UTLEY S. KRONENBERG, 
Employee, 
Applicant
v. 
H.C. PRICE COMPANY,
Employer,
and 
ALASKA NATIONAL INS. CO.,
Insurer,
Defendants.

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DECISION AND ORDER
AWCB Case No. 199626920
AWCB Decision No. 99-0228
Filed with AWCB Fairbanks, Alaska
On November 9 , 1999

This claim for a compensation rate adjustment and temporary total disability (TTD) benefits, interest, penalties was heard at Fairbanks, Alaska on September 23, 1999. The employee represented himself; attorney Michael McConahy represented the defendants. The record was held open to review copies of tax and other payroll records and closed when we next met, on October 14, 1999.

1. Whether the employee is due a compensation rate adjustment.
2. Whether the employee is due temporary total disability (TTD) benefits from June 2, 1998 until September 18, 1998.

The employee injured his shoulder while using bolt cutters on heavy electric wire on October 8, 1996, while working in his capacity as an electrician for the employer on the Healy Clean Coal Project (Healy project). He continued to work until he was laid off February 5, 1999.

The employee underwent a magnetic resonance imaging (MRI) scan in January 1997, which revealed a partial thickness rotator cuff tear. He underwent surgery for acromioplasty on May 5, 1997.

The defendants accepted the claim and paid temporary total disability (TTD) benefits at a rate of $110.00 per week. Upon receipt of tax returns and additional information, the defendants increased the compensation rate to $271.16 and then to $326.85 under AS 23.30.220(a)(6).

The employee argues that his compensation rate should be calculated according to 28.30.220(a)(4)(B). The defendants contend the employee's compensation rate was correctly calculated according to 28.30.220(a)(6).

In support of its conclusion the employee’s rate is presently calculated correctly, the defendants assert the employee’s reported farm losses were correctly taken into account. In computing the employee’s compensation rate, the defendants provided the employee the benefit of depreciation related to his self employment farm income, in accord with Pioneer Construction v. Conlon, 780 P.2d 995 (Alaska 1989). As mentioned, his compensation rate was increased, from $110 to $271.16 to $326.85 upon receipt of earning information and depreciation information respectively. (See compensation reports of March 12, 1997, March 18, 1997, April 9, 1997, and May 6, 1997.)

It is undisputed that the employee is a seasonal worker. In his April 22, 1999 Application for Adjustment of Claim, the employee stated under Item 25: "Employee was a seasonal or temporary worker." The employee also testified that his local union is in Minnesota and that he was working in Alaska as a "traveler." Further, the employee signed a termination notice on February 5, 1997 saying the reason for his termination was a layoff/reduction in force. At hearing, however, the employee testified he was terminated for "political" reasons concerning a dispute between his supervisor and management over his injury-related work restrictions. He said in signing the termination notice he was following standard practice of signing such documents in a spirit of cooperation and to maintain good will within the industry.

The employee’s compensation rate was calculated per item 12 (g) of the Division’s Compensation Report Form 07-6104b: "Seasonal/Temporary = earnings in calendar year immediately preceding date of injury ÷ 50 = $508.58 gross weekly wage." Anticipating that we would consider applying a "fairness" test in this case, the defendants presented the testimony of Don Neff, foreman of the project. Neff testified concerning the sequence and order of hires and lay offs for the job in question. His affidavit refers to a portion of Schedule A of the Project Labor Agreement and states, in part, as follows:

Based on this testimony, the defendants assert the employee had no expectation of additional work, regardless of his injury. Thus, the defendants contend, the calculation used to determine the employee’s compensation rate fairly, and accurately, reflects those earnings, given that the employee was released to return to work in August 1997 and he worked at two subsequent jobs in October and November 1997. The employee testified he would have worked much more if his shoulder condition had not impaired him. He believes he should have been paid temporary total disability benefits covering those periods when he was unable to work, given that he subsequently had surgery, which has helped correct the condition.

1. Compensation Rate

AS 23.30.220, as amended effective September 5, 1995, provides part:

. . . .

. . . .

. . . .

According to the defendants, the job the employee was hired to perform was not permanent; the employee was hired to work on the construction of the Healy Project, on a temporary basis, as defined by contract. The employer's supervisor, Don Neff, testified the employee was hired for the duration of the job, which ended by February 1997. Nevertheless, the employee asserts that if he had not been injured he would have been able to continue working for this or another employer. His union provided a letter stating that his job could have lasted until June, 1997 and estimated the wages he could have earned.

