CSHB 237(JUD): "An Act relating to workers' compensation insurance rate filings; to second independent medical evaluations for workers' compensation claims; to immunity for third-party design professionals from civil actions by recipients of workers' compensation benefits; to workers' compensation death benefits; to computation of workers' compensation benefits; to penalties for fraudulent acts related to workers' compensation; to immunity for employer workplace safety inspections related to workers' compensation insurance; and providing for an effective date."
00CS FOR HOUSE BILL NO. 237(JUD) 01 "An Act relating to workers' compensation insurance rate filings; to second 02 independent medical evaluations for workers' compensation claims; to immunity for 03 third-party design professionals from civil actions by recipients of workers' 04 compensation benefits; to workers' compensation death benefits; to computation of 05 workers' compensation benefits; to penalties for fraudulent acts related to workers' 06 compensation; to immunity for employer workplace safety inspections related to 07 workers' compensation insurance; and providing for an effective date." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. FINDINGS AND PURPOSE AS TO SECTION 7. (a) The legislature finds 10 that 11 (1) efficiency in calculating workers' compensation benefits does not require 12 unfairness; 13 (2) a quick, efficient, and predictable scheme for determining a worker's gross 14 weekly earnings can be formulated without denying employees their workers' compensation
01 benefits commensurate with their actual losses; 02 (3) many workers in the state are only seasonally employed in the construction, 03 tourism, fishing, and education industries; 04 (4) many workers in the state choose a subsistence lifestyle and are only 05 occasionally, sporadically, or on a part-time basis members of the labor force; 06 (5) many other states avoid the need for an alternative open-ended determination 07 of an employee's future earning capacity by focusing on the employee's wages at the time of 08 injury and converting, by formula, the employee's rate of pay into a weekly wage; 09 (6) benefits for permanent total disability can last for a substantial period into 10 the future and serve a different purpose than benefits for temporary partial or temporary total 11 disability. 12 (b) It is the purpose of sec. 7 of this Act to 13 (1) redefine the calculation of an employee's spendable weekly wage used to 14 determine workers' compensation benefits in a manner that complies with the decision of the 15 Alaska Supreme Court in Gilmore v. Alaska Workers' Compensation Board, 882 P.2d 922 16 (Alaska 1994); 17 (2) fix a fair approximation of an employee's probable future earning capacity 18 during the period of temporary partial or temporary total disability without resorting to an open-ended determination o 19 actual future earning capacity; 20 (3) avoid uncertainty and litigation for injured workers and their employers; 21 (4) allow an alternative open-ended determination of actual future earnings for 22 those employees who suffer a permanent total disability and whose wages cannot otherwise be 23 fairly calculated. 24 * Sec. 2. AS 21.39 is amended by adding a new section to read: 25 Sec. 21.39.045. WORKERS' COMPENSATION RATE FILINGS. (a) 26 Notwithstanding any other provision of this chapter, a rate filing for workers' 27 compensation insurance that classifies a risk in the construction industry may not contain 28 or impose a higher premium rate if the risk upon which the higher rate filing is based 29 consists only of a higher wage rate paid by the employer. 30 (b) The director shall accept a rate filing for workers' compensation insurance 31 if the filing includes a reasonable method of recognizing differences in rates of pay and
01 the method uses a credit scale that begins at an amount equal to the average weekly 02 wage in this state as determined by the Department of Labor. 03 * Sec. 3. AS 23.30 is amended by adding a new section to read: 04 Sec. 23.30.017. IMMUNITY FOR THIRD-PARTY DESIGN PROFESSIONAL. 05 (a) A person entitled to compensation under this chapter as a result of injury occurring 06 at the job site of a construction project may not bring a civil action to recover damages 07 for that injury against a design professional or an employee of a design professional who 08 provides professional services for the construction project. 09 (b) This section does not apply to a person receiving compensation under this 10 chapter who is injured at a job site at which the design professional or employee of the 11 design professional 12 (1) specifically assumed responsibility for job site safety practices under 13 a contract; 14 (2) actually exercises control over the premises where the injury 15 occurred; or 16 (3) prepared design plans or specifications, the plans or specifications 17 contributed to the injury, and the plans or specifications were prepared negligently, 18 recklessly, or with intentional misconduct. 19 (c) In this section, 20 (1) "design professional" means a person licensed under AS 08.48 as an 21 architect, engineer, or land surveyor; 22 (2) "professional services" means services provided by a design 23 professional that are within the scope of services for which the design professional is 24 licensed. 25 * Sec. 4. AS 23.30.095(k) is amended to read: 26 (k) In the event of a medical dispute regarding determinations of causation, 27 medical stability, ability to enter a reemployment plan, degree of impairment, functional 28 capacity, the amount and efficacy of the continuance of or necessity of treatment, or 29 compensability between the employee's attending physician and the employer's 30 independent medical evaluation, the board may require that a second independent 31 medical evaluation [SHALL] be conducted by a physician or physicians selected by the
01 board from a list established and maintained by the board. The cost of an [THE] 02 examination and medical report shall be paid by the employer. The report of an [THE] 03 independent medical examiner shall be furnished to the board and to the parties within 04 14 days after the examination is concluded. A person may not seek damages from an 05 independent medical examiner caused by the rendering of an opinion or providing 06 testimony under this subsection, except in the event of fraud or gross incompetence. 07 * Sec. 5. AS 23.30.175(b) is amended to read: 08 (b) The following rules apply to benefits payable to recipients not residing in the 09 state at the time compensation benefits are payable: 10 (1) the weekly rate of compensation shall be calculated by multiplying 11 the recipient's weekly compensation rate calculated under AS 23.30.180, 23.30.185, 12 23.30.190, 23.30.200, or 23.30.215, by the ratio of the cost of living of the area in which 13 the recipient resides to the cost of living in this state; 14 (2) the calculation required by (1) of this subsection does not apply if the 15 recipient is absent from the state for medical or rehabilitation services not reasonably 16 available in the state; 17 (3) if the gross weekly earnings of the recipient and the resulting 18 compensation rate are determined under AS 23.30.220(a)(6), (7), or (10) 19 [AS 23.30.220(a)(2)], the calculation required by this subsection applies only to the 20 portion of the recipient's weekly compensation rate attributable to wages earned in the 21 state; 22 (4) application of this subsection may not reduce the weekly 23 compensation rate to less than $154 a week, except as provided in (a) of this section. 24 * Sec. 6. AS 23.30.215(f) is amended to read: 25 (f) Except as provided in (g) of this section, the death benefit payable to a 26 widow or widower shall 27 [(1) FIVE YEARS FOLLOWING DATE OF DEATH OF THE 28 DECEASED EMPLOYEE BE REDUCED TO 66 2/3 PERCENT OF THE BENEFIT 29 BEING THEN PAID; 30 (2) EIGHT YEARS FOLLOWING DATE OF DEATH OF THE 31 DECEASED EMPLOYEE BE REDUCED TO 50 PERCENT OF THE BENEFIT
01 BEING THEN PAID; 02 (3)] terminate 10 years following death of the deceased employee. 03 * Sec. 7. AS 23.30.220(a) is repealed and reenacted to read: 04 (a) Computation of compensation under this chapter shall be on the basis of an 05 employee's spendable weekly wage at the time of injury. An employee's spendable 06 weekly wage is the employee's gross weekly earnings minus payroll tax deductions. An 07 employee's gross weekly earnings shall be calculated as follows: 08 (1) if at the time of injury the employee's earnings are calculated by the 09 week, the weekly amount is the employee's gross weekly earnings; 10 (2) if at the time of injury the employee's earnings are calculated by the 11 month, the employee's gross weekly earnings are the monthly earnings multiplied by 12 12 and divided by 52; 13 (3) if at the time of injury the employee's earnings are calculated by the 14 year, the employee's gross weekly earnings are the yearly earnings divided by 52; 15 (4) if at the time of injury the 16 (A) employee's earnings are calculated by the day, hour, or by the 17 output of the employee, the employee's gross weekly earnings are the employee's 18 earnings most favorable to the employee computed by dividing by 13 the 19 employee's earnings, not including overtime or premium pay, earned during any 20 period of 13 consecutive calendar weeks within the 52 weeks immediately 21 preceding the injury; 22 (B) employee has been employed for less than 13 calendar weeks 23 immediately preceding the injury, then, notwithstanding (1) - (3) of this 24 subsection and (A) of this paragraph, the employee's gross weekly earnings are 25 computed by determining the amount that the employee would have earned, not 26 including overtime or premium pay, had the employee been employed by the 27 employer for 13 calendar weeks immediately preceding the injury and dividing 28 this sum by 13; 29 (5) if at the time of injury the employee's earnings have not been fixed 30 or cannot be ascertained, the employee's earnings for the purpose of calculating 31 compensation are the usual wage for similar services when the services are rendered by
01 paid employees; 02 (6) if at the time of injury the employment is exclusively seasonal or 03 temporary, then, notwithstanding (1) - (5) of this subsection, the gross weekly earnings 04 are 1/50th of the total wages that the employee has earned from all occupations during 05 the calendar year immediately preceding the injury; 06 (7) when the employee is working under concurrent contracts with two 07 or more employers and the employer liable for compensation has knowledge of the dual 08 employment before the injury, the employee's earnings from all employers is considered 09 as if earned from the employer liable for compensation; 10 (8) if an employee when injured is a minor, an apprentice, or a trainee 11 in a formal training program, as determined by the board, whose wages under normal 12 conditions would increase during the period of disability, the projected increase may be 13 considered by the board in computing the gross weekly earnings of the employee; 14 (9) if the employee is injured while performing duties as a volunteer 15 ambulance attendant, volunteer police officer, or volunteer fire fighter, then, 16 notwithstanding (1) - (6) of this subsection, the gross weekly earnings for calculating 17 compensation shall be the minimum gross weekly earnings paid a full-time ambulance 18 attendant, police officer, or fire fighter employed in the political subdivision where the 19 injury occurred, or, if the political subdivision has no full-time ambulance attendants, 20 police officers, or fire fighters, at a reasonable figure previously set by the political 21 subdivision to make this determination, but in no case may the gross weekly earnings for 22 calculating compensation be less than the minimum wage computed on the basis of 40 23 hours work per week; 24 (10) if an employee is entitled to compensation under AS 23.30.180 and 25 the board determines that calculation of the employee's gross weekly earnings under (1) - 26 (7) of this subsection does not fairly reflect the employee's earnings during the period 27 of disability, the board shall determine gross weekly earnings by considering the nature 28 of the employee's work, work history, and resulting disability, but compensation 29 calculated under this paragraph may not exceed the employee's gross weekly earnings 30 at the time of injury. 31 * Sec. 8. AS 23.30.220 is amended by adding a new subsection to read:
01 (c) In this section, 02 (1) "seasonal work" means employment that is not intended to continue 03 through an entire calendar year, but recurs on an annual basis; 04 (2) "temporary work" means employment that is not permanent, ends 05 upon completion of the task, job, or contract, and ends within six months from the date 06 of injury. 07 * Sec. 9. AS 23.30.250 is repealed and reenacted to read: 08 Sec. 23.30.250. PENALTIES FOR FRAUDULENT OR MISLEADING ACTS. 09 (a) A person who (1) knowingly makes a false or misleading statement, representation, 10 or submission related to a benefit under this chapter; (2) knowingly assists, abets, solicits, 11 or conspires in making a false or misleading submission affecting the payment, coverage, 12 or other benefit under this chapter; (3) knowingly misclassifies employees or engages in 13 deceptive leasing practices for the purpose of evading full payment of workers' 14 compensation insurance premiums; or (4) employs or contracts with a person or firm to 15 coerce or encourage an individual to file a fraudulent compensation claim is civilly 16 liable to a person adversely affected by the conduct, is guilty of theft by deception as 17 defined in AS 11.46.180, and may be punished as provided by AS 11.46.120 - 18 11.46.150. 19 (b) If the board, after a hearing, finds that a person has obtained compensation, 20 medical treatment, or another benefit provided under this chapter by knowingly making 21 a false or misleading statement or representation for the purpose of obtaining that benefit, 22 the board shall order that person to make full reimbursement of the cost of all benefits 23 obtained. Upon entry of an order authorized under this subsection, the board shall also 24 order that person to pay all reasonable costs and attorney fees incurred by the employer 25 and the employer's carrier in obtaining an order under this section and in defending any 26 claim made for benefits under this chapter. If a person fails to comply with an order of 27 the board requiring reimbursement of compensation and payment of costs and attorney 28 fees, the employer may declare the person in default and proceed to collect any sum due 29 as provided under AS 23.30.170(b) and (c). 30 * Sec. 10. AS 23.30 is amended by adding a new section to read: 31 Sec. 23.30.263. IMMUNITY FROM CIVIL LIABILITY FOR WORKPLACE
01 SAFETY INSPECTIONS. An employer's safety inspector is not liable for civil damages 02 for an injury to an employee of that employer resulting from an act or omission in 03 performing or failing to perform a loss control service, a workplace safety inspection, or 04 a safety advisory service provided in connection with an employer's workers' 05 compensation insurance coverage, unless the act or failure to act constitutes intentional 06 misconduct. In this section, "safety inspector" means 07 (1) a carrier and an employee or agent of the carrier; 08 (2) a trade association of which the employer is a member; or 09 (3) a person providing adjusting or inspection services to an employer 10 who is a member of an association established under AS 21.76.010 or to an employer 11 who is self-insured under AS 23.30.090. 12 * Sec. 11. TRANSITION. By January 1, 1996, a rating organization that files a rate for 13 workers' compensation insurance shall file a rating that contains a method of computing workers' 14 compensation insurance rates that is in compliance with AS 21.39.045, added by sec. 2 of this 15 Act. 16 * Sec. 12. Section 2 of this Act applies to a policy of workers' compensation insurance that 17 is entered into or renewed on or after the effective date of this Act. 18 * Sec. 13. This Act takes effect July 1, 1995.