author: PER CURIAM.

text:
    Brock C. BAUDER, Appellant, v. ALASKA AIRLINES, INC., and Alaska Workers' Compensation Board, Appellees.
    No. S-9886.
    Supreme Court of Alaska.
    Aug. 2, 2002.

      David Graham, Graham Law Firm, Sitka, for Appellant.
    Mark L. Figura, Rose & Figura, Anchorage, for Appellee Alaska Airlines, Inc.
    Before FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.
   OPINION

PER CURIAM.

The judgment of the superior court affirming the underlying decisions of the Alaska Workers' Compensation Board is AFFIRMED for the reasons expressed in the attached opinion of the superior court

BRYNER, Justice, not participating.

APPENDIX

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

FIRST JUDICIAL DISTRICT AT SITKA

Case No. 18I-99-159 CI

DECISION ON APPEAL

Brock Bauder appeals the determinations by the Alaska Workers' Compensation Board concerning his permanent partial impairment rating, his entitlement to additional temporary total disability benefits and his compensation rate. For the reasons stated below, however, the court concludes that the Board correctly applied the law and that its determinations on these issues were supported by substantial evidence.

Mr. Bauder also argues that the workers' compensation administrator handling his case frivolously or unfairly controverted his claim. But at the time of the controversion, Mr. Bauder was not entitled to a lump sum award and therefore the controversion was not unfair or frivolous.

Finally, Mr. Bauder argues that he is entitled to penalties, interest, attorney's fees, and costs. But, again, the court determines that the Board correctly addressed these claims in its decision.

I. FACTS

On July 24, 1998, Brock Bauder injured his back while working for Alaska Airlines in Sitka, Alaska. This workers' compensation case arises out of that injury and his employment record with Alaska Airlines before and after July 24, 1998.

In the spring of 1988, Mr. Bauder graduated from high school He fished commercially that summer and then worked for Spenard Builders Supply But Mr. Bauder had always been intrigued with aviation and flying and he thought the best way to pursue that goal was to work for Alaska Airlines.

In December 1988, as Mr. Bauder tells it, he talked the manager of the Sitka Alaska Airline Station into hiring him as a casual employee to unload a plane loaded with freight. After that, the manager called Mr. Bauder in to work for the airline when employees were sick or on vacation over the holiday season. This casual employment lasted just a few weeks, until early January 1989. Mr. Bauder went fishing again but was re-hired by Alaska Airlines on June 5, 1989 as a temporary, part-time ramp agent. Before Mr. Bauder began to work for the company, he filled out an application and informed the company that he had undergone surgery on his back in 1985 after a high school basketball injury.

Mr. Bauder worked as a temporary employee for Alaska Airlines that summer and in August he applied for a permanent position. On September 5, 1989, he was hired as a permanent, part-time employee on the ramp. He remembers working on and off between September of 1989 and June of 1990 and the records establish that he did work over the holiday season of 1989-1990 and in the spring of that year.

In June of 1990, Alaska Airlines reclassified Mr. Bauder to a full-time position for the summer. In the fall, because of a reduction in flights, he was given the option of returning to part-time employment or being laid off. Mr. Bauder decided to go to college at the University of North Dakota to study aviation administration and to learn to fly. He was laid off on September 3, 1990.

After completing his first year of school, Mr. Bauder wrote to the manager of the Sitka Alaska Airlines station and asked for summer work. He was hired as a temporary, part-time ramp agent on June 5, 1991 and worked that summer. He also commercially fished for one or two weeks. After the summer season ended, Mr. Bauder was laid off and he returned to college in the fall.

In May of 1992, Mr. Bauder again resumed working for Alaska Airlines as a part-time ramp agent until being furloughed after the summer season ended. Mr. Bauder returned to the University of North Dakota for the fall semester.

When Mr. Bauder came home to Sitka for the Christmas holidays in 1992, he worked for Alaska Airlines for approximately 10 days. And, as was now becoming a pattern, he returned to work for the airline in the summer of 1998.

Mr. Bauder injured his lower back while loading boxes of fish into the belly of an airplane on July 24, 1998. He sought treatment from Dr. Donald Funk, who recommended physical therapy and released him to return to work provided the work was not strenuous. Mr. Bauder did light duty work until he was again laid off after the summer season on September 7, 1993.

Rather than returning to North Dakota for school that fall, Mr. Bauder went to Denver, Colorado to attend a school-sponsored internship with United Airlines. In Colorado, Mr. Bauder sought treatment for his back from Dr. Jeffrey Kleiner. Dr. Kleiner diagnosed the problem as "a left-sided sacroiliac joint arthropathy or sprain." After several visits, Dr. Kleiner told Mr. Bauder that he might have to have surgery.

Mr. Bauder's internship ended in December of 1998, and Dr. Kleiner released him to do light work on December 15, 1993. On the same day, he returned to work for Alaska Airlines for the holiday season, and as was usual, after the season ended he was laid off in mid-January.

Dr. Bill Boettcher is a Seattle orthopedic surgeon. He performed the 1985 surgery on Mr. Bauder's back when he was injured in high school. On January 18, 1994, Mr. Bauder went to Dr. Boettcher because of recurrent problems with his back. Dr. Boettcher diagnosed the problem as being spondylolisthesis, or a separation of the vertebrae in the lumbar region, and referred him to another doctor, Dr. Edwin Lauren. On February 4, 1994, Dr. Laurnen performed a fusion of the separated vertebrae in Mr. Bauder's back. After the operation, Mr. Bauder was ordered to rest at home.

When Mr. Bauder was first injured in July of 1993, he filled out a workers' compensation injury report. After the operation, Mr. Bauder was eligible for temporary total disability benefits. A claim examiner calculated Mr. Bauder's temporary total disability benefit as $157.94 a week. Mr. Bauder questioned the amount of his disability benefit from the beginning.

Mr. Bauder was eventually released to go back to work provided the work was sedentary. Then on April 28, 1994, Dr. Laurnen released Mr. Bauder to do light work. Mr. Bauder was able to return to work at Alaska Airlines performing light work on March 14, 1994. His workers' compensation benefits stopped on March 13, 1994.

On May 25, 1994, Dr. Laurnen told vocational rehabilitation counselor Denise Van Der Pol that it was not in Mr. Bauder's best interest to continue to work as a ramp service agent. Dr. Laurnen recommended that Mr. Bauder find light work activities that would not put excessive stress on his back. Also, about this time, Alaska Airlines did not have further light duty work available and Mr. Bauder was put on sick leave status. -After his sick leave and vacation benefits were used, Mr. Bauder was put on medical leave. Again Mr. Bauder began receiving temporary total disability payments.

In the fall of 1994, Mr. Bauder returned to North Dakota to complete his final year of college and he graduated that spring. In June he became a contract pilot with Oklahoma Executive Jet Charter. Mr. Bauder took this position in order to build up his flight hours He was paid $35 a day to cover expenses Mr. Bauder worked for Oklahoma Executive Jet Charter until November 17, 1995. He continued to receive temporary total disability benefits during this period.

On December 29, 1995, Marilyn Noel, an account executive with the workers' compensation administrator representing Alaska Airlines, filed a notice controverting Mr. Bauder's entitlement to continuing temporary total disability benefits. Ms. Noel claimed that temporary total disability benefits should end because Mr. Bauder was working. Also, she wrote the Department of Labor and requested that a fraud investigation be started because she claimed that Mr. Bauder was working and receiving benefits at the same time. His worker's compensation benefits were stopped on December 26, 1995.

After leaving Oklahoma Executive Jet Charter in November, Mr. Bauder accepted an offer to become Director of Human Resources/Pilot for a start-up corporation called NOVI Global Investments (NOVD. Al though Mr. Bauder was promised an annual salary of $60,000, and in March was promised even more money, he was never paid anything by NOVI. Because he was not paid, Mr. Bauder left NOVI in May of 1996 and filed a wage claim. He eventually received a judgment in his favor and against NOVI on this claim.

In September of 1996, Ms. Noel wrote to Mr. Bauder and asked him to be seen by Dr. Boettcher for a permanent impairment rating evaluation. Dr. Boettcher saw Mr. Bauder on October 4, 1996 and rated him as having a 25% permanent partial impairment. During the evaluation, the doctor noted that there were problems with the last operation and he referred Mr. Bauder to Dr. Laurnen for an examination and perhaps, another operation. Dr. Laurnen did see Mr. Bauder and performed another operation on November 7, 1996. Mr. Bauder began receiving temporary total disability payments again on the 7th of November as well.

In March and April of 1997, Mr. Bauder worked as a pilot for Penn Air. From April 21, 1997 to May 3, 1997, Mr. Bauder was employed as a pilot for Wings of Alaska. His temporary disability benefits ended on April 2, 1997.

Mr. Bauder continued to see Dr. Laurnen and on June 2, 1997, Dr. Laurnen determined that Mr. Bauder was able to perform the work at Alaska Airlines with no restrictions.

At the request of Ms. Noel, Mr. Bauder saw Dr. Boettcher on June 5, 1997 for another rating. Dr. Boettcher again rated Mr. Bauder as being 25% permanently impaired. But the doctor noted that Mr. Bau-der was physically able to work as an airline pilot and that he was medically stable.

On July 1, 1997, Ms. Noel filed another notice controverting Mr. Bauder's right to a lump sum payment of his permanent partial impairment disability benefits until the fraud investigation was completed. In addition Ms. Noel asked Mr. Bauder to be seen by Dr. Shawn Hadley for an employer's medical examination. On October 5, 1997, Dr. Had-ley found Mr. Bauder to have a permanent impairment of only 10%.

On August 20, 1997, Mr. Bauder, now represented by an attorney, filed an application to adjust his claim for workers' compensation benefits. An attorney representing the workers' compensation administrator filed yet another controversion of Mr. Bauder's adjusted claim on September 12, 1997 and on December 8, 1998, a hearing was held before the Workers' Compensation Board.

. II. PROCEEDINGS BEFORE THE BOARD AND THE COURT

Mr. Bauder raised five issues before the Board. He argued that the administrator relied on the wrong workers' compensation provision to calculate his total temporary benefits and that the administrator improperly terminated these benefits before he was medically stable. He argued that he was entitled to benefits based on a permanent partial impairment rating of 25% rather than the 10% rating the claims adjuster was offering. And he argued that the administrator's controversion of his claims was frivolous and that he should be awarded penalties, interest and attorney fees. The administrator contested all these issues and argued that Mr. Bauder was paid total temporary disability benefits when he should not have received these payments.

