STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES and Northern Adjusters, Inc., Petitioners, v. Lee DUPREE, Respondent.
No. 6047.
Supreme Court of Alaska.
May 13, 1983.
664 P.2d 562
This evaluation is in accordance with the interpretation of
The judgment of the superior court is REVERSED.
RABINOWITZ, Justice, with whom BURKE, Chief Justice, joins, concurring.
I agree with the majority‘s conclusion that Irby-Northface should be considered an Alaska bidder under
I would, however, address the clear unconstitutionality of the bidder preference statute under our precedent of Lynden Transport, Inc. v. State, 532 P.2d 700 (Alaska 1975).1 In Lynden we stated that:
A discrimination between residents and nonresidents based solely on the object of assisting the one class over the other economically cannot be upheld under either the privileges and immunities or equal protection clauses.
Id. at 710. In this case, “it is clear that the statute‘s purpose is to give Alaskan businesses a competitive chance with nonresident businesses in the award of state contracts,”2 as noted by the majority. Under Alaska‘s equal protection clause, such a purpose does not justify a statute which discriminates against nonresidents. Lynden, 532 P.2d at 711.3
Michael A. Barcott, Faulkner, Banfield, Doogan & Holmes, Anchorage, for petitioners.
Millard F. Ingraham, Fairbanks, for respondent.
OPINION
BURKE, Chief Justice.
The facts in this case are not contested. Lee Dupree was injured in the course and scope of her employment in November 1978. At that time, Dupree was earning approximately $300 per week. In 1976, however, Dupree earned $538 per week, that figure reflecting her employment on the pipeline project. Based on her 1976 earnings, Dupree‘s disability award under subsection (2) was $359 per week, an amount in excess of her salary when the disability arose.
Until amended in 1977, the Alaska wage basis statute closely resembled a model statute first enacted in New York and still in force in numerous jurisdictions.3 Under this generic statute, an employee‘s average annual earning capacity was fixed according to the weekly wage earned at the time of injury. If, for some reason, the weekly wage at that time was not representative of actual annual earning capacity, earnings of similarly situated employees were used to arrive at an approximation of the claimant‘s annual earning capacity.4
The amended Alaska statute departs significantly from the traditional wage basis statute. Rather than focusing on the employee‘s weekly earnings at the time of injury, the statute calls for a survey of the employee‘s earnings in the three calendar years immediately preceding injury. The3
The state submits that an average weekly wage figure arrived at by selecting the year most favorable to the employee and dividing by fifty-two is “unfairly calculated” if the resulting figure exceeds the employee‘s salary at the time of injury. In essence, the state contends that the Board has the discretion to modify a figure calculated under subsection (2) whenever it feels that a claimant‘s future earnings will not equal documented past earnings. We believe that such a construction of
The state concedes, as it must, that some excess of award over salary is contemplated by new subsection (2). It follows that a claimant‘s salary on the date of injury cannot serve as a ceiling on compensation awards; any other rule would simply reinstate the claimant‘s salary at the time of injury as the determinative factor in calculating future earning capacity. Consequently, Dupree‘s average weekly wage figure cannot be said to be unfairly calculated, as that term is used in subsection (3), merely because it exceeds her salary on the date of injury. In arguing to the contrary, the state is in effect trying to undo what the legislature did in 1977.
Nor are we persuaded that Dupree‘s award was unfairly calculated because there was no evidence that she was capable of reproducing her 1976 earnings. We recognize that Dupree‘s earnings in 1976 were a product of the times and unlikely, in the normal course of things, to be repeated. But neither this court nor the Board can say with any assurance that Dupree would not have earned as much during the period of disability as she did in 1976. In arguing to the contrary, the state is in essence suggesting that the Board is entitled to make factual findings in every case on the likelihood that a claimant‘s future earnings will not equal documented past earnings. This the statute does not authorize. On the contrary, subsection (2) is written to give the benefit of past earnings history to the employee. It would be inconsistent with this purpose to place the burden on the employee of proving that past earnings were representative of future
We note that any other construction of subsection (3) could only serve to increase uncertainty concerning proper wage basis calculation and cause a corresponding increase in litigation. Adopting the state‘s construction of subsection (3) would put the Board in the uncomfortable position of having to assess whether an award in excess of salary is warranted, or whether past earnings are, for some reason, unrepresentative of future earning capacity. Such speculation is not contemplated by the statute.
