Legislature(2005 - 2006)BUTROVICH 205
05/20/2005 03:00 PM House FREE CONFERENCE COMMITTEE ON SB 130
| Audio | Topic |
|---|---|
| Start | |
| SB130 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 130 | ||
SB 130-WORKERS' COMPENSATION/ INSURANCE
CHAIR GENE THERRIAULT called the Free Conference Committee on SB
130 meeting to order at 3:54:18 PM. Senators Huggins, French,
and Therriault and Representatives Croft, Anderson and Rokeberg
were present.
He noted that the last conference committee version of SB 130
that failed to be adopted on the House floor was distributed for
consideration, as well as a packet of amendments. He asked Mr.
Lisankie and Mr. Florsinger to come forward to answer questions.
He asked Representative Croft if he had any more amendments he
planned to propose.
REPRESENTATIVE ERIC CROFT said he might propose some conceptual
amendments.
3:55:34 PM
REPRESENTATIVE NORMAN ROKEBERG moved to adopt Amendment 1,
labeled R.5, which reads as follows:
24-GS1112\R.5
Bullock
A M E N D M E N T 1
TO: CCSSB 130
Page 52, lines 11 - 20:
Delete all material and insert:
"* Sec. 83. The uncodified law of the State of
Alaska is amended by adding a new section to read:
TRANSITION: MEDICAL SERVICES REVIEW COMMITTEE
STUDY, REPORTS, AND RECOMMENDATIONS. (a) The medical
services review committee appointed under
AS 23.30.095(j), as amended by sec. 34 of this Act,
shall proceed to study medical and related benefits
provided under AS 23.30 to determine the
appropriateness, necessity, and cost of the benefits.
(b) The medical services review committee
appointed under AS 23.30.095(j), as amended by sec. 34
of this Act, shall assist the Task Force on Workers'
Compensation established in sec. 77 of this Act and
make recommendations for medical procedure guidelines
to the task force, not later than December 1, 2005,
which may be included in the written findings and
proposed legislation under sec. 77(d)(4) of this Act."
REPRESENTATIVE CROFT objected.
REPRESENTATIVE ROKEBERG explained that Amendment 1 deletes
Section 83 on page 52 of the bill and replaces it with a new
section of uncodified law. It expands the charge of the medical
services review committee and requires it to make
recommendations for medical procedure guidelines to the task
force by no later than December 1, 2005. He pointed out that
Amendment 1 was recommended by Representative Kott. The House
believes that it is good tune-up because it would require the
medical service review committee to look at national guidelines
to give it direction for recommendations to the legislative task
force to contain medical costs. Also, the date certain tightens
up the delivery time for the group to report to the task force.
REPRESENTATIVE CROFT removed his objection.
CHAIR THERRIAULT announced that without further objection,
Amendment 1 was adopted.
3:57:46 PM
REPRESENTATIVE ROKEBERG moved to adopt Amendment 2, labeled
R.21. He noted R.21 is a revision of R.4.
CHAIR THERRIAULT clarified that Representative Rokeberg was
referring to R.4
REPRESENTATIVE ROKEBERG said Amendment 2 is merely a technical
correction: line 1 on R.4 should read Page 42, lines 19-21
rather than lines 19-20.
REPRESENTATIVE ROKEBERG moved to adopt Amendment 2 as corrected,
which reads as follows:
24-GS1112\R.4
Bullock
A M E N D M E N T 2
TO CCS SB 130
Page 42, lines 19 - 21:
Delete ", including an employee, an employer, a
representative of a person, a physician, or a medical
provider,"
REPRESENTATIVE CROFT objected.
REPRESENTATIVE ROKEBERG said his understanding is that the
intent when drafting the original bill was to make the
definition of "person" as specific in statute as possible
regarding whom it would apply to. Under the current law, the
definition of a "person" reads, "including an employee, an
employer, a representative of a person, a physician, or a
medical provider,". He told members the House Labor Commerce
Committee has discussed this issue many times and, according to
the legal drafting manual, the term "a person" is all-inclusive.
Therefore, the House recommends that language be deleted to
avoid clouding who would be included under the statute.
CHAIR THERRIAULT noted the impact of Amendment 2 is to return to
the current statutory language rather than to list who is
included and run the risk of excluding someone.
REPRESENTATIVE CROFT agreed that the word "including" could be
read as "limited to" and said he had no objection to Amendment
2.
CHAIR THERRIAULT announced that Amendment 2 was adopted without
objection.
4:01:23 PM
REPRESENTATIVE ROKEBERG moved to adopt Amendment 3, labeled R.3,
which reads as follows:
24-GS1112\R.3
Bullock
A M E N D M E N T 3
TO: CCS SB 130
Page 15, lines 10 - 11:
Delete "give written notice under oath, on a form
provided by the board, to the"
Insert "file a statement under oath with the
board, on a form prescribed or approved by the board,
to notify the"
Page 15, line 13, following "subsection.":
Insert "The notice of the election is effective
upon service to the administrator and the employer."
Page 15, line 15, following "the":
Insert "[GIVE WRITTEN NOTICE TO THE]"
REPRESENTATIVE CROFT objected.
REPRESENTATIVE ROKEBERG explained that Amendment 3 specifies
that the form required under .041(q) must conform to the new
section of statute so that when an individual waives his/her
future rights in exchange for a lump sum payment for retraining
benefits, that individual has filled out the proper form
developed by the board. He asked Mr. Lisankie to elaborate.
MR. PAUL LISANKIE, Division of Workers' Compensation, Department
of Labor and Workforce Development, said Representative
Rokeberg's explanation is essentially correct. Amendment 3 was
brought about by a concern that if someone gives up his or her
right to a benefit, the board should prescribe the form to make
sure it describes in full the benefits that are being given up
and the ramifications of doing so. He pointed out that Section
.041(q) already gives the board the authority to make that form.
Amendment 3 is consistent with current practice and just makes
it explicit in the new section.
SENATOR HOLLIS FRENCH asked about the difference between the
existing and proposed language.
CHAIR THERRIAULT asked, "Didn't we default to and copy the
language that appears elsewhere in the statutes?"
MR. LISANKIE thought that was correct.
SENATOR FRENCH asked if the change is a matter of style.
MR. LISANKIE said it could be described as that but some folks
expressed concern that the language in the bill doesn't require
the board to prescribe the specific form.
CHAIR THERRIAULT recalled when that concern was last discussed
and the new sentence to be inserted was created, the debate
centered on whether the board merely provided the form or
whether the board had control over the content of the form. He
said this language is just a restatement of language that
appears elsewhere in the statutes to clarify that the board
controls the form.
REPRESENTATIVE ROKEBERG added that he feels it is important that
the format of the documentation be consistent and also that an
employee who does not have counsel and waives that right is
fully apprised.
SENATOR FRENCH said from that standpoint, he believes lines 3
and 4 are a good addition. He asked if the sentence on line 7,
"The notice of the election is effective upon service to the
administrator and the employer" is the same as saying the choice
is now final.
MR. LISANKIE said he believes that is the intent.
4:05:57 PM
SENATOR FRENCH said there has been some discussion about having
board approval of that decision, since it is irrevocable. He
asked if the board could look at that form and determine whether
the choice to waive those rights is in the employee's best
interest.
MR. LISANKIE noted it says the election waiver of the unchosen
benefits is effective upon service to the parties; therefore it
is not reviewed [by the board] for content.
SENATOR FRENCH asked if that language is in current statute.
MR. LISANKIE said that sentence is in the final paragraph of
Section 18 on page 16 of the bill. He explained that the
previous section about what the board must include on that form
says it must conspicuously describe the benefit being waived,
but the board is not reviewing the substance of the decision at
that point.
SENATOR FRENCH said when [the Senate Judiciary Committee] last
heard this bill, it spent a fair amount of time talking about
whether a lawyer should review the decision to make sure it is a
good one. However, the committee decided as a whole that was
probably not a good idea, as it would require injecting a lawyer
into every single workers' compensation case. He said
nevertheless, the job relocation benefit is brand new and he is
concerned that an individual who chooses it may be making a
terrible decision. He expressed concern that the bill does not
require any board review of those decisions.
4:08:26 PM
MR. LISANKIE said what prevailed during that discussion is that
currently, reemployment benefits do not have to be approved. The
Legislature went to some effort in 2000 to reiterate that since
the benefit is a voluntary choice. The Legislature underscored
that the employee can explicitly waive it without further review
of the board.
SENATOR FRENCH pointed out that the job dislocation benefit on
lines 26-31 has dollar values assigned to different impairments
and no one knows if those values are good or not. He suggested
having the board review the job dislocation benefit elections
because that is a new area of law that may not serve workers
very well. He then said he is proposing a conceptual amendment.
REPRESENTATIVE CROFT asked if the board has the power, under
this amendment and this section, to prescribe the form on which
the employee waives these rights, but the board has no authority
to look at whether the employee's decision to do so is in the
employee's best interest.
MR. LISANKIE said that is correct.
REPRESENTATIVE CROFT asked if other boards that deal with
medical benefits or lost wages use a similar approach.
MR. LISANKIE said they do not. This is specific to vocational
rehabilitation-type benefits, which are referred to as re-
employment benefits under the workers' compensation act and were
amended into the act in 1988.
4:11:32 PM
REPRESENTATIVE CROFT asked if he would need board approval if he
wanted to waive future wages.
MR. LISANKIE affirmed that if he wanted to waive his right to a
benefit, other than vocational rehabilitation, he would need
board approval but that would be limited somewhat.
REPRESENTATIVE CROFT asked if that is the purpose of board
approval, meaning that the board is supposed to review a
decision made by an unrepresented injured worker to make sure
that decision is in the employee's best interest.
MR. LISANKIE said he believes that is the intention and is the
specific standard under Section .012.
4:12:10 PM
SENATOR FRENCH moved to amend Amendment 3. His conceptual
amendment would say that an election of job dislocation benefits
shall be reviewed by the board to determine whether that
election is in the employee's best interest.
He maintained the board could run under that regime for some
time and determine whether the job relocation benefit is a good
election for unrepresented employees since this is a brand new
provision of law. He repeated that there should be some
supervision of that election and the board is the appropriate
entity to do that.
CHAIR THERRIAULT objected to Senator French's amendment to
Amendment 3.
REPRESENTATIVE ANDERSON indicated that this could apply to a
bricklayer who hurt his back and is offered retraining, for
example, computer technician training. He asked if either the
costs of that training would be covered or the bricklayer could
take a lump sum payment.
MR. LISANKIE said that would be accurate under the existing
statute.
4:14:52 PM
REPRESENTATIVE ANDERSON said he thought the amendment favors the
employee because the employee signs the form under oath, which
lends seriousness to the signing of the document. He expressed
concern that requiring board review in every case could delay
cases and prevent a person who might need the money for another
purpose from getting it. He pointed out that the permanent fund
dividend application offers people the choice of depositing that
money into a college fund without oversight.
REPRESENTATIVE ROKEBERG asked Mr. Lisankie if DOLWD certifies
training programs or whether an individual can choose any
program of his/her choice.
MR. LISANKIE said DOLWD does not certify retraining programs. A
person who exercises a right to the benefit works with a
counselor to develop a plan for retraining. The parties are free
to agree to that plan or either party can object and ask the
reemployment administrator to determine whether the plan is
reasonable.
REPRESENTATIVE ROKEBERG asked if the bricklayer wanted to go to
culinary school but the counselor felt that profession would be
too arduous given the bricklayer's condition, the bricklayer
could waive his rights, take the lump sum and go to chef school.
4:18:15 PM
MR. LISANKIE said under the bill that person would be somewhat
limited. Right now, the worker can disagree with the proposed
plan and ask to settle the case for what the worker believes the
alternative value of that plan is. This amendment says the
worker would have to elect the benefit; if he chose not to elect
the benefit without even getting into the planning process, he
would get the alternative job relocation benefit. The benefit
would not be tied to the specific value of what he wanted to do.
If he chose the retraining plan, he would work with a counselor
to pursue it or he could choose not to seek retraining for any
reason. However, the choices do not have any dollar-for-dollar
relationship.
REPRESENTATIVE ROKEBERG thought one reason for the original
proposal was to reduce the workload of the board; yet requiring
the board to review every waiver would put another
administrative burden on the board.
REPRESENTATIVE CROFT said people who are injured on a job often
need money but retraining should be encouraged to get that
person employed again. He noted that within 30 days of the
injury, the employee would get a notification of eligibility,
including the [waiver] form offering a person who is 50 percent
disabled $13,000 right away if he signs the form. That person's
bills may be stacking up and he may be desperate. The problem is
that a lot of people will take the money and pay the bills but
then have no job.
4:23:41 PM
REPRESENTATIVE TOM ANDERSON said conversely, the bricklayer may
want to be retrained as a window washer. Under Senator French's
amendment, the board might determine that a vocation of window
washing could exacerbate his injury. He questioned how a person
would appeal that determination and what recourse the injured
employee would have if he disagreed with the board and preferred
to take a lump sump payment. He said the point of the bill is to
reduce the cumbersome parts of the system, protect the employer
and give employee a choice.
SENATOR FRENCH repeated that the job dislocation benefit is
brand new and he is very concerned that the dollar values may
not be set correctly and that the decisions being made by
injured workers are profound and will have long-lasting
implications. He believes broad oversight will benefit both
sides.
A roll call vote was taken. Representative Croft and Senator
French were in favor; Representative Anderson Representative
Rokeberg, Senator Huggins and Senator Therriault were opposed.
CHAIR THERRIAULT announced the amendment to Amendment 3 failed.
CHAIR THERRIAULT announced that without further objection to
Amendment 3, it was adopted.
4:26:33 PM
REPRESENTATIVE ROKEBERG moved to adopt Amendment 4, labeled R.2,
which reads as follows:
24-GS1112\R.2
Bullock
A M E N D M E N T 4
TO: CCS SB 130
Page 23, lines 1 - 29:
Delete all material.
Renumber the following bill sections accordingly.
Page 24, line 27:
Delete "a new subsection"
Insert "new subsections"
Page 25, following line 3:
Insert a new subsection to read:
"(o) Notwithstanding (a) of this section, an
employer is not liable for palliative care after the
date of medical stability unless the palliative care
is reasonable and necessary (1) to enable the employee
to continue in the employee's employment at the time
of treatment, (2) to enable the employee to continue
to participate in an approved reemployment plan; or
(3) to relieve chronic debilitating pain. A claim for
palliative care is not valid and enforceable unless it
is accompanied by a certification of the attending
physician that the palliative care meets the
requirements of this subsection. A claim for
palliative care is subject to the requirements of (c)
- (n) of this section. If a claim for palliative care
is controverted by the employer, the board may require
an evaluation under (k) of this section regarding the
disputed palliative care. A claim for palliative care
may be heard by the board under AS 23.30.110."
Page 46, following line 23:
Insert a new paragraph to read:
"(36) "chronic debilitating pain" means
pain that is of more than six months duration and that
is of sufficient severity that it significantly
restricts the employee's ability to perform the
activities of daily living;"
Renumber the following paragraphs accordingly.
Page 47, line 2, following "department":
Insert ";
(42) "palliative care" means medical care
or treatment rendered to reduce or moderate
temporarily the intensity of an otherwise stable
medical condition, but does not include those medical
services rendered to diagnose, heal, or permanently
alleviate or eliminate a medical condition."
Page 49, line 1:
Delete "sec. 65"
Insert "sec. 64"
Page 50, line 20:
Delete "sec. 53"
Insert "sec. 52"
Page 50, line 21:
Delete "sec. 53"
Insert "sec. 52"
Page 52, line 15:
Delete "sec. 34"
Insert "sec. 33"
Page 52, line 23:
Delete "sec. 65"
Insert "sec. 64"
Page 52, line 24:
Delete "sec. 76"
Insert "sec. 75"
Page 52, line 26:
Delete "Sections 34, 77, and 82(a)"
Insert "Sections 33, 76, and 81(a)"
Page 52, line 28:
Delete "Sections 1, 2, 53, and 83"
Insert "Sections 1, 2, 52, and 82"
Page 52, line 29:
Delete "secs. 85 and 86"
Insert "secs. 84 and 85"
SENATOR FRENCH objected.
REPRESENTATIVE ROKEBERG explained that Amendment 4 deletes
Section 32 in the conference committee substitute on page 23:
... thereby defaulting back to statutory language
between lines 2 and 21 that remains in the law. That's
replaced by insertions on page 25 that add the
sections in lines 12-22 on the first page of the
amendment. And what that does, fundamentally, Mr.
Chairman, is indicate that the palliative care comes
into play after the date of medical stability is
determined and is allowable for the provisions,
subsection 1 and 2, on 14 and 15, that enable the
employee to continue in the employment at the time of
treatment and to enable the employee to continue to
participate in an approved reemployment plan or - now
we've used the disjunctive word 'or' and created
subsection 3 to relieve chronic debilitating pain.
In the prior iteration of the conference committee
substitute, there was a cuff there and a concern,
particularly in the House, so we had debated the
impacts of having the language as a standalone
sentence. If you refer back to page 23, lines 27-29,
that may give rise to other difficulties and the fact
that that particular limitation would be entirely
discretionary on the part of the attending physician
and there would be no recourse to controvert it by the
employer. So the amendment clearly indicates that this
particular type of care is to be administered through
the board and there can be action to controvert it by
the employer there.
Additionally, to avoid confusion as to what the
impacts were, I refer the members of the committee to
the second page of the amendment, that is to say,
subsection 36 added the definition of 'chronic
debilitating pain' … following in the main definitions
from medical dictionaries - I believe I was shown a
copy of Mosby's. And then ... the amendment, on line
11, the definition of 'palliative care' is also
provided to help avoid any ambiguity as to what this
does.
REPRESENTATIVE ROKEBERG thought Amendment 4 overcomes
substantial debate and objections made on the House floor about
the [definition's] potential to give rise to additional cause of
action in unlimited palliative care by any attending physician.
This narrows that possibility substantially.
4:30:27 PM
CHAIR THERRIAULT clarified that the added language [Section 32]
on page 23 of the existing version will be removed, which would
retain the current statutory language. The language [from
Section 32] will be placed in a new section, which will contain
the two new definition sections.
REPRESENTATIVE CROFT maintained his objection to Amendment 4 and
said his concern is about the new subsection, primarily the new
definitions of chronic pain and palliative care. Regarding the
palliative care definition, he questioned how one would moderate
the intensity of an otherwise stable medical condition. He said
all of the discussion he has heard on palliative care centered
around pain, which is hard to evaluate. He proposed inserting,
between the word "of" and "an" [page 2, line 12], "pain caused
by". Line 12 would read [amendment to Amendment 4]:
"reduce or moderate temporarily the intensity of pain
caused by an otherwise stable medical condition,".
REPRESENTATIVE ANDERSON objected for the purpose of discussion.
He asked Mr. Lisankie if this definition was taken from the
Oregon statute.
MR. LISANKIE told members it was.
REPRESENTATIVE ANDERSON asked if Representative Croft's
amendment would change Alaska's palliative care definition so
that it is no longer identical to Oregon's definition.
MR. LISANKIE said any changes to this definition would be a
departure from Oregon's definition.
4:33:23 PM
REPRESENTATIVE ROKEBERG felt the amendment to Amendment 4 would
limit the scope of the definition too much as other prognoses or
medical conditions may give rise to the need for palliative care
besides pain. He maintained that a stiff knee that cannot be
cured might require ongoing care and would be eligible for
palliative care under the Oregon definition.
REPRESENTATIVE CROFT said his concern is that once the treatment
is described as palliative care it will be restricted to the
three listed reasons. He noted that Christopher Reeves was a
quadriplegic, which is considered to be a stable medical
condition. Even if he was not in pain, he needed certain care to
make his life better, such as bed turning. His wheelchair was
not improving his condition at all but it helped him with
mobility. He said the concern he has heard about the difficulty
of evaluating pain is the very reason he wants to limit
palliative care and the restrictions placed on it. He cautioned
against making the definition so broad as to limit what a person
can recover, i.e. a wheelchair. He then said diabetes is a
stable medical condition and a diabetic will not recover but the
diabetic's insulin should be covered. He further stated:
... if he [Christopher Reeves] was not in chronic
debilitating pain - back to that first section and I
don't know whether he was - is this treatment of
moving you around in bed and things going to help you
go back to work? I'm not going back to work. Is it
going to help you on a reemployment benefit? I'm not
going to be reemployed. I'm going to be in bed. Are
you in chronic debilitating pain? No. Then sorry, it's
palliative care and we don't cover it. We may be
wiping out whole classes of things that help people
live with their workplace injuries. I agree we need to
have a discussion about pain, but I hope we don't
accidentally do in this second conference committee
things that hurt whole areas that we don't know about.
CHAIR THERRIAULT indicated that the definition says, "diagnose,
heal, or permanently alleviate" so that if a person lost the
ability to walk, a wheelchair wouldn't permanently alleviate
that medical condition. He didn't believe a wheelchair would be
swept in under that definition.
4:37:49 PM
REPRESENTATIVE CROFT agreed the wheelchair will not alleviate a
medical condition but argued that it might make life better. He
cautioned that a doctor would be forced to say the wheelchair
would not affect the medical condition so it would not be
covered.
CHAIR THERRIAULT questioned how a person with a limited range of
motion who is not in pain would be affected by Representative
Croft's amendment.
REPRESENTATIVE CROFT said limiting one section to prevent
limiting the remedies in another section is tricky. He argued
that a tighter definition of "palliative care" would broaden the
injured workers general ability to be part of the compensation
system. He repeated that the concern about treatment for pain is
that pain is so hard to measure and because of suspected fraud.
He proposed limiting palliative care to the treatment of pain to
make it more defensible.
SENATOR FRENCH said in listening to Chair Therriault's concern,
Representative Croft was saying that a person with range of
motion problems would be covered by another portion of the
workers' compensation statute.
MR. LISANKIE agreed and said that condition would represent the
need for additional medical treatment to improve the condition;
therefore the person would not be medically stable yet. He noted
the onset of medical stability is the trigger for this
provision.
4:41:26 PM
REPRESENTATIVE ROKEBERG asked Mr. Lisankie to address the
definition of medical stability and how that would play into the
various scenarios members have raised. He also asked how Section
3 would apply when a person is not working or being retrained.
He wondered if a person could be unclassified as medically
stable and qualify for [palliative care] treatment.
MR. LISANKIE said in many cases, the injured person gets the
necessary medical treatment to improve the injury as much as
possible. At that point, the person is considered to be
medically stable. Under AS 23.30.095(21) (page 102 in green
book), "medically stable" turns on whether there is a reasonable
expectation that additional medical care or treatment will
objectively improve the condition. Therefore, treatment
continues until there is no reason to expect that additional
medical treatment will improve and stabilize the condition. That
would trigger, under the amendment, looking to treatment that is
palliative in nature - treatment that can improve the symptoms
but not the condition.