After hearing testimony from Mr. Bauder, an Alaska Airlines employee who handles workers' compensation issues for the airline and from Ms. Noel, the claims adjuster, and after considering the record, the Board issued a written decision. In that decision, the Board concluded that the claims adjuster had relied on the correct statutory provision to calculate Mr. Bauder's temporary benefits, but did not decide any of the other issues.

The delay in resolving the other issues had to do with the Board's decision to request a second medical exam before deciding what Mr. Bauder's permanent partial impairment rating should be. The Board noted the dispute between Dr. Hadley's 10% rating and Dr. Boettcher's 25% rating. And even though there were procedural problems with Dr. Boettcher's 25% rating, the Board still placed sufficient weight on his opinion to ask for another opinion.

After the Board's December decision, Mr. Bauder filed an appeal to the superior court. He also saw Dr. Douglas Smith for the Board's requested medical examination. Dr. Smith rated Mr. Bauder's permanent impairment at 15%.

In July of 1999, the Board issued a second written decision. The Board found that Dr. Boettcher's opinion was sufficient to raise the presumption that Mr. Bauder suffered a 25% permanent impairment rating, but that Dr. Hadley's 10% rating was substantial evidence rebutting the higher rating. After considering the entire medical record, the Board concluded that Dr. Smith's rating of 15% properly took into account Mr. Bauder's pri- or high school injury and, based on a preponderance of the evidence, that was the appropriate rating.

The Board also addressed most of the issues left unresolved in its December decision. Mr. Bauder sought temporary total benefits between March 17, 1994 through May 31, 1994 and from December 27, 1995 through November 6, 1996. But the Board concluded that Mr. Bauder was employed during these periods and therefore found that Mr. Bauder was not due temporary benefits. The Board also found that the adjuster's controversions were not frivolous or unfair. In addition, the Board dismissed Mr. Bauder's claim for penalties because it concluded that the controversion of Dr. Boettcher's impairment rating was timely and that the administrator timely paid the permanent impairment benefits due Mr. Bau-der. The Board dismissed and denied Mr. Bauder's claim for interest as there was no evidence that the benefits were not timely paid. Finally, the Board awarded Mr. Bau-der $3,125 in attorney's fees and $1,168.92 in costs.

One issue was left unresolved by the Board. The Board did not resolve the adjuster's claim that it had overpaid temporary benefits to Mr. Bauder. The Board elected not to address this issue because the amount of temporary benefits was on appeal.

Mr. Bauder appealed the Board's July decision, and eventually the appeals over the first decision and the gecond decision were consolidated.

IH. ISSUES ON APPEAL

Mr. Bauder raises five main arguments on appeal. First, he argues that he is entitled to benefits based on Dr. Boettcher's opinion that he was permanently impaired at a 25% level, Next, he argues that he is entitled to temporary total disability benefits during the time he worked at NOVI Global Investments from about November 1995 to May of 1996.

Third, Mr. Bauder argues the Board should have determined his spendable weekly wage for temporary benefits under former workers' compensation statute AS 23.30.220(a)(2) rather than subsection (1). Further, Mr. Bauder argues that as applied to him, AS 28.80.220(a)(1) is unconstitutional.

Fourth, Mr. Bauder claims that the July 1, 1997 controversion was frivolous or unfair. And finally, Mr. Bauder asserts that he is entitled to penalties, interest, attorney's fees and costs. -

IV. STANDARDS OF REVIEW

The Alaska Supreme Court recognizes four standards to be employed by courts when reviewing administrative decisions." When factual issues are disputed the court must apply the "substantial evidence" standard. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

When legal issues are raised that involve ageney expertise or fundamental poli-ey formation, the court employs the deferential "reasonable basis" test." That is, the court defers to the agency decision as long as it is reasonable and supported by the evidence. For legal determinations not involving agency expertise courts use the "substitution of judgment" standard."" Application of this standard means that the court can substitute its judgment on a legal question that involves statutory interpretation or other legal issues where the courts have specialized knowledge and experience."

In this case, all Mr. Bauder's arguments involve some question of law and some question of fact. The court employs the substitution of judgment test to issues of law raised by Mr. Bauder and the substantial evidence test to all questions of fact.

The disputes over the permanent partial impairment rating and whether Mr. Bauder should have received temporary total disability benefits from November 1995 to May 1996, raise, primarily, questions of fact.

Therefore, the court must review the Board findings on these issues to see whether they are supported by substantial evidence. But some of Mr. Bauder's arguments on these issues also raise questions of law. These issues are addressed under the substitution of judgment standard.

The issue concerning the temporary total disability benefit calculation raises, primarily, a question of law. Because this legal question centers on the application of statutes and case law, the court must reach an independent conclusion.

The issues concerning the controversion notices, penalties, interest, fees and costs raise questions of fact and law. Therefore the court employs the substantial evidence test and the substitution of judgment test.

V. PERMANENT PARTIAL IMPAIRMENT RATING

Several doctors over the years treated Mr. Bauder's back injury. Dr. Boettcher treated Mr. Bauder's high school injury and operated on his back in 1985. Drs. Funk, Kleiner, Boettcher and Laurnen treated Mr. Bauder's 1993 work-related injury. Dr. Laurnen twice operated on Mr. Bauder's back and Dr. Boettcher twice rated Mr. Bauder as having a 25% permanent partial impairment. Dr. Hadley, the adjuster's physician, rated Mr. Bauder as having a 10% impairment and, after the first hearing, Dr. Smith saw Mr. Bauder at the Board's request and rated him as having a 15% impairment.

The Board found that Dr. Boettcher's report and ratings and Dr. Laurnen's report were sufficient to raise the presumption that Mr. Bauder had a 25% work-related impairment. But the Board also found Dr. Had-ley's testimony rebutted the presumption at least as far as the rate of the impairment." To resolve this conflict, the Board ordered another medical examination and found Dr. Smith's 15% rating, after considering the entire medical record, persuasive.

Alaska Statute 28.30.122 provides that the Board is the sole evaluator of the credibility and weight of witnesses, including medical testimony and reports. The Board's findings of credibility and weight are conclusive even if conflicting evidence exists.""

The only question for the court is whether there is substantial evidence supporting the Board's conclusion. Even though there is conflicting medical testimony, the Board acted reasonably in trying to resolve the medical disagreement. Ordering another medical examination allowed a third doctor to review the record, examine Mr. Bauder and reach an independent conclusion. Dr. Smith's report and conclusion are relevant factors that a reasonable mind might accept as adequate to support the Board's conclusion.!"

Mr. Bauder argues, however, that the Board should have awarded him the 25% permanent partial impairment benefit as of October 4, 1996, when Dr. Boettcher first rated him.'" But a rating for permanent impairment is governed by AS 28.30.190. This statute requires among other things that the injury be "partial in character but permanent in quality]""'" When Dr. Boettcher evaluated Mr. Bauder on October 4, 1996, he wrote:

I do not believe [Mr. Bauder's]} claim should be closed at this time. He has significant impairment, namely the chronic back pain and the neurologic deficit in his right leg which can be successfully treated by successful surgery. I believe he should be reevaluated by Dr. Laurnen and reop-eration should strongly be considered. Due to his pain and neurologic deficit, I believe he is unable to perform any type of work at this time and this condition is permanent until successful surgery is accomplished." ‘

Based on this, Dr. Boettcher's October 4, 1996 rating was, at best, premature because Mr. Bauder's impairment was not "permanent in quality."

On June 5, 1997, Dr. Boettcher reevaluated Mr. Bauder and again assigned him a 25% impairment rating."" Mr. Bauder argues that the Board erred in failing to adopt Dr. Boettcher's second rating. The adjuster, under 8 AAC 45.052(c),"" submitted a request to cross-examine Dr. Boettcher about this report. But Mr. Bauder never made Dr. Boettcher available for cross-examination, and the Board did not err by declining to adopt Dr. Bocttcher's June 5, 1997 rating. Nonetheless, contrary to Mr. Bau-der's assertion that the Board excluded Dr. Boettcher's report, the Board specifically stated that it "acceptled] the hearsay evidence concerning Dr. Boettcher's opinion into the record for the purpose of explaining and supplementing other medical evidence in the reports of Drs. Hadley and Laurnen." "

Mr. Bauder also argues that the Board failed to consider and apply the statutory time limits for the controversion of permanent impairment benefits. Mr. Bauder correctly argues that although the administrator filed controversions on December 29, 1995 and July 1, 1997, it did not controvert Mr. Bauder's impairment rating until September 12, 1997. This is almost a year after Dr. Boettcher's first rating and over three months after Dr. Boettcher's second rating.

Under AS 28.30.155(d), the employer has 21 days after the date of learning of a doe-tor's impairment rating to pay that amount or to controvert the need to pay impairment benefits."" Mr. Bauder argues that because the insurer did not controvert or pay the impairment benefit within the 21 days, the Board was obligated to accept the 25% rating.

But as the insurer correctly argues, Mr. Bauder's argument is premised on a misunderstanding of the consequences of not timely filing a controversion. When an employer neither timely pays nor controverts a claim for compensation, AS 28.30.155(e) imposes a 25% penalty to be paid "at the same time as, and in addition to" the unpaid compensation. Thus, the failure to controvert compensation within 21 days does not bar the employer from later filing a controversion nor does it mean that the level of impairment is established.""

Instead, failure to file a controversion within 21 days results in a 25% penalty under AS 28.30.155(e) if the employer is ultimately found liable for the disputed compensation. Accordingly, Mr. Bauder's argument that Alaska Airlines' failure to controvert either of Dr. Boettcher's ratings within 21 days precludes them from doing so later is without merit.

VI. ADDITIONAL TEMPORARY TOTAL DISABILITY BENEFITS

Mr. Bauder next argues that the Board erred in not awarding him temporary total disability benefits while he was working for NOVI Global Investments. Temporary total disability benefits are governed by AS 293.30.185:

In case of disability total in character but temporary in quality, 80 percent of the injured employee's spendable weekly wages shall be paid to the employee during the continuance of the disability. Temporary total disability benefits may not be paid for any period of disability occurring after the date of medical stability.""

