*1 Appellant, SHERMAN, J. Jack
v. COMPANY, CONSTRUCTION
HOLIDAY Casualty Company Alaska Maryland and Board, Appellees. Compensation Workmen's
No.
Supreme Alaska. Court of 7,
Dec. Miller, Kay, Libbey, M. Robert Jacobs Libbey, appellant. Anchorage, for
& Moore, Singleton K. A. and Daniel James Hayes, Delaney, Wiles, Jr., & Moore Anchorage, appellees. NESBETT, DIMOND J.,
Before and C. WITZ, and RABINO JJ.
NESBETT, Chief Justice. Appellant industrial in an 1964, employed 30, accident on while June by appellee, Com- Construction Holiday result, pany. As a he received tion for from June August through October 1964. On 1964, appellant request with the filed Compensation permanent disability rating hearings award. The board held two appellant’s request per- that his found manent man” rating as a “whole per cent a result of the permanent disability he had a 25 sustained per earning capacity. cent loss in concluded, pursuant to section 190(20) Compensation of the Workmen’s $4,- Act was entitled to receive 250, computed on per basis of his 25 Jhe cent loss of earning -capacity times the maximum sum of allowable under sections act.1 1. AS quality 23.30.190 the Alaska Workmen’s in character but pertinent part Act the average is 65 weekly states as follows: wages in addition to dis- disability partial ability temporary partial case *2 appellant paid be weekly compensation that the subject ordered to $4,250 had only upon the of termination weekly until sum his having received $100 payments paid. disability perma- and been partial disability payments nent totaling appealed 29, 1966, appellant March On $17,000, death, his aor redetermination of superior court al- the award to the board’s degree disability the provided of his for applied the not that the board had leging in section 190(20). by compensation called for sec- method of the award. On making in tion Appellant points out that the method superior af- court the November which the board in used determining the and the order award firmed board’s non-scheduled, award for his permanent appeal was taken. this partial disability same method for agreed their of facts statement merly provided in the compensation for act agreed part in as follows: parties have that prior was in effect to legis the Alaska adoption present lature’s act in practice past uniform It has been the present adopted whereas the act an entire * * * award com- to of ly different substantially method which is permanent partial disabili- pensation for similar to that in used Long Federal in- ty for scheduled and non-scheduled shoremen’s and Harbor Workers’ percentage juries by loss determining the Act .2 Section 43-3-1 (H) ACLA multiply- wage earning capacity and Cum.Supp. (1958) provision relevant limit ing percentage by that the maximum prior compensation of Alaska’s act. This appropriate allowable provided section that a compen claimant’s in specified 23.30.190. sation section AS non-scheduled, sation for permanent par Appellant the board had no contends that disability tial was a sum which bore authority multiply the maxi- in the Act to same relationship to amount the claim permanent par- sum mum allowable for ant would be totally entitled to if he were tial, disability ($17,000) and permanently disabled as his capacity per cent in of his loss earning capacity percentage in bore to per (25 cent) and that in contends order per cent. The provision relevant comply 190(20), with the board in all federal act is identical material re the difference be- have determined spects pres 190(20) of Alaska’s to section weekly injury his wages tween before the act. ent wage-earning capacity his after the in- jury per Appellant argues that Alaska’s awarded him cent of since weekly compensation. Ap- present patterned difference as after the Federal act was pellant right further to Longshoremen’s his and Harbor Workers’' contends
stated allowable “scheduled 'employment ing capacity hoard on its bility; paid age weekly wages' (There n (20) this the continuance of' the difference between injuries, commonly but'subject to the chapter, in all other accordance with follows herein 19 after injuries”, [*] o.f or own motion employee otherwise, payable respectively, [*] and his to'reconsideration-of. with impairment, cases as follows: referred §§ the maximum wage-earning » in this class in the same each.) partial 185 or 200 and shall types upon ap to as aver [*] disa dur 33 TJ.S.C. 2. AS follows: no In a case of under this This plication porary partial addition der aggregate (l) 23.30.155 event § subsection 908(c) The total §§ of a (20) exceed the sum of the sum .chapter 901-950 it, may not disability compensable (21). party of this pertinent does compensation payable oi disability (1957), specifically in chapter, injuries may interest part disability, apply exceed sustainéd ' - or death. states the total $20,000. or n .i .. * n cases . tem- un- nn . . n ' n . monetary