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IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

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					          IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
                     FOURTH JUDICIAL DISTRICT

SHERRY D. SWAFFORD v. STATE OF ALASKA, DEPARTMENT OF LABOR
Case No. 4FA-95-969 CI
Commissioner #95 0181
Tribunal #95 0181

                  MEMORANDUM, DECISION AND ORDER

     The appellant, Sherry D. Swafford ("Swafford") has appealed a
decision by the appellee, the State of Alaska Department of Labor
("DOL"), denying an extension of her base period on which the
amount of her unemployment benefits are based. Swafford's appeal
is based on her assertion that she was unable to work more than
seven full calendar weeks, or a total of 51 days, from July 1,
1993 through June 30, 1994. Appellant Br., at 1. DOL contends that
the applicable statutes and regulations do not permit Swafford to
count days or weeks from more than one calendar quarter to total
the seven full weeks required for an extension of her base period.
Appellee Br., at 2-3.


                             I. FACTS
     Swafford was employed by Alascom, Inc. as a long distance
operator from March 30, 1992 through October 1993 and from April
1, 1994 through October 25, 1994. She was then permanently laid
off. Swafford most recently filed for unemployment benefits on
November 21,1994. R.4. Her base period for determining the amount
of her benefits was July 1, 1993 through June 30, 1994. R.3. She
was determined to be eligible for $166.00 per week with a total
maximum of $4280.00. R.4.
     Swafford requested an extension of her base period, but DOL
denied her request. R.3, 27-28. She appealed DOL's decision to an
administrative appeal tribunal. R.33. The appeal tribunal upheld
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DOL's decision. R.35. Swafford then appealed to the Commissioner
of DOL, who also upheld the decision. R.37. Now she has appealed
to this court.
     While working for Alascom in June 1992, Swafford slipped and
injured her shoulder and neck. R.6-7. She continued to work full
time despite pain and only occasionally missed a day or two
because of pain. The North Care Clinic referred her to physical
therapy. R.6. She also saw a neurologist, Dr. J. Paul Dittrich,
regarding both pain and numbness in her arm. R.6-7.
     In July 1993, Swafford experienced an increase in pain and
numbness in her arm. R.7, 8. Dr. Dittrich released her from work
starting Friday, July 9, through July 28, 1993. R.8, 10-11. She
returned to work on Thursday, July 29, 1993, but was able to work
only three and one-half hours. R.12-13. Dr. Dittrich again
released her from work at least through August 10 when she was
scheduled to have additional medical testing done. R.12-13.
However, Dr. Dittrich did not authorize her to return to full-time
work until Wednesday, August 25, 1993. R.24-25. Overall, Swafford
was medically certified as unable to work from Friday, July 9,
1993through Tuesday, August 24, 1993.
     Swafford continued to work full-time until about June 22,
1994, when she reinjured her shoulder. R.26. She alleges she was
released from work approximately eight days until at least June
30, 1994.1   R.32, 34.


                         II. STANDARD OF REVIEW
     This appeal requires the court to review the agency's
interpretation of statutory law and application of the agency's

     1
      For the purposes of this appeal, the dates Swafford may have
been released from work due to her injury after June 30, 1994 are
irrelevant.
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regulations. Statutory interpretation is a question of law to
which the court must apply its "independent judgment," usually
referred to as the "substitution of judgment" standard. E.q.,
Arndt v. State, Dep't of Labor, 583 P.2d 799, 803 n.8 (Alaska
1978).
     Although the appellant, who is acting pro se, has not
challenged the regulation itself, this case nonetheless raises a
question regarding whether the regulation is consistent with the
statutory purpose and whether it is reasonable and not arbitrary.
See State, Dep't. of Revenue v. Cosio, 858 P.2d 621,624-25 (Alaska
1993); Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971). This
is a matter of statutory interpretation for which the court
applies the "substitution of judgment" standard. Deubelbeiss v.
Commercial Fisheries Entry Comm'n, 689 P.2d 487, 492-93 (Alaska
1984).
     The facts relevant to this appeal are not in dispute. The
standard of review for the agency's application of its own
regulations to particular factual circumstances normally is
limited to whether the agency's decision was "arbitrary,
unreasonable or an abuse of discretion." Rose v. Commercial
Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982).

