Legislature(2005 - 2006)
05/21/2005 12:49 PM Joint 130
| Audio | Topic |
|---|---|
| Start | |
| SB130 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
FREE CONFERENCE COMMITTEE ON SB 130
May 21, 2005
12:49 p.m.
MEMBERS PRESENT
Senator Gene Therriault, Chair
Senator Charlie Huggins
Senator Hollis French
Representative Norm Rokeberg, Vice-Chair
Representative Tom Anderson
Representative Eric Croft
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
CCS SB 130(FLD H)
"An Act relating to workers' compensation and to assigned risk
pools; relating to the Alaska Insurance Guaranty Association;
establishing the Task Force on Workers' Compensation; amending
Rule 45, Alaska Rules of Civil Procedure; and providing for an
effective date."
MOVED FCCS SB 130 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 130
SHORT TITLE: WORKERS' COMPENSATION/ INSURANCE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/03/05 (S) READ THE FIRST TIME - REFERRALS
03/03/05 (S) L&C, FIN
03/08/05 (S) L&C AT 1:30 PM BELTZ 211
03/08/05 (S) Heard & Held
03/08/05 (S) MINUTE(L&C)
03/10/05 (S) L&C AT 1:30 PM BELTZ 211
03/10/05 (S) Heard & Held
03/10/05 (S) MINUTE(L&C)
03/15/05 (S) L&C AT 1:30 PM BELTZ 211
03/15/05 (S) Heard & Held
03/15/05 (S) MINUTE(L&C)
03/17/05 (S) L&C AT 1:30 PM BELTZ 211
03/17/05 (S) Heard & Held
03/17/05 (S) MINUTE(L&C)
03/22/05 (S) L&C AT 1:30 PM BELTZ 211
03/22/05 (S) Heard & Held
03/22/05 (S) MINUTE(L&C)
03/24/05 (S) L&C AT 2:00 PM BELTZ 211
03/24/05 (S) Heard & Held
03/24/05 (S) MINUTE(L&C)
03/29/05 (S) L&C AT 1:30 PM BELTZ 211
03/29/05 (S) -- Meeting Canceled --
03/31/05 (S) L&C AT 1:30 PM BELTZ 211
03/31/05 (S) Moved CSSB 130(L&C) Out of Committee
03/31/05 (S) MINUTE(L&C)
04/01/05 (S) L&C RPT CS 2DP 1NR 2AM
NEW TITLE
04/01/05 (S) DP: BUNDE, STEVENS B
04/01/05 (S) REPRESENTATIVE ROKEBERG SENATOR SEEKINS
04/01/05 (S) AM: DAVIS, ELLIS
04/01/05 (S) JUD REFERRAL ADDED AFTER L&C
04/05/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/05/05 (S) Heard & Held
04/05/05 (S) MINUTE(JUD)
04/06/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/06/05 (S) Heard & Held
04/06/05 (S) MINUTE(JUD)
04/07/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/07/05 (S) Heard & Held
04/07/05 (S) MINUTE(JUD)
04/08/05 (S) JUD RPT CS FORTHCOMING 1DP 4NR
04/08/05 (S) DP: SENATOR SEEKINS
04/08/05 (S) REPRESENTATIVE ROKEBERG FRENCH, GUESS,
THERRIAULT, HUGGINS
04/08/05 (H) JUD AT 8:00 AM CAPITOL 120
04/08/05 (S) Moved CSSB 130(JUD) Out of Committee
04/08/05 (S) MINUTE(JUD)
04/08/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/08/05 (S) <Pending Referral>
