CANDACE M. HOLLIDAY, 
Employee, 
Appellant
v. 
DELISIO, MORAN, GERAGHTY &,
Employer,
and 
AMERICAN MOTORISTS INS.,
Insurer,
Respondents.

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DECISION AND ORDER
ON RECONSIDERATION
AWCB Case No. 199425992
AWCB Decision No.99-0254 
Filed with AWCB Anchorage, Alaska
on December 14, 1999

We issued a Decision and Order, AWCB Decision No. 99-0200, in this matter on September 29, 1999. The employee filed a Petition for Reconsideration on October 8, 1999 on the basis that the Decision and Order did not contain a ruling on the employee’s claim for a compensation rate adjustment. On October 12, 1999, the Board granted the employee’s Petition for Reconsideration. The record was re-opened, and the Board requested that the employer submit a legal brief on the compensation rate adjustment issue. ¹ The employer submitted a legal brief on November 23, 1999 pursuant to the briefing schedule. Attorney Joseph Kalamarides represented the employee. Attorney Tasha Porcello represented Delisio, Moran, Geraghty & Zobel (employer) and its insurer, American Motorists Insurance Company (AMICO).

We closed the record at the next scheduled Board meeting, November 30, 1999. We issue this final decision on reconsideration based upon the written record and taped proceedings from the August 24, 1999 hearing.

Is the employee entitled to a compensation rate adjustment?

The employee suffered a work-related injury on September 27, 1994, when she pulled her lower back. AMICO paid temporary total disability (TTD) benefits from January 8, 1995 through January 18, 1995.² The employee’s TTD benefits were calculated based on her hourly wage at the time of her injury ($19.07 x 40 = $762.92).³ The employee’s gross earnings for the two years prior to her injury were approximately $31,044.00.⁴

The employee testified she continued to experience stiffness and pain in her low back over the next 2 ½ years. She testified she became very frustrated with her lack of improvement, and she purchased a health club membership to work on strengthening her back in January of 1998. According to the employee, she noticed a significant improvement in her back by May of 1998 and believed she was getting much better.

The employee testified she became very stiff in July of 1998 after painting a railing around the outside of her cabin. She testified she was bent over while painting but did not fall or otherwise injure her back. According to the employee, the pain increased significantly over the next several days.

Thereafter, Dr. Voke treated the employee for increased back pain and limited her to four hours of work per day from July 21, 1998 until August 25, 1998. On August 25, 1998, Dr. Voke released the employee to six hours of work per day. On September 15, 1998, Dr. Voke released the employee to eight hours of work per day.⁵

The employee requested the employer and AMICO accept TPD benefits and medical expenses related to her July 1998 back problems. On August 11, 1998, AMICO filed a Controversion Notice. On September 30, 1998, the employee filed a workers’ compensation claim for TPD benefits, medical expenses and interest. AMICO again denied the employee’s claim.⁶

While AMICO denied the claim, the employer paid the employee for the 128 hours of time loss she incurred between July 21, 1998 and September 16, 1998. The employer calculated the employee’s TPD benefits using her hourly wage at the time of her July 1998 disability, $24.09, for a total of $3,083.52.⁷ On December 17, 1998, the employee filed an amended claim and requested a compensation rate adjustment.

The employee argued, citing Peck v. Alaska Aeronautical Inc., 756 P.2d 282 (Alaska 1988), TPD benefits should be paid at her July 1998 hourly rate of $24.09. The employee argued the difference of 26% between her 1994 hourly rate and her 1998 hourly rate is substantial. The employee requested AMICO reimburse the TPD benefits to the employer, who paid her full wages for lost time.

The employer argued the employee is not entitled to a compensation rate adjustment, and her rate should be set at her 1994 hourly wage of $19.07. The employer argued that current case law does not support a compensation rate adjustment in this case. According to the employer, the legislative intent behind AS 23.30.220 and its applicable amendments is to focus on the employee’s earnings at the time of injury. The employer distinguished this case from the Peck case on the basis that Peck involved a claim for PTD benefits.

At the time of the employee’s injury with the employer, AS 23.30.220(a) provided in part:

1. the gross weekly earnings are computed by dividing by 100 the gross earnings of the employee in the two calendar years immediately preceding the injury;

The Alaska Supreme Court, in Gilmore v. The Alaska Workers’ Compensation Board, 882 P.2d 922, 929 (Alaska, October 1994), determined subsection 220(a)(1) in this version of the statute may be unconstitutional as applied in certain circumstances. The court stated in Gilmore:

We find the employee’s September 24, 1994 injury occurred prior to the Gilmore case, however, her compensation rate was set after the Gilmore decision was issued. We find, due to the employee’s reduced gross earnings in the two years prior to her injury, AMICO computed the employee’s weekly compensation rate in 1995 using the her hourly wage at the time of injury ($19.07 x 40 hrs = $762.92 gross weekly earnings (GWE)). In light of Gilmore, we find AMICO properly calculated the compensation rate for TTD benefits using an alternative method, rather than a strict application of the 1994 version of AS 23.30.220(a)(1).

However, we find no basis to adjust the hourly rate in calculating TPD benefits during the period of disability in 1998, and we find the Peck case is distinguishable. In Peck, the claimant requested an adjustment from a compensation rate determined by average weekly wages at the time of injury in 1964 ($255.00) to a rate based on the weekly wage at the time of PTD in 1982 ($1,294.00). In the instant case, the employee is requesting an adjustment from a rate based on the employee’s hourly wage during a period of TTD in 1994 ($19.07) to a rate using her hourly wage during a subsequent, limited period of TPD in 1998 ($24.09).

The Supreme Court in Peck specifically addressed the distinction between an estimate of earning capacity for the purposes of a temporary award and for the purposes of a permanent award. The Court stated, "In the latter the prediction is more complex because the compensation is for loss of earning power over a long span of time."⁹

We find, even in light of Gilmore and the 1995 amendments to AS 23.30.220, the legislature intended to avoid open-ended determinations of future earning capacity for periods of temporary or partial disability, as opposed to permanent total disability benefits. However, even assuming we analyzed this case under the Gilmore fairness doctrine, we find the compensation rate calculated using the employee’s 1994 gross weekly earnings reasonably and fairly reflects her 1998 earning capacity. Accordingly, we conclude the employee is not entitled to a compensation rate adjustment, and we must deny and dismiss her claim. Because we are not awarding a compensation rate increase, the employee is not entitled to related interest pursuant to 8 AAC 45.142(b)(1).

The employee’s claim for a compensation rate adjustment is denied and dismissed.

Dated at Anchorage, Alaska this 14 day of December 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Kathleen M. Snow
Kathleen M. Snow
Designated Chairman

/s/ S.T. Hagedorn
S. T. Hagedorn, Member

/s/ Andrew J. Piekarski
Andrew J. Piekarski, 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 CANDACE M. HOLLIDAY employee/appellant; v. DELISIO, MORAN, GERAGHTY &, employer; AMERICAN MOTORISTS INS., insurer/respondents; ;Case No. 199425992; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 14 day of December, 1999.

Brady D. Jackson, III, Clerk