CHAIR THERRIAULT asked if treatment up to that point would be
curative treatment.
MR. LISANKIE said that is correct.
CHAIR THERRIAULT asked if once curative treatment has been
exhausted, palliative care applies.
MR. LISANKIE said that is correct, the medical care the person
received has made him as healthy as possible. Palliative care
could relieve pain but will not make the underlying condition
improve.
4:45:12 PM
REPRESENTATIVE ANDERSON asked, using the range of motion
example, whether, with a specific treatment, the range of motion
could be temporarily improved through massage for example. But
if the person suffers no pain, the person would not receive any
treatment if the amendment to Amendment 4 passes.
MR. LISANKIE said that is correct. A layman might refer to that
situation as stiffness rather than pain.
REPRESENTATIVE ANDERSON said he feels the amendment to Amendment
4 will hurt the worker so he plans to reject it.
A roll call vote was taken. Representative Croft and Senator
French were in favor; Representative Anderson Representative
Rokeberg Senator Huggins and Senator Therriault were opposed.
CHAIR THERRIAULT announced that the amendment to Amendment 4
failed. He then asked if there was further objection to
Amendment 4.
SENATOR FRENCH said yes and asked how long this definition has
been in Oregon law.
MR. DAVE FLORSINGER, Assistant Attorney General, Department of
Law, said he believed the Oregon statute was adopted in 1990.
REPRESENTATIVE ANDERSON said his research shows a major
contributing cause provision has been in effect for about 10
years in Oregon.
REPRESENTATIVE ROKEBERG asked, using the Christopher Reeves
example, what would happen to an injured employee with a chronic
medical condition that does not give rise to pain under
Amendment 4.
4:48:52 PM
MR. LISANKIE said the definition is broader than just pain so he
doesn't know how it would apply to someone in that situation.
REPRESENTATIVE ROKEBERG referred to subsection (3) on page 1,
line 16, which is the third element of a three-stage test to
qualify for palliative care. He questioned whether workers'
compensation benefits would flow to a person with a long-term
disability but no proven chronic debilitating pain. He added
that even though there might be 45 days of no change, a
condition of medical stability would be presumed.
MR. LISANKIE said that is a valid point. He explained that if
one takes that situation as the worst-case scenario, the person
might not qualify for further palliative care.
REPRESENTATIVE ROKEBERG asked if subsection (3) could be
expanded to include a person in that type of situation.
CHAIR THERRIAULT announced an at-ease.
5:10:03 PM
REPRESENTATIVE ROKEBERG moved to rescind the committee's action
to adopt the amendment to Amendment 4.
CHAIR THERRIAULT announced that without objection, the amendment
to Amendment 4 was before the committee: [insert on page 2, line
12, the words, "pain caused by" in between the words "of" and
"an"].
CHAIR THERRIAULT announced that without objection, the amendment
to Amendment 4 was adopted.
CHAIR THERRIAULT asked if there was objection to adopting
Amendment 4 as amended.
REPRESENTATIVE CROFT objected and said although Amendment 4 was
improved, it still contains a lot of bad provisions.
5:11:53 PM
A roll call vote was taken. Representative Rokeberg,
Representative Anderson, Senator Huggins and Senator Therriault
voted in favor; Representative Croft and Senator French were
opposed.
CHAIR THERRIAULT announced that Amendment 4 as amended was
adopted.
REPRESENTATIVE CROFT moved to adopt Amendment 5, labeled R.17,
which reads as follows:
24-GS1112\R.17
Bullock
A M E N D M E N T 5
TO: CCS SB 130
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 3. AS 22.05.010 is amended by adding a new
subsection to read:
(f) The commissioner of labor and workforce
development or a party in a workers' compensation
matter in which an appealable decision has not been
entered by the superior court, may file an original
action in the supreme court to resolve a conflict
between two final superior court decisions on a legal
issue relating to workers' compensation, if neither of
the superior court decisions has been appealed to the
supreme court and the time for taking the appeals has
expired. The opinion of the supreme court in an action
filed under this subsection is prospective only and
does not affect the outcome of a superior court
decision that is final before the date of the opinion
by the supreme court. The supreme court shall issue
an opinion under this subsection
(1) finding that no conflict exists;
(2) affirming the decision of one superior
court on the legal issue presented; or
(3) adopting an interpretation different
from that in either superior court decision."
Renumber the following bill sections accordingly.
Page 48, following line 28:
Insert a new bill section to read:
"* Sec. 76. AS 22.05.010(f) is repealed January 1,
2007."
Page 49, line 1:
Delete "sec. 65"
Insert "sec. 66"
Page 50, line 20:
Delete "sec. 53"
Insert "sec. 54"
Page 50, line 21:
Delete "sec. 53"
Insert "sec. 54"
Page 50, line 26:
Delete "sec. 8"
Insert "sec. 9"
Page 50, line 27:
Delete "sec. 8"
Insert "sec. 9"
Page 51, line 10:
Delete "sec. 8"
Insert "sec. 9"
Page 52, line 8:
Delete "sec. 8" in both places
Insert "sec. 9" in both places
Page 52, line 15:
Delete "sec. 34"
Insert "sec. 35"
Page 52, line 23:
Delete "sec. 65"
Insert "sec. 66"
Page 52, line 24:
Delete "sec. 76"
Insert "sec. 78"
Page 52, line 26:
Delete "Sections 34, 77, and 82(a)"
Insert "Sections 35, 79, and 84(a)"
Page 52, line 28:
Delete "53, and 83"
Insert "54, and 85"
Page 52, line 29:
Delete "secs. 85 and 86"
Insert "secs. 87 and 88"
CHAIR THERRIAULT objected.
5:12:46 PM
REPRESENTATIVE CROFT explained that Amendment 5 is partially
conceptual; he is proposing to eliminate the appeals commission
and allow the DOLWD commissioner or anyone hearing a workers'
compensation case to ask for a ruling from the supreme court
when decisions conflict. He said the creation of an appeals
commission has been based on an allegation of conflicting court
or board decisions, which has never been proven. He does not see
conflicting opinions to be a significant problem but, if they
are, the bill should include a procedure to fix that. He argued
that the current proposal uses political appointees, is costly,
and adds a layer of bureaucracy based on unproven
justifications.
5:14:22 PM
CHAIR THERRIAULT asked if Amendment 5 would request the supreme
court to pick and choose between opinions and almost issue
advisory opinions.
REPRESENTATIVE CROFT replied, "Almost, but there are various
ways that that happens now." He explained that questions of
state law can be certified back to the state court, so that a
federal court could certify a question back to the Alaska
Supreme Court if a case turned on how Alaska law would apply.
Precedent has been established for this procedure. He noted that
Amendment 5 also gives that ability to the DOLWD commissioner to
make the request. He pointed out that this governor said that is
part of his concern so Amendment 5 provides a process to clean
up conflicting decisions.
5:15:58 PM
CHAIR THERRIAULT asked if Amendment 5 would delete the appeals
commission.
REPRESENTATIVE CROFT said yes but that is not in the amendment.
REPRESENTATIVE ROKEBERG asked if Representative Croft made a
conceptual amendment to Amendment 5 to delete the appeals
commission.
5:16:33 PM
REPRESENTATIVE CROFT said he did.
CHAIR THERRIAULT said he thought members understood that
Amendment 5 would also delete the appeals commission section.
SENATOR FRENCH asked that Mr. Wooliver address alternatives to
an appeals commission that would be inexpensive yet provide the
surety and swiftness that some ascribe to the appeals
commission.
