Hewing v. Peter Kiewit & Sons

MATTHEWS, Justice,

dissenting, with whom RABINO WITZ, Justice, joins.

For the reasons expressed in the opinion of the superior court, published here as an appendix, I believe that there is substantial evidence to support the Board’s decision.

APPENDIX A

SUPERIOR COURT DECISION ON APPEAL

Claimant, Hewing, commenced this appeal from a decision of the Alaska Workmen’s Compensation Board denying him permanent total disability compensation. The matter had previously been through this court to the Alaska Supreme Court and was sent back for further findings of fact. See Hewing v. Alaska Workmen’s Compensation Board, 512 P.2d 896 (Alaska 1973). The Board found that Hewing had current earnings greatly in excess of those he had prior to his injury, and consequently had not suffered a permanent earning impairment as a result of the injury.

Claimant makes two contentions on appeal. First, that given his age, education, background, and experience, he is in effect in the “odd lot” category and has no reasonable expectations of future earnings, and that consequently his occasional earnings do not bar a finding of total disability. The evidence on plaintiff’s earning capacity came largely from his own statements which were substantially impeached. The Board could find, as it did, that Hewing’s earnings from buying and selling used furniture and as a barbeque cook were not transient but were reasonably likely to continue at their present level in the future, and that consequently Hewing was not an “odd lot” employee. In reaching this conclusion the Board could consider the rehabilitation specialists’ comments regarding Hewing’s motivation to seek other work.

Claimant’s second contention is that the Board’s finding does not adequately take into account inflation since the time of his injury. The Board found that Hewing’s earnings at the time of his injury from his occupation were roughly $4,000. It further found that his earnings at the time of the hearing were in substantial doubt due to the untrustworthiness of Hewing’s testimony. At the hearing he downplayed his income from his furniture business, but in response to questions from an insurance adjuster investigating an unrelated personal injury case, he had indicated a consistent income of from $100 to $300 per week. Consequently, after evaluating Hewing’s testimony, the Board concluded that his true earning potential was mid-way between the two extremes, i. e., 0 and $300 a week or roughly $150 per week. One Hundred and Fifty Dollars per week times 52 *189weeks is roughly $7,800, which when compared to Hewing’s pre-accident earnings of $4,000 would more than adequately cover any inflation.

The difficulty with this case lies in the fact that claimant is in the best position to testify truthfully regarding his current earnings and those activities which he can in fact perform. He has done so and given the Board reasonable grounds to doubt his credibility. Since claimant’s out of court admissions are evidence which has been adequately verified, the Board could give it what weight they thought it deserved.

IT IS THEREFORE ORDERED, the decision of the Workmen’s Compensation Board is affirmed.

/s/ JAMES K. SINGLETON. Jr. JAMES K. SINGLETON, JR. Judge of the Superior Court