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Bauder v. Alaska Airlines8/2/2002
ull-time yearly position working as a ramp agent had it been available. Further, Mr. Bauder testified that by 1995 or 1996 he would have had enough seniority to hold a full-time position.
Mr. Bauder correctly notes that the Alaska Supreme Court has recognized that " `intentions as to employment in the future are relevant to a determination of future earning capacity' in determining proper compensatory awards" and that " imited working hours following injury are not particularly relevant to a determination of a worker 's probable work patterns had no injury been sustained." But there is substantial evidence in the record to support the Board's conclusion that the temporary benefits accurately reflect Mr. Bauder's wage loss because of the injury.
Mr. Bauder has wanted to fly since at least 1988. His initial interest in working for Alaska Airlines was to pursue this goal. By 1990, he started a work pattern that would allow him to achieve his goal. He began college to pursue a degree in aviation administration and he started to fly. He went to school during the school year, and like untold numbers of other college students, he worked during the summers and, sometimes, over the Christmas school breaks to support his education.
Mr. Bauder was never a full-time, year-round employee and for good reason. Working as a ramp agent would not have allowed him to get the education and flying time he needed to be a pilot. He was a seasonal employee who worked to support his college education. To require Alaska Airlines' insurance company to pay him benefits as if he were a full-time, year-round employee would not accurately reflect Mr. Bauder's work history.
In addition, according to Alaska Airlines workers' compensation manager Donna Eglund, there were no full-time ramp-agent positions available for Mr. Bauder. In light of these factors, the Board's conclusion that Mr. Bauder would have continued to attend school full-time while working seasonally for Alaska Airlines is supported by substantial evidence.
Finally, Mr. Bauder argues that the disparity between his weekly earnings prior to his injury and his weekly compensation rate of $157.34 is unconstitutional because it is "grossly unfair." However, Gilmore does not stand for the proposition that a discrepancy between what an employee was earning at the time of his injury and his compensation rate under AS 23.30.220(a)(1) makes the application of the statute unconstitutional.
Instead, the goal is to compensate injured workers "based on their actual losses." As already discussed, it is undisputed that during the two years prior to his injury, Mr. Bauder was a college student and a seasonal employee who worked during the summers in 1991 and 1992 and during the Christmas holiday in 1992.
Therefore, Mr. Bauder's employment with Alaska Airlines in 1991 and 1992 accurately reflected the circumstances existing at the time of his injury. Under either subsection (a)(1) or subsection (a)(2) of AS 23.30.220, the temporary total disability benefits were an accurate reflection of Mr. Bauder's wage loss.
VIII. FRIVOLOUS OR UNFAIR CONTROVERSION
Mr. Bauder argues that the Board erred by failing to conclude that the workers' compensation administrator frivolously and unfairly controverted his right to benefits. Of the three controversions filed in this case, Mr. Bauder focuses on the controversion of his right to a lump sum payment of permanent partial impairment benefits filed on July 1, 1997. The relevant statute, AS 23.30.155(o), provides as follows:
The board shall promptly notify the division of insurance if the board determines that the employer's
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