ALASKA WORKERS' COMPENSATION BOARD

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

) FRANK N. CAGGIANO, ) ) Employee, ) DECISION AND ORDER ) ON MODIFICATION Respondent ) ) v. ) AWCB Case No. 199228047 ) HAROLDS MAYTAG HOME APPL.,INC, ) AWCB Decision No.00-0082 ) Employer, ) Filed with AWCB Anchorage, Alaska ) and ) May 1 , 2000 ) STATE FARM FIRE & CASUALTY CO, ) ) Insurer, Petitioners

We heard the employer’s Petition for Modification based on the written record at Anchorage, Alaska on April 25, 2000. Attorney William Erwin represented the employee. Attorney Trena Heikes represented the employer. We closed the record when we met to consider this request on April 25, 2000.

ISSUE Shall we modify AWCB Decision No. 99-0221 (November 2, 1999) (Caggiano I) under AS 23.30.130?

SUMMARY OF THE EVIDENCE On December 16, 1992, the employee injured his low back and right arm while repairing a stacked washer/dryer unit. The employee continued to work for the employer until he underwent cervical and shoulder surgeries in 1995. The employee did not return to FRANK N. CAGGIANO v. HAROLDS MAYTAG HOME APPL., INC. work following the surgeries and was found eligible for reemployment benefits. The relevant facts are discussed in the Summary of Evidence section of Caggiano I. We incorporate the full summary of evidence from Caggiano I by reference. In addition, we note the following evidence. On December 13, 1996, the employer medical examiner (EME) physician, Michael Gevaert, M.D., determined the employee was medically stable and could return to light work. On April 1, 1997, treating physician Louis Kralick, M.D. also concluded the employee was medically stable. The employee signed a reemployment plan on May 28, 1997 to return to remunerative employment as a medical assistant. The plan involved training at Alaska Computer Institute. The employee failed to register for classes, and the employer controverted reemployment benefits on August 7, 1997 for failure to cooperate with the rehabilitation specialist. On November 18, 1997, Reemployment Benefits Specialist (RBA) Saltzman determined the employee had not shown an unreasonable failure to cooperate with rehabilitation. RBA Saltzman noted a June 26, 1997 medical report from Robert Bosveld, M.D. stated it was too early for the employee to begin classes, and the employee needed physical therapy. RBA Saltzman further noted an August 1, 1997 report by treating physician Lawrence Wickler, M.D. stated the employee may not be able to perform a job in “medical records” due to his chronic shoulder pain. On February 11, 1998, the employee filed a workers’ compensation claim for permanent total disability (PTD) benefits and a review of his reemployment plan. The employee asserted the retraining plan was not instituted because the school “closed its doors.” The employee further claimed he was due PTD benefits until his reemployment plan was completed. On April 29, 1998, Dr. Wickler reviewed job analyses for medical secretary/receptionist and billing clerk/billing typist. Dr. Wickler determined while the employee may have some difficulty if he were asked to perform one task over and over, he would function quite nicely in those positions with multiple tasks. The reemployment plan was then revised by Rehabilitation Specialist Steve Coley on May 16, 1998 to include training at the University of Alaska Anchorage (UAA) as a medical assistant. Mr. Coley noted the 24-month training period at UAA would provide opportunities in multi-task positions such as a medical assistant, medical receptionist,

2 FRANK N. CAGGIANO v. HAROLDS MAYTAG HOME APPL., INC. medical transciptionist, billing clerk and medical secretary. Further, the reemployment plan included the employee’s entrance into UAA in the fall of 1998 and the completion of the plan in the summer of 2000. The plan also included a copy of the course curriculum and listed costs for tuition, admission, books and transportation totaling $6,362.00. In addition, Mr. Coley stated the employee was declared medically stable by Dr. Kralick and Dr. Wickler, and he noted Dr. Gevaert indicated the employee could perform light work. Mr. Coley listed the employee’s skill and administered tests showing he exceeded the cutoff scores for critical aptitude areas for the occupational goal, with one standard error of measurement. Mr. Coley determined no other academic program was identified that would return the employee to remunerative employment in a shorter period of time than the program for medical assistant. According to Mr. Coley’s labor market survey, jobs were available in both medical and dental offices, and he opined the employee could reasonably expect to satisfactorily complete the plan and perform in a new occupation within the time and costs of the plan.1 The employee declined to agree to the revised plan and stated in a letter dated May 29, 1998 that he was not medically able to participate in the reemployment plan. The plan was submitted to RBA Saltzman, who approved the plan on July 10, 1998. RBA Saltzman found the plan complied with all of the requirements under AS 23.30.041. RBA Saltzman stated in his July 10, 1998 report: I approve this plan under AS 23.30.041(j) as meeting the requirements of AS 23.30.041(h) and (I). I understand that Dr. Bosveld, Mr. Caggiano’s family physician believes that he is not able to participate in the reemployment benefits plan without further medical treatment. The employer has controverted Dr. Bosveld as an excessive change in physicians. Based on this information, I believe that I must proceed a (sic) make a decision regarding the reemployment plan for Mr. Caggiano. I believe that this is a solid plan that can provide employability for Mr. Caggiano in the labor market at a remunerative wage.