Alaska Statute 23.30.895(1) defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of his injury in the same or any other employment." AS 28.30.395(21) defines "medical stability" as

the date after which further objectively measurable improvement from the effects of the compensable injury is not reasonably expected to result from additional medical care or treatment, notwithstanding the possible need for additional medical care or the possibility of improvement or deterioration resulting from the passage of time; medical stability shall be presumed in the absence of objectively measurable improvement for a period of 45 days; this presumption may be rebutted by clear and convincing evidence[.]

The presumption of compensability in AS 28.30.120(a) applies when an employer controverts continuing entitlement to temporary benefits."" To overcome this presumption, the employer must introduce "substantial evidence" to the contrary."" From late November 1995 until May of 1996, Mr. Bau-der worked as the Director of Human Resources/Pilot for NOVI (Hobal Investments.!" He was supposed to be paid a yearly salary of $60,000 and in March was given a raise to $90,000. But NOVI never paid him.

In denying Mr. Bauder's claim for temporary benefits during this period, the Board found:

Although the employee may not have received his pay from NOVI, the record is clear he worked for pay, and was entitled to pay. We find the employee's argument he is due [temporary total disability] benefits because NOVI violated its contract to pay him is disingenuous, We find the employee's resulting earning loss, and his resignation from that position, were not related to his work injury and not compen-sable. Vetter v. AWCB, 524 P.2d 264, 266 (Alaska 1974)?"

But Mr. Bauder argues that the Board erred in not awarding him temporary benefits during the time he was employed by NOVI because he was never actually paid a salary.

In Bailey, the Supreme Court held that returning to work "is sufficient evidence to rebut the presumption of continuing com-pensability for temporary total disability. Because Mr. Bauder returned to work, the presumption of compensability is overcome. But in Olson, the Alaska Supreme Court noted that it has "never indicated that obtaining 'any' work terminates an employee's right to [temporary total disability] benefits." Mr. Bauder relies on this case.

In Olson, the Board denied the employee temporary benefits during the time he was capable of working as a tire shop manager. The Board emphasized that the employee had joined his father's retreading shop as an organizer/supervisor."" But the Supreme Court reversed. The court ordered the Board to "consider Olson's earning potential and the availability of employment." '*" The court emphasized that Mr. Olson was not paid for his work in his father's shop." Further, the court distinguished Bailey by noting that the employee in Bailey was earning more after his injury than he did prior to being injured."

Mr. Bauder's situation is distinguishable from that in Olson. First, Mr. Bauder was eligible for, and fully expected to be paid by NOVI. Moreover, his agreed-upon salary far exceeded what he had been earning at Alaska Airlines at the time of his injury. In fact, when he received the December 29, 1995 controversion notice for temporary benefits, Mr. Bauder testified that he did not contest it because he was expecting to be paid and did not need the benefits." Furthermore, Mr. Bauder filed a wage claim against NOVI and received a judgment in his favor.

Second, and most importantly, there is no evidence that Mr. Bauder's not being paid by NOVI was related to his injury. The purpose of workers' compensation law is "partial reimbursement for loss of earning capacity due to injury." In other words, workers' compensation disability is based primarily on an impairment in working capacity. As the Board correctly noted, Mr. Bauder's failure to be paid for his work at NOVI was not related to his work injury. Therefore he is not entitled to temporary benefits during the time he was employed by NOVI.

VIL ADJUSTMENT IN COMPENSATION RATE

Mr. Bauder argues that the workers' compensation administrator and subsequently the Board miscalculated the amount of temporary total disability benefits he was entitled to. Under AS 28.30.185, the compensation rate for temporary total disability benefits is calculated by taking 80% of the injured employee's "spendable weekly wages." An employee's "spendable weekly wages" are defined in former AS 28.30.220(a), which at the time of Mr. Bau-der's injury, provided:

(a) The spendable weekly wage of an injured employee at the time of an injury is the basis for computing compensation. It is the employee's gross weekly earnings minus payroll tax deductions. The gross weekly earnings shall be calculated as follows:
(1) the gross weekly earnings are computed by dividing by 100 the gross earnings of the employee in the two calendar years immediately preceding the mjury;
(2) if the employee was absent from the labor market for 18 months or more of the two calendar years preceding the injury, the board shall determine the employee's gross weekly earnings for calculating compensation by considering the nature of the employee's work and work history, but compensation may not exceed the employee's gross weekly earnings at the time of injury[.]

The administrator calculated Mr. Bauder's "spendable weekly wage" under AS 28.30.220(a)(1). The administrator determined that Mr. Bauder had gross earnings over the previous two calendar years before the accident of $23,563.00. Eighty percent of this number after deducting payroll taxes and dividing by 100 as required by the statute is $157.34. The Board agreed with this calculation because it found that Mr. Bauder was absent from the labor market less than 18 months during 1991 and 1992.

Mr. Bauder argues that the Board should have calculated his spendable weekly wage under AS 28.30.220(a)(2) because he claims he was absent from the labor market for 18 months in 1991 and 1992 while he was a student in North Dakota. The issue then is whether there is substantial evidence to support the Board's finding that Mr. Bauder "was absent from the labor market for less than 18 months during 1991 and 1992."

The Board has interpreted "18 months or more of the two calendar years preceding the injury" to mean working less than 183 days of the two previous years or less than 1040 hours of work during those two years."" The Board concluded that Mr. Bauder worked 13 weeks in 1991 and roughly 18 weeks in 1992. Therefore, according to the Board's calculations, Mr. Bauder was present in the labor market for a total of 31 weeks, or 7.75 months in 1991 and 1992.

The Board's calculations appear to be supported by substantial evidence. The evidence establishes that Mr. Bauder worked for Alaska Airlines for approximately 12 weeks in the summer of 1991 and he commercial fished for one or two weeks. Similarly, in 1992, the evidence establishes that Mr. Bauder again worked for Alaska Airlines for approximately 12 weeks over the summer and commercial fished for one or two weeks. Additionally, he worked at Alaska Airlines for about 10 days during the Christmas holiday in 1992.

This evidence establishes that Mr. Bauder was employed for at least 28 weeks (seven months), or to put it in terms of AS 28.30.220(a)(2), Mr. Bauder was absent from the labor market for 17 months during 1991 and 1992. Although the court finds that Mr. Bauder worked for three fewer weeks than the Board, this does not change the Board's determination that AS 23.30.220(2)(2) does not apply. Even by the court's more conservative calculations, Mr. Bauder was not "absent from the labor market for 18 months or more of the two calendar years preceding the injury."

As an alternative method of determining whether AS 28.30.220(a)(2) applies, the Board calculated the number of hours that Mr. Bau-der worked in 1991 and 1992. The Board found that Mr. Bauder worked 1705 hours during these two years. In arriving at this conclusion, the Board relied on Mr. Bauder's testimony that he worked on average 55 hours a week.

This calculation is problematic because it appears that Mr. Bauder's answer about the number of hours he worked had to do with the summer of 1993. The number of hours worked by Mr. Bauder in 1993 is not relevant. The issue is the number of hours worked in the two calendar years preceding the injury, 1991 and 1992.

Another way to calculate the number of hours Mr. Bauder worked in 1991 and 1992 is to divide his income by his hourly wage. In 1991, Mr. Bauder earned $6,181.57 at Alaska Airlines and was paid $9.70 per hour. Thus, he worked approximately 682 hours in 1991 at the airline. Similarly, in 1992, Mr. Bauder earned $8,855.94 at Alaska Airlines and was paid $11.63 per hour. Thus, he worked approximately 718 hours in 1992. Based on his yearly earnings and hourly wage, Mr. Bauder worked for a total of approximately 1850 hours for Alaska Airlines in 1991 and 1992.

But, as pointed out by Mr. Bauder, this calculation is also problematic because it fails to take into account overtime pay. Similarly, Mr. Bauder asserts that because he sometimes worked only part-time, and not seven days a week, the court should subtract some workdays from the total concluded by the Board.

The administrator argued and the Board found that Mr. Bauder bore the burden of proof on these issues and that he failed to provide the evidence that would establish that he was absent for more than 18 months over those two years. Mr. Bauder forcefully argues that this was a misapplication of the burden of proof. He also argues that applying this formula to his cireumstances does not address his actual loss and therefore is unconstitutional. But the court need not resolve these disputes because even if the Board applied subsection (a)(2) of the statute, .the result would be the same.

The Alaska Supreme Court has determined that AS 23.30.220(a)(1) may be unconstitutional in certain cireumstances. In Gilmore v. Alaska Workers' Compensation Board, the court expressed its concern that the formula may, in some cases, lead to an unfair earning determination. The court explained: |

Because this formula, divides the employee's total gross wages over the two year period by 100 regardless of how many weeks the employee actually worked during this period, the employee's actual wage earning capacity during periods of employment is reduced in proportion to any period in which the employee was unemployed for any reason. The resulting benefits therefore may only be randomly related to the injured worker's actual loss. This formula applies regardless of any discrepancy, no matter how large, between the result of the formula and the actual wages lost by the employee during the period of his or her disability.""

But the Board specifically addressed this issue. The Board determined that:

The employee's tax records and his testimony show the employee's work for the employer during 1991 and 1992 was reasonably consistent with his earnings and pattern of work for the period of the disability. We find that the application of AS 25.30.220(a)(2) would not have substantially altered his compensation rate, in any event. The employee had a consistent pattern over a number of years, working for this employer and going to college to prepare for career employment. The employee moved into aviation career (or career preparation) work almost immediately after graduation.

If we consider the nature of the employee's work and work history under AS 23.30.220(a)(2), we find the employee would have continued the pattern of work and study during the period he received [temporary total disability] benefits.""

The reliability of Mr. Bauder's past work history as a predictor of his earning potential during the time he is entitled to temporary total disability benefits presents a factual issue. Therefore, the court must determine "whether the evidence relied on [by the Board] was substantial in light of the record as a whole."

