Legislature(2017 - 2018)GRUENBERG 120
02/27/2017 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s) | |
| HB69 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 69 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 69-REPEAL WORKERS' COMP APPEALS COMMISSION
1:25:49 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 69, "An Act repealing the Workers' Compensation
Appeals Commission; relating to decisions and orders of the
Workers' Compensation Appeals Commission; relating to superior
court jurisdiction over appeals from Alaska Workers'
Compensation Board decisions; repealing Rules 201.1, 401.1, and
501.1, Alaska Rules of Appellate Procedure, and amending Rules
202(a), 204(a) - (c), 210(e), 601(b), and 603(a), Alaska Rules
of Appellate Procedure; and providing for an effective date."
1:26:38 PM
HEIDI DRYGAS, Commissioner, Department of Labor & Workforce
Development (DLWD), read her statement into the record as
follows:
HB 69 will repeal the Workers' Compensation Appeals
Commission and return the appeals process from the
Workers' Compensation Board to the courts. The
commission was created to streamline the appeals
process from the Workers' Comp Board and provide
expertise in handling workers' comp cases. Since its
creation in 2005; however, 50 percent of the
commission's decisions have been reversed by the
Alaska Supreme Court. This high reversal rate
underscores the fact that the commission is
ineffective. The commission is, essentially, an
appellate court just like the superior court and
almost every appellate court in the country is
composed of a panel of lawyers. Yet, the commission's
lay-commissioners have no legal training and
contribute very little in the way of legal analysis to
the issues being decided by the commission. It falls
to the commission's chair alone to resolve the legal
issues with minimal input from the lay-commissioners.
Further, the chair also writes the commission's
decisions; therefore, the commission's decisions are
really the work of one person and not the work of a
panel with legal expertise in workers' compensation, a
further departure from the original intent of the
legislation.
By eliminating the commission, the department
anticipates a cost savings of over $220,000 for the
remainder of FY18, due to the transition provisions in
the legislation, and over $440,000 in subsequent
years. The impact on the public will be minimal. By
repealing the commission, the appeals process will
revert back to the superior court, which was the
process in place from statehood until 2005. The court
system would see an increase of approximately 20-30
cases, give or take a few, per year. This volume can
be absorbed by the court system.
1:28:57 PM
DEBBIE BANASZAK, Legislative Liaison, Office of the
Commissioner, Department of Labor & Workforce Development
(DLWD), explained the changes from Version A to Version O, and
clarified that the word "board" refers to the Workers'
Compensation Board and the word "commission" refers to the
Workers' Compensation Appeals Commission. This bill repeals the
Workers' Compensation Appeals Commission, she advised.
MS BANASZAK explained that the summary of changes between HB 69
Version A, and CSHB 69 Version O are as follows [original
punctuation provided]:
Page 1, line 5 inserts two inadvertently omitted court
rule references, Appellate Procedure Rule 602(c) and
(h) into the bill title.
Page 3, lines 4 - 9 simplifies the paragraph structure
and wording of the language clarifying when a board
order becomes effective and is final.
Page 3, lines 10 - 19 clarifies the wording of when a
board order may be stayed.
Page 3, line 20 removes the first sentence from AS
23.20.126(c). The sentence is unnecessary because it
restates a provision already found in the Alaska
Workers' Compensation Act.
Page 3, lines 28 - Page 4, line 6 amends AS
23.30.155(f) directly, instead of repealing subsection
(f) and creating a new subsection (r) as version A was
written.
Page 4, lines 14 - 23 that was Section 8 in the
original bill was completely deleted. In Version A,
Section 8 addressed "direct" court rule amendments
relating to cost bonds and the court system suggested
that it would be more efficient and more consistent to
instead address these through "indirect" court
amendments in the new Section 10. Because Section 8
of the original bill was deleted in the CS, the
Section numbers from that point on are renumbered in
the CS (Ex: the previous Section 9 is now Section 8,
etc.)
Page 4, line 12 removes AS 23.30.155(f) from the list
of statutes being repealed because changes are now
being made directly to AS 23.20.155(f), instead of the
original bill which repealed subsection (f) and made
those changes in a new subsection (r) as discussed.
Page 4, line 15 - line 30 simplifies the description
of how the court rules are amended and adds a
description of how Appellate Procedure Rules 602(c)
and (h) are amended. The Indirect Court Rule
Amendments in the original bill were too wordy and
potentially confusing, and the court system suggested
it be rewritten.
Page 4, line 31 - Page 5, line 17 simplifies the
paragraph structure and wording of the applicability
language.
1:32:58 PM
REPRESENTATIVE FANSLER moved to adopt the committee substitute
for HB 69, Version 30-GH1773\O as the working document. There
being no objection, Version O was before the committee.
CHAIR CLAMAN opened public testimony on [CSHB 69].
1:33:58 PM
REPRESENTATIVE KOPP asked whether there was any pushback to her
statements regarding the 50 percent Alaska Supreme Court
reversal, long wait times, and the Workers' Compensation Appeals
Commission otherwise not realizing the potential the 2005
legislature anticipated.
COMMISSIONER DRYGAS responded that no one, including insurers,
employers and plaintiff's counsel, have come to the department
with opposition. She related that there is a chart the previous
chair put together summarizing the caseloads for the Workers'
Compensation Appeals Commission since its inception in 2005. It
can be a bit confusing, she described, and as far as the 50
percent reversal rate, "of the cases that the Alaska Supreme
Court has decided on the merits," roughly 50 percent have been
overturned, and there have been dismissals for various reasons
not relating to the merits of the case. In her opinion, she
advised, the fact that no one has stated opposition to this bill
is recognition that the Workers' Compensation Appeals Commission
is not working as hoped because it is not resulting in more
efficient hearings. It is not resulting in this expertise that
was believed would be seen, the commissioners have to have three
years of experience on the Workers' Compensation Board which is
how the legislature came up with the expertise to put on the
commission. It never realized itself in actuality, she said.
1:36:55 PM
CHAIR CLAMAN, in response to Representative Eastman, noted that
the chairman of the commission is not on the list to testify at
this point, and that his office would look into having the
commissioner testify. The bill is not being moved today.
1:37:26 PM
REPRESENTATIVE EASTMAN asked the general makeup of the
commission, length of terms, and whether the positions are
filled or vacant.
COMMISSIONER DRYGAS deferred to Marie Marks, Division of
Workers' Compensation, and advised that to her knowledge there
are currently no vacancies and there is a new chair of the
commission.
1:38:12 PM
MARIE MARKS, Director, Division of Workers' Compensation,
Department of Labor & Workforce Development (DLWD), responded
there was a vacancy when the past commission chair, Andrew
Hemingway, retired, and it is currently filled by Commissioner
Deirdre Ford. She explained that the chair is a fulltime
Division of Workers' Compensation attorney staff member who
rules on the evidence, drafts the decisions, and so forth. In
addition to the chair, there are two labor and two industry
representative lay members and those seats are not vacant. A
board panel consists of three members, the chair and one member
each from industry and labor, and there is a pool of five within
which to draw from but the chair will always sit, and she opined
the terms are five years.
1:39:44 PM
REPRESENTATIVE EASTMAN asked how individuals are chosen for
appointment.
MS. MARKS replied that it is the same as any other boards and
commissions seat, and opined that they solicit for applications
to fill different seats, and often the departments are active in
that process. Subsequently, Alaska Boards and Commissions
provides the governor with a list of applicants and the governor
appoints the position.
1:40:25 PM
REPRESENTATIVE EASTMAN opined that there is something of a
disparity between the argument being made for why the members of
the commission are not experienced enough to be making the
decisions, and yet, the governor has the ability to select
individuals with the correct credentials to make good decisions.
He asked whether there was a reason that hasn't happened.
MS. MARKS argued that she wouldn't say that the individuals are
not qualified because they are certainly qualified under the
statute. The difficulty is that they are lay commissioners and
the Workers' Compensation Board is made up of individuals from
the community, some with legal expertise and some without. She
explained that the Workers' Compensation Board decides issues of
fact, and when a case is appealed it moves to the Workers'
Compensation Appeals Commission wherein the commission decides
matters of law, which is difficult for a lay person to do. She
advised that a retiring chair was honest about his thoughts and
basically told her that he is a lone commissioner because he
wrote all of the decisions, and part of the problem is that when
a person is not an attorney they are loathe to make changes to a
decision. There just has not been input from the lay
commissioners and, she reiterated, for a person to qualify to be
a commissioner they must have Workers' Compensation Board
experience and they do have that. Although, it turns out that a
different kind of experience is necessary at the appellate
level.
1:42:45 PM
CHAIR CLAMAN asked whether any of the positions on the
commission are paid positions, or whether it is all volunteer.
COMMISSIONER DRYGAS responded that two positions are paid, the
attorney chair is a fulltime position and there is a fulltime
administrative staff position.
1:43:16 PM
REPRESENTATIVE KREISS-TOMKINS requested that Commissioner Drygas
speak to the extent that HB 69 relates to the omnibus workers'
compensation reform bill.
COMMISSIONER DRYGAS opined that it doesn't really relate, and if
it relates at all it is through the department's serious effort
at making efficiencies wherever possible, and looking for ways
to do things better with less money. She related that when she
became commissioner, the House Finance Committee Co-Chair tasked
the department with the responsibility of going through its
statutes to determine what provisions the legislature has
"saddled you with" that are no longer working or necessary that
could save money. Through that process it was discovered that
the Workers' Compensation Appeals Commission was not working,
she advised.
REPRESENTATIVE KREISS-TOMKINS thanked her for that context, and
noted the uncanny similarity of her comments to that of his
colleague's remarks on a piece of legislation heard this morning
on the floor of the House of Representatives, that came out of
this committee.
CHAIR CLAMAN opened public testimony on HB 69.
1:45:21 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, advised that
the bill does have an impact on the Alaska Court System,
obviously. She pointed out that this bill was sponsored by the
executive branch, and last year when it came forward she was
surprised by it, but then worked with the department and its
representative to ensure that if this were to be the policy
adopted by the legislature, that the court system could
implement it as smoothly as possible. She commented that the
department has been receptive to her comments and, although,
this is not something the court system is promoting, it is
pleased to follow whatever policy the legislature might put into
statute.
1:46:31 PM
CHAIR CLAMAN said he assumed that where the Department of Labor
& Workforce Development (DLWD) was saving money by not having an
appeals commission, the court was picking up the cost of hearing
those cases.
MS. MEADE agreed, and she explained that the court system
submitted a zero fiscal note because it is careful to only
include fiscal impact when it actually requires hiring someone
or expending actual funds on supplies, for example. This will
result in more work for the courts but not the type of work she
could monetize into a position that would be required to
implement this. Nevertheless, the judges will certainly have
more work to do as will the court system's staff, she explained.
1:47:22 PM
REPRESENTATIVE KOPP commented that the committee received a good
presentation from the court system earlier, and asked whether
judges are salaried no matter how many hours they work.
MS. MEADE answered in the affirmative.
REPRESENTATIVE KOPP asked how many cases a year the court system
anticipates picking up with this workload transfer to the court,
and also what is the average workload.
MS. MEADE advised that the average number of cases appealed over
the past ten years was approximately 33 cases; therefore, the
superior court would anticipate having about 33 additional
administrative appeals. She referred to the other workers'
compensation bills going through this body, and noted that any
changes in the underlying law may lead to additional appeals,
and possibly the more things that are less established, the more
things may be appealed. In any case, she said, the court system
has been operating under the assumption there would be
approximately 33 additional cases. These cases, she explained,
are different from many of the other cases the superior court
handles, and they are considered by the judges to be more
challenging and more time consuming than many other types of
cases. These cases do not have the priority or time pressure
issues that a child in need of aid case does, or a criminal case
does, but are very brief intensive and are often done by judges
on a Saturday because they are longer cases to think about and
resolve. She stressed that the judges will do whatever comes
before them as they did it previously. She offered her belief
that the underlying reason for creating the Workers'
Compensation Appeals Commission was that the superior court
judges took a long time deciding these cases because they were
not a high priority in terms of a child case or a criminal case,
and such. There were some inconsistent decisions among superior
court judges and, she explained, the only consistency would come
when something was appealed to the Alaska Supreme Court.
Superior court judges do not have particular expertise in
workers' compensation law, which she described as unique and a
somewhat arcane area of law. Even though the board's factual
findings are established, the court does need to determine
whether there is substantial evidence for the findings which
requires an extensive review of the record, she explained.
1:50:40 PM
REPRESENTATIVE LEDOUX surmised that currently cases go to the
Workers' Compensation Board and if the person does not like the
board's decision, they go to the Workers' Compensation Appeals
Commission as opposed to the superior court.
MS. MEADE responded in the affirmative.
REPRESENTATIVE LEDOUX continued that if the person does not like
the Workers' Compensation Appeals Commission's determination,
the person goes straight to the Alaska Supreme Court.
MS. MEADE answered in the affirmative, and explained that this
bill would substitute the Workers' Compensation Appeals
Commission for the Alaska Superior Court. Therefore, a case
could go from the board with the factual findings to the
superior court for review, and then to the Alaska Supreme Court
for ultimate final review.
REPRESENTATIVE LEDOUX surmised that quite a few of the decisions
from the Workers' Compensation Appeals Commission were reversed
by the Alaska Supreme Court.
MS. MEADE responded that Commissioner Drygas testified that the
reversal rate is approximately 50 percent, and noted that the
court system does not keep stats exactly on the reversal rate
for certain types of decisions.
1:52:05 PM
REPRESENTATIVE LEDOUX opined that it is possible there would be
less likelihood of an appeal from the superior court because
those folks would probably have it legally correct than those
from the Workers' Compensation Appeals Commission, which might
cut down some of the work for the Alaska Supreme Court.
MS. MEADE commented that, interestingly, the number of cases
appealed to the Alaska Supreme Court from the superior court
prior to 2005, and the number subsequent to 2005 from the
commission, was almost unchanged because these are difficult
cases with a lot of facts, and many of the injured workers are
self-represented and sometimes have difficulty creating
arguments and presenting things in the most effective manner for
the court.
1:53:19 PM
REPRESENTATIVE EASTMAN asked Ms. Meade to speak to the reasons
the Worker's Compensation Appeals Commission was created and the
court's opinions to begin with.
MS. MEADE remarked that as she alluded to previously, in 2005
there was some dissatisfaction with the way the courts were
handling workers' compensation appeals and the reversal rate
bothered some people. She reiterated that she does not have the
data on that, but within her review of the records from back
when, there was the position that superior court judges decided
cases in an inconsistent manner, which can happen with superior
court opinions when precedent is not really established until
the Alaska Supreme Court weighs in. She continued that a sector
of the population wanted experts deciding these cases which was
those familiar with workers' compensation, and many of the
state's judges do not have that expertise but they did their
best. It was dissatisfying to some people when cases were
decided in a 12-18 month period, and as a result, the Workers'
Compensation Appeals Commission was intended to address those
problems. She reiterated that it was hoped the commission would
be faster, have consistency, and that people with better
expertise in this area would be deciding the cases.
1:55:10 PM
REPRESENTATIVE EASTMAN opined that the court system has been
doing its best to hold down costs in taking voluntary cuts and
cutting down hours, and such. He asked her to speak to any
impact this change may have on the morale of the court system.
MS. MEADE said she appreciates the question, and the fact is
that the state's judges in court accept everything that is
legitimately brought to them. In the event it is the
legislature's policy decision that the court handle these, the
judges, in general - although this is a difficult question to
answer, have very good morale. Therefore, she does not
anticipate people entering a phase of depression, but it will be
additional work, and ultimately, unless the court system must
hire a judge to handle these cases, the fiscal impact itself
wouldn't be there, she said.
1:56:44 PM
REPRESENTATIVE KOPP referred to therapeutic court and specialty
judiciary training in certain areas of the law, and asked
whether, if there were enough cases, it would justify a couple
of judges specializing in this area of law similar to an
administrative law judge type of approach dealing specifically
with a certain area of law. He asked whether the court has
discussed this possibility.
MS. MEADE answered that occasionally it is suggested to the
courts that there be a specialty judge for certain types of
cases, and that is something the court system might consider as
it is not a closed door. However, she related, when thinking
about how to staff that, the judge would specialize in these
type of cases, meaning that the judge would not work on the
child in need of aid cases, criminal cases, divorce cases, or
the routine cases, and another judge would be taking up that
work. She said, the court system may consider doing that in
certain areas, although, in the past there has been a reluctance
on the part of judges to volunteer to take cases like this.
Instead, she explained, it has been expedient and efficient to
spread them around, but she was unsure whether that would always
be the case. The Alaska Supreme Court could consider it if the
issue comes to the floor, or judges suggest it, she said.
REPRESENTATIVE KOPP commented that it appears this is an
intractable problem similar to a tar baby that no one wants when
trying to figure out where it is best housed.
1:58:40 PM
CHAIR CLAMAN observed that a possible solution to a preemptory
challenge is to not have judges specialize but, at least in the
third judicial district assigned three judges to these cases
rather than the whole group. He continued that that would mean
if someone exercises a preemptory challenge, the person would
still get one of the three judges that hears more of these cases
and it would increase the odds of consistency. Although, he
acknowledged, it probably doesn't do much in the first, second,
and fourth judicial districts due to less judges to spread the
cases around.
2:00:05 PM
MS. MEADE related that all options are possible and should this
legislation become law, the court system would anticipate
handling these appeals like other agency appeals and spread them
around. She agreed that most happen in the third judicial
district which is where most of the decisions come out of, and
is where most of the injured workers and employers are located
because that is the population center. In the event issues
arose such as timeliness or something else, the court would be
open to considering the most efficient way to handle these. She
also agreed that the preemptory challenge could be a challenge.
2:00:49 PM
REPRESENTATIVE KREISS-TOMKINS referred to Representative Kopp's
description of this as a tar baby and noted he was interested in
terms of comparative policy. Given the high rate of reversal in
both of the regimes to address workers' compensation appeals, he
asked whether there are systems hybridized or otherwise in other
states that seem to be successful and keep down rates of
reversal, and otherwise be judicially and administratively
efficient.
MS. MEADE advised that she is not familiar with how workers'
compensation cases are handled in other states. Although, she
said she is aware that many other states have an appeals
commission within its executive branch. Nonetheless, she
remarked, she was probably not qualified to answer how well
those work, whether they've been changed, or gone back and
forth.
2:02:05 PM
REPRESENTATIVE LEDOUX asked whether she has any idea if the
Workers' Compensation Appeals Commission was more or less
generous to workers than the superior court.
MS. MEADE answered that she does not know and she should not
speculate because it is not within her area of expertise.
2:02:32 PM
REPRESENTATIVE LEDOUX asked whether Commissioner Drygas or Ms.
Marx knows the answer to her question.
CHAIR CLAMAN noted that they are both shaking their heads [no].
2:02:52 PM
MS. MEADE expressed that the court is willing to take on
whatever the legislature gives them to resolve, and although
they are difficult cases, the court system's judges are ready to
take it on without fiscal impact, and hopefully without any
impact on their morale.
2:03:41 PM
COMMISSIONER DRYGAS advised that she did not have any
information to answer Representative LeDoux's question, and the
cases would have to be surveyed from statehood to 2005 to
answer.
2:04:02 PM
REPRESENTATIVE LEDOUX explained that she was in the legislature
in 2005, and it was part of an attempt by Governor Frank
Murkowski to get down the workers' compensation rates, and there
was a feeling amongst some in the business community that this
would help. The unions fought it tooth and nail and there was
basically a big blow up in the building, it was the oil taxes of
2005, and it was created with a bang and it is interesting that
it will end with a whimper, she remarked.
2:05:08 PM
REPRESENTATIVE KREISS-TOMKINS asked Commissioner Drygas the same
question he asked Ms. Meade regarding comparative policy and
whether the department has a perspective on models that work in
other states more efficiently than Alaska, and to what extent
that information informed this legislation.
COMMISSIONER DRYGAS responded that the department has not
investigated what other states have done, and she couldn't
presume to say what happened 12 years ago when they looked to
other regimes. She said she guesses this is what they came up
with. For the department's purposes, it wanted to go back to
the way it was without having a fiscal impact. She stressed
that she wouldn't want to ever speak for the court system, and
acknowledged that the department does not take lightly that the
bill would essentially burden the court system with an
additional roughly 20-30 cases a year. The system was
functioning for many years and the attempt to make it better did
not make it better, she said.
2:07:20 PM
REPRESENTATIVE REINBOLD asked Representative LeDoux why the
unions were concerned about this commission.
REPRESENTATIVE LEDOUX responded that she is not here to give
public testimony.
2:07:46 PM
CONSTANCE LIVSEY, Attorney, advised that she is an Anchorage
attorney and the overwhelming part of her practice is workers
compensation defense. She said she speaks with that perspective
and her comments are her own, although certainly she has been
contacted by a number of clients both employers and insurers who
are concerned about HB 69. Ms. Livsey spoke in opposition to HB
69, and she related that she is in favor of retaining the
Workers' Compensation Appeals Commission. With approximately 17
years of workers' compensation experience in the superior court
appeals system, and 11 years with the Workers' Compensation
Appeals Commission in place, and from a practitioner's
perspective, she pointed out that the Workers' Compensation
Appeals Commission is absolutely a better mousetrap. She
described it as more efficient, more consistent, the quality of
the decision making is better and the chairs of the commission,
with the exception of Andrew Hemingway who was an experienced
administrative law judge, the others have all been experienced
lawyers with a workers' compensation background. Stephen T.
Hagedorn, and Philip Ulmer were lay members of the workers'
compensation board for many years before they became
commissioners. While two of the three commission members are
not lawyers, it is nonetheless the case that on appeal sometimes
the question is whether the board's factual findings are
supported by substantial evidence. She said she does not
discount the input and importance of the lay members, but
without arguing their individual merit, the commission chair is
an experienced workers' compensation practitioner. She
described this as an arcane, esoteric, and bizarre area of law
that a person does not wake up one morning understanding. The
reality of the state's superior court bench is they are people
with criminal law and civil law backgrounds and no wealth or
depth of expertise in this area. She described the appeals as
complicated and related that in court, she would offer an oral
argument to a superior court judge who was a bright, talented,
respected member of the bar, but they would have no idea what
she was talking about and the commission brings a level of
expertise not found elsewhere. She stressed that any claim of
cost savings through eliminating the commission is simply
illusory because there will not be fewer appeals, they will
simply be shifted to the superior court that is less familiar
with this area of law thereby taking longer to decide a case.
She described this as cost shifting and not cost savings even
though certainly the Workers' Compensation Appeals Commission
line item may jump out in a budget, and she described it as an
attack on the commission with a misguided attempt to go back to
a system that was not working well in the eyes of practitioners.
She expressed concern over the loss of the wealth of expertise
that will be hard to replace and will not be replaced by taking
matters back to superior court. She urged the committee to not
pass this bill.
2:12:57 PM
REPRESENTATIVE EASTMAN stated that arcane and esoteric are words
of great interest to lawmakers, and asked her to speak to
whether the difficulties with the law deal with things the state
is responsible for, or whether these more federally driven
complications that make it esoteric.
MS. LIVSEY pointed out that workers' compensation is a creature
of state law in every state, unless the person is a federal
employee. Alaska laws are not any more complex and strange than
that of any other state, it is just a body of statutory law with
which the average lawyer that does not practice in this area is
unfamiliar. She said she compares it to her trying to survive a
bankruptcy law case because she would have no idea of what she
was talking about, and that is basically the world of workers'
compensation.
2:14:16 PM
REPRESENTATIVE LEDOUX asked whether there is an association or
group of workers' compensation lawyers in Alaska.
MS. LIVSEY responded that there is a section of the bar
association that meets the first Friday of every month, and it
includes workers' compensation practitioners representing
employees and employers. There is no other association of
workers' compensation lawyers, she said.
2:14:54 PM
REPRESENTATIVE LEDOUX inquired as to whether her opinions would
be reflective of the opinions of the section of the workers'
compensation bar association.
MS. LIVSEY related that there are a range of opinions as to the
commission being perceived to be under fire, some members are
somewhat resigned to its disappearance, other practitioners are
not particularly fans, and others are. She stated that she
would not say there is any split down employer/employee lines.
REPRESENTATIVE LEDOUX queried as to whether the Workers'
Compensation Appeals Commission tends to lean more favorably to
employees versus employer than the superior court. She asked
how that has turned out as far as her practice is concerned.
MS. LIVSEY opined that the high degree of variability in
superior court decisions makes it a difficult question to
answer. As Ms. Meade alluded, one of the realities of going
before the superior court is that each judge could decide a case
how he/she saw fit without a great deal of consistency in the
interpretation of the law. Whereas, the commission has
developed a more consistent body of law and its decisions do
have precedential value over subsequent board cases. She opined
that the commission is not perceived by practitioners as being
pro-employer or pro-employee.
2:17:37 PM
REPRESENTATIVE KREISS-TOMKINS said that after hearing this
testimony he is curious, pre-2005, if there was any judiciary
system to allow certain judges to develop more familiarity and
expertise with this esoteric and arcane realm of law to create
the best possible adjudication process.
2:18:31 PM
MS. MEADE replied that the answer to that is "No," their cases
are randomly assigned to judges based on a random computer
procedure and, thereafter, there is generally not trading
because judges are ethically and otherwise required to take the
cases assigned to them. She said that is not to say there
cannot be some shuffling or reassignment for efficiency or other
reasons. It is not for a judge to say they don't like these
cases or that they would prefer Judge X take these cases instead
because they are time consuming. At the time, they were handled
just like any other agency appeal, randomly assigned, and
decided by that judge.
2:19:38 PM
REPRESENTATIVE KREISS-TOMKINS asked whether an idea along the
lines of a mechanism designating a certain number of judges to
take these cases to develop familiarity and consistency could
have potential.
MS. MEADE answered that as she previously mentioned, that can
happen and it may be decided amongst the presiding judges or the
Alaska Supreme Court that these particular cases should be
assigned or decided in a different manner from other cases. She
reiterated that it is not out of the realm of possibilities and
in the past there has not been a lot of interest in having
specialty judges in certain areas, for one thing it would be
hard to get judges to volunteer to take these cases at the
expense of their other cases, and the organization may be
challenging. She advised that she is not saying that it can't
happen, but it hasn't happened in the past.
2:21:43 PM
REPRESENTATIVE REINBOLD asked whether she believes, in the event
this bill passes, it is in the best interest of the courts and
those judges that will be handling this, to get any type of
training so they are more aware of the innuendos of this type of
case.
MS. MEADE said the court system does have a judicial training
conference once a year and this could certainly be a topic on
the agenda. Every year it is decided what needs to be included
within the judicial training, focusing on issues with the most
impact to the most people. When considering that 33 new cases
will come to the court, and there are 42 superior court judges,
she said she was unsure it was something that would be focused
on at a judicial conference. She offered that that is not to
say that if a certain sitting judge, or soon to be appointed
judge, decides that they love these cases and they could be sent
to specialized training, possibly.
2:23:27 PM
REPRESENTATIVE REINBOLD requested a historic perspective as to
why there was pushback in the past.
2:24:07 PM
DON ETHRIDGE, Lobbyist, American Federation of Labor and
Congress of Industrial Organizations, Alaska (Alaska AFLCIO),
advised that the main issue at that particular time was that a
massive change in workers' compensation was happening. The
union objected because they were afraid it would get political
with changes in administrations, and who would be appointed to
the commission. He acknowledged that so far it has not been
political, but the union still does not think it works right.
He explained that the union was sold a bill of goods that the
commission would be so much faster, better decisions. Except,
he pointed out, the unions are seeing the same number of people
going to the Alaska Supreme Court as before 2005, and the unions
do not believe it is worth the cost.
2:25:20 PM
REPRESENTATIVE REINBOLD said she was pleased to hear it did not
get political. She asked whether there are any resolutions from
the members supporting getting rid of the commission, and
whether he was speaking on behalf of the union representatives,
the union bosses, or whether he thinks the members would want
the commission. She asked who this is impacting.
2:25:49 PM
MR. ETHRIDGE advised that he was speaking on behalf of the AFL-
CIO, which is the umbrella of all of the unions under the AFL-
CIO. He remarked that no members have come out and said they
don't support the bill, it was discussed it and there has been
absolutely zero discussion against the bill. Most of the AFL-
CIO members are neutral on it because they don't have any
concern one way or the other. When looking at the overall
package of "how many members wind up going to the appeals it is
a limited number." The AFL-CIO does support the department in
the fact that they do not believe it works correctly.
2:26:41 PM
REPRESENTATIVE REINBOLD surmised that there has not been a vote
amongst the membership, and asked whether he believes that most
of the members or all of the members are aware of this bill with
zero push back.
MR. ETHRIDGE answered in the affirmative. He advised that the
bill was brought up during the legislative conference, it was
discussed amongst the leadership with 140 members present, and
there has been zero push back.
REPRESENTATIVE REINBOLD asked for clarification that it included
leadership with 140 members present, yet there are 55,000
members. She commented that she was worried about the other
members and wanted to know whether there was any resolution or
any vote or any issues at all, and whether he believes the
superior court can handle this without specializing in this area
of law.
MR. ETHRIDGE advised that it was not brought to a vote, there
was no resolution in support of the bill and in the event they
did do a resolution it would have been the same 140 people
voting on it and they did not believe a resolution was
necessary. The superior court is where appeals were before and
they had no problems going through the superior court. He
explained that when they were sold the bill of goods on this,
they were told it would be so much faster with claims going in
and out, and for some of the claims it is considerably faster,
but for those that wind up going to the Alaska Supreme Court it
lengthens the case.
2:28:28 PM
REPRESENTATIVE REINBOLD said not to be redundant, but she was
not at the meeting and doesn't know who was there. She asked
whether the 140 members were all leadership, or were they
regular AFL-CIO union members. She said she cares about whether
the members are having a say or whether they think this is
working, it is an important policy call.
2:28:52 PM
MR. ETHRIDGE explained that many members of the locals were also
at this meeting, it wasn't just all union representatives at the
meeting. He described it as the biggest bunch of new faces he
had ever seen at one of their conferences, and that younger
union members showed up.
2:29:45 PM
CHAIR CLAMAN, after ascertaining no one further wished to
testify, closed public testimony on HB 69.
CHAIR CLAMAN advised that the committee will not be moving the
bill and he is receptive to opening public testimony in the
future.
2:30:09 PM
REPRESENTATIVE LEDOUX related that she would like to hear from
the workers' compensation plaintiff's bar, someone who typically
represents the employee rather than the employer.
CHAIR CLAMAN referred to the meeting of the workers'
compensation section and encouraged Ms. Livsey to let folks know
if they are interested in testifying to contact his office
because the committee would like to hear from different people.
MS. LIVSEY said she would pass the word along.
2:31:26 PM
REPRESENTATIVE EASTMAN commented that the state has an esoteric
set of law that has been bandied around from the courts to the
commission and perhaps now going back to the courts. He related
that if the law is esoteric and arcane it is the legislature's
job to make it more understandable. He noted there is workers'
compensation legislation before the House of Representatives
currently, and he does not yet have a position on that
particular bill, but if any representatives are sitting on
committees dealing with that bill perhaps what has been heard
today might be good to inject to that conversation. In the
event that bill offers an opportunity to make the law less
arcane and esoteric everyone would benefit, he said.
CHAIR CLAMAN noted that Representative Eastman should be pleased
that the workers' compensation reform bill is coming to the
House Judiciary Standing Committee and he will have an
opportunity to learn more.
REPRESENTATIVE LEDOUX commented to make it less arcane.
CHAIR CLAMAN noted that some of the features in which workers'
compensation is arcane and complicated is many years of
precedent in not only this court, but other courts. There is
probably only so much the legislature can do to make it less
unique because there are complicated rules that apply only to
workers' compensation. It becomes like someone who does
criminal appeals knows more about criminal appeals than someone
that does civil appeals, he said.
[HB 69 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| Judicial Conduct Commission Appointment-Melanie Bahnke Application 2.24.17.pdf |
HJUD 2/27/2017 1:00:00 PM |
|
| Judicial Conduct Commission Appointment-Jeannine Jabaay Application 2.24.17.pdf |
HJUD 2/27/2017 1:00:00 PM |
|
| HB069 ver O 2.18.17.pdf |
HJUD 2/22/2017 1:30:00 PM HJUD 2/27/2017 1:00:00 PM HJUD 3/10/2017 1:30:00 PM HJUD 3/20/2017 1:00:00 PM |
HB 69 |
| HB069 Sponsor Statement 2.16.17.pdf |
HJUD 2/22/2017 1:30:00 PM HJUD 2/27/2017 1:00:00 PM HJUD 3/10/2017 1:30:00 PM HJUD 3/20/2017 1:00:00 PM |
HB 69 |
| HB069 Summary of Changes ver O 2.24.17.pdf |
HJUD 2/22/2017 1:30:00 PM HJUD 2/27/2017 1:00:00 PM HJUD 3/10/2017 1:30:00 PM HJUD 3/20/2017 1:00:00 PM |
HB 69 |
| HB069 ver A 1.30.2017.pdf |
HJUD 2/27/2017 1:00:00 PM HL&C 2/6/2017 3:15:00 PM |
|
| HB069 Sectional Analysis ver A 1.30.2017.pdf |
HJUD 2/27/2017 1:00:00 PM HJUD 3/10/2017 1:30:00 PM HJUD 3/20/2017 1:00:00 PM HL&C 2/6/2017 3:15:00 PM HL&C 2/10/2017 3:15:00 PM |
HB 69 |
| HB069 Supporting Document-WCAC cases 1.30.2017.pdf |
HJUD 2/27/2017 1:00:00 PM HJUD 3/10/2017 1:30:00 PM HJUD 3/20/2017 1:00:00 PM HL&C 2/6/2017 3:15:00 PM HL&C 2/10/2017 3:15:00 PM |
HB 69 |
| HB069 Fiscal Note DOLWD-WCAC 2.16.17.pdf |
HJUD 2/27/2017 1:00:00 PM HJUD 3/20/2017 1:00:00 PM |
|
| HB069 Fiscal Note JUD-ACS 2.16.17.pdf |
HJUD 2/27/2017 1:00:00 PM HJUD 3/10/2017 1:30:00 PM HJUD 3/20/2017 1:00:00 PM |