 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Bauder v. Alaska Airlines8/2/2002
y paid a salary.
In Bailey, the Supreme Court held that returning to work "is sufficient evidence to rebut the presumption of continuing compensability for temporary total disability." Because Mr. Bauder returned to work, the presumption of compensability is overcome. But in Olson, the Alaska Supreme Court noted that it has "never indicated that obtaining `any' work terminates an employee's right to [temporary total disability] benefits." Mr. Bauder relies on this case.
In Olson, the Board denied the employee temporary benefits during the time he was capable of working as a tire shop manager. The Board emphasized that the employee had joined his father's retreading shop as an organizer/supervisor. But the Supreme Court reversed. The court ordered the Board to "consider Olson's earning potential and the availability of employment." The court emphasized that Mr. Olson was not paid for his work in his father's shop. Further, the court distinguished Bailey by noting that the employee in Bailey was earning more after his injury than he did prior to being injured.
Mr. Bauder's situation is distinguishable from that in Olson. First, Mr. Bauder was eligible for, and fully expected to be paid by NOVI. Moreover, his agreed-upon salary far exceeded what he had been earning at Alaska Airlines at the time of his injury. In fact, when he received the December 29, 1995 controversion notice for temporary benefits, Mr. Bauder testified that he did not contest it because he was expecting to be paid and did not need the benefits. Furthermore, Mr. Bauder filed a wage claim against NOVI and received a judgment in his favor.
Second, and most importantly, there is no evidence that Mr. Bauder's not being paid by NOVI was related to his injury. The purpose of workers' compensation law is "partial reimbursement for loss of earning capacity due to injury." In other words, workers' compensation disability is based primarily on an impairment in working capacity. As the Board correctly noted, Mr. Bauder's failure to be paid for his work at NOVI was not related to his work injury. Therefore he is not entitled to temporary benefits during the time he was employed by NOVI.
VII. ADJUSTMENT IN COMPENSATION RATE
Mr. Bauder argues that the workers' compensation administrator and subsequently the Board miscalculated the amount of temporary total disability benefits he was entitled to. Under AS 23.30.185, the compensation rate for temporary total disability benefits is calculated by taking 80% of the injured employee's "spendable weekly wages." An employee's "spendable weekly wages" are defined in former AS 23.30.220(a), which at the time of Mr. Bauder's injury, provided:
(a) The spendable weekly wage of an injured employee at the time of an injury is the basis for computing compensation . It is the employee's gross weekly earnings minus payroll tax deductions. The gross weekly earnings shall be calculated as follows:
(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;
(2) if the employee was absent from the labor market for 18 months or more of the two calendar years preceding the injury, the board shall determine the employee's gross weekly earnings for calculating compensation by considering the nature of the employee's work and work history, but compensation may not exceed the employee's gross weekly earnings at the time of injury[.]
The administrator calculated Mr. Bauder's "spendable weekly wage" under AS 23.30.220(a)(1). The administrator determined that Mr. Bauder had gross earnings over the previous
Page 1 2 3 4 5 6 7 8 9 10 11 12 Alaska Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|