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Dougan v. Aurora Electric Inc.6/28/2002
petition and the issue was discussed in a pre-hearing conference on March 18, 1999. Therefore, we remand this issue back to the board for a determination of whether Dougan is entitled to a compensation rate adjustment based on the amount of his employer-provided health benefits.
C. The Superior Court Erred in Remanding the Issue of a Compensation Rate Adjustment to the Board.
Aurora argues on cross-appeal that, because AS 23.30.220(a) has been amended, the case law that both the board and the superior court applied is no longer applicable. In Gilmore v. Alaska Workers' Compensation Board, we found that application of a prior version of AS 23.30.220 was unconstitutional under the Equal Protection Clause. The holding in Gilmore is largely based on the fact that wage determinations under the prior version of the statute based compensation rates exclusively on the average wage earned during a period of over a year without providing an alternate approach if the result was unfair. The amended version of AS 23.30.220 corrects that problem by providing a variety of formulas for differing employment situations. The board correctly applied the new version of AS 23.30.220(a) when it initially calculated Dougan's compensation rate. The amended statute closely follows the model law cited in Gilmore as an example of a statute that would not violate the Equal Protection Clause. The application of the test outlined by this court to deal with an unfair application of the statute is superfluous due to these amendments. Therefore, we reverse the superior court's remand of the compensation rate adjustment and hold that the Gilmore test is no longer necessary when the board's initial determination of compensation is based on the amended version of AS 23.20.220.
V. CONCLUSION
Because substantial evidence supported the superior court's decision to deny penalties and interest, we AFFIRM the denial of penalties and interest. Because the superior court dismissed Dougan's claims without providing him an opportunity to provide adequate briefing, we hold that the superior court erred in dismissing those claims. But reviewing the thirteen claims de novo, we hold that eleven of the claims are without merit and therefore AFFIRM the superior court's dismissal of them as harmless error. As to the remaining two claims (alleged violation of Dougan's due process rights by failing to rule on his discovery requests and alleged error in the compensation rate adjustment based on employer-provided health benefits), we REVERSE the superior court's dismissal and REMAND the claims to the board for factual determinations. Finally, we REVERSE the superior court's decision applying the Gilmore standard to the amended version of AS 23.30.220, because the Gilmore standard is not applicable to the revised statute; we reinstate the board's denial of a compensation rate adjustment.
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