                         III. DISCUSSION
A.   Can Swafford combine her injury days from different calendar
     quarters to achieve the seven-week minimum?

     The appellant, Swafford, requested an extension of her base
period in an effort to increase the amount of her unemployment
benefits. Within certain limitations, the amount an individual has
been paid in wages during the base period determines the weekly
benefit amount the unemployed individual may receive. See AS
23.20.350(d). The term "base period" means "the first four of
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the last five completed calendar quarters immediately preceding
the first day of an individual's benefit year." AS 23.20.520(3). A
"calendar quarter" is defined as "the period of three consecutive
calendar months ending March 31, June 30, September 30, or
December 31." AS 23.20.520(6). AS 23.20.376 provides for
extensions of the base period under certain conditions:
       (a) If the department [DOL] finds that during the
       individual's base period an individual has been incapable of
       work during the greater part of the individual's working time
       in a calendar quarter, the base period shall be extended a
       calendar quarter subject to the limitation set out in (b) of
       this section. The extension of an individual's base period
       may not exceed four calendar quarters.

       (b) The maximum benefits payable as a result of the use of
       wages earned in a calendar quarter before the individual's
       current base period as defined in AS 23.20.520 shall be
       reduced by the amount of benefits paid previously as a result
       of the use of wages in computing a previous benefit
       determination.

AS 23.20.376 (emphasis added).2
       The relevant portion of the Department of Labor regulation
corresponding to AS 23.20.376(a) states:
       (1) An individual will be considered incapable of work during
       the greater part of his working time in a calendar quarter if
       he was unable to work for at least seven weeks during the
       calendar quarter because of an incapacitating illness or
       injury.
__________________________________________________________________________________________
       2
      DOL alleges that an extension of one calendar quarter will
not result in an increase in her monthly benefit because her wages
in that quarter were previously used to compute an earlier
unemployment benefit determination. Appellee Br., at 1 n.2. DOL
has not supported the implication that Swafford's appeal would be
futile even if successful. The whole issue is irrelevant for
purposes of this appeal. The issue raised in Swafford's appeal is
whether she is entitled to an extension of her base period,
regardless of whether such an extension would actually increase
her benefits.
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     (2) A medical certification, signed by a physician, will be
     required as evidence of incapacity.

8 AAC 85.075(b) (emphasis added). A "week" is defined by statute
as "seven consecutive days." AS 23.20.520(21). The corresponding
regulation further defines "week" as a "calendar week" beginning
on Sunday and ending on Saturday. 8 AAC 85.010(19).
     Swafford believes she is eligible for a base period extension
by adding the days she was injured at the end of June 1994 to the
days she was injured during July and August 1993 in order to meet
the seven-week minimum. Appellant Br., at 1. However, both the
statute and regulation clearly require that the minimum time
counted for an extension occur within one calendar quarter.
     AS 23.20.376(a) permits an extension if an individual has
been incapable of working during "the greater part of...a calendar
quarter." The DOL regulation defines "the greater part of...a
calendar quarter" to be "at least seven weeks during the calendar
quarter." 8 AAC 85.075(b). The language of AS 23.20.376 and 8 AAC
85.075(b) combined is completely unambiguous in requiring the
seven weeks to occur in only one calendar quarter, not an entire
base period. Interpretation of "a calendar quarter" to mean only
one quarter also fits with the remainder of subsection (a). For
each calendar quarter, the greater part of which the individual
was incapable of working, the base period may be extended by one
calendar quarter up to a limit of four calendar quarters and
provided that the extension is not prohibited by subsection (b).
AS 23.20.376(a). Essentially, the statute permits an individual
to make a quarter for quarter exchange in order to increase the
total amount of base period wages used in calculating weekly
benefit amounts. See AS 23.20.350(d); AS 23.20.376.
     "The interpretation of a statute begins with an examination
of the language used." Lake v. Construction Machinery, Inc., 787
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P.2d 1027, 1030 (Alaska 1990). While Alaska does not recognize a
"plain meaning rule" in statutory construction, the clearer the
statute's meaning appears, the greater the burden of the party
asserting a different meaning. Zoerb v. Chugach Electric Ass'n.,
798 P.2d 1258, 1260 (Alaska 1990); Sonneman v. Knight, 790 P.2d
702, 707 (Alaska 1990); State v. Alex, 646 P.2d 203, 208-209 n.4
(Alaska 1982). There is nothing to suggest that the legislature
intended "a calendar quarter" to be given a plural meaning.
     Therefore, in Swafford's case, the seven-week requirement may
be met with weeks occurring only within the calendar quarter of
July 1, 1993 through September 30, 1993, rather than her entire
base period. Because Swafford's two periods of injury occurred in
different calendar quarters, AS 23.20.376 does not permit her to
add the few days she was injured at the end of June 1994 to the
period of injury in July and August 1993 in order to achieve a
total of seven weeks.3
B.   Is the seven-week requirement in 8 AAC 85.075(b) consistent
     with AS 23.20.376(a)?

