00 SENATE CS FOR CS FOR HOUSE BILL NO. 237(L&C) 01 "An Act relating to workers' compensation insurance rate filings; to second 02 independent medical evaluations for workers' compensation claims; to confidentiality 03 of workers' compensation medical and rehabilitation information; to immunity for 04 third-party design professionals from civil actions by recipients of workers' 05 compensation benefits; to workers' compensation death benefits; to computation of 06 workers' compensation benefits; to penalties for fraudulent acts related to workers' 07 compensation; to immunity for employer workplace safety inspections related to 08 workers' compensation insurance; and providing for an effective date." 09 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 * Section 1. FINDINGS AND PURPOSE AS TO SECTION 9. (a) The legislature finds 11 that 12 (1) efficiency in calculating workers' compensation benefits does not require 13 unfairness; 14 (2) a quick, efficient, and predictable scheme for determining a worker's gross 01 weekly earnings can be formulated without denying employees their workers' compensation 02 benefits commensurate with their actual losses; 03 (3) many workers in the state are only seasonally employed in the construction, 04 tourism, fishing, and education industries; 05 (4) many workers in the state choose a subsistence lifestyle and are only 06 occasionally, sporadically, or on a part-time basis members of the labor force; 07 (5) many other states avoid the need for an alternative open-ended determination 08 of an employee's future earning capacity by focusing on the employee's wages at the time of 09 injury and converting, by formula, the employee's rate of pay into a weekly wage; 10 (6) benefits for permanent total disability can last for a substantial period into 11 the future and serve a different purpose than benefits for temporary partial or temporary total 12 disability. 13 (b) It is the purpose of sec. 9 of this Act to 14 (1) redefine the calculation of an employee's spendable weekly wage used to 15 determine workers' compensation benefits in a manner that complies with the decision of the 16 Alaska Supreme Court in Gilmore v. Alaska Workers' Compensation Board, 882 P.2d 922 17 (Alaska 1994); 18 (2) fix a fair approximation of an employee's probable future earning capacity 19 during the period of temporary partial or temporary total disability without resorting to an open-ended determination o 20 actual future earning capacity; 21 (3) avoid uncertainty and litigation for injured workers and their employers; 22 (4) allow an alternative open-ended determination of actual future earnings for 23 those employees who suffer a permanent total disability and whose wages cannot otherwise be 24 fairly calculated. 25 * Sec. 2. AS 21.39 is amended by adding a new section to read: 26 Sec. 21.39.045. WORKERS' COMPENSATION RATE FILINGS. (a) 27 Notwithstanding any other provision of this chapter, a rate filing for workers' 28 compensation insurance that classifies a risk in the construction industry may not contain 29 or impose a higher premium rate if the risk upon which the higher rate filing is based 30 consists only of a higher wage rate paid by the employer. 31 (b) The director shall accept a rate filing for workers' compensation insurance 01 if the filing includes a reasonable method of recognizing differences in rates of pay and 02 the method uses a credit scale that begins at an amount equal to the average weekly 03 wage in this state as determined by the Department of Labor. 04 * Sec. 3. AS 23.30 is amended by adding a new section to read: 05 Sec. 23.30.017. IMMUNITY FOR THIRD-PARTY DESIGN PROFESSIONAL. 06 (a) A person entitled to compensation under this chapter as a result of injury occurring 07 at the job site of a construction project may not bring a civil action to recover damages 08 for that injury against a design professional or an employee of a design professional who 09 provides professional services for the construction project. 10 (b) This section does not apply to a person receiving compensation under this 11 chapter who is injured at a job site at which the design professional or employee of the 12 design professional 13 (1) specifically assumed responsibility for job site safety practices under 14 a contract; 15 (2) actually exercises control over the premises where the injury 16 occurred; or 17 (3) prepared design plans or specifications, the plans or specifications 18 contributed to the injury, and the plans or specifications were prepared negligently, 19 recklessly, or with intentional misconduct. 20 (c) In this section, 21 (1) "design professional" means a person licensed under AS 08.48 as an 22 architect, engineer, or land surveyor; 23 (2) "professional services" means services provided by a design 24 professional that are within the scope of services for which the design professional is 25 licensed. 26 * Sec. 4. AS 23.30.095(k) is amended to read: 27 (k) In the event of a medical dispute regarding determinations of causation, 28 medical stability, ability to enter a reemployment plan, degree of impairment, functional 29 capacity, the amount and efficacy of the continuance of or necessity of treatment, or 30 compensability between the employee's attending physician and the employer's 31 independent medical evaluation, the board may require that a second independent 01 medical evaluation [SHALL] be conducted by a physician or physicians selected by the 02 board from a list established and maintained by the board. The cost of an [THE] 03 examination and medical report shall be paid by the employer. The report of an [THE] 04 independent medical examiner shall be furnished to the board and to the parties within 05 14 days after the examination is concluded. A person may not seek damages from an 06 independent medical examiner caused by the rendering of an opinion or providing 07 testimony under this subsection, except in the event of fraud or gross incompetence. 08 * Sec. 5. AS 23.30.107 is amended to read: 09 Sec. 23.30.107. RELEASE OF INFORMATION. Upon request, an employee 10 shall provide written authority to the employer, carrier, rehabilitation specialist 11 [PROVIDER], or reemployment benefits [REHABILITATION] administrator to obtain 12 medical and rehabilitation information relative to the employee's injury. 13 * Sec. 6. AS 23.30.107 is amended by adding a new subsection to read: 14 (b) Medical or rehabilitation records in an employee's file maintained by the 15 board are not public records subject to public inspection and copying under AS 09.25. 16 This subsection does not prohibit 17 (1) the reemployment benefits administrator, the board, or the department 18 from releasing medical or rehabilitation records in an employee's file, without the 19 employee's consent, to a physician providing medical services under AS 23.30.095(k) or 20 23.30.110(g), a party to a claim filed by the employee, or a governmental agency; or 21 (2) the quoting or discussing of medical or rehabilitation records 22 contained in an employee's file during a hearing on a claim for compensation, or in a 23 decision and order of the board. 24 * Sec. 7. AS 23.30.175(b) is amended to read: 25 (b) The following rules apply to benefits payable to recipients not residing in the 26 state at the time compensation benefits are payable: 27 (1) the weekly rate of compensation shall be calculated by multiplying 28 the recipient's weekly compensation rate calculated under AS 23.30.180, 23.30.185, 29 23.30.190, 23.30.200, or 23.30.215, by the ratio of the cost of living of the area in which 30 the recipient resides to the cost of living in this state; 31 (2) the calculation required by (1) of this subsection does not apply if the 01 recipient is absent from the state for medical or rehabilitation services not reasonably 02 available in the state; 03 (3) if the gross weekly earnings of the recipient and the resulting 04 compensation rate are determined under AS 23.30.220(a)(6), (7), or (10) 05 [AS 23.30.220(a)(2)], the calculation required by this subsection applies only to the 06 portion of the recipient's weekly compensation rate attributable to wages earned in the 07 state; 08 (4) application of this subsection may not reduce the weekly 09 compensation rate to less than $154 a week, except as provided in (a) of this section. 10 * Sec. 8. AS 23.30.215(f) is amended to read: 11 (f) Except as provided in (g) of this section, the death benefit payable to a 12 widow or widower shall 13 [(1) FIVE YEARS FOLLOWING DATE OF DEATH OF THE 14 DECEASED EMPLOYEE BE REDUCED TO 66 2/3 PERCENT OF THE BENEFIT 15 BEING THEN PAID; 16 (2) EIGHT YEARS FOLLOWING DATE OF DEATH OF THE 17 DECEASED EMPLOYEE BE REDUCED TO 50 PERCENT OF THE BENEFIT 18 BEING THEN PAID; 19 (3)] terminate 10 years following death of the deceased employee. 20 * Sec. 9. AS 23.30.220(a) is repealed and reenacted to read: 21 (a) Computation of compensation under this chapter shall be on the basis of an 22 employee's spendable weekly wage at the time of injury. An employee's spendable 23 weekly wage is the employee's gross weekly earnings minus payroll tax deductions. An 24 employee's gross weekly earnings shall be calculated as follows: 25 (1) if at the time of injury the employee's earnings are calculated by the 26 week, the weekly amount is the employee's gross weekly earnings; 27 (2) if at the time of injury the employee's earnings are calculated by the 28 month, the employee's gross weekly earnings are the monthly earnings multiplied by 12 29 and divided by 52; 30 (3) if at the time of injury the employee's earnings are calculated by the 31 year, the employee's gross weekly earnings are the yearly earnings divided by 52; 01 (4) if at the time of injury the 02 (A) employee's earnings are calculated by the day, hour, or by the 03 output of the employee, the employee's gross weekly earnings are the employee's 04 earnings most favorable to the employee computed by dividing by 13 the 05 employee's earnings, not including overtime or premium pay, earned during any 06 period of 13 consecutive calendar weeks within the 52 weeks immediately 07 preceding the injury; 08 (B) employee has been employed for less than 13 calendar weeks 09 immediately preceding the injury, then, notwithstanding (1) - (3) of this 10 subsection and (A) of this paragraph, the employee's gross weekly earnings are 11 computed by determining the amount that the employee would have earned, not 12 including overtime or premium pay, had the employee been employed by the 13 employer for 13 calendar weeks immediately preceding the injury and dividing 14 this sum by 13; 15 (5) if at the time of injury the employee's earnings have not been fixed 16 or cannot be ascertained, the employee's earnings for the purpose of calculating 17 compensation are the usual wage for similar services when the services are rendered by 18 paid employees; 19 (6) if at the time of injury the employment is exclusively seasonal or 20 temporary, then, notwithstanding (1) - (5) of this subsection, the gross weekly earnings 21 are the greater of 1/50th of the total wages 22 (A) that the employee has earned from all occupations during the 23 calendar year immediately preceding the injury; or 24 (B) the employee would have earned in the seasonal or temporary 25 employment but for the injury; 26 (7) when the employee is working under concurrent