SB 140: "An Act relating to workers' compensation insurance rate filings; to second independent medical evaluations for workers' compensation claims; to immunity for third-party design professionals from civil actions by recipients of workers' compensation benefits; to workers' compensation death benefits; to computation of workers' compensation benefits; to penalties for fraudulent acts related to workers' compensation; to immunity for employer workplace safety inspections related to workers' compensation insurance; and providing for an effective date."
00SENATE BILL NO. 140 01 "An Act relating to workers' compensation insurance rate filings; to second 02 independent medical evaluations for workers' compensation claims; to immunity for 03 third-party design professionals from civil actions by recipients of workers' 04 compensation benefits; to workers' compensation death benefits; to computation of 05 workers' compensation benefits; to penalties for fraudulent acts related to workers' 06 compensation; to immunity for employer workplace safety inspections related to 07 workers' compensation insurance; and providing for an effective date." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. FINDINGS AND PURPOSE AS TO SECTION 7. (a) The legislature finds 10 that 11 (1) efficiency in calculating workers' compensation benefits does not require 12 unfairness; 13 (2) a quick, efficient, and predictable scheme for determining a worker's gross 14 weekly earnings can be formulated without denying employees their workers' compensation
01 benefits commensurate with their actual losses; 02 (3) many workers in the state are only seasonally employed in the construction, 03 tourism, fishing, and education industries; 04 (4) many workers in the state choose a subsistence lifestyle and are only 05 occasionally, sporadically, or on a part-time basis members of the labor force; 06 (5) many other states avoid the need for an alternative open-ended 07 determination of an employee's future earning capacity by focusing on the employee's wages 08 at the time of injury and converting, by formula, the employee's rate of pay into a weekly 09 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. 7 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 20 open-ended determination of 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 24 be 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 29 contain or impose a higher premium rate if the risk upon which the higher rate filing 30 is based 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 02 and the method uses a credit scale that begins at an amount equal to the average 03 weekly 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 06 PROFESSIONAL. (a) A person entitled to compensation under this chapter as a 07 result of injury occurring at the job site of a construction project may not bring a civil 08 action to recover damages for that injury against a design professional or an employee 09 of a design professional who provides professional services for the construction 10 project. 11 (b) This section does not apply to a person receiving compensation under this 12 chapter who is injured at a job site at which the design professional or employee of 13 the design professional 14 (1) specifically assumed responsibility for job site safety practices under 15 a contract; 16 (2) actually exercises control over the premises where the injury 17 occurred; 18 (3) prepared design plans or specifications, the plans or specifications 19 contributed to the injury, and the plans or specifications were prepared negligently, 20 recklessly, or with intentional misconduct. 21 (c) In this section, 22 (1) "design professional" means a person licensed under AS 08.48 as 23 an architect, engineer, or land surveyor; 24 (2) "professional services" means services provided by a design 25 professional that are within the scope of services for which the design professional is 26 licensed. 27 * Sec. 4. AS 23.30.095(k) is amended to read: 28 (k) In the event of a medical dispute regarding determinations of causation, 29 medical stability, ability to enter a reemployment plan, degree of impairment, 30 functional capacity, the amount and efficacy of the continuance of or necessity of 31 treatment, or compensability between the employee's attending physician and the
01 employer's independent medical evaluation, the board may require that a second 02 independent medical evaluation [SHALL] be conducted by a physician or physicians 03 selected by the board from a list established and maintained by the board. The cost 04 of an [THE] examination and medical report shall be paid by the employer. The report 05 of an [THE] independent medical examiner shall be furnished to the board and to the 06 parties within 14 days after the examination is concluded. A person may not seek 07 damages from an independent medical examiner caused by the rendering of an opinion 08 or providing testimony under this subsection, except in the event of fraud or gross 09 incompetence. 10 * Sec. 5. AS 23.30.175(b) is amended to read: 11 (b) The following rules apply to benefits payable to recipients not residing in 12 the state at the time compensation benefits are payable: 13 (1) the weekly rate of compensation shall be calculated by multiplying 14 the recipient's weekly compensation rate calculated under AS 23.30.180, 23.30.185, 15 23.30.190, 23.30.200, or 23.30.215, by the ratio of the cost of living of the area in 16 which the recipient resides to the cost of living in this state; 17 (2) the calculation required by (1) of this subsection does not apply if 18 the recipient is absent from the state for medical or rehabilitation services not 19 reasonably available in the state; 20 (3) if the gross weekly earnings of the recipient and the resulting 21 compensation rate are determined under AS 23.30.220(a)(6), (7), or (10) 22 [AS 23.30.220(a)(2)], the calculation required by this subsection applies only to the 23 portion of the recipient's weekly compensation rate attributable to wages earned in the 24 state; 25 (4) application of this subsection may not reduce the weekly 26 compensation rate to less than $154 a week, except as provided in (a) of this section. 27 * Sec. 6. AS 23.30.215(f) is amended to read: 28 (f) Except as provided in (g) of this section, the death benefit payable to a 29 widow or widower shall 30 [(1) FIVE YEARS FOLLOWING DATE OF DEATH OF THE 31 DECEASED EMPLOYEE BE REDUCED TO 66 2/3 PERCENT OF THE BENEFIT
01 BEING THEN PAID; 02 (2) EIGHT YEARS FOLLOWING DATE OF DEATH OF THE 03 DECEASED EMPLOYEE BE REDUCED TO 50 PERCENT OF THE BENEFIT 04 BEING THEN PAID; 05 (3)] terminate 10 years following death of the deceased employee. 06 * Sec. 7. AS 23.30.220(a) is repealed and reenacted to read: 07 (a) Computation of compensation under this chapter shall be on the basis of 08 an employee's spendable weekly wage at the time of injury. An employee's spendable 09 weekly wage is the employee's gross weekly earnings minus payroll tax deductions. 10 An employee's gross weekly earnings shall be calculated as follows: 11 (1) if at the time of injury the employee's earnings are calculated by 12 the week, the weekly amount is the employee's gross weekly earnings; 13 (2) if at the time of injury the employee's earnings are calculated by 14 the month, the employee's gross weekly earnings are the monthly earnings multiplied 15 by 12 and divided by 52; 16 (3) if at the time of injury the employee's earnings are calculated by 17 the year, the employee's gross weekly earnings are the yearly earnings divided by 52; 18 (4) if at the time of injury the 19 (A) employee's earnings are calculated by the day, hour, or by 20 the output of the employee, the employee's gross weekly earnings are the 21 employee's earnings most favorable to the employee computed by dividing by 22 13 the employee's earnings, not including overtime or premium pay, earned 23 during any period of 13 consecutive calendar weeks within the 52 weeks 24 immediately preceding the injury; 25 (B) employee has been employed for less than 13 calendar 26 weeks immediately preceding the injury, then, notwithstanding (1) - (3) of this 27 subsection and (A) of this paragraph, the employee's gross weekly earnings are 28 computed by determining the amount that the employee would have earned, not 29 including overtime or premium pay, had the employee been employed by the 30 employer for 13 calendar weeks immediately preceding the injury and dividing 31 this sum by 13;
01 (5) if at the time of injury the employee's earnings have not been fixed 02 or cannot be ascertained, the employee's earnings for the purpose of calculating 03 compensation are the usual wage for similar services when the services are rendered 04 by paid employees; 05 (6) if at the time of injury the employment is exclusively seasonal or 06 temporary, then, notwithstanding (1) - (5) of this subsection, the gross weekly earnings 07 are 1/50th of the total wages that the employee has earned from all occupations during 08 the calendar year immediately preceding the injury; 09 (7) when the employee is working under concurrent contracts with two 10 or more employers and the employer liable for compensation has knowledge of the 11 dual employment before the injury, the employee's earnings from all employers is 12 considered as if earned from the employer liable for compensation; 13 (8) if an employee when injured is a minor, an apprentice, or a trainee 14 in a formal training program, as determined by the board, whose wages under normal 15 conditions would increase during the period of disability, the projected increase may 16 be considered by the board in computing the gross weekly earnings of the employee; 17 (9) if the employee is injured while performing duties as a volunteer 18 ambulance attendant, volunteer police officer, or