Kevin KONECKY, Appellant, v. CAMCO WIRELINE, INC., and Continental Insurance Company, Appellees.
No. S-6419.
Supreme Court of Alaska.
July 26, 1996.
920 P.2d 277
Timothy A. McKeever and Keri Clark, Faulkner, Banfield, Doogan & Holmes, Anchorage, for Appellees.
Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ.
OPINION
EASTAUGH, Justice.
I. INTRODUCTION
The issue before us is whether Kevin Konecky is eligible for vocational reemployment benefits under
II. FACTS AND PROCEEDINGS
Konecky hurt his lower back in July 1988 while working as a “hoistman” for Camco Wireline, Inc. (Camco) at Prudhoe Bay.1 He was taken to Providence Hospital in Anchorage, and was seen by Dr. George von Wichman and later by Dr. Robert Fu. As a result of these consultations, Konecky began a comprehensive back strengthening exercise program so that he could resume his job as a hoistman. Dr. Fu concluded that the program was successful, and released Konecky for “heavy to very heavy labor” in April 1989.2
Konecky applied to the Board for reemployment benefits as a result of his October 1989 injury.3 In March 1992 the Board designated rehabilitation specialist Richard Stone to evaluate Konecky for rehabilitation eligibility. Stone evaluated Konecky and noted that his physical capacities, specifically his lifting ability, were of the “medium” category.4 Stone determined that Konecky‘s physical job demands as a hoistman were of the “very heavy” level, requiring occasional lifting of 100 pounds and frequent lifting of fifty pounds. Konecky reported, and Camco confirmed, that the job required lifting in excess of 100 pounds. Stone also considered Konecky‘s past work history and concluded that Konecky could not return to the jobs he had held in the last ten years.5 Stone therefore recommended that Konecky be found eligible for reemployment benefits. Based on this recommendation, the Reemployment Benefits Administrator Designee (RBA) determined that Konecky was eligible for reemployment benefits.
Camco appealed the RBA‘s decision to the Board.6 In August 1992 the Board held that the RBA abused her discretion in finding Konecky eligible for reemployment benefits. The Board concluded that Stone and the RBA were required to use the description of the job demands provided in SCODDOT in accordance with
On remand, Stone conducted a labor market survey to determine if the job of “hoistman” existed in the labor market as described by SCODDOT under the title “hoist operator.” Stone reported the relevant labor market information, which showed that “medium-to-heavy” work is required for the “hoist operator” occupation. The RBA concluded that although Konecky was physically able to perform “medium” level work, “a review of Mr. Stone‘s survey shows that the occupation of Hoist Operator does not exist as medium work.” Because the job did not exist in the labor market at the level of exertion described in SCODDOT, and because the actual physical demands of the hoistman position exceeded Konecky‘s capacities as predicted by his physician, the RBA again determined that Konecky was eligible for reemployment benefits.
III. DISCUSSION
In determining that Konecky was not eligible for reemployment benefits, the Board strictly applied the job description of hoist operator pursuant to
Unfortunately, this is another case in which the law requires us to use the SCODDOT‘s job description, and it does not match reality. We find Employee‘s actual job at the time of injury and other jobs in the labor market as a hoist operator require lifting over 50 pounds. They are clearly not medium capacity jobs as defined in the SCODDOT.
Given the mandate in the law that the RBA must rely upon the SCODDOT for the job‘s physical demands, we conclude we have no choice but to find the RBA did not use the description in the SCODDOT of the physical demands of a hoist operator‘s job in finding Employee eligible. Instead, the RBA considered the actual job demands of the job Employee held at the time of injury. Then, in a creative twist in the interpretation of the statute, the RBA determined the hoist operator‘s job as described in SCODDOT did not exist in the labor market.
We find this determination is contrary to the law. We find the law was misapplied and a mistake was clearly made. Considering the medical evidence, we find Employee is able to perform jobs requiring medium physical capacities. Based on the SCODDOT, we find Employee‘s job at the time of the injury as a hoist operator is a job which demands medium physical capacities. Although Employee no longer has the physical capacity to perform the actual duties of his job at the time of injury, we must ignore that fact and consider a theoretical description of the physical demands of his job. Based on Stone‘s testimony and the Department of Labor statistics, we find hoist operator jobs exist in the labor market.
Accordingly, for the reasons stated above, we conclude the RBA abused his discretion. We reverse his determination and find Employee is not eligible for reemployment benefits.
(Citations omitted.)
