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Bauder v. Alaska Airlines8/2/2002
eed to pay impairment benefits. Mr. Bauder argues that because the insurer did not controvert or pay the impairment benefit within the 21 days, the Board was obligated to accept the 25% rating.
But as the insurer correctly argues, Mr. Bauder's argument is premised on a misunderstanding of the consequences of not timely filing a controversion. When an employer neither timely pays nor controverts a claim for compensation , AS 23.30.155(e) imposes a 25% penalty to be paid "at the same time as, and in addition to" the unpaid compensation. Thus, the failure to controvert compensation within 21 days does not bar the employer from later filing a controversion nor does it mean that the level of impairment is established.
Instead, failure to file a controversion within 21 days results in a 25% penalty under AS 23.30.155(e) if the employer is ultimately found liable for the disputed compensation . Accordingly, Mr. Bauder's argument that Alaska Airlines' failure to controvert either of Dr. Boettcher's ratings within 21 days precludes them from doing so later is without merit.
VI. ADDITIONAL TEMPORARY TOTAL DISABILITY BENEFITS
Mr. Bauder next argues that the Board erred in not awarding him temporary total disability benefits while he was working for NOVI Global Investments. Temporary total disability benefits are governed by AS 23.30.185:
In case of disability total in character but temporary in quality, 80 percent of the injured employee's spendable weekly wages shall be paid to the employee during the continuance of the disability. Temporary total disability benefits may not be paid for any period of disability occurring after the date of medical stability.
Alaska Statute 23.30.395(1) defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of his injury in the same or any other employment." AS 23.30.395(21) defines "medical stability" as
the date after which further objectively measurable improvement from the effects of the compensable injury is not reasonably expected to result from additional medical care or treatment, notwithstanding the possible need for additional medical care or the possibility of improvement or deterioration resulting from the passage of time; medical stability shall be presumed in the absence of objectively measurable improvement for a period of 45 days; this presumption may be rebutted by clear and convincing evidence[.]
The presumption of compensability in AS 23.30.120(a) applies when an employer controverts continuing entitlement to temporary benefits. To overcome this presumption, the employer must introduce "substantial evidence" to the contrary. From late November 1995 until May of 1996, Mr. Bauder worked as the Director of Human Resources/Pilot for NOVI Global Investments. He was supposed to be paid a yearly salary of $60,000 and in March was given a raise to $90,000. But NOVI never paid him.
In denying Mr. Bauder's claim for temporary benefits during this period, the Board found:
Although the employee may not have received his pay from NOVI, the record is clear he worked for pay, and was entitled to pay. We find the employee's argument he is due [temporary total disability] benefits because NOVI violated its contract to pay him is disingenuous. We find the employee's resulting earning loss, and his resignation from that position, were not related to his work injury and not compensable. Vetter v. AWCB, 524 P.2d 264, 266 (Alaska 1974).
But Mr. Bauder argues that the Board erred in not awarding him temporary benefits during the time he was employed by NOVI because he was never actuall
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