LAURIE E. VANDENBERG, Appellant,
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Appellee
from the Alaska Workers' Compensation Appeals Commission,
Andrew M. Hemenway, Commission Chair. Alaska Workers'
Compensation Appeals Commission No. 14-019.
A. Kalamarides, Kalamarides & Lambert, Anchorage, for
N. Cadra, Assistant Attorney General, Anchorage, and Craig W.
Richards, Attorney General, Juneau, for Appellee.
Fabe, Winfree, Maassen, and Bolger, Justices. [Stowers, Chief
Justice, not participating.].
work-related injury left a nurse with a permanent partial
impairment, she applied for reemployment benefits. The
rehabilitation specialist assigned to her case used two job
descriptions to describe one of the nurse's former jobs
because the specialist did not think that a single job
description adequately described that former job. The Alaska
Workers' Compensation Board decided that only one job
description was needed and that the nurse retained the
physical capacity to perform the functions of that job
description; it therefore denied her reemployment benefits.
The Alaska Workers' Compensation Appeals Commission
affirmed the Board's decision. The nurse appeals, arguing
that the Board erred in selecting only one job description
because the job description it selected did not adequately
describe the job she held. We agree and reverse the
FACTS AND PROCEEDINGS
Vandenberg injured her right shoulder when she reached for
her laptop computer and " paperwork bag" while
working for the State, Department of Health & Social Services
(DHSS) as a Nurse II. Because Vandenberg missed more than 90
consecutive days of work, her employer notified the
Rehabilitation Benefits Administrator (Administrator), who
assigned an independent rehabilitation specialist, Lulie
Williams, to perform Vandenberg's reemployment benefits
eligibility evaluation. A doctor assessed a four-percent
whole-person impairment for Vandenberg after her surgery,
making her potentially eligible for either reemployment or
job dislocation benefits.
an eligibility determination, Williams looked at the job
Vandenberg held at the time of her injury, as well as jobs
she held in the ten years before the injury, as the statute
required. For purposes of this appeal, only one
job is relevant: Vandenberg had worked as a Health Facilities
Surveyor (Surveyor) for DHSS for three and a half years
during this ten-year period. Williams looked at the job
description for the Surveyor position online and spoke with a
DHSS employee about the job requirements. DHSS told Williams
that the job required the ability to lift 50 pounds and that
" no accommodations [could] be made" to avoid this
requirement. In addition the job description required
applicants to have professional training. Nursing training,
licensing, and professional experience were preferred, but an
applicant could substitute other relevant professional
experience; all of the alternative professional experience
included a bachelor's degree in some field related to
medicine or health sciences.
on the information Williams received, she decided that no
single job in the Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles
(SCO) matched the Surveyor position. She selected two
jobs from the Dictionary of Occupational Titles (Dictionary)
to describe the Surveyor position: Inspector, Health Care
Facilities and Nurse, General Duty. She included the Nurse,
General Duty job title because it is a " medium"
nursing job, matching both the actual strength
requirements and the professional or educational requirements
of the Surveyor position. According to a letter Williams
wrote to Penny Helgeson, the Administrator's designee who
worked on Vandenberg's case, the Surveyor job required
travel and carrying " manuals, personnel files, and a
computer . . . [that] cannot be checked in baggage because of
[federal Health Insurance Portability and Accountability Act]
regulations." Williams evidently considered other "
medium" job titles with duties similar to carrying these
materials, but " was unable to come up with anything
suitable, such as Baggage Handler." Consequently, she
settled on Nurse, General Duty as a job description to use in
conjunction with Inspector, Health Care Facilities to
describe more completely the Surveyor job.
sent these job descriptions, along with several others, to
Vandenberg's doctor, who predicted that Vandenberg would
not have the physical capacity to perform the medium-strength
Nurse, General Duty position; he thought she would have the
capacity to perform the sedentary physical
demands of Inspector, Health Care Facilities.
Based on these predictions, Williams determined that
Vandenberg was eligible for reemployment benefits.
disagreed with Williams's conclusion that Inspector,
Health Care Facilities was not, by itself, an adequate
description of the job duties (as opposed to the
qualifications) of the Surveyor position. She instructed
Williams to " [a]pportion the time the employee spent
performing the duties for each job title identified if
multiple titles are used." In response, Williams
explained the reasons she selected the job descriptions and
reported that she did not think it would " add anything
important to the report" to apportion time between
different job titles.
