ALASKA AIRLINES, INC.; EBERLE VIVIAN, INC.; AIGA, as successor in interest to LUMBERMEN'S INSURANCE COMPANIES; and NORTHERN ADJUSTERS, INC., Appellants and Cross-Appellees,
v.
PAMELA DARROW, ffk/a/ PAMELA CREEKMORE, Appellee and Cross-Appellant, and STATE OF ALASKA, DEPARTMENT OF LABOR & WORKFORCE DEVELOPMENT, DIVISION OF WORKERS' COMPENSATION, Intervenor and Cross-Appellee.
Appeal
from the Alaska Workers' Compensation Appeals Commission
No. 14-024
Richard L. Wagg, Russell Wagg Meshke & Budzinski,
Anchorage, for Appellants/Cross-Appellees.
J.
John Franich, Franich Law Office, LLC, Fairbanks, for
Appellee/Cross-Appellant.
Kimberly D. Rodgers, Assistant Attorney General, Anchorage,
and James E. Cantor, Acting Attorney General, Juneau, for
Intervenor/Cross-Appellee State of Alaska.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
CARNEY, Justice.
I.
INTRODUCTION
An
employee continued to work for over ten years after a
job-related knee injury but had multiple surgeries on her
injured knee. Over time, her employer made several permanent
partial impairment payments, and she was eventually
determined to be permanently and totally disabled because of
the work injury. She began to receive Social Security
disability at about the same time she was classified as
permanently and totally disabled for workers'
compensation.
Her
employer asked the Alaska Workers' Compensation Board to
allow two offsets to its payment of permanent total
disability (PTD) compensation: one related to Social Security
disability benefits and one related to the earlier permanent
partial impairment (PPI) payments. The Board established a
Social Security offset and permitted the employer to deduct
the amount of previously paid PPI (adjusted for inflation).
The
employee appealed to the Alaska Workers' Compensation
Appeals Commission, arguing that the Board had improperly
applied one of its regulations in allowing the PPI offset and
had incorrectly calculated the amount of the Social Security
offset. She also brought a civil suit against the State
challenging the validity of the regulation. The State
intervened in the Commission appeal; the lawsuit was
dismissed. The Commission reversed the Board's
calculation of the Social Security offset and affirmed the
Board's order permitting the PPI offset. The employer
appealed the Commission's Social Security offset decision
to this court, and the employee cross-appealed the PPI
offset. We affirm in part and reverse in part.
II.
FACTS AND PROCEEDINGS
Pamela
Darrow worked for Alaska Airlines at the Fairbanks airport in
1996. While working, she suffered a knee injury that required
multiple surgeries and ultimately led to her becoming
permanently and totally disabled. Darrow held other jobs in
the years following the 1996 injury, and Alaska Airlines paid
her temporary total disability (TTD) during times she was
unable to work because of her injury. Alaska Airlines also
made four payments for PPI for a total of $40,
500[1]
The last payment was made in 2005.
In 2012
the Social Security Administration decided Darrow met its
standards for disability related to her knee, found her
disabled as of December 2010, and determined that her first
month of eligibility for benefits was June 2011. In January
2013 Darrow filed a written workers' compensation claim
for PTD benefits and an adjustment of her disability
compensation rate.[2] She was receiving TTD at the time and was
in the reemployment process.[3]
Alaska
Airlines initially obj ected to her reclassification, but
later agreed she was permanently and totally disabled. It
objected to the compensation rate adjustment and noted it
might be entitled to an offset for Darrow's Social
Security disability (S SDI) under AS
23.30.225(b).[4] Alaska Airlines later petitioned the Board
to allow it two offsets: one for SSDI and another one,
pursuant to AS 23.30.180, for the PPI it had paid
earlier.[5]
During
Darrow's 2014 deposition Alaska Airlines learned that she
had also been working for the State of Alaska at the time of
her injury, which affected her compensation
rate.[6] The parties later entered into a partial
settlement in which they agreed that: (1) Darrow's
"average weekly wage" when the injury occurred was
$668.98, rather than $270 as the adjuster had initially
calculated;[7] (2) she became disabled for purposes of
the Alaska Workers' Compensation Act (Act) on October 8,
2012; (3) Alaska Airlines would pay Darrow an additional $15,
000 related to penalties and interest "in satisfaction
of all claims prior to March 8, 2012"; and (4)
Darrow's attorney would receive "minimum statutory
fees on all previously disputed benefits." They listed
four unresolved issues in the partial settlement: one related
to the Board's exercise of discretion under AS
23.30.220(a)(10) to determine awagerate for calculating
Darrow's PTD amount, [8] one regarding the percentage of PTD
that could be withheld for any overpayment, and the two
raised in this appeal.