Finally, we note that the result reached here is compelled by the rule that ambiguous workers’ compensation statutes should be construed in favor of the employee. Seward Marine Services, Inc. v. Anderson, 643 P.2d 493 (Alaska 1982); Hood v. State, Workmen‘s Compensation Board, 574 P.2d. 811, 813 (Alaska 1978). Given this longstanding rule of construction, and considering the evident legislative design, we hold that Dupree‘s average weekly wage was not unfairly calculated merely because it exceeded her salary on the date of injury.8
AFFIRMED.
MATTHEWS, Justice, joined by RABINOWITZ, Justice, dissenting.
Subsection 3 of
The entire objective of wage calculation is to arrive at a fair approximation of claimant‘s probable future earning capacity. His disability reaches into the future, not the past; his loss as a result of injury must be thought of in terms of the impact on probable future earnings, perhaps for the rest of his life. This may sound like belaboring the obvious; but unless the elementary guiding principle is kept constantly in mind while dealing with wage calculation, there may be a temptation to lapse into the fallacy of supposing that compensation theory is necessarily satisfied when a mechanical representation of this claimant‘s own earnings in some arbitrary past period has been used as a wage basis.
2 A. Larson, The Law of Workmen‘s Compensation § 60.11(d), at 10-564 (1981).
In the present case the Board has made a factual finding that the average weekly wage for Ms. Dupree at the time she was injured cannot be fairly calculated under subsection 2. This factual finding is certainly supported by substantial evidence given the major discrepancy between Dupree‘s earnings in her steady full-time job at the time of injury, in contrast to her earnings in her short term job associated with the construction of the Trans-Alaska Pipeline. During 1976 when she worked on the pipeline she made, on the average, $538.00 per week. When she was injured in 1978 while working for the state her gross wages were approximately $300.00 per week. Dupree testified that she had worked for the state as a secretary for nine years before working on the pipeline, that she returned to the state payroll after pipeline construction had terminated, and that when she was injured her intent was to continue to work for the state indefinitely.1 There was no contrary evidence. The Board in making the factual finding of unfairness has done exactly what subsection 3 of the statute has directed it to do. Since the finding is supported by substantial evidence we cannot properly interfere with it. Thus, the decision of the Board must be affirmed.
Today‘s majority opinion, however, if I read it correctly, does not take issue with the factual determination that Dupree‘s average weekly wage at the time she was injured could not fairly be calculated under the mathematical formula supplied by subsection 2. Instead, the opinion holds that “fairly” as that term is used in subsection 3 cannot be taken literally. Instead, its meaning must be restricted to cases where there is a record “establishing a claimant‘s absolute inability to match past earnings. . . .” (At 566, n. 8) I am not sure that I know what this language means.
Philosophically one may doubt that an absolute inability can ever exist, for there is a remote possibility of nearly anything. More reasonably, perhaps the majority merely intends to say that the concept of unfairness as expressed in subsection 3 means obvious or clear unfairness. While I would not join in this construction of the statute, because it is not what the statute says, it is true that the triggering finding of unfairness under subsection 3 cannot be made merely because there is a slight variance between wages at the time of injury and the average weekly wage arrived at under the formula of subsection 2.2 A
I believe that the Legislature has authorized the Board to abandon the formula of subsection 2 where there is a significant difference between the average weekly wage so calculated and the actual wage. The majority, again if I read the opinion correctly, believes that the Board can act when the variance is more than significant, either large, or very large. If that is what the majority means, however, the question that it should take up is whether a sufficiently large variance exists in this case. The difference between the average weekly wage calculated under subsection 2, $538.00, and the actual weekly wage, $300.00, is $238.00, a sum that is more than two-thirds of the actual wage. To me, this difference seems both significant and large enough to result in obvious unfairness. The majority opinion should at least explain why this is not so.
Finally, the majority opinion suggests that reading subsection 3 literally will increase uncertainty and therefore litigation. It is true that if subsection 3 were not in the statute there would be a higher measure of certainty in calculating average weekly wage. However, unfortunately for the cause of certainty but, as the Legislature must have thought, fortunately for the cause of fairness, subsection 3 does exist and it is our task to apply it sensibly. “It is always harder work to apply tests of reasonableness than to apply self-executing mathematical tests. But the former cannot be avoided in a mature and civilized legal system.” 2 A. Larson, supra, at 10-557.