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Bauder v. Alaska Airlines8/2/2002
two calendar years before the accident of $23,563.00. Eighty percent of this number after deducting payroll taxes and dividing by 100 as required by the statute is $157.34. The Board agreed with this calculation because it found that Mr. Bauder was absent from the labor market less than 18 months during 1991 and 1992.
Mr. Bauder argues that the Board should have calculated his spendable weekly wage under AS 23.30.220(a)(2) because he claims he was absent from the labor market for 18 months in 1991 and 1992 while he was a student in North Dakota. The issue then is whether there is substantial evidence to support the Board's finding that Mr. Bauder "was absent from the labor market for less than 18 months during 1991 and 1992."
The Board has interpreted "18 months or more of the two calendar years preceding the injury" to mean working less than 183 days of the two previous years or less than 1040 hours of work during those two years. The Board concluded that Mr. Bauder worked 13 weeks in 1991 and roughly 18 weeks in 1992. Therefore, according to the Board's calculations, Mr. Bauder was present in the labor market for a total of 31 weeks, or 7.75 months in 1991 and 1992.
The Board's calculations appear to be supported by substantial evidence. The evidence establishes that Mr. Bauder worked for Alaska Airlines for approximately 12 weeks in the summer of 1991 and he commercial fished for one or two weeks. Similarly, in 1992, the evidence establishes that Mr. Bauder again worked for Alaska Airlines for approximately 12 weeks over the summer and commercial fished for one or two weeks. Additionally, he worked at Alaska Airlines for about 10 days during the Christmas holiday in 1992.
This evidence establishes that Mr. Bauder was employed for at least 28 weeks (seven months), or to put it in terms of AS 23.30.220(a)(2), Mr. Bauder was absent from the labor market for 17 months during 1991 and 1992. Although the court finds that Mr. Bauder worked for three fewer weeks than the Board, this does not change the Board's determination that AS 23.30.220(a)(2) does not apply. Even by the court's more conservative calculations, Mr. Bauder was not "absent from the labor market for 18 months or more of the two calendar years preceding the injury."
As an alternative method of determining whether AS 23.30.220(a)(2) applies, the Board calculated the number of hours that Mr. Bauder worked in 1991 and 1992. The Board found that Mr. Bauder worked 1705 hours during these two years. In arriving at this conclusion, the Board relied on Mr. Bauder's testimony that he worked on average 55 hours a week.
This calculation is problematic because it appears that Mr. Bauder's answer about the number of hours he worked had to do with the summer of 1993. The number of hours worked by Mr. Bauder in 1993 is not relevant. The issue is the number of hours worked in the two calendar years preceding the injury, 1991 and 1992.
Another way to calculate the number of hours Mr. Bauder worked in 1991 and 1992 is to divide his income by his hourly wage. In 1991, Mr. Bauder earned $6,131.57 at Alaska Airlines and was paid $9.70 per hour. Thus, he worked approximately 632 hours in 1991 at the airline. Similarly, in 1992, Mr. Bauder earned $8,355.94 at Alaska Airlines and was paid $11.63 per hour. Thus, he worked approximately 718 hours in 1992. Based on his yearly earnings and hourly wage, Mr. Bauder worked for a total of approximately 1350 hours for Alaska Airlines in 1991 and 1992.
But, as pointed out by Mr. Bauder, this calculation is also problematic because it fails to take into account overtime pay. Similarly, Mr. Bauder asserts that because he some
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