volunteer fire fighter, then, 19 notwithstanding (1) - (6) of this subsection, the gross weekly earnings for calculating 20 compensation shall be the minimum gross weekly earnings paid a full-time ambulance 21 attendant, police officer, or fire fighter employed in the political subdivision where the 22 injury occurred, or, if the political subdivision has no full-time ambulance attendants, 23 police officers, or fire fighters, at a reasonable figure previously set by the political 24 subdivision to make this determination, but in no case may the gross weekly earnings 25 for calculating compensation be less than the minimum wage computed on the basis 26 of 40 hours work per week; 27 (10) if an employee is entitled to compensation under AS 23.30.180 28 and the board determines that calculation of the employee's gross weekly earnings 29 under (1) - (7) of this subsection does not fairly reflect the employee's earnings during 30 the period of disability, the board shall determine gross weekly earnings by considering 31 the nature of the employee's work, work history, and resulting disability, but
01 compensation calculated under this paragraph may not exceed the employee's gross 02 weekly earnings at the time of injury. 03 * Sec. 8. AS 23.30.250 is repealed and reenacted to read: 04 Sec. 23.30.250. PENALTIES FOR FRAUDULENT OR MISLEADING ACTS. 05 (a) A person who (1) knowingly makes a false or misleading statement, 06 representation, or submission related to a benefit under this chapter; (2) knowingly 07 assists, abets, solicits, or conspires in making a false or misleading submission 08 affecting the payment, coverage, or other benefit under this chapter; (3) knowingly 09 misclassifies employees or engages in deceptive leasing practices for the purpose of 10 evading full payment of workers' compensation insurance premiums; or (4) employs 11 or contracts with a person or firm to coerce or encourage an individual to file a 12 fraudulent compensation claim is civilly liable to a person adversely affected by the 13 conduct, is guilty of theft by deception as defined in AS 11.46.180, and may be 14 punished as provided by AS 11.46.120 - 11.46.150. 15 (b) If the board, after a hearing, finds that a person has obtained compensation, 16 medical treatment, or another benefit provided under this chapter by knowingly making 17 a false or misleading statement or representation for the purpose of obtaining that 18 benefit, the board shall order that person to make full reimbursement of the cost of all 19 benefits obtained. Upon entry of an order authorized under this subsection, the board 20 shall also order that person to pay all reasonable costs and attorney fees incurred by 21 the employer and the employer's carrier in obtaining an order under this section and 22 in defending any claim made for benefits under this chapter. If a person fails to 23 comply with an order of the board requiring reimbursement of compensation and 24 payment of costs and attorney fees, the employer may declare the person in default and 25 proceed to collect any sum due as provided under AS 23.30.170(b) and (c). 26 * Sec. 9. AS 23.30 is amended by adding a new section to read: 27 Sec. 23.30.263. IMMUNITY FROM CIVIL LIABILITY FOR WORKPLACE 28 SAFETY INSPECTIONS. An employer's safety inspector is not liable for civil 29 damages for an injury to an employee of that employer resulting from an act or 30 omission in performing or failing to perform a loss control service, a workplace safety 31 inspection, or a safety advisory service provided in connection with an employer's
01 workers' compensation insurance coverage, unless the act or failure to act constitutes 02 intentional misconduct. In this section, "safety inspector" means 03 (1) a carrier and an employee or agent of the carrier; 04 (2) a trade association of which the employer is a member; or 05 (3) a person providing adjusting or inspection services to an employer 06 who is a member of an association established under AS 21.76.010 or to an employer 07 who is self-insured under AS 23.30.090. 08 * Sec. 10. AS 23.30.265 is amended by adding new paragraphs to read: 09 (35) "seasonal work" means employment that does not continue through 10 an entire calendar year; 11 (36) "temporary work" means employment that is not permanent, ends 12 upon completion of the task, job, or contract, and ends within six months from the date 13 of injury. 14 * Sec. 11. TRANSITION. By January 1, 1996, a rating organization that files a rate for 15 workers' compensation insurance shall file a rating that contains a method of computing 16 workers' compensation insurance rates that is in compliance with AS 21.39.045, added by 17 sec. 2 of this Act. 18 * Sec. 12. Section 2 of this Act applies to a policy of workers' compensation insurance that 19 is entered into or renewed on or after the effective date of this Act. 20 * Sec. 13. This Act takes effect July 1, 1995.