Legislature(2003 - 2004)
04/14/2004 08:08 AM Senate JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 311-INSURANCE & WORKERS' COMPENSATION SYSTEM
CHAIR SEEKINS announced that at the last hearing on SB 311, the
committee considered a proposed committee substitute (CS),
labeled 23-G2. Since that time, Legislative Legal and Research
Services redrafted that version, which is now labeled 23-
GS2023\D and referred to as version D.
SENATOR OGAN moved to adopt version D as the working document
before the committee.
CHAIR SEEKINS announced that without objection, version D was
adopted. He noted that at the last meeting, the committee
reviewed the points of agreement between the Administration and
labor representatives on the bill and was considering an
amendment [Amendment 1], which reads as follows.
23G-2
4/2/2004
(1:51 PM)
A M E N D M E N T 1
OFFERED IN THE SENATE BY_________________
JUDICIARY COMMITTEE
TO: Proposed CSSB 311(JUD)(23-G2)
Page 38, lines 2-4:
Delete "testimony presented by a witness who appears in a
hearing. When credibility is disputed, the hearing panel's
determination of credibility must be supported by specific
findings."
Insert "a witness. A finding by the hearing panel
concerning the weight to be accorded a witness's testimony,
including medical testimony and reports, is conclusive even if
the evidence is conflicting or susceptible to contrary
conclusions. The findings of the hearing panel are subject to
the same standard of review as a jury's finding in a civil
action."
Page 41, line 4:
Delete ", hearing panel,"
Page 41, lines 5-10:
Delete "Unless not supported by specific findings, a
hearing panel's findings regarding the credibility of testimony
of a witness who appeared in the hearing is binding on the
commission, but all other findings, including the weight to be
accorded medical testimony and reports, may be set aside by the
commission. The findings of the hearing panel, if not set aside
by the commission, are conclusive."
Insert "When reviewing decisions of a hearing panel, the
commission shall use the same standard of review as that
established by the Alaska Supreme Court in workers' compensation
cases."
CHAIR SEEKINS noted that Amendment 1 was originally drafted for
incorporation into version 23-G2, therefore the page and line
numbers will have to be adjusted to mesh with version D, however
the content of the amendment remains the same.
SENATOR FRENCH moved to adopt Amendment 1.
SENATOR OGAN objected for the purpose of discussion.
CHAIR SEEKINS said that Amendment 1 was proposed by the labor
representatives, and asked Mr. John Giuchici to speak to it.
MR. JOHN GIUCHICI, representing the IBEW, told members that
without Amendment 1, the legislation would be an injustice to
the whole workers' compensation process. He stated:
If the hearing panel and the hearing officer are not
afforded any weight for future appeals or
reconsideration and all of the fact finding and
judgmental and credibility issues that are addressed
at the hearing panel level are not taken into account
in any appeal process, that is just totally unfair to
both parties. There doesn't appear to be any other
administrative bodies that totally ignore all of the
evidence and fact-finding done by the [indisc.] panel
to make the decision. For someone to just substitute
judgment at a later date and discount any factual
evidence that was used to determine something is just
totally unfair.
SENATOR OGAN asked to hear from the Administration.
CHAIR SEEKINS asked Mr. Giuchici how Amendment 1 will change the
structure of the process.
MR. GIUCHICI explained that section .122 of the current bill,
Credibility of witnesses, is currently written to give the
hearing panel the sole power to determine the credibility of
testimony presented by a witness who appears at a hearing. That
would allow a carrier to bring in a witness who does not even
actively practice medicine, and acts as a "hired gun." That
witness's testimony would supersede a deposition by an attending
physician, employees, witnesses, or medical records. He believes
it is totally lopsided to allow a carrier to hire someone to
testify, especially if that person's credentials are
questionable and whose testimony will discard the practicing
medical doctor's deposition. He said that most of the language
in Amendment 1 has been in statute for many years and has worked
well. It requires all the evidence to be considered. He
cautioned that some people make a living off of writing an
opinion for the carrier after reviewing the records. They
testify and slant the information anyway they want to.
