Appeal from the Alaska Workers' Compensation Appeals Commission, Laurence Keyes, Commissioner Chair. Alaska Workers' Compensation Appeals Commission No. 12-022.
Joseph A. Kalamarides, Kalamarides & Lambert, Anchorage, Appellant.
Richard L. Wagg, Russell, Wagg, Gabbert & Budzinski, Anchorage, for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
A highly paid worker suffered a debilitating stroke while traveling for his employer. The employer initially controverted benefits because it did not think the stroke was work related, but it later accepted the claim and paid workers' compensation benefits. The statutory maximum compensation rate at the time of the injury was $700 a week. A little more than five months after the employee's stroke, an amended version of the Alaska Workers' Compensation Act took effect. Instead of an absolute maximum compensation rate, the amended statute set a variable rate indexed to the statewide average weekly wage. The employee asked for an increased rate of compensation, arguing that the law in effect at the time he was recognized as being permanently and totally disabled should govern his benefit amount. The Alaska Workers' Compensation Board, with one panel
member dissenting, decided that the version of the statute in effect at the time of the injury was the applicable statute and consequently capped the employee's benefits at $700 a week for life. The dissenting panel member would have construed the statute as permitting increased benefits. The Alaska Workers' Compensation Appeals Commission affirmed the Board's decision. The worker appeals, arguing that the amount of his benefits does not fairly compensate him for lost wages during the period of his disability so that the date of his disability, rather than the date of his injury, should be used to determine the version of the statute governing his claim. We affirm the Commission's decision.
II. FACTS AND PROCEEDINGS
The facts in this case are largely uncontested. Richard Louie worked for BP Exploration (Alaska), Inc. (BP) as an auditor. At the time of his injury he earned in excess of $100,000 a year. In January 2000 he traveled to London, England, for a meeting; en route, he developed " an air travel [deep vein thrombosis]" in his leg, and a small clot eventually made its way to his brain, causing a debilitating stroke. He is now paralyzed on one side of his body and suffers from aphasia and muscle spasms.
After initially controverting Louie's claim, BP accepted that the stroke was work related. According to the compensation report dated September 12, 2002, BP was paying temporary total disability (TTD) at the rate of $700 a week. The parties later entered into a partial compromise and release (C & R) agreement related to occupational, physical, and speech therapy; the Board approved the partial C & R in early 2004. The partial C & R acknowledged that Louie was unlikely to return to work, but it left open reemployment benefits. The partial C & R also acknowledged that BP had paid Louie TTD from September 2002 to December 2003 (approximately the time the agreement was signed) and agreed that Louie's " total disability rate is $700."
Louie filed a workers' compensation claim in October 2011 seeking a compensation rate adjustment and permanent total disability (PTD) benefits. In its answer BP raised the defense that Louie had received, " from his date of injury and continuing," PTD benefits " at the maximum compensation rate allowable under the Act as it existed in the year of the employee's injury."
At the hearing on the claim, Louie presented testimony from Curtis Smith, a former co-worker with approximately the same employment history as Louie. Smith testified that, had Louie continued to work at BP, Louie's gross salary with bonuses would have been approximately $300,000 a year, plus benefits such as 401(k) contributions. Louie's wife testified that in the months following the stroke, she and Louie thought there was still some chance he ...