Gilstrap v. International Contractors Inc.

OPINION PER CURIAM. The principal issue presented in this appeal is whether “substantial evidence” supports the Alaska Workers’ Compensation Board’s (Board) valuation of the costs of meals provided to Doyle Gilstrap while he worked for International Contractors, Inc., at a remote work site. Fairbanks North Star Borough v. Rogers & Babler, Inc., 747 P.2d 528, 533 (Alaska 1987) (when reviewing factual determinations, court will not reverse Board’s decision where there is “substantial evidence in light of the whole record that a reasonable mind might accept as adequate to support the Board’s conclusion”). Gilstrap challenges the Board’s finding that the meals International Contractors furnished to him at Hidden Falls were worth $5.00 a day. Gilstrap argues that the Board erred in basing its valuation on a cost study1 offered by his employer, because the study, a determination of the price of groceries in Sitka and other Alaska towns, has little bearing on the actual cost of feeding a person doing heavy construction labor at a remote site. International Contractors argues that the Board reasonably relied on the empiri [1183] cal study of prices in Sitka, because Sitka is the town nearest to Hidden Falls and the evidence indicated that some of the food was purchased there in fact. The study, it claims, constitutes substantial evidence of Gilstrap’s meal costs. International Contractors also points out that after ten years of litigation the Board had to make some finding, and that Gilstrap’s testimony and other evidence was not so compelling that the Board acted unreasonably in accepting the cost study. We conclude that the cost study standing alone fails to provide substantial evidence of the true cost of Gilstrap’s meals while he worked at Hidden Falls. The Board’s decision demonstrates that it failed to figure reasonable transportation and food preparation costs into its calculation of meal costs. The Board awarded Gilstrap $1.43 per day for transportation costs despite the fact that no evidence was presented at the May 1990 hearing to support this figure. The only evidence of transportation costs presented at the hearing was Gilstrap’s testimony that a float plane flew in groceries from Sitka for Gil-strap and his crew: “It was $160 a trip, one or two times a week.” The $1.43 transportation cost figure appears to be nothing more than an arbitrary amount which was used to reach the round figure of $5.00 per day.2 We sympathize with the Board’s plight in trying to finally resolve this case even though, by its own admission, “the evidence to support any monetary amount is such that it leads [the Board] into the realm of speculation.” Gilstrap v. International Contractors, Inc., AWCB No. 81-00177 (June 13, 1990). Nonetheless, we must once again remand the case for a new hearing to determine meal costs.3 [1184] Gilstrap also appeals the Board’s denial of his claim for a modification of his 1986 compensation award to account for alleged mistakes in the calculation of interest and depreciation. We decline to resolve on this record whether Gilstrap is time-barred from bringing his modification claim. See AS 23.30.130(a) (explicitly barring modification requests made more than “one year after the date of the last payment of compensation benefits” or more than “one year after the rejection of a claim”). However, we disagree with the Board’s conclusion that it was precluded from addressing the claim by the limited scope of the superior court’s remand order. Accordingly, we direct the Board to consider Gilstrap’s modification request upon remand. REVERSED and REMANDED. Footnotes [1] The cost study (conducted in 1981) put the weekly cost of groceries purchased in Sitka for a man between 20-54 years of age at $24.99. The Board arrived at the $5.00 per day figure by dividing $24.99 by seven ($3.57) and adding $1.43 per day for transportation costs. [2] We do not disagree with the dissent’s starting point: "In order to resolve the valuation issue, I believe this court must first determine which party carried the burden of proving the value of the meals provided at Hidden Falls — Gilstrap or his employer.” The dissent relies on Brunke v. Rogers & Babler, 714 P.2d 795 (Alaska 1986), in arguing that the employee — in this case, Gil-strap — shoulders the burden of proof. Brunke involved an injured employee’s claim for permanent partial disability compensation (PPD). In calculating compensation for a PPD, the Board may fix a reasonable wage if the employee has no actual post-injury wages, or the employee’s actual post-injury wages are below the employee’s earning capacity. In making this determination, the Board focuses on the employee’s actual post-injury wages, if any. In Brunke the employee offered no evidence of his actual post-injury wages. The Board denied the employee compensation for lost post-injury wages due to his PPD, apparently placing the burden of proving post-injury wages on the employee. We upheld that allocation of the burden of proof, stating: Since Alaska relies on earning capacity and not physical impairment, the impact of an unscheduled injury must be proven. The employee can best produce information of his post-injury earnings. It is not an unreasonable or unfair burden to place on the employee. The Board still retains the power to make a separate calculation if justice so requires, pursuant to the statute. Id. at 801 (emphasis added). Brunke placed the burden of proof on the employee because of the employee’s unique position with regard to his i>o.sf-mjury wages. In other words, unless the employee continues his post-injury employment with the same employer, the former employer will have almost no information regarding the employee’s actual post-injury earnings. The employee, conversely, will have this information. The dissent argues that Brunke supports placing the burden on the employee to prove actual pre-injury wages. We disagree that the Brunke rationale supports this conclusion. The dissent notes that "Gilstrap actually purchased the food for himself and his crew ... and provided for its transportation and preparation.” The applicable statute, however, provides that wages include the "reasonable value of board ... received from the employer." Former AS 23.30.-265(20) (emphasis added). The employee is compensated for the value of meals "received from the employer.” In order to compensate the employee for meals, the employer presumably must receive information regarding the employee’s meal expenses. The employer should have roughly the same information as the employee regarding the value of meals “received from the employer." Gilstrap is unlike the employee in Brunke who could "best produce” the relevant evidence. For this reason, Brunke does not support shifting the burden of proof regarding the value of pre-injury wages to the employee. [3] Gilstrap argues that the valuation of his meal costs is very significant because the issue of his entitlement to permanent partial disability can be reopened if his meals are valued at a much higher rate. Gilstrap’s attempt to bootstrap his way into a new disability classification plainly fails on res judicata grounds as we have already affirmed the Board’s denial of his claim for [1184] permanent partial disability. See Gilstrap v. International Contractors, Inc., Mem.Op. & J. No. 448 (Alaska, April 26, 1989).