JAMES D. CLIFTON,		)
				)
	Employee,		)	DECISION AND ORDER
				)	AWCB Case No. 8902691
	Applicant,		)	AWCB Decision No. 90-0097
				)	Filed with AWCB Anchorage
	v.			)	May 4, 1990
				)
WESTERN GEOPHYSICAL,		)
				)
	Employer,		)
				)
	and			)
				)
CNA INSURANCE,			)
				)
	Insurer,		)
	Defendants.		)
				)

On April 6, 1990 this matter came before the board at Anchorage on Defendants' petition to review the March 2, 1989 decision of the Reemployment Benefits Administrator (RBA). Attorney Chancy Croft represented Employee; attorney Randy Weddle represented Defendants. We closed the record when the hearing concluded.

Did the RBA abuse his discretion by finding Employee eligible for reemployment benefits only because Employee did riot qualify for a chauffeur's license due to past traffic infractions?

Employee injured his left knee on February 13, 1989 while working as a "jugger" (observer helper) for Employer. He was treated by David McGuire, M.D., who performed surgical repair on the knee on March 24, 1989. The doctor eventually rated Employee's permanent impairment at six percent of the whole man, based on the work injury.

Employee requested rehabilitation benefits, and the RBA appointed rehabilitation specialist Neil Bennett who filed his eligibility evaluation report on February 20, 1990. In his report (dated February 14, 1990), Bennett concluded Employee was eligible for rehabilitation benefits.

In his eligibility investigation, Bennett found that besides the jugger position, Employee had also worked as a crab fisherman, gillnet fisherman, and taxi driver during the ten years prior to his injury. On January 30, 1990 Bennett wrote Dr. McGuire and requested information on Employee's physical capacities for these positions. By letter dated February 6, 1990 Dr. McGuire responded in pertinent part:

(McGuire February 6, 1990 letter).

Based on this report, Bennett determined Employee was unable to return to all prior positions with the possible exception of taxi driver. Regarding the taxi driver job, Bennett indicated that Employee may or may not be able to return to this job, depending on how one reads and interprets Dr. McGuire's report.

Nonetheless, Bennett stated that "in either analysis," Employee had reported he was unable to obtain the required chauffeur's license (to be a taxi driver) until the fall of 1992 because of unspecified traffic violations. Bennett concluded Employee was eligible on the following basis: "This determination is made in consideration of the consequences of Mr. Clifton’s activities, unrelated to any of his occupations, that prevent him legally from obtaining the necessary licensure . . . to be a taxi driver. (Bennett February 14, 1990 report at 9).

In his March 2, 1990 letter of notification finding Employee eligible for reemployment benefits, the RBA stated that taxi driving was not a viable alternative, for a couple of years, because of the reported past traffic violations. This was the sole justification for finding Employee eligible.

Defendants contend that it was an abuse of discretion to find Employee eligible for benefits because of his inability to get the chauffeur's license. They assert that under AS 23.30.041(e) and the recent board decision of Burner v. Enstar Natural Gas Co., AWCB No. 89-0168 (July 6, 1989), eligibility must be based on permanent physical capacities. They argue that Dr. McGuire's report does not physically restrict Employee from returning to work as a taxi driver.

Employee urges us to uphold the RBA's decision as a reasonable interpretation of a statute that is filled with problems and loopholes. He asks us to look at the broader language of the statute which suggests employees be given a speedy remedy, including assistance to enable them to return to work.

For injuries incurred on or after July 1, 1988 AS 23.30.041(e) states:

We find that the sole reason the RBA gave for finding Employee eligible for reemployment benefits was Employee's inability to get a chauffeur's license. We find this inability unrelated to whether or not Employee has the physical capacities to keep up with the physical demands of a taxi driver. We must determine whether it was an abuse of discretion to base eligibility on this legal impediment.

"Abuse of discretion" consists of "issuing a decision which is arbitrary, capricious, manifestly unreasonable, or which stems from an improper motive." [footnote omitted]. Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979). Misapplication of the law and a failure to exercise sound, reasonable, and legal discretion also fall within the common definition of "abuse of discretion." Black's Law Dictionary 10 (Fifth Edition 1979).

The terms "physical capacities" and "physical demands" used in subsection 41(e) are specifically defined. AS 23 .30.041 (p) (4) states that ""physical capacities" means objective and measurable physical traits such as ability to lift and carry, walk, stand or sit, push, pull, climb, balance, stoop, kneel, crouch, crawl, reach, handle, finger, feel, talk, hear or see."

AS 23.30.041(p)(5) defines "physical demands" as "the physical requirements of the job such as strength, including positions such as standing, walking, sitting, and movement of objects such as lifting, carrying, pushing, pulling, climbing, balancing, stooping, kneeling, crouching, crawling, reaching, handling, fingering, feeling, talking, hearing, or seeing,"

In this case, Employee may be right when he suggests the RBA may have been attempting to fill a statutory loophole or problem when he found Employee eligible. Nonetheless, subsection 41(e) is clear in its emphasis on physical demands and physical capacities. moreover, this subsection and the above definitions are so specific that there is little room for discretion.

There is no doubt Employee cannot return to work as a taxi driver because of his legal impediment. However unfortunate this may be, we find that eligibility in subsection 41(e) must be based on his physical capacities and not on any legal or regulatory impediment. We conclude it was an abuse of discretion to decide eligibility solely on this basis.

However, based on the rehabilitation specialist's analysis of Dr. McGuire's February 6, 1990 report and on our review of that report in conjunction with the SCODOT definition for taxi driver, we are unable to determine whether eligibility can be precluded here. We find we must: remand this matter to the RBA to make a determination of Employee's eligibility based on his physical capacities and the physical demands of taxi driver.

In order to make this determination, the RBA should direct the rehabilitation specialist to request more specific information from Dr. McGuire. We believe that Dr. McGuire's letter may suggest Employee is unable to perform the physical demands of taxi driver. However, we find his letter ambiguous--as suggested by the rehabilitation specialist--and this ambiguity must be clarified before an eligibility determination should be made.

This panel believes that regardless of the statutory time limit in which to make his eligibility decision, the RBA should have the discretion to simply notify the parties that eligibility status of the employee must be put on hold or suspended until vague or ambiguous medical reports are cleared up. We believe that in the long run, this will provide a more efficient method of determining eligibility.

The Reemployment Benefits Administrator abused his discretion. We remand this matter for further investigation in accordance with this decision.

Dated at Anchorage, Alaska, this 4th day of May, 1990.

ALASKA WORKERS' COMPENSATION BOARD

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

/s/ Donald R. Scott
Donald R. Scott, Member

/s/ HM Lawlor
Harriet M. Lawlor, Member

If compensation is payable under 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 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 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 James D. Clifton, employee/applicant; v. Western Geophysical, employer; and CNA insurance, insurer/defendants; Case No. 8902691; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 4th day of May, 1990.

Clerk

SNO