concurring.
I agree with the result arrived at by the court, but reach it by a different route.
My disagreement with the court’s reasoning lies in its discussion of a “one year limitation” on a physical disability qualifying for unavoidable or special circumstance points and the relationship of this limitation to the Commission’s specific intent to participate requirement. Had the Commission imposed a per se “one year limitation,” I would agree with the court that it would have been impermissible to do so. However, the Commission imposed no such limitation. Indeed, the Commission makes no such argument. Furthermore, in the context of a physical disability resulting from an injury, I view the Commission’s specific intent to participate requirement irrelevant as a threshold consideration.
Roehl was awarded one point in his Bristol Bay application for past participation for 1968 even though he did not fish that year. His back injury, which disabled him from fishing, was held to have been an unavoidable circumstance, 20 AAC 05.-630(a)(5), because
[The applicant] was properly licensed to participate at the time of his injury and there is no question that the back injury prevented the applicant from actually fishing.
However, he was not awarded any unavoidable or special circumstance points for the years 1969-1972 in either his Bristol Bay or Cook Inlet applications because
[The hearing officer was] unable to find merit in the applicant’s claim of points for the years 1969, 1970, 1971 and 1972. Medical records indicate that the applicant has not been physically able to operate a unit of set gill net gear since his injury in 1968. This inability to continue participation for an indefinite period of time precluded the applicant from holding a specific intent to participate in any of the years from 1969 to 1972, (See Case Files 7596 and 7597). He has not purchased any type of commercial licensing since the accident or demonstrated any tangible' interest in the fishery. His gear has been stored since the injury and was stolen in 1974. The applicant has not demonstrated a specific intent to participate and should not receive any points for participation in 1969, 1970, 1971 or 1972. [Emphasis supplied].
The precise basis for rejecting Roehl’s claims is unclear. The hearing officer states that a physical disability resulting in an inability to participate for an indefinite period of time precludes holding a specific intent to participate in the fishery. If that is so, then holding a commercial license or demonstrating a tangible interest in the fishery becomes irrelevant.
In its brief, the Commission appears to specify the real basis for rejecting Roehl’s claims:
The regulation is designed to cover the possible situation of a combination of circumstances, or disasters, which preclude participation for several consecutive years. The regulation must be flexible enough to cover a situation where, for example, an applicant is too ill to fish in 1970, recovers his health and plans to fish in 1971 but loses his boat to a fire at the start of the season, repairs his boat for the 1972 season then is injured.
Furthermore, an applicant who is prevented from fishing for two, three, or even four consecutive years by physical disability could be awarded points for 1969-1972 if he could show that he remained dependent on the fishery during that time period despite his disability, maintained his gear and was ready to fish each year. This was not Mr. Roehl’s situation. As discussed above, Mr. Roehl turned from fishing to other occupations between his 1968 injury and his recovery in 1976. [Emphasis supplied].
Thus it appears that Roehl’s physical disability did not preclude him from holding a specific intent to participate. Rather, *134Roehl failed to take objectively identifiable steps to manifest this intent, regardless of the indefinite duration of the physical disability.
In my view it is farcical to require a person in Roehl’s position to purchase a license, own and maintain gear, and take other steps to ready for fishing, when at the time the person has to make these gestures he or she cannot fish because of a then existing physical disability. Yet if Roehl had performed these futile and costly acts, he would have demonstrated a specific intent to participate and presumably would have been awarded points for 1969-1972.1
The Commission has adopted a policy, reflected in the demonstration Roehl must make, which represents its interpretation of 20 AAC 05.630(a)(5) and (b)(2). In my view, there is no reasonable basis for such an interpretation in the context of a claim for unavoidable or special circumstance points based on a physical disability.
The focus of the inquiry in this type of case should be on the nature and extent of the injury and resulting disability, and whether the disability is likely to permanently exclude2 the applicant from the fishery, or merely postpone the applicant’s participation in the fishery. This kind of an inquiry will be more difficult than merely looking for objectively identifiable manifestations of specific intent to participate in each individual year. However, it is an inquiry routinely made by the Alaska Workers Compensation Board, and by countless judges and juries considering claims of disability.
It is only after a physical disability determination is made that an applicant’s intent becomes relevant. If the physical disability merely postpones participation in the fishery, the intent required should be the intent to participate as soon as the applicant is physically capable. If the Commission is of the view that the applicant’s lack of participation in and economic dependence on the fishery in the critical years is the result of a conscious abandonment of the fishery, resulting from a physical disability, then the burden of showing such abandonment ought to be on the Commission.3
There being no reasonable basis for the Commission’s interpretation of 20 AAC 05.-630(a)(5) and (b)(2), the case should be remanded for further consideration.
. Roehl testified that in each of the critical years he had an offer to fish from a specific cannery, but that he declined the offers because of his injury. He had offers to fish with friends and relatives, but again could not accept because of his injury. The Commission does not dispute this evidence. A fair reading of the record can lead to no other conclusion than that Roehl wanted to and would have fished, but for his injury.
. In Files 75-96 and 75-97 (erroneously referred to by the hearing officer herein as 7596 and 7597), applicants were awarded unavoidable circumstance points for two years after medical conditions permanently excluded them from the fishery, reflecting a period of transition from one life style to another. The points were awarded to ameliorate undue hardship. If it is likely that a physical disability will permanently exclude an applicant from participating, awarding unavoidable or special circumstance points would be in error.
.The Commission’s requirement that an applicant show a specific intent to participate in the fishery is in reality a requirement that the applicant show he or she has not abandoned the fishery. Thus the applicant must prove the negative.