The
Board held a hearing in August 2014; because the contested
issues were primarily legal, no witnesses testified. Darrow
argued that, contrary to Alaska Airlines' assertion, AS
23.30.180 did not permit Alaska Airlines to offset the amount
of PPI it had previously paid her because the statute
authorized an offset for permanent partial
disability rather than permanent partial
impairment.[9] Although a Board regulation provided that
"[f]or purposes of (b) of this section and AS 23.30.180,
permanent partial disability benefits include permanent
partial impairment benefits paid under AS 23.30.190,
"[10] Darrow contended the regulation was
against legislative intent. She asked the Board to adopt the
reasoning of Miller v. Municipality of Anchorage, in
which the Board based an offset on the worker's adjusted
weekly wage, [11] when calculating the S SDI offset. Under
Darrow's analysis, Alaska Airlines would not be entitled
to an S SDI offset because the offset calculation resulted in
a negative number.
Alaska
Airlines argued first that it was entitled to an SSDI offset
based on Darrow's actual wages in 1996 rather than the
amount it had agreed to as an adjusted wage under AS
23.30.220(a)(10). It contended that the statement in
Underwater Construction, Inc. v. Shirley that the
phrase average weekly wages in AS 23.30.225(b) was
"the same as 'gross weekly earnings' in AS
23.30.220(a)(1)"[12] meant that only AS 23.30.220(a)(1)
could be used to establish gross weekly earnings. Alaska
Airlines maintained that the purpose of AS 23.30.225 was to
save the employer money and that the way to effectuate this
purpose was to calculate the offset using Darrow's actual
1996 wage, even though Darrow would get less money in
combined SSDI and PTD than she would get in PTD alone under
this proposal.[13]
Alaska
Airlines acknowledged that AS 23.30.180 provided for an
offset for permanent partial disability (PPD) rather than PPL
But it argued that in enacting AS 23.30.180, the legislature
intended "to avoid double payment for injuries"
that cause first a permanent impairment and later a permanent
total disability. Alaska Airlines pointed out that AS
23.30.190(a), the statute authorizing PPI, directs payment of
PPI only when the partial impairment does not "result[]
in permanent and total disability." It argued that if an
employee was paid PPI and later became permanently and
totally disabled, the employer should get a credit for the
previously paid PPI as an advance payment of PTD. Alaska
Airlines cited several Board decisions that allowed an offset
for PPI when a claimant received PTD, and maintained that the
Board's regulation "equat[ing] permanent and partial
disability with permanent and partial impairment"
required the Board to consider the terms synonymous.
In its
decision the Board adopted the approach used in
Miller, but its application of Miller did
not give Darrow the outcome she wanted.[14] Instead, the
Board's result when it calculated the SSDI offset was the
same as Alaska Airlines' proposal. When it turned to the
PPI offset, the Board referred to the legislative history of
the 1988 amendments to the Act that replaced permanent
partial disability with permanent partial impairment. It also
quoted from Larson's Workers' Compensation
Law to explain the differences between
impairment and disability in
compensation.[15]The Board concluded that the legislature
intended to change the partial impairment benefit under the
Act to "a physical impairment benefit" rather than
a disability benefit; it therefore concluded that payment of
both PPI and PTD would not result in Darrow receiving
duplicate compensation for the same loss. The Board did not
think Alaska Airlines should be entitled to an offset for PPI
according to statute, but it allowed the offset because it
considered itself bound by its own regulation stating that
"[f]or purposes of... AS 23.30.180, permanent partial
disability benefits includes permanent partial impairment
benefits paid under AS 23.30.190."[16] The Board
adjusted the PPI amounts for inflation, denied Alaska
Airlines' request to withhold more than 20% of benefits
to recoup the overpayment, and denied both interest and
further attorney's fees to Darrow.