MR. LISANKIE interjected to say that inconsistent decisions are
not the only problem that needs to be addressed. Another major
problem is that no binding precedent is being established short
of the published opinions of the Alaska Supreme Court under the
current system. Amendment 5 does not address the lack of any
binding precedent that can be generally applied and relied upon.
Superior court opinions are not binding beyond the parties
involved.
5:18:29 PM
SENATOR FRENCH asked Mr. Lisankie if he is conceding that he has
not been able to produce any hard evidence of inconsistent panel
decisions.
MR. LISANKIE said he was not conceding that and he was not aware
that he was required to do so.
SENATOR FRENCH said he asked to see two inconsistent decisions
from either the panel or the superior court last year. He has
never been given any.
MR. LISANKIE said that strikes him as unusual because it is
unlikely that 30 or 40 judges and numerous panels always agree.
SENATOR FRENCH asked Mr. Lisankie if he is saying he imagines
that inconsistent decisions exist.
MR. LISANKIE said he doesn't rely on his imagination when he
testifies.
CHAIR THERRIAULT asked Mr. Wooliver to address Senator French's
question.
SENATOR FRENCH clarified that he wanted to know if anyone has
explored with the court system the possibility of assigning
workers' compensation appeals cases to a single judge or to a
pool of three judges.
MR. DOUG WOOLIVER, administrative attorney for the Alaska Court
System, said that no one has asked the court to look into that
possibility, but it would be willing to do so.
SENATOR FRENCH asked Mr. Wooliver to comment on the efficacy of
that idea. He felt that 30 cases per year would be a light
caseload.
5:22:14 PM
MR. WOOLIVER clarified that superior court judges have on
average 600 open cases each year; that number does not represent
new cases filed each year. He did not know whether Senator
French's proposal would work or not.
SENATOR FRENCH suggested the task force ask the presiding judge
to participate and discuss that idea.
MR. WOOLIVER said the court system would encourage such an
invitation.
CHAIR THERRIAULT said that would not get around the problem that
superior court decisions are not published or precedential.
MR. WOOLIVER said that is true.
SENATOR FRENCH said the court could be asked to publish its
opinions. He added that most people don't overrule themselves;
so three individuals publishing opinions over time would
establish a consistent body of law.
CHAIR THERRIAULT asked if that would change when new judges were
appointed.
SENATOR FRENCH said that would occur with an appeals commission
or when the supreme court overrules the commission's decisions.
REPRESENTATIVE ANDERSON thought it was unfair to ask Mr.
Wooliver to compare the precedential value of opinions by the
superior court versus the supreme court. Mr. Wooliver's argument
has been based on the costs associated with using the superior
court versus the supreme court. He maintained that in his mind,
the precedential value of the commission versus the superior
court is far better. He said the three-judge idea is different.
5:25:39 PM
CHAIR THERRIAULT directed members to keep the discussion to
Amendment 5, which does not propose a three-judge panel.
REPRESENTATIVE ROKEBERG asked how long it takes a judge to go
through an entire proceeding in which a superior court judge
would write an opinion in a civil case.
MR. WOOLIVER said he looked into that question for workers'
compensation cases last year. From the time one files with the
superior court until an opinion is issued takes less than a year
on average. The supreme court usually takes about 20 months for
those same cases.
REPRESENTATIVE ROKEBERG said he learned from testimony that 30
or 34 cases per year are appealed to the superior court now;
therefore the new system would create a lighter caseload. He
asked if superior court judges are issuing opinions on civil
cases at a rate of one per week or more.
5:27:24 PM
MR. WOOLIVER said such statistics are available but he does not
have them at this time.
REPRESENTATIVE ROKEBERG asked if the court system has data on
the number of opinions produced by superior court judges
annually.
MR. WOOLIVER said he did not know.
CHAIR THERRIAULT maintained his objection based on the fact that
a superior court judge approached him during the Alaska Bar
Association Convention and asked him to [support an appeals
commission] because the superior court does not do enough
workers' compensation cases to develop the necessary expertise.
REPRESENTATIVE CROFT said Amendment 5 would save $1.5 million.
In addition, he fears that the political appointees to the
commission might represent a philosophy that some members
prefer; however governors change. He feels the [appeals
commission] is a poor, short-term proposal that members will
live to regret. That can be avoided by using the current
procedure to meet the objection.
5:29:22 PM
CHAIR THERRIAULT commented that the administrative law judge
would select the person who oversees this function and
participates in all appeals, which somewhat mitigates the
concern about political appointees.
SENATOR FRENCH asked if administrative law judge appeals go to
the superior court.
CHAIR THERRIAULT said they do.
A roll call vote was taken. Representative Croft and Senator
French were in favor; Representative Anderson Representative
Rokeberg Senator Huggins and Senator Therriault were opposed.
CHAIR THERRIAULT announced that Amendment 5 failed.
5:31:12 PM
REPRESENTATIVE CROFT moved to adopt Amendment 6 and explained
that it is a conceptual amendment that will delete the
provisions in the bill that freeze physicians' rates and instead
freeze insurance rates for workers' compensation at their
December 31, 2004 level.
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE CROFT said he is uncomfortable allowing
government to set rates. It has never worked well for rent or
price control. However, if the state is going to tell
individuals what they can charge, he believes it is preferable
to go to the root of the problem - insurance rates. Physicians'
rates were set for Medicaid and Medicare coverage and that has
led to the refusal by some physicians to take those patients.
Amendment 6 is his attempt to substitute this intrusion on the
market place by addressing the direct problem of insurance rates
and freezing those rates for a period of time. He expressed
concern that once a cap on doctors' rates is put in law, it will
never come out. He has talked to doctors groups about this being
a dangerous intrusion of government into the private sector.
5:35:18 PM
REPRESENTATIVE ANDERSON asked Mr. Lisankie if the presumption is
that physicians won't leave the state if their rates are frozen
at a reasonable level but that insurance companies will leave if
their rates are frozen.
MR. LISANKIE said the Division of Insurance has grave concerns
about maintaining an insurance market if insurance companies'
rates are frozen.
SENATOR FRENCH said he would add a conceptual addition to
Amendment 6 to say that insurance rates could go below the
December 31, 2004 rate. He referred to a chart distributed in
the Senate Labor and Commerce Committee that showed that 1992
workers' compensation rates were as high as they are now, so the
current rates are not higher than they've ever been. Due to
intense competition, the state saw a great decade of declining
rates.
REPRESENTATIVE ROKEBERG pointed out that the legislature stepped
in and reformed the system in 1988.
5:38:00 PM
SENATOR FRENCH said his point is that he wants to make sure
rates aren't frozen at their high and are allowed to drift down.
CHAIR THERRIAULT clarified that the amendment to Amendment 6
says the intent is not to freeze the rates at the high level and
prevent them from going down.
CHAIR THERRIAULT announced that without objection, the amendment
to Amendment 6 passed.
CHAIR THERRIAULT said the motion before members was whether to
adopt Amendment 6 as amended.
REPRESENTATIVE ROKEBERG expressed concern that the state only
has 3 primary underwriters now. Amendment 6 speaks to their
solvency and the availability of insurance in the state so he
finds it objectionable.
A roll call vote was taken. Representative Croft, Representative
Anderson and Senator French voted in favor; Representative
Rokeberg, Senator Huggins and Senator Therriault were opposed.
CHAIR THERRIAULT announced that Amendment 6 as amended failed to
be adopted.
5:40:15 PM
CHAIR THERRIAULT moved to adopt Amendment 7, labeled R.1, which
reads as follows:
24-GS1112\R.1
Bullock
A M E N D M E N T 7
TO: CCS SB 130
Page 10, following line 7:
Insert a new bill section to read:
"* Sec. 9. AS 23.30.010 is repealed and reenacted
to read:
Sec. 23.30.010. Coverage. (a) Except as
provided in (b) and (c) of this section, compensation
is payable under this chapter in respect of disability
or death of an employee.
