FCCS SB 130: "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 FREE CONFERENCE CS FOR SENATE BILL NO. 130 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 23.30 is amended by adding a new section to read: 13 Sec. 23.30.001. Intent of the legislature and construction of chapter. It is 14 the intent of the legislature that 15 (1) this chapter be interpreted so as to ensure the quick, efficient, fair, 16 and predictable delivery of indemnity and medical benefits to injured workers at a 17 reasonable cost to the employers who are subject to the provisions of this chapter; 18 (2) workers' compensation cases shall be decided on their merits 19 except where otherwise provided by statute; 20 (3) this chapter may not be construed by the courts in favor of a party; 21 (4) hearings in workers' compensation cases shall be impartial and fair 22 to all parties and that all parties shall be afforded due process and an opportunity to be 23 heard and for their arguments and evidence to be fairly considered. 24 * Sec. 4. AS 23.30.005(a) is amended to read: 25 (a) The Alaska Workers' Compensation Board consists of a southern panel of 26 three members sitting for the first judicial district, two [A] northern panels [PANEL] 27 of three members sitting for the second and fourth judicial districts, five [FOUR] 28 southcentral panels of three members each sitting for the third judicial district, and one 29 panel of three members that may sit in any judicial district. Each panel must include 30 the commissioner of labor and workforce development or a hearing officer 31 designated to represent [THE DESIGNATED REPRESENTATIVE OF] the
01 commissioner, a representative of industry, and a representative of labor. The latter 02 two members of each panel shall be appointed by the governor and are subject to 03 confirmation by a majority of the members of the legislature in joint session. The 04 board shall by regulation provide procedures to avoid conflicts