Darrow
appealed to the Commission, challenging the Board's
decision regarding both offsets. She also filed suit in the
superior court challenging the Board's regulation,
evidently contending that it was not consistent with the
statute.[17] The director of the Division of
Workers' Compensation intervened in the Commission appeal
for purposes of addressing the regulatory issue. The lawsuit
was stayed and, according to the State, later dismissed.
The
Commission reversed the Board's calculation of the SSDI
offset and, using a different legal analysis, decided the PPI
payments could be recouped under a different part of the Act.
The Commission calculated the same amount as Darrow for the
SSDI offset, even though its analysis was somewhat different
from hers.[18] Under the Commission's analysis, the
average weekly wage the parties agreed to under AS
23.30.220(a)(10) was the average weekly wage to be used in
calculating the offset. It noted Alaska Airlines'
argument that the statutory language of AS 23.30.225(b) said
"average weekly wages at the time of injury." But
it interpreted the legislature's 1995 amendment of AS
23.30.220(a)[19] to include wages calculated under
any subsection of AS 23.30.220(a), including
subsection .220(a)(10), within the definition of average
weekly wages under AS 23.30.225(a). The Commission thought
that to interpret the statute otherwise would lead to an
unfair result: Darrow would receive less in combined SSDI and
PTD than she would in PTD alone. The Commission observed that
the statutory language permitted an offset, but that Alaska
Airlines' argument would result in a reduction of total
benefits.
Next
the Commission decided that Darrow's PPI did not now meet
the terms of AS 23.30.190(a) - "impairment partial in
character but permanent in quality, and not resulting in
permanent total disability"-and thus the earlier PPI
payments were effectively an advance payment of PTD. It
allowed Alaska Airlines to offset the PPI amountunder AS
23.30.155(j), [20] and ordered that "Alaska Airlines
is entitled to withhold 20% of [Darrow's] permanent total
disability payments, without regard to AS 23.30.180 and
without regard to 8 AAC [45]. 134." It did not address
whether the amount of PPI to be withheld should be adjusted
for inflation, [21] and it decided it lacked jurisdiction to
determine whether 8 AAC 45.134 (c) was valid.
Alaska
Airlines appeals, and Darrow cross-appeals.
III.
STANDARD OF REVIEW
In an
appeal from the Alaska Workers' Compensation Appeals
Commission we review the Commission's decision rather
than the Board's.[22] We apply our independent judgment to
questions of "statutory interpretation requiring the
application and analysis of various canons of statutory
construction."[23] "We exercise our independent
judgment in determining the validity of an administrative
regulation[24]"Regulations are presumptively valid
and will be upheld as long as they are 'consistent with
and reasonably necessary to implement the statutes
authorizing [their] adoption.' "[25]
IV.
DISCUSSION
A.
The Commission Correctly Calculated The Social Security
Disability Offset.
The
main question presented by the lead appeal is the proper
method of calculating an offset for Social Security
disability (SSDI) payments when the amount of permanent total
disability (PTD) paid is based on income calculated under AS
23.30.220(a)(10). This question requires consideration of two
statutes, AS 23.30.220 and AS 23.30.225. We construe statutes
according to reason, practicality, and common sense,
considering the meaning of the statute's language, its
legislative history, and its purpose.[26] We do not
strictly apply the plain meaning rule but construe statutes
using a sliding scale approach, under which "the plainer
the language of the statute, the more convincing contrary
legislative history must be."[27]
Alaska
Airlines sought an offset under AS 23.30.225(b), which
provides that when an employee gets SSDI
for an injury for which a claim has been filed under this
chapter, weekly disability benefits payable under this
chapter shall be offset by an amount by which the sum of (1)
weekly benefits to which the employee is entitled under 42
U.S.C. 401 - 433, and (2) weekly disability benefits to which
the employee would otherwise be entitled under this chapter,
exceeds 80 percent of the employee's average weekly wages
at the time of injury.