(b) Compensation and benefits under this chapter
are not payable for aggravation, acceleration, or
combination with a preexisting condition unless the
employment is the major contributing cause of the
disability or death of the employee or the employee's
need for medical treatment.
(c) Compensation and benefits under this chapter
are not payable for mental injury caused by mental
stress, unless it is established that (1) the work
stress was extraordinary and unusual in comparison to
pressures and tensions experienced by individuals in a
comparable work environment; and (2) the work stress
was the predominant cause of the mental injury. The
amount of work stress shall be measured by actual
events. A mental injury is not considered to arise
out of and in the course of employment if it results
from a disciplinary action, work evaluation, job
transfer, layoff, demotion, termination, or similar
action taken in good faith by the employer."
Renumber the following bill sections accordingly.
Page 46, lines 3 - 13:
Delete ""injury" does not include aggravation,
acceleration, or combination with a preexisting
condition, unless the employment is the major
contributing cause of the disability or need for
medical treatment, and does not include mental injury
caused by mental stress, unless it is established that
(A) the work stress was extraordinary and unusual in
comparison to pressures and tensions experienced by
individuals in a comparable work environment, and (B)
the work stress was the predominant cause of the
mental injury; the amount of work stress shall be
measured by actual events; a mental injury is not
considered to arise out of and in the course of
employment if it results from a disciplinary action,
work evaluation, job transfer, layoff, demotion,
termination, or similar action, taken in good faith by
the employer;"
Insert "["INJURY" DOES NOT INCLUDE MENTAL INJURY
CAUSED BY MENTAL STRESS UNLESS IT IS ESTABLISHED THAT
(A) THE WORK STRESS WAS EXTRAORDINARY AND UNUSUAL IN
COMPARISON TO PRESSURES AND TENSIONS EXPERIENCED BY
INDIVIDUALS IN A COMPARABLE WORK ENVIRONMENT, AND (B)
THE WORK STRESS WAS THE PREDOMINANT CAUSE OF THE
MENTAL INJURY; THE AMOUNT OF WORK STRESS SHALL BE
MEASURED BY ACTUAL EVENTS; A MENTAL INJURY IS NOT
CONSIDERED TO ARISE OUT OF AND IN THE COURSE OF
EMPLOYMENT IF IT RESULTS FROM A DISCIPLINARY ACTION,
WORK EVALUATION, JOB TRANSFER, LAYOFF, DEMOTION,
TERMINATION, OR SIMILAR ACTION, TAKEN IN GOOD FAITH BY
THE EMPLOYER;]"
Page 49, line 1:
Delete "sec. 65"
Insert "sec. 66"
Page 50, line 20:
Delete "sec. 53"
Insert "sec. 54"
Page 50, line 21:
Delete "sec. 53"
Insert "sec. 54"
Page 52, line 15:
Delete "sec. 34"
Insert "sec. 35"
Page 52, line 23:
Delete "sec. 65"
Insert "sec. 66"
Page 52, line 24:
Delete "sec. 76"
Insert "sec. 77"
Page 52, line 26:
Delete "Sections 34, 77, and 82(a)"
Insert "Sections 35, 78, and 83(a)"
Page 52, line 28:
Delete "Sections 1, 2, 53, and 83"
Insert "Sections 1, 2, 54, and 84"
Page 52, line 29:
Delete "secs. 85 and 86"
Insert "secs. 86 and 87"
CHAIR THERRIAULT explained that Amendment 7 deals with the
definition of injury section of the bill. It addresses the issue
raised during the House floor debate about whether the current
definition in the bill creates a separate tort action of
possible claims outside of the coverage of workers'
compensation. He continued:
We are going to take out the language that tries to
deal with that by just modifying the definition of
injury and we created this (b) and (c) section.... It
was my understanding from the argument that was made
on the floor that if, in fact, the bill had the
possibility of creating that separate tort action,
then our current statutes also had language that could
potentially create that separate tort action under
that particular interpretation with regard to mental
stress. And so this amendment has been drafted to deal
with - the mental stress is the (c) section there on
page 1 and the (b) section talks about the major
contributing cause - by taking that out and defining
that if you have an action that's not the major
contributing cause, it doesn't open up a separate
action for tort. So there's the tort issue and there's
the policy call on the major contributing cause
limitation.
5:42:02 PM
REPRESENTATIVE ANDERSON added that Amendment 7 would delete the
exclusions for pre-existing and mental injuries from AS
23.33.095 on page 45 of the bill and place those two categories
in a consolidated area under a coverage section, AS 23.30.010.
MR. FLORSINGER said the idea was to take those two categories
out of the definition of "injury" and describe them as a
limitation of benefits available under the act rather than a
limitation of the term "injury" used throughout the act.
REPRESENTATIVE CROFT thought Amendment 7 was an attempt "to do
the wrong thing better." He was unsure whether it would be
constitutional because a remedy must be provided. He noted that
a representative sustained a neck injury from a sledgehammer
while on the job and asked if he would have no remedy if the
same injury happened again.
5:44:22 PM
MR. FLORSINGER said the second employer would pay for the second
sledgehammer injury. If, somewhere down the line, perhaps at the
stage of medical stability, the question of whether the second
injury was a major contributing cause for the ongoing need of
disability or medical benefits, the case would be presented to
physicians for testimony and then to the board. The physicians
would be asked whether the [second] sledgehammer injury or the
preexisting condition was the major cause. If the second injury
was the cause, the second employer would continue to pay. If the
first injury was the major contributing factor, the second
employer could seek reimbursement from the first employer, which
occurs under existing law.
REPRESENTATIVE CROFT asked if the second employer could go after
the first employer under this amendment.
MR. FLORSINGER said yes.
REPRESENTATIVE CROFT noted that Amendment 7 says compensation
and benefits are not payable if [the first accident] is a
substantial factor but not the major contributing cause.
MR. FLORSINGER replied the court addressed a case where the
employee told the board he couldn't work because he needed more
medical benefits, and the employer said the accident was not the
major contributing cause and pointed to the earlier injury as
the cause. The court said when the only dispute is between two
insurers, the most recent insurer is required to pay until a
final determination is made as to the cause of each. The issue
is one of fairness between the two insurers.
5:48:11 PM
CHAIR THERRIAULT clarified that the issue is about fairness
between the employers or their insurers.
REPRESENTATIVE ANDERSON said on May 15 staff from the DOL civil
division tried to answer some of these questions. The first
question posed was whether, under current law, an employee who
suffers a work related injury at employer 1 and later suffers a
related injury at employer 2, would receive workers'
compensation benefits. The answer was yes. The answer was also
yes under Amendment 7. He said regarding an employer's duty to
pay workers' compensation benefits under the current law, the
DOL memo reads:
If an employee suffers a work-related injury at
employer 1, and later suffers a related injury at
employer 2, which employer pays the workers'
compensation benefits?
He said the answer is employer 2. He read, "... and if the
injury for which the compensation is sought is aggravated,
accelerated or combined with the first injury and is substantial
- that's the substantial factor, but under this bill, if the
same scenario occurs, employer 2 will pay if the injury for
which compensation is sought, aggravated, accelerated or
combined is the major contributing cause." He thought that was
the difference. He added that if the two employers were in
dispute over who is responsible, employer 2 would be responsible
during that time period under either standard.
CHAIR THERRIAULT asked Representative Croft if his concern about
Amendment 7 is that the second employer would escape any
coverage if a second injury aggravated a preexisting injury. He
asked Mr. Lisankie if that is the intent of the division.
MR. LISANKIE said in the scenario where a prior work injury is
followed by a second injury, the situation would be as described
by Mr. Florsinger.
