This action was instituted in the superior court by the appellant, Kermit Cesar, to set aside as not in accordance with law an order of the Alaska Workmen's Compensation Board awarding him compensation in the sum of $900 for the loss of one-half of his left thumb. He claimed that under the applicable provisions of the Alaska Workmen's Compensation Act
The parties seem to agree that the following provisions of the Alaska Workmen's Compensation Act (hereinafter referred to as the act) are applicable in determining the amount of compensation which the appellant is entitled to receive in this case:
The appellant contends that the foregoing provisions of the act frame benefits thereunder in terms of weekly compensation
Under his interpretation of the provisions of the present act, quoted above, the appellant contends that the formula for determining compensation in his case should be 65 per cent of his average weekly wage multiplied by one-half of 51 weeks, but not to exceed $1800. The Board found the appellant's average weekly wage to be "at least $120.00 a week" and the appellant concedes that his actual average weekly wage was $115. Applying the formula thus: 65% of $115 x ½ of 51, the appellant arrives at a compensation figure of $1906.25, which sum he is agreeable to have reduced to what he considers the statutory maximum of $1800.
The Board and the insurer of Cesar's employer, as appellees, disagree with the appellant and insist that the act requires compensation for rated disabilities scheduled in section 7(3) partial in character but permanent in quality, to be computed in proportion to maximum compensation recoverable for permanent total loss or permanent total loss of use. To sustain their position they rely upon subsections (q) and (r) of section 7(3) of the act [AS 23.30.190(18) and (19) respectively], which read:
After hearing testimony and argument of counsel, in which the appellant stated his position in much the same form that he followed later in the superior court and before us, the Board concluded that "the more reasonable interpretation of Sec. 7(3) (f) and (m) is that applicant's [appellant's] compensation should be one-half of fifty-one weeks not to exceed one-half of $1,800.00." Continued the Board:
We hold that the Board was correct in its decision in this case and that the trial court committed no error in affirming the $900 award. In providing scheduled benefits for permanent partial disabilities under the present Alaska act, our legislature adopted almost verbatim comparable provisions in the federal Longshoremen's and Harbor Workers' Compensation Act, which ground benefits on weeks of compensation.
We have been unable to find a workmen's compensation statute of any other American jurisdiction which contains a fixed maximum monetary limit for each particular scheduled loss of a member resulting in permanent partial disability. That being so, the cases from other jurisdictions cited by the parties in this case to support their respective views on how we should interpret the provisions of section 7(3) of our act while informative have not been particularly helpful in deciding the issue here involved.
Since our act is modeled after the Longshoremen's and Harbor Workers' Compensation Act, we would have considered the federal act persuasive in construing comparable sections of our act. But the legislature in section 7(3) (f) of our act went beyond the scope of 33 U.S.C.A. § 908(c) (6) by adding a fixed limit payable for the loss of a thumb and thus indicating a difference in legislative intent.
Reading subdivisions (f) and (m) of section 7(3) in conjunction with subdivision (r) of that section, we are of the opinion that the legislature intended that the express top monetary limit placed on the loss of a whole thumb should be proportionately applied in the case of loss of less than the whole. Initially, where there has been a partial loss of a rated member, the statutory formula based on weeks of compensation must be used. If the amount of compensation arrived at by fitting the figures of a particular case into the formula exceeds the amount of compensation obtained by multiplying the statutory monetary maximum by the percentage of loss, then the award must be for the latter amount. If the result obtained by the formula is less than the proportionate monetary limit, then the formula result is the compensation payable.
The judgment is affirmed.