JOEL C. SIGMAN, 
Employee, 
Petitioner
v. 
HARMAN EXCAVATING, INC.,
Employer,
and 
ALASKA NATIONAL INS. CO.,
Insurer,
Respondents.

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FINAL
DECISION AND ORDER
AWCB Case No. 199818327
AWCB Decision No. 99-0245 
Filed in Anchorage, Alaska
on December 3, 1999.

We heard the employee’s request for review of the Reemployment Benefits Administrator’s ("RBA") decision denying eligibility for reemployment benefits in Anchorage, Alaska on November 4, 1999. Non-attorney Scott McEntire represented the employee. Attorney Timothy McKeever represented the employer and the insurer ("employer"). We closed the record at the conclusion of the hearing.

1. Was the employee’s request for Board review timely under AS 23.30.041(d)?

2. Was the RBA’s determination the employee was not eligible for reemployment benefits under AS 23.30.041(e) an abuse of discretion?

The employee injured his back, neck and left arm on August 31, 1998, while working as a laborer for the employer.¹ The employer accepted the claim, providing medical benefits and temporary total disability (TTD) benefits.

The employee came under the care of Duane Odland, D.O. In a November 5, 1998 letter from Dr. Odland to the insurer, Dr. Odland diagnosed the employee with soft tissue injuries of the neck and back. He anticipated the employee would reach medical stability in 4-6 weeks.

Physiatrist, Stephen Marble, M.D., conducted an employer independent medical examination ("EIME") on January 8, 1999. In his report of the same date, Dr. Marble concluded the employee was medically stable. Dr. Marble assessed a 5% whole person permanent partial impairment (PPI) rating, in accordance with the 4^th edition of the AMA Guidelines to the Evaluation of Permanent Impairment, DRE Thoracolumbar Category 2 description. Furthermore, Dr. Marble determined the employee could perform medium work, with maximum occasional lifts of 50 pounds, but could probably not perform the duties of Construction Worker II, which requires very heavy lifting/labor.

On January 28, 1999, the employee underwent physical capacity testing at OrthoSport/B.E.A.R. The results of the testing showed the employee could perform work in the medium-heavy category, but could not perform the duties of either Construction Worker I or II, which require heavy and very heavy lifting/labor, respectfully.

On February 17, 1999, Dr. Eric Carlsen examined the employee. The employee wanted a second opinion regarding Dr. Marble’s permanent partial impairment rating.Dr. Carlsen diagnosed a thoracolumbar sprain/strain, both related to work, and preexisting mild thoracolumbar spondylosis and degenerative disc disease of the lumbar spine. Dr. Carlsen agreed with Dr. Marble the employee was medically stable, but determined the employee was 10% whole person impaired as a result of his work. Dr. Carlsen also determined the employee’s physical capacities were in the medium duty range. Dr. Carlsen noted the employee reported having a learning disability, and was unable to read.²

The employee requested a reemployment benefits eligibility evaluation in a letter dated February 3, 1999. The RBA referred the employee to rehabilitation specialist Steve Coley on March 24, 1999 to conduct a reemployment benefits eligibility evaluation.

Mr. Coley issued a report dated May 4, 1999 in which he lists the occupations the employee had held, or trained for, in the last ten years. He identified the following jobs, as described in the U.S. Department of Labor’s "Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles" (SCODOT): Construction Worker II, Flagger, Tow-Truck Operator and Sandblaster.

Dr. Carlsen approved the employee for three of the SCODOT job descriptions applicable to his work in the past ten years: Flagger, Tow-Truck Operator and Sandblaster.³ Flagger is described as light duty. Tow-Truck Operator and Sandblaster are described as medium duty. Mr. Coley only performed a labor market survey for the Tow-Truck Operator position. Mr. Coley determined there was a viable labor market, based on two current openings for Tow-Truck Operators in the Palmer-Wasilla area and two advertisements for towing operators in the Anchorage area. Mr. Coley did not do a labor market analysis for either the Flagger or Sandblaster positions.

Mr. Coley also stated in his report that the employee completed the eleventh grade, but could not advance, and was diagnosed with dyslexia by a speech therapist in Moab, Utah. Mr. Coley did not indicate in his report whether the employee’s dyslexia condition would hamper the employee’s reemployment prospects.

