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Bauder v. Alaska Airlines8/2/2002
PPEAL
Mr. Bauder raises five main arguments on appeal. First, he argues that he is entitled to benefits based on Dr. Boettcher's opinion that he was permanently impaired at a 25% level. Next, he argues that he is entitled to temporary total disability benefits during the time he worked at NOVI Global Investments from about November 1995 to May of 1996.
Third, Mr. Bauder argues the Board should have determined his spendable weekly wage for temporary benefits under former workers' compensation statute AS 23.30.220(a)(2) rather than subsection (1). Further, Mr. Bauder argues that as applied to him, AS 23.30.220(a)(1) is unconstitutional.
Fourth, Mr. Bauder claims that the July 1, 1997 controversion was frivolous or unfair. And finally, Mr. Bauder asserts that he is entitled to penalties, interest, attorney's fees and costs.
IV. STANDARDS OF REVIEW
The Alaska Supreme Court recognizes four standards to be employed by courts when reviewing administrative decisions. When factual issues are disputed the court must apply the "substantial evidence" standard. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
When legal issues are raised that involve agency expertise or fundamental policy formation, the court employs the deferential "reasonable basis" test. That is, the court defers to the agency decision as long as it is reasonable and supported by the evidence. For legal determinations not involving agency expertise courts use the "substitution of judgment" standard. Application of this standard means that the court can substitute its judgment on a legal question that involves statutory interpretation or other legal issues where the courts have specialized knowledge and experience.
In this case, all Mr. Bauder's arguments involve some question of law and some question of fact. The court employs the substitution of judgment test to issues of law raised by Mr. Bauder and the substantial evidence test to all questions of fact.
The disputes over the permanent partial impairment rating and whether Mr. Bauder should have received temporary total disability benefits from November 1995 to May 1996, raise, primarily, questions of fact. Therefore, the court must review the Board findings on these issues to see whether they are supported by substantial evidence. But some of Mr. Bauder's arguments on these issues also raise questions of law. These issues are addressed under the substitution of judgment standard.
The issue concerning the temporary total disability benefit calculation raises, primarily, a question of law. Because this legal question centers on the application of statutes and case law, the court must reach an independent conclusion.
The issues concerning the controversion notices, penalties, interest, fees and costs raise questions of fact and law. Therefore the court employs the substantial evidence test and the substitution of judgment test.
V. PERMANENT PARTIAL IMPAIRMENT RATING
Several doctors over the years treated Mr. Bauder's back injury. Dr. Boettcher treated Mr. Bauder's high school injury and operated on his back in 1985. Drs. Funk, Kleiner, Boettcher and Laurnen treated Mr. Bauder's 1993 work-related injury. Dr. Laurnen twice operated on Mr. Bauder's back and Dr. Boettcher twice rated Mr. Bauder as having a 25% permanent partial impairment. Dr. Hadley, the adjuster's physician, rated Mr. Bauder as having a 10% impairment and, after the first hearing, Dr. Smith saw Mr. Bauder at the Board's request and rated him as having a 15% impairment.
The Board found that
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