ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

) ROBERT I. RESNICK, ) ) Employee, ) INTERLOCUTORY ) DECISION AND ORDER Applicant ) ) v. ) AWCB Case No. 198907480 ) ANCHORAGE DAILY NEWS, ) AWCB Decision No. 00-0020 ) Employer, ) Filed in Anchorage, Alaska ) and ) on February 3, 2000. ) FIREMAN'S FUND INS. CO., ) ) Insurer, Defendants.

We heard the employee’s request for a compensation rate adjustment in Anchorage, Alaska on December 16, 1999. Attorney Michael J. Jensen appeared on behalf of the employee. Attorney Trena Heikes represented the employer and insurer. We left the record open for supplemental briefing by the parties. We closed the record when we next met on January 4, 2000. ISSUES Whether the employee’s TTD compensation rate should be based on his wage at the time of his injury in 1989 or on his wage at the time of his disability in 1996. SUMMARY OF THE EVIDENCE In April 1989, the employee, Robert Resnick, injured his back while working as a Press Operator for the Anchorage Resnick v. Anchorage Daily News

Daily News. He was taken off work for this injury and ultimately underwent decompressive surgery to his low back on May 12, 1989. (Employer's Hearing Brief, hereinafter ER at page 2.) He was determined unable to return to work as a press operator and was awarded vocational reemployment benefits. (Employee's Hearing Brief, hereinafter EE, at page 1.) The employee was then retrained to work as a Camera\Scanner Operator. (ER at 2.) The employer paid travel and moving expenses for Mr. Resnick and his wife to relocate to Florida where he began working as a camera operator. (ER at 3; EE at 1.) During this period, the employer paid temporary total disability at a weekly rate of $541.02. The employer also paid temporary partial disability, permanent partial disability, and 041(k) benefits. (Compromise & Release, approved May 28, 1999 at Exhibit B, page 2.) The employee aggravated his back condition while working for the Florida newspaper. (ER at 3.) He was taken off work in October of 1996 and has not returned. (ER at 4.) He underwent another decompression surgery in October 1997 and reached medical stability as of December 6, 1998. (EE at 1.) Once disabled, the employee filed a claim against Anchorage Daily News, asserting that his 1989 injury was a substantial factor in causing his disability. The employer controverted the claim and the parties settled their dispute by Partial Compromise and Release in May 1999. (ER at 5.) In the settlement, the parties agreed that the 1989 injury was a substantial factor in causing Mr. Resnick's need for surgery in October 1997. (Partial Compromise and Release approved May 28, 1999, at page 6.) The parties agreed to set the employee's compensation rate based on his time-of-disability earnings rather than his time-of-injury earnings. He was

2 Resnick v. Anchorage Daily News paid temporary total disability at a weekly rate of $319.35. The parties agreed to leave open the possibility that the employee could request a compensation rate adjustment from the Board. We heard the employee's claim for adjustment of his compensation rate on December 16, 1999. The employee argued AS 23.30.220 should be strictly construed so as to compensate him based on his 1989 time-of- injury earnings. The employer argued that the employee's actual post-injury wages are the best indicator of his future earning capacity and he should be compensated at the rate he was actually earning when he became disabled in 1996. During the December 16, 1999 hearing, the parties referred to the vocational rehabilitation plan in which Mr. Resnick was retrained as a camera operator. The parties also referred to the deposition of Mr. Resnick. The parties believed that these documents were contained within the Board's file. However, these documents do not appear in Mr. Resnick's Worker's Compensation file. FINDINGS OF FACT AND CONCLUSIONS OF LAW AS 23.30.135(a) provides in pertinent part: "The board may make its investigation or inquiry or conduct its hearing in the manner by which it may best ascertain the rights of the parties." We find the vocational rehabilitation plan, including the evaluator's report, are relevant to the employee's claim for a compensation rate adjustment. We further find that the deposition of Mr. Resnick is relevant to the resolution of the employee's claim. These documents are not currently located in the Board's file. We therefore conclude we must reopen the record in order to obtain and consider these additional documents. We find by reopening the records, we must afford the parties an opportunity to cross-examine the authors, or

3 Resnick v. Anchorage Daily News possibly present rebuttal evidence. In order to schedule the filing of these requested documents as well as any additional briefing or filing of additional evidence, a pre-hearing is set for February 17, 2000 at 2:00 p.m. with the designated chairperson. In the event the parties are unable to attend the prehearing as scheduled, they are directed to contact the designated chairperson to reschedule the prehearing at a mutually convenient time. ORDER A prehearing before the designated chairperson to work out an expedited schedule for filing these requested documents as well as any additional briefing or filing of additional evidence is set for February 17, 2000 at 2:00 p.m. Dated at Anchorage, Alaska this 3rd day of February, 2000. ALASKA WORKERS' COMPENSATION BOARD

______Jill E. Farrell, Designated Chairperson

______Harriet Lawlor, Member

______Phil Ulmer, Member

RECONSIDERATION A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and

4 Resnick v. Anchorage Daily News in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

MODIFICATION Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

CERTIFICATION I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of ROBERT I. RESNICK employee / applicant; v. ANCHORAGE DAILY NEWS, employer; FIREMAN'S FUND INSURANCE CO., insurer / defendants; Case No. 198907480; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 3rd day of February, 2000.

______Debra C. Randall, Clerk

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