Because the treating physician released the employee to three jobs held or trained for within ten years of the injury, Mr. Coley recommended the employee be found not eligible to receive reemployment benefits. RBA Douglas Saltzman issued his decision on May 18, 1999, finding the employee not eligible for reemployment benefits under AS.30.041(e)(2), because Dr. Carlsen approved his return to three positions the employee had held in the past ten years for a time sufficient to meet specific vocational preparation (SVP) requirements. RBA Saltzman also determined, based upon Mr. Coley’s report, there was an adequate labor market with reasonable vacancies for the position of Tow-Truck Operator.

On August 9, 1999, the employee appealed the eligibility decision.⁴ The employee indicated he was, "unable to physically perform duties of Dr. Carlsen’s approved jobs."⁵

At the hearing, the employee testified he was dyslexic and unable to read even a comic book. He testified he attended special classes while in school because of his disability. The employee testified he was unable to read the RBA decision. He further testified he received the decision only one day before which to request a hearing to review the RBA decision. The employee testified he went to an attorney, who told him he could not do anything for him. He testified when he consulted with other injured workers, he decided to appeal the RBA decision, even though the deadline had passed.

The employer’s September 13, 1999 Answer states the RBA’s determination the employee was not eligible for benefits was supported with substantial evidence and was not an abuse of discretion. Additionally, the employer asserted the employee had not timely appealed the determination. Consequently, the employer contended the employee is not eligible for reemployment benefits.

At the hearing, the employee testified he was self-employed as a tow-truck driver for almost three years. However, the employee testified, his wife assisted him by showing him on a map where to go and spelling the names of all of the streets he would encounter en route to a job. The employee testified it was necessary to consult with his wife in this manner for every job. The employee explained he would compare the letters on street signs along his route to the letters in the words his wife wrote down for him, thereby finding his way to a job. The employee testified that, even with his wife’s help, he would often get lost, and would need to call his wife for further assistance. The employee testified he would not have been able to operate his tow-truck business without his wife’s assistance because of his dyslexia.

Mr. Coley testified at the hearing by telephone. Mr. Coley said the employee told him in their interview he had difficulty with reading, but not that he was unable to read at all. Mr. Coley testified the employee learned the jobs he previously held mostly by observing others. Mr. Coley testified about his assumption the employee had a functional command of basic educational tools because he had completed the 11^th grade, and had successfully held jobs in the past. Mr. Coley testified that the jobs of Flagger, Tow-Truck Operator and Sandblaster require a passive vocabulary of 5,000 words, which is the equivalent of a comic book reading level. Mr. Coley testified that the jobs of Flagger, Tow-Truck Operator and Sandblaster have a level 2 general educational development (GED) requirement per the SCODOT.

At the hearing, the employee argued he needs reemployment benefits because he does not read and, therefore, cannot compete in the labor market for Tow-Truck Operators. The employee argued the SCODOT incorporates GED requirements that he does not meet. The employee also argued his dyslexia condition is a physical impairment for the purposes of AS.23.30.041(e) and should be considered in conjuction with his work-related disability. The employee also argued the time limitations in subsection .041(d) are procedural in nature. Therefore, the Board should waive the time requirement under subsection .041(d) pursuant to 8 AAC 45.195, particularly in his case, because of his inability to read, and his reasonable reliance on the advice of an attorney.

The employer argued Dr. Carlsen cleared the employee for work as a Flagger, Tow-Truck Operator and Sandblaster, knowing the employee reported a learning disability and an inability to read. The employer argued the employee meets the specific vocational preparation (SVP) codes described in the SCODOT for Flagger, Tow-Truck Operator and Sandblaster, based on his length of work experience in each of these positions. The employer also argued subsection .041(e) does not require an analysis of an employee’s GED. The employer argued an adequate labor market exists for the position of Tow-Truck Operator, and the RBA’s determination should be affirmed. The employer argued the assistance the employee received from his wife while self-employed as a Tow-Truck Operator was akin to what a dispatcher would do and, therefore, should not be considered experience in "sheltered"vocational environment.