     "[A]n agency with authority to make legislative regulations
may by regulation refine and add meaning to statutory language."
State, Dep't. of Revenue v. Cosio, 858 P.2d 621, 624-25 (Alaska
1993). Under AS 23.20.045, DOL has the authority to adopt
regulations necessary to administer the state's unemployment
insurance program. AS 23.20.045.
     A regulation may be more restrictive than the statute it
implements, provided the regulation is reasonable and consistent
with the statutory purpose. Brodigan v. Alaska Dep't. of Revenue,
900 P.2d 728, 732 (Alaska 1995). The statute providing for base
     3
      For this reason, the court need not address whether Swafford
adequately demonstrated medical certification of her inability to
work during the last few days of June 1994.
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period extensions requires that the individual be incapable of
work for the "greater part" of a calendar quarter. AS 23.20.376.
The regulation adopted by DOL is more specific by requiring seven
weeks of incapacitation. 8 AAC 85.075(b). "Week" is defined as "a
calendar week, a period of seven consecutive days beginning at
12:01 a.m. Sunday and ending at 12:00 o'clock midnight the
following Saturday." 8 AAC 85.010(19). There is no question about
interpretation of 8 AAC 85.075(b), which is completely
unambiguous. The question is whether 8 AAC 85.075(b) is harmonious
and consistent with AS 23.20.376. See Deubelbeiss v. Commercial
Fisheries Entry Comm'n., 689 P.2d 487, 492-93 (Alaska 1984).
     Unemployment benefit amounts are calculated on a weekly
basis. See AS23.20.350(d)-(e); see also, R.4 (Swafford's Weekly
Benefit Amount). The "week" is the smallest and most common unit
of time used in the Alaska Employment Security Act. See AS
23.20.005-.520. The term "week" is sufficiently important to
Alaska's unemployment insurance scheme that it is among the terms
defined by the statute as "the period of seven consecutive days
which the department [DOL] may by regulations prescribe." AS
23.20.520(21) (emphasis added). Thus, seven days scattered
throughout a calendar quarter or base period may not be added
together to constitute a "week." DOL was given the authority to
prescribe the beginning and end of a "week."
     When legislation is not expressed in technical terms, the
language should be given its ordinary meaning. Addison v. Holly
Hill Fruit Products, Inc., 322 U.S. 607, 618, 88 L.Ed. 1488, 1496
(1943); AS 01.10.040 (common usage). The ordinary meaning of "the
greater part of" is more than fifty percent or the majority. The
"week" is the smallest unit for which unemployment benefits are
calculated and paid, and one "calendar quarter" contains twelve
full weeks. One unit beyond fifty percent of twelve weeks is seven
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weeks. Thus, the seven-week requirement in 8 AAC 85.075(b) appears
reasonable and consistent with the overall scheme for unemployment
benefits in the Alaska Employment Security Act. See State, Dep't
of Revenue v. Cosio, 858 P.2d 621, 624-25 (Alaska 1993); Kelly v.
Zamarello, 486 P.2d 906, 911 (Alaska 1971).
     Swafford undoubtedly would have preferred that the "greater
part" of a calendar quarter be calculated in terms of days instead
of weeks. The calendar quarter of July 1 through September 30
contains a total of 92 days. The "greater part" of 92 days would
be 47 days or more. Swafford was certified as incapable of working
exactly 47 days between July 1 and September 30, 1993. However,
when a statute or regulation is part of a larger framework, it
must be interpreted in light of the other portions of the
framework. Lake v. Construction Machinery, Inc., 787 P.2d 1027,
1030 (Alaska 1990; Millman v. State, 841 P.2d 190, 194 (Alaska Ct.
App. 1992).
     The Department of Labor's use of weeks rather "than days is

supported in the Alaska Employment Security Act as a whole, which

reflects the use of the "week" as the primary measure of time for

purposes of unemployment benefits.4 See, AS 23.20.330.405.