Based upon our review of the record, we find the employee was a "group 2" temporary worker, under the terms of his union contract. By a preponderance of the evidence before us, we find we find the employee’s job would have ended in February, 1997, regardless of whether or not he had been injured. Based upon our review of his work and work history, we find it is not clear whether he would have returned to work elsewhere as an electrician, or otherwise, or remained unemployed. Although his 1996 earnings totaled over $50,000, his previous two years’ earnings averaged only approximately half this figure. The employee submitted little evidence concerning his future employment opportunities, or evidence that he would pursue such jobs if they were available. Moreover, given his age and general health condition, including a history of smoking and heart problems, it is not clear he would have continued working, if he had not been injured.

In other Fairbanks venue cases of Thierolf and Barrette v. Alaska Petroleum Contractors, AWCB No's 96-0486, 96-0487 (December 30, 1996) we incorporated a "fairness" test in computing a compensation rate. (See, also, Lincoln v. TIC, AWCB No. 97-0212 (October 20, 1997). This approach was approved on appeal in the Fourth Judicial District case of Alaska Petroleum Contractors v. Thierolf and Barrette, Super Ct. No. 4FA-97-47 CI (September 24, 1997). Significantly, the approach was disapproved in the Third Judicial District case of H.C.Price Co. v. Vonder Haar, Super Ct No 3AN-98-6611 CI (July 21, 1999). Given the lack of evidence in this case, we decline to consider application of a "fairness" test in this case. Based on our review of the record, including our review of the employee’s work and work history, as applied to the law cited above, we find the defendant’s computations of compensation rate were correct. Accordingly, we conclude the employee’s request for a compensation rate adjustment must be denied.

II. Medical stability and recharacterization of PPI to TTD

As noted above, the employee did receive TTD benefits until he was determined medically stable and released to return to work on August 25, 1997 by his attending physician. He was given a 9% permanent partial impairment (PPI) whole person rating. On June 2 and 24, 1998, the employee was released for regular work. Once a medical opinion was received indicating that the employee was not stable and was again temporarily totally disabled, TTD benefits were recommenced on September 18, 1998. On January 12, 1999, the employee underwent additional surgery, which improved his condition. On June 7, 1999, he was again found to be medically stable and given an increased PPI rating of 11% on September 11, 1999. TTD was again commenced during the period of recovery.

Given his need for additional surgery, the employee believes he should be entitled to TTD from June 2, 1998 until September 18, 1998, and continuing until the recent date of medical stability. The defendants respond that in order to prevail on TTD for this limited window, there must be medical evidence to support the claim of temporary, total disability. The defendants also point out the employee was receiving unemployment insurance benefits from September 20, 1997 through July 18, 1998. AS 23.30.187 states: "Compensation is not payable to an employee under AS 23.30.180 or 23.30185 for a week in which the employee receives unemployment benefits." Therefore, the defendants contend, the employee is not eligible for TTD benefits during this period.

On at least one occasion, we have found and employee entitled to TTD benefits after the date of initial stability, by recharacterizing PPI to TTD benefits. Christie v. Rainbow King Lodge, AWCB Nos. 93-0196, 94-0114 (August 6, 1993, May 4, 1994) In Christie, the employee’s treating physician consistently asserted the employee needed corrective surgery. The claim was controverted by the employer, but ultimately, the surgery proved beneficial and allowed the employee to return to work. In this case, the employee was given surgery, before the initial finding of medical stability. Moreover, the treating and examining physicians in this case found that degenerative chances caused the need for additional surgery. There is no medical opinion contained in the record stating the employee was not "medically stable" and unable to work during the period of June 2, 1998 until September 18, 1998. Therefore, we find the employee’s claim for TTD benefits covering this period must be denied.

The employee’s claims for a compensation rate adjustment and temporary total disability benefits is denied and dismissed.

Dated at Fairbanks, Alaska this 9th day of November, 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Fred G. Brown
Fred Brown, Designated Chairman

/s/ Dorothy Bradshaw
Dorothy Bradshaw, Member

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be 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 party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of UTLEY S. KRONENBERG employee / applicant; v. H.C. PRICE COMPANY, employer; ALASKA NATIONAL INS. CO., insurer / defendants; Case No. 199626920; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 9^th day of November, 1999.

Lora Eddy, Clerk

SNO