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Bauder v. Alaska Airlines8/2/2002
times worked only part-time, and not seven days a week, the court should subtract some workdays from the total concluded by the Board.
The administrator argued and the Board found that Mr. Bauder bore the burden of proof on these issues and that he failed to provide the evidence that would establish that he was absent for more than 18 months over those two years. Mr. Bauder forcefully argues that this was a misapplication of the burden of proof. He also argues that applying this formula to his circumstances does not address his actual loss and therefore is unconstitutional. But the court need not resolve these disputes because even if the Board applied subsection (a)(2) of the statute, the result would be the same.
The Alaska Supreme Court has determined that AS 23.30.220(a)(1) may be unconstitutional in certain circumstances. In Gilmore v. Alaska Workers' Compensation Board, the court expressed its concern that the formula may, in some cases, lead to an unfair earning determination. The court explained:
Because this formula divides the employee's total gross wages over the two year period by 100 regardless of how many weeks the employee actually worked during this period, the employee's actual wage earning capacity during periods of employment is reduced in proportion to any period in which the employee was unemployed for any reason. The resulting benefits therefore may only be randomly related to the injured worker 's actual loss. This formula applies regardless of any discrepancy, no matter how large, between the result of the formula and the actual wages lost by the employee during the period of his or her disability.
But the Board specifically addressed this issue. The Board determined that:
The employee's tax records and his testimony show the employee's work for the employer during 1991 and 1992 was reasonably consistent with his earnings and pattern of work for the period of the disability. We find that the application of AS 23.30.220(a)(2) would not have substantially altered his compensation rate, in any event. The employee had a consistent pattern over a number of years, working for this employer and going to college to prepare for career employment. The employee moved into aviation career (or career preparation) work almost immediately after graduation.
If we consider the nature of the employee's work and work history under AS 23.30.220(a)(2), we find the employee would have continued the pattern of work and study during the period he received [temporary total disability] benefits.
The reliability of Mr. Bauder's past work history as a predictor of his earning potential during the time he is entitled to temporary total disability benefits presents a factual issue. Therefore, the court must determine "whether the evidence relied on [by the Board] was substantial in light of the record as a whole."
A primary purpose of Alaska's workers' compensation laws "is to predict accurately what wages would have been but for a worker 's injury." Under Gilmore the issue is whether Mr. Bauder's past work history is an accurate predictor of his future earning capacity. " here past wage levels are accurate predictors, the Board must apply the statutory formula [AS 23.30.220(a)(1)]."
The Board found, and Mr. Bauder does not dispute, that in 1991 and 1992 Mr. Bauder worked as a seasonal employee for Alaska Airlines. However, Mr. Bauder disagrees with the Board's conclusion that he would have continued to attend school and work as a seasonal employee during the time he received temporary benefits. Mr. Bauder argues that the Board ignored his testimony that he would have foregone school and accepted a f
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