federal cases which a maximum establishes amount counterpart federal act’s for each scheduled construed the On hand, wording provision in the manner as of section same *3 is, the purposes, 190 Alaska act4 for our iden- this court construe section 908(c) (21) tical with section the (20), persuasive. federal should act which establishes no maximum amount. present Appellees contend that Alaska’s However, 190(20) governed section compensation incorporated anti- act has 5 23.30.155(1) AS which establishes prior provisions from the thetical both aggregate compensation the maximum Compensation Act and permanent partial disability allowable for a the there are incon- federal act and that and for a or tem- present ambiguities in the sistencies porary partial disability in addi- sustained in the fed- Alaska act which are not found tion to it. therefore, Appellees argue, eral that act. persuasive the cited are not federal cases Compen- Cesar v. Alaska Workmen’s determining proper in construction of the sation Board this held that court because 190(20). section beyond scope act the Alaska’s went by establishing the federal act maximum Appellees point out that if the relevant injuries, amounts allowable for a scheduled provisions act read of the Alaska were legislative difference in intent indi- literally, be obtained.3 absurd results would cated and that no federal court decision was According appellee’s argument the inter- point in on issue therein.7 Cesar raised pretation section which legislature also held that the intended that justified be- in this case is followed top monetary placed limit on the loss produces harmony greatest it cause proportionately a whole thumb should be inconsistency calculating least in reduced in the case of loss of than less non-scheduled, permanent partial sation for The whole. decision court in Cesar of this has past no doubt been the basis for Concededly, the new Alaska practice uniform award board to patterned, in tion act enacted in 1959 was compensation permanent partial dis- least, part at after the federal act. Section ability for scheduled and non-scheduled patterned 908(c) of 190 was after section injuries by determining percentage act, the federal the difference between the wage-earning capacity multiplying being 908(c) that in two sections percentage the maximum limit al- compensation provided listed compensation appropriate lowable under the injuries in scheduled stated terms specified in AS 23.30.190.8 compensation, the total allowable weeks maximum; monetary with where- no fixed Appellant argues duty that it is the of this provides as section for a maximum give meaning court to literal words number of weeks of allowable of section unless court is com- injuries, but also listed scheduled pelled to do otherwise. Appellees argue 3. it could not have Supra 5. note 1. been the fering intent suf- 1963). (Alaska 6. 383 P.2d capacity by a loss of 25% Oesar, legisla- a should reason of 7. After our decision receive the maximum allowable under ture amended AS 23.30.190 in spects re- several ($17,000), act whereas one 1964 and in 1965. The mone- tary disabling only retained, in- more serious and jury scheduled máximums were not considerably many less. but receive instances were increased. (For example, S.L.A.1964, 46; S.L.A.1965, 23.30.190(1) the under AS ch. chs. 24 compensible by loss of an arm “280 102. compensation, $14,- weeks’ not to exceed stipulation parties 8. See hereto 500”). quoted opinion. page 4 of this Supra note member, than a language of Mr. Reed .in loss of a Justice v. Armstrong percent Varnish Paint & Works shall amount to ap particularly Corp.9 the difference seems between Nu-Enamel em ployee’s problem average weekly wages before us: plicable to the and his wage-earning capacity after has had several occasions This Court 2(l) provides perma Section that such years stat- to construe last few within partial disability nent compensation, to between reason- utes which conflicts gether with oc- meaning intention and literal able temporary partial total or disability sus nullify stat- have refused curred. We tained addition to the utes, unexpected the however hard disability, may aggregate exceed in effect, unambiguous lan- particular where *4 $17,000. the sum provisions of These of logical re- guage called a sensible unambiguous. They Act are clearly Any properly be course would sult. express the legislative such, they intent. As judicial legislation. How- condemned as be read, should they administered as and not ever, to construe so to avoid statutes as construed to something entirely mean dif a glaringly absurd, long been results has merely ferent because it is believed that the Where, here, judicial function. result of may such construction lead ato language susceptible a is of construction more desirable result.3 preserves the which of sec- usefulness tion, majority The judicial duty upon this