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Vandenberg v. State, Department of Health & Soc. Services

Supreme Court of Alaska

April 8, 2016


          Appeal from the Alaska Workers' Compensation Appeals Commission, Andrew M. Hemenway, Commission Chair. Alaska Workers' Compensation Appeals Commission No. 14-019.

         Joseph A. Kalamarides, Kalamarides & Lambert, Anchorage, for Appellant.

         Daniel N. Cadra, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellee.

         Before: Fabe, Winfree, Maassen, and Bolger, Justices. [Stowers, Chief Justice, not participating.].


         FABE, Justice.


         After a 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 Commission's decision.


         Laurie 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.[1] 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.[2]

         To make 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.[3] 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.

         Based 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.[4] 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,[5] 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,[6] 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.

         Williams 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[7] of Inspector, Health Care Facilities. Based on these predictions, Williams determined that Vandenberg was eligible for reemployment benefits.

         Helgeson 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.

         Helgeson 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.,[8] 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 Surveyor position.

         Helgeson 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.

         Vandenberg appealed the denial to the Board, which held a hearing on her reemployment benefits eligibility.[9] 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.

         Williams 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.

         Vandenberg 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.

         In its decision the Board agreed with Vandenberg that Helgeson had abused her discretion by exceeding her authority under applicable Board regulations.[10] 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 analysis.

         The 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[11] 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.

         Vandenberg 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.[12] 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 " ...

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