Calculation
of an offset thus depends on the following amounts: weekly
SSDI, weekly workers' compensation benefits, and
"the employee's average weekly wages at the time of
injury." The parties' main dispute centered on the
meaning of the phrase average weekly wages at the time of
injury. Alaska Airlines argued that this phrase required
using $668.98 as Darrow's average weekly wage because
that represented her wages in 1996, the time of her injury.
Darrow, in contrast, contended that $1, 390, the adjusted
weekly wage to which the parties had agreed under AS 23.3
0.220(a)(10), was the correct amount. Darrow based her
argument in part on our interpretation of AS 23.30.225 and
.220 in Underwater Construction, Inc. v.
Shirley[28]
The
Commission considered Shirley and the 1995
amendments to AS 23.30.220. It concluded that the average
weekly wage at the time of injury could be calculated under
any subsection of AS 23.30.220, including subsection
.220(a)(10). We agree with the Commission.
In
Shirley the employee asked us to interpret the
phrase average weekly wages in AS 23.30.225(b)
inpari materia[29] with the phrase average current
earnings in the Social Security Act.[30] We declined
to do so.[31] After deciding that average weekly
wages in AS 23.30.225(b) was ambiguous, we considered
the language of the Act in 1977, when AS 23.30.255(b) was
added.[32] We observed that at that time
average weekly wages was also the term used in AS
23.30.220, making the phrase "the basis for computing
compensation."[33] We noted that even though the
legislature had changed the language of AS 23.30.220 in 1983,
the method used to calculate a weekly wage rate in the 1977
and 1983 versions of the statute remained "very
similar."[34] From this we concluded that average
weekly wages in AS 23.30.225(b) was "the same as
'gross weekly earnings' in AS 23.30.220(a)(1), "
the subsection used to calculate the employee's
compensation in that case.[35]
Alaska
Airlines asserts that AS 23.30.225(b)'s use of the phrase
at the time of injury only permits the use of
Darrow's income from 1996, the year of her injury. This
argument ignores the use of the same phrase in AS 23.30.220,
which currently provides that compensation is calculated
"on the basis of an employee's spendable weekly wage
at the time of injury.[36] (Emphasis added.) In
spite of this language, AS 23.30.220(a)(10) allows the Board
to set a different wage rate for certain workers who are
permanently and totally disabled.
Historically
AS 23.30.220 has permitted the Board some discretion in
setting the wage used as a base for compensation calculation.
When AS 23.30.225(b) was added to the Act in 1977, for
example, former AS 23.30.220 permitted the Board to set a
worker's average weekly wages at the time of injury by
considering wages for similar jobs if the Board did not think
wages could be "fairly calculated" under other
subsections.[37] And the same legislation that adopted
the SSDI offset included a provision that "the average
weekly wage is that most favorable to the employee, "
considering the wages an employee had earned in the previous
three years.[38] These variations in permissible
calculations of a worker's "average weekly wage...
at the time of the injury"[39] suggest that the
legislature understood and intended that at times the wage
used to calculate compensation would not be precisely the
same wage that a worker was in fact earning at the time of
the injury.
The
legislature amended AS 23.30.220 in 1995, adding subsection
.220(a)(10), the provision the parties used to calculate
Darrow's weekly earnings for purposes of computing her
PTD amount.[40] The legislature is presumed to know that
Shirley construed the term average weekly
wages in .225(b) as meaning the same thing as gross
weekly earnings in .220(a).[41] This presumption supports
the Commission's conclusion that when the legislature
amended the statute in 1995, "it in effect wrote ... the
phrase 'as determined under AS 23.30.220(a)(1)-(10)'
into [AS 23.30.225(b)]."