contracts with two 27 or more employers and the employer liable for compensation has knowledge of the dual 28 employment before the injury, the employee's earnings from all employers is considered 29 as if earned from the employer liable for compensation; 30 (8) if an employee when injured is a minor, an apprentice, or a trainee 31 in a formal training program, as determined by the board, whose wages under normal 01 conditions would increase during the period of disability, the projected increase may be 02 considered by the board in computing the gross weekly earnings of the employee; 03 (9) if the employee is injured while performing duties as a volunteer 04 ambulance attendant, volunteer police officer, or volunteer fire fighter, then, 05 notwithstanding (1) - (6) of this subsection, the gross weekly earnings for calculating 06 compensation shall be the minimum gross weekly earnings paid a full-time ambulance 07 attendant, police officer, or fire fighter employed in the political subdivision where the 08 injury occurred, or, if the political subdivision has no full-time ambulance attendants, 09 police officers, or fire fighters, at a reasonable figure previously set by the political 10 subdivision to make this determination, but in no case may the gross weekly earnings for 11 calculating compensation be less than the minimum wage computed on the basis of 40 12 hours work per week; 13 (10) if an employee is entitled to compensation under AS 23.30.180 and 14 the board determines that calculation of the employee's gross weekly earnings under (1) - 15 (7) of this subsection does not fairly reflect the employee's earnings during the period 16 of disability, the board shall determine gross weekly earnings by considering the nature 17 of the employee's work, work history, and resulting disability, but compensation 18 calculated under this paragraph may not exceed the employee's gross weekly earnings 19 at the time of injury. 20 * Sec. 10. AS 23.30.220 is amended by adding a new subsection to read: 21 (c) In this section, 22 (1) "seasonal work" means employment that is not intended to continue 23 through an entire calendar year, but recurs on an annual basis; 24 (2) "temporary work" means employment that is not permanent, ends 25 upon completion of the task, job, or contract, and ends within six months from the date 26 of injury. 27 * Sec. 11. AS 23.30.250 is repealed and reenacted to read: 28 Sec. 23.30.250. PENALTIES FOR FRAUDULENT OR MISLEADING ACTS. 29 (a) A person who (1) knowingly makes a false or misleading statement, representation, 30 or submission related to a benefit under this chapter; (2) knowingly assists, abets, solicits, 31 or conspires in making a false or misleading submission affecting the payment, coverage, 01 or other benefit under this chapter; (3) knowingly misclassifies employees or engages in 02 deceptive leasing practices for the purpose of evading full payment of workers' 03 compensation insurance premiums; or (4) employs or contracts with a person or firm to 04 coerce or encourage an individual to file a fraudulent compensation claim is civilly 05 liable to a person adversely affected by the conduct, is guilty of theft by deception as 06 defined in AS 11.46.180, and may be punished as provided by AS 11.46.120 - 07 11.46.150. 08 (b) If the board, after a hearing, finds that a person has obtained compensation, 09 medical treatment, or another benefit provided under this chapter by knowingly making 10 a false or misleading statement or representation for the purpose of obtaining that benefit, 11 the board shall order that person to make full reimbursement of the cost of all benefits 12 obtained. Upon entry of an order authorized under this subsection, the board shall also 13 order that person to pay all reasonable costs and attorney fees incurred by the employer 14 and the employer's carrier in obtaining an order under this section and in defending any 15 claim made for benefits under this chapter. If a person fails to comply with an order of 16 the board requiring reimbursement of compensation and payment of costs and attorney 17 fees, the employer may declare the person in default and proceed to collect any sum due 18 as provided under AS 23.30.170(b) and (c). 19 * Sec. 12. AS 23.30 is amended by adding a new section to read: 20 Sec. 23.30.263. IMMUNITY FROM CIVIL LIABILITY FOR WORKPLACE 21 SAFETY INSPECTIONS. An employer's safety inspector is not liable for civil damages 22 for an injury to an employee of that employer resulting from an act or omission in 23 performing or failing to perform a loss control service, a workplace safety inspection, or 24 a safety advisory service provided in connection with an employer's workers' 25 compensation insurance coverage, unless the act or failure to act constitutes intentional 26 misconduct. In this section, "safety inspector" means 27 (1) a carrier and an employee or agent of the carrier; 28 (2) a trade association of which the employer is a member; or 29 (3) a person providing adjusting or inspection services to an employer 30 who is a member of an association established under AS 21.76.010 or to an employer 31 who is self-insured under AS 23.30.090. 01 * Sec. 13. TRANSITION. By January 1, 1996, a rating organization that files a rate for 02 workers' compensation insurance shall file a rating that contains a method of computing workers' 03 compensation insurance rates that is in compliance with AS 21.39.045, added by sec. 2 of this 04 Act. 05 * Sec. 14. Section 2 of this Act applies to a policy of workers' compensation insurance that 06 is entered into or renewed on or after the effective date of this Act. 07 * Sec. 15. This Act takes effect July 1, 1995.