A primary purpose of Alaska's workers' compensation laws "is to predict accurately what wages would have been but for a worker's injury." "" Under Gilmore the issue is whether Mr. Bauder's past work history is an accurate predictor of his future earning capacity."" "[Where past wage levels are accurate predictors, the Board must apply the statutory formula [AS 23.30.220(a)(1)]." !

The Board found, and Mr. Bauder does not dispute, that in 1991 and 1992 Mr. Bauder worked as a seasonal employee for Alaska Airlines. However, Mr. Bauder disagrees with the Board's conclusion that he would have continued to attend school and work as a seasonal employee during the time he received temporary benefits. Mr. Bauder argues that the Board ignored his testimony that he would have foregone school and accepted a full-time yearly position working as a ramp agent had it been available."" Further, Mr. Bauder testified that by 1995 or 1996 he would have had enough seniority to hold a full-time position.

Mr. Bauder correctly notes that the Alaska Supreme Court has recognized that " 'intentions as to employment in the future are relevant to a determination of future earning capacity" in determining proper compensatory awards" """ and that "(limited working hours following injury are not particularly relevant to a determination of a worker's probable work patterns had no injury been sustained." "" But there is substantial evidence in the record to support the Board's conclusion that the temporary benefits aceu-rately reflect Mr. Bauder's wage loss because of the injury.

Mr. Bauder has wanted to fly since at least 1988. His initial interest in working for Alaska Airlines was to pursue this goal. By 1990, he started a work pattern that would allow him to achieve his goal. He began college to pursue a degree in aviation administration and he started to fly. He went to school during the school year, and like untold numbers of other college students, he worked during the summers and, sometimes, over the Christmas school breaks to support his education.

Mr. Bauder was never a full-time, year-round employee and for good reason. Working as a ramp agent would not have allowed him to get the education and flying time he needed to be a pilot." He was a seasonal employee who worked to support his college education. To require Alaska Airlines' insurance company to pay him benefits as if he were a full-time, year-round employee would not accurately reflect Mr. Bauder's work history.

In addition, according to Alaska Airlines workers' compensation manager Donna Eglund, there were no full-time ramp-agent positions available for Mr. Bauder" In light of these factors, the Board's conclusion that Mr. Bauder would have continued to attend school full-time while working seasonally for Alaska Airlines is supported by substantial evidence.

Finally, Mr. Bauder argues that the disparity between his weekly earnings prior to his injury '* and his weekly compensation rate of $157.34 is unconstitutional because it is "grossly unfair." However, Gilmore does not stand for the proposition that a discrepancy between what an employee was earning at the time of his injury and his compensation rate under AS 23.30.220(a)(1) makes the application of the statute unconstitutional.

Instead, the goal is to compensate injured workers "based on their actual losses.""" As already discussed, it is undisputed that during the two years prior to his injury, Mr. Bauder was a college student and a seasonal employee '* who worked during the summers in 1991 and 1992 and during the Christmas holiday in 1992.

Therefore, Mr. Bauder's employment with Alaska Airlines in 1991 and 1992 accurately reflected the circumstances existing at the time of his injury." . Under either subsection (a)(1) or subsection (a)(2) of AS ©283.30.220, the temporary total disability benefits were an accurate reflection of Mr. Bau-der's wage loss.

VIII. FRIVOLOUS OR UNFAIR CONTROVERSION

Mr. Bauder argues that the Board erred by failing to conclude that the workers' compensation administrator frivolously and unfairly controverted his right to benefits. Of the three controversions filed in this case, Mr. Bauder focuses on the controversion of his right to a lump sum payment of permanent partial impairment benefits filed on July 1, 1997. The relevant statute, AS 23.30.155(0), provides as follows:

The board shall promptly notify the division of insurance if the board determines that the employer's insurer has frivolously or unfairly controverted compensation due under this chapter. After receiving notice from the board, the division of insurance shall determine if the insurer has committed an unfair claim settlement practice under AS 21.36.125.

The Board considered three arguments supporting the administrator's position that the controversions were not frivolous but only two arguments involve the July 1, 1997 controversion. One of those arguments, that Mr. Bauder committed fraud, was sharply rejected by the Board."" The Board found very little evidence of fraud and found that the evidence presented about that investigation was hearsay.)"

But the Board did find that at the time of the controversion, Mr. Bauder was being considered for "reemployment benefits." According to the Board, during this evaluation and determination phase for reemployment benefits, an employee is not entitled to receive a lump sum impairment award.""

Furthermore, the July 1, 1997 controversion did not contest the payment of permanent partial impairment benefits; it just contested a lump sum payment." Therefore, the Board's conclusion that the July 1, 1997 controversion was not frivolous or unfair because it did not deny Mr. Bauder any "compensation due" under AS 23.80.155(0) is supported by substantial evidence.

IX. PENALTIES, INTEREST, ATTORNEY'S FEES AND COSTS

In its July 6, 1997 decision, the Board denied and dismissed Mr. Bauder's claim for penalties and his claim for interest, but awarded him $3,125 in attorney's fees and $1,168.92 in costs under AS 28.30.145(b).

In his opening brief, Mr. Bauder requested that

the maximum statutory penalties be assessed against the employer, due to the substantial and egregious underpayment, the refusal to pay amounts clearly and undisputedly due, and the failure of the employer to come forward with any substantial evidence to support its controversion or its failure to pay the proper amount of compensation which was due.
Indeed, had the employer properly considered Bauder's eligibility under the alternative method of computation of his TTD rate, the problems that are now presented by the lack of detailed records as to the number of days or hours which he worked would not be present.
Furthermore, substantial and intentional violations of the statutes and regulations applicable to compensation proceedings have occurred in this case. Therefore, all unpaid amounts should have interest assessed, and all attorney's fees incurred by the employee should be awarded."

Mr. Bauder's arguments for penalties, interest, attorney's fees, and costs are dependent on his successful overturning of the Board's decision on the other issues raised in his appeal. Because the court has upheld the Board's decision, there is substantial evidence supporting the Board's conclusions regarding penalties, interest, attorney's fees, and costs.

X. CONCLUSION

For the foregoing reasons, the decision of the Alaska Workers' Compensation Board is affirmed. The Board reserved the issue concerning the overpayment of temporary total disability benefits until after the decision on appeal. The case is therefore remanded to the Board to resolve this final issue.

Dated at Wrangell, Alaska, this 29 day of August, 2000.

LARRY C. ZERVOS Superior Court Judge.

      . The opinion of the superior court has been edited to conform with the formal standards of this court.

      . Record on Appeal at 1 (hereinafter "R.").

      . Transcript of Proceedings Before the Alaska Workers' Compensation Board, December 8, 1998 at 39 (hereinafter "Board Tr.").

      . Id.

      . Board Tr. 40.

      . Id.

      . Tr. 41; R. 101-04.

      . Id.

      . Tr. 41-42; R. 93.

      . Board Tr. 38, 74; R. 98-99.

      . R. 88.

      . R. 85.

      . Board Tr. 42; R. 75-83.

      . R. 74.

      . R. 73.

      . Board Tr. 44-45.

      . R. 70.

      . R. 69.

      . Board Tr. 45, 118; R. 57.

      . Board Tr. 46.

      . Board Tr. 118; R. 52, 55.

      . Board Tr. 49; R. 957-58, 118-19.

      . Tr. 51; R. 947.

      . Board Tlf‘. 51; R. 960, 116.

      . R.115.

      . Board Tr. 53-54; R1.

      . Board Tr. 55; R. 970.

      . Board Tr. 55; R. 972.

      . Board Tr. 56-57; R. 973.

      . R. 994-98.

      . R. 994-96.

      . R. 997.

      . Tr. 59; R. 968, 998.

      . Board Tr. 59.

      . R. 890, 1003-04.

      . R. 1003.

      . R. 1005-06.

      . R. 1026-27.

      . R. 1032.

      . R. L.

      . R. 2.

      . R. 2-5.

      . Board Tr. 72-73; R. 1051.

      . R. 1033.

      . R. 1035.

      . R. 112.

      . R.T.

      . R. 1049.

      . Id.

      . R. 1010, 1051, 111.

      . R. 111.

      . R.7.

      . R. 280, 947.

      . Board Tr. 80; R. 280.

      . Board Tr. 80.

      . Board Tr. 80-83.

      . Board Tr. 83; R. 280.

      . R. 10.

      . Board Tr. 130-31; R. 6.

      . R. 6.

      . Board Tr. 152; R. 1061, 1062.

      . R. 7.

      . Board Tr. 83-84; R. 280

      . Board Tr. 84.

      . Board Tr. 84-85, 101.

      . Board Tr. 101.

      . R. 1065.

      . R. 1066-68.

      . R. 1067.

      . R. 1070-71.

      . R. 16.

      . R.1111.

      . Id.

      . R. 16.

      . R. 1098.

      . R. 1100.

      . R. 1100-01.

      . R. 1100-04.

      . R.14.

      . Report of Dr. Shawn Hadley, Exhibit 1 attached to deposition of Dr. Shawn Hadley dated December 1, 1998 (hereinafter Hadley Report).

      . Hadley Report at 5.

      . R. 906.

      . Decision and Opinion, 98-0322, at 12, 15, December 31, 1998 (hereinafter December Decision}.

      . Id. at 15.

      . Decision and Opinion, 99-0144, at 5, July 6, 1999 (hereinafter July Decision).

      . Id. at 6.

      . Id. at 9.

      . Id.

      . Id. at 12.

      . July Decision at 12-16.

      . Id. at 11.

      . In his briefing, Mr. Bauder sought temporary benefits for other periods. But at oral argument, he waived these arguments.

      . This statute was amended after Mr. Bauder's injury. The amendment took effect September 4, 1995. See 75 SLA ch 75, sections 9, 10 (1995).

      . Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).

      . Peninsula Correctional Health Care v. Dep't of Corrections, 924 P.2d 425, 426 (Alaska 1996).

      . Thompson v. United Parcel Service, 975 P.2d 684, 688 (Alaska 1999).

      . Id.

      . Id.

      . Id.

      . id.

      . July Decision at 8.

      . Id. at 9.

      . Id.

      . AS 23.30.122; Thompson, 975 P.2d at 688.

      . Thompson, 975 P.2d at 688.

      . The Board did not address this issue in either of its decisions.

      . AS 23.30.190(a).

      . R. 1067-68.

