Alaska Pacific Assurance Co. v. Julian

513 P.2d 1097, 1973 Alas. LEXIS 271

Opinion

OPINION

Before RABINOWITZ, C. J., and CONNOR and ERWIN, JJ.

CONNOR, Justice.

This case comes to us on appeal from a summary judgment entered by the superior court for the first judicial district on April 17, 1972, in favor of defendant-appellees Chris Julian (an injured employee) and the Alaska Workmen’s Compensation Board. The sole question presented is the proper construction of AS 23.30.191.

There is no dispute as to the facts. On June 7, 1969, Julian was injured in an accident arising out of and in the course of his employment with Mountain Skyliners, Inc. As a result of that accident, Julian sustained temporary total disability and permanent partial disability. Pursuant to decision of the Alaska Workmen’s Compensation Board, disability compensation has been paid in full.

On or about July 5, 1971, Julian commenced vocational retraining at the British Columbia Vocational School. Citing AS 23.30.191,¹ the Board awarded Julian $38.90 per week rehabilitation compensation during the period of his attendance at the B. C. Vocational School. The issue before us is whether Mountain Skyliners, Inc. (Julian’s “employer” within the meaning of the Alaska Workmen’s Compensation Act) or the second injury fund bears the responsibility for these rehabilitation compensation payments.

Appellants’ argument is founded on the observation that monies of the second injury fund are specifically committed to the expense of retraining or rehabilitating permanently disabled employees.² Since the fund was created for the express purpose of paying “compensation” for “maintenance” associated with rehabilitation, and since AS 23.30.191 provides for additional “compensation” for “maintenance”, appellants contend that the second injury fund is the obvious source of liability.

We are unpersuaded. Under the clear language of AS 23.30.045(a),³ the employer is liable for all payments made pursuant to AS 23.30.180 through AS 23.-30.215. Payment here has been ordered pursuant to one of these statutory sections. Mountain Skyliners, Inc., is undisputedly the employer in this case. Therefore, the statute clearly imposes liability on Mountain Skyliners, Inc. As for appellants’ arguments, certainly AS 23.30.040(e) and AS 23.30.191 both provide for maintenance compensation. But AS 23.30.191 specifically states that payments made pursuant to it are “in addition to the amount allowed under § 40 of this chapter for maintenance.” Only payments made pursuant to AS 23.30.040 are the responsibility of the second injury fund. We think that appellants attempt to derive too much from the bare fact that AS 23.30.040(e) and AS 23.30.191 provide for similar compensation.

Inasmuch as we are satisfied that the statute clearly determines the result in the case, we find it unnecessary to pursue appellants’ other arguments (1) that the policy of the Workmen’s Compensation Statute to limit employers’ liability can be accommodated only by exonerating Mountain Skyli-ners, Inc. from liability for § 191 payments and (2) that no source other than the second injury fund has been made available for the purposes of § 191 maintenance compensation after the employee’s entitlement to disability compensation has been exhausted. Suffice to say that AS 23.30.-045(a) clearly contemplates that the employer will bear the cost of § 191 payments and that the policy of limited employer liability is not inconsistent with periodic increases in liability.⁴

Finding no merit in appellants’ arguments, we hereby affirm the summary judgment entered below.

Affirmed.

BOOCHEVER and FITZGERALD, JJ., not participating.

1 . AS 23.30.191 provides as follows:

“An employee, who, as a result of injury, is or may be expected to be totally or partially incapacitated for his normal occupation and who, under the direction of the Department of Labor, is being rehabilitated to engage in remunerative occupation and who is not entitled to further temporary total disability or temporary partial disability compensation, in addition to the amount allowed under § 40 of this chapter for maintenance, may receive additional compensation necessary for his rehabilitation, not more than one-half of the compensation allowed under § 185 of this chapter.”

2 .See, AS 23.30.040(e) which provides :

“The board may direct and provide the vocational retraining and rehabilitation of a permanently disabled person whose condition is a result of an injury compensable under this chapter by making cooperative arrangements with insurance carriers, private organizations and institutions or state or federal agencies. The expense of the retraining or rehabilitation shall be paid out of that portion of the second injury fund that exceeds $10,000. The person being retrained or rehabilitated shall receive compensation from the second injury fund for maintenance, in the sum which the board considers necessary, during the period of retraining and rehabilitation, not exceeding $100 a month. The total expenditures for maintenance, training, rehabilitation and necessary transportation may not exceed $5,000 for one person.”

3 . AS 23.30.045(a) provides in pertinent part: “An employer is liable for and shall secure the payment to his employees of the compensation payable under §§ 50, 95, 145, and 180-215 of this chapter.”

4 . Compare the 1970 amendment to AS 23.-30.040(b) which increased the employer’s liability to the second injury fund from 5% to 8% of the total compensation to which the employee is entitled. Am. § 1, Ch. 199 SLA 1970.