Linda McCray v. Anchorage School District

ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

LINDA J. MCCRAY,
Employee,
Applicant,
v.
ANCHORAGE SCHOOL DISTRICT,
Employer,
and
ANCHORAGE SCHOOL DISTRICT.,
Insurer,
Defendants. / )
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DECISION AND ORDER
AWCB Case No. 200000308
AWCB Decision No. 00-0260
Filed with AWCB Anchorage, Alaska
December 20, 2000

On November 29, 2000, in Anchorage, Alaska, we heard the employee’s claim for additional permanent partial impairment (“PPI”) benefits, interest and attorney’s fees. Attorney Joseph A. Kalamarides represented the employee. Attorney Joseph M. Cooper represented the employer. We closed the record of the conclusion of the hearing.

ISSUES

1.  Shall we award the employee additional permanent partial impairment benefits?

2.  Shall we award the employee interest?

3.  Shall we award the employee her attorney fees?

SUMMARY OF THE EVIDENCE

The employee was injured in the course and scope of her employment on January 3, 2000. She was working for the employer as a custodian when she slipped and fell, injuring her lower back. The employer accepted the compensability of the claim. On July 17, 2000, Michael James, M.D., determined the employee was medically stable. He performed a PPI rating on her lower back and concluded she suffered a 10% permanent partial impairment of the whole person because of her January 3, 2000 injury. The employer paid a lump sum of $13,500 for the employee’s PPI rating.

The employer based this PPI payment on AS 23.30.190(a) as it existed on the day of the employee’s injury. On the date of the employee’s injury, AS 23.30.190(a) read:

In case of impairment partial in character but permanent in quality, and not resulting in permanent total disability, to compensation is $135,000 multiplied by the employee’s percentage of permanent impairment of the whole person.

Legislative History

In 2000, the legislature significantly amended the Alaska Workers’ Compensation Act (“Act”). The 2000 amendments to the Alaska Workers’ Compensation Act were originally developed in a committee of labor and management representatives. This committee, known as the “ad hoc committee,” developed and presented to the legislature the original version of the 2000 legislative changes. The original bill was called HB No. 419, and the amendment to AS 23.30.190(a) was made in section 17 of that bill. The original version of HB 419 contains an “applicability” clause at original section 20. It stated:

Sec. 20. The uncodified law of the State of Alaska is amended by adding a new section to read:

APPLICABILITY. The changes made by secs. 3-5 and 14-19 of this Act apply only to an injury sustained on or after the effective date of secs. 3-5 and 14-19 of this Act.

Sec. 21. The uncodified law of the State of Alaska is amended by adding a new section to read:

TRANSITION: REGULATIONS. The agency affected by the changes made by this Act may proceed to adopt regulations under AS 23.30.005 to implement the changes. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not before the effective date of secs. 2 - 19 of this Act.

Sec. 22. Section 21 of this Act takes effect immediately under AS 01.10.070(c).

Sec. 23. Except as provided in sec. 22 of this Act, this Act takes effect July 1, 2000.

The first committee assigned to hear House Bill 419 was the House Labor and Commerce Committee. On March 27, 2000, a hearing was held. Two amendments were made to the original HB 419 at the end of that hearing. (Workers’ Compensation: Hearing on HB 419 – Workers’ Compensation Before the House Labor and Commerce Standing Committee, 21st Legis. (Alaska 2000)). The second amendment was offered by Representative Halcro -- to add a new section 20 and re-number the remaining portions of the bill. Representative Halcro’s amendment inserted a new section (which did not survive the final version of the bill), which stated:

Sec. 20. AS 23.30 is amended by adding a new section to read:

Sec. 23.30.280. Coverage for religious nonmedical health care services.

Nothing in this chapter shall be construed to prevent an employee with an injury from relying in good faith on religious nonmedical services for healing through prayer alone or care through religious nonmedical nursing services provided by an individual, a nursing facility, or a visiting nurse service without incurring a loss or reduction of compensation or benefits due under this chapter. This section does not exempt an employee from submitting to an examination by a physician or surgeon as required under AS 23.30.095(e).

Id.

The “applicability clause” of the original section 20, however, was never renumbered, and was simply deleted. Sections 21-23 of HB 419 remained unchanged, and remained the same in the final version of HB 419.

No other discussions regarding the effective dates of the bill are found in the legislative minutes. On March 29, 2000 the House Labor and Commerce Committee offered their version of the bill, entitled “CS for House Bill No. 419 (L&C).”

On June 1, 2000, Governor Tony Knowles signed into law “SENATE CS FOR CS FOR HOUSE BILL NO. 419(FIN) am S.” This bill, inter alia, amended AS 23.30.190(a) to increase the PPI multiplier from $135,000 to $177,000. The effective date of this bill was July 1, 2000. See House Bill 419, §23.

Parties’ Arguments

The employee argues that the statutory amendment to AS 23.30.190(a) applies to all cases in which the employee is medically stable and rated after July 1, 2000. The employee argues that the changes to AS 23.30.190 are procedural in nature, and therefore apply in this matter. The employee argues that the legislature’s removal of the original “applicability clause” in the original version of section 20 of HB 419 is clear intent of the legislature’s intent to have AS 23.30.190(a) apply retroactively.

The employer argues that the law in effect at the time of injury controls the rights and duties of the parties. The employer argues that the change in the PPI multiplier is a substantive change, and thus applies only to injuries occurring after July 1, 2000. The employer argues that the removal of the original section 20 of HB 419 was a clerical error, and provides no intent of the legislature.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

We must determine whether to apply AS 23.30.190(a) as it existed at the time of the employee’s injury or as it existed at the date of the employee’s medical stability and PPI rating.

1. Is the Legislative Amendment to AS 23.30.190(a) Procedural or Substantive?

The first question before us is whether the legislative amendment to AS 23.30.190(a) is a substantive or procedural change. AS 01.10.090 states, “No statute is retrospective unless expressly declared therein.” However, the Alaska Supreme Court has opined that mere procedural changes that do not affect substantive rights may be applied retrospectively. Rice v. Rice, 757 P.2d 60 (Alaska 1988); Matanuska Maid, Inc. v State, 620 P.2d 182 (Alaska 1980). Accordingly, we must first decide if the amendment to AS 23.30.190(a) was a substantive or procedural change in the law.

In Pan Alaska Trucking, Inc. v. Crouch, 773 P.2d 947 (Alaska 1989), the Alaska Supreme Court considered the question of whether a change in AS 23.30.110(c) applied to injuries before the date the statute went into effect. Crouch had been injured in February 1981. In July 1982, an amendment to AS 23.30.110(c) went into effect, requiring claimants to request a hearing within two years of a controversion notice. Crouch filed his claim in January 1983 and it was controverted several days later.

In August 1985, Crouch requested a hearing. Despite the fact that AS 23.30.110(c) was amended after the employee’s injury, the Supreme Court ruled that Crouch’s claim must be dismissed under that section. Crouch argued that the change in .110(c) was procedural in nature, but affected substantive rights and should thus not be applied retroactively. The Court in Crouch explained:

[A] change in a procedural rule is substantive in character where the change makes it appear to one just starting down the road to vindication of his cause that the road has become more difficult to travel or the goal less to be desired.

Id. at 949.

Black’s Law Dictionary defines procedural law as:

The rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves. – Also termed adjective law.

Black’s Law Dictionary 1221 (7th ed. 1999).

Black’s Law Dictionary defines substantive law as:

The part of the law that creates, defines, and regulates the rights, duties, and powers of parties.

“So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.” John Salmond, Jurisprudence 476 (Glanville L. Williams ed., 10th ed. 1947).

Id. at 1443.

The ultimate goal behind the Alaska Workers’ Compensation Act is to provide compensation to victims of work-connected injuries. Gordon v. Burgess Construction Co., 425 P.2d 602 (Alaska 1967). The “remedy and the right” afforded to permanently impaired workers under the Act is financial compensation. Clearly, the “road to vindication” would be more desirable to the employee in this matter if she were entitled to receive the benefits in the amended legislation to AS 23.30.190(a). Crouch, 773 P.2d at 949. To that end, it appears clear to us that the legislative change to AS 23.30.190(a) was substantive in nature.

The employee points us to board decisions that stand for the proposition that the AMA Guides to be used in determining permanent partial impairment should be the AMA Guides in effect on the date of the employee’s medical stability, instead of the AMA Guides in effect on the date of the employee’s injury. See, e.g., Wheeler v. Trident Seafoods Corp., AWCB Decision No. 90-0282 (November 23, 1990); Sellers v. Houston Contracting Co., AWCB Decision No. 96-0407 (October 2, 1996). We find these decisions are distinguishable. The legislature has specifically directed the board to use the most recent AMA Guides to determine an injured worker’s PPI rating. AS 23.30.190. The AMA Guides do not specifically alter the “remedy and the right” of an injured worker. Rather, the Guides merely provide a mechanism that “prescribe[s] the steps for having a right or duty judicially enforced.” The AMA Guides dictate the steps and procedures for physicians to take when computing an injured worker’s PPI rating. This is vastly different then a statutory amendment that directly alters the financial remedy provided to a permanently injured worker. Accordingly, we find that the 2000 legislative amendment to AS 23.30.190(a) is substantive in nature.

2. Has the Legislature Manifested an Intent to Apply AS 23.30.190(a) Retroactively?

We must determine if there is legislative intent to have the amendment to AS 23.30.190(a) apply retroactively. The Alaska Supreme Court has held that retroactive operation of statutes should not be inferred in ambiguous circumstances. Wien Air Alaska v. Grant, 592 P.2d 352 (Alaska 1979), overruled on other grounds, Fairbanks North Star Borough School District v. Crider, 736 P.2d 770 (Alaska 1987). The Court has explained:

As a general rule, statutes are presumed to operate prospectively only, and will not be applied to causes of action arising prior to their enactment unless a contrary legislative intent appears by express or necessary implication. This court has held, however, that the presumption against retroactive application does not apply to procedural statutes. Because procedural statutes often alter only the legal effects of events occurring during the legal process, courts have treated as irrelevant the date of events giving rise to cause of action...

Crouch, 773 P.2d at 949; see also Thompson v. United Parcel Service, 975 P.2d 684, 688 (Alaska 1999).

We are unable to conclude, after a review of the legislative history of the 2000 legislative amendments to the Workers’ Compensation Act, that the legislature intended to have AS 23.30.190(a) apply retroactively. We find no “express or necessary implication” that the legislature intended to have AS 23.30.190(a) apply retroactively.

The employee argues that the removal of the “applicability clause” in the original section 20 to House Bill 419 by the House Labor and Commerce Committee indicates an intent by the legislature to have AS 23.30.190(a) apply retroactively. We find no evidence to support this conclusion. It appears to us that the more likely explanation for the removal of the original section 20 to House Bill 419 was that of a clerical error. There is no discussion regarding the removal of the “applicability clause” in section 20 in any of the legislative minutes that we reviewed, and the minutes state that the sections following the new section 20 were to be renumbered. (Workers’ Compensation: Hearing on HB 419 – Workers’ Compensation Before the House Labor and Commerce Standing Committee, 21st Legis. (Alaska 2000)). This renumbering never occurred, however.

The final version of House Bill 419 indicates that the Act takes effect July 1, 2000. Moreover, in the “Intent” section of House Bill 419, the legislature stated: