HB 180: "An Act relating to a special deposit for workers' compensation and employers' liability insurers; relating to assigned risk pools; relating to workers' compensation insurers; stating the intent of the legislature, and setting out limitations, concerning the interpretation, construction, and implementation of workers' compensation laws; relating to the Alaska Workers' Compensation Board; establishing a division of workers' compensation within the Department of Labor and Workforce Development, assigning certain Alaska Workers' Compensation Board functions to the division and the department, and authorizing the board to delegate administrative and enforcement duties to the division; establishing a Workers' Compensation Appeals Commission; providing for workers' compensation hearing officers in workers' compensation proceedings; relating to workers' compensation medical benefits and to charges for and payment of fees for the medical benefits; relating to agreements that discharge workers' compensation liability; relating to workers' compensation awards; relating to reemployment benefits and job dislocation benefits; relating to coordination of workers' compensation and certain disability benefits; relating to division of workers' compensation records; relating to release of treatment records; relating to an employer's failure to insure and keep insured or provide security; providing for appeals from compensation orders; relating to workers' compensation proceedings; providing for supreme court jurisdiction of appeals from the Workers' Compensation Appeals Commission; providing for a maximum amount for the cost-of-living adjustment for workers' compensation benefits; relating to attorney fees; providing for the department to enter into contracts with nonprofit organizations to provide information services and legal representation to injured employees; providing for administrative penalties for employers uninsured or without adequate security for workers' compensation; relating to fraudulent acts or false or misleading statements in workers' compensation and penalties for the acts or statements; providing for members of a limited liability company to be included as an employee for purposes of workers' compensation; establishing a workers' compensation benefits guaranty fund; relating to the second injury fund; making conforming amendments; providing for a study and report by the medical services review committee; and providing for an effective date."
00 HOUSE BILL NO. 180 01 "An Act relating to a special deposit for workers' compensation and employers' liability 02 insurers; relating to assigned risk pools; relating to workers' compensation insurers; 03 stating the intent of the legislature, and setting out limitations, concerning the 04 interpretation, construction, and implementation of workers' compensation laws; 05 relating to the Alaska Workers' Compensation Board; establishing a division of 06 workers' compensation within the Department of Labor and Workforce Development, 07 assigning certain Alaska Workers' Compensation Board functions to the division and 08 the department, and authorizing the board to delegate administrative and enforcement 09 duties to the division; establishing a Workers' Compensation Appeals Commission; 10 providing for workers' compensation hearing officers in workers' compensation 11 proceedings; relating to workers' compensation medical benefits and to charges for and 12 payment of fees for the medical benefits; relating to agreements that discharge workers'
01 compensation liability; relating to workers' compensation awards; relating to 02 reemployment benefits and job dislocation benefits; relating to coordination of workers' 03 compensation and certain disability benefits; relating to division of workers' 04 compensation records; relating to release of treatment records; relating to an employer's 05 failure to insure and keep insured or provide security; providing for appeals from 06 compensation orders; relating to workers' compensation proceedings; providing for 07 supreme court jurisdiction of appeals from the Workers' Compensation Appeals 08 Commission; providing for a maximum amount for the cost-of-living adjustment for 09 workers' compensation benefits; relating to attorney fees; providing for the department 10 to enter into contracts with nonprofit organizations to provide information services and 11 legal representation to injured employees; providing for administrative penalties for 12 employers uninsured or without adequate security for workers' compensation; relating 13 to fraudulent acts or false or misleading statements in workers' compensation and 14 penalties for the acts or statements; providing for members of a limited liability 15 company to be included as an employee for purposes of workers' compensation; 16 establishing a workers' compensation benefits guaranty fund; relating to the second 17 injury fund; making conforming amendments; providing for a study and report by the 18 medical services review committee; and providing for an effective date." 19 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 20 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 21 to read: 22 LEGISLATIVE INTENT. It is the intent of the legislature by secs. 2 - 4 of this Act 23 (1) to reform the workers' compensation system in Alaska to ensure the 24 continued payment of benefits in the event of an insurer insolvency; and 25 (2) to reduce the overall costs of workers' compensation premiums to
01 employers. 02 * Sec. 2. AS 21.09.090 is amended by adding new subsections to read: 03 (e) In addition to and separate from the deposit required under (b) of this 04 section, an insurer that is authorized to transact workers' compensation and employer's 05 liability insurance as defined in AS 21.12.070(a)(3) shall deposit in this state, through 06 the director, for the protection of persons in this state covered by workers' 07 compensation insurance issued by the insurer, an amount no less than the greater of 08 (1) $100,000; or 09 (2) an amount equal to the sum of the following less any credit for 10 reinsurance that the insurer may take under (f) of this section: 11 (A) the aggregate of the present value at four percent interest of 12 the total determined and estimated future loss and loss expense payment upon 13 each claim incurred under a policy written in this state more than three years 14 before the date of computation; and 15 (B) for each of the three years before the date of computation, 16 65 percent of the earned premium for the year less each loss and loss expense 17 payment made upon a claim incurred in the corresponding year, except that the 18 amount for any year may not be less than the present value at four percent 19 interest of the total determined and estimated future loss and loss expense 20 payment upon each claim incurred under a policy written in this state that year. 21 (f) In calculating the deposit amount required under (e)(2) of this section, an 22 insurer may take a credit for reinsurance if the reinsurer has deposited in trust in this 23 state, through the director, an amount at least equal to the credit to be taken, and no 24 less than the aggregate of all credits taken by each insurer under this subsection. 25 * Sec. 3. AS 21.24.130 is amended by adding a new subsection to read: 26 (f) If an insurer is found to be insolvent by a proceeding under AS 21.78 or by 27 a court of competent jurisdiction in any other state, the director shall take control of 28 the insurer's deposit made under AS 21.09.090(e). The deposit assets shall be 29 released, at the discretion of the director, to the Alaska Insurance Guaranty 30 Association (AS 21.80) to reimburse for a valid loss and loss expense claim payment 31 made by the association that is within the purpose of the deposit. The director shall
01 pay the remaining deposit assets to the receiver, conservator, rehabilitator, or 02 liquidator of the insurer, or to any other properly designated official who succeeds to 03 the management and control of the insurer's assets, after the director determines that 04 all loss and loss expense liabilities have been paid that were incurred on the insurer's 05 policies written in this state for which the deposit was required. 06 * Sec. 4. AS 21.39.155(a) is amended to read: 07 (a) The director may require insurers, except a reciprocal insurer formed [BY 08 AND INSURING ONLY A GROUP OF MUNICIPALITIES OR NONPROFIT 09 PUBLIC UTILITIES] under AS 21.75 [OR A RECIPROCAL INSURER FORMED 10 UNDER AS 21.75 TO PROVIDE MARINE INSURANCE], as a condition of writing 11 a line of insurance dealing with medical malpractice or workers' compensation, to 12 participate in an assigned risk pool if the director finds that mandatory carrier 13 participation is in the public interest. 14 * Sec. 5. AS 23.05.067(a) is amended to read: 15 (a) Each insurer providing workers' compensation insurance and each 16 employer who is self-insured or uninsured for purposes of AS 23.30 in this state shall 17 pay an annual service fee to the department for the administrative expenses of the state 18 for workers' safety programs under AS 18.60 and the workers' compensation program 19 under AS 23.30 as follows: 20 (1) for each employer, 21 (A) except as provided in (b) of this section, the service fee 22 shall be paid each year to the department at the time that the annual report is 23 required to be filed under AS 23.30.155(m) or (n); and 24 (B) the service fee is 2.9 percent of all payments reported to the 25 Alaska Workers' Compensation Board under AS 23.30.155(m) or (n) [, 26 EXCEPT SECOND INJURY FUND PAYMENTS]; and 27 (2) for each insurer, the director of the division of insurance shall, 28 under (e) of this section, deposit from funds received from the insurer under 29 AS 21.09.210 a service fee of 1.82 percent of the direct premium income for workers' 30 compensation insurance received by the insurer during the year ending on the 31 preceding December 31, subject to all the deductions specified in AS 21.09.210(b).
01 * Sec. 6. AS 23.30 is amended by adding a new section to read: 02 Sec. 23.30.001. Intent of the legislature and construction of chapter. It is 03 the intent of the legislature that 04 (1) this chapter be interpreted so as to ensure the quick, efficient, fair, 05 and predictable delivery of indemnity and medical benefits to injured workers at a 06 reasonable cost to the employers who are subject to the provisions of this chapter; 07 (2) workers' compensation cases shall be decided on their merits 08 except where otherwise provided by statute; 09 (3) this chapter may not be construed by the courts in favor of a party; 10 (4) hearings in workers' compensation cases shall be impartial and fair 11 to all parties and that all parties shall be afforded due process and an opportunity to be 12 heard and for their arguments and evidence to be fairly considered. 13 * Sec. 7. AS 23.30.005(a) is amended to read: 14 (a) The Alaska Workers' Compensation Board consists of a southern panel of 15 three members sitting for the first judicial district, a northern panel of three members 16 sitting for the second and fourth judicial districts, four southcentral panels of three 17 members each sitting for the third judicial district, and one panel of three members 18 that may sit in any judicial district. Each panel must include the commissioner of 19 labor and workforce development or a hearing officer designated to represent [THE 20 DESIGNATED REPRESENTATIVE OF] the commissioner, a representative of 21 industry, and a representative of labor. The latter two members of each panel shall be 22 appointed by the governor and are subject to confirmation by a majority of the 23 members of the legislature in joint session. The board shall by regulation provide 24 procedures to avoid conflicts and the appearance of impropriety in hearings. 25 * Sec. 8. AS 23.30.005(b) is amended to read: 26 (b) The commissioner shall act as chairman and executive officer of the board 27 and chairman of each panel. The commissioner may designate a representative to 28 act for the commissioner as chair and executive officer of the board. The 29 commissioner may designate hearing officers to serve as chairs of panels for 30 hearing claims. [IF THE COMMISSIONER DESIGNATES A REPRESENTATIVE 31 TO ACT FOR THE COMMISSIONER, THE REPRESENTATIVE SHALL SERVE
01 IN THAT CAPACITY ON THE BOARD AND ON EACH PANEL.] 02 * Sec. 9. AS 23.30.005 is amended by adding new subsections to read: 03 (m) The department may in its discretion contract with a non-profit 04 organization to provide to employees information services and legal representation in 05 proceedings under this chapter. 06 (n) The board may by regulation delegate authority to the director to assist the 07 board in administering and enforcing this chapter. 08 * Sec. 10. AS 23.30 is amended by adding new sections to read: 09 Sec. 23.30.007. Workers' Compensation Appeals Commission. (a) There 10 is established in the Department of Labor and Workforce Development the Workers' 11 Compensation Appeals Commission. The commission has jurisdiction to hear appeals 12 from final decisions and orders of the board under this chapter. Jurisdiction of the 13 commission is limited to administrative appeals arising under this chapter. 14 (b) The commission consists of five members appointed by the governor and 15 confirmed by a majority of the members of the legislature in joint session. The 16 members shall be appointed as follows: 17 (1) a member appointed as chair who meets the requirements of (c)(2) 18 of this section; 19 (2) two members who, because of their employment or affiliations, 20 may be classified as a representative of employees covered by this chapter; 21 (3) two members who, because of their employment or affiliations, 22 may be classified as a representative of employers covered by this chapter. 23 (c) To be eligible for appointment under this section 24 (1) the member must 25 (A) be a citizen of the United States; 26 (B) be a resident of the state for the five years preceding the 27 appointment; and 28 (C) have not been convicted of either a 29 (i) felony; or 30 (ii) misdemeanor related to workers' compensation; 31 (2) the chair must
01 (A) meet the criteria specified in (1) of this subsection; 02 (B) be licensed to practice law in this state and be a member in 03 good standing with the Alaska Bar Association; and 04 (C) have engaged in the active practice of law for at least five 05 years with experience in workers' compensation in this state. 06 (d) A member may act and receive compensation under this section from the 07 date of appointment until confirmation or rejection by the legislature. 08 (e) The term of service on the commission is five years. A member may be 09 reappointed so long as the reappointment complies with the provisions of this section. 10 (f) The chair of the commission is in the exempt service under AS 39.25.110 11 and shall receive a monthly salary that is not less than Step A nor more than Step F of 12 Range 27 of the salary schedule in AS 39.27.011(a) for Anchorage, Alaska. 13 (g) A vacancy arising in the commission shall be filled by appointment by the 14 governor and confirmed by a majority of the members of the legislature in joint 15 session. Except as provided in AS 39.05.080(4), an appointee selected to fill a 16 vacancy shall hold office for the unexpired term of the member whose vacancy is 17 filled. A vacancy in the commission does not impair the authority of a quorum of 18 members to exercise all the powers and perform all the duties of the commission. 19 (h) An appeal to the commission shall be heard and decided by a three- 20 member panel of the commission. An appeal panel shall consist of the chair of the 21 commission and two members of the commission assigned by the chair, one member 22 classified as representing employees, and one member classified as representing 23 employers. At other meetings to conduct commission business, the number of 24 commission members classified as representing employees must equal the number of 25 commission members classified as representing employers. The chair of the 26 commission and two representative members of the commission, one classified as 27 representing employees and one classified as representing employers, constitutes a 28 quorum. 29 (i) A member of the commission may be removed from office by the governor 30 for good cause. To be removed for cause, a member of the commission shall be given 31 a copy of the charges and afforded an opportunity to be heard in person or by counsel
01 in the member's own defense upon not less than 10 days' notice. If the member is 02 removed for cause, the governor shall file with the lieutenant governor a complete 03 statement of all charges made against the member, the governor's findings on the 04 charges, and the record of any proceedings. In this subsection, "good cause" includes 05 (1) misconduct in office or violation of AS 39.52; 06 (2) conviction of a felony; 07 (3) conviction of a misdemeanor related to workers' compensation; 08 (4) inability to serve, neglect of duty, incompetence, unjustified failure 09 to handle the caseload assigned, or similar nonfeasance of office; and 10 (5) failure to continue to meet the requirements of this section relating 11 to qualification for office. 12 (j) Representative members are entitled to compensation in the amount of 13 $200 a day for each day spent in actual hearing of appeals or on authorized official 14 business incidental to their duties, and to transportation and per diem as provided by 15 law. Compensation shall be paid pro rata for each portion of a day spent in actual 16 hearing of appeals or on authorized official business. 17 (k) A member of the commission may not hear an appeal under this chapter if 18 (1) a party is an employee or was, in the past seven years, an employee 19 of the commission member or of a business that employs the commission member; 20 this paragraph does not apply to the chair of the commission when the State of Alaska 21 is or was the employer of a party; 22 (2) a party is a member or was, in the past seven years, a member of 23 the same union or employee association as the commission member; 24 (3) a party has a contractual relationship with the commission member, 25 a business that employs the commission member, or a union or employee association 26 of which the commission member is a member; 27 (4) the commission member is unable to be fair, impartial, and 28 unbiased toward the appeal participants; or 29 (5) participation in the appeal is a violation of AS 39.52. 30 (l) If the chair of the commission is unable to hear an appeal for reasons of 31 absence or illness in excess of 10 days, or for reasons set out in (k) of this section, the
01 commissioner of the department shall appoint a person who meets the qualifications of 02 this section to serve as chair to hear the appeal as chair pro tem. The person shall 03 receive the compensation provided in (j) of this section. Appointment of a chair pro 04 tem does not require legislative confirmation. 05 (m) Each member of the commission, before entering upon the duties of 06 office, shall take and subscribe to the oath prescribed for principal officers of the state. 07 (n) The offices of the commission shall be physically separate from the offices 08 of the division. 09 Sec. 23.30.008. Powers and duties of the commission. (a) The commission 10 shall be the exclusive and final authority for the hearing and determination of all 11 questions of law and fact arising under this chapter in those matters that have been 12 appealed to the commission, except for an appeal to the Alaska Supreme Court. The 13 commission does not have jurisdiction in any case that does not arise under this 14 chapter or in any criminal case. On any matter taken to the commission, the decision 15 of the commission is final and conclusive, unless appealed to the Alaska Supreme 16 Court, and shall stand in lieu of the order of the board from which the appeal was 17 taken. Unless reversed by the Alaska Supreme Court, decisions of the commission 18 have the force of legal precedent. 19 (b) The commission, in its administrative capacity, shall maintain, index, and 20 make available for public inspection the final administrative decisions and orders of 21 the commission and of the board. The chair of the commission may review and 22 circulate among the other members of the relevant commission appeal panel the drafts 23 of the panel's formal decisions and decisions upon reconsideration. The drafts are 24 confidential documents and are not subject to disclosure. 25 (c) The chair of the commission shall draft and propose, and the commission 26 in its administrative capacity may adopt, regulations implementing the commission's 27 authority and duties under this chapter, including rules of procedure and evidence for 28 proceedings before the commission under this chapter. The provisions of AS 44.62 29 (Administrative Procedure Act) apply to the adoption of regulations by the 30 commission. 31 (d) In an appeal, the commission shall award a successful party reasonable
01 costs and, if the party is represented by an attorney, attorney fees that the commission 02 determines to be fully compensatory and reasonable. However, the commission may 03 not make an award of attorney fees against an injured worker unless the commission 04 finds that the worker's position on appeal was frivolous or unreasonable or the appeal 05 was taken in bad faith. 06 (e) The commission, in its administrative capacity, may adopt and alter an 07 official seal and do all things necessary, convenient, or desirable to carry out the 08 powers expressly granted or necessarily implied in this chapter. 09 Sec. 23.30.009. Powers and duties of the chair of the commission. (a) The 10 chair of the commission shall exercise general supervision over the office of the 11 commission and over appeals, and shall direct the administrative functions of the 12 commission. The chair of the commission shall serve as the executive officer of the 13 commission and shall have authority in all administrative matters relating to the 14 members. The chair may 15 (1) employ and supervise commission staff and appoint a commission 16 clerk; 17 (2) establish and implement a time management system for the 18 commission members and staff and manage the calendar of appeals; 19 (3) assign the work of the commission members and staff so that 20 appeals are resolved as expeditiously and competently as possible; 21 (4) advise and cooperate with the board to develop appropriate 22 procedures for maintenance and transfer of hearing files and the preservation and 23 transfer of records on appeal; and 24 (6) prepare an annual budget of the commission. 25 (b) The chair of the commission shall preside over hearings and arguments on 26 appeals. The chair of the commission shall ensure that all functions of the commission 27 are performed with due regard for the rights of all parties and consistent with the 28 orderly and prompt resolution of appeals. The chair of the commission shall rule on 29 questions of procedure and advise the representative members of the commission on 30 matters of law. 31 (c) The chair of the commission shall, not later than March 15 of each year,
01 make available to the public and file with the lieutenant governor, a report regarding 02 the commission, including data regarding time periods between initial receipt and final 03 decisions on appeals. 04 (d) The chair of the commission shall devote full time to the duties of the chair 05 of the commission and may not engage in any other employment or business. The 06 chair of the commission may not hold any other office or position under the United 07 States, this state, any municipality or political subdivision of this state, or any tribal 08 government or corporation. The chair of the commission may not hold office or 09 position in a partisan political organization or party. 10 * Sec. 11. AS 23.30.012 is amended to read: 11 Sec. 23.30.012. Agreements in regard to claims. (a) At any time after 12 death, or after 30 days subsequent to the date of the injury, the employer and the 13 employee or the beneficiary or beneficiaries, as the case may be, have the right to 14 reach an agreement in regard to a claim for injury or death under this chapter [IN 15 ACCORDANCE WITH THE APPLICABLE SCHEDULE IN THIS CHAPTER], but 16 a memorandum of the agreement in a form prescribed by the director [BOARD] shall 17 be filed with the division [BOARD]. Otherwise, the agreement is void for any 18 purpose. Except as provided in (b) of this section, an agreement filed with the 19 division discharges the liability of the employer for the compensation, 20 notwithstanding the provisions of AS 23.30.130, 23.30.160, and 23.30.245, and is 21 enforceable as a compensation order. 22 (b) If the claimant or beneficiary is not represented by an attorney 23 licensed to practice in this state, or the beneficiary is a minor or incompetent, the 24 agreement shall be reviewed by a panel of the board. If approved by the board, the 25 agreement is enforceable the same as an order or award of the board and discharges 26 the liability of the employer for the compensation notwithstanding the provisions of 27 AS 23.30.130, 23.30.160, and 23.30.245. The agreement shall be approved by the 28 board only when the terms conform to the provisions of this chapter and, if it involves 29 or is likely to involve permanent disability, the board may require an impartial medical 30 examination and a hearing in order to determine whether or not to approve the 31 agreement. A [THE BOARD MAY APPROVE] lump-sum settlement may be
01 approved [SETTLEMENTS] when it appears to be to the best interest of the 02 employee or beneficiary or beneficiaries. 03 * Sec. 12. AS 23.30.015(e) is amended to read: 04 (e) An amount recovered by the employer under an assignment, whether by 05 action or compromise, shall be distributed as follows: 06 (1) the employer shall retain an amount equal to 07 (A) the expenses incurred by the employer with respect to the 08 action or compromise, including a reasonable attorney fee determined by the 09 board; 10 (B) the cost of all benefits actually furnished by the employer 11 under this chapter; 12 (C) all amounts paid as compensation [AND SECOND- 13 INJURY FUND] payments, and, if the employer is self-insured or uninsured, 14 all service fees paid under AS 23.05.067; 15 (D) the present value of all amounts payable later as 16 compensation, computed from a schedule prepared by the board; and the 17 present value of the cost of all benefits to be furnished later under 18 AS 23.30.095 as estimated by the board; the amounts so computed and 19 estimated to be retained by the employer as a trust fund to pay compensation 20 and the cost of benefits as they become due and to pay any finally remaining 21 excess sum to the person entitled to compensation or to the representative; and 22 (2) the employer shall pay any excess to the person entitled to 23 compensation or to the representative of that person. 24 * Sec. 13. AS 23.30.041(a) is amended to read: 25 (a) The director [BOARD] shall select and employ a reemployment benefits 26 administrator. The director [BOARD] may authorize the administrator to select and 27 employ additional staff. The administrator is in the partially exempt service under 28 AS 39.25.120. 29 * Sec. 14. AS 23.30.041(c) is repealed and reenacted to read: 30 (c) An employee and an employer may stipulate to the employee's eligibility 31 for reemployment benefits at any time. If an employee suffers a compensable injury
01 and, as a result of the injury, the employee for 45 consecutive days is totally unable to 02 return to the employee's employment at the time of injury, the administrator shall 03 notify the employee of the employee's rights under this section within 14 days after the 04 45th day. If the employee is totally unable to return to the employee's employment for 05 60 consecutive days as a result of the injury, the employee or employer may request an 06 eligibility evaluation. The administrator may approve the request if the employee's 07 injury may permanently preclude the employee's return to the employee's occupation 08 at the time of the injury. If the employee is totally unable to return to the employee's 09 employment at the time of the injury for 90 consecutive days as a result of the injury, 10 the administrator shall order an eligibility evaluation, without a request, unless a 11 stipulation of eligibility was submitted. If the administrator approves a request or 12 orders an evaluation, the administrator shall, on a rotating and geographic basis, select 13 a rehabilitation specialist from the list maintained under (b)(6) of this section to 14 perform the eligibility evaluation. 15 * Sec. 15. AS 23.30.041(f) is amended to read: 16 (f) An employee is not eligible for reemployment benefits if 17 (1) the employer offers employment within the employee's predicted 18 post-injury physical capacities at a wage equivalent to at least the state minimum wage 19 under AS 23.10.065 or 75 percent of the worker's gross hourly wages at the time of 20 injury, whichever is greater, and the employment prepares the employee to be 21 employable in other jobs that exist in the labor market; 22 (2) the employee previously declined the development of a 23 reemployment benefits plan under (g) of this section, received a job dislocation 24 benefit under (g)(2) of this section, and returned to work in the same or similar 25 occupation in terms of physical demands required of the employee at the time of 26 the previous injury; 27 (3) the employee has been previously rehabilitated in a former 28 worker's compensation claim and returned to work in the same or similar occupation 29 in terms of physical demands required of the employee at the time of the previous 30 injury; or 31 (4) [(3)] at the time of medical stability no permanent impairment is
01 identified or expected. 02 * Sec. 16. AS 23.30.041(g) is amended to read: 03 (g) Within 15 days after the employee receives the administrator's notification 04 of eligibility for benefits, an employee [WHO DESIRES TO USE THESE 05 BENEFITS] shall give written notice under oath, on a form provided by the 06 division, to the administrator and the employer of the employee's election to 07 either use the reemployment benefits or to accept a job dislocation benefit under 08 (2) of this subsection. The following apply to an election under this subsection: 09 (1) An employee who elects to use the reemployment benefits also 10 shall notify the employer of the employee's selection of a rehabilitation specialist who 11 shall provide a complete reemployment benefits plan. Failure to give notice of 12 selection of a rehabilitation specialist required by this paragraph [SUBSECTION] 13 constitutes noncooperation under (n) of this section. If the employer disagrees with 14 the employee's choice of rehabilitation specialist to develop the plan and the 15 disagreement cannot be resolved, then the administrator shall assign a rehabilitation 16 specialist. The employer and employee each have one right of refusal of a 17 rehabilitation specialist. 18 (2) An employee who elects to accept a job dislocation benefit in 19 place of reemployment benefits and who has been given a permanent partial 20 impairment rating by a physician shall be paid 21 (A) $5,000 if the employee's permanent partial impairment 22 rating is greater than 0 and less than 15 percent; 23 (B) $8,000 if the employee's permanent partial impairment 24 rating is 15 percent or greater but less than 30 percent; or 25 (C) $13,500 if the employee's permanent partial 26 impairment rating is 30 percent or greater. 27 (3) The form provided by the division for election shall specifiy 28 that the employee understands the scope of the benefits and rights being waived 29 by the election. The administrator shall serve a copy of the executed election 30 form on the parties within 10 days after receiving the form from the employee. 31 The election and waiver of unchosen benefits is effective upon service to the
01 parties. A waiver and election effective under this subsection discharges the 02 employer's liability for the benefits or rights under this section that were not 03 elected. A waiver may not be modified under AS 23.30.130. 04 * Sec. 17. AS 23.30.041(j) is amended to read: 05 (j) The employee, rehabilitation specialist, and the employer shall sign the 06 reemployment benefits plan. If the employer and employee fail to agree on a 07 reemployment plan, either party may submit a reemployment plan for approval to the 08 administrator; the administrator shall approve or deny a plan within 14 days after the 09 plan is submitted; within 10 days after [OF] the decision, either party may seek 10 review of the decision by requesting a hearing under AS 23.30.110; the board shall 11 uphold the decision of the administrator unless evidence is submitted supporting an 12 allegation of abuse of discretion on the part of the administrator; the board shall render 13 a decision within 30 days after completion of the hearing. 14 * Sec. 18. AS 23.30.041(p) is amended to read: 15 (p) When the United States Department of Labor publishes a new edition, 16 revision, or replacement for the "Selected Characteristics of Occupations Defined in 17 the Revised Dictionary of Occupational Titles" referred to in (e) of this section, the 18 director [BOARD] shall, not later than 90 days after the last day of the month in 19 which the new edition, revision, or replacement standard is published, hold an open 20 meeting under AS 44.62.310 to select the proposed date on which the new edition, 21 revision, or replacement standard will be implemented to make all eligibility 22 determinations required under (e) of this section. The date selected by the 23 department [BOARD] for implementing the new edition, revision, or replacement 24 standard may not be later than 90 days after the last day of the month in which the new 25 edition, revision, or replacement standard is published. After the meeting, the 26 director [BOARD] shall issue a public notice announcing the date selected by the 27 department. The requirements of AS 44.62.010 - 44.62.300 do not apply to the 28 selection or announcement of the date under this subsection. 29 * Sec. 19. AS 23.30.041(q) is amended to read: 30 (q) Notwithstanding AS 23.30.012, after medical stability has been determined 31 and a physician has predicted that the employee may have a permanent impairment
01 that may cause the employee to have permanent physical capacities that are less than 02 the physical demands of the employee's job at the time of injury, an employee may 03 waive any benefits or rights under this section, including an eligibility evaluation and 04 benefits related to a reemployment plan. To waive any benefits or rights under this 05 section, an employee must file a statement under oath with the division [BOARD] to 06 notify the parties of the waiver and to specify the scope of benefits or rights that the 07 employee seeks to waive. The statement must be on a form prescribed or approved by 08 the director [BOARD]. The division [BOARD] shall serve the notice of waiver on 09 all parties to the claim within 10 days after filing. The waiver is effective upon service 10 to the party. A waiver effective under this subsection discharges the liability of the 11 employer for the benefits or rights contained in this section. The waiver may not be 12 modified under AS 23.30.130. 13 * Sec. 20. AS 23.30.080(d) is amended to read: 14 (d) If an employer fails to insure or provide security as required by 15 AS 23.30.075, the division may petition the board to [MAY] issue a stop order 16 prohibiting the use of employee labor by the employer until the employer insures or 17 provides security as required by AS 23.30.075. The failure of an employer to file 18 evidence of compliance as required by AS 23.30.085 creates a rebuttable presumption 19 that the employer has failed to insure or provide security as required by AS 23.30.075. 20 If an employer fails to comply with a stop order issued under this section, the board 21 shall assess a civil penalty of $1,000 per day. The employer may not obtain a public 22 contract with the state or a political subdivision of the state for three years following 23 the violation of the stop order. 24 * Sec. 21. AS 23.30.080 is amended by adding new subsections to read: 25 (e) If a representative of the department investigates an employer's failure to 26 file the evidence of compliance required by AS 23.30.085 and, after investigation, 27 there is substantial evidence that the employer failed to insure or provide security as 28 required by AS 23.30.075, the representative shall inform the employer. The 29 representative may request the director to issue a stop order prohibiting the use of 30 employee labor by the employer until the employer insures or provides security as 31 required by AS 23.30.075. The director may issue a stop order, without a hearing,
01 based on the representative's investigation. The director shall dissolve a stop order 02 issued under this subsection upon receipt of substantial evidence that the employer is 03 insured or has provided security as required by AS 23.30.075(a). If an employer fails 04 to comply with a stop order issued under this subsection, the division may petition the 05 board to assess a civil penalty. The board may assess a civil penalty of $1,000 per 06 day. An employer who is assessed a penalty under this subsection may not obtain a 07 public contract with the state or a political subdivision of the state for the three years 08 following violation of the stop order. 09 (f) If an employer fails to insure or provide security as required by 10 AS 23.30.075, the division may petition the board to assess a civil penalty of up to 11 $1,000 for each employee for each day an employee is employed while the employer 12 failed to insure or provide the security required by AS 23.30.075. The failure of an 13 employer to file evidence of compliance as required by AS 23.30.085 creates a 14 rebuttable presumption that the employer failed to insure or provide security as 15 required by AS 23.30.075. 16 (g) If an employer fails to pay a civil penalty order issued under (d), (e), or (f) 17 of this section within seven days after the date of service of the order upon the 18 employer, the director may declare the employer in default. The director shall file a 19 certified copy of the penalty order and declaration of default with the clerk of the 20 superior court. The court shall, upon the filing of the copy of the order and 21 declaration, enter judgment for the amount declared in default if it is in accordance 22 with law. Anytime after a declaration of default, the attorney general, when requested 23 to do so by the director, shall take appropriate action to assure collection of the 24 defaulted payment. Review of the judgment may be had as provided under the Alaska 25 Rules of Civil Procedure. Final proceedings to execute the judgment may be had by 26 writ of execution. 27 * Sec. 22. AS 23.30 is amended by adding a new section to read: 28 Sec. 23.30.082. Workers' compensation benefits guaranty fund. (a) The 29 workers' compensation benefits guaranty fund is established in the general fund to 30 carry out the purposes of this section. The fund is composed of civil penalty payments 31 made by employers under AS 23.30.080, income earned on investment of the money
01 in the fund, money deposited in the fund by the department, and appropriations to the 02 fund. Money appropriated to the fund does not lapse. Amounts in the fund may be 03 appropriated for claims against the fund, for expenses directly related to fund 04 operations and claims, and for legal expenses. 05 (b) The Department of Revenue shall provide the division every three months 06 with a statement of the activities of, balances in, interest earned on, and interest 07 returned to the fund. 08 (c) Subject to the provisions of this section, an employee employed by an 09 employer who fails to meet the requirements of AS 23.30.075 and who fails to pay 10 compensation and benefits due to the employee under this chapter, may file a claim for 11 payment by the fund. In order to be eligible for payment, the claim form must be filed 12 within the same time, and in the same manner, as a workers' compensation claim. The 13 fund may assert the same defenses as an insured employer under this chapter. 14 (d) If the fund pays benefits to an employee under this section, the fund shall 15 be subrogated to all of the rights of the employee to the amount paid, and the 16 employee shall assign all right, title, and interest in that portion of the employee's 17 workers' compensation claim and any recovery under AS 23.30.015 to the fund. 18 Money collected by the division on the claim or recovery shall be deposited in the 19 fund. 20 (e) If the money deposited in the fund is insufficient at a given time to satisfy 21 a duly authorized claim against the fund, the fund shall, when sufficient money has 22 been deposited in the fund and appropriated, satisfy unpaid claims in the order in 23 which the claims were originally filed, without interest. 24 (f) The division may contract under AS 36.30 (State Procurement Code) with 25 a person for the person to adjust claims against the fund. The contract may cover one 26 or more claims. 27 (g) In this section, "fund" means the workers' compensation benefits guaranty 28 fund. 29 * Sec. 23. AS 23.30.095(j) is amended to read: 30 (j) The commissioner shall [BOARD MAY] appoint a medical services 31 review committee, or contract with an existing organization in the state or another
01 state, to assist and advise the department and the board in matters involving the 02 appropriateness, necessity, and cost of medical and related services provided under 03 this chapter. 04 * Sec. 24. AS 23.30.095 is amended by adding new subsections to read: 05 (n) A generic drug product must be used when dispensing a drug product to an 06 employee under this chapter unless the prescribing physician provides justification in 07 writing explaining the medical necessity for the name brand drug product. The 08 department by regulation shall establish a preferred drug list and a procedure for 09 establishing medical necessity to depart from the list and to use a name brand drug 10 product. In this subsection, "generic drug product" has the meaning given the term 11 "equivalent drug product" in AS 08.80.480. 12 (o) For purposes of this chapter, the medical treatment or services which the 13 nature of the injury or the process of recovery requires, required by (a) of this section, 14 means treatment or services that are within the recommended guidelines set out in the 15 American College of Occupational and Environmental Medicine's Occupational 16 Medicine Practice Guidelines in effect at the time the treatment or service is provided. 17 The American College of Occupational and Environmental Medicine's Occupational 18 Medicine Practice Guidelines shall be presumed correct on the issue of the nature, 19 extent, and scope of medical treatment or services. The presumption may be rebutted 20 by a preponderance of scientific evidence establishing that a variance from the 21 guidelines is reasonably required by the nature of the injury or the process of recovery. 22 For an injury not covered by the American College of Occupational and 23 Environmental Medicine's Occupational Medicine Practice Guidelines, the treatment 24 or services shall be in accordance with standards based on other scientific, evidence- 25 based medical treatment guidelines generally recognized by the national medical 26 community and adopted by the board by regulation. 27 * Sec. 25. AS 23.30 is amended by adding a new section to read: 28 Sec. 23.30.097. Fees for medical treatment and services; payment of bills. 29 (a) All fees and other charges for medical treatment or service are subject to regulation 30 by the board consistent with this section. A fee or other charge for medical treatment 31 or service may not exceed the lesser of
01 (1) the usual, customary, and reasonable fees for the treatment or 02 service in the community in which it is rendered, not to exceed the fees in the fee 03 schedule specified by the board in its published bulletin dated December 15, 1999; or 04 (2) the payment made by the employer as negotiated by the provider 05 and the employer under (c) of this section. 06 (b) An employer, or group of employers, may establish a list of preferred 07 physicians and treatment service providers to provide medical, surgical, and other 08 attendance or treatment services to the employer's employees under this chapter; 09 however, 10 (1) the employee's right to chose the employee's attending physician 11 under AS 23.30.095(a) is not impaired; 12 (2) when given to the employee, the employer's preferred physician list 13 shall clearly state that the list is voluntary, that the employee's choice is not restricted 14 to the list, that the employee's rights under this chapter are not impaired by choosing 15 an attending physician from the list, and that if the employee chooses an attending 16 physician from the list, the employee may, in the manner provided in AS 23.30.095, 17 make one change of attending physician, from the list or otherwise; and 18 (3) establishment of a list of preferred physicians does not affect the 19 employer's choice of physician for an employer medical examination under 20 AS 23.30.095. 21 (c) An employer, or group of employers, may negotiate with physicians and 22 other treatment service providers under this chapter to obtain reduced fees and service 23 charges, and may take such fees and charges into account when forming a list of 24 preferred physicians and providers. In no event may an employer, or group of 25 employers, attempt to influence the treatment, medical decisions, or permanent 26 impairment ratings by physicians in the course of the negotiations regarding a 27 preferred physician and provider fee list. 28 (d) An employer shall pay an employee's bills for medical treatment under this 29 chapter, excluding prescription charges or transportation for medical treatment, within 30 30 days after the date that the employer receives the provider's bill or a completed 31 report as required by AS 23.30.095(c), whichever is later.
01 (e) Unless the employer controverts a charge, an employer shall reimburse an 02 employee's prescription charges under this chapter within 30 days after the employer 03 received the health care provider's completed report and an itemization of the 04 prescription charges for the employee. Unless the employer controverts a charge, an 05 employer shall reimburse any transportation expenses for medical treatment under this 06 chapter within 30 days after the employer received the health care provider's 07 completed report and an itemization of the dates, destination, and transportation 08 expenses for each date of travel for medical treatment. If the employer does not plan 09 to make or does not make payment or reimbursement in full as required by this 10 subsection, the employer shall notify in writing the employee and the employee's 11 health care provider that payment will not be timely made and the reasons for the 12 nonpayment. The notification must be provided on or before the date that payment is 13 due under this subsection or (d) of this section. 14 (f) An employee may not be required to pay a fee or charge for medical 15 treatment or service provided under this chapter. 16 * Sec. 26. AS 23.30.100(b) is amended to read: 17 (b) The notice must be in writing and [,] contain the name and address of the 18 employee, [AND] a statement of the time, place, nature, and cause of the injury or 19 death, authority to release records of medical treatment for the injury or death, 20 and be signed by the employee or by a person on behalf of the employee, or in case of 21 death, by a person claiming to be entitled to compensation for the death or by a person 22 on behalf of that person. 23 * Sec. 27. AS 23.30.107(b) is amended to read: 24 (b) Medical or rehabilitation records in an employee's file maintained by the 25 division or held by the commission or the board are not public records subject to 26 public inspection and copying under AS 40.25. This subsection does not prohibit 27 (1) the reemployment benefits administrator, the division, the office of 28 the commission, the board, or the department from releasing medical or rehabilitation 29 records in an employee's file, without the employee's consent, to a physician providing 30 medical services under AS 23.30.095(k) or 23.30.110(g), a party to a claim filed by 31 the employee, or a governmental agency; or
01 (2) the quoting or discussing of medical or rehabilitation records 02 contained in an employee's file during a hearing on a claim for compensation [,] or in 03 a decision and order of the board or the commission. 04 * Sec. 28. AS 23.30.107 is amended by adding a new subsection to read: 05 (c) The division may not assemble, or provide information respecting, 06 individual records for commercial purposes that are outside the scope of this chapter. 07 * Sec. 29. AS 23.30.122 is repealed and reenacted to read: 08 Sec. 23.30.122. Credibility of witnesses. The board has the sole power to 09 determine the credibility of testimony presented by a witness. When credibility is 10 disputed in a proceeding before the board, the board's determination of credibility 11 must be supported by specific findings. 12 * Sec. 30. AS 23.30.125 is repealed and reenacted to read: 13 Sec. 23.30.125. Administrative review of compensation order. (a) A 14 compensation order becomes effective when filed with the office of the board as 15 provided in AS 23.30.110, and, unless proceedings to reconsider, suspend, or set aside 16 the order are instituted as provided in this chapter, the order becomes final on the 31st 17 day after it is filed. 18 (b) Notwithstanding other provisions of law, a decision or order of the board is 19 subject to review by the commission as provided in this chapter. 20 (c) If a compensation order is not in accordance with law or fact, the order 21 may be suspended or set aside, in whole or in part, through proceedings in the 22 commission brought by a party in interest against all other parties to the proceedings 23 before the board. The payment of the amounts required by an award may not be 24 stayed pending a final decision in the proceeding unless, upon application for a stay, 25 the commission, on hearing, after not less than three days' notice to the parties in 26 interest, allows the stay of payment, in whole or in part, where the party filing the 27 application would otherwise suffer irreparable damage. Continuing future periodic 28 compensation payments may not be stayed without a showing by the appellant of 29 irreparable damage and the existence of the probability of the merits of the appeal 30 being decided adversely to the recipient of compensation. The order of the 31 commission allowing a stay must contain a specific finding, based upon evidence
01 submitted to the commission and identified by reference to the evidence, that 02 irreparable damage would result to the party applying for a stay and specifying the 03 nature of the damage. 04 (d) Proceedings for reconsidering, suspending, setting aside, or enforcing a 05 compensation order, whether rejecting a claim or making an award, may not be 06 instituted, except as provided in this chapter. 07 * Sec. 31. AS 23.30 is amended by adding new sections to read: 08 Sec. 23.30.127. Appeals to commission. (a) A party in interest may appeal a 09 compensation order issued by the board to the commission within 30 days after the 10 compensation order is filed with the office of the board under AS 23.30.110. The 11 director may intervene in an appeal. If a party in interest is not represented by counsel 12 and the compensation order concerns an unsettled question of law, the director may 13 file an appeal to obtain a ruling on the question by the commission. 14 (b) An appeal is initiated by filing with the office of the commission 15 (1) a signed notice of appeal specifying the compensation order 16 appealed from; 17 (2) a statement of the grounds upon which the appeal is taken; and 18 (3) other material the commission may by regulation require. 19 (c) A cross-appeal may be initiated by filing with the office of the commission 20 a signed notice of cross-appeal within 30 days after the decision is filed or within 15 21 days after service of notice of an appeal, whichever is later. The notice of cross- 22 appeal shall specify the compensation order appealed from and the grounds upon 23 which the cross-appeal is taken. 24 (d) The office of the commission may charge a fee, not to exceed $100, for 25 filing appeals and cross-appeals, except that the office of the commission may not 26 charge a fee if the appellant is the state or a political subdivision of the state. The 27 commission may require an appellant to pay the costs of the transcript of hearing and 28 the preparation of the record on appeal. The commission may require cross-appellants 29 or intervenors to share in the costs. 30 (e) If a request for reconsideration of a board decision was timely filed with 31 the office of the board, the notice of appeal must be filed within 30 days after the
01 reconsideration decision is mailed to the parties, or the date the request for 02 reconsideration is considered denied in the absence of any action on the request, 03 whichever is earlier. 04 (f) The commission may require written briefs and make other rules and 05 orders to facilitate the business of the commission and advance the prompt, fair, and 06 just disposition of appeals. 07 Sec. 23.30.128. Commission proceedings. (a) An appeal from a decision of 08 the board under this chapter, and other proceedings under this section, shall be heard 09 and decided by a three-member panel of the commission. An appeal panel of the 10 commission must include the chair of the commission. The chair of the commission 11 shall assign two members to each appeal, including one commission member 12 classified as representing employees and one commission member classified as 13 representing employers. Acts, decisions, and orders of the commission panel in the 14 appeal or related proceeding shall be considered the acts, decisions, and orders of the 15 full commission. The matter on appeal shall be decided on the record made before the 16 board, a transcript or recording of the proceedings before the board, and oral argument 17 and written briefs allowed by the commission. Except as provided in (c) of this 18 section, new or additional evidence may not be received with respect to the appeal. 19 (b) The commission may review de novo all discretionary actions, findings of 20 fact, and conclusions of law by the board in hearing, determining, or otherwise acting 21 on any compensation claim or petition. The board's findings regarding the credibility 22 of testimony of a witness are binding on the commission. The findings of the board, if 23 not set aside by the commission, are conclusive. 24 (c) The commission may hold hearings and receive evidence on applications 25 for (1) stays under AS 23.30.125; (2) attorney fees and costs of appeal; (3) waiver of 26 fees by indigent appellants; or (4) dismissal of appeals for failure to prosecute or upon 27 settlement. The commission may rely on new or additional evidence presented during 28 the hearing in making its decision on the application. 29 (d) The commission may affirm, reverse, or modify a decision or order upon 30 review and issue other orders as appropriate. The commission may remand matters it 31 determines were improperly, incompletely, or otherwise insufficiently developed. The
01 commission may remand for further proceedings and appropriate action with or 02 without relinquishing the commission's jurisdiction of the appeal. The administrative 03 adjudication procedures of AS 44.62 (Administrative Procedure Act) do not apply to 04 the proceedings of the commission. 05 (e) Within 90 days after written briefing on the appeal is completed or oral 06 argument is held, whichever is later, the commission shall issue a decision in writing. 07 The decision must contain a concise statement of reasons for the decision, including 08 findings of fact, if required, and conclusions of law. The commission shall serve each 09 party and the director with a copy of the decision. Appeals may be expedited for good 10 cause by the commission. Unless reconsideration is ordered under (f) of this section, a 11 decision under this subsection is the final commission decision. 12 (f) A party or the director may request reconsideration of a decision issued 13 under (e) of this section within 30 days after the date of service shown in the 14 certificate of service of the decision. The request must state specific grounds for 15 reconsideration. Reconsideration may be granted if, in reaching the decision, the 16 commission (1) overlooked, misapplied, or failed to consider a statute, regulation, 17 court or administrative decision, or legal principle directly controlling; (2) overlooked 18 or misconceived a material fact; (3) misconceived a material question in the case; or 19 (4) applied law in the ruling that has subsequently changed. The panel of the 20 commission hearing the request for reconsideration shall consist of the same members 21 of the panel that issued the decision. The commission may issue an order for 22 reconsideration of all or part of the decision upon request of a party or the director. 23 Reconsideration is based on the record, unless the commission allows additional 24 argument. The power to order reconsideration expires 60 days after the date of 25 service, as shown on the certificate of service, of a decision issued under (e) of this 26 section. If the commission does not issue an order for reconsideration within the time 27 allowed for ordering reconsideration, a request for reconsideration is considered 28 denied. If reconsideration is ordered, the commission shall issue a decision within 30 29 days after the close of the record on reconsideration. The commission shall serve each 30 party in the case with a copy of the decision upon reconsideration. The decision upon 31 reconsideration is the final commission decision.
01 (g) A decision of the commission becomes final on the 02 (1) 31st day after the date of service of a decision if reconsideration is 03 not requested; 04 (2) 61st day after the date of service of a decision if reconsideration is 05 requested but an order for reconsideration is not issued; or 06 (3) date of service of the commission decision upon reconsideration 07 under (f) of this section if reconsideration is requested and an order for reconsideration 08 is issued. 09 Sec. 23.30.129. Judicial review of commission orders. (a) Notwithstanding 10 the provisions of AS 44.62.560, orders of the commission may not be appealed to the 11 superior court. Consistent with AS 22.05.010(b), final decisions of the commission 12 may be appealed to the supreme court, and other orders may be reviewed by the 13 supreme court as provided by the Alaska Rules of Appellate Procedure. 14 (b) A finding by the commission concerning the weight to be accorded a 15 witness's testimony, including medical testimony and reports, is conclusive even if the 16 evidence is conflicting or susceptible to contrary conclusions. The commission's 17 findings of fact may be reversed on appeal if not supported by substantial evidence in 18 light of the whole record. 19 * Sec. 32. AS 23.30.175(b) is amended to read: 20 (b) The following rules apply to benefits payable to recipients not residing in 21 the state at the time compensation benefits are payable: 22 (1) the weekly rate of compensation shall be calculated by multiplying 23 the recipient's weekly compensation rate calculated under AS 23.30.180, 23.30.185, 24 23.30.190, 23.30.200, or 23.30.215 [,] by the ratio of the cost of living of the area in 25 which the recipient resides to the cost of living in this state; 26 (2) the calculation required by (1) of this subsection does not apply if 27 the recipient is absent from the state for medical or rehabilitation services not 28 reasonably available in the state; 29 (3) if the gross weekly earnings of the recipient and the resulting 30 compensation rate are determined under AS 23.30.220(a)(6), (7), or (10), the 31 calculation required by this subsection applies only to the portion of the recipient's
01 weekly compensation rate attributable to wages earned in the state; 02 (4) application of this subsection may not reduce the weekly 03 compensation rate to less than $154 a week, except as provided in (a) of this section; 04 (5) application of (1) - (4) of this subsection may not result in 05 raising a recipient's weekly compensation rate to an amount that exceeds the 06 weekly compensation rate that the recipient would have received if the recipient 07 had been residing in the state. 08 * Sec. 33. AS 23.30.175(c) is amended to read: 09 (c) The department [BOARD] shall provide by regulation for the 10 determination and comparison of living costs for this state and the other areas in which 11 recipients reside and for the [ANNUAL] redetermination and comparison of these 12 costs every three years. 13 * Sec. 34. AS 23.30.205(e) is amended to read: 14 (e) The second injury fund may not be bound as to any question of law or fact 15 by reason of an award or an adjudication to which it was not a party or in relation to 16 which the director [COMMISSIONER] was not notified at least three weeks before 17 the award or adjudication, that the fund might be subject to liability for the injury or 18 death. 19 * Sec. 35. AS 23.30.205 is amended by adding a new subsection to read: 20 (g) Claims for reimbursement may not be submitted to the fund after 21 September 1, 2005. The fund shall continue to make reimbursement payments on 22 claims accepted before July 1, 2006, or ordered by the board, until the fund's liabilities 23 for the claim are extinguished. 24 * Sec. 36. AS 23.30 is amended by adding a new section to read: 25 Sec. 23.30.224. Coordination of benefits. (a) Notwithstanding other 26 provisions of this chapter, an employer's liability for payment of weekly compensation 27 under AS 23.30.180 or 23.30.185 to an employee eligible for a disability benefit under 28 AS 14.25.130 or AS 39.35.400 or 39.35.410 may not exceed the lesser of 29 (1) the difference between the disability benefit payable to the 30 employee under AS 14.25.130 or AS 39.35.400 or 39.35.410, converted to a weekly 31 basis, and 100 percent of the employee's spendable weekly wage as calculated under
01 AS 23.30.220; or 02 (2) the maximum compensation rate calculated under AS 23.30.175. 03 (b) An employer's liability for payment of compensation under 04 AS 23.30.041(k) to an employee eligible for a disability benefit payable under 05 AS 14.25.130 or AS 39.35.400 or 39.35.410 may not exceed the lesser of 06 (1) the difference between the disability benefit payable to the 07 employee under AS 14.25.130 or AS 39.35.400 or 39.35.410, converted to a weekly 08 basis, and 80 percent of the employee's spendable weekly wage as calculated under 09 AS 23.30.220; or 10 (2) 105 percent of the average weekly wage caluclated under 11 AS 23.30.175(d). 12 (c) Notwithstanding other provisions of this chapter, the liability of an 13 employer for payment of compensation for an injury or illness under AS 23.30.180 or 14 23.30.185 to an employee who is covered by a union or group retirement system to 15 which the employer makes contributions under a collective bargaining agreement, or 16 by membership in a welfare or pension plan or trust, may not not exceed the lesser of 17 (1) the difference between 100 percent of the employee's spendable 18 weekly wage and an amount equal to the disability benefit, disability pension, or 19 medical retirement benefit that the employee is eligible to receive as a result of the 20 injury or illness, as calculated on a weekly basis, under the retirement system or 21 welfare or pension plan or trust; or 22 (2) the maximum compensation rate calculated under AS 23.30.175. 23 (d) If the union or group retirement system, pension plan, or trust referred to in 24 (c) of this section provides by its terms that its benefits are precluded or reduced if 25 benefits are awarded under this chapter, the limitation provided in (c)(1) of this section 26 is not applicable to the extent of the amount precluded or reduced. 27 (e) Notwithstanding other provisions of this chapter, the liability of an 28 employer for payment of compensation for an injury or illness under AS 23.30.041(k) 29 to an employee who is covered by a union or group retirement system to which the 30 employer makes contributions under a collective bargaining agreement, or by 31 membership in a welfare or pension plan or trust, may not not exceed the lesser of
01 (1) the difference between 80 percent of the employee's spendable 02 weekly wage and an amount equal to the disability benefit, disability pension, or 03 medical retirement benefit that the employee is eligible to receive as a result of the 04 injury or illness, calculated on a weekly basis, under the retirement system or welfare 05 or pension plan or trust; or 06 (2) 105 percent of the average weekly wage calculated under 07 AS 23.30.175(d). 08 (f) If the union or group retirement system, pension plan, or trust referred to in 09 (e) of this section provides by its terms that its benefits are precluded or reduced if 10 benefits are awarded under this chapter, the limitation provided in (e)(1) of this section 11 is not applicable to the extent of the amount precluded or reduced. 12 (g) If the employee receives a lump sum distribution of disability benefits, 13 disability pension, or medical retirement benefits, the combined workers' 14 compensation and weekly disability or medical retirement benefit specified in this 15 section shall be calculated by assuming that the employee received weekly disability 16 or medical retirement payments under the applicable plan from the date of eligibility 17 for the disability benefit or medical retirement until the total of such weekly payments 18 equals the amount of the lump sum, exclusive of that portion of the lump sum 19 specifically set aside under the applicable plan for retraining expenses, medical and 20 transportation expenses, and attorney fees or other legal costs. 21 * Sec. 37. AS 23.30.240 is amended to read: 22 Sec. 23.30.240. Officers of corporations, municipal corporations, and 23 nonprofit corporations, and members of limited liability companies, as 24 employees. An executive officer elected or appointed and empowered in accordance 25 with the charter and bylaws of a corporation, other than an official of a municipal 26 corporation or a charitable, religious, educational, or other nonprofit corporation, is an 27 employee of the corporation under this chapter. However, an executive officer of a 28 corporation may waive coverage under this chapter, subject to the approval of the 29 director [COMMISSIONER OF LABOR AND WORKFORCE DEVELOPMENT], 30 notwithstanding AS 23.30.245(b). Notwithstanding any other provision of this 31 chapter, an executive officer of a municipal corporation or of a charitable, religious,
01 educational, or other nonprofit corporation may be brought within the coverage of its 02 insurance contract by the corporation by specifically including the officer in the 03 contract of insurance. The election to bring an executive officer within the coverage 04 continues in force for the period the contract of insurance is in effect. During that 05 period, an executive officer brought within the coverage of the insurance contract is an 06 employee of the corporation under this chapter. 07 * Sec. 38. AS 23.30.240 is amended by adding a new subsection to read: 08 (b) Except as provided in this subsection, a member of a limited liability 09 company organized under AS 10.50 is not an employee of the company under this 10 chapter. Notwithstanding any other provision of this chapter, a limited liability 11 company may bring a member of the company within the coverage of the company's 12 insurance contract by specifically including the member in the contract of insurance. 13 The election to bring the member within the company's coverage continues in force 14 for the period the contract of insurance is in effect. During that period, a member 15 brought within the coverage of the insurance contract is an employee of the company 16 under this chapter. 17 * Sec. 39. AS 23.30.247(c) is amended to read: 18 (c) This section may not be construed to prohibit an employer from requiring a 19 prospective employee to fill out a preemployment questionnaire or application 20 regarding the person's prior health or disability history as long as it is meant to 21 [EITHER DOCUMENT WRITTEN NOTICE FOR SECOND INJURY FUND 22 REIMBURSEMENT UNDER AS 23.30.205(c) OR] determine whether the employee 23 has the physical or mental capacity to meet the documented physical or mental 24 demands of the work. 25 * Sec. 40. AS 23.30 is amended by adding a new section to read: 26 Sec. 23.30.249. Fraudulent acts and false or misleading statements. (a) An 27 employer, insurer, or other person may petition for an order to reimburse a payment 28 and the cost of compensation, medical treatment, or other benefit provided under this 29 chapter obtained by a fraudulent act or false or misleading statement or representation. 30 If the board, after a hearing as provided by AS 23.30.110, finds by a preponderance of 31 the evidence that a person has obtained a payment, compensation, medical treatment,
01 or another benefit provided under this chapter by a fraudulent act or by knowingly 02 making a false or misleading statement or representation for the purpose of obtaining 03 that benefit or payment, the board shall order that person to make full reimbursement 04 of the payment or cost of all benefits obtained. Upon entry of an order authorized 05 under this subsection, the board shall also order that person to pay all reasonable costs 06 and attorney fees incurred in obtaining an order under this section and in defending 07 any fraudulent claim made for benefits under this chapter. If a person fails to comply 08 with an order requiring reimbursement of payment or cost of benefits, and payment of 09 costs and attorney fees, the employer, insurer, or other party may declare the person in 10 default and proceed to collect any sum due in the same manner as provided under 11 AS 23.30.170(b) and (c). 12 (b) Except as provided in (c) of this section, a person is not liable for civil 13 damages for filing a report with or furnishing other information, whether written or 14 oral, concerning a suspected, anticipated, or completed fraudulent act or false or 15 misleading statements or representation to 16 (1) law enforcement officials or their agents and employees; 17 (2) the division of workers' compensation, the division of insurance in 18 the Department of Commerce, Community, and Economic Development, or an agency 19 in another state that regulates insurance or workers' compensation; 20 (3) an insurer or adjuster or its agents, employees, or designees, or the 21 risk manager of a self-insured employer under this chapter. 22 (c) The provisions of (b) of this section do not preclude liability for civil 23 damages as described in (b) of this section if the liability arose as a result of reckless, 24 wilful, or intentional misconduct. 25 (d) An insurer, an adjuster, or a risk manager of a self-insured employer that 26 has reason to believe that a fraudulent workers' compensation demand or claim has 27 been made against it shall send the director a report disclosing information that the 28 director may require. An insurer or an adjuster or its employee or agent, or a risk 29 manager of a self-employed employer, or another person acting in good faith is not 30 civilly liable for damages resulting from the filing of the report or the furnishing of 31 information required by this section or by the director.
01 (e) The director may investigate facts reported under this section and may 02 refer facts indicating a possible violation of law to the appropriate prosecutor or 03 agency. If the director determines that there is credible evidence that a person 04 obtained a payment, compensation, medical treatment, or other benefit provided under 05 this chapter by a fraudulent act or false or misleading statement or representation as 06 provided in (a) of this section, the director shall notify the affected employer, insurer, 07 and adjuster upon conclusion of the investigation. If the fraudulent act or false or 08 misleading statement or representation was perpetrated against the division, the 09 director may file a petition as provided in AS 23.30.110 for an order of forfeiture 10 against the person, precluding, in whole or in part, the person from future payment, 11 compensation, medical treatment, or other benefit provided under this chapter. 12 (f) The papers, reports, documents, and evidence received under this section or 13 in an investigation arising from information received under this section are not subject 14 to public inspection for so long as the director considers confidentiality to be in the 15 public interest or reasonably necessary to complete an investigation or protect the 16 person investigated from unwarranted injury. Papers, reports, documents, and 17 evidence relative to an investigation under this section are confidential and not subject 18 to subpoena unless, after notice to the director and a hearing, a court determines that 19 the director would not be unduly hindered by public inspection. 20 (g) If the material that the director seeks to obtain is located outside the state, 21 the material may be made available to the director to examine at the place where the 22 material is located. The director may designate representatives, including officials of 23 the state in which the material is located, to inspect the material on behalf of the 24 director. The director may respond to a request from an official of another state for 25 similar material. 26 (h) In this section, "fraudulent act" includes 27 (1) to knowingly pretend injury or disability, with intent to defraud or 28 obtain a benefit under this chapter; 29 (2) to knowingly conceal, suppress, destroy, remove, or alter records, 30 with intent to defraud or obtain a benefit under this chapter; 31 (3) to knowingly assist or prepare another person to submit a false or
01 misleading statement in support of a claim for benefits under this chapter with reckless 02 disregard that the person is not entitled to benefits under this chapter; 03 (4) to use force against a person, damage the property of a person, or 04 threaten a person with intent to improperly influence the opinion of a witness, a 05 physician, or other health care provider; 06 (5) except as otherwise authorized under this chapter, to knowingly 07 confer, offer to confer, solicit, agree to accept, or accept property, services, or a 08 benefit 09 (A) to refer an employee to a physician or other health care 10 provider; or 11 (B) for providing medical treatment, services, medicines, or 12 supplies to an employee if the property, services, or benefit is in addition to 13 payment by the employer, insurer, or adjuster allowed under this chapter. 14 * Sec. 41. AS 23.30.250 is repealed and reenacted to read: 15 Sec. 23.30.250. Penalty for fraudulent acts or false or misleading 16 statements or representations. (a) A person is guilty of theft by deception as defined 17 in AS 11.46.180, and may be punished as provided by AS 11.46.120 - 11.46.150, and 18 is civilly liable to a person adversely affected by the conduct, if the person 19 (1) knowingly makes a false or misleading statement, representation, 20 or submission related to an injury, compensation, or benefit under this chapter; 21 (2) knowingly assists, abets, solicits, or conspires in making a false or 22 misleading submission affecting the payment, coverage, or other benefit under this 23 chapter; 24 (3) knowingly misclassifies employees or engages in deceptive leasing 25 practices for the purpose of evading full payment of workers' compensation insurance 26 premiums; or 27 (4) employs or contracts with a natural person or business organization 28 to coerce or encourage an individual to file a fraudulent compensation claim. 29 (b) In this section, 30 (1) "benefit" means a payment, compensation, medical treatment, 31 service, product, entitlement, or right available under this chapter;
01 (2) "knowingly" has the meaning given in AS 11.81.900. 02 * Sec. 42. AS 23.30.260 is amended by adding a new subsection to read: 03 (b) Notwithstanding AS 23.30.145 and (a) of this section, approval of a fee is 04 not required if the fee does not exceed $300 and is a one-time-only charge to an 05 employee by an attorney licensed in this state who performed legal services with 06 respect to the employee's claim but did not enter an appearance. 07 * Sec. 43. AS 23.30.395 is amended by adding new paragraphs to read: 08 (35) "commission" means the Workers' Compensation Appeals 09 Commission; 10 (36) "commissioner" means the commissioner of labor and workforce 11 development; 12 (37) "department" means the Department of Labor and Workforce 13 Development; 14 (38) "director" means the director of the division of workers' 15 compensation in the department; 16 (39) "division" means the division of workers' compensation in the 17 department. 18 * Sec. 44. AS 37.05.146(c) is amended by adding a new paragraph to read: 19 (78) workers' compensation benefits guaranty fund (AS 23.30.082). 20 * Sec. 45. AS 39.25.110 is amended by adding a new paragraph to read: 21 (40) the chair of the Workers' Compensation Appeals Commission 22 (AS 23.30.007). 23 * Sec. 46. AS 39.25.120(c)(14) is amended to read: 24 (14) the rehabilitation administrator of the division of workers' 25 compensation [WORKERS' COMPENSATION BOARD]; 26 * Sec. 47. AS 39.50.200(b)(31) is amended to read: 27 (31) Workers' Compensation Board (AS 23.30.005) and Workers' 28 Compensation Appeals Commission (AS 23.30.007); 29 * Sec. 48. AS 23.30.095(f), 23.30.095(l), and 23.30.095(m) are repealed. 30 * Sec. 49. AS 23.30.015(c), 23.30.040, 23.30.205, 23.30.395(27); and AS 37.05.146(c)(12) 31 are repealed.
01 * Sec. 50. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 APPLICABILITY. The amendment to AS 23.30.175(b) made by sec. 32 of this Act 04 applies to an injury occurring on or after the effective date of sec. 32 of this Act. 05 * Sec. 51. The uncodified law of the State of Alaska is amended by adding a new section to 06 read: 07 TRANSITION: INITIAL TERMS OF MEMBERS OF WORKERS' 08 COMPENSATION APPEALS COMMISSION. Notwithstanding AS 23.30.007(e), enacted 09 by sec. 10 of this Act, the terms of the initially appointed representative members of the 10 Workers' Compensation Appeals Commission, established by AS 23.30.007 enacted by sec. 11 10 of this Act, shall be set by the governor to achieve staggered terms in the manner provided 12 in AS 39.05.055. 13 * Sec. 52. The uncodified law of the State of Alaska is amended by adding a new section to 14 read: 15 TRANSITION: STAFF. (a) In order to ensure the smooth assumption of duties in 16 the shortest possible time, for a period of six months after the effective date of this section, the 17 director may, with the approval of the commissioner of labor and workforce development and 18 the chair of the commission, temporarily assign division employees to the commission and the 19 commission may reimburse the division for the temporarily assigned employees. Division 20 employees temporarily assigned to the commission shall continue in the same position and 21 rate of pay for the duration of the temporary assignment as the employees held at the division. 22 (b) In this section, 23 (1) "commission" means the Workers' Compensation Appeals Commission 24 established by AS 23.30.007, enacted by sec. 10 of this Act; 25 (2) "director" means the director of the division of workers' compensation in 26 the Department of Labor and Workforce Development; 27 (3) "division" means the division of workers' compensation in the Department 28 of Labor and Workforce Development. 29 * Sec. 53. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 TRANSITIONAL PROVISIONS. (a) Litigation, investigations, and other
01 proceedings pending under a law amended or repealed by this Act, or in connection with 02 functions transferred by this Act, continue in effect and may be continued and completed, 03 notwithstanding a transfer or amendment or repeal provided for in this Act. 04 (b) Certificates, decisions, and orders issued under authority of a law amended or 05 repealed by this Act remain in effect for the term issued, or until revoked, vacated, or 06 otherwise modified under the provisions of this Act. Contracts, rights, liabilities, and 07 obligations created by or under a law amended or repealed by this Act, and in effect on the 08 day before the effective date of this section, remain in effect notwithstanding this Act's taking 09 effect. 10 * Sec. 54. The uncodified law of the State of Alaska is amended by adding a new section to 11 read: 12 TRANSITION: REGULATIONS. (a) The Department of Labor and Workforce 13 Development and the director of insurance in the Department of Commerce, Community, and 14 Economic Development each may proceed to adopt regulations necessary to implement their 15 respective provisions of this Act. The regulations take effect under AS 44.62 (Administrative 16 Procedure Act), but not before the effective date of the statutory changes. 17 (b) In order to provide for the procedures and other administrative matters necessary 18 to ensure the on-going implementation of the state's workers' compensation laws to meet the 19 urgent needs of injured workers, and thus ensure the preservation of the public peace, health, 20 safety, or general welfare, the Workers' Compensation Appeals Commission established by 21 AS 23.30.007, enacted by sec. 10 of this Act, may adopt under AS 23.30.008, enacted by sec. 22 10 of this Act, as emergency regulations, the regulations necessary to implement the changes 23 made by this Act. 24 * Sec. 55. The uncodified law of the State of Alaska is amended by adding a new section to 25 read: 26 IMPLEMENTATION OF REPEAL OF SECOND INJURY FUND. The balance of 27 the second injury fund created by former AS 23.30.040 is transferred to the general fund on 28 the effective date of this section. 29 * Sec. 56. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 TRANSITION: MEDICAL SERVICES REVIEW COMMITTEE STUDY AND
01 REPORT. The medical services review committee appointed by the commissioner of labor 02 and workforce development under AS 23.30.095(j), as amended by sec. 23 of this Act, shall 03 proceed to study medical and related benefits provided under AS 23.30 to determine the 04 appropriateness, necessity, and cost of the benefits, and shall provide to the commissioner of 05 labor and workforce development, by March 1, 2007, a report of the results of the study. 06 * Sec. 57. Section 54(a) of this Act takes effect immediately under AS 01.10.070(c). 07 * Sec. 58. Sections 1 - 4, 32, and 56 of this Act take effect September 1, 2005. 08 * Sec. 59. Sections 5, 12, 39, 49, and 55 of this Act take effect on the date that the 09 commissioner of labor and workforce development certifies to the revisor of statutes and the 10 lieutenant governor that all liability for previously accepted claims to the second injury fund 11 created by former AS 23.30.040, and claims ordered to be paid from that fund, have been 12 satisfied. 13 * Sec. 60. Except as provided in secs. 57 - 59 of this Act, this Act takes effect August 1, 14 2005.