Alaska
Airlines argues that our statement in Shirley that
"[t]he general purpose of the bill under which AS
23.30.225(b) was enacted was to make benefits more affordable
to employers in Alaska"[42] supports its construction of
the statute. It further contends that Darrow's case is
analogous to Louie v. BP Exploration (Alaska), Inc.,
where we recognized that the legislature chose in 1988 to
lower compensation for some workers, even if it caused those
workers hardship.[43] But the legislative history of AS
23.30.225(b) shows that it supports the Commission's
construction of the statute, not Alaska Airlines'.
Alaska
Statute 23.30.225(b) was enacted in 1977 as part of Senate
Bill (S.B.) 131, but subsection .225(b) was first introduced
as a separate bill in the House.[44]Initially S.B. 131 only
dealt with offsets for Social Security retirement and
survivors benefits;[45] but the House Labor and Management
Committee amended it to include the House bill[46] because both
bills related to Social Security offsets.[47]
When
S.B. 131 was initially introduced, the governor identified
one of its general purposes as "making benefits more
affordable" to employers, [48] a purpose we noted in
Shirley.[49] While the House Labor and Management
Committee anticipated that its bill would decrease
workers' compensation insurance premiums and thereby save
employers money, those savings were to come from shifting
costs to the federal government. The House measure was meant
to take advantage of a then-existing "loophole" in
federal law that permitted states to offset workers'
compensation payments with SSDI when an injured worker
recieved both forms of compensation, thereby shifting part of
the cost of supporting a disabled worker to the federal
government.[50] One witness told the committee that in
"no case" would the proposed offset result in any
decrease in payments to workers.[51] This witness presented a
report that had been prepared for the Municipality of
Anchorage showing hypothetical examples in which an employer
would generally pay less in workers' compensation under
the proposal.[52] This legislative history is a stark
contrast to the history we discussed in Louie, which
showed the legislature expressly chose to lower benefits for
some workers at the same time it increased benefits for
others.[53] Nothing in the legislative history of
either the Senate or House proposals shows any intent to
reduce benefits paid to injured workers; to the contrary, one
argument in favor of the legislation was that it would give
workers the benefit of the Social Security taxes they had
paid.[54]
We have
recognized that workers' compensation must balance two
competing concerns. Wages must be calculated "to arrive
at a fair approximation of [a] claimant's probable future
earning capacity"[55] while at the same time, benefits must
not be too generous for fear that an injured worker will not
have an incentive to return to work.[56] The 1977 hearing
testimony suggests that the offset legislation was meant to
balance these goals: replacing enough income with enough
money that an injured worker's standard of living would
not be dramatically reduced but keeping benefits low enough
to provide an incentive to return to work.[57] The federal
Social Security offset provision had a similar purpose -
ensuring that workers have an incentive to return to work and
preventing the "erosion of state workers'
compensation programs."[58] But if an injured worker
returns to work for a long time before becoming completely
disabled, using an earlier wage to set benefits can result in
hardship.[59] Permitting an alternative method to
calculate gross weekly earnings under AS 23.30.220(a)(10)
ameliorates this hardship. Construing the Act as Alaska
Airlines requests would effectively block AS
23.30.220(a)(10)'s calculation of an alternative wage.
Alaska
Airlines also argues that we should consider AS 23.30.225(b)
a more specific provision than AS 23.30.220 and urges us to
apply the principle that the more specific statutory
provision should control over the general one when the
provisions cannot be harmonized.[60] It does not explain why
the provisions cannot be harmonized or why AS 23.30.225(b) is
more specific. The Commission thought the two provisions
could be harmonized by interpreting average weekly wages
at the time of injury in AS 23.30.225(b) as including
gross weekly earnings calculated under any subsection of AS
23.30.220(a).