     4
      The Alaska Employment Security Act states that doubt as to
the proper construction of a provision shall be resolved in a
manner consistent with the federal statutes governing the
nationwide program for unemployment benefits. AS 23.20.005(b).
The federal statute addressing approval of state programs does not
contain any reference to extensions of base periods to compensate
for illness or injury. See 26 U.S.C. § 3304. However, the "week"
appears to be the smallest unit of time in various federal
unemployment compensation laws, such as the Federal-State Extended
Unemployment Compensation Act of 1970. See, e.g., Pub. L. No. 91-
373,84 Stat. 708 (1970). "Week" is among the terms defined in the
1970 Act: "[t]he term 'week' means a week as defined in the
applicable State law." Pub. L. No.91-373, § 205(11).
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A specific definition of the "greater part" of a calendar quarter
was necessary for the purpose of implementing AS 23.20.376(a)
uniformly among claimants requesting base period extensions. See
Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971). DOL's use of
weeks to define the "greater part" of a calendar quarter is
consistent with the use of the "week" in other parts of the Alaska
Employment Security Act and in that context is certainly
reasonable and not arbitrary. See Kelly v. Zamarello, 486 P.2d at
911.

C.     Was DOL's denial of Swafford's request arbitrary or an abuse
       of discretion?

       Swafford provided medical certification of her inability to
work during portions of July and August in 1993, as required by
8 AAC 85.075(b)(2). See R.8, 11, 12, 25. She also submitted a copy
of Dr. Dittrich's report of her reinjury in August 1994. R. 26.
Swafford was medically certified as unable to work from Friday,
July 9,1993 through Tuesday, August 24, 1993. DOL was correct in
determining that this constituted only six full weeks.5 See R.34-
35. A "week" under DOL regulations begins Sunday morning and ends
Saturday night. 8 AAC 85.010(19). Friday, July 9 and Saturday,
July 10 were part of a different week from the first full week.
Sunday, August 22 through Tuesday, August 24 were part of the week
that followed the last full week. The period for which Swafford
was medically certified as incapable of working did not meet the


       5
      DOL concluded she had been incapable of work for six full
weeks plus one day at the beginning of her release from work and
two days at the end. R.35. DOL apparently was counting only
weekdays, which may have been Swafford's normal work days. If the
period is calculated on the basis of seven days per week, there
were two days at the beginning and three days at the end of the
period of her release from work.
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minimum seven full weeks within a calendar quarter required by
8 AAC 85.075(b).
     There were no relevant factual disputes and DOL correctly
applied AS 23.20.376 and 8 AAC 85.075 to the evidence presented by
Swafford. Therefore, DOL's denial of Swafford's request for an
extension of her base period was not arbitrary, unreasonable, or
an abuse of discretion. See Rose, 647 P.2d at 161.

                           IV. CONCLUSION
     AS 23.20.376 and 8 AAC 85.075(b) are unambiguous in requiring
Swafford's entire period of incapacitating injury to fall within
a single calendar quarter. She cannot add days from different
calendar quarters to achieve the minimum seven weeks required to
qualify for a base period extension.
     DOL has the authority to promulgate regulations necessary to
implement Alaska's unemployment compensation program. DOL's
regulation establishing seven weeks within one calendar quarter as
the minimum period of incapacitation for a claimant to qualify for
a base period extension is necessary, reasonable and consistent
with AS 23.20.376(a) in the context of the Alaska Employment
Security Act as a whole.
     DOL's denial of Swafford's request for an extension of her
base period was not arbitrary, unreasonable, or an abuse of
discretion.
     Therefore, the DOL decision is AFFIRMED.
     DATED this 29th day of February, 1996.



                              MARK I. WOOD
                              SUPERIOR COURT JUDGE
                              PRO TEMPORE

				
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