A hearing was held in this matter on September 9, 1999. The issues scheduled to be addressed at the hearing included additional permanent partial impairment (PPI) benefits, PTD benefits, as well as the employee’s appeal of the RBA’s approval of the reemployment plan.

1 See, May 16, 1998 Reemployment Plan by Steve Coley.

3 FRANK N. CAGGIANO v. HAROLDS MAYTAG HOME APPL., INC.

Prior to the hearing, the employee unexpectedly passed away due to liver cancer, unrelated to his work injury. The employee’s wife appeared at the hearing as the personal representative of the employee’s estate. At the hearing, the employee’s counsel stipulated he was presenting no evidence regarding the employee’s claim for PTD benefits or his appeal of the reemployment plan, as those benefits were precluded as a matter of law under the Alaska Workers’ Compensation Act due to the employee’s untimely death. The employee’s counsel, however, declined to either withdraw the claim for PTD benefits and the RBA appeal or waive any rights to those benefits. In the November 2, 1999 decision in Caggiano I, the board determined the employee was not entitled to additional PPI benefits. However, the board declined to address the issues of PTD benefits and the RBA appeal. In a Petition for Modification dated January 7, 2000, the employer requested we modify the decision in Caggiano I and deny and dismiss the employee’s claim for PTD benefits based upon a lack of evidence. The employer further requested we deny and dismiss the employee’s appeal of the RBA’s approval of the reemployment plan based upon a lack of any evidence the RBA abused his discretion. At the hearing, the employee’s counsel asserted the employee’s claims concerning PTD benefits and reemployment benefits did not survive his untimely death. Further, the employer argued there was no evidence the employee was permanently and totally disabled. Indeed, there was an approved reemployment plan in place. Moreover, the employer contended there was no evidence the RBA abused his discretion in approving the reemployment plan.

FINDINGS OF FACT AND CONCLUSIONS OF LAW I. MODIFICATION AS 23.30.130(a) provides in part: Upon its own initiative, or upon application of any party in interest on the ground of a change in conditions, including for the purposes of AS 23.30.175, a change in residence, or because of a mistake in its determination of a fact, the board may, before one year after the date of the last payment of compensation benefits...or before one year after the rejection of a claim, review a compensation case under the procedure prescribed in respect of a claim, review a compensation case under the procedure prescribed in respect of claims in AS

4 FRANK N. CAGGIANO v. HAROLDS MAYTAG HOME APPL., INC.

23.30.110. Under AS 23.30.110 the board may issue a new compensation order which terminates, continues, reinstates, increases, or decreases the compensation, or award compensation.

Based upon our review of the record, we find PTD benefits and the reemployment benefits plan were placed at issue at the September 9, 1999 hearing. Due to the untimely death of the employee, the employee’s counsel declined to present any evidence at hearing regarding those two issues. Nevertheless, the board in Caggiano I did not make a determination on either the claim for PTD benefits or the reemployment plan in its November 2, 1999 decision. Therefore, we will exercise our discretion under AS 23.30.130 and modify Caggiano I in order to consider these issues.

II. REEMPLOYMENT BENEFITS PLAN A. STANDARD OF REVIEW Under AS 23.30.041(d), we must uphold a decision of the RBA absent “an abuse of discretion on the administrator’s part.” The Alaska Supreme Court has stated abuse of discretion consists of “issuing a decision which is arbitrary, capricious, manifestly unreasonable, or which stems from an improper motive.” Sheehan v. University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985); Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979) (footnote omitted). Additionally, an agency’s failure to properly apply the controlling law may also be considered an abuse of discretion. Manthey v. Collier, 367 P.2d 884 (Alaska 1962). In the Administrative Procedure Act, the legislature has provided another definition to be used by the courts in considering appeals of administrative agency decisions: Abuse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by findings, or the findings are not supported by the evidence...If it is claimed that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by (1) the weight of the evidence; or (2) the substantial evidence in light of the whole record. AS 44.62.570.

On appeal to the courts, our decision reviewing the RBA’s determination is subject to reversal under the abuse of discretion standard of AS 44.62.570, incorporating the

5 FRANK N. CAGGIANO v. HAROLDS MAYTAG HOME APPL., INC. substantial evidence test. The Board’s concern with meeting that standard on appeal leads it to apply a substantial evidence standard in our review of an RBA determination. Applying a substantial evidence standard, a “[reviewer] may not reweigh the evidence or draw its own inferences from the evidence. If, in light of the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, then the order...must by upheld.” Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978)(footnotes omitted).