Meanwhile, the attending physician might not be able to leave
his practice for an entire day to testify and instead does a
deposition. Amendment 1 will require the deposition from the
attending physician to carry equal weight to any expert the
carrier wants to bring in.
SENATOR OGAN declared a potential conflict of interest as he has
an active workers' compensation claim in progress.
MS. KRISTIN KNUDSEN, assistant attorney general, Department of
Law (DOL), told members that she has worked for DOL for 15 years
in the workers' compensation arena. She represented plaintiffs
in workers' compensation cases and worked as a workers'
compensation hearing officer for the State of Oregon prior to
that. She asked to address a point made by Mr. Giuchici, and
said it involves an area of the law that is subject to a lot of
misinformation and misunderstanding. That is, the concept that
if a carrier brought a witness in that person's testimony would
override a physician's testimony. She pointed out that two
things are at issue. The first is known as the standard for
reviewing findings of credibility. Credibility has to do with
whether or not a witness is telling the truth. The second area
is the weight of the evidence; that is which evidence is more
persuasive. The fact that a physician testified in person would
not give more weight to testimony given by deposition or to
reports that are detailed and explain the physician's opinion.
She continued:
So the first thing I would like to do is to reassure
Mr. Giuchici that under this current system, it is not
... something that he should worry about - a carrier
bringing in a live witness and sort of automatically
overriding the report and any deposition testimony of
a practicing physician who treated the patient.
Instead the hearing panel would have to go in and
weigh the evidence. I have, for the purposes of
clarity, attempted to give to the committee a chart in
a question and answer format on this subject of the
standard of review.
CHAIR SEEKINS announced that Senator Therriault joined the
committee some time ago.
MS. KNUDSEN referred to the chart she provided [entitled Current
System - Proposed System] and explained that under the current
system, the credibility of a witness is determined by the
workers' compensation board; that would not change under the
proposed system. In view of the Supreme Court's decision in the
Whitesides case, DOL felt the right of a witness to have his or
her credibility determined by the immediate trier of fact in
hearing is very significant. DOL wished to retain that power in
the hearing panel. The hearing panel would have the power to
weigh the evidence and make findings of fact and conclusions of
law. What is different is that on review by the Workers'
Compensation Appeals Commission, the commission would have the
power to review the whole record and look at whether the
evidence was carefully and rationally examined and to decide
whether to reweigh that evidence in the record. She pointed out
that there would be no new hearing or new evidence, which is
known as administrative review de novo on the record.
CHAIR SEEKINS asked if, under the proposed system, [the appeals
commission] would not call in new witnesses or take new
testimony, it would only review the record of the proceeding
before the panel.
MS. KNUDSEN said that is correct and has been in SB 311 from the
beginning: no new evidence would be presented to the commission
and no new hearing would take place. That system differs from
the current system, in which the Superior Court may exercise its
discretion to hold a new trial and take new testimony if it
wished to do so. In that respect, the commission is constrained
to the record. If the commission is concerned that the evidence
is inadequate, the commission could remand the case to the
hearing panel for the purpose of gathering more evidence. She
repeated there will not be a disregard for the evidence taken by
the hearing panel; instead the hearing panel will control the
intake of evidence.
MS. KNUDSEN again referred to the chart and told members that
the rule of conclusiveness basically says that when a court is
reviewing an administrative agency's decision, it should look
for substantial evidence in light of the record to determine
whether or not that agency made an appropriate decision - it
does not reweigh the evidence. In the current system, the
workers' compensation board is entitled to the rule of
conclusiveness under section .122. She described:
Now when we went to the hearing panel system, there
was some concern about,...in our current act, the
board is the only thing that's referred to and it's
the board that acts. The hearing panels act for the
whole board...and to eliminate any question as to
whether or not the hearing panels were in fact acting
for the whole board, that it was a single tier agency,
.122 was inserted in 1982.
Here we have a single administrative agency in our
current system. What we are going to in this proposed
system is a two-tiered administrative agency where you
have two tiers of adjudicatory authority. You have
your hearing panel and then you have the commission.
The commission is not a court. It is an administrative
agency and as the top tier of that administrative
agency under basic principles of administrative law,
it is the one to which the courts must give deference
in terms of its finding and that's why the current
bill is written the way it is.
SENATOR FRENCH asked if that is exactly the danger for the
employee who is appearing in front of the panel in that the
evidence that the panel weighs could be reweighed by the appeals
commission and then set in stone when it goes up on appeal to
the Supreme Court. Therefore, the appeals commission could undo
the victory that the worker won with the hearing panel and the
Supreme Court could not reweigh that evidence because the
appeals commission already did that.
MS. KNUDSEN said the proposed Workers' Compensation Appeals
Commission could reweigh the evidence but it does not have to.
Its decision would also be subject to review. The commission
must have substantial evidence in the record to support its
finding and the commission's findings are subject to Supreme
Court review.
CHAIR SEEKINS asked if the hearing panel makes a finding and the
commission changes the finding because it determines that the
record supports a different conclusion, the only avenue of
appeal would be to the Supreme Court, which would examine the
entire record in the same way the commission did.
MS. KNUDSEN said the Supreme Court would examine the entire
record, but its focus would be to determine whether the
commission's findings were supported with substantial evidence
in light of the entire record. The court, however, would not
disturb the findings on credibility because those findings are
binding on the commission. Therefore, if a worker were to
testify that an unwitnessed event occurred and that witness's
credibility was disputed, the proposed hearing panel's
determination of the worker's credibility would be binding.
SENATOR THERRIAULT asked whether the appeals commission would
have to substantiate its conclusion if it differed from the
hearing panel's conclusion. He pointed out in the current
system, a commissioner who reaches a different conclusion does
not have to substantiate that conclusion. If DOL then has to
represent the state in that case, it has no written findings on
which to base its case. For that reason, another piece of
legislation that deals with hearing panels proposes that all
conclusions be in writing.
MS. KNUDSEN said the commission is statutorily required to issue
written decisions based on findings of fact and conclusions of
law. The statute specifies that if the commission does not
disturb the findings of the hearing panel, those findings are
considered as adopted if the case is not appealed to the Supreme
Court.
SENATOR FRENCH felt the question regarding the written decisions
and the record made in front of the workers' compensation board
right now deserves examination so that the committee does not
proceed on a false premise. He looked at decisions on the
workers' compensation board's website and found them to be quite
comprehensive. He distributed two of those decisions to show
members the thoroughness of the work done by the current board
and that workers do not win all cases. He said he was responding
to Senator Therriault's comment that sometimes the record is
unwritten or unsubstantiated.
SENATOR THERRIAULT clarified that the other legislation he
referred to does not apply to the workers' compensation board.
His goal is to assure that the same standard of documentation
that the legislature would be requiring for other appeals
processes is the same as the workers' compensation board.
MR. GIUCHICI interjected to ask what the objection is to using
the standard of review used by a jury in a civil action.
MS. KNUDSEN explained that the current statutory standard is the
standard applied by the Supreme Court when it is reviewing the
board's decision. She continued:
What we are talking about is not really changing the
Supreme Court's standard of review. The reviewing
court's standard of review, looking down, isn't really
changing. What is changing is which tier of this
proposed administrative agency that standard is
applied to. Getting to Senator Therriault's point,
it's a very basic principle of administrative law that
the - what we call the conclusiveness, the standard of
review that's applied, the findings of fact, are
entitled to the same as a jury - that kind of thing,
is applied to the director's decision or the
commissioner's decision if it's a regular
administrative appeal through an administrative body
and...the commissioner's decision, the one that's
appealed into the court and precisely because of the
problem that Senator Therriault raised, it's sometimes
difficult to figure out what the commissioner's
findings of fact were. In this situation, what is
being proposed is simply that the proposed commission
as the highest level of this administrative body would
be subject to that standard of review instead of the
lowest body of this administrative body. We don't, as
a rule...it would not be an orthodox way of looking at
an administrative structure.
Number two, this idea of the higher body having the
rule of conclusiveness, the standard of review that is
articulated here, is the majority rule. As Larson has
said, this is the majority rule and in its most
orthodox form no exception is made even for
determinations of credibility. We are modifying that
here into what is called the modified majority rule
because we are making an exception for determinations
of credibility, which really, you know, need to be by
this hearing panel so that witnesses, a claimant, or
an employer coming before the hearing panel has the
opportunity to go face-to-face with the person who is
determining credibility.
The other thing is that this kind of a system, this
two-tiered administrative system that we're proposing
here, promotes the consistency that we're looking for.
It also is in line with what the National Commission
on State Compensation Law report provided. It provides
an error check, if you will, a check by experts in the
field who are going in this proposed bill, this
committee substitute, going to be drawn from varied
backgrounds so [there will] be an employee attorney on
this panel, there will be an employer attorney on the
panel. So there is a balance on the commission itself,
as well as a balance on the hearing panel....
I just wanted to add one more final point, and that is
that for some reason some attorneys have mentioned
that they're concerned with the idea this change in
the standard of review might somehow bleed over and
somehow change the standards for a stay pending appeal
and I just wanted to reassure the members of the
committee that that was not intended. The assignment
of conclusiveness to review by the highest level of
the adjudicatory agency does not alter the standards
for the grant of a stay pending review by the
commission and that there was no intent to repeal
Olson Logging versus Larson.
SENATOR FRENCH said his question goes to a fundamental point
that has been raised repeatedly about the appeals commission,
and that is that DOL is looking for consistency. He asked what
evidence DOL can provide that the decisions issued by the
workers' compensation board are inconsistent and whether that
evidence is backed by a high reversal rate at the court level.
MS. KNUDSEN said she has not counted reversal rates but she
tried to prepare for the committee some information illustrating
why the commission should have the discretion to review and
reweigh evidence. She said she could provide copies of decisions
after the meeting, but did not want to disclose the names of
employers. She noted in one case, an employee worked at a remote
site and was later diagnosed with hepatitis C by a local
physician. He also obtained a "checkbox" letter, which is a
letter written by his attorney to the physician asking whether
the physician believed the disease was work related. The
physician believed it was. In the meantime, a second employee
was diagnosed with hepatitis C in the field. The employer had
that employee examined by experts at Stanford University. That
examination was disputed so the board sent the second man to
Scripps Institute in La Jolla. The experts from Stanford and
Scripps testified that it was very unlikely that employee had
contracted hepatitis C at the remote site, though it was
remotely possible. The board found in its decision the checkbox
letter to be more definitive than the expert testimony. The
board believed the close temporal relationship was important,
even though the experts testified that hepatitis C can be
asymptomatic for a very long time. The board's decision was also
based on the fact that the employer could not prove the employee
contracted the disease elsewhere.
MS. KNUDSEN said in that type of a situation, the appellant
might want to ask the commission to reweigh the evidence. In
that case, the other co-worker gave permission for his lab
results to be presented to the board, which the board cannot
compel. Those results showed the two men to have different
genotypes of the virus. The following year, the board
determined that it was medically impossible for the first
employee to have contracted the disease [from the other
employee]. She told members that "medically impossible" is not
the standard an employer has to meet.
MS. KNUDSEN said in the next case that she looked at, which
contained similar characteristics with expert examination and a
checkbox letter, the board said the checkbox letter had no
indicia of reliability. She said that is the kind of
inconsistency that will be addressed by the commission.
SENATOR OGAN asked Ms. Knudsen if she believes that
inconsistency is due to the structure of the existing system and
that Amendment 1 would undermine that.
MS. KNUDSEN said she does. The idea of the CS is to provide a
binding level of review by experts in the field at an
administrative level before the case goes to the courts. DOL
feels the commission needs the discretion to reweigh evidence or
to remand the case to the hearing panel to gather more evidence.
CHAIR SEEKINS asked what the commission would do, if in the case
she mentioned, the review got to the commission and it
questioned the decision based on the evidence.
MS. KNUDSEN said she could argue before the commission that it
should remand the case to the hearing panel for more evidence or
that the evidence should be reweighed.
CHAIR SEEKINS asked if the commission overturned the hearing
panel's decision and the case was appealed to the Supreme Court,
what the Supreme Court would review.
MS. KNUDSEN said the Supreme Court would review the commission's
findings of fact.
TAPE 04-38, SIDE B
She continued to explain the commission would be bound by the
credibility determinations, for example the testimony of the
worker, so the credibility determinations would "go up" with the
commission's findings of fact. The Supreme Court would look at
the commission's findings of fact and determine whether those
findings were supported with substantial evidence. She added
that in that case, the presumption of compensability was
overcome and "they are in the mode of weighing the evidence."
She further explained that would not happen if the presumption
of compensability was not overcome.
SENATOR FRENCH stated that if the workers' compensation board is
making inconsistent decisions, something more than an anecdote
would prove Ms. Knudsen's case. He asked her to provide the
committee with statistics showing the decisions are all over the
map. He then commented the current system is a three-tiered
system: workers' compensation board, Superior Court, Supreme
Court. Because people see this legislation as removing the
middle layer of review, he suggested keeping the current
standard of review in place to increase confidence in the new
system for the time being. That way, people will know what legal
rules and standard of review will apply when they go in front of
the appeals commission.
CHAIR SEEKINS took public testimony.
MR. CHUCK LUNDEEN (ph), chief counsel Liberty Northwest
Insurance, said, in response to both Mr. Giuchici and Senator
French's concern about fairness, he read the proposed CS and
finds that it clearly states that there has to be a full review
of all of the evidence at the appeals commission level. He feels
fairness to both employers and employees would be part of the de
novo review process. Everyone will have an open shot at
reviewing a lower level decision and reweighing the evidence. He
stated support for the bill but opposition to Amendment 1.
MR. MIKE JENSEN told members he represents injured workers
before the workers' compensation board and in the long shore
workers and federal workers' compensation system. He noted he
submitted written testimony to the committee expressing his
concerns with the bill but further stated:
The amendment dealing with the credibility issue is
.122. The way we read the credibility amendment is
that the hearing panel will only have the power to
determine the credibility of testimony presented by a
witness. Now testimony presented by a witness - it
adds the words who appears in a hearing, which, in
other words, means that a hearing panel will not have
the authority to decide credibility issues on anybody
who is not present at the hearing, whose testimony is
presented through deposition or who submits medical
reports. So, for example, treating doctors, their
credibility could not be determined unless they
testified at a hearing. Employer experts - their
credibility could not be determined unless they
testified at a hearing. Employers - their credibility
could not be determined unless they testified at a
hearing. And, for that matter, injured workers, their
credibility could also not be determined by the
hearing panel unless they testified at a hearing. By
leaving the present language in the current act in
place, the hearing panel has the power to consider the
weight to be accorded witness testimony, including
medical testimony and reports. It does not limit
itself to those people who testify at a hearing. We
think that change is very important, not just for
employees, but also for employers. What we're trying
to prevent here is the increasing costs that currently
injured workers have to bear when pursuing their
compensation case. But, in effect, and this is unusual
for me to say representing injured workers, we're also
trying to save the industry some of the costs by
adopting these changes the way we see it. Both
parties will have two bites of the apple. There will
be no disincentive to either party to go and retry
their cases, in effect, or re-present their cases and
their arguments to the commission. I was concerned
that it would greatly increase the amount of time it
takes to resolve a claim, which is in nobody's
interest. Number two, it would greatly increase the
cost of pursuing a claim, which again is in nobody's
interest. In addition, that's just the cost to the
parties - in addition there's the cost to the State of
Alaska of creating a new bureaucracy that this bill
entails.
MR. JENSEN said in response to the case Ms. Knudsen referred to,
bad facts make bad law and the legislature should not make the
changes dealing with credibility and the weight of evidence
based upon one case. There is no guarantee a commission will be
any better. Any changes should be based on empirical data. He
said the current system is fair and he sees no need for change.
CHAIR SEEKINS asked Ms. Knudsen if it is DOL's intent, in
relation to section .122, that the hearing would not have the
same opportunity to weigh the evidence of a witness that does
not appear before it, for example, testimony in the form of
reports or records.
MS. KNUDSEN said it is not the intent to deprive the hearing
panel of the power to exercise its authority to determine
credibility, whether that be through depositions. The issue that
DOL was addressing by inserting "at a hearing" was not to limit
the hearing panel's authority but to clarify that the witnesses'
right to have their credibility determined at a hearing was
protected by that credibility determination being binding all
the way up. She said credibility determinations by the trier of
fact are generally subject to a very high standard of review.
SENATOR OGAN asked for a yes or no answer to the question of
whether the witness must be present at the hearing.
MS. KNUDSEN said the witness does not have to be present to have
a credibility determination by the hearing panel. She said the
words "at a hearing" were included in response to the Whiteside
decision.
CHAIR SEEKINS maintained that if a person appears before the
panel, that panel is the sole determiner of credibility.
MS. KNUDSEN agreed and said the panel is the sole determiner
regardless, however if the person appears before the panel, that
determination is binding and cannot be changed by the
commission.
CHAIR SEEKINS asked Mr. Giuchici if that was his understanding.
MR. GIUCHICI said it was not. He questioned, if that is the
case, why the current language is unacceptable.
MS. KNUDSEN said the current law does two things in one statute.
It addresses credibility and it addresses the conclusiveness of
a finding of fact that being the weight assigned by the board to
particular evidence. Credibility and weight differ; credibility
goes to truthfulness while weight is based not only on truth but
on opinion. Lay witnesses can also have honest differences in
perception or recall without those differences impacting their
credibility. She said the credibility issue is not disturbed in
the proposed CS.
SENATOR THERRIAULT pointed to Section 61 on page 37 and said the
language could be clarified.
MS. KNUDSEN said she would take a look at rewriting it.
CHAIR SEEKINS asked Ms. Knudsen to tell members what standard is
used in a jury's finding in a civil action, which Mr. Giuchici
referred to.
MS. KNUDSEN said the Supreme Court's standard of review in
relation to the workers' compensation board is that the Supreme
Court upholds the findings of fact of the board if they are
supported by substantial evidence in light of the entire record.
Substantial evidence is evidence that is relevant and that a
reasonable mind might expect to support the conclusion.
CHAIR SEEKINS jested that everyone who agrees with him is
reasonable.
MS. KNUDSEN said different standards apply to overturn a jury
verdict. For a new trial, there must have been such slight or no
evidence to support the jury verdict. For a directed verdict,
the standard is something that no reasonable minds could differ
about.
CHAIR SEEKINS asked Ms. Knudsen if DOL's intent was to not allow
the determination of the credibility of a witness who appeared
before a hearing panel to be questioned at a higher level.
MS. KNUDSEN said that is correct because the witness's right is
being protected.
SENATOR FRENCH asked Ms. Knudsen, as she works on that language,
to address the credibility determination with respect to a
deposition or medical report. He then said that Amendment 1 does
that well and will give people confidence that the hard work
done at the trial level in the workers' compensation system will
not be tampered with as it moves up the chain.
CHAIR SEEKINS commented that everyone wants justice, not
something to be tampered with.
SENATOR FRENCH acknowledged that "tampering" was a poor choice
of words.
MS. KNUDSEN asked that Mr. Nordstrand speak to the "at the
hearing" issue.
MR. SCOTT NORDSTRAND, Deputy Attorney General, Civil Division,
Department of Law, said that phrase goes to the theory that the
determination of credibility of a witness should be deferred to
the people who actually see the witness and watch the witness's
reaction to questions in the courtroom. He said in contrast, a
deposition can be in written transcript form or a pre-made
video, which is the reason for the distinction between witnesses
who give testimony in person. He suggested that a good
compromise would be to remove "at the hearing" so as to include
depositions and reports. He noted that differs from Senator
French's amendment because it addresses both credibility and
weight.
CHAIR SEEKINS referred to the second sentence of Amendment 1,
"When credibility is disputed, the hearing panel's determination
of credibility must be supported by specific findings," and
asked if the panel would have to support its determination of
credibility based on findings when determining credibility among
witnesses whose testimony conflicts.
MR. NORDSTRAND said that is correct and explained that to get to
the deferential standard, the panel must give reasons for its
credibility determination. Under the existing system, if the
facts are not there, the Supreme Court can overturn that
determination.
CHAIR SEEKINS asked Mr. Giuchici his understanding of that
sentence.
MR. GIUCHICI said he still does not understand why the words
"who appears at a hearing" must be included.
CHAIR SEEKINS noted Mr. Nordstrand suggested that phrase be
removed. He then said it appears that this section deals with
the process before the hearing panel, not the review process
later on.
MS. KNUDSEN said that is correct.
CHAIR SEEKINS asked if [the current board] supports its
determinations of credibility with findings when two witnesses
are in opposition.
MR. GIUCHICI said absolutely.
CHAIR SEEKINS said in effect, the CS codifies the existing
practice.
MS. KNUDSEN affirmed that is correct. She noted the Supreme
Court brought this issue to the fore in the Hawk (ph) case.
SENATOR THERRIAULT asked Ms. Knudsen if she added that phrase in
response to a particular court case.
MS. KNUDSEN said it was added because of DOL's concerns about
the Whitesides case, however she does not believe removing that
phrase will impair the hearing panel's ability to comply with
Whitesides.
CHAIR SEEKINS asked if, in the second sentence of Amendment 1,
the credibility dispute must be confined to the hearing process.
MS. KNUDSEN said that is correct and is simply a codification of
the current state of the law.
CHAIR SEEKINS asked if removing the words "who appears at a
hearing" will do any damage to DOL's intent.
MS. KNUDSEN said it will not.
The committee took a 3-minute recess at 9:35 a.m. Upon
reconvening, Senators French, Therriault and Seekins were
present.
CHAIR SEEKINS asked both Mr. Giuchici and Mr. Nordstrand if they
were agreeable to that change, as well as changing the second
sentence of Amendment 1 by adding "before the hearing panel"
after "disputed". He said that would confine this process to
what happens in front of the hearing panel.
MR. GIUCHICI said he is comfortable with that language, with
Section .122
MR. NORDSTRAND was also agreeable to that change.
CHAIR SEEKINS announced a brief recess to await the arrival of
other members. Upon reconvening, members discussed amending
Amendment 1, made several attempts to do so and discussed
rewriting Amendment 1 altogether for the purpose of clarity.
TAPE 04-39, SIDE A
A roll call vote was taken on Amendment 1. The motion to adopt
Amendment 1 failed with Senators Ellis and French in favor and
Senators Ogan, Therriault and Seekins opposed.
SENATOR THERRIAULT moved to adopt Amendment 2, to rewrite Sec.
122 on lines 26 through 29 on page 37 to read:
Sec. 23.30.122 Credibility of witnesses. The hearing panel
has the sole power to determine the credibility of testimony
presented by a witness. When credibility is disputed in a
procedure before the hearing panel, the panel's determination of
credibility must be supported by specific findings.
CHAIR SEEKINS announced that Amendment 2 was adopted with no
objection.
SENATOR FRENCH moved to adopt Amendment 3, which reads as
follows. [Amendment 3 contains the content of lines 10 through
22 of Amendment 1. Page and line numbers will need correction.]
A M E N D M E N T 3
Page 41, line 4:
Delete ", hearing panel,"
Page 41, lines 5-10:
Delete "Unless not supported by specific findings, a
hearing panel's findings regarding the credibility of testimony
of a witness who appeared in the hearing is binding on the
commission, but all other findings, including the weight to be
accorded medical testimony and reports, may be set aside by the
commission. The findings of the hearing panel, if not set aside
by the commission, are conclusive."
Insert "When reviewing decisions of a hearing panel, the
commission shall use the same standard of review as that
established by the Alaska Supreme Court in workers' compensation
cases."
SENATOR THERRIAULT objected for the purpose of discussion.
SENATOR FRENCH told members the thrust of Amendment 3 is to have
the appeals commission use the Superior Court's standard of
review; the Supreme Court would retain its standard of review.
He said that will give the players in the system confidence that
the same legal standards that apply now to the workers'
compensation board will apply in the future.
MR. GIUCHICI said that is the intent of the claimants,
representatives and labor folks he has spoken with.
MS. KNUDSEN pointed out that Amendment 3 creates some
incongruity because the director of the division of workers'
compensation makes some decisions. Senator French's proposal
would not apply to those decisions while the hearing panel's
decisions would be subject to a different standard of review.
She advised that the administrative system will have to work as
a whole. In that system, the commission will be the top decision
maker, therefore the commission's findings should be subjected
to the deference accorded by the courts to the final decision
maker in an administrative proceeding. She emphasized this is an
administrative/agency system, not a court system, so the same
basic principles of administrative law should apply to the
entire system.
CHAIR SEEKINS said Amendment 3 would apply to a review, not a
hearing.
MS. KNUDSEN said that is correct. No new hearing, testimony or
trial is contemplated. In that respect, it is very different
from the court system because it can hold an entirely new
hearing.
MR. GIUCHICI responded:
I disagree with Kris in the respect that the director
has administrative decisions made and that's all fine
with us with self-insured certificates and that
nature. The panel still [indisc.] jury in the decision
making process so I just think that those types of
acts should be reserved and not confused with the
director's [indisc.].
I think that the director doing administrative work is
totally separate from the hearing panel that is acting
as a sort of jury and coming up with decisions for
lawyers and plaintiffs.
10:00 a.m.
CHAIR SEEKINS asked if Amendment 3 is a restatement of what the
committee just discussed about the hearing panel's findings
being binding on the commission.
MS. KNUDSEN said it is the original language of the bill and was
intended to restate the requirements in section .122. With the
adoption of Amendment 2, the deletion would not affect the
requirement of specific findings that need to be made by the
commission. She clarified that it is a redundancy but is
intended to re-emphasize that the hearing panel determines
credibility.
SENATOR THERRIAULT asked Senator French why he would want to
delete the phrase, "Unless not supported by specific findings, a
hearing panel's findings regarding the credibility of testimony
of a witness who appeared in the hearing is binding on the
commission," since the committee had a lengthy discussion about
the fact that the determination of credibility would be binding.
He thought leaving that language intact would provide extra
comfort.
SENATOR FRENCH responded by saying he did not prepare the
amendment himself, but the crucial issue is the weight to be
accorded medical testimony and the other findings. He explained
that the heart of the issue is that the winning side does not
"get some cement, if you will, poured over that win and then it
goes forward under a tighter standard of review."
He then moved to amend Amendment 3 to delete (on lines 14-16):
AMENDMENT TO AMENDMENT 3
Delete "Unless not supported by specific findings, a
hearing panel's finings regarding the credibility of
testimony of a witness who appeared in the hearing is
binding on the commission,"
And begin Amendment 3 with the word "but" on line 16,
CHAIR SEEKINS referred to line 31 on page 40 of version D and
noted the phrase, "unless not supported by specific findings" is
not in version D.
SENATOR FRENCH offered to redraft Amendment 3 and withdrew his
motion to adopt it.
10:10 a.m.
CHAIR SEEKINS agreed and recessed the meeting until 5:30 p.m.
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