04/11/05 (S) FIN RPT CS 5DP 1NR 1AM
NEW TITLE
04/11/05 (S) DP: GREEN, WILKEN, BUNDE, DYSON,
STEDMAN
04/11/05 (S) REPRESENTATIVE ROKEBERG HOFFMAN
04/11/05 (S) AM: OLSON
04/11/05 (S) JUD CS RCVD NEW TITLE
04/11/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/11/05 (S) Moved CSSB 130(FIN) Out of Committee
04/11/05 (S) MINUTE(FIN)
04/14/05 (S) TRANSMITTED TO (H)
04/14/05 (S) VERSION: CSSB 130(FIN) AM
04/15/05 (H) READ THE FIRST TIME - REFERRALS
04/15/05 (H) L&C, JUD, FIN
04/15/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/15/05 (S) Moved Out of Committee 4/11
04/15/05 (S) MINUTE(FIN)
05/04/05 (H) L&C RPT HCS(L&C) 2DP 3NR 2AM
(FORTHCOMING)
05/04/05 (H) DP: KOTT, LEDOUX;
05/04/05 (H) REPRESENTATIVE ROKEBERG, CRAWFORD,
LYNN, GUTTENBERG;
05/04/05 (H) AM: ROKEBERG, ANDERSON
05/04/05 (H) L&C AT 2:00 PM CAPITOL 17
05/04/05 (H) Moved HCS CSSB 130(L&C) Out of
Committee
05/04/05 (H) MINUTE(L&C)
05/05/05 (H) HCS(L&C) NT RECEIVED
05/05/05 (H) JUD AT 1:00 PM CAPITOL 120
05/05/05 (H) Failed To Move Out Of Committee
05/05/05 (H) MINUTE(JUD)
05/05/05 (H) FIN AT 1:30 PM HOUSE FINANCE 519
05/05/05 (H) <Pending Referral>
05/06/05 (H) JUD RPT HCS(JUD) NT 3DP 3NR 1AM
05/06/05 (H) DP: KOTT, COGHILL, GARA;
05/06/05 (H) REPRESENTATIVE ROKEBERG, GRUENBERG,
DAHLSTROM, MCGUIRE;
05/06/05 (H) AM: ANDERSON
05/06/05 (H) FIN RPT HCS(JUD) NT 9NR
05/06/05 (H) REPRESENTATIVE ROKEBERG HAWKER, HOLM,
FOSTER, STOLTZE, REPRESENTATIVE CROFT,
WEYHRAUCH, JOULE, MOSES, MEYER
05/06/05 (H) JUD AT 1:00 PM CAPITOL 120
05/06/05 (H) Moved HCS CSSB 130(JUD) Out of
Committee
05/06/05 (H) MINUTE(JUD)
05/06/05 (H) FIN AT 1:30 PM HOUSE FINANCE 519
05/06/05 (H) <Pending Referral>
05/08/05 (H) BEFORE THE HOUSE
05/08/05 (H) VERSION: HCS CSSB 130(JUD) AM H
05/09/05 (S) CONCURRENCE MESSAGE READ AND HELD
05/09/05 (S) CONFERENCE COMMITTEE APPOINTED
05/09/05 (S) B. STEVENS (CHAIR), SENATOR SEEKINS,
GUESS
05/09/05 (H) SPECIAL SESSION BILL - SEE H. JOURNAL
PAGE 1854
05/09/05 (H) RECEDE MESSAGE READ
05/09/05 (H) CONFERENCE COMMITTEE APPOINTED
05/09/05 (H) HARRIS, COGHILL, GUTTENBERG
05/09/05 (S) SPECIAL SESSION BILL - SEE S. JOURNAL
PAGE 1493
05/11/05 (H) 130 AT 7:00 PM BUTROVICH 205
05/11/05 (H) <Meeting Canceled>
05/12/05 (H) 130 AT 5:30 PM BUTROVICH 205
05/12/05 (H) -- Meeting Canceled --
05/13/05 (S) LIMITED POWERS FREE CONFERENCE GRANTED
05/13/05 (S) CC REPORT: CCS SB 130
05/13/05 (S) CC RPT ADPTD Y11 N6 E3 CCS SB 130
05/13/05 (H) LIMITED POWERS FREE CONFERENCE GRANTED
05/13/05 (H) CC REPORT READ
05/13/05 (H) 130 AT 9:00 AM BUTROVICH 205
05/13/05 (H) Moved CCS SB 130 Out of Committee
05/13/05 (H) MINUTE(130)