Konecky argues that the SCODDOT definition of “hoist operator” is antiquated and that strictly applying
Camco argues that the Board correctly applied
Resolution of whether the Board erred in determining that Konecky was not eligible turns on the meaning of
In interpreting a statute, we “look to ‘the language of the statute construed in light of the purpose of its enactment.‘” Yahara, 851 P.2d at 72 (quoting J & L Diversified Enter. v. Municipality of Anchorage, 736 P.2d 349, 351 (Alaska 1987)). If the language of the statute is unambiguous and expresses the intent of the legislature, and if no ambiguity is revealed by the legislative history, we will not modify or extend a statute by judicial construction. Id. (citing Alaska Pub. Employees Ass‘n v. City of Fairbanks, 753 P.2d 725, 727 (Alaska 1988)). However, if there is some ambiguity, we apply a sliding scale approach in interpreting the statute. Alaska Pub. Employees Ass‘n, 753 P.2d at 727. Under this approach, “the plainer the language, the more convincing contrary legislative history must be.” State v. Alex, 646 P.2d 203, 208-09 n. 4 (Alaska 1982) (quoting United States v. United States Steel Corp., 482 F.2d 439, 444 (7th Cir.), cert. denied, 414 U.S. 909 (1973)). By using this approach, the court “endeavors to give effect to legislative intent, with due consideration for the meaning that the language of the statute conveys to others.” Rydwell, 864 P.2d at 528 (citing Forest v. Safeway Stores, Inc., 830 P.2d 778, 781 (Alaska 1992)).
The language of
The Board predicated its conclusion that Konecky was not eligible for reemployment benefits on the fact that SCODDOT defined the “hoist operator” position to require “medium” work. It implicitly made a fact finding that Konecky‘s position was that of hoist operator. Because it found Konecky was able to perform jobs requiring “medium” physical capacities, the Board determined that Konecky‘s physical capacities were not less than the SCODDOT-described job duties of the hoist operator position.
The Board‘s reasoning was compelled by the clear language of
Konecky argues that this interpretation ignores the physical reality of his position. It was undisputed that his actual work demands exceeded the SCODDOT “medium” work category. Moreover, no other hoist operator positions in Alaska, Canada, or the lower 48 could be found that fit the “medium” category. Thus, Konecky‘s actual job at
Further, Konecky argues that the introduction to SCODDOT contains a disclaimer which states:
The user should be cautious in interpreting the information in this publication. Occupational definitions described in the Dictionary of Occupational Titles (DOT), Fourth Edition are composite descriptions of occupations as they may typically occur and may not coincide with a specific job as actually performed in a particular establishment or in a given industry.
Data for the Dictionary were collected and developed according to job analysis techniques established by the U.S. Employment Service and analyses conducted by occupational analysts in affiliated State Employment Service Occupational Analysis Field Centers. Data obtained through these studies were evaluated and job definitions were prepared, resulting in significant modifications in the occupational characteristics of most jobs. The information in the Dictionary reflects findings of the Employment Service from more than 75,000 on-site analyses and extensive contacts with professional and trade associations relating to individual job situations. An occupation found to have certain characteristics in job situations observed by the Employment Service does not necessarily preclude the same occupations from having different characteristics in other job situations.
SCODDOT at v (1981) (emphasis added). Konecky argues that this disclaimer contemplates the very situation in which he finds himself—that the SCODDOT definition does not coincide with Konecky‘s job as actually performed. He argues that the Board erred in strictly applying the SCODDOT definition pursuant to
Konecky also relies on legislative history. The 1988 amendments to the Alaska Workers’ Compensation Act regarding reemployment benefits “redefine[] an employee‘s eligibility for rehabilitation benefits as the inability to return to the job held at time of injury or other jobs held or trained for within 10 years prior to injury or following injury.” House Judiciary Comm., Sectional Analysis, House Comm. Substitute for Comm. Substitute SB 322, 15th Legis., 2d Sess. § 10.4 (Comm. Print 1988) [hereinafter Sectional Analysis]. Thus, according to Konecky, strict application of the SCODDOT definition of “hoist operator” frustrates the legislature‘s intention of awarding benefits to employees who are unable to return to the job held at the time of injury. He also notes the overall legislative purpose of the 1988 amendments:
It is the intent of the legislature that AS 23.30 be interpreted so as to ensure the quick, efficient, fair, and predictable delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of AS 23.30.
Ch. 79, § 1, SLA 1988.
These circumstances, however, cannot overcome the clear language of the statute. The legislature‘s language is plain, and demands that reemployment benefit eligibility be determined by the SCODDOT job descriptions. The legislature neither expressed nor implied any exceptions. The statute‘s plain language was apparently intended to minimize or avoid prolonged and expensive disputes about eligibility for reemployment benefits by inflexibly relying on the Department of Labor‘s extensive occupational dictionary and job analyses. In doing so, the legislature may have been acting in accordance with its expressed intention to reduce costs to employers and reduce litigation. Ch. 79, § 1, SLA 1988, quoted above. See also Sectional Analysis § 10.5 (“The overall goal of these changes [to the workers’ compensation rehabilitation system] is to promote a prompter, more efficient, more cost-effective,
1) to create a less expensive system with fewer employees participating in it; 2) to reduce the use of vocational rehabilitation as a litigation tool; 3) to encourage the use of vocational rehabilitation services for employees “most likely to benefit and who truly desire and need them“; [and] 4) to speed up the vocational rehabilitation process in the expectation of producing more successful outcomes.Id. at 10 (emphasis added) (footnotes omitted).
