HCS CSSB 130(L&C): "An Act relating to workers' compensation and to assigned risk pools; relating to the Alaska Insurance Guaranty Association; establishing the Task Force on Workers' Compensation; amending Rule 45, Alaska Rules of Civil Procedure; and providing for an effective date."
00 HOUSE CS FOR CS FOR SENATE BILL NO. 130(L&C) 01 "An Act relating to workers' compensation and to assigned risk pools; relating to the 02 Alaska Insurance Guaranty Association; establishing the Task Force on Workers' 03 Compensation; amending Rule 45, Alaska Rules of Civil Procedure; and providing for 04 an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 21.24.130 is amended by adding a new subsection to read: 07 (f) If an insurer is found to be insolvent by a proceeding under AS 21.78 or by 08 a court of competent jurisdiction in another state, the director shall take control of the 09 insurer's deposit made under AS 21.09.090(b). The deposit assets shall be released, at 10 the discretion of the director, to the Alaska Insurance Guaranty Association 11 (AS 21.80) to reimburse for a valid loss and loss expense claim payment made by the 12 association that is within the purpose of the deposit. The director shall pay the 13 remaining deposit assets to the receiver, conservator, rehabilitator, or liquidator of the 14 insurer, or to another properly designated official who succeeds to the management
01 and control of the insurer's assets, after the director determines that all loss and loss 02 expense liabilities have been paid that were incurred on the insurer's policies written in 03 this state for which the deposit was required. 04 * Sec. 2. AS 21.39.155(a) is amended to read: 05 (a) The director may require insurers, except a reciprocal insurer formed [BY 06 AND INSURING ONLY A GROUP OF MUNICIPALITIES OR NONPROFIT 07 PUBLIC UTILITIES] under AS 21.75 [OR A RECIPROCAL INSURER FORMED 08 UNDER AS 21.75 TO PROVIDE MARINE INSURANCE], as a condition of writing 09 a line of insurance dealing with medical malpractice or workers' compensation, to 10 participate in an assigned risk pool if the director finds that mandatory carrier 11 participation is in the public interest. 12 * Sec. 3. AS 23.05.067(a) is amended to read: 13 (a) Each insurer providing workers' compensation insurance and each 14 employer who is self-insured or uninsured for purposes of AS 23.30 in this state shall 15 pay an annual service fee to the department for the administrative expenses of the state 16 for workers' safety programs under AS 18.60 and the workers' compensation program 17 under AS 23.30 as follows: 18 (1) for each employer, 19 (A) except as provided in (b) of this section, the service fee 20 shall be paid each year to the department at the time that the annual report is 21 required to be filed under AS 23.30.155(m) or (n); and 22 (B) the service fee is 2.9 percent of all payments reported to the 23 Alaska Workers' Compensation Board under AS 23.30.155(m) or (n) [, 24 EXCEPT SECOND INJURY FUND PAYMENTS]; and 25 (2) for each insurer, the director of the division of insurance shall, 26 under (e) of this section, deposit from funds received from the insurer under 27 AS 21.09.210 a service fee of 1.82 percent of the direct premium income for workers' 28 compensation insurance received by the insurer during the year ending on the 29 preceding December 31, subject to all the deductions specified in AS 21.09.210(b). 30 * Sec. 4. AS 23.30.005(a) is amended to read: 31 (a) The Alaska Workers' Compensation Board consists of two [A] southern
01 panels [PANEL] of three members sitting for the first judicial district, two [A] 02 northern panels [PANEL] of three members sitting for the second and fourth judicial 03 districts, five [FOUR] southcentral panels of three members each sitting for the third 04 judicial district, and one panel of three members that may sit in any judicial district. 05 Each panel must include the commissioner of labor and workforce development or a 06 hearing officer designated to represent [THE DESIGNATED REPRESENTATIVE 07 OF] the commissioner, a representative of industry, and a representative of labor. The 08 latter two members of each panel shall be appointed by the governor and are subject to 09 confirmation by a majority of the members of the legislature in joint session. The 10 board shall by regulation provide procedures to avoid conflicts and the 11 appearance of impropriety in hearings. 12 * Sec. 5. AS 23.30.005(b) is amended to read: 13 (b) The commissioner shall act as chair [CHAIRMAN] and executive officer 14 of the board and chair [CHAIRMAN] of each panel. The commissioner may 15 designate a representative to act for the commissioner as chair and executive 16 officer of the board. The commissioner may designate hearing officers to serve as 17 chairs of panels for hearing claims [IF THE COMMISSIONER DESIGNATES A 18 REPRESENTATIVE TO ACT FOR THE COMMISSIONER, THE 19 REPRESENTATIVE SHALL SERVE IN THAT CAPACITY ON THE BOARD 20 AND ON EACH PANEL]. 21 * Sec. 6. AS 23.30.005(h) is amended to read: 22 (h) The department shall adopt rules for all panels, and procedures for the 23 periodic selection, retention, and removal of both rehabilitation specialists and 24 physicians under AS 23.30.041 and 23.30.095, and shall adopt regulations to carry out 25 the provisions of this chapter. The department may by regulation provide for 26 procedural, discovery, or stipulated matters to be heard and decided by the 27 commissioner or a hearing officer designated to represent the commissioner 28 rather than a panel. If a procedural, discovery, or stipulated matter is heard and 29 decided by the commissioner or a hearing officer designated to represent the 30 commissioner, the action taken is considered the action of the full board on that 31 aspect of the claim. Process and procedure under this chapter shall be as summary
01 and simple as possible. The department, the board or a member of it may for the 02 purposes of this chapter subpoena witnesses, administer or cause to be administered 03 oaths, and may examine or cause to have examined the parts of the books and records 04 of the parties to a proceeding that relate to questions in dispute. The superior court, on 05 application of the department, the board or any members of it, shall enforce the 06 attendance and testimony of witnesses and the production and examination of books, 07 papers, and records. 08 * Sec. 7. AS 23.30.005 is amended by adding a new subsection to read: 09 (m) The board may by regulation delegate authority to the director to assist the 10 board in administering and enforcing this chapter. 11 * Sec. 8. AS 23.30.012 is amended to read: 12 Sec. 23.30.012. Agreements in regard to claims. (a) At any time after 13 death, or after 30 days subsequent to the date of the injury, the employer and the 14 employee or the beneficiary or beneficiaries, as the case may be, have the right to 15 reach an agreement in regard to a claim for injury or death under this chapter [IN 16 ACCORDANCE WITH THE APPLICABLE SCHEDULE IN THIS CHAPTER], but 17 a memorandum of the agreement in a form prescribed by the director [BOARD] shall 18 be filed with the division [BOARD]. Otherwise, the agreement is void for any 19 purpose. Except as provided in (b) of this section, an agreement filed with the 20 division discharges the liability of the employer for the compensation, 21 notwithstanding the provisions of AS 23.30.130, 23.30.160, and 23.30.245, and is 22 enforceable as a compensation order. 23 (b) The agreement shall be reviewed by a panel of the board if the 24 claimant or beneficiary is not represented by an attorney licensed to practice in 25 this state, the beneficiary is a minor or incompetent, or the claimant is waiving 26 future medical benefits. If approved by the board, the agreement is enforceable the 27 same as an order or award of the board and discharges the liability of the employer for 28 the compensation notwithstanding the provisions of AS 23.30.130, 23.30.160, and 29 23.30.245. The agreement shall be approved by the board only when the terms 30 conform to the provisions of this chapter, and, if it involves or is likely to involve 31 permanent disability, the board may require an impartial medical examination and a
01 hearing in order to determine whether or not to approve the agreement. A [THE 02 BOARD MAY APPROVE] lump-sum settlement may be approved 03 [SETTLEMENTS] when it appears to be to the best interest of the employee or 04 beneficiary or beneficiaries. 05 * Sec. 9. AS 23.30.015(e) is amended to read: 06 (e) An amount recovered by the employer under an assignment, whether by 07 action or compromise, shall be distributed as follows: 08 (1) the employer shall retain an amount equal to 09 (A) the expenses incurred by the employer with respect to the 10 action or compromise, including a reasonable attorney fee determined by the 11 board; 12 (B) the cost of all benefits actually furnished by the employer 13 under this chapter; 14 (C) all amounts paid as compensation [AND SECOND- 15 INJURY FUND] payments [,] and, if the employer is self-insured or 16 uninsured, all service fees paid under AS 23.05.067; 17 (D) the present value of all amounts payable later as 18 compensation, computed from a schedule prepared by the board, [;] and the 19 present value of the cost of all benefits to be furnished later under 20 AS 23.30.095 as estimated by the board; the amounts so computed and 21 estimated shall [TO] be retained by the employer as a trust fund to pay 22 compensation and the cost of benefits as they become due and to pay any 23 finally remaining excess sum to the person entitled to compensation or to the 24 representative; and 25 (2) the employer shall pay any excess to the person entitled to 26 compensation or to the representative of that person. 27 * Sec. 10. AS 23.30.015(j) is amended to read: 28 (j) Notice of the commencement of an action against a third party shall be 29 given to the division [BOARD] and to all interested parties within 30 days. 30 * Sec. 11. AS 23.30.025(a) is amended to read: 31 (a) An insurer may not enter into or issue a policy of insurance under this
01 chapter until its policy form has been submitted to and approved by the director of the 02 division of insurance. The director of the division of insurance may not approve the 03 policy form of an insurance company until the company files with it the certificate of 04 the director of the division of insurance showing that the company is authorized to 05 transact the business of workers' compensation insurance in the state. The filing of a 06 policy form by an insurance company with the division of workers' compensation 07 [BOARD] for approval constitutes, on the part of the company, a conclusive and 08 unqualified acceptance of the provisions of this chapter, and an agreement by it to be 09 bound by them. 10 * Sec. 12. AS 23.30.030(5) is amended to read: 11 (5) A termination of the policy by cancellation is not effective as to the 12 employees of the insured employer covered by it until 20 days after written notice of 13 the termination has been received by the division [BOARD]. If the employer has a 14 contract with the state or a home rule or other political subdivision of the state, and the 15 employer's policy is cancelled due to nonpayment of a premium, the termination of the 16 policy is not effective as to the employees of the insured employer covered by it until 17 20 days after written notice of the termination has been received by the contracting 18 agency, and the agency has the option of continuing the payments on behalf of the 19 employer in order to keep the policy in force. If, however, the employer has secured 20 insurance with another insurance carrier, cancellation is effective as of the date of the 21 new coverage. 22 * Sec. 13. AS 23.30.041(a) is amended to read: 23 (a) The director [BOARD] shall select and employ a reemployment benefits 24 administrator. The director [BOARD] may authorize the administrator to select and 25 employ additional staff. The administrator is in the partially exempt service under 26 AS 39.25.120. 27 * Sec. 14. AS 23.30.041(b) is amended to read: 28 (b) The administrator shall 29 (1) enforce regulations adopted by the board to implement this section; 30 (2) recommend regulations for adoption by the board that establish 31 performance and reporting criteria for rehabilitation specialists;
01 (3) enforce the quality and effectiveness of reemployment benefits 02 provided for under this section; 03 (4) review on an annual basis the performance of rehabilitation 04 specialists to determine continued eligibility for delivery of rehabilitation services; 05 (5) submit to the department, on or before May 1 of each year, a report 06 of reemployment benefits provided under this section for the previous calendar year; 07 the report must include a general section, sections related to each rehabilitation 08 specialist employed under this section, and a statistical summary of all rehabilitation 09 cases, including 10 (A) the estimated and actual cost of each active rehabilitation 11 plan; 12 (B) the estimated and actual time of each rehabilitation plan; 13 (C) a status report on all individuals requesting, waiving, 14 beginning, completing, or terminating a reemployment benefits program 15 including 16 (i) reasons for denial, waiver, suspension, or 17 termination; 18 (ii) dates of completion and [A] return to work; and 19 (iii) other information required by the director 20 [DATE]; 21 (D) the cost of reemployment benefits; 22 (E) status reports of all individuals who successfully 23 completed a reemployment plan that includes 24 (i) the plan's occupational goal and whether the 25 individual obtained work after completion in the planned or 26 another occupation; and 27 (ii) the individual's employment status six months, 28 one year, and two years after reemployment plan completion; 29 (6) maintain a list of rehabilitation specialists who meet the 30 qualifications established under this section; 31 (7) promote awareness among physicians, adjusters, injured workers,
01 employers, employees, attorneys, training providers, and rehabilitation specialists of 02 the reemployment program established in this subsection. 03 * Sec. 15. AS 23.30.041(c) is repealed and reenacted to read: 04 (c) An employee and an employer may stipulate to the employee's eligibility 05 for reemployment benefits at any time. If an employee suffers a compensable injury 06 and, as a result of the injury, the employee is totally unable, for 45 consecutive days, 07 to return to the employee's employment at the time of injury, the administrator shall 08 notify the employee of the employee's rights under this section within 14 days after the 09 45th day. If the employee is totally unable to return to the employee's employment for 10 60 consecutive days as a result of the injury, the employee or employer may request an 11 eligibility evaluation. The administrator may approve the request if the employee's 12 injury may permanently preclude the employee's return to the employee's occupation 13 at the time of the injury. If the employee is totally unable to return to the employee's 14 employment at the time of the injury for 90 consecutive days as a result of the injury, 15 the administrator shall, without a request, order an eligibility evaluation unless a 16 stipulation of eligibility was submitted. If the administrator approves a request or 17 orders an evaluation, the administrator shall, on a rotating and geographic basis, select 18 a rehabilitation specialist from the list maintained under (b)(6) of this section to 19 perform the eligibility evaluation. If the person that employs a rehabilitation specialist 20 selected by the administrator to perform an eligibility evaluation under this subsection 21 is performing any other work on the same workers' compensation claim involving the 22 injured employee, the administrator shall select a different rehabilitation specialist. 23 * Sec. 16. AS 23.30.041(j) is amended to read: 24 (j) The employee, rehabilitation specialist, and [THE] employer shall sign the 25 reemployment benefits plan. If the employer and employee fail to agree on a 26 reemployment plan, either party may submit a reemployment plan for approval to the 27 administrator. The [; THE] administrator shall approve or deny a plan within 14 days 28 after the plan is submitted. Within [; WITHIN] 10 days after [OF] the decision, 29 either party may seek review of the decision by requesting a hearing under 30 AS 23.30.110. The [; THE] board shall uphold the decision of the administrator 31 unless evidence is submitted supporting an allegation of abuse of discretion on the part
01 of the administrator. The [; THE] board shall render a decision within 30 days after 02 completion of the hearing. 03 * Sec. 17. AS 23.30.041(k) is amended to read: 04 (k) Benefits related to the reemployment plan may not extend past two years 05 from date of plan approval or acceptance, whichever date occurs first, at which time 06 the benefits expire. If an employee reaches medical stability before completion of the 07 plan, temporary total disability benefits shall cease and permanent impairment benefits 08 shall then be paid at the employee's temporary total disability rate. If the employee's 09 permanent impairment benefits are exhausted before the completion or termination of 10 the reemployment process [PLAN], the employer shall provide compensation equal to 11 70 percent of the employee's spendable weekly wages, but not to exceed 105 percent 12 of the average weekly wage, until the completion or termination of the process 13 [PLAN], except that any compensation paid under this subsection is reduced by wages 14 earned by the employee while participating in the process [PLAN] to the extent that 15 the wages earned, when combined with the compensation paid under this subsection, 16 exceed the employee's temporary total disability rate. If permanent partial disability 17 or permanent partial impairment benefits have been paid in a lump sum before the 18 employee requested or was found eligible for reemployment benefits, payment of 19 benefits under this subsection is suspended until permanent partial disability benefits 20 would have ceased, had those benefits been paid at the employee's temporary total 21 disability rate, notwithstanding the provisions of AS 23.30.155(j). A permanent 22 impairment benefit remaining unpaid upon the completion or termination of the plan 23 shall be paid to the employee in a single lump sum. An employee may not be 24 considered permanently totally disabled so long as the employee is involved in the 25 rehabilitation process under this chapter. The fees of the rehabilitation specialist or 26 rehabilitation professional shall be paid by the employer and may not be included in 27 determining the cost of the reemployment plan. 28 * Sec. 18. AS 23.30.041(n) is amended to read: 29 (n) After the employee has elected to participate in reemployment benefits, if 30 the employer believes the employee has not cooperated, the employer may terminate 31 reemployment benefits on the date of noncooperation. Noncooperation means
01 (1) unreasonable failure to 02 (A) keep appointments; 03 (B) maintain passing grades; 04 (C) attend designated programs; 05 (D) maintain contact with the rehabilitation specialist; 06 (E) cooperate with the rehabilitation specialist in developing a 07 reemployment plan and participating in activities relating to reemployability on 08 a full-time basis; 09 (F) comply with the employee's responsibilities outlined in the 10 reemployment plan; or 11 (G) participate in any planned reemployment activity as 12 determined by the administrator; or 13 (2) failure to give written notice to the employer of the employee's 14 choice of rehabilitation specialists within 30 [15] days after receiving notice of 15 eligibility for benefits from the administrator as required by (g) of this section. 16 * Sec. 19. AS 23.30.041(p) is amended to read: 17 (p) When the United States Department of Labor publishes a new edition, 18 revision, or replacement for the "Selected Characteristics of Occupations Defined in 19 the Revised Dictionary of Occupational Titles" referred to in (e) of this section, the 20 director [BOARD] shall, not later than 90 days after the last day of the month in 21 which the new edition, revision, or replacement standard is published, hold an open 22 meeting under AS 44.62.310 to select the proposed date on which the new edition, 23 revision, or replacement standard will be implemented to make all eligibility 24 determinations required under (e) of this section. The date selected by the 25 department [BOARD] for implementing the new edition, revision, or replacement 26 standard may not be later than 90 days after the last day of the month in which the new 27 edition, revision, or replacement standard is published. After the meeting, the 28 director [BOARD] shall issue a public notice announcing the date selected by the 29 department. The requirements of AS 44.62.010 - 44.62.300 do not apply to the 30 selection or announcement of the date under this subsection. 31 * Sec. 20. AS 23.30.041(q) is amended to read:
01 (q) Notwithstanding AS 23.30.012, after medical stability has been determined 02 and a physician has predicted that the employee may have a permanent impairment 03 that may cause the employee to have permanent physical capacities that are less than 04 the physical demands of the employee's job at the time of injury, an employee may 05 waive any benefits or rights under this section, including an eligibility evaluation and 06 benefits related to a reemployment plan. To waive any benefits or rights under this 07 section, an employee must file a statement under oath with the division [BOARD] to 08 notify the parties of the waiver and to specify the scope of benefits or rights that the 09 employee seeks to waive. The statement must be on a form prescribed or approved by 10 the director [BOARD]. The division [BOARD] shall serve the notice of waiver on 11 all parties to the claim within 10 days after filing. The waiver is effective upon service 12 to the party. A waiver effective under this subsection discharges the liability of the 13 employer for the benefits or rights contained in this section. The waiver may not be 14 modified under AS 23.30.130. 15 * Sec. 21. AS 23.30.065 is amended to read: 16 Sec. 23.30.065. Employer's record of injuries. An employer shall keep a 17 record with [IN] respect of an injury to an employee. The record must contain the 18 information of disease, other disability, or death with [IN] respect to an injury that the 19 division [BOARD] requires, and must be available to inspection by the division 20 [BOARD] or by a state authority at the times and under the conditions that the 21 department [BOARD] prescribes by regulation. 22 * Sec. 22. AS 23.30.070(a) is amended to read: 23 (a) Within 10 days from the date the employer has knowledge of an injury or 24 death or from the date the employer has knowledge of a disease or infection, alleged 25 by the employee or on behalf of the employee to have arisen out of and in the course 26 of the employment, the employer shall send to the division [BOARD] a report setting 27 out 28 (1) the name, address, and business of the employer; 29 (2) the name, address, and occupation of the employee; 30 (3) the cause and nature of the alleged injury or death; 31 (4) the year, month, day, and hour when and the particular locality
01 where the alleged injury or death occurred; and 02 (5) the other information that the division [BOARD] may require. 03 * Sec. 23. AS 23.30.070(b) is amended to read: 04 (b) Additional reports with [IN] respect to the injury and to the condition of 05 the employee shall be sent by the employer to the division [BOARD] at the times and 06 in the manner that the director [BOARD] prescribes. 07 * Sec. 24. AS 23.30.070(d) is amended to read: 08 (d) Mailing of the report and copy to the division [BOARD] in a stamped 09 envelope, within the time prescribed in (a) or (b) of this section, is compliance with 10 this section. 11 * Sec. 25. AS 23.30.075 is amended to read: 12 Sec. 23.30.075. Employer's liability to pay. (a) An employer under this 13 chapter, unless exempted, shall either insure and keep insured for the employer's 14 liability under this chapter in an insurance company or association duly authorized to 15 transact the business of workers' compensation insurance in this state, or shall furnish 16 the division [BOARD] satisfactory proof of the employer's financial ability to pay 17 directly the compensation provided for. If an employer elects to pay directly, the 18 board may, in its discretion, require the deposit of an acceptable security, indemnity, 19 or bond to secure the payment of compensation liabilities as they are incurred. 20 (b) If an employer fails to insure and keep insured employees subject to this 21 chapter or fails to obtain a certificate of self-insurance from the division [BOARD], 22 upon conviction, the court shall impose a fine of $10,000 and may impose a sentence 23 of imprisonment for not more than one year. If an employer is a corporation, all 24 persons who, at the time of the injury or death, had authority to insure the corporation 25 or apply for a certificate of self-insurance, and the person actively in charge of the 26 business of the corporation shall be subject to the penalties prescribed in this 27 subsection and shall be personally, jointly, and severally liable together with the 28 corporation for the payment of all compensation or other benefits for which the 29 corporation is liable under this chapter if the corporation at that time is not insured or 30 qualified as a self-insurer. 31 * Sec. 26. AS 23.30.075 is amended by adding a new subsection to read:
01 (c) An employer who with gross negligence or reckless or intentional 02 misconduct fails to properly classify an employee for the purpose of obtaining 03 workers' compensation insurance or to furnish proof to the division of the employer's 04 financial ability to pay compensation directly fails to comply with the requirements in 05 (a) of this section. 06 * Sec. 27. AS 23.30.080(d) is amended to read: 07 (d) If an employer fails to insure or provide security as required by 08 AS 23.30.075, the director [BOARD] may issue a stop order prohibiting the use of 09 employee labor by the employer until the employer insures or provides security as 10 required by AS 23.30.075. The failure of an employer to file evidence of compliance 11 as required by AS 23.30.085 creates a rebuttable presumption that the employer has 12 failed to insure or provide security as required by AS 23.30.075. If an employer fails 13 to comply with a stop order issued under this section, the board shall assess a civil 14 penalty of $1,000 a [PER] day. The employer may not obtain a public contract with 15 the state or a political subdivision of the state for three years following the violation of 16 the stop order. 17 * Sec. 28. AS 23.30.080 is amended by adding new subsections to read: 18 (e) If a representative of the department investigates an employer's failure to 19 file the evidence of compliance required by AS 23.30.085 and, after investigation, 20 there is substantial evidence that the employer failed to insure or provide security as 21 required by AS 23.30.075, the division shall inform the employer. The director may 22 issue a stop order prohibiting the use of employee labor by the employer until the 23 employer insures or provides security as required by AS 23.30.075. The director may 24 issue a stop order, without a hearing, based on the representative's investigation. The 25 director shall dissolve a stop order issued under this subsection upon receipt of 26 substantial evidence that the employer is insured or has provided security as required 27 by AS 23.30.075(a). If an employer fails to comply with a stop order issued under this 28 subsection, the division may petition the board to assess a civil penalty. The board 29 may assess a civil penalty of $1,000 per day. An employer who is assessed a penalty 30 under this subsection may not obtain a public contract with the state or a political 31 subdivision of the state for the three years following violation of the stop order.
01 (f) If an employer fails to insure or provide security as required by 02 AS 23.30.075, the division may petition the board to assess a civil penalty of up to 03 $1,000 for each employee for each day an employee is employed while the employer 04 failed to insure or provide the security required by AS 23.30.075. The failure of an 05 employer to file evidence of compliance as required by AS 23.30.085 creates a 06 rebuttable presumption that the employer failed to insure or provide security as 07 required by AS 23.30.075. 08 (g) If an employer fails to pay a civil penalty order issued under (d), (e), or (f) 09 of this section within seven days after the date of service of the order upon the 10 employer, the director may declare the employer in default. The director shall file a 11 certified copy of the penalty order and declaration of default with the clerk of the 12 superior court. The court shall, upon the filing of the copy of the order and 13 declaration, enter judgment for the amount declared in default if it is in accordance 14 with law. Anytime after a declaration of default, the attorney general shall, when 15 requested to do so by the director, take appropriate action to ensure collection of the 16 defaulted payment. Review of the judgment may be had as provided under the Alaska 17 Rules of Civil Procedure. Final proceedings to execute the judgment may be had by 18 writ of execution. 19 * Sec. 29. AS 23.30 is amended by adding a new section to read: 20 Sec. 23.30.082. Workers' compensation benefits guaranty fund. (a) The 21 workers' compensation benefits guaranty fund is established in the general fund to 22 carry out the purposes of this section. The fund is composed of civil penalty payments 23 made by employers under AS 23.30.080, income earned on investment of the money 24 in the fund, money deposited in the fund by the department, and other appropriations 25 to the fund. Money appropriated to the fund does not lapse. Amounts in the fund may 26 be appropriated for claims against the fund, for expenses directly related to fund 27 operations and claims, for legal expenses, and for an employee's attorney fees and 28 costs. 29 (b) Every three months, the Department of Revenue shall provide the division 30 with a statement of the activities of, balances in, interest earned on, and interest 31 returned to the fund.
01 (c) Subject to the provisions of this section, an employee employed by an 02 employer who fails to meet the requirements of AS 23.30.075 and who fails to pay 03 compensation and benefits due to the employee under this chapter, may file a claim for 04 payment by the fund. In order to be eligible for payment, the claim form must be filed 05 within the same time, and in the same manner, as a workers' compensation claim. The 06 fund may assert the same defenses as an insured employer under this chapter. 07 (d) If the fund pays benefits to an employee under this section, the fund shall 08 be subrogated to all of the rights of the employee to the amount paid, and the 09 employee shall assign all right, title, and interest in that portion of the employee's 10 workers' compensation claim and any recovery under AS 23.30.015 to the fund. 11 Money collected by the division on the claim or recovery shall be deposited in the 12 fund. 13 (e) If the money deposited in the fund is insufficient at a given time to satisfy 14 a duly authorized claim against the fund, the fund shall, when sufficient money has 15 been deposited in the fund and appropriated, satisfy unpaid claims in the order in 16 which the claims were originally filed, without interest. 17 (f) The division may contract under AS 36.30 (State Procurement Code) with 18 a person for the person to adjust claims against the fund. The contract may cover one 19 or more claims. 20 (g) In this section, "fund" means the workers' compensation benefits guaranty 21 fund. 22 * Sec. 30. AS 23.30.085(a) is amended to read: 23 (a) An employer subject to this chapter, unless exempted, shall initially file 24 evidence of compliance with the insurance provisions of this chapter with the division 25 [BOARD], in the form prescribed by the director [IT]. The employer shall also give 26 evidence of compliance within 10 days after the termination of the employer's 27 insurance by expiration or cancellation. These requirements do not apply to an 28 employer who has certification from the board of the employer's financial ability to 29 pay compensation directly without insurance. 30 * Sec. 31. AS 23.30.095(h) is amended to read: 31 (h) Upon the filing with the division [BOARD] by a party in interest of a
01 claim [AN APPLICATION] or other pleading, all parties to the proceeding must 02 immediately, or in any event within five days after service of the pleading, send to the 03 division [BOARD] the original signed reports of all physicians relating to the 04 proceedings that [WHICH] they may have in their possession or under their control, 05 and copies of the reports shall be served by the party immediately on any [THE] 06 adverse party. There is a continuing duty on all [THE] parties to [SO] file and serve 07 all the reports during the pendency of the proceeding. 08 * Sec. 32. AS 23.30.095(j) is amended to read: 09 (j) The board shall [MAY] appoint a medical services review committee [, OR 10 CONTRACT WITH AN EXISTING ORGANIZATION IN THE STATE OR 11 ANOTHER STATE,] to assist and advise the board in matters involving the 12 appropriateness, necessity, and cost of medical and related services provided under 13 this chapter. The medical services review committee shall elect a chair from 14 among its members. The medical services review committee shall consist of seven 15 members to be appointed by the board as follows: 16 (1) one rehabilitation specialist as defined in AS 23.30.041; 17 (2) one public member who is not within the definition of "health 18 care provider" in AS 09.55.560; 19 (3) one chiropractic physician licensed under AS 08.20; 20 (4) four health care providers as defined in AS 09.55.560, except 21 that a chiropractic physician may not be appointed under this paragraph. 22 * Sec. 33. AS 23.30.095 is amended by adding a new subsection to read: 23 (n) A generic drug product must be used when dispensing a drug product to an 24 employee under this chapter unless the prescribing physician provides justification in 25 writing explaining the medical necessity for the name-brand drug product. The 26 department, by regulation, shall establish a preferred drug list and a procedure for 27 establishing medical necessity to depart from the list and to use a name-brand drug 28 product. In this subsection, "generic drug product" has the meaning given the term 29 "equivalent drug product" in AS 08.80.480. 30 * Sec. 34. AS 23.30 is amended by adding a new section to article 2 to read: 31 Sec. 23.30.097. Fees for medical treatment and services. (a) All fees and
01 other charges for medical treatment or service are subject to regulation by the board 02 consistent with this section. A fee or other charge for medical treatment or service 03 may not exceed the lesser of 04 (1) the usual, customary, and reasonable fees for the treatment or 05 service in the community in which it is rendered, not to exceed the fees in the fee 06 schedule specified by the board in its published bulletin dated December 1, 2004; 07 (2) the fee or charge for the service when provided to the general 08 public; or 09 (3) the fee or charge negotiated by the provider and the employer 10 under (c) of this section. 11 (b) An employer, or group of employers, shall establish a list of preferred 12 physicians and treatment service providers to provide medical, surgical, and other 13 attendance or treatment services to the employer's employees under this chapter; 14 however, 15 (1) the employee's right to chose the employee's attending physician 16 under AS 23.30.095(a) is not impaired; 17 (2) when given to the employee, the employer's preferred physician list 18 must clearly state that the list is voluntary, that the employee's choice is not restricted 19 to the list, that the employee's rights under this chapter are not impaired by choosing 20 an attending physician from the list, and that, if the employee chooses an attending 21 physician from the list, the employee may, in the manner provided in AS 23.30.095, 22 make one change of attending physician, from the list or otherwise; and 23 (3) establishment of a list of preferred physicians does not affect the 24 employer's choice of physician for an employer medical examination under 25 AS 23.30.095. 26 (c) An employer, or group of employers, may negotiate with physicians and 27 other treatment service providers under this chapter to obtain reduced fees and service 28 charges and may take the fees and charges into account when forming a list of 29 preferred physicians and providers. In no event may an employer, or group of 30 employers, attempt to influence the treatment, medical decisions, or ratings by the 31 physicians in the course of the negotiations of such a preferred physician and provider
01 fee plans. 02 (d) An employer shall pay an employee's bills for medical treatment under this 03 chapter, excluding prescription charges or transportation for medical treatment, within 04 30 days after the date that the employer receives the provider's bill or a completed 05 report as required by AS 23.30.095(c), whichever is later. 06 (e) A physician or other provider of treatment services under this chapter, 07 including hospital services, that submits a bill for medical treatment to the insurer or 08 self-insured employer shall also submit a copy of the bill to the employee to whom the 09 treatment was provided. An employee who notifies the insurer or self-insured 10 employer's adjuster in writing of an overcharge in the bill that was not previously 11 identified by the insurer or self-insured employer's adjuster shall be entitled to a 12 reward equal to 25 percent of the billing reduction or reimbursement achieved due to 13 the employee's report. This reward does not apply to overcharges of an amount under 14 $100 if the insurer or self-insured employer's adjuster elects not to pursue correction 15 of the bill. 16 (f) An employee may not be required to pay a fee or charge for medical 17 treatment or service provided under this chapter. 18 (g) Unless the employer controverts a charge, the employer shall reimburse an 19 employee's prescription charges under this chapter within 30 days after the employer 20 receives the health care provider's completed report and an itemization of the 21 prescription charges for the employee. Unless the employer controverts a charge, an 22 employer shall reimburse any transportation expenses for medical treatment under this 23 chapter within 30 days after the employer receives the health care provider's 24 completed report and an itemization of the dates, destination, and transportation 25 expenses for each date of travel for medical treatment. If the employer does not plan 26 to make or does not make payment or reimbursement in full as required by this 27 subsection, the employer shall notify the employee and the employee's health care 28 provider in writing that payment will not be made timely and the reason for the 29 nonpayment. The notification must be provided not later than the date that the 30 payment is due under this subsection. 31 * Sec. 35. AS 23.30.100(b) is amended to read:
01 (b) The notice must be in writing, contain the name and address of the 02 employee, [AND] a statement of the time, place, nature, and cause of the injury or 03 death, and authority to release records of medical treatment for the injury or 04 death, and be signed by the employee or by a person on behalf of the employee, or, in 05 case of death, by a person claiming to be entitled to compensation for the death or by a 06 person on behalf of that person. 07 * Sec. 36. AS 23.30.107 is amended to read: 08 Sec. 23.30.107. Release of information. (a) Upon written request, an 09 employee shall provide written authority to the employer, carrier, rehabilitation 10 specialist, or reemployment benefits administrator to obtain medical and rehabilitation 11 information relative to the employee's injury. The request must include notice of the 12 employee's right to file a petition for a protective order with the division [BOARD] 13 and must be served by certified mail to the employee's address on the notice of injury 14 or by hand delivery to the employee. This subsection may not be construed to 15 authorize an employer, carrier, rehabilitation specialist, or reemployment benefits 16 administrator to request medical or other information that is not applicable to the 17 employee's injury. 18 (b) Medical or rehabilitation records in an employee's file maintained by the 19 division and individually identifiable information concerning employees and 20 employers in files maintained by the division [BOARD] are not public records 21 subject to public inspection and copying under AS 40.25. This subsection does not 22 prohibit 23 (1) the reemployment benefits administrator, the division, the board, 24 or the department from releasing medical or rehabilitation records in an employee's 25 file, or releasing individually identifiable information concerning employees and 26 employers in files maintained by the division, without the employee's or the 27 employer's consent, to a physician providing medical services under AS 23.30.095(k) 28 or 23.30.110(g), an employer of the employee, an employee of the employer, a 29 party to a claim regarding [FILED BY] the employee, or a governmental agency; 30 [OR] 31 (2) the quoting or discussing of [MEDICAL OR REHABILITATION]
01 records contained in an employee's file during a hearing on a claim for compensation, 02 in a determination by the reemployment benefits administrator, or in a decision 03 and order of the board; or 04 (3) the division from confirming the insurance coverage or self- 05 insurance certificate for liabilities of an employer under this chapter. 06 * Sec. 37. AS 23.30.107 is amended by adding a new subsection to read: 07 (c) The division may not assemble, or provide information respecting, 08 individual records for commercial purposes that are outside the scope of this chapter. 09 * Sec. 38. AS 23.30.140 is amended to read: 10 Sec. 23.30.140. Appointment of guardian by court. The director 11 [BOARD] may require the appointment of a guardian or other representative by a 12 competent court for any person who is mentally incompetent or a minor to receive 13 compensation payable to the person under this chapter and to exercise the powers 14 granted to or to perform the duties required of the person under this chapter. If the 15 director [BOARD] does not require the appointment of a guardian to receive the 16 compensation of a minor, appointment for this purpose is not necessary. 17 * Sec. 39. 23.30.145(b) is amended to read: 18 (b) If an employer fails to file timely notice of controversy or fails to pay 19 compensation or medical and related benefits within 15 days after it becomes due or 20 otherwise resists the payment of compensation or medical and related benefits and if 21 the claimant has employed an attorney in the successful prosecution of the claim, the 22 board shall make an award to reimburse the claimant for the costs in the proceedings, 23 including [A] reasonable attorney fees [FEE]. The award is in addition to the 24 compensation or medical and related benefits ordered. 25 * Sec. 40. AS 23.30.155(a)is amended to read: 26 (a) Compensation under this chapter shall be paid periodically, promptly, and 27 directly to the person entitled to it, without an award, except where liability to pay 28 compensation is controverted by the employer. To controvert a claim, the employer 29 must file a notice, on a form prescribed by the director [BOARD], stating 30 (1) that the right of the employee to compensation is controverted; 31 (2) the name of the employee;
01 (3) the name of the employer; 02 (4) the date of the alleged injury or death; and 03 (5) the type of compensation and all grounds upon which the right to 04 compensation is controverted. 05 * Sec. 41. AS 23.30.155(c) is amended to read: 06 (c) The insurer or adjuster shall notify the division [BOARD] and the 07 employee on a form prescribed by the director [BOARD] that the payment of 08 compensation has begun or has been increased, decreased, suspended, terminated, 09 resumed, or changed in type. An initial report shall be filed with the division 10 [BOARD] and sent to the employee within 28 days after the date of issuing the first 11 payment of compensation. If at any time 21 days or more pass and no compensation 12 payment is issued, a report notifying the division [BOARD] and the employee of the 13 termination or suspension of compensation shall be filed with the division [BOARD] 14 and sent to the employee within 28 days after the date the last compensation payment 15 was issued. A report shall also be filed with the division [BOARD] and sent to the 16 employee within 28 days after the date of issuing a payment increasing, decreasing, 17 resuming, or changing the type of compensation paid. If the division [BOARD] and 18 the employee are not notified within the 28 days prescribed by this subsection for 19 reporting, the insurer or adjuster shall pay a civil penalty of $100 for the first day plus 20 $10 for each day after the first day [THEREAFTER] that the notice was not given. 21 Total penalties under this subsection may not exceed $1,000 for a failure to file a 22 required report. Penalties assessed under this subsection are eligible for reduction 23 under (m) of this section. A penalty assessed under this subsection after penalties have 24 been reduced under (m) of this section shall be increased by 25 percent and shall bear 25 interest at the rate established under AS 45.45.010. 26 * Sec. 42. AS 23.30.155(d) is amended to read: 27 (d) If the employer controverts the right to compensation the employer shall 28 file with the division [BOARD] and send to the employee a notice of controversion on 29 or before the 21st day after the employer has knowledge of the alleged injury or death. 30 If the employer controverts the right to compensation after payments have begun, the 31 employer shall file with the division [BOARD] and send to the employee a notice of
01 controversion within seven days after an installment of compensation payable without 02 an award is due. When payment of temporary disability benefits is controverted solely 03 on the grounds that another employer or another insurer of the same employer may be 04 responsible for all or a portion of the benefits, the most recent employer or insurer 05 who is party to the claim and who may be liable shall make the payments during the 06 pendency of the dispute. When a final determination of liability is made, any 07 reimbursement required, including interest at the statutory rate, and all costs and 08 attorney [ATTORNEYS'] fees incurred by the prevailing employer, shall be made 09 within 14 days after [OF] the determination. 10 * Sec. 43. AS 23.30.155(e) is amended to read: 11 (e) If any installment of compensation payable without an award is not paid 12 within seven days after it becomes due, as provided in (b) of this section, there shall be 13 added to the unpaid installment an amount equal to 25 percent of the installment [IT]. 14 This additional amount shall be paid at the same time as, and in addition to, the 15 installment, unless notice is filed under (d) of this section or unless the nonpayment is 16 excused by the board after a showing by the employer that owing to conditions over 17 which the employer had no control the installment could not be paid within the period 18 prescribed for the payment. The additional amount shall be paid directly to the 19 recipient to whom the unpaid installment was to be paid. 20 * Sec. 44. AS 23.30.155(f) is amended to read: 21 (f) If compensation payable under the terms of an award is not paid within 14 22 days after it becomes due, there shall be added to that unpaid compensation an amount 23 equal to 25 percent of the unpaid installment. The additional amount [IT, 24 WHICH] shall be paid at the same time as, but in addition to, the compensation, unless 25 review of the compensation order making the award is had as provided in the Alaska 26 Rules of Appellate Procedure [AS 23.30.125] and an interlocutory injunction staying 27 payments is allowed by the court. The additional amount shall be paid directly to 28 the recipient to whom the unpaid compensation was to be paid. 29 * Sec. 45. AS 23.30.155(i) is amended to read: 30 (i) When the director [BOARD] considers it advisable, the director [IT] may 31 require an employer to make a deposit with the Department of Revenue to secure the
01 prompt and convenient payment of the compensation, and payments from the deposit 02 upon an award shall be made upon order of the director [BOARD]. 03 * Sec. 46. AS 23.30.155(k) is amended to read: 04 (k) An injured employee [,] or, in case of death, the employee's dependents or 05 personal representative [,] shall give receipts for payment of compensation to the 06 employer paying the compensation, [IT] and the employer shall produce the receipts 07 [THEM] for inspection by the director [BOARD], whenever required. 08 * Sec. 47. AS 23.30.155(m) is amended to read: 09 (m) On or before March 1 of each year, the insurer or adjuster shall file a 10 verified annual report on a form prescribed by the director [BOARD] stating the total 11 amount of all compensation by type, the number of claims received and the percentage 12 controverted, medical [,] and related benefits, vocational rehabilitation expenses, legal 13 fees, including a separate total of fees paid to attorneys and fees paid for the other 14 costs of litigation, and penalties paid on all claims during the preceding calendar year. 15 If the annual report is timely and complete when received by the division [BOARD] 16 and provides accurate information about each category of payments, the director 17 [COMMISSIONER] shall review the timeliness of the insurer's or adjuster's reports 18 filed during the preceding year under (c) of this section. If, during the preceding year, 19 the insurer or adjuster filed at least 99 percent of the reports on time, the penalties 20 assessed under (c) of this section shall be waived. If, during the preceding year, the 21 insurer or adjuster filed at least 97 percent of the reports on time, 75 percent of the 22 penalties assessed under (c) of this section shall be waived. If, during the preceding 23 year, the insurer or adjuster filed 95 percent of the reports on time, 50 percent of the 24 penalties assessed under (c) of this section shall be waived. If, during the preceding 25 year, the insurer's or adjuster's reports have not been filed on time at least 95 percent 26 of the time, none of the penalties assessed under (c) of this section shall be waived. 27 The penalties that are not waived are due and payable when the insurer or adjuster 28 receives notification from the director [COMMISSIONER] regarding the timeliness 29 of the reports. If the annual report is not filed by March 1 of each year, the insurer or 30 adjuster shall pay a civil penalty of $100 for the first day the annual report is late [,] 31 and $10 for each additional day the report is late. If the annual report is incomplete
01 when filed, the insurer or adjuster shall pay a civil penalty of $1,000. 02 * Sec. 48. AS 23.30.155(o) is amended to read: 03 (o) The director [BOARD] shall promptly notify the division of insurance if 04 the board determines that the employer's insurer has frivolously or unfairly 05 controverted compensation due under this chapter. After receiving notice from the 06 director [BOARD], the division of insurance shall determine if the insurer has 07 committed an unfair claim settlement practice under AS 21.36.125. 08 * Sec. 49. AS 23.30.175(b) is amended to read: 09 (b) The following rules apply to benefits payable to recipients not residing in 10 the state at the time compensation benefits are payable: 11 (1) the weekly rate of compensation shall be calculated by multiplying 12 the recipient's weekly compensation rate calculated under AS 23.30.180, 23.30.185, 13 23.30.190, 23.30.200, or 23.30.215 [,] by the ratio of the cost of living of the area in 14 which the recipient resides to the cost of living in this state; 15 (2) the calculation required by (1) of this subsection does not apply if 16 the recipient is absent from the state for medical or rehabilitation services not 17 reasonably available in the state; 18 (3) if the gross weekly earnings of the recipient and the resulting 19 compensation rate are determined under AS 23.30.220(a)(6), (7), or (10), the 20 calculation required by this subsection applies only to the portion of the recipient's 21 weekly compensation rate attributable to wages earned in the state; 22 (4) application of this subsection may not reduce the weekly 23 compensation rate to less than $154 a week, except as provided in (a) of this section; 24 (5) application of (1) - (4) of this subsection may not result in 25 raising a recipient's weekly compensation rate to an amount that exceeds the 26 weekly compensation rate that the recipient would have received if the recipient 27 had been residing in the state. 28 * Sec. 50. AS 23.30.175(c) is amended to read: 29 (c) The department [BOARD] shall provide by regulation for the 30 determination and comparison of living costs for this state and the other areas in which 31 recipients reside and for the [ANNUAL] redetermination and comparison of these
01 costs every three years. 02 * Sec. 51. AS 23.30.175 is amended by adding a new subsection to read: 03 (e) If the commissioner fails to determine the average weekly wage in the state 04 as required in (d) of this section until after January 1, but before April 1, of the year 05 following the date the determination was to be made, an employer is not required to 06 make a retroactive adjustment of compensation. 07 * Sec. 52. AS 23.30.205(e) is amended to read: 08 (e) The second injury fund may not be bound as to any question of law or fact 09 by reason of an award or an adjudication to which it was not a party or in relation to 10 which the director [COMMISSIONER] was not notified at least three weeks before 11 the award or adjudication [,] that the fund might be subject to liability for the injury or 12 death. 13 * Sec. 53. AS 23.30.205 is amended by adding a new subsection to read: 14 (g) Claims for reimbursement may not be submitted to the second injury fund 15 after September 1, 2005. The fund shall continue to make reimbursement payments 16 on claims accepted before July 1, 2006, or ordered by the board, until the fund's 17 liabilities for the claim are extinguished. 18 * Sec. 54. AS 23.30.220(a) is amended to read: 19 (a) Computation of compensation under this chapter shall be on the basis of an 20 employee's spendable weekly wage at the time of injury. An employee's spendable 21 weekly wage is the employee's gross weekly earnings minus payroll tax deductions. 22 An employee's gross weekly earnings shall be calculated as follows: 23 (1) if at the time of injury the employee's earnings are calculated by the 24 week, the weekly amount is the employee's gross weekly earnings; 25 (2) if at the time of injury the employee's earnings are calculated by the 26 month, the employee's gross weekly earnings are the monthly earnings multiplied by 27 12 and divided by 52; 28 (3) if at the time of injury the employee's earnings are calculated by the 29 year, the employee's gross weekly earnings are the yearly earnings divided by 52; 30 (4) if at the time of injury the [(A)] employee's earnings are calculated 31 by the day, by the hour, or by the output of the employee, then the employee's gross
01 weekly earnings are 1/50 of the total wages that the employee earned from all 02 occupations during either of the two calendar years immediately preceding the 03 injury, whichever is [THE EMPLOYEE'S EARNINGS] most favorable to the 04 employee [COMPUTED BY DIVIDING BY 13 THE EMPLOYEE'S EARNINGS, 05 INCLUDING OVERTIME OR PREMIUM PAY, EARNED DURING ANY PERIOD 06 OF 13 CONSECUTIVE CALENDAR WEEKS WITHIN THE 52 WEEKS 07 IMMEDIATELY PRECEDING THE INJURY; 08 (B) EMPLOYEE HAS BEEN EMPLOYED FOR LESS THAN 09 13 CALENDAR WEEKS IMMEDIATELY PRECEDING THE INJURY, 10 THEN, NOTWITHSTANDING (1) - (3) OF THIS SUBSECTION AND (A) 11 OF THIS PARAGRAPH, THE EMPLOYEE'S GROSS WEEKLY 12 EARNINGS ARE COMPUTED BY DETERMINING THE AMOUNT THAT 13 THE EMPLOYEE WOULD HAVE EARNED, INCLUDING OVERTIME 14 OR PREMIUM PAY, HAD THE EMPLOYEE BEEN EMPLOYED BY THE 15 EMPLOYER FOR 13 CALENDAR WEEKS IMMEDIATELY PRECEDING 16 THE INJURY AND DIVIDING THIS SUM BY 13]; 17 (5) if at the time of injury the employee's earnings have not been fixed 18 or cannot be ascertained, the employee's earnings for the purpose of calculating 19 compensation are the usual wage for similar services when the services are rendered 20 by paid employees; 21 (6) if at the time of injury the employee's earnings are calculated by 22 the week under (a)(1) of this section or by the month under (a)(2) of this section 23 and the employment is exclusively seasonal or temporary, then [, 24 NOTWITHSTANDING (1) - (5) OF THIS SUBSECTION,] the gross weekly 25 earnings are 1/50 of the total wages that the employee has earned from all occupations 26 during the 12 calendar months immediately preceding the injury; 27 (7) when the employee is working under concurrent contracts with two 28 or more employers, the employee's earnings from all employers is considered as if 29 earned from the employer liable for compensation; 30 (8) if an employee when injured is a minor, an apprentice, or a trainee 31 in a formalized [FORMAL] training program, as determined by the board, whose
01 wages under normal conditions would increase during the period of disability, the 02 projected increase may be considered by the board in computing the gross weekly 03 earnings of the employee; if the minor, apprentice, or trainee would have likely 04 continued that training program, then the compensation shall be the average 05 weekly wage at the time of injury rather than that based on the individual's prior 06 earnings; 07 (9) if the employee is injured while performing duties as a volunteer 08 ambulance attendant, volunteer police officer, or volunteer fire fighter, then, 09 notwithstanding (1) - (6) of this subsection, the gross weekly earnings for calculating 10 compensation shall be the minimum gross weekly earnings paid a full-time ambulance 11 attendant, police officer, or fire fighter employed in the political subdivision where the 12 injury occurred, or, if the political subdivision has no full-time ambulance attendants, 13 police officers, or fire fighters, at a reasonable figure previously set by the political 14 subdivision to make this determination, but in no case may the gross weekly earnings 15 for calculating compensation be less than the minimum wage computed on the basis of 16 40 hours work per week; 17 (10) if an employee is entitled to compensation under AS 23.30.180 18 and the board determines that calculation of the employee's gross weekly earnings 19 under (1) - (7) of this subsection does not fairly reflect the employee's earnings during 20 the period of disability, the board shall determine gross weekly earnings by 21 considering the nature of the employee's work, work history, and resulting disability, 22 but compensation calculated under this paragraph may not exceed the employee's 23 gross weekly earnings at the time of injury. 24 * Sec. 55. AS 23.30.240 is amended to read: 25 Sec. 23.30.240. Officers of corporations, municipal corporations and 26 nonprofit corporations and members of limited liability companies as employees. 27 An executive officer elected or appointed and empowered in accordance with the 28 charter and bylaws of a corporation, other than an official of a municipal corporation 29 or a charitable, religious, educational, or other nonprofit corporation, is an employee 30 of the corporation under this chapter. However, an executive officer of a corporation 31 may waive coverage under this chapter, subject to the approval of the director
01 [COMMISSIONER OF LABOR AND WORKFORCE DEVELOPMENT], 02 notwithstanding AS 23.30.245(b). Notwithstanding any other provision of this 03 chapter, an executive officer of a municipal corporation or of a charitable, religious, 04 educational, or other nonprofit corporation may be brought within the coverage of its 05 insurance contract by the corporation by specifically including the officer in the 06 contract of insurance. The election to bring an executive officer within the coverage 07 continues in force for the period the contract of insurance is in effect. During that 08 period, an executive officer brought within the coverage of the insurance contract is an 09 employee of the corporation under this chapter. 10 * Sec. 56. AS 23.30.240 is amended by adding a new subsection to read: 11 (b) Except as provided in this subsection, a member of a limited liability 12 company organized under AS 10.50 is not an employee of the company under this 13 chapter. Notwithstanding any other provision of this chapter, a limited liability 14 company may bring a member of the company within the coverage of the company's 15 insurance contract by specifically including the member in the contract of insurance. 16 The election to bring the member within the company's coverage continues in force 17 for the period the contract of insurance is in effect. During that period, a member 18 brought within the coverage of the insurance contract is an employee of the company 19 under this chapter. 20 * Sec. 57. AS 23.30.247(c) is amended to read: 21 (c) This section may not be construed to prohibit an employer from requiring a 22 prospective employee to fill out a preemployment questionnaire or application 23 regarding the person's prior health or disability history as long as it is meant to 24 [EITHER DOCUMENT WRITTEN NOTICE FOR SECOND INJURY FUND 25 REIMBURSEMENT UNDER AS 23.30.205(c) OR] determine whether the employee 26 has the physical or mental capacity to meet the documented physical or mental 27 demands of the work. 28 * Sec. 58. AS 23.30.250 is amended to read: 29 Sec. 23.30.250. Penalties for fraudulent or misleading acts. (a) A person, 30 including an employee, an employer, a representative of a person, a physician, a 31 medical provider, or any entity who (1) knowingly makes a false or misleading
01 statement, representation, or submission related to a benefit under this chapter; (2) 02 knowingly assists, abets, solicits, or conspires in making a false or misleading 03 submission affecting the payment, coverage, or other benefit under this chapter; (3) 04 knowingly misclassifies employees or engages in deceptive leasing practices for the 05 purpose of evading full payment of workers' compensation insurance premiums; or (4) 06 employs or contracts with a person or firm to coerce or encourage an individual to file 07 a fraudulent compensation claim is civilly liable to a person adversely affected by the 08 conduct, is guilty of theft by deception as defined in AS 11.46.180, and may be 09 punished as provided by AS 11.46.120 - 11.46.150. 10 (b) If the board, after a hearing, finds that a person has obtained compensation, 11 medical treatment, or another benefit provided under this chapter, or that a provider 12 has received a payment, by knowingly making a false or misleading statement or 13 representation for the purpose of obtaining that benefit, the board shall order that 14 person to make full reimbursement of the cost of all benefits obtained. Upon entry of 15 an order authorized under this subsection, the board shall also order that person to pay 16 all reasonable costs and attorney fees incurred by the employer and the employer's 17 carrier in obtaining an order under this section and in defending any claim made for 18 benefits under this chapter. If a person fails to comply with an order of the board 19 requiring reimbursement of compensation and payment of costs and attorney fees, the 20 employer may declare the person in default and proceed to collect any sum due as 21 provided under AS 23.30.170(b) and (c). 22 * Sec. 59. AS 23.30.250 is amended by adding a new subsection to read: 23 (c) To the extent allowed by law, in a civil action under (a) of this section, an 24 award of damages by a court or jury may include compensatory and punitive damages, 25 subject to AS 09.17; attorney fees may be awarded to a prevailing party. 26 * Sec. 60. AS 23.30.260 is amended to read: 27 Sec. 23.30.260. Penalty for receiving unapproved fees and soliciting. A 28 person is guilty of a misdemeanor [,] and, upon conviction, is punishable for each 29 offense by a fine of not more than $1,000 [,] or by imprisonment for not more than one 30 year, or by both, if the person 31 (1) receives a fee, other consideration, or a gratuity on account of any
01 services rendered for representation or advice with [IN] respect to a claim, unless 02 the consideration or gratuity is approved by the board or the court; or 03 (2) makes it a business to solicit employment for a lawyer or for the 04 person making the solicitation with [ONESELF IN] respect to a claim or award for 05 compensation. 06 * Sec. 61. AS 23.30.260 is amended by adding a new subsection to read: 07 (b) Notwithstanding AS 23.30.145 and (a) of this section, approval of a fee is 08 not required if the fee does not exceed $300 and is a one-time-only charge to an 09 employee by an attorney licensed in this state who performed legal services with 10 respect to the employee's claim but did not enter an appearance. 11 * Sec. 62. AS 23.30 is amended by adding a new section to read: 12 Sec. 23.30.280. Investigation of fraud; staffing. (a) The director shall 13 establish a section within the division for the investigation of fraudulent or misleading 14 acts under AS 23.30.250 and other fraudulent acts relating to workers' compensation. 15 (b) The director may investigate facts reported under this section and may 16 refer facts indicating a possible violation of law to the appropriate prosecutor or 17 agency. If the director determines that there is credible evidence that a person 18 obtained a payment, compensation, medical treatment, or other benefit provided under 19 this chapter by a fraudulent act or false or misleading statement or representation as 20 provided in AS 23.30.250(a), the director shall notify the affected employer, insurer, 21 and adjuster upon conclusion of the investigation. If the fraudulent act or false or 22 misleading statement or representation was perpetrated against the division, the 23 director may file a petition as provided in AS 23.30.110 for an order of forfeiture 24 against the person, precluding, in whole or in part, the person from future payment, 25 compensation, medical treatment, or other benefit provided under this chapter. 26 (c) The director shall establish a toll-free fraud hotline to receive calls relating 27 to fraudulent or misleading acts under this chapter. The director shall publicize the 28 availability of the toll-free fraud hotline and encourage the public to provide 29 information to the division relating to fraudulent or misleading acts relating to 30 workers' compensation. 31 (d) The section established by the director under (a) of this section shall
01 include not less than two full-time investigators with the primary responsibility of 02 investigating fraudulent or misleading acts relating to workers' compensation. The 03 director shall also ensure that there are sufficient personnel to staff the toll-free fraud 04 hotline established under (c) of this section. 05 (e) Except as provided in (f) of this section, a person is not liable for civil 06 damages for filing a report concerning a suspected, anticipated, or completed 07 fraudulent act or a false or misleading statement or representation with, or for 08 furnishing other information, whether written or oral, concerning a suspected, 09 anticipated, or completed fraudulent act or false or misleading statements or 10 representation to 11 (1) law enforcement officials or their agents and employees; 12 (2) the division of workers' compensation, the division of insurance in 13 the Department of Commerce, Community, and Economic Development, or an agency 14 in another state that regulates insurance or workers' compensation; 15 (3) an insurer or adjuster or its agents, employees, or designees, or the 16 risk manager of a self-insured employer under this chapter. 17 (f) The provisions of (e) of this section do not preclude liability for civil 18 damages as described in (e) of this section if the liability arose as a result of gross 19 negligence or reckless or intentional misconduct. 20 (g) The papers, reports, documents, and evidence received under this section 21 or in an investigation arising from information received under this section are not 22 subject to public inspection for so long as the director considers confidentiality to be 23 in the public interest or reasonably necessary to complete an investigation or protect 24 the person investigated from unwarranted injury. Papers, reports, documents, and 25 other evidence related to an investigation under this section are confidential. 26 (h) If the material that the director seeks to obtain is located outside the state, 27 the material may be made available to the director to examine at the place where the 28 material is located. The director may designate representatives, including officials of 29 the state in which the material is located, to inspect the material on behalf of the 30 director. The director may respond to a request from an official of another state for 31 similar material.
01 (i) Papers, reports, documents and other evidence related to an investigation 02 under this section are not subject to subpoena unless, after notice to the director and a 03 hearing, a court determines that the director would not be unduly hindered by public 04 inspection. 05 * Sec. 63. AS 23.30.395 is amended by adding new paragraphs to read: 06 (35) "commissioner" means the commissioner of labor and workforce 07 development; 08 (36) "department" means the Department of Labor and Workforce 09 Development; 10 (37) "director" means the director of the division of workers' 11 compensation in the department; 12 (38) "division" means the division of workers' compensation in the 13 department; 14 (39) "medical rehabilitation caseworker" means a person who is a 15 registered nurse, certified rehabilitation counselor, or other person who has equivalent 16 or better qualification, as determined under regulations adopted by the board. 17 * Sec. 64. AS 37.05.146(c) is amended by adding a new paragraph to read: 18 (78) workers' compensation benefits guaranty fund (AS 23.30.082). 19 * Sec. 65. AS 39.25.120(c)(14) is amended to read: 20 (14) the rehabilitation administrator of the division of workers' 21 compensation [WORKERS' COMPENSATION BOARD]; 22 * Sec. 66. AS 44.23.020 is amended by adding a new subsection to read: 23 (f) The attorney general shall designate not less than one-half attorney position 24 in the Department of Law for the purpose of prosecuting actions for fraudulent acts 25 related to workers' compensation under AS 23.30. 26 * Sec. 67. AS 23.30.095(f), (l), and (m) are repealed. 27 * Sec. 68. AS 23.30.015(c), 23.30.040, 23.30.205, 23.30.395(27); and AS 37.05.146(c)(12) 28 are repealed. 29 * Sec. 69. AS 23.30.097(a)(1) is repealed August 1, 2007. 30 * Sec. 70. The uncodified law of the State of Alaska is amended by adding a new section to 31 read:
01 INDIRECT COURT RULE AMENDMENT. AS 23.30.280(i), as enacted by sec. 62 02 of this Act, has the effect of changing Rule 45, Alaska Rules of Civil Procedure, by changing 03 the procedure relating to subpoenas. 04 * Sec. 71. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 TASK FORCE ON WORKERS' COMPENSATION. (a) There is established in the 07 legislative branch the Task Force on Workers' Compensation to address the improvement of 08 the Alaska workers' compensation system, including 09 (1) a review of workers' compensation reform measures throughout the United 10 States and an assessment of the effects of those reforms; 11 (2) a review of current Alaska workers' compensation medical costs and an 12 assessment of needed changes, including the effect on businesses that employ fewer than 100 13 employees and the costs and benefits of palliative care; 14 (3) a review of the guidelines, including the American College of 15 Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, and 16 the effect of those guidelines in other states; 17 (4) a review of the cost of claims and other cost drivers that affect workers' 18 compensation insurance; 19 (5) a review of current vocational rehabilitation and return to work programs 20 in this state and other states; and 21 (6) a consideration of other issues determined to be relevant by members of 22 the task force. 23 (b) The task force established under (a) of the section shall consist of 13 voting 24 members. One member shall be a state senator appointed by the president of the senate, one 25 member shall be a state representative appointed by the speaker of the house of 26 representatives, and one member shall be a member of the minority in either house jointly 27 selected by the president of the senate and the speaker of the house of representatives. Ten 28 members shall be appointed jointly by the president of the senate and speaker of the house of 29 representatives as follows: 30 (1) a representative of the Alaska State Medical Association; 31 (2) a representative of the Alaska Chiropractic Society;
01 (3) a rehabilitation specialist, as defined in AS 23.30.041; 02 (4) an attorney who represents employees in workers' compensation cases; 03 (5) an attorney who represents employers in workers' compensation cases; 04 (6) a representative of the insurance industry that provides workers' 05 compensation insurance; 06 (7) two representatives from organized labor nominated by the Alaska Labor- 07 Management ad hoc Committee on Worker's Compensation; and 08 (8) two representatives from management nominated by the Alaska Labor- 09 Management Committee on Worker's Compensation. 10 (c) The task force established under (a) of this section 11 (1) may begin work immediately upon the appointment of its full voting 12 membership and shall meet as often as required to meet the objectives established in this 13 section; 14 (2) shall elect a chair of the task force from among its members; 15 (3) shall hold public hearings and may perform research related to its work; 16 (4) may meet in the interim and vote telephonically; 17 (5) shall contract with a consultant specializing in workers' compensation 18 issues to assist the task force by researching information and conducting a comparative 19 analysis of workers' compensation systems in other states on the topics listed in (a) of this 20 section; the contract must require that the consultant present the result of the research and 21 analysis to the task force on or before September 1, 2005; 22 (6) shall report its written findings and give a copy of proposed legislation and 23 other recommendations to the president of the senate and the speaker of the house of 24 representatives before the first day of the Second Regular Session of the Twenty-Fourth 25 Alaska State Legislature; and 26 (7) is terminated on February 1, 2006. 27 (d) Members of the task force who are not state employees are not entitled to per diem 28 under AS 39.20.180. 29 (e) The president of the senate and the speaker of the house of representatives shall 30 jointly appoint a staff member to provide administrative support to the task force. 31 * Sec. 72. The uncodified law of the State of Alaska is amended by adding a new section to
01 read: 02 APPLICABILITY. The amendment to AS 23.30.175(b) made by sec. 49 of this Act 03 applies to an injury occurring on or after the effective date of sec. 49 of this Act. 04 * Sec. 73. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 TRANSITIONAL PROVISIONS. (a) Litigation, investigations, and other 07 proceedings pending under a law amended or repealed by this Act or in connection with 08 functions transferred by this Act continue in effect and may be continued and completed, 09 notwithstanding a transfer or amendment or repeal provided for in this Act. 10 (b) Certificates, decisions, and orders issued under authority of a law amended or 11 repealed by this Act remain in effect for the term issued, or until revoked, vacated, or 12 otherwise modified under the provisions of this Act. Contracts, rights, liabilities, and 13 obligations created by or under a law amended or repealed by this Act and in effect on the day 14 before the effective date of this section remain in effect, notwithstanding this Act's taking 15 effect. 16 * Sec. 74. The uncodified law of the State of Alaska is amended by adding a new section to 17 read: 18 TRANSITION: REGULATIONS. The Department of Labor and Workforce 19 Development and the director of insurance in the Department of Commerce, Community, and 20 Economic Development each may proceed to adopt regulations necessary to implement their 21 respective provisions of this Act. The regulations take effect under AS 44.62 (Administrative 22 Procedure Act), but not before the effective date of the statutory changes. 23 * Sec. 75. The uncodified law of the State of Alaska is amended by adding a new section to 24 read: 25 IMPLEMENTATION OF REPEAL OF SECOND INJURY FUND. (a) The balance 26 of the second injury fund created by former AS 23.30.040 is transferred to the workers' safety 27 and compensation administration account (AS 23.05.067) on the effective date of this section. 28 The amount transferred under this subsection shall be accounted for separately within the 29 workers' safety and compensation administration account. The Task Force on Workers' 30 Compensation established in sec. 71 of this Act shall make recommendations in its report 31 regarding the use of these funds.
01 (b) Notwithstanding the repeal of AS 23.30.040, all expenses incurred by the 02 employer as described under AS 23.30.015(e)(1), as amended by sec. 9 of this Act, shall 03 continue to be open to recovery from third parties under AS 23.30.015 until such liabilities are 04 recovered, settled, or legally expire. 05 * Sec. 76. The uncodified law of the State of Alaska is amended by adding a new section to 06 read: 07 TRANSITION: MEDICAL SERVICES REVIEW COMMITTEE STUDY, 08 REPORTS, AND RECOMMENDATIONS. (a) The medical services review committee 09 appointed under AS 23.30.095(j) shall proceed to study medical and related benefits provided 10 under AS 23.30 to determine the appropriateness, necessity, and cost of the benefits and shall, 11 by September 30, 2005, provide to the commissioner of labor and workforce development a 12 report of the results of the study. 13 (b) The medical services review committee appointed under AS 23.30.095(j) shall 14 assist the Task Force on Workers' Compensation established in sec. 71 of this Act and make 15 recommendations for medical procedure guidelines to the task force, not later than 16 December 1, 2005, which may be included in the written findings and proposed legislation 17 under sec. 71(c)(6) of this Act. 18 * Sec. 77. The uncodified law of the State of Alaska is amended by adding a new section to 19 read: 20 CONDITIONAL EFFECT. AS 23.30.280(i), enacted by sec. 62 of this Act, takes 21 effect only if sec 70 of this Act receives the two-thirds majority vote of each house required 22 by art. IV, sec. 15, Constitution of the State of Alaska. 23 * Sec. 78. Sections 32, 71, and 74 of this Act take effect immediately under 24 AS 01.10.070(c). 25 * Sec. 79. Sections 1, 2, 49, and 76 of this Act take effect September 1, 2005. 26 * Sec. 80. Sections 3, 9, 57, 68, and 75 of this Act take effect on the date that the 27 commissioner of labor and workforce development certifies to the revisor of statutes and the 28 lieutenant governor that all liability for previously accepted claims to the second injury fund 29 created by former AS 23.30.040, and claims ordered to be paid from that fund, have been 30 satisfied. 31 * Sec. 81. Except as provided in secs. 78 - 80 of this Act, this Act takes effect August 1,
01 2005.