      . R. 1100-01.

      . R. 875-76.

      . July Decision at 8.

       . R. 6.

      . & R. 14.

      . & R. 17.

      . Sumner v. Eagle Nest Hotel, 894 P.2d 628, 631 (Alaska 1995).

      . In support of his argument, Mr. Bauder cites Hammer v. City of Fairbanks, 953 P.2d 500 (Alaska 1998), and Bockness v. Brown Jug, Inc., 980 P.2d 462 (Alaska 1999). But Mr. Bauder's reliance on these cases is misplaced. In Hammer, the court imposed the statutory penalty on the employer for failing to timely pay or file a contr-oversion. Hammer, 953 P.2d at 507. Hammer did not even suggest that a potential remedy for a late-filed controversion was issue preclusion. In Bockness, the issue of an untimely controversion was not discussed. Neither case stands for the proposition that if an employer does not controvert benefits within 21 days, it is forever barred from doing so. Further, 8 AAC 45.182, which governs controversions, does nol provide that controversions must be made within a certain time period or thereafter waived.

      . Because the Board agreed with Dr. Smith and found that Mr. Bauder sustained a 15% impairment and the additional award was promptly paid, no penalty is appropriate under AS 23.30.155(e).

      . The Board accepted Dr. Boettcher's opinion that Mr. Bauder reached medical stability as of June 5, 1997. AWCB decision, July 6, 1999 at 11.

      . Olson v. AIC/Martin J.V., 818 P.2d 669, 672 (Alaska 1991).

      . Id. at 672, citing Bailey v. Litwin Corp., 713 P.2d 249, 252, 254 (Alaska 1986).

      . Board Tr. 83-85.

      . Board Tr. 84.

      . July Decision at 12.

      . Bailey, 713 P.2d at 254.

      . Olson, 818 P.2d at 673.

      . Id. at 671-72.

      . Id. at 674.

      . Id. at 673.

      . Id. at 674.

      . Bailey, 713 P.2d at 251-52.

      . Tr. 86.

      . Board Tr. 101.

      . Wagner v. Stuckagain Heights, 926 P.2d 456, 458-59 (Alaska 1996) (citations omitted) (emphasis added).

      . Vetter v. Alaska Workmen's Comp. Bd., 524 P.2d 264, 266 (Alaska 1974).

      . Id.

      . R. 2. Neither party disagrees with this math. As discussed below, however, Mr. Bauder does dispute the statutory formula used to calculate his "spendable weekly wages."

      . December Decision at 11.

      . Id.

      . Id.

      . This calculation gives Mr. Bauder the benefit of the doubt by assuming that he commercial fished for only one week in both 1991 and 1992.

      . Board Tr. 63. Fifty-five hours per week times 31 weeks of work equals 1705 hours.

      . Board Tr. 62-63.

      . R. 795, Board Tr. 47.

      . Board Tr. 119.

      . R. 788.

      . Board Tr. 63.

      . 882 P.2d 922, 929 n. 17 (Alaska 1994).

      . Gilmore, 882 P.2d at 924.

      . December Decision at 11-12.

      . Thompson, 975 P.2d at 690.

      . Id. at 689.

      . Id. at 690.

      . Id. at 689.

      . Board Tr. 102-03.

      . Board Tr. 170.

      . Thompson, 975 P.2d at 690, quoting State Dep't of Transp. & Pub. Facilities v. Gronroos, 697 P.2d 1047, 1049 n. 2 (Alaska 1985) (citation omitted).

      . Id. at 691.

      . Board Tr. 114.

      . Board Tr. 113-14. Further, there is no evidence in the record to support Mr. Bauder's assertion that he had enough seniority to qualify for a full-time yearly ramp position al Alaska Airlines by 1995 or at the latest in 1996. Board Tr. 170-71. ° >

      . In his brief on appeal, Mr. Bauder asserts that his weekly earnings in 1991-1993 were approximately $900. In his reply brief, he states that his weekly earnings prior to his injury were $639.65. Finally, at oral argument, Mr. Bau-der's attorney said that Mr. Bauder's weekly earnings in 1991 and 1992 were approximately $450 or $500.

      . Thompson, 975 P.2d at 689 ("'the disparity is only relevant if past wages do not accurately predict future earning potential. The disparity does not per se indicate a lack of predictive value.").

      . Gilmore, 882 P.2d at 928.

      . In Gilmore, the court noted with disapproval that Alaska is "the only state which includes significant periods of unemployment in calculating the worker's average wage without requiring a preliminary finding that the worker was employed in a seasonal occupation at the time of the injury." Gilmore, 882 P.2d at 929.

      . Id.

      . See Deuser v. State, 697 P.2d 647, 650 n. 2 (Alaska 1985), quoting 2 A. Larsow, THe Law or Workmen's Compensation § 60. 21(c), at 10-592 (1983) ("If claimant's part-time relation to the labor market is 'clear, and above all if there is no reason to suppose it will change in the future period into which disability extends, then it is unrealistic to turn a part-time able-bodied worker into a full-time disabled worker.' ") (emphasis in Larson).

      . R.14.

      . Emphasis added.

      . July Decision at 13.

      . Id.

      . AS 23.30.041(k). Neither party disputes the Board's findings on this issue.

      . R. 14; Board Tr. 138-39, 143-44.

      . Mr. Bauder's Opening Brief at 16. tions to record omitted.) (Cita-


source: Caselaw Access Project

license: Public Domain

text:
    Thomas E. RODDEN, Petitioner, v. COLORADO STATE PENITENTIARY (J. Doe, unknown name), Respondent.
    No. 01SC249.
    Supreme Court of Colorado, En Banc.
    March 25, 2002.
    Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado, Attorneys for Petitioner.
    Ken Salazar, Attorney General, Paul S. Sanzo, First Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.
   PER CURIAM.

We took this case on certiorari to the District Court for Fremont County (District Court) to review its order dismissing the appeal of Thomas E. Rodden (Rodden) from a judgment the Fremont County Court (County Court) entered against him. Acting pro se, Rodden had filed suit in the County Court alleging that an unknown officer of the Department of Corrections (John Doe) had entered his cell at the Colorado State Penitentiary, while he was absent for medical reasons, and removed personal effects, including legal papers pertaining to the case that resulted in his imprisonment, all of which were apparently destroyed. Rodden filed a grievance with the Department of Corrections; the administrative officials denied his request for relief. He then filed suit in the County Court for violation of his civil rights and destruction of his property. The County Court dismissed the action on a number of procedural grounds, including failure to comply with the notice requirements of the Colorado Governmental Immunity Act, § 24-10-101 et seq., 7 C.R.S. (2001), and ordered Rodden to pay attorneys fees to the State in the amount of $100.00, together with costs and interests, for having brought a frivolous and groundless suit.

Rodden filed a notice of appeal and designation of the record and sought an order from the County Court, in light of his indi-geney, allowing him to proceed with the appeal in forma pauperis. The County Court determined that Rodden was "indigent and is not capable of paying a filing fee on appeal." The County Court entered an order allowing Rodden to proceed in forma pauperis but also required him to post an appeal bond for costs with the Clerk of the Combined Courts, in the amount of $250.00. Because Rodden did not post the appeal bond, the District Court dismissed Rodden's appeal.

Upon briefing and oral argument, the Attorney General agrees with Rodden's counsel that our decision in Bell v. Simpson, 918 P.2d 1123 (Colo.1996), controls our decision and requires us to reverse the District Court's order dismissing Rodden's appeal for failure to post the appeal bond for costs.

We agree that the District Court and the County Court erred. Having found that Rodden was indigent, was incapable of paying a filing fee on appeal, and was qualified to pursue his appeal in forma pauperis, the County Court should not have conditioned the appeal on Rodden posting a cost bond. See Bell, 918 P.2d at 1127 (holding that "the plain language of section 18-16-108(1) requires a judicial officer of any- court, trial or appellate, to permit an indigent plaintiff to exercise the statutory right of appeal without payment of costs")(emphasis in original).

The District Court erred in dismissing the appeal for failure to post a cost bond. Accordingly, we reverse the District Court's order dismissing Rodden's appeal, and we remand this case to the District Court for further proceedings consistent with this opinion.

      . The issue on certiorari is: Whether the district court erred in dismissing petitioner's appeal because he was unable to post a $250 appeal bond ordered by the county court at the same time it found that he was indigent.


author: Justice HOBBS

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary James HEILMAN, Defendant-Appellee.
    No. 01SA360.
    Supreme Court of Colorado, En Banc.
    April 22, 2002.

      Stuart A. Vanmeveren, District Attorney, Loren B. Schall, Assistant District Attorney, Mary Joan Berenato, Deputy District Attorney, Fort Collins, CO, Attorneys for Plaintiff-Appellant.
    Daniel E. Quinn, Fort Collins, CO, Attorney for Defendant-Appellee.
   Justice HOBBS

delivered the Opinion of the Court.

In this interlocutory appeal, the prosecution challenges the trial court's suppression of evidence obtained as a result of the search of a lawfully parked van. We agree with the trial court that the officer seized the defendant and his van without reasonable suspi-clon and hold that the trial court properly suppressed evidence obtained from this illegal seizure. The encounter between the defendant and the officer was not consensual.

L.

State Trooper Robert F. Kaminky (Officer Kaminky) was on patrol on the afternoon of June 22, 2001 in Larimer County, Colorado. He was driving by Donath Lake, located near the intersection of County Roads 80E and 30, when he observed a plumbing van parked in a pull-off area that bordered the lake. Two men were sitting inside the van and one man was standing just outside of it.

Wondering if the occupants of the van needed assistance, Officer Kaminky turned the patrol car around in a U-turn and drove back toward the van. Defendant Gary James Heilman (Heilman), who was sitting in the driver's seat, looked up and saw the approaching patrol car. The officer saw Heilman's eyes widen. Heilman appeared to throw something to the floor of the van.