05/17/05 (H) CC REPORT FAILED Y20 N20
05/19/05 (S) FREE CONFERENCE COMMITTEE APPOINTED
05/19/05 (S) THERRIAULT (CHAIR), HUGGINS, FRENCH
05/20/05 (H) FREE CONFERENCE COMMITTEE APPOINTED
05/20/05 (H) ROKEBERG (CHAIR), ANDERSON, CROFT
05/20/05 (H) CC WITH LIMITED POWERS DISCHARGED
05/20/05 (H) 130 AT 3:00 PM BUTROVICH 205
05/20/05 (S) WORKERS' COMPENSATION/ INSURANCE
05/21/05 (H) 130 AT 12:00 AM BUTROVICH 205
WITNESS REGISTER
Ms. Kristin Knudsen
Assistant Attorney General
Department of Law
th
1031 W 4 Ave.
Anchorage, AK 99501-1994
POSITION STATEMENT: Answered questions related to SB 130
Mr. Paul Lisankie
Division of Workers' Compensation
Department of Labor & Workforce Development
PO Box 25512
Juneau, AK 99802-5512
POSITION STATEMENT: Answered questions related to SB 130
ACTION NARRATIVE
CCS SB 130-WORKERS' COMPENSATION/INSURANCE
CHAIR GENE THERRIAULT called the Free Conference Committee on SB
130 to order at 1:18:09 PM. Senators Therriault, French, and
Huggins and Representatives Croft, Anderson and Rokeberg were
present.
CHAIR THERRIAULT moved to adopt Amendment 10, labeled R.27,
which reads as follows:
24-GS1112\R.27
Bullock
A M E N D M E N T 10
OFFERED IN CONFERENCE BY SENATOR THERRIAULT
TO: CCS SB 130
Page 10, following line 7:
Insert a new bill section to read:
"* Sec. 9. AS 23.30.010 is repealed and reenacted
to read:
Sec. 23.30.010. Coverage. (a) Except as
provided in (b) of this section, compensation or
benefits are payable under this chapter for disability
or death or the need for medical treatment of an
employee if the disability or death of the employee or
the employee's need for medical treatment arose out of
and in the course of the employment. To establish a
presumption under AS 23.30.120(a)(1) that the
disability or death or the need for medical treatment
arose out of and in the course of the employment, the
employee must establish a causal link between the
employment and the disability or death or the need for
medical treatment. A presumption may be rebutted by a
demonstration of substantial evidence that the death
or disability or the need for medical treatment did
not arise out of and in the course of the employment.
When determining whether or not the death or
disability or need for medical treatment arose out of
and in the course of the employment, the board must
evaluate the relative contribution of different causes
of the disability or death or the need for medical
treatment. Compensation or benefits under this
chapter are payable for the disability or death or the
need for medical treatment if, in relation to other
causes, the employment is the substantial cause of the
disability or death or need for medical treatment.
(b) Compensation and benefits under this chapter
are not payable for mental injury caused by mental
stress, unless it is established that (1) the work
stress was extraordinary and unusual in comparison to
pressures and tensions experienced by individuals in a
comparable work environment; and (2) the work stress
was the predominant cause of the mental injury. The
amount of work stress shall be measured by actual
events. A mental injury is not considered to arise
out of and in the course of employment if it results
from a disciplinary action, work evaluation, job
transfer, layoff, demotion, termination, or similar
action taken in good faith by the employer."
Renumber the following bill sections accordingly.
Page 49, line 1:
Delete "sec. 65"
Insert "sec. 66"
Page 50, line 20:
Delete "sec. 53"
Insert "sec. 54"
Page 50, line 21:
Delete "sec. 53"
Insert "sec. 54"
Page 52, line 15:
Delete "sec. 34"
Insert "sec. 35"
Page 52, line 23:
Delete "sec. 65"
Insert "sec. 66"
Page 52, line 24:
Delete "sec. 76"
Insert "sec. 77"
Page 52, line 26:
Delete "Sections 34, 77, and 82(a)"
Insert "Sections 35, 78, and 83(a)"
Page 52, line 28:
Delete "Sections 1, 2, 53, and 83"
Insert "Sections 1, 2, 54, and 84"
Page 52, line 29:
Delete "secs. 85 and 86"
Insert "secs. 86 and 87"
REPRESENTATIVE CROFT objected.
CHAIR THERRIAULT asked Mr. Lisankie and Ms. Knudsen to come
forward to answer questions.
REPRESENTATIVE ROKEBERG told members he planned to propose a
follow-up amendment to remove some of the language omitted from
Amendment 10.
