Kirby v. Alaska Treatment Center

821 P.2d 127, 1991 Alas. LEXIS 133, 1991 WL 244367
CourtAlaska Supreme Court
DecidedNovember 22, 1991
DocketS-3915
StatusPublished
Cited by9 cases

This text of 821 P.2d 127 (Kirby v. Alaska Treatment Center) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirby v. Alaska Treatment Center, 821 P.2d 127, 1991 Alas. LEXIS 133, 1991 WL 244367 (Ala. 1991).

Opinions

OPINION

MOORE, Justice.

This appeal arises from the superior court’s ruling affirming a decision by the Alaska Workers’ Compensation Board (the Board) that Donna Kirby is ineligible for vocational rehabilitation. The Board determined that although Kirby is permanently disabled, she is not entitled to vocational rehabilitation benefits because she may resume suitable gainful employment. We affirm.

[128]*128I. Factual and Procedural History

Donna Kirby was employed as an adaptive aquatic instructor at the Alaska Treatment Center (ATC). Her job involved teaching swimming and exercise to persons with physical, emotional, and developmental disabilities.1 On April 1 and August 21, 1987, Kirby was exposed to excessive amounts of chlorine fumes at the job site. As a result of this exposure, she developed reactive airway disease and was told by her physician that she could no longer work in or near a chlorine-treated pool or in any environment in which chlorine was present.

As a consequence of her exposure to chlorine fumes, Kirby applied for disability and rehabilitation benefits. In January 1988, she began receiving temporary total disability (TTD) benefits of $213.61 per week. This figure was derived pursuant to AS 23.3f).220(a)(2) by dividing Kirby’s 1987 gross earnings of $15,585.16 by 52 and subtracting from that her payroll deductions.2 To qualify for rehabilitation benefits, ATC’s insurer requested that Kirby submit to a vocational evaluation. The evaluation was conducted by Northern Rehabilitative Services (NRS) which found that Kirby was qualified to work as a secretary or receptionist earning $7.50 an hour initially, $7.84 after one year, and $9.00 after three years. NRS concluded that Kirby did not require rehabilitation because she could approximate her 1987 earnings by working 40 hours per week in a clerical position.

Kirby thereafter moved for a rehabilitation hearing to challenge the NRS evaluation. At the hearing, Kirby sought approval of a rehabilitation plan which would allow her to return to college and finish a degree in social work.3 The rehabilitation hearing officer rejected Kirby’s plan and affirmed the NRS evaluation.

Kirby then appealed to the full Board. The Board found that if Kirby accepted a clerical position she would suffer approximately a 25% loss of earning capacity in the first year because she would be required to work 40 hours per week to earn the amount she was making at the time of her injury when working only 25 hours per week. The Board ruled that although this loss of earning capacity was tantamount to a permanent disability, Kirby was not entitled to-rehabilitation benefits because the disability did not preclude her from returning to “suitable gainful employment.” Kirby then appealed to the superior court which, in turn, affirmed the Board’s decision. This appeal followed.

II. Discussion

Kirby contests the Board’s finding that she was returned to suitable gainful employment. First, she argues that the Board erred in failing to accord her the presumption of compensability. Second, she contends that post-injury employment at 75% of the pre-injury earnings is not suitable gainful employment, and, therefore, she should be eligible for vocational rehabilitation.

This case calls upon us to determine whether the superior court correctly ruled that Kirby is not entitled to rehabilitation benefits under AS 23.30.041. We apply the “reasonable basis” standard of review because the particularized experience and knowledge of the Board’s administrative personnel is an important factor which goes into our determination. Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971). In applying this standard, we must decide whether the Board’s findings lack either substantial support in the record or a reasonable basis in the law.4 Id.

[129]*129A. Presumption of Compensability

Kirby argues that the statutory presumption of compensability in AS 23.30.120 applies to her claim for vocational rehabilitation. AS 23.30.120 states the following presumption:

Presumptions, (a) In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter....

When this case was heard in superior court, our rulings had only applied the presumption to claims which sought to establish a nexus between the injury and the work place. Our recent decisions, however, have given a broader reading to the presumption.5 In Municipality of Anchorage v. Carter, 818 P.2d 661 (Alaska 1991), we extended the presumption of compensa-bility to a claim for continuing care under AS 23.30.095(a) and found that “the text of AS 23.30.120(a) indicates that the presumption of compensability is applicable to any claim for compensation under the workers’ compensation statute.” Id. at 665. In Wien Air v. Kramer, 807 P.2d 471 (Alaska 1991), we applied the presumption to a claim for continuing temporary total disability.

In keeping with these decisions, we find that the presumption applies as well to claims for vocational rehabilitation. When an injured employee raises the presumption, the burden shifts and the employer must produce substantial evidence to rebut the presumption. If the employer produces substantial evidence, the presumption drops out and “the employee must prove all the elements of his case by a preponderance of the evidence.” Veco, Inc. v. Wolfer, 693 P.2d 865, 870 (Alaska 1985) (citations omitted). See also Grainger v. Alaska Workers’ Compensation Bd., 805 P.2d 976 (Alaska 1991). Thus, we presume that Kirby is eligible for vocational rehabilitation benefits and place the burden upon ATC to produce substantial evidence to the contrary.

B. Eligibility for Rehabilitation Plan

The Board correctly stated that for an injured person to be eligible for a rehabilitation plan two distinct events must occur: the employee must suffer from a permanent disability and that disability must preclude the employee from returning to suitable gainful employment. AS 23.30.041(c).

The Board first found that Kirby suffered a permanent disability because under the NRS evaluation she incurred approximately a 25% loss of earning capacity. We agree.

Next, the Board correctly stated the two statutes then in force defining suitable gainful employment, Former AS 23.30.-041(i) states that an employee is restored to suitable gainful employment if

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Kirby v. Alaska Treatment Center
821 P.2d 127 (Alaska Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
821 P.2d 127, 1991 Alas. LEXIS 133, 1991 WL 244367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-alaska-treatment-center-alaska-1991.