The officer parked approximately ten feet from the van in a T-formation, jumped out of the car, hurried to the van on foot, and said that "he wanted to see everybody's hands." He asked Heilman "What are you doing?" and "Do you need any assistance?" Heilman answered that he did not need assistance and said, "We are just sitting here, relaxing after work." Officer Kaminky then asked Heil-man, "What did you throw down?" Heilman pointed to a half-empty 12-pack of Mountain Dew sitting in between the driver's seat and the passenger's seat, gesturing to the center of the -van with a sweeping motion. Officer Kaminky asked whether there were any weapons or contraband in the vehicle. Heil-man responded, "No. You can sniff around, and you won't find anything." Heilman made a sweeping motion as he said this.

Officer Kaminky then ordered all persons out of the van, ordered them to put their hands behind their heads with fingers interlocked, called for backup, conducted a pat-down search of the three individuals and, when back-up officers arrived, began searching the vehicle. None of the three persons appeared to be intoxicated.

In searching the van, Officer Kaminky found a black nylon bag. All of the men denied that the bag was theirs. Upon opening the bag, Officer Kaminky found identification cards belonging to Heilman and a small tin containing what the officer assumed . to be illegal drugs. The officer then arrested Heilman.

The district attorney charged Heilman with two counts of possession of a schedule II controlled substance, a class 4 felony. § 18-18-405(2)(a)(D), 6 C.R.S. (2001). Heil-man filed motions to suppress the evidence and statements, alleging that they were the fruit of an unconstitutional search and seizure of his person and property. The trial court concluded that Officer Kaminky, through a show of force, had effectuated a non-consensual seizure of Heilman and the van without reasonable suspicion. The prosecution argued that the encounter was consensual and that Hellman's statement, "You can sniff around; you won't find anything" constituted consent to search and the evidence should not have been suppressed. We need not reach the consent issue, because: (1) the prosecution did not meet its burden to show that the encounter was consensual; and (2) the trial court's findings, based on the evidence at the suppression hearing, support its conclusion that a seizure without reasonable suspicion occurred. We uphold the trial court's suppression order.

IL.

A. Standard of Review

The United States and Colorado Constitutions protect against unreasonable searches and seizures. See U.S. Const. amends. IV, XIV; Colo. Const. art. II, § 7; Outlaw v. People, 17 P.3d 150, 154 (Colo.2001). They do not proseribe all contact between police and citizens, but apply to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); see also People v. Paynter, 955 P.2d 68, 71 (Colo.1998). As the United States Supreme Court explained in Terry v. Ohio, 392 U.S. 1, 20 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "[only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred."

Police-citizen encounters are of three different types: (1) arrests; (2) investigative stops or detentions; and (8) consensual interviews or encounters. People v. Jackson, 39 P.3d 1174, 1179 (Colo.2002); People v. Thomas, 889 P.2d 1174, 1177 (Colo.1992). Each of these categories requires varying levels of justification and protection. People v. Cascio, 982 P.2d 1381, 1385 (Colo.1997). While arrests and investigatory stops or detentions are seizures implicating the protections of the Fourth Amendment and Article II, section 7, consensual encounters are not. Jackson, 39 P.3d at 1179. Thus, consensual encounters need not be supported by probable cause or reasonable suspicion. Id.

As the moving party, the defendant has the burden of going forward with evidence of an impermissible seizure. Outlaw, 17 P.3d at 155. This burden requires the defendant to make two showings: (1) the point at which he was "seized" within the meaning of the Fourth Amendment; and (2) that the seizure was unconstitutional. Id. If the defendant satisfies these requirements, the burden of going forward then shifts to the prosecution. Jackson, 39 P.3d at 1180. The burden of proof, however, always remains with the prosecution. Id.; see also People v. Canton, 951 P.2d 907, 909 n. 3 (Colo.1998) (holding that when police detain a person without a warrant, the burden of proof is on the prosecution to prove the constitutional validity of the stop and any subsequent search).

In reviewing the trial court's suppression order, we defer to a trial court's factual findings and will not disturb them if supported by competent evidence in the record. Outlaw, 17 P.3d at 155. However, we review the trial court's conclusions of law de novo. People v. Haley, 41 P.3d 666, 670 (Colo.2001). A consensual encounter consists of a request for voluntary cooperation by the police of an individual who should feel free to leave at any time during such an encounter. People v. Padgett, 982 P.2d 810, 814 (Colo.1997). During a consensual interview, "a police officer seeks the voluntary cooperation

of an individual by asking non-coercive questions." Paynter, 955 P.2d at 72; see also People v. Cervantes-Arredondo, 17 P.3d 141, 146 (Colo.2001). The test is whether a reasonable person under the cireumstances would believe that he or she was free to leave and/or disregard the officer's request for information. Thomas, 839 P.2d at 1177-78. This test is objective in nature, based on the factual cireumstances surrounding the encounter. Paynter, 955 P.2d at 72. Inherent social pressure to cooperate with the police is not itself a sufficient basis for declaring the encounter nonconsensual. People v. Johnson, 865 P.2d 836, 842 (Colo.1994).

"[Alny assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account 'all of the cireumstances surrounding the incident in each individual case." Michigan v. Chesternut, 486 U.S. 567, 572, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), quoting INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 LEd.2d 247 (1984). Because it is fact-based, this test is "necessarily imprecise." Id. at 573, 108 S.Ct. 1975. A totality of the cireumstances analysis requires an examination of the behavior of the parties, as well as the physical, temporal, and social context of the encounter. "[Wlhat constitutes a restraint on liberty prompting a person to conclude that he is not free to 'leave will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs." Caseio, 932 P.2d at 1386, quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 LEd.2d 565 (1988).

Representative examples of when a seizure occurs include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

Applying the totality of the circumstances analysis, the trial court, and we, must assess "whether the circumstances surrounding an encounter between a police officer and an occupant of a vehicle are so intimidating as to demonstrate that a reasonable, innocent per.son would not feel free to decline the officers' requests or otherwise terminate the encounter." Jackson, 39 P.3d at 1183-84 (setting forth a number of factors pertinent to a totality of the circumstances analysis). In Jackson, we held that any reasonable person would have understood the officer's instruction to "hang tight in the car" as a command to stay. That instruction, combined with the officer's action in taking the defendant's identification back to the patrol car for a warrants check, constituted a seizure without reasonable suspicion and required suppression of the subsequently discovered evidence. Id. at 1189-90.

B. The Seizure In This Case

Heilman met his initial burden of showing that a seizure implicating the Fourth Amendment occurred, and the prose-ecution did not sustain its burden of proof to demonstrate a consensual encounter. The trial court found that Officer Kaminky approached the van in his marked patrol car at a higher than normal rate of speed and parked in a T-formation close to the van. Although he was carrying a weapon, he did not draw it. Upon encountering Heilman and his companions, the officer ordered the three persons to hold up their hands. After learning that the individuals did not need his assistance, Officer Kaminky began questioning Heilman about what he had thrown down and whether there were weapons or contraband in the vehicle At the suppression hearing, the three occupants of the van testified that Officer Kaminky's tone was unfriendly and his questioning rapid-fire.

In People v. Cascio, we found that an encounter between deputy officers and the occupants of a parked van was consensual. The officer's conduct was "mild mannered"; the officers' greeting to the defendants was friendly and casual. Cascio, 932 P.2d at 1387. In contrast, taking into account all of the circumstances, Officer Kaminky's conduct demonstrated that his contact with Heilman escalated into a seizure.

The Seventh Circuit of the United States Court of Appeals found in United States v. Packer that police behavior similar to that in the present case constituted a seizure without reasonable suspicion. See United States v. Packer, 15 F.3d 654, 657 (7th Cir.1994). In Packer, the police responded to an anonymous tip regarding a suspicious vehicle that was parked in a "bad neighborhood" at about one in the morning. The officers parked their cars in front of and behind the defendant's car and shined a light into the car. As an officer approached the car, she asked the occupants to put their hands in the air where she could see them. In concluding that ordering the defendant to raise his hands constituted a display of authority, the court in Packer reasoned that "[wlhile the officer's prudential procedures are of course fully justified by concerns for police safety, a reasonable person in Defendant's position would not feel that he was free to leave." Id.

Although the prosecution seeks to justify Officer Kaminky's conduct on officer safety considerations, the trial court's findings support its legal conclusion that the officer was not seeking Heilman's cooperation and he was not free to leave. Reasonable persons would not feel free to disobey the order to raise their hands to plain view while a uniformed officer approached them with his weapon displayed on his hip, ordered them out of their vehicle, directed them to put their hands behind their heads, patted them down, and commenced to search the vehicle.

Here, the "show your hands" command was at least the equivalent of the "hold tight" instruction in Jackson, and the nature and tone of the questioning demonstrated that Officer Kaminky-after learning that the persons in the van did not need his assistance-had commenced an investigation for criminal activity under cireumstances demonstrating that the persons were not free to leave. A seizure occurred without facts justifying reasonable suspicion of a person having committed a crime. Cf. People v. Garcia, 11 P.3d 449, 453-54 (Colo.2000) (holding that police officers possessed reasonable suspicion where in the course of interviewing people at a crime seene, they saw drug paraphernalia at the defendant's feet). Officer Kaminky had not observed a traffic violation or any other cireumstance indicating criminal activity. For reasonable suspicion to exist, the police "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry, 392 U.S. at 21, 88 S.Ct. 1868.

In this case, the officer testified that he had observed a furtive gesture by Heilman. He based his suspicion of illegal activity solely on that observation. We have held that a "furtive gesture" is too ambiguous, standing alone, to constitute the basis for an investigatory stop. Outlaw, 17 P.3d at 157; Thomas, 660 P.2d at 1275.

When an illegal seizure has occurred, it is the burden of the prosecution to show that statements or evidence gathered as a result were not the fruit of the prior illegality. People v. Rodriguez, 945 P.2d 1351, 1864 (Colo.1997). In Rodrigues we held that:

[Ejvidence obtained by a purported consent that follows improper conduct by police must meet a two-fold test: (1) was the consent obtained through exploitation of the prior illegality; and (2) was the consent voluntary? Evidence obtained by a purported consent is admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality.

Id. at 1864 (quotation marks omitted). A reviewing court must consider the "temporal proximity of the arrest and the consent, the presence of intervening cireumstances, and, particularly, the purpose and flagrancy of the official misconduct" in determining whether the consent was an exploitation of the prior illegality. Id., quoting Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 LEd.2d 416 (1975).