We
agree with the Commission that the statutes can be
harmonized; therefore the rule that specific provisions
govern more general ones does not apply.[61]When the
offset provision was adopted, the average weekly wage under
AS 23.30.220 did not have to correspond to the exact wage the
worker was earning at the time of injury, yet the legislature
used the same phrase in AS 23.30.225(b) that it used in AS
23.30.220.[62] This supports the Commission's
conclusion that the two provisions can be harmonized.
Additionally, in Shirley, we interpreted the phrase
average weekly wages in AS 23.30.225(b) as
"referrringl to the measure of historical earning
capacity used to calculate compensation" - that is,
gross weekly earnings as determined by AS
23.30.220.[63]
Here
Alaska Airlines' construction of the statute results in
Darrow getting less per week in combined workers'
compensation benefits and S SDI-$535.18-than she would get in
workers' compensation alone - $668.98 -based upon the
stipulated amount of $ 1, 3 90 as her weekly wage. While the
Commission's interpretation does not give Alaska Airlines
an offset as long as Darrow gets SSDI, the amount Darrow
receives under the Commission's analysis is still
substantially less than the adjusted weekly wage the parties
stipulated to. The Commission's construction of the Act
is consistent with both the purpose of keeping an
employee's benefits below wages and providing adequate
compensation. We hold that the Commission correctly construed
and applied AS 23.30.220(a) and AS 23.30.225(b).
B.
The Commission Erred In Allowing An Offset For PPL
Darrow's
cross-appeal also presents an issue of statutory construction
and requires us to examine the legislature's use of the
terms disability and impairment in the
context of workers' compensation. Alaska Statute
23.30.180(a) provides in part, "If a permanent partial
disability award has been made before a permanent total
disability determination, permanent total disability benefits
must be reduced by the amount of the permanent partial
disability award, adjusted for inflation, in a manner
determined by the board." The statutory definition of
disability is found in AS 23.30.395(16): "
'disability' means incapacity because of injury to
earn the wages which the employee was receiving at the time
of injury in the same or any other employment."
Alaska
Statute 23.30.190(a) sets out a formula for paying
compensation "[i]n case of impairment partial in
character but permanent in quality, and not resulting in
permanent total disability." To determine "the
existence and degree of permanent impairment, " AS
23.30.190(b) requires the use of a specific medical
reference, th& AMA Guides. Nothing in AS
23.30.190 links compensation for a permanent impairment to an
inability to earn wages.
Before
1988, AS 23.30.190 authorized payment of permanent partial
disability compensation, with payments based on the
type of permanent injury and the worker's wage-earning
capacity.[64] In 1988 the legislature repealed and
reenacted AS 23.30.190, replacing permanent partial
disability with permanent partial impairment
benefits.[65] At the same time, the legislature
amended AS 23.30.180(a) to include the provision mandating
reduction of PTD by the amount of previously paid permanent
partial disability.[66] The legislature also made both
of these provisions applicable only to injuries that happened
on or after July 1, 1988.[67]
Relying
principally on AS 23.30.180(a) and the regulation it had
promulgated to implement it, 8 AAC 45.134, [68] the Board
permitted Alaska Airlines to recover the $40, 500 it had
previously paid Darrow in PPI, plus an additional $ 11, 33 8
to adjust the prior awards for inflation. The Commission, in
contrast, interpreted AS 23.30.190(a) and AS 23.30.155(j) and
decided that Alaska Airlines could recover the PPI as an
overpayment of PTD "without regard to AS 23.30.180 and
without regard to 8 AAC [45].134." It did not mention
the additional $11, 338.
Darrow
argues that the Commission misinterpreted the Act by allowing
Alaska Airlines to offset the PPI it had previously paid her
against her PTD award. Her argument is based on statutory
language: AS 23.30.180(a) requires an offset when "a
permanent partial disability award has been made
before a permanent total disability determination"
(emphasis added) - not a permanent partial
impairment award - yet permanent partial disability
as a benefit was removed from the Act in 1988.[69] Darrow
contends that disability and impairment are
distinct concepts. She points out that a person may be
disabled from working without having a permanent impairment,
[70]
and conversely, a person who has a permanent impairment may
not be disabled from working, as illustrated by Darrow
herself. Darrow maintains that the Board correctly recognized
that PPI was intended to compensate for a separate loss
related to a physical harm, rather than wage loss from an
injury, which would be a disability benefit.