rejected Williams's rationale for including the Nurse,
General Duty job description to complete the Surveyor job
description, expressing her understanding that " titles
are not selected based on the strength demands but rather on
the duties the employee performed." Based on Konecky
v. Camco Wireline, Inc., Helgeson insisted that
" reemployment benefits eligibility is determined by the
[SCO] job descriptions, even when the actual physical demands
of the job may exceed the strength demands as outlined"
there. Helgeson determined " the title for Health
Facilities Inspector [was] sufficient" to describe the
instructed Williams to " [c]onduct labor market research
to document whether or not the job for a Health Facilities
Inspector exists in the labor market." Williams did so,
concluding that jobs for Inspector, Health Care Facilities do
exist. Helgeson then determined Vandenberg was not eligible
for reemployment benefits because of her decision that only
the Inspector, Health Care Facilities job description was
needed to describe the Surveyor position; the doctor's
prediction that Vandenberg could perform the physical demands
of that job description; and the existence of Inspector,
Health Care Facilities jobs in the labor market.
appealed the denial to the Board, which held a hearing on her
reemployment benefits eligibility. Vandenberg and Williams
both testified. Williams identified the differences in
qualification level between the Inspector, Health Care
Facilities job description in the Dictionary and DHSS's
Surveyor position: She testified that the Surveyor position
was a " journeyman" position, having higher
educational requirements for all areas than the Inspector,
Health Care Facilities position as set out in the Dictionary.
She reiterated her opinion that the Inspector, Health Care
Facilities job description alone did not adequately describe
the Surveyor job Vandenberg held.
agreed that Vandenberg met the strength requirements for the
Inspector position in the Dictionary. She also agreed that
" [t]he position of health facilities surveyor does not
require the employee to perform the functions of a
nurse," but she thought there was a difference between a
nurse observing medication administration and a person who
was not trained as a nurse doing so. On cross-examination
Williams reaffirmed her opinion that the two job descriptions
required different levels of professional knowledge. She
testified that rehabilitation specialists " don't
just look at the duties" when they pick job descriptions
to match an employee's job.
testified about her job as a Surveyor. She explained that
being a nurse " was the only way [she] got that
job." She testified that her duties included looking at
wounds, checking medications, and doing " [a] lot of
chart review" ; she also reported that in extreme
situations, a Surveyor and her team could take over a
facility, thereby taking on a nurse's role because the
team would " excuse everybody from their duties"
and " get them out of the facility," with the State
assuming management of the facility for a period of time.
Alternatively, in those situations the team could " move
all the patients or clients out" of the facility. In
describing why she could no longer perform the functions of
the Surveyor job, Vandenberg testified that she could no
longer " carry that weight limit" and that "
if [she] were around clients or patients and something
happened to one of them," she might not be able to help
them because of her injury.
decision the Board agreed with Vandenberg that Helgeson had
abused her discretion by exceeding her authority under
applicable Board regulations. It nonetheless decided
the error was harmless because it agreed substantively with
Helgeson. The Board compared the duties set out in the two
job descriptions, and it then looked at the duties set out in
the Nurse, General Duty job from the Dictionary. The Board
concluded that " the job title of Inspector, Health Care
Facilities reasonably reflects Employee's job as a Health
Facilities Surveyor." It did not explain the origin of
the " reasonably reflecting" standard. The fact
that a Surveyor might " in rare cases" be required
" to assume care of patients" did not change its
Board then construed the statute and this court's
decisions interpreting section .041. It concluded that
inclusion of the Nurse, General Duty job description was
contrary to Konecky because under Konecky,
the Board reasoned, " an employee's physical
capacities must be compared to the physical demands of the
[Dictionary] job description, not the employee's actual
job." The Board also construed the statute as
disregarding the vocational-preparation and educational
components of job titles when selecting the appropriate ones
because, the Board reasoned, under AS 23.30.041(e)(2) "
the [specific vocational preparation] is only relevant to
determine if an employee held a job 'long enough to
obtain the skills to compete in the labor market.'"
The Board acknowledged that the " result may seem
harsh," but maintained that it is " the approach
the legislature has chosen." The Board denied the claim
for reemployment benefits.
appealed to the Commission, which affirmed the Board's
decision. The Commission began its analysis by representing
that 8 AAC 45.525(b)(2) directs the rehabilitation specialist
to select the most appropriate job title or titles for an
employee's job from the Dictionary. According to the
Commission, " [t]he 'most appropriate'
[Dictionary] job title is the title or titles whose job
description as set forth in the [Dictionary] best matches the
employee's job." The Commission agreed with the
Board that Nurse, General Duty did not " appropriately
describe" Vandenberg's job as a Surveyor. The
Commission rejected Vandenberg's argument that
certification as a registered nurse was a job requirement for
the Surveyor position because " a nurse certificate and
experience is just one of a variety of alternative minimum
qualifications." It acknowledged Vandenberg's
testimony that the Surveyor worked as part of a team and that
she had been hired because she was a nurse. It reasoned that
this " requirement is not a barrier to her reemployment
as a Health Facilities Surveyor in the same position she
previously occupied." The Commission concluded that a
licensing requirement was not relevant to the selection of a
job title unless the " ...