The purported consent in this case flowed directly from the illegal seizure and was in close temporal and physical proximity to it. The prosecution did not carry its burden of proof to demonstrate that the purported consent was attenuated from the prior illegal conduct. See Rodriguez, 945 P.2d at 1864-65. The trial court properly suppressed the evidence. Id.

IIL

Accordingly, we affirm the trial court's suppression order, and we return this case to the trial court for further proceedings consistent with this opinion.

      . At the suppression hearing, each of the three occupants of the van testified and identified themselves as a member of the plumbing crew for which Heilman was the supervisor.

      . We do not view as inconsistent with today's holding our decisions in People v. Smith, 13 P.3d 300 (Colo.2000) and People v. Garcia, 11 P.3d 449 (Colo.2000). In Smith, we held that a police officer making an investigatory stop may command a suspect to put his hands in the air and step out of the vehicle-and restrain the suspect by handcuffs, if necessary-when "the officer possesses a reasonable belief that the occupants pose a danger." Smith, 13 P.3d at 305. Both of those decisions involved: (1) nighttime investigatory stops; and (2) articulated facts justifying a reasonable belief of danger to officer safety. Here, in contrast, it was broad daylight, none of the three occupants of the van took any action supporting a reasonable belief of danger to the officer, and reasonable suspicion was lacking for a criminal investigation into the activity of the occupants.


text:
    Nick AVILA, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 02PDJ005.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    July 22, 2002.

      Attorney Regulation. The Hearing Board readmitted Nick Avila Jr., to the practice of law following a readmission hearing, effective July 26, 2002.
   Opinion by

Presiding Disciplinary Judge ROGER L. KEITHLEY and two hearing board members, THOMAS J. OVERTON and DOUGLAS D. PIERSEL, both members of the bar.

OPINION AND ORDER READMITTING NICK AVILA, JR., TO THE PRACTICE OF LAW.

ATTORNEY READMITTED TO THE PRACTICE OF LAW

A readmission hearing was held in the within matter on May 20 and 21, 2002, pursuant to C.R.C.P. 251.29(a) before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") Roger L. Keithley and two hearing board members, Thomas J. Overton and Douglas D. Piersel, both members of the bar. John Astuno, Jr. appeared on behalf of petitioner Nick Avila, Ir. ("Avi-12"), who was also present. James S. Sudler, Assistant Attorney Regulation Counsel, appeared on behalf of the People of the State of Colorado (the "People"). The following witnesses testified on behalf of Avila: Lesile Jordan, Ph.D., Brooke Wunnicke, Manual J. Solano, Cipriano Griego, David W. Givens, Debra Williams, Laurie A. Crook, Renee Schwalger, Marcella Paiz, Judge Aleene Ortiz-White, and Sandy Baca-Sandoval. Nick Avila, Jr. testified on his own behalf, Avila offered and the PDJ admitted into evidence stipulated exhibits A though N.

The Hearing Board considered the testimony and credibility of the witnesses, the stipulation entered into by the parties, the exhibits admitted into evidence, and made the following findings of fact, which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Nick Avila, Jr. ("Avila") took the oath of admission and was admitted to the bar on May 17, 1977, registration number 08049. Avila was immediately suspended from the practice of law by Order of the Supreme Court dated July 1, 1986 due to his conviction in Denver District Court on two counts each of second degree forgery and conspiracy to commit second degree forgery. Avila arranged for the unauthorized alteration of two of his clients' driving records in the State Motor Vehicle Division. The two clients' driver's licenses were under revocation for alcohol-related offenses. Avila charged his clients between $1,500 and $3,000 for his services. See People v. Avila, TTO P.2d 13830 (Colo.App.1988). Avila was sentenced to a period of probation on these convictions.

Following the suspension of his law license, Avila encountered significant financial problems. Avila financed a drug operation importing cocaine from Florida to Colorado. In three transactions occurring from April through August 1987, Avila received more than three kilograms of cocaine. Avila was convicted in United States District Court for the District of Colorado of one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (1982), and three counts of possession with intent to distribute in violation of 21 U.S.C. § S4l(a)(1){1982). Avila was sentenced to ten years in prison on each count and fined $10,000.00. As a result of the federal convie-tions, Avila's state probation was revoked and he was sentenced to a term of eight years in state prison to run consecutively with the federal term of incarceration. On July 17, 1989, by Order of the Supreme Court, Avila was disbarred from the practice of law in the State of Colorado. People v. Avila, 778 P.2d 657, 657 (1989). Over eight years have passed since the effective date of Avila's disbarment. See 251.29(a).

Avila served eight years of imprisonment. While serving his sentence in prison, Avila maintained relations with his family and was employed by the prison to work in the educational department where he helped inmates study for and take the high school equivalency exam. In 1995, Avila was released to a halfway house, and in 1996, he was released on parole. He was formally discharged from both sentences in July 1997.

Avila has worked to reestablish relationships with his two sons. His older son, a recent law school graduate, believes his father was and is his inspiration for choosing the legal profession, and remembers that even while he was in prison, Avila provided him with guidance and helped him when he encountered obstacles in school or in his personal life. Avila commits as much time as possible to his younger son. He provides transportation to and from school each day. He participates in his son's school activities and extra-curricular sports activities. He volunteers his time at his son's school, chaperoning dances, working at the church, collecting donations for mission trips and collecting food for the homeless. He extends financial support to his son beyond the child support payments he is required to pay. According to the mother of Avila's younger son, Avila has made a complete transformation since he was released from prison.

In his community, Avila has volunteered his time for several years to a program which helps at-risk teenagers obtain their high school equivalency diplomas. He assists with church functions, and gives presentations through a state ageney on learning new skills and changing behavior. He offers himself as an example of the severity of the consequences for improper behavior.

Avila has established his proficiency in the law. He sat for and passed the February 27, 2001 Colorado Bar Exam, and the Multistate Professional Responsibility Examination. Prior to the submission of his Petition for Readmission, Brooke Wunnicke tutored Avila on the ethical obligations of a lawyer in Colorado. Specifically, Ms. Wunnicke instructed Avila on the importance of writing a representation letter at the outset of the attorney/client relationship, the need to render competent representation to the client, the need to clarify the client's and attorney's goals, the importance of discussing fees with clients at the outset, the importance of confirming to the client in writing all major aspects of his representation, the need to confirm in writing all discussions or agreements with opposing counsel, the importance of identifying and addressing conflicts of interest, and the importance of remaining current on Colorado Bar Association Formal Ethics Opinions and the American Bar Association ethics opinions.

In addition to demonstrating his proficiency in the law by taking the bar exam, Avila has worked as a paralegal for the last five years. The attorneys with whom Avila worked as a paralegal-Cipriano Greigo, David Givens and Manuel Solano-uniformly agree that Avila possesses good lawyering skills, good judgment, an ability to quickly comprehend complex legal issues, a solid work ethic, and is technically competent. Accompanied by a supervising attorney, he has met with clients, communicated with clients on behalf of his employers, assisted in the drafting of pleadings and trial preparation, and conducted legal research. As a paralegal, Avila is hard-working, well organized, dedicated to the legal profession, and has earned a reputation for being honest and forthright. Avila has developed a mentoring relationship with these attorneys and will look to them in the event he needs advice on a legal matter. All three attorneys knew Avila personally and professionally prior to his incarceration, have worked with him since his release, and confirmed that Avila is a changed person who takes responsibility for his actions and can competently practice law. One of the attorneys has invited Avila to join his firm as an associate attorney.

Avila consulted with a psychologist, Dr. Leslie Jordan, from March through June 2000. Avila worked to rehabilitate those flaws in his character which resulted in his prior misconduct. Avila recognizes that his background, which included a childhood filled with a considerable amount of punishment but not a lot of guidance, resulted in his not developing core values, and he lacked these core values when entering the practice of law. He was the first member of his family to attend college. He started off as a young lawyer with no one to advise him how to handle his caseload. He worked under conditions of financial insecurity and continual fear of failure. He believed he could not fail in resolving his clients' legal problems, even when his solution did not comport with the law.

On January 15, 2002, Avila filed a Verified Petition for Readmission and Reinstatement. Avila has complied with past disciplinary orders. He fully complied with both his state and federal sentences and completed his period of parole without incident. The parties stipulated that Avila substantially complied with the Supreme Court's Order dated July 17, 1989, requiring him to pay the costs arising from the prior disciplinary proceeding in the amount of $212.61.

Avila acknowledges the seriousness of his misconduct and has expressed genuine remorse. He has demonstrated that he has been willing to put forth the self-discipline and emotional effort to change old patterns.

The People conducted an investigation of Avila's background, resulting in the conclusion that Avila has successfully changed his behavior. Based on this investigation of Avila's post-incarceration conduct, his testimony and the testimony of others in this proceeding, the People stipulated that Avila should be readmitted to the practice of law in Colorado.

II. CONCLUSIONS OF LAW

C.R.C.P. 251.29 provides in relevant part:

(a) Readmission After Disbarment.
To be eligible for readmission the attorney must demonstrate the attorney's fitness to practice law and professional competence, and must successfully complete the written examination for admission to the Bar. The attorney must file a petition for readmission ... [which] shall be heard in procedures identical to those outlined by these rules governing hearings of complaints, except it is the attorney who must demonstrate by clear and convincing evidence the attorney's rehabilitation and full compliance with all applicable disciplinary orders and with all provisions of this Chapter.

People v. Klein, 756 P.2d 1013, 1016 (Colo.1988) interprets the language of the prior rule governing readmission to the bar, C.R.C.P. 241.22, and sets forth criteria which must be considered in reinstatement proceedings in order to evaluate an attorney's rehabilitation. Klein requires:

[Alny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the respondent's state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the respondent, the personal and community service aspects of the respondent's life, and the respondent's recognition of the seriousness of his previous misconduct.

Rehabilitation for purposes of attorney reinstatement and readmission to the bar has been defined as "the reestablishment of the reputation of a person by his or her restoration to a useful and constructive place in society." Goff v. People, 35 P.3d 487 (Colo. PDJ 2000), citing Avrom Robin, Character and Fitness Requirements for Bar Admission in New York, 18 Touro L.Rev. 569, 583 (1997)(quoting In re Cason, 249 Ga. 806, 294 S.E.2d 520, 522-28 (1982)). Other factors which are considered are the applicant's age at the time of the offense and the likelihood that the applicant will repeat the behavior in the future. Id. Courts, including those in Colorado, focus upon the applicant's current mental state. Id., See Klein, 756 P.2d at 1016.