Darrow
points to a different statutory subsection, AS 23.30.041(k),
which concerns an employee's eligibility for reemployment
benefits, to show that the legislature understood that PPD
and PPI are in fact different. In that subsection the
legislature explicitly differentiated between PPD and
PPL[71] She concludes that AS 23.30.180 does not
authorize an offset against her PTD for PPL Darrow argues
that the Commission's construction of AS 23.30.190 could
permit an employer a double recovery of PPI when AS
23.30.041(k) had been used to suspend benefits. Both Darrow
and Alaska Airlines currently take the position thai
permanent partial disability in AS 23.30.180(a) refers
to the permanent partial benefit that existed before the 1988
statutory amendments.
Alaska
Airlines asks us to affirm the Commission's
interpretation of the Act allowing it to recoup PPI under AS
23.30.190(a) and. 155(j). Alaska Airlines argues that the
1988 addition of the offset provision to subsection .180(a)
"only . . . related to injuries occurring prior to the
statutory changes . . . which changed permanent partial
disability benefits to permanent partial impairment
benefits." Therefore, it continues, after the 1988
amendments to the Act, "neither the credit provision of
§ .180 nor the board's regulation in 8 AAC 45.134(c)
is required to address recovery of PPI paid when an employee
is rendered permanently and totally disabled." It does
not mention the Board's adjustment of the PPI amount for
inflation or the Commission's failure to address it.
The
State supports the Commission's interpretation of the
statute, arguing that Darrow "is not entitled to PPI
benefits for her knee injury because her impairment resulted
in permanent total disability." The State relies on the
plain meaning of AS 23.30.190(a) - which refers to PPI as not
resulting in permanent total disability - and the common
meaning of overpayment, but also maintains that the
Board's regulation is consistent with both AS 23.30.180
and .190 and "harmonizes the two statutes." It
contends that the concepts of disability and
impairment are distinct but related, as shown by
language in AS 23.30.180(a) that classifies a worker who
suffers certain impairments as presumptively permanently and
totally disabled. It argues that not requiring an offset
would overcompensate Darrow. At oral argument before us the
State postulated that, because both statutes took effect on
the same date, the statutory language in AS 23.30.180(a) was
a drafting error and that the legislature meant to use
impairment rather than disability in the
statutory language.
As
noted, the Commission's decision relied solely on AS
23.30.190(a) and AS 23.30.155(j) to permit Alaska
Airlines' recovery of previously paid PPI and failed to
explore the meaning of AS 23.30.180(a) and its interaction
with AS 23.30.190(a). The Commission effectively wrote out of
the statute AS 23.30.180(a)'s provision for recovery of
previously paid PPD by saying that 'Alaska Airlines is
entitled to withhold 20% of [Darrow's] permanent total
disability payments, without regard to AS 23.3 0.180 and
without regard to 8 AAC [45]. 134."
Alaska
Airlines asks us to ignore AS 23.30.180(a), the Board's
regulation, and the Board's decision applying that
statute and regulation, narrowing its focus to the statutory
subsections relied on by the Commission. Although we review
the Commission's decision, not the Board's,
[72]
when construing a statute, "we must, whenever possible,
interpret each part or section of a statute with every other
part or section, so as to create a harmonious
whole."[73] "When a statute or regulation is
part of a larger framework or regulatory scheme, even a
seemingly unambiguous statute must be interpreted in light of
the other portions of the regulatory
whole."[74] We decline to ignore the relevant
statutory context and consider AS 23.30.190(a) and .155(j) in
isolation to decide whether Alaska Airlines was entitled to
an offset for PPI it had previously paid Darrow, because that
analysis ignores other parts of the statute as well as the
Board's regulation.
1.
Statutory language and prior ...