B. REEMPLOYMENT BENEFITS PLAN UNDER AS 23.30.041 AS 23.30.041 provides, in part: (h) Within 90 days after the rehabilitation specialist’s selection under (g) of this section, the reemployment plan must be formulated and approved. The reemployment plan must include at least the following: (1) a determination of the occupational goal in the labor market; (2) an inventory of the employee’s technical skills, physical and intellectual capacities, academic achievement, emotional condition, and family support; (3) a plan to acquire the occupational skills to be employable; (4) the cost estimate of the reemployment plan, including provider fees; the amount of tuition, books, tools, and supplies; transportation; temporary lodging; or job modification devices; (5) the estimated length of time that the plan will take; (6) the date the plan will commence; (7) the estimated time of medical stability as predicted by the physicians (8) a detailed description and plan schedule; and (9) a finding by the rehabilitation specialist that the inventory under (2) of this subsection indicates that the employee can be reasonably expected to satisfactorily complete the plan and perform in a new occupation within the time and cost limitations of the plan.

(i) Reemployment benefits shall be selected from the following in a manner that ensures remunerative employability in the shortest possible time: (1) on the job training; (2) vocational training; (3) academic training; (4) self-employment; or (5) a combination of (1) – (4) of this subsection.

6 FRANK N. CAGGIANO v. HAROLDS MAYTAG HOME APPL., INC.

(j) The employee, rehabilitation specialist, and the employer shall sign the reemployment benefits plan. If the employer and employee fail to agree on a reemployment plan, either party may submit a reemployment plan for approval to the administrator; the administrator shall approve or deny a plan within 14 days after the plan is submitted; within 10 days of the decision, either party may seek review of the decision by requesting a hearing under AS 23.30.110; the board shall uphold a decision of the administrator unless evidence is submitted supporting an allegation of abuse of discretion on the part of the administrator; the board shall render a decision within 30 days after completion of the hearing.

We now consider whether the RBA’s decision is supported by substantial evidence. See, Yahara v. Construction & Rigging, Inc., 851 P.2d 69 (Alaska 1993). Based upon our review of the record, we find substantial evidence supports the RBA’s approval of the reemployment plan, and thus he did not abuse his discretion. We note Dr. Gevaert released the employee to light duty work. In addition, Dr. Wickler determined while the employee may have some difficulty if he were asked to perform one task over and over, he would function quite nicely in those positions with multiple tasks. Moreover, Mr. Coley stated in his May 16, 1998 revised reemployment plan that the employee’s retraining at UAA as a medical assistant would provide opportunities for employment in a variety of multi-task positions. Finally, we find the employee’s claim for a reemployment plan review in February of 1998 because Alaska Computer Institute “closed its doors” is without merit, as the revised plan in May of 1998 changed the retraining school to UAA. Consequently, we find the RBA did not abuse his discretion in approving the May 16, 1998 reemployment plan.

III. PTD BENEFITS AS 23.30.041(n) provides, in part: After the employee has elected to participate in reemployment benefits, if the employer believes the employee has not cooperated the employer may terminate reemployment benefits on the date of noncooperation...

The employee alleged in his February 1998 claim that he was entitled to PTD benefits until the completion of his retraining. In Meek v. Unocal Corporation, 914 P.2d 1276 (Alaska 1996), the Alaska Supreme Court concluded a claimant’s prior request for

7 FRANK N. CAGGIANO v. HAROLDS MAYTAG HOME APPL., INC. reemployment benefits “did not preclude his subsequent claim for permanent total disability benefits.” However, though Dr. Gevaert released the employee to light-duty work and though Dr. Wickler determined the employee could perform as a medical assistant with varied job duties, the employee declined to participate in the reemployment plan. Moreover, we note our above finding that the RBA did not abuse his discretion in approving the reemployment plan. Consequently, we find the employee is not entitled to any benefits in connection with the reemployment process, including PTD benefits.

ORDER 1. The RBA did not abuse his discretion in approving the reemployment plan. 2. The employee’s claim for PTD benefits is denied and dismissed.

Dated at Anchorage, Alaska this 1 day of May, 2000.

ALASKA WORKERS' COMPENSATION BOARD

______Kathleen M. Snow Designated Chairperson

______S. T. Hagedorn, Member

APPEAL PROCEDURES This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

8 FRANK N. CAGGIANO v. HAROLDS MAYTAG HOME APPL., INC.

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

CERTIFICATION I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order on Modification in the matter of FRANK N. CAGGIANO employee/ respondent; v. HAROLDS MAYTAG HOME APPL.,INC, employer; STATE FARM FIRE & CASUALTY CO, insurers/petitioners; Case No. 199228047; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 1 day of May, 2000.

______Brady D. Jackson, III, Clerk

9