Imposition of discipline against an attorney includes a determination that some professional or personal shortcoming existed upon which the discipline is premised. Goff 35 P.3d at 495, 496. The shortcoming may have resulted either from personal deficits or from a combination of personal deficits and professional and/or environmental inadequacies. Id. It necessarily follows that the analysis of rehabilitation should be directed at the professional or moral shortcoming which resulted in the discipline imposed. Id., citing GCRCP. 251.29(0)(5), Tardiff v. State Bar, 27 Cal.3d 895, 165 Cal.lRptr. 829, 612 P.2d 919, 923 (1980)(citing Roth v. State Bar, 40 Cal.2d 307, 253 P.2d 969, 972 (1958))(hold-ing that in an application for reinstatement ... the proof presented must be sufficient to overcome the court's former adverse judgment of [the] applicant's character).

Avila established that he has complied with all applicable disciplinary orders and with all provisions of the relevant rules regarding actions required of disbarred attorneys. He established his efforts to maintain professional competence by passing the Colorado Bar Exam, by successfully working as a paralegal for the last five years, by taking and passing the Multistate Professional Responsibility Exam, and by continuing to update his understanding of the law through Continuing Legal Education.

It is rare that an attorney who engages in criminal conduct and is subsequently disbarred seeks readmission to the bar. It should be rarer still that readmission should be granted. See In the Matter of the Petition For Reinstatement of David J. Trygstad, 485 N.W.2d 723, 724 (S.D.1989)(stating that "[a] court should be slow to disbar, but it should be even slower to reinstate; it should endeavor to make certain that it does not again put into the hands of an unworthy petitioner that almost unlimited opportunity to inflict wrongs upon society possessed by a practicing lawyer."). "If a Court disciplines an attorney, it does so not to mete out punishment to an offender, but [sol that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession." Statewide Grievance Commuittee v. Alan Spirer, 247 Conn. 762, 725 AZd 948 (1999). "Although [it has been] suggested that certain offenses are so serious that an 'attorney committing them can never again satisfy the court that he has become trustworthy," Matter of Keenam, 314 Mass. 544, 548-549, [50 N.E.2d 785] [1943] [it is] recognized that no offense "is so grave that a disbarred attorney is automatically precluded from attempting to demonstrate through ample and adequate proofs, drawn from conduct and social interactions, that he has achieved a 'present fitness, In re Kone, 90 Conn. 440, 442, [97 A. 307] [1916] to serve as an attorney and has led a sufficiently exemplary life to inspire public confident once again, in spite of his previous actions." In the Matter of Allen, 400 Mass. 417, 509 N.E.2d 1158, 1160-1161 (Ma.1987), citing Matter of Hiss, 368 Mass. 447, 452, 383 N.E.2d 429, 433 (1975). A fundamental precept of our system ... is that men can be rehabilitated." Hiss, 388 N.E.2d at 484. Rehabilitation ... is a 'state of mind' and the law looks with favor upon rewarding with the opportunity to serve, one who has achieved 'reformation and regeneration"" Id., citing March v. Committee of Bar Examrs, 67 Cal.2d 718, 732, 68 Cal.Rptr. 399, 483 P.2d 191 (1967). Time and experience may mend flaws of character which allowed the immature man to err. Id. The chastening effect of a severe sanction such as disbarment may redirect the energies and reform the values of even the mature miscreant. Id. There is always the potentiality for reform, and fundamental fairness demands that the disbarred attorney have opportunity to adduce proofs. Id. See eg., Hubbard v. Kentucky Bar Association, 66 S.W.3d 684 (Ky.2001)(attorney readmitted after having been convicted of three felonies, including conspiracy to impede and impair the Federal Election Commission, one count of theft of government property, and one count of obstruction of justice, the attorney having proven that his conduct since disbarment had been of a positive proactive nature and he was worthy of the trust and confidence of the public); Allen, 509 N.E.2d at 1160-1161 (attorney reinstated after having been indefinitely suspended following his conviction for conspiracy to commit arson and conspiracy to cause a building to be burned with intent to defraud the insurer).

A prior disbarment based upon felonious conduct requires a close examination of the actual misconduct. See Goff 35 P.3d at 495, 496; Im the Matter of Wegner, 417 N.W.2d 97, 100 (Minn.1987)(holding that the present fitness to practice law of an attorney seeking [readmission] must be considered in light of the offenses for which he or she was disbarred, citing Matter of Peterson, 274 N.W.2d 922, 926 (Minn.1979)). In this case, Avila was disbarred because of the commission of two separate criminal acts. First, Avila knowingly caused the falsification of public records in an ill-conceived effort to avoid the imposition of harsh penalties against Avila's clients, In the second instance of criminal misconduct, Avila knowingly financed the importation of cocaine with the intent that it be subsequently distributed.

Avila's participation in the falsification of public records arose out of his then belief that an attorney's function was to prevail on behalf of his client at any cost. At the time of those events, Avila was thirty-six years old, was practicing by himself, had no mentoring relationship with other attorneys and was driven by a compulsion to secure favorable rulings for his clients. His willingness to violate the law was the direct result of his lack of experience, lack of guidance in the practice of law, misunderstanding of a lawyer's role in the adversarial process and a willingness to break the rules to obtain the desired result.

Avila's involvement in the drug importation and distribution scheme reveals different character deficits. After Avila's immediate suspension from the practice of law, he encountered significant financial difficulties. He was not able to meet his expenses, satisfy the basic needs of his children, pay overdue taxes or maintain the lifestyle which he thought was required of him in his community. In a misdirected effort to raise sufficient monies to meet those needs, Avila knowingly elected to violate the law.

Both of these criminal episodes reveal character deficits present at the time the events transpired which-Avila now acknowledges-rightfully should have prevented him from holding a license to practice law. Both episodes arose out of Avila's willingness to look for easy answers and bend or break fundamental rules of conduct to achieve ends that he personally perceived as desirable. The question before this Hearing Board is whether those character deficits have now been removed so as to insure that similar misconduct does not recur.

Much testimony was offered from Avila and others that he has spent many hours and days reflecting upon his misconduct, both during his incarceration and after. Through such self-examination, Avila is convinced the misconduct will not recur. However, self-examination in the absence of illustrative and independent evidence of fundamental character change is insufficient to establish by clear and convincing evidence that change is real. Goff, 35 P.3d at 496 n. 14. In this case, there is, however, other independent and illustrative evidence of fundamental character changes.

Almost immediately after Avila's convie-tions, he acknowledged the wrongfulness of his misconduct and began the lengthy process of restructuring his life. While incarcerated, Avila continuously maintained a job, assisted other inmates in obtaining an equivalent high school education and maintained a close guiding relationship with both his older son and his minor son. Avila's conduct while incarcerated was sufficiently exemplary that he was allowed to work outside the facility during the last year of his sentence. Upon his discharge to a halfway house, Avila obtained employment and expanded his relationship with his sons. In 1996, Avila was released on parole and immediately secured a job as a paralegal for three lawyers who had maintained contact with him during the years he was incarcerated. As a paralegal, Avila re-immersed himself in the legal profession. He has, under the supervision of other lawyers, met and communicated with clients, conducted legal research, drafted pleadings, evaluated facts and cireumstances for his supervisors, and attended numerous continuing legal education programs. Each of the three lawyers for whom Avila has worked as a paralegal have strongly endorsed his effort to be readmitted and have attested to his renewed character and ethical understanding. One of those lawyers has offered Avila a position as an associate attorney should he be readmitted.

More important than the opinion of those for whom he has worked, however, is Avila's own conduct. In an effort to understand the underlying. reasons for his criminal behavior, Avila has sought professional evaluation and counseling. He has taken the results of that counseling and applied it to his normal routine. Avila is actively involved in community affairs, continues to assist young adults in obtaining high school equivalency education, participates in youth activities and continues to maintain a close, guiding relationship with his sons.

Possibly the most definitive independent evidence of the change in his character is Avila's presentation to youth groups of his life's misdirection. Now, as a fifty-two year old man, Avila openly describes his descent into criminal conduct, the consequences he endured as a result of that conduct, and the difficulty he has encountered in trying to rebuild his life. Avila's willingness to represent his choices as examples of conduct to avoid to formative youth and to encourage them to make different choices is strong evidence of Avila's genuine understanding of his prior misconduct and real character change.

These facts convince the Hearing Board by clear and convincing evidence that Avila no longer looks for easy answers and recognizes that he is bound by rules of conduct which may not be bent or broken to accomplish a desired outcome. Because he has demonstrated that change in character, the Hearing Board finds that he is rehabilitated.

Avila's passage of the Colorado Bar Examination, the Multi State Professional Responsibility Examination and his special tutoring with Brooke Wunnicke establishes his competence to practice law. By stipulation, the Office of Attorney Regulation Counsel has agreed that Avila has substantially complied with all disciplinary orders.

Although not controlling in this readmission proceeding, it is important to note and significant to the Hearing Board that at the conclusion of all testimony in this proceeding that Mr. Sudler, the Assistant Regulation Counsel, stipulated that Avila should be readmitted to the practice of law.

The evidence having established by a clear and convincing standard that Avila has been rehabilitated, the Hearing Board herein Orders that Avila shall be readmitted to the practice of law. Avila shall appear before the Presiding Disciplinary Judge within fifteen days of the date of this Order to take the oath of admission and receive an attorney registration number.

III, ORDER

It is therefore ORDERED:

1. That the Verified Petition for Reinstatement of Nick Avila, Jr. is GRANTED and Avila is readmitted to the practice of law;
2. Avila is ORDERED to appear before the Presiding Disciplinary Judge within fifteen days of the date of this Order to take the oath of admission and to obtain a new attorney registration number;
3. That prior to taking the oath of admission, Avila shall tender $195.00 to the Office of Attorney Registration, fill out an attorney registration form and a COLTAF form;
4, Avila is ORDERED to pay the costs of these proceedings;
5. The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Petitioner shall have ten (10) days thereafter to submit a response thereto.