5:51:02 PM
SENATOR FRENCH asked what would happen if there was no first
insurer, or the preexisting injury was not related to the
workplace, and the workplace injury is a substantial factor but
not a major contributing cause of the disability.
MR. LISANKIE said if a person was hurt at home and suffered an
injury at the workplace that was not a substantial factor, no
workers' compensation would be available. He said this raises
the bar.
SENATOR FRENCH said it would result in fewer claims.
MR. LISANKIE said fewer claims would be paid for people whose
predominant reason for the injury occurred outside of the
workplace.
SENATOR FRENCH argued that now it is paid if [the workplace
injury] is a substantial factor and that standard has been in
place since 1980.
MR. LISANKIE agreed that came from a court interpretation.
SENATOR FRENCH expressed concern that Amendment 7 will affect a
30-year doctrine to raise the bar and let a few injured workers
go home with nothing.
MR. LISANKIE countered, "Or ... let a few employers not pay for
an injury that was predominantly caused at the worker's home."
SENATOR FRENCH said if a substantial factor represents 25
percent and a major contributing cause represents 51 percent,
anyone with an injury that falls in the range between 25 and 51
percent would not be covered.
MR. LISANKIE indicated a health insurer might pay.
REPRESENTATIVE ROKEBERG read from AS 23.30.055(d):
When payment of temporary disability benefits is
converted solely on the grounds that another employer
or another insurer of the same employer may be
responsible for all or a portion of benefits, the most
recent employer or insurer is party to the claim and
who may be liable shall make the payments during
dependency of the dispute.
He said lack of coverage would never be a problem when one or
more employers are involved. The issue then becomes the
prevailing employer in any cause of action. He said regarding a
non-work related injury, "a substantial factor" has been
established in case law and this is an attempt to statutorily
raise that to a major contributing cause. He believed the
coverage between an employer and employer would not change. He
said how non-work related injuries fit into the causal
allocation and awards is a major problem in the state right now.
He asked Mr. Florsinger the name of the doctrine that applies to
last employers.
5:55:40 PM
MR. FLORSINGER said it is the Last Injurious Exposure Doctrine.
REPRESENTATIVE ROKEBERG said now, the current employer gets
stuck with the whole bill, whether right or wrong.
CHAIR THERRIAULT asked if he had a preexisting condition, such
as an arthritic knee, and banged his knee at work so that he
could not stand, whether he would get workers' compensation
coverage to repair the knee to its pre-injury condition but not
to replace his knee.
MR. LISANKIE said he thought that is what Mr. Florsinger was
getting to.
CHAIR THERRIAULT said the assumption that he would get no
coverage because his knee was previously injured is incorrect.
MR. FLORSINGER said he couldn't imagine a doctor saying the
banged knee was not a major contributing cause. He said the
cases where this often comes into play involve a person with
carpal tunnel syndrome with 4 or 5 employers. The most recent
employer may have employed that person for two weeks yet may
have to pick up the whole tab even though the two-week job was
not the major contributing factor. Under Amendment 7, if that
employee ran a power wrench for five years, which was the major
cause of the carpal tunnel syndrome, that employer would be
responsible for picking up the benefit.
CHAIR THERRIAULT asked if that employer would pick up the cost
of all of the benefits or a portion of them.
5:59:03 PM
MR. FLORSINGER said once the most recent employer proved the
major contributing cause, the earlier employer would have to
pick up the cost.
REPRESENTATIVE CROFT asked if a person had several jobs that all
contributed to the employee's carpal tunnel syndrome and each
employer was considered to be a substantial cause but none rose
to 51 percent, the employee would get no coverage.
MR. FLORSINGER said he is not sure where the 51 percent fits
into the analysis but, if three employers were involved, the one
that was 34 percent responsible would pay.
REPRESENTATIVE CROFT asked if he is saying that predominant
means compared to all others or predominant in an absolute
sense. He maintained that in the analogy Mr. Florsinger gave, a
number of employers could be substantial causes but none would
be predominant, leaving the employee without coverage. He
cautioned that one employer might be 5 percent responsible while
all others are 4 percent responsible.
6:02:00 PM
MR. FLORSINGER was skeptical that percentages might be applied
at all. In practice, a physician would review the medical
records and, by a preponderance of the evidence, determine which
injury was the major contributing cause.
REPRESENTATIVE CROFT said using the [carpal tunnel syndrome]
analogy, a physician might not be able to determine the major
contributing cause if the employee worked at two jobs for an
equal length of time. He asked if the point of this provision is
to save money in that type of situation.
MR. FLORSINGER said it could also be viewed as a way to
determine which employer is most responsible for the disability
and medical treatment benefits.
REPRESENTATIVE CROFT asked if a prior claim has been settled and
the employee reinjures himself, the [first] employer is off the
hook.
MR. FLORSINGER thought that would be correct from the disability
standpoint, but, in general, medical claims are not settled.
REPRESENTATIVE CROFT asked if the employee was unable to work,
his medical bills would be paid but he would not get any
compensation because the condition is a combination of two
injuries. He maintained that the problem with this new system is
that a person could fall through the cracks.
MR. FLORSINGER replied in a situation where the employee
previously settled a claim, the employee's condition would be
similar to a preexisting condition that might have happened
while, for example, gardening. The only difference is that the
employee was paid for that injury.
6:05:23 PM
REPRESENTATIVE ANDERSON indicated that many people feel
passionate about this issue and it is not about employee versus
employer. The motive behind Amendment 7 is not to burn someone's
benefits. He said he applauds Amendment 7 in many ways with the
exception that he has heard doctors express concern about the
definition of "major" in "major contributing cause," who makes
that decision, and whether the right to appeal exists. He
questioned how a medical provider could accurately determine the
percentage. He said that question could be the deal-breaker for
physician support of Amendment 7.
MR. LISANKIE said he has given that question a lot of thought.
He looked at a follow-up study done by the State of Oregon. That
study included a poll of physicians in Oregon. His impression
was that the physicians found this standard to be workable but
it took some education of physicians involved in the process to
get comfortable with it.
REPRESENTATIVE ROKEBERG asked if, under current law, an
employee's injuries are all work related, he would receive
benefits no matter what.
MR. LISANKIE said that is correct.
REPRESENTATIVE ROKEBERG asked what happens under current law if
an employee has a non-work related sports injury among other
work related injuries.
MR. LISANKIE said the court has clearly said that unless the
work is not even a substantial factor, the employment bears the
entire responsibility for the disability and medical care.
REPRESENTATIVE ROKEBERG asked, "...If there's say a non-work
related preexisting condition and there's just a substantial
factor - maybe if we use Senator French's 24 percent or 26
percent or whatever the cut line is, does that mean the employer
is going to be on the hook for that entire benefit?"
MR. LISANKIE said yes, based on his recollection of the court
cases.
6:09:56 PM
REPRESENTATIVE ROKEBERG asked how Amendment 7 would solve that
situation and how it would work in the converse.
MR. LISANKIE said that would be the difference.
REPRESENTATIVE ROKEBERG asked, as a matter of policy, whether
the board ever apportions what it believes to be a percentage of
liability.
MR. LISANKIE said Alaska statute contains no provision that
allows apportionment.
REPRESENTATIVE ROKEBERG asked why not.
MR. LISANKIE said it would be a grueling experience to precisely
parse out the percentages of liability. The court has shied away
from doing so.
CHAIR THERRIAULT asked how long Oregon's similar provision has
been in place.
MR. LISANKIE said it was first adopted around 1990 and amended
in 1995.
REPRESENTATIVE ROKEBERG asked if Oregon rewrote its entire body
of workers' compensation law at one time or whether it made
changes in a piecemeal fashion.
MR. LISANKIE said it added a piece here and there over a
significant period of time.
REPRESENTATIVE CROFT asked if Amendment 7 was modeled after the
Oregon law.
6:12:33 PM
MR. FLORSINGER thought that Oregon's law contains the "major
contributing cause" provision.
REPRESENTATIVE CROFT asked if, under Oregon law, an employer is
considered to be a substantial factor but not a major
contributing cause and therefore not covered by workers'
compensation, the employee could sue the individual employer
under tort liability.
MR. FLORSINGER said it is his understanding that a case was
based on a provision in Oregon's constitution; Alaska's
constitution does not have a similar provision.
REPRESENTATIVE CROFT said an employee could sue in Oregon if a
workplace injury was deemed to be a substantial factor but not a
major contributing factor.
MR. FLORSINGER said he was not comfortable answering because he
is not up to speed on that subject.
At 6:15 p.m., CHAIR THERRIAULT announced the committee would
take a one-hour break.
9:12:18 PM
CHAIR THERRIAULT called the meeting back to order. All members
were present.
CHAIR THERRIAULT moved to adopt an amendment to Amendment 7
labeled R.23, which reads as follows:
24-GS1112\R.23
Bullock
A M E N D M E N T 7
OFFERED IN CONFERENCE BY SENATOR THERRIAULT
No. 7 to CCS SB 130
Page 1, line 4, of Amendment No. 7:
Delete "and (c) of this section"
Insert "of this section regarding a preexisting
condition, and (c) of this section regarding a mental
injury caused by mental stress"
Page 1, line 10, of Amendment No. 7, following
"treatment.":
Insert "Determining the major contributing cause
requires the evaluation of the relative contribution
of different causes of disability or death of the
employee or the employee's need for medical treatment
and finding the cause that is the primary cause."
He explained that Amendment 7 is somewhat subjective as to
the interpretation that no coverage is available if a major
contributing cause cannot be determined. He said his intent
is to clarify that:
...the (b) limitation [in Amendment 7] is only [for]
those things where it's an aggravation - it's not a
new injury or, if in the aggravation, acceleration
there is in fact a new injury - you bump the arthritic
knee and in doing so there's a new gash or something -
that that is going to be covered by the second
employer.
He asked Mr. Lisankie to speak to lines 6-9 of the amendment to
Amendment 7.
SENATOR FRENCH objected to amending Amendment 7.
MR. FLORSINGER explained that the language on lines 7-9 was
taken from an Oregon case, which attempted to define "major
contributing cause." The Oregon statute differs from Alaska
statute, which talks about cause as cause of disability or need
for medical benefits. A portion of that language was drafted so
that it will relate to Alaska statute in those terms and uses
the term "primary cause."
SENATOR FRENCH removed his objection.
CHAIR THERRIAULT announced that Amendment 7 was amended and
before the committee.
REPRESENTATIVE ANDERSON said he does not support Amendment 7 at
this time because too many folks in the medical community feel
that empirical evidence is lacking to show that this works for
the employee or from a health care standpoint. He pointed out
that only 35 doctors were contacted and 11 responded in the
Oregon follow-up study. His other concern is that an incredible
onus is placed on physicians right now and, with the goal of
trying to get workers back to work and the fraud aspect, he
would rather direct the medical review committee to recommend a
solution to the legislature at the end of the year. He said if
the amendment fails, there's one portion that has to be
reinserted or deleted.
REPRESENTATIVE ANDERSON noted that another amendment would have
to be made to Amendment 7 to delete the language on page 1,
lines 1-20, and page 2 and 3 and renumber accordingly. The
result would be that the concept should be sent through the
medical review committee to the task force.
CHAIR THERRIAULT pointed out the (c) section fixes the issue of
a secondary tort if such a problem exists in current Alaska
statute. He asked Representative Rokeberg if he is just trying
to delete the (b) section.
REPRESENTATIVE ROKEBERG said his intent is to delete the (b)
section and insert it into the task force and make conforming
changes as necessary.
CHAIR THERRIAULT clarified that Representative Rokeberg wants to
delete the major contributing cause section and have it referred
to the task force for consideration.
REPRESENTATIVE ANDERSON noted that is on page 1, lines 7 -10 of
Amendment 7, subsection (b) of AS 23.30.010.
CHAIR THERRIAULT objected.
SENATOR FRENCH said if the intention is to remove "major
contributing cause," a definition section on page 46 uses the
exact same language. He wondered whether the intention is to
maintain the workers' compensation laws under the substantial
factor standard or "whether we're splitting the baby."
REPRESENTATIVE ROKEBERG said he has no intention of splitting;
it should be conforming [language].
SENATOR FRENCH pointed out a conceptual amendment would also
remove the definition.
REPRESENTATIVE ANDERSON noted that definition is on page 46,
lines 3-13.
REPRESENTATIVE ROKEBERG said that should be left in so that it
will be deleted.
CHAIR THERRIAULT maintained his objection.
A roll call vote was taken. Senator French and Representative
Rokeberg, Representative Croft, and Representative Anderson were
in favor; Senator Huggins and Senator Therriault were opposed.
CHAIR THERRIAULT announced the second amendment to Amendment 7
failed lacking two affirmative votes from Senate members.
CHAIR THERRIAULT announced that Amendment 7 as amended was
before the committee.
SENATOR FRENCH objected.
A roll call vote was taken. Representative Rokeberg, Senator
Huggins and Senator Therriault were in favor; Representative
Anderson, Representative Croft and Senator French were opposed.
CHAIR THERRIAULT announced that Amendment 7 as amended failed,
lacking two affirmative votes from House members.
CHAIR THERRIAULT moved to adopt Amendment 8, labeled R.24, which
reads as follows:
24-GS1112\R.24
Bullock
A M E N D M E N T 8
OFFERED IN THE SENATE BY SENATOR THERRIAULT
Page 7, line 30, following "individuals":
Insert "initially"
Page 50, lines 22 - 29:
Delete all material.
Renumber the following bill sections accordingly.
Page 52, line 26:
Delete "82(a)"
Insert "81(a)"
Page 52, line 28:
Delete "83"
Insert "82"
Page 52, line 29:
Delete "secs. 85 and 86"
Insert "secs. 84 and 85"
REPRESENTATIVE CROFT objected.
9:24:24 PM
MR. DON BULLOCK, Legislative Legal and Research Services,
explained that Amendment 8 addresses redundant language in the
bill regarding the initial appointments to the appeals
commission. The terms were codified on page 7, line 30, so this
clarifies, by inserting "initially" that the terms are for the
initial appointments. It also deletes language on page 50, lines
22-29, which deals with the same issue of making the initial
appointments so that members' terms would be staggered.
CHAIR THERRIAULT added the word "initially" has to be included
because that is when the rotation is set up.
REPRESENTATIVE CROFT asked about the changes to page 52.
MR. BULLOCK said the removal of a section on page 50 requires
renumbering of the other sections.
CHAIR THERRIAULT noted that with no further objection, Amendment
8 was adopted.
CHAIR THERRIAULT moved to adopt Amendment 9.
MR. BULLOCK said Amendment 9 deals with the form filed by the
employee electing one option or another. Amendment 9 changes the
language in the latter part of Section 18 to make it consistent
with an earlier change made by the committee. Instead of saying
the administrator shall serve a copy it says the board shall
serve a copy of the executed election, thereby giving the
responsibility to the party who has it.
REPRESENTATIVE CROFT asked why it is only served on the employer
rather than both parties.
MR. BULLOCK explained that one party signed the execution.
CHAIR THERRIAULT announced that without further objection,
Amendment 9 was adopted.
CHAIR THERRIAULT announced an at-ease.
9:28:31 PM
CHAIR THERRIAULT announced the committee would recess until noon
tomorrow.
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