appellees’ rests mentions conten- tion if give expression provisions to relevant Court to intend- of the Act literally, were read ment of the law. absurd results would be obtained. Reference is made to In our decision in view of Cesar10 appellees’ argument that it could not have interpret where we to so elected 190 been legislative intent that one suffer- a as to achieve we what considered to be ing percent 25a by of capacity reasonable result accordance with of reason a injury non-scheduled intent, subsequent con receive the maximum allowable under the interpretations sistent the board and the of Act ($17,000), whereas a courts,11 superior we hold that the board more serious disabling scheduled in- did not commit error interpreting sec jury considerably should receive less. The tion it did. majority example then cites as an the loss which, of an arm judgment under is affirmed.12 of compensable by 280 weeks of compensation, $14,500.4 not to exceed DIMOND, (dissenting). Justice I dissent. 190 Section Alaska any absurdity I to fail see in the results provides Workmen’s Act1 if Act literally is read in this case. partial permanent disability appellant’s injury Assume that consisted of 315, 332-333, 191, 200, 9. U.S. 305 59 Legislative S.Ct. 12.The attention Alaska (1938), L.Ed. 205 a con- Agency where Affairs to the briefs invited struction of the Federal Trade-Mark Act parties point hereto which out the was involved. difficulty giving inherent the various sections of the act a consistent rea- Tengberg 10. See also v. Current Const. interpretation. sonable Co., 1963). (Alaska P.2d 395 majority opinion. 1. See note 1 of the Holiday Co., 11. Sherman v. File Const. (3rd 1966); No. 66-597 Alaska Dist. Id. Herger Co., v. Ramstad Const. File No. Minerals, 3. Alaska Mines & Inc. v. Alaska (3rd 1966); 66-394 Dist. Alaska Warner Bd., (Alaska Indus. 1960). 354 P.2d Roofing Co., v. Northern & Sheet Metal (3rd 1963); File No. Dist. Alaska 62-647 Inc., majority opinion. Evanco v. Bros. Weaver File No. Note 3 (3rd 1964). 62-578 Alaska Dist. having impairment a scheduled recon- an arm. For such loss of by the loss, entitled receive sidered Board either its appellant be own mo- upon application partial party tion or of a permanent a maximum of It disability this would interest. is conceivable that a man who compensation. But tempo- suffers a disability, in addition to disability. loss, partial which is not a rary could be total or re- from the appellant received moved roll after a this case time from if the Board wage- total found that his tion for 15, 1964, earning capacity impaired total through longer a October no June Assuming situation, however, approximately 15.3 weeks. Such a apply average wages at time does to a appellant’s In the scheduled loss. case, week, latter figure though even were a used em- $400 ployee may, purposes arm, appellees eventually with one for illustrative suffer received, impairment no their brief would have of wage-earning capacity, Act6, temporary this consequence; would be of no section 185 his com- pensation compensation equal partial percent weeks, would not for 15.3 be reduced or a as in the case of a $400 amount, This added to the *5 $14,500 maximum amount that be re- could suppose I might that one conceive of a permanent partial disability covered as hypothetical person situation where a suf- arm, for the loss of an fers a partial dis- appellant’s mean that total ability and receives overall more from all sources would have been tion than one who has suffered a sched- uled loss of a member and whose hand, compensated On the other one impairment, so far as working capacity is ap- under as concerned, greater is than the former. pellant was, But could receive maximum com- this does not mean that right we pensation 155(Z). under section take an unambiguous statute and construe This amount includes it to might avoid what may be considered to paid have been temporary be an unfair my result. opinion not, this is the case of a situation for loss, consideration and scheduled in addition to such judicial one for legislation Thus, true, sation. it necessarily is not guise judicial appellee construction. argues, that suffering a' sched- uled such as an arm would receive con- I would judgment reverse the below and siderably less than one a non- remand the case disability, as Compensation Board for the awarding of appellant’s case. compensation in accordance with the ex- Furthermore, employee press com- terms of the statute under considera- pensated under subject tion. appel- The record provides: does not show what 6. AS 23.30.185 average weekly wages lant’s were at the total dis- ability. time of the In their brief on In case of appeal, appellees refer the fact quality, character but appellant’s argument at the Work- average weekly wages hearing men’s shall employee during to the average weekly wages that exceeded the continuance of the $400.