Legislature(2015 - 2016)BARNES 124
03/14/2016 03:15 PM House LABOR & COMMERCE
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| Audio | Topic |
|---|---|
| Start | |
| HB214 | |
| HB194 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 214 | TELECONFERENCED | |
| *+ | HB 313 | TELECONFERENCED | |
| += | HB 194 | TELECONFERENCED | |
HB 214-REPEAL WORKERS' COMP APPEALS COMMISSION
3:21:41 PM
CHAIR OLSON announced that the first order of business would be
HOUSE BILL NO. 214, "An Act repealing the Workers' Compensation
Appeals Commission; relating to decisions and orders of the
Alaska Workers' Compensation Board; relating to superior court
jurisdiction over appeals from Alaska Workers' Compensation
Board decisions and orders; repealing Rules 201.1, 401.1, and
501.1, Alaska Rules of Appellate Procedure, and amending Rules
202(a), 204(a) - (c), 210(e), 508(g), 601(b), 602, and 603,
Alaska Rules of Appellate Procedure; and providing for an
effective date."
3:21:52 PM
LAURA STIDOLPH, Staff to Representative Olson, informed the
committee HB 214 would repeal the Worker's Compensation Appeals
Commission. The commission was established in 2005 to expedite
the worker's compensation appeals process; however, during the
past decade the commission has had a 50 percent decision
reversal rate, and the bill has been requested by the
commissioner of the Department of Labor & Workforce Development
(DLWD). She asked for the adoption of proposed Version E which
was provided in the committee packet.
3:23:06 PM
REPRESENTATIVE HUGHES moved to adopt the proposed committee
substitute (CS) for HB 214, Version 29-LS0854\E, Wallace,
2/24/16, as the working document.
CHAIR OLSON objected for the purpose of discussion.
3:23:29 PM
HEIDI DRYGAS, Commissioner, Department of Labor & Workforce
Development, said DLWD is in support of repealing the Workers'
Compensation Appeals Commission and returning the appeals
process to the courts. The commission was created to provide
expertise in Workers' Compensation cases, but since its
inception, nearly 50 percent of its decisions appealed to the
Alaska Supreme Court have been reversed. The commission serves
as an appellant court, but is comprised of lay commissioners and
although they are dedicated, they do not have the necessary
legal training. She has learned that the commissioners
contribute little to the legal analysis required, thus the
chairman must resolve legal issues and write the commission's
decisions; therefore, the decisions are not the work of a panel
with legal expertise and experience in Workers' Compensation,
which was the intent of the legislation. The bill would have
minimal impact on the public, and subsequent appeals would be
referred to the superior court as prior to 2005. The increase
in cases to the court system is estimated at 20-30 cases
statewide per year, which would be absorbed into the court
system.
REPRESENTATIVE HUGHES inquired as to the impetus for the
creation of the commission.
COMMISSIONER DRYGAS explained that the court system was slow
[processing appeals] and it was expected that the commission
would be faster. However, the commission is not significantly
more efficient, and accrues costs of approximately $400,000.
In response to Representative Hughes, she clarified that the
cost of the commission is $439,600 per year.
REPRESENTATIVE LEDOUX asked whether the commission primarily
decides in favor of workers or employers.
COMMISSIONER DRYGAS said she did not have that information.
3:28:14 PM
REPRESENTATIVE LEDOUX recalled that in 2005 the administration
thought that the courts were too worker-friendly, and the intent
was that the commission would not be as worker-friendly.
COMMISSIONER DRYGAS said her frustration with the process is
that an administrative decision is appealed to the Workers'
Compensation Board, and then to another administrative agency,
which is a "double layer that doesn't make a whole lot of sense
... and the way that the Workers' Compensation Appeals
Commission is set up right now, it is, it is essentially
dysfunctional."
REPRESENTATIVE KITO asked for the number of appeals submitted
from the board to the commission per year. He clarified that
his question related to the number of cases that would go to the
superior court if the commission was eliminated.
COMMISSIONER DRYGAS said over the course of 10 years, 342
decisions have been appealed to the commission; of those, 219
resulted in decisions, and 97 were appealed to the Alaska
Supreme Court.
REPRESENTATIVE KITO surmised that the state would not save
$439,000, because there would be a cost to the court system.
COMMISSIONER DRYGAS deferred to the court system.
REPRESENTATIVE COLVER asked for a description of the process
before 2005, and after 2005.
COMMISSIONER DRYGAS stated that a Workers' Compensation hearing
officer renders a decision, and either party can appeal to the
Workers' Compensation Board, whose members are appointed by the
governor and confirmed by the legislature. Before 2005, a
decision from the board could be appealed to the superior court,
then to the Alaska Supreme Court. Currently, an appeal after a
decision by the board goes to the appeals commission, bypassing
the superior court, and then to the Alaska Supreme Court.
REPRESENTATIVE LEDOUX, referred to before 2005, and asked
whether a decision from the board was for an appeal "as of right
to the superior court, or was it discretionary."
3:35:11 PM
ANDREW HEMENWAY, Chair, Workers' Compensation Appeals
Commission, Division of Workers' Compensation, Anchorage Office,
Department of Labor & Workforce Development, advised that both
before 2005 when the superior court heard appeals, and under
current law, when appealing to the Workers' Compensation Appeals
Commission it is an appeal "as of right," and is not
discretionary. He noted that the superior court was required to
hear the appeal, as is the Workers' Compensation Appeals
Commission. Similarly, he said, the appeal to the Supreme Court
was an appeal "as of right." Therefore, he offered, there is no
change in terms of the appellant's right to get a hearing.
REPRESENTATIVE LEDOUX questioned whether the appeal courts
address findings of fact, or rely upon the rulings of the
previous entity.
MR. HEMENWAY said there is no change in that regard; the
superior court was required to defer to the factual findings of
the board, and the commission is as well.
REPRESENTATIVE LEDOUX understood that the appeals commission -
composed of members who are not lawyers - has the responsibility
for making legal decisions.
MR. HEMENWAY said correct, although the commission chair is
required to be an attorney. He added that the proposed original
legislation called for three attorney members on the commission,
but the legislature changed the composition of the commission to
match that of the board.
3:38:39 PM
MS. STIDOLPH paraphrased from the following sectional analysis
of the proposed committee substitute for HB 214, Version E
[original punctuation provided]:
Section 1. Amends AS 23.30.005 by adding new
subsection to read: The board, in its administrative
capacity, shall make available the decisions and
orders of the board and the former Workers'
Compensation Appeals Commission. Decisions and orders
of the former Workers' Compensation Appeals Commission
are final and conclusive unless appealed to the Alaska
Supreme Court and shall stand instead of the order of
the board from which review was taken. Unless reversed
by the Alaska Supreme Court, decisions of the former
Workers' Compensation Appeals Commission have the
force of legal precedent.
Section 2. AS 23.30.107(b) removes language
referencing the Commission.
Section 3. AS.23.30.108(d) removes language
referencing the Commission.
Section 4. AS 23.30.108 (e) removes language
referencing the Commission.
Section 5. AS 23.30 is amended by adding a new section
to read: A decision or order of the board becomes
effective when filed in the office of the board under
AS 23.30.110 and becomes final when a party files a
petition, or a notice of appeal. Final order is not
subject to judicial review. A director may intervene.
A court shall award a successful party reasonable
costs.
Section 6. AS 23.30.155(f) removes statutory reference
to the powers and duties of the Commission and adds a
reference to the board in AS 23.30.126
Section 7. AS 39.50.200(b)(31) is amended to remove
language defining the Workers' Compensation Appeals
Commission.
Section 8. Repeal Rules 201.1, 401.1, and 501.1,
Alaska Rules of Appellate Procedure.
Section 9. Repeals statutes referencing the creation,
appointment of members, jurisdiction, powers and
duties of the commission, powers and duties of the
chair of the commission, administrative review,
appeals to the commissions, commission proceedings,
appointment of the members through OAH, appointment of
the chair.
Section 10. Changes the Alaska Rules of Appellate
Procedure by providing that appeals from the Alaska
Workers' Compensation Board can be brought in the
superior court.
Section 11. The Workers' Comp Appeals Commission
continues to function as they presently are until
December 1, 2016.
Section 12. Transitional Provisions - for appeals not
completed before December 2nd shall be automatically
transferred to the superior court. Appeals seeking
review of Workers' Comp Board decisions that haven't
been filed before May 31, 2016 must be filed in the
superior court before June 1, 2016. Before June 1,
2016 a party may file for review by the workers' comp
appeals commission, after June 1, 2016 a party files
for review in the superior court. Before November 1,
2016 a party may request reconsideration of a Workers'
Compensation Appeals Commission decision. After
November 1, 2016 a party may file an appeal with the
Alaska Supreme Court.
Section 13. Terms out commissioners on February 2,
2017.
Section 14. Conditional effect: this Act takes effect
only if secs. 8 and 10 of this Act receive a 2/3
majority vote of each house required by art. IV, sec.
15, Constitution of the State of Alaska.
Section 15. Effective date of June 1, 2016.
3:43:22 PM
REPRESENTATIVE COLVER referred to the chart entitled, "Alaska
Workers' Compensation Appeals Commission," provided in the
committee packet. He requested a brief abstract describing
types of appeal issues, possible trends, medical issues,
disability compensation, and decisions or resolutions that would
provide a "thumbnail sketch of what's going on." His experience
is that worker's compensation cases can be difficult to resolve.
CHAIR OLSON pointed out that the last column on the
aforementioned chart indicated 50 percent to 75 percent of the
cases going to the Alaska Supreme Court were unchanged.
REPRESENTATIVE LEDOUX asked for clarification of the chart.
3:46:43 PM
MR. HEMENWAY explained that the Alaska Supreme Court may dismiss
a case for several reasons, such as late filing or a settlement.
Also, a case can be remanded to the lower court if there are
questions, and vacated when laws have changed; these are
examples of when the court disposes of a case, but does not make
a decision on whether the appeals commission was correct, and
the case can make a reappearance. Affirmed, reversed, and
affirmed in part/reversed in part are cases in which the court
has issued a decision that addresses the merits of the appeals
commission's decision.
REPRESENTATIVE JOSEPHSON suggested that the Alaska Supreme Court
would hear all of the cases eventually, unless they are affected
by the statute of limitations.
MR. HEMENWAY said:
I wouldn't necessarily say that's the case. ... Most
of the cases that are dismissed, I'm sure well over
half, are dismissed because the parties have settled.
... Sometimes it might be that there's some, some
grounds on which the court shouldn't hear it, but a
dismissal for reasons other than ... the parties have
settled, is, is [a] relatively small number of cases.
The cases that are remanded or vacated, they're kind
of all over the place ....
3:50:50 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, advised that she has been working
with the bill sponsor who has incorporated some of her
suggestions in the proposed committee substitute. Ms. Meade
said the court system is neutral on the bill, and will implement
it upon passage. The court system's concerns are related to the
wording of the bill, so that the case law and interpretation
would easily transfer to the court system. Also, the court
system seeks to ensure that the cases are transferred in a form
conforming to the rules of the appellate court.
REPRESENTATIVE KITO asked Mr. Hemenway whether the ten pending
cases indicated on the chart are recent.
MR. HEMENWAY answered that the number of cases pending are: one
from 2011, one from 2013, two from 2014, and six from 2015.
REPRESENTATIVE COLVER asked Ms. Meade to comment on how appeals
cases affect the workload of the Alaska Supreme Court.
MS. MEADE responded that an average of 33 cases per year could
be absorbed by the superior court. Further, 10-15 cases could
be handled by the Alaska Supreme Court in the course of its
normal business, without adverse effects. In further response
to Representative Colver, she explained that in 2005, there was
a perceived lack of consistency in workers' compensation
decisions from the superior court. In order to set precedent, a
case would have to go to the Alaska Supreme Court because its
decisions bound the superior court and the board. One basis for
the change was the concept that moving to an expert commission
within DLWD would establish that its decisions would bind the
department, but the number of cases that were appealed after
2005 did not change. Therefore, the workload of the Alaska
Supreme Court would be not affected, but the workload of the
superior court judges would increase with difficult and complex
cases.
3:59:05 PM
REPRESENTATIVE HUGHES questioned whether the number of cases can
be seasonal.
MS. MEADE said no. The bill phases-in the cases coming to the
court from the commission during a certain period of time.
REPRESENTATIVE HUGHES observed that the number of cases before
the Alaska Supreme Court rose beginning in 2011, and questioned
why the ratio of appeals also increased beginning in 2010 and
2011.
MS. MEADE said she was unsure why more cases were appealed.
COMMISSIONER DRYGAS deferred to Mr. Hemenway.
MR. HEMENWAY noted that from 2005 to 2010, a higher number of
cases were appealed and decisions published; after 2010, there
was a decrease in the number of decisions published.
REPRESENTATIVE HUGHES restated her question.
MR. HEMENWAY observed that there was a new commission chair
appointed in 2010.
4:04:23 PM
CHAIR OLSON opened public testimony on HB 214. After
ascertaining that no one wished to testify, Chair Olson
announced that public testimony would remain open.
[HB 214 was held over.]