inviting a response from the employee. The employee failed to answer the petition. The employer filed an Affidavit of Readiness for Hearing on March 23, 1990. The employee did not oppose the hearing request by April 2. 1990, the final day to object under 8 AAC 45.070(c). We closed the record when we next met, April 10, 1990. As neither party requested an in-person hearing, we chose to decide this petition on the basis of the documentary record. The file has no record of any wages other than those paid by the employer, where he began to work on August 1, 1989.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

AS 23.30.175 provides, in part:

Rates of compensation. (a) The weekly rate of compensation for disability or death may not exceed $700 and initially may not be less than $110. However, if the board determines that the employee's spendable weekly wages are less than $110 a week as computed under AS 23.30.220, or less than $154 a week in the case of an employee who has furnished documentary proof of the employee's wages, it shall issue an order adjusting the weekly rate of compensation to a rate equal to the employee's spendable weekly wages. If the employer can verify that the employee's spendable weekly wages are less than $154, the employer may adjust the weekly rate of compensation to a rate equal to the employee's spendable weekly wages without an order of the board.

AS 23.30.220 provides, in part:

Determination of spendable weekly wage. (a) 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:

(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 injury.

AS 23.30.265(23) provides:

payroll taxes" means

(A) the amount that would be withheld under withholding tables in effect on the January 1 preceding the injury under the Internal Revenue Code of 1954 as amended and regulations issued under the code, as though the employee had claimed the maximum number of dependents for actual dependency, blindness, and old age to which the employee is entitled on the date on which the employee is injured; and (B) the amount that is or would be deducted or withheld as of the January I preceding the injury under the Social Security Act of 1935 as amended from the amount of earnings of the employee at the time of the injury as if the earnings were earned at the beginning of the calendar year in which the employee was injured and regardless of whether the amount was actually withheld or the earnings were subject to withholding;

By the preponderance of the evidence available to us we find that the employee worked less than six months total for the years 1988 and 1989. At the time of his injury he earned $114.00 per week. By the preponderance of the evidence available in the record we find that those wages would have continued during the period of disability. Under AS 23.30.220(a)(2) we conclude that his gross weekly wage was $114.00. Considering AS 23.30.265(23), and assuming the employee is single and has no dependents, we find his spendable weekly wage is $97.26. We conclude that the employee is entitled to a weekly compensation rate under AS 23.30.175(a) equal to his spendable weekly wage of $97,26.

ORDER

The employer shall pay the employee temporary total disability at the weekly compensation rate of $97.26 under AS 23.30.175(a).

DATED at Fairbanks, Alaska, this 10th day of April, 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 Michael Cooper, employee/respondent; v. Beaver Sports, employer; and State Farm Fire & Casualty, insurer/petitioners; Case No. 8932439; dated and filed in the office of the Alaska Workers' Compensation Board at Fairbanks, Alaska this 10th day of April, 1990.

Clerk

SNO