We find, based on the employee’s testimony and his August 9, 1999 Amended Worker’s Compensation Claim, the employee failed to request a hearing to review the RBA determination within 14 days after receipt, as required by subsection .041(d) and as clearly printed on the RBA’s decision itself. However, we also find, based on his testimony, the employee very much needs vocational therapy. We make this finding based on the following:

We find, based on the employee’s testimony, he could not read the RBA determination, when he received it just one day before the deadline for requesting review. We find, based on the employee’s testimony, he sought an initial review of the RBA’s determination by a person capable of reading, an attorney, who advised him to abandon his claim. We find, again based on the employee’s testimony, he subsequently sought further advice from other people capable of reading, who nevertheless urged him to seek an appeal of the RBA’s determination. We find, unfortunately, this advice came too late.

Our regulation, 8 AAC 45.195, only allows the Board discretion to waive a procedural requirement under our regulations when a manifest injustice will result from strict application. Our regulation does not vest the Board with power to waive a statutory requirement enacted by the legislature.

The Supreme Court for the State of Alaska has held that if the statute is unambiguous and expresses the intent of the legislature, and if no ambiguity is revealed by legislative history, the courts and this Board must not modify or extend a statute by judicial construction or administrative fiat.⁶ Although the Konecky Court was interpreting subsection .041(e), the Court noted that the overall legislative purpose of the 1988 amendments was to have "AS 23.30. be interpreted so as to ensure the quick, efficient, fair, and predictable delivery of indemnity and medical benefits to injured workers at a reasonable cost to employers." ⁷

Therefore, while the employee’s circumstance is unfortunate, it cannot overcome the clear language of subsection .041(d). As the Konecky Court noted with regard to subsection .041(e):

Based on Konecky, we conclude, as we did in a prior Board decision "[i]f the employee does not request an appeal within the time required by AS 23.30.041(d), he has lost his right to file the appeal." Masters v. Yak, Inc., AWCB Decision No. 94-0042 (March 3, 1994). Therefore, while we are sympathetic to the employee’s situation, we conclude the employee has lost his right to appeal. Accordingly, we will dismiss the employee’s request for review of the RBA determination of ineligibility for failure to file within the time required by AS 23.30.041(d).

Despite our decision to dismiss the employee’s claim, we nevertheless find it is appropriate to make additional findings on the merits of the employee’s request for review, in the event the employee appeals the Board’s decision, and prevails.

II. REEMPLOYMENT BENEFITS DECISION

A. STANDARD OF REVIEW

Under AS 23.30.041(d), we must uphold a decision of the RBA absent, "an abuse of discretion on the administrator’s part." The Alaska Supreme Court has stated abuse of discretion consists of, "issuing a decision which is arbitrary, capricious, manifestly unreasonable, or which stems from an improper motive." Sheehan v. University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985); Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979) (footnote omitted). Additionally, an agency’s failure to properly apply the controlling law may also be considered an abuse of discretion. Manthey v Collier, 367 P.2d 884 (Alaska 1962).

In the Administrative Procedure Act, the legislature has provided another definition to be used by the courts in considering appeals of administrative agency decisions:

AS. 44.62.570.

On appeal to the courts, our decision reviewing the RBA’s determination is subject to reversal under the abuse of discretion standard of AS 44.62.570, incorporating the substantial evidence test. The Board’s concern with meeting that standard on appeal leads it to apply a substantial evidence standard in our review of an RBA determination.

Applying a substantial evidence standard, a "[reviewer] may not reweigh the evidence or draw its own inferences from the evidence. If, in light of the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, then the order...must be upheld." Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978) (footnotes omitted).

1. the employee’s job at the time of injury; or
2. other jobs that exist in the labor market that the employee has held or received training for within ten years before the injury or that the employee has held following the injury for a period long enough to obtain the skills to compete in the labor market, according to specific vocational preparation codes as described in the 1993 edition of the United States Department of Labor’s "Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles."

Determining whether an abuse of discretion has taken place is aided by our practice of allowing additional evidence into the record at the hearing. The practice is based on the rationale expressed in several superior court opinions addressing that issue on appeal of our decisions following the hearings. See, Kelley v. Sonic Cable Television, 3AN 89-6531 CIV (Alaska Ct. of Appeals, February 2, 1991); Quirk v. Anchorage School District, 3AN-90-4509 CIV (Alaska Ct. of Appeals, August 21, 1991). Nevertheless, our regulation, 8 AAC 45.070(b)(1)(A), states the Board will not consider additional evidence, if the party offering that evidence has failed to exercise reasonable diligence in developing and presenting that evidence. See Kin v. Norcon, AWCB Decision No. 99-0041 (March 1, 1999); Lemire v. B&R Construction, AWCB Decision No. 99-0019 (January 28, 1999); Buxton v. Cameron Corporation, AWCB Decision No. 99-0005 (January 8, 1999).

In this case, the employee testified at the hearing that he required significant assistance from his wife to adequately perform his duties as a self-employed Tow-Truck Operator. We find nothing in the record to show that either Mr. Coley or the RBA were aware of this evidence

We find the employee did tell Dr. Carlsen he could not read.⁹ The employee also informed Mr. Coley he was dyslexic, as evidenced by Mr. Coley’s May 4, 1999 report. We find the employee was forthcoming and attempted to provide meaningful information pertaining to his reading capabilities. We find, therefore, the additional evidence regarding the manner in which the employee’s reading abilities impacted his duties as a Tow-Truck Operator is not barred by a lack of diligence on the part of the employee. 8 AAC 45.070 (b)(1)(A). In any event, we find that to not consider this evidence of the employee’s dyslexia condition and the inadequacy of his reading abilities which flow from his dyslexia would result in a manifest injustice. 8 AAC 45.195.

Therefore, we now consider whether the RBA’s decision is supported by substantial evidence on the record as a whole, including evidence of the employee’s dyslexia. See Yahara v. Construction & Rigging, Inc., 851 P.2d 69 (Alaska 1993). If, in light of the record as a whole, we find the RBA’s decision is not supported by substantial evidence, we will conclude the RBA abused his discretion and will remand the matter for reexamination of the evidence and necessary action, including development of the record.

We find that Dr. Carlsen approved the employee’s return to work as a Flagger, Tow-Truck Operator and Sandblaster, three positions identified by rehabilitation specialist Coley as occupations which qualify as work held or trained for in the last ten years by the employee. We find Mr. Coley only provided a labor market analysis for a Tow-Truck Operator in his report.

We find employee’s testimony that he required substantial assistance from his wife during his self employment venture as a tow-truck driver is evidence that he alone, or even with the compassionate assistance of a dispatcher, does not have the skills to "compete in the labor market" generally as a Tow-Truck Operator pursuant to AS 23.30.041(e).¹⁰ Accordingly, the RBA should not have considered the position of Tow-Truck Operator as a viable position for the employee in the labor market, when considering the employee’s eligibility for rehabilitative benefits. We find the RBA did not have substantial evidence to support his determination the employee could work as a Tow-Truck Operator.

Because rehabilitation specialist Coley did not provide a labor market analysis the Flagger or Sandblaster positions, as required by 8 AAC 45.525(b)(4), the RBA’s determination the employee was ineligible for reemployment benefits, because he could work in those positions, is not supported by substantial evidence. As such, we find the RBA abused his discretion. Nevertheless, we will not remand this claim for reexamination or further development of the record, given our decision to dismiss the employee’s claim under 23.30.041(d), unless the employee successfully prosecutes an appeal of our decision.¹¹

1. The employee’s claim for reemployment benefits is denied and dismissed pursuant to AS 23.30.041(d).

2. If the employee prevails on appeal, we remand the claim to the RBA for reexamination and further development of the record in accordance with this decision.

Dated at Anchorage, Alaska this 3rd day of December, 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rhonda L. Reinhold
Rhonda Reinhold,
Designated Chairman

/s/ Florence Rooney
Florence Rooney, 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 Final Decision and Order in the matter of JOEL C. SIGMAN employee/petitioner; v. HARMAN EXCAVATING, INC., employer; ALASKA NATIONAL INS. CO., insurer/respondents; Case No. 199818327; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 3rd day of December, 1999.

Debra C. Randall, Clerk