If the court were to accept Konecky‘s argument, each time an injured worker applies for these benefits, questions would arise about the accuracy of the SCODDOT job descriptions. Employees could be expected to argue that SCODDOT underestimates the physical demands of the job, or that the job listed in SCODDOT is not available in the labor market. Employers could be expected to counter with arguments that SCODDOT exaggerates the physical demands of the job, or that actual demands of the job are less than those listed in SCODDOT. As a result, the predictability, objectivity, and cost reduction that the legislature intended would be greatly reduced. We rejected that result in Rydwell. Rydwell, 864 P.2d at 530. The legislature intended to redesign the Alaska Workers’ Compensation Act to meet its stated goals. Nothing in the language cited above from the Sectional Analysis or the legislative purpose establishes otherwise.
Thus, applying our sliding scale approach to statutory interpretation, Konecky‘s arguments are insufficient to overcome the plain language of
IV. CONCLUSION
AFFIRMED.
MOORE, J., not participating.
RABINOWITZ, Justice, dissenting.
I dissent. Even if the court is correct that SCODDOT definitions must be applied strictly, this does not address the question of whether a particular job falls within a SCODDOT job title. As Konecky‘s job in particular, hoistman, evidently does not fall under any existing SCODDOT title, I would hold that his case is beyond the scope of SCODDOT, and that therefore SCODDOT should not be used in determining whether he is eligible for vocational reemployment benefits under
In the case at bar, the SCODDOT description of the job is not the job as performed by Konecky. In fact, as Konecky and the court both point out, not only does the SCODDOT job description fail to describe Konecky‘s work, but “no other hoist operator positions in Alaska, Canada, or the lower 48 could be found that fit the ‘medium’ category.”1
Even the court‘s strict application of SCODDOT definitions should not require that a job which is not included in SCODDOT be forced to fit into a SCODDOT job title. Konecky‘s job involved substantially different demands from the job of “hoist operator,” which is found in SCODDOT. In fact, no one‘s job fits the description of “hoist operator” as described in SCODDOT. Thus, under the circumstances of this case, I would hold that Konecky was not a “hoist operator” as defined by SCODDOT, that Konecky‘s job does not appear in SCODDOT, and that therefore SCODDOT should not have been used to measure the physical demands of his job. For this reason, I would reverse the decisions of the superior court and the Board.
Furthermore, even if Konecky is in fact a “hoist operator” as defined in SCODDOT, the proper application of SCODDOT allows for variability in the physical requirements of jobs. As the court notes, the SCODDOT itself contains a disclaimer which states: “Occupational definitions described in the [SCODDOT] . . . may not coincide with a specific job as actually performed in a particular establishment or in a given industry.” SCODDOT at v (1981). It also warns that “[a]n occupation found to have certain characteristics in job situations observed by the Employment Service does not necessarily preclude the same occupation from having different characteristics in other job situations.” Id. Thus, SCODDOT itself recognizes that its definitions are not exhaustive descriptions of jobs as they actually exist.
Therefore, the requirement of
Konecky‘s job required greater physical capacity than the description of “hoist operator” in SCODDOT. This variation was anticipated by SCODDOT, and should be acknowledged. For this reason, too, I would reverse the decisions of the superior court and the Board.
Notes
In its decision the Board stated in part:
Unfortunately, this is another case in which the law requires us to use the SCODDOT‘s job description, and it does not match reality. We find Employee‘s actual job at the time of injury and other jobs in the labor market as a hoist operator require lifting over 50 pounds. They are clearly not medium capacity jobs as defined in the SCODDOT.(Citations omitted.)
U.S. Dep‘t of Labor, SCODDOT 465 (1981).Sedentary work: involves “lifting [ten pounds] maximum and occasionally lifting and/or carrying such articles as dockets, ledgers, and small tools.”
Light work: involves “lifting [twenty pounds] maximum with frequent lifting and/or carrying of objects weighing up to [ten pounds].”
Medium work: involves “lifting [fifty pounds] maximum with frequent lifting and/or carrying of objects weighing up to [twenty-five pounds].”
Heavy work: involves “lifting [one hundred pounds] maximum with frequent lifting and/or carrying of objects weighing up to [fifty pounds].”
Very heavy work: involves “lifting objects in excess of [one hundred pounds] with frequent lifting and/or carrying of objects weighing [fifty pounds] or more.”
Under the express language ofYahara, 851 P.2d at 73 (final emphasis added).AS 23.30.041(e) , medical evidence of eligibility must satisfy three requirements. First, the evidence must take the form of a prediction. Second, the person making the prediction must be a physician. Third, the prediction must compare the physical demands of the employee‘s job, as the U.S. Department of Labor describes them, with the employee‘s physical capacities.