CHAIR THERRIAULT said he would be moving a modification to
Section 66 as Amendment 11.
REPRESENTATIVE CROFT asked for an explanation of Amendment 10.
1:19:18 PM
MS. KRISTIN KNUDSEN, Assistant Attorney General, Department of
Law, told members that lines 4-13 on page 1 essentially
encapsulates the current law with respect to how the operation
of the presumption works. To establish the presumption under AS
23.30.120(a)(1) that an injury is compensable under the workers'
compensation act, a work connection must be established. Once
that presumption is established, the employer can rebut it with
substantial evidence using one of two methods that are well
established in law. The next sentence is new (lines 14-17) in
the sense that it directs the board, when determining that the
work is a substantial cause of the injury, to consider it in
relation to all other causes. In other words, the board cannot
look at the work in isolation to determine whether it was a
substantial cause of the injury.
SENATOR FRENCH asked how the board makes that determination now.
MS. KNUDSEN said assuming the presumption has dropped out, the
board looks at the work and asks: But for the work would the
injury have occurred and was it so important in bringing about
the harm that a reasonable man would regard it as a cause and
assign responsibility to it? She explained that question is the
substantial test that all lawyers in the state are familiar
with. Amendment 10 does not alter that; it just says when
looking at whether a factor is substantial the board must also
look at other factors.
REPRESENTATIVE ANDERSON said he sees Amendment 10 as a more
palatable hybrid of where the committee wants to go. Lines 14-20
make the difference, that being if an issue arises about
substantial cause, the decision reverts to the board because
employers won't want to negotiate that issue with each other. He
asked if the purpose of Amendment 10 is to provide more scrutiny
on the question of who will pay.
MS. KNUDSEN said that is the second change. She explained the
first change is not as big because when determining
substantiality, the presumption has been overcome. An employer
will bring forth evidence of other causes. That does not impact
the bar for recovery. The second sentence pinpoints the more
significant difference.
1:25:50 PM
REPRESENTATIVE ANDERSON asked if the standard were the current
"a substantial" versus "the substantial," the current employer
would have to pay 70 to 90 percent of the time. He pointed out
the injury would be covered one way or the other - by Medicaid
if nothing else; the debate is about who will pay.
SENATOR FRENCH interjected and asked about lost wages.
REPRESENTATIVE ANDERSON said he would get to that later and
asked if Amendment 10 will afford more scrutiny of coverage.
MS. KNUDSEN said it does require the board to expand its
scrutiny but the board is not prohibited from doing that now.
Lines 14-17 do not represent anything other than a directive to
the board that when determining "a substantial factor" or "the
substantial factor," to review all factors.
REPRESENTATIVE CROFT asked about the statute of limitations for
workers' compensation claims.
1:28:03 PM
MS. KNUDSEN said the statute of limitation runs 2 years after
the date of injury but no longer than 4 years after the date of
injury. If the injury is latent, the time period begins after
discovery. In the case of death it is one year. She added the
statute does not begin to run until the person is aware of a
connection between the disability and work.
REPRESENTATIVE CROFT said at its previous meeting the committee
discussed cases where this could be unfair. He gave the example
of a case where an employee could have been breathing the same
toxins on many jobs and the responsibility could fall on the
last employer whose employment contributed but who may not have
been the major factor. He asked if Amendment 10 will create the
same problem and whether many employees will "fall through the
cracks."
MS. KNUDSEN said the crack here is much narrower than it would
be using the major contributing factor standard. The Alaska
Supreme Court has drawn a distinction between "a substantial
cause" and "the substantial cause" but it has not indicated that
"the substantial cause" is equivalent to "the major contributing
factor."
1:32:02 PM
CHAIR THERRIAULT asked if Amendment 10 presents a much lower
standard than "the major contributing cause" standard.
MS. KNUDSEN said in her estimation, the term "the substantial
cause" speaks to the possibility of many causes and determining
whatever constitutes substantial in the minds of reasonable men.
The word "major" differs in that it implies that a comparison
must be made to determine the highest cause.
REPRESENTATIVE ANDERSON asked if "the substantial" is the lower
threshold or Amendment 10 would not be before the committee
again.
MS. KNUDSEN said that is not to say it is the same as the
current standard.
REPRESENTATIVE CROFT maintained that Amendment 10 clearly
contemplates that one cause will be compared to another.
1:33:20 PM
MS. KNUDSEN said the first sentence clearly contemplates that
substantiality would be determined in comparison to other causes
if other causes exist. The supreme court originally determined
substantial factor in Sharp versus the North Star Borough by
examining two competing causes. In workers' compensation cases,
there has been a tendency to forget the comparative analysis of
work relationship. Amendment 10 only tells the board to
determine substantiality in relation to other causes.
REPRESENTATIVE CROFT asked if an employer cannot be "the"
substantial cause under Amendment 10 if something else is more
of a cause.
MS. KNUDSEN said that is correct.
1:35:19 PM
REPRESENTATIVE CROFT asked if, in a situation where someone
worked with asbestos at one job for 12 years and at another for
5 years and started to feel sick, the board could determine that
the 5 year employment wasn't the substantial cause but the
employee would be prevented from suing the earlier employer
because he should have known of the illness within two years [of
leaving the first job].
MS. KNUDSEN said that would not be the case because Amendment 10
was drafted in the disjunctive. The board must look at the
disability at the time the claim was filed or when medical
treatment was occasioned by the employment. If a person had 8
years of exposure in a shipyard, continued to be employable and
did not experience any symptoms, the subsequent employer would
have a difficult time establishing that the latest employment
was not the substantial factor in the need for medical
treatment. She emphasized the determination is based on the need
for medical treatment at the time. She thought Representative
Croft's concern was geared more toward medical treatment needed
later on. She explained the employer's burden is unchanged; the
employer must eliminate the possibility of a work relationship
to overcome the presumption.
MS. KNUDSEN said under current law, an employee must show some
evidence of the relationship and the employer must show
substantial evidence that excludes the employment as the legal
cause of the injury. The burden is unchanged. The employer must
eliminate the possibility of a work relationship or must point
to the way to overcome the presumption.
REPRESENTATIVE CROFT said under current law, the employee must
show some evidence and the employer must show by substantial
evidence that the current employment has been excluded as the
cause.
REPRESENTATIVE CROFT asked where that is located in the bill.
MS. KNUDSEN said it is in Alaska Supreme Court case law.
REPRESENTATIVE CROFT said the legislature is about to codify
case law in statute but the bill does not speak to that at all.
1:39:56 PM
MS. KNUDSEN said the bill says that a causal link must be
established - that wording is from the Steffe case.
REPRESENTATIVE CROFT said he looked at the case law and, in his
mind, there is a big difference between establishing a causal
link and submitting some evidence of a causal link.
MS. KNUDSEN said line 12 on page 1 says the presumption may be
rebutted by a demonstration of substantial evidence that the
death or disability did not arise out of and in the course of
employment.
CHAIR THERRIAULT interjected to tell members he just received
the corrected amendment, labeled R.28. It includes, on page 2,
the deletion of the language in Section 66, regarding the stress
issue and a separate tort claim. He then withdrew his motion to
adopt Amendment 10 and moved to adopt Amendment 11.
REPRESENTATIVE CROFT objected to the adoption of Amendment 11.
1:42:50 PM
REPRESENTATIVE CROFT suggested adding on line 10 the phrase,
"must establish some evidence of a causal link between the
employment and the disability,". He noted the overall legal
standard is substantial evidence and a lot of case law fleshes
that out. He said the amendment accurately states that standard
but it might not state the current law on the original burden of
the employee. He cautioned that a full causal link could be
misinterpreted using the current standard of "some evidence of."
REPRESENTATIVE ROKEBERG said for the employee, the "a
preponderance of the evidence" standard would change to
"substantial evidence."
CHAIR THERRIAULT told members the language in Amendment 11 came
straight from the published court decision.
SENATOR FRENCH asked if he was referring to the language down to
line 13 [page 1].
CHAIR THERRIAULT said he was.
1:44:06 PM
MS. KNUDSEN said the court described the standard in Steffe as
"a causal link," meaning a link - not a whole case. The court
has also described it as "a preliminary link" in the Smallwood
case and as "some evidence of work connection" in another case.
REPRESENTATIVE CROFT asked if "some evidence of" is sometimes
used.
MS. KNUDSEN said it is.
REPRESENTATIVE CROFT asked if "the preliminary" or "some
evidence of" is not meant to harm those cases.
MS. KNUDSEN replied, "Exactly."
SENATOR FRENCH referred to Sec. 23.30.010(a) and said the
language on lines 1-13 only codifies existing case law but the
language on lines 14-20 take the existing coverage and squeeze
it smaller.
MS. KNUDSEN said lines 14-17 would have no impact whatsoever.
That language is not intended in anyway to restrict or change
the current standard for work relationship.
1:46:10 PM
CHAIR THERRIAULT said it merely requires the board to take that
action.
MS. KNUDSEN agreed and said the board should be doing that
anyway.
SENATOR FRENCH asked if that subsection is only intended to
codify existing case law.
MS. KNUDSEN acknowledged that the word "the" in the last
sentence does constitute a change from current law.
SENATOR FRENCH asked if it makes the universe of claims smaller
so that a certain number of claims covered under the old law
will not be covered under the new law.
MS. KNUDSEN said it is hard to foresee how that would happen but
it is possible.
1:47:27 PM
SENATOR FRENCH said if the language on line [19] was changed to
"a" substantial cause instead of "the", the ball would be the
same size as it was before.
MS. KNUDSEN said that is correct.
CHAIR THERRIAULT said dropping back from the "major contributing
cause" standard to codifying the existing standard does change
the current standard.
REPRESENTATIVE ROKEBERG said one concern has been that people
will be left without coverage if the board finds they don't
qualify for workers' compensation benefits, particularly if an
employer's insurance carrier becomes insolvent or because an
employee has a former non-work related injury. He asked if this
language represents a protection for employees, whether the Last
Injurious Exposure Doctrine will survive Amendment 11 and how
that would fit into practice.
MS. KNUDSEN said this amendment does not affect the doctrine.
Amendment 11 will provide an opportunity for employers to shift
some times when they may have been a substantial factor to
another employer who was the substantial factor. However, as to
initial treatment of injuries that occur on the job, she finds
it hard to imagine a case where a witnessed injury on the job is
not provided with treatment, even with a preexisting injury.
1:50:46 PM
REPRESENTATIVE ROKEBERG said AS 23.30.155(d) clearly protects
any worker so that the worker will get paid; the dispute is
about who will pay. The current employer pays the bill, and
then fault is determined through an adjudicative process. He
expressed concern about the issue of substantial cause to
address a situation in which the board could determine a current
employer to be entirely responsible for an employee with an
older injury who reinjured himself on a current job.
MS. KNUDSEN said this is phrased in the disjunctive - meaning it
contains the word "or" - that situation could occur. She gave an
example of a diabetic who stepped on a nail at work and needed
immediate treatment. The work injury was the substantial factor
in the need for immediate treatment so the absence from work
would be covered. If later that worker needed to have an
amputation because of the injury, the board would then look at
the substantial factor.
REPRESENTATIVE CROFT asked if the cause could be the prior
employment.
1:54:00 PM
MS. KNUDSEN said that is correct.
REPRESENTATIVE ROKEBERG asked how the statute of limitation
would play in.
MS. KNUDSEN said it provides for latent injuries and for cases
in which the employee didn't know the connection between the
disability and the original injury.
REPRESENTATIVE CROFT thought Ms. Knudsen was being too modest
about the cost savings because although litigation will cost,
the fights between insurance companies will victimize the
injured workers. He argued that when one cause is determined to
be greater than the other, the other is not the substantial
cause anymore. He questioned how a court could make any
determination other than that the job with the longer exposure
time is the greater factor. He noted the compensation system
used to carry that risk, which will now be shifted to the
employee. He asked her to elaborate on the disjunctive issue.
1:57:17 PM
MS. KNUDSEN said the language on page 1, lines 17-20,
contemplates that the possibility of occasions where, for
example, the disability concerns may not be work related but the
need for medical treatment is. To qualify for benefits, the
employment would only have to be the substantial cause of one of
the conditions.
REPRESENTATIVE CROFT expressed concern that the word "if" means
the employee cannot get benefits for any one of the three
conditions unless the employer is determined to be the greater
cause.
MS. KNUDSEN said that is the difference between (a) and (b).
A roll call vote was taken. Representatives Anderson and
Rokeberg and Senators Huggins and Therriault were in favor;
Representative Croft and Senator French were opposed.
CHAIR THERRIAULT announced that Amendment 11 was adopted and
explained that the structural change in the new AS 23.30.010 and
the deletion on page 2 of the amendment take care of the
argument that an employee could take a separate tort action
against the employer for those items exempted from the
definition of injury.
REPRESENTATIVE ANDERSON asked Senator Seekins to address another
concern he heard from the medical community about rate freezing.
SENATOR SEEKINS, District D, directed members to Section 75 of
the bill on page 48 and read, "AS 23.30.097(a)(1) is repealed
August 1, 2007". He then referred to page 25 and said that means
the medical services review board is to look at the medical
compensation process and the medical payment section freezes
rates as of the December 1, 2004 bulletin. If, by the end of the
2007 session, the medical process has not been revised after the
medical advisory board weighs in, this section will be repealed
and the current method used by the board to calculate medical
rates will kick in. He stated, "So there is a drop dead date. If
we don't act to put something else in place, we go back to the
old system."
2:02:04 PM
REPRESENTATIVE ANDERSON said this will give physicians the
opportunity to help solve the workers' compensation problem but,
if after 2 years the legislature can come to no agreement, the
rates won't be frozen forever.
SENATOR SEEKINS said that is correct and noted the governor
suggested freezing the rates at the 1999 level. He and many
doctors and associations decided if the rates were going to be
frozen, they should be frozen at the current rate. That will
amount to a freeze for one year. If the legislature hasn't acted
by the end of next session, this provision will revert to the
old system.
REPRESENTATIVE CROFT asked what authority the government has to
set those rates.
SENATOR SEEKINS said the board's authority is in statute now.
REPRESENTATIVE CROFT said the board sets rates in the sense that
it prevents [the medical community] from charging more for
workers' compensation cases but letting the board tell the
medical community what it must charge is entering new territory.
2:03:48 PM
SENATOR SEEKINS disagreed and said it is not uncommon for
government to set the rates when it pays.
SENATOR SEEKINS said it is not a new concept and that he is
comfortable with it.
REPRESENTATIVE ROKEBERG asked if the division does an annual
review of the rates paid now.
MR. PAUL LISANKIE, Director, Division of Workers' Compensation,
Department of Labor and Workforce Development (DOLWD) said that
is correct; the board was given statutory authority in 2000 to
revisit the calculation of the fee cap at least once per year.
REPRESENTATIVE ROKEBERG recalled that previous to the statutory
change, the board did so less frequently.
MR. LISANKIE acknowledged that prior to 2000, board review
occurred less frequently.
SENATOR SEEKINS pointed out that the medical community was
tremendously helpful in finding the right way to proceed with
this process.
CHAIR THERRIAULT noted that he distributed a letter to members
that led to Amendment 11.
2:05:47 PM
SENATOR FRENCH moved to change the reference to "the Alaska
Chiropractic Association" to "the Alaska Chiropractic Society"
[Amendment 12] on page 24, lines 17 and 18 to accurately reflect
the name of that organization.
2:06:44 PM
CHAIR THERRIAULT announced that without objection, Amendment 12
was adopted.
REPRESENTATIVE ROKEBERG moved CCS SB 130 as amended and its
adjusted fiscal notes from committee.
2:07:11 PM
SENATOR FRENCH objected because the bill still contains an
appeals commission, which he sees as a bureaucratic construct
that will not do what its proponents claim. His calculations
show that the current system has been operational for 40 years.
If approximately 30 decisions have been issued by the superior
court each year, 1,200 decisions have been rendered and he has
seen none that conflict. He said the superior court is resolving
these claims quite well. He repeated that he sees no reason to
create a new bureaucracy.
A roll call vote was taken. Senator Huggins, Senator Therriault,
Representative Rokeberg and Representative Anderson were in
favor; Senator French and Representative Croft were opposed.
CHAIR THERRIAULT announced that FCCS SB 130 moved out of
committee. He then adjourned the meeting.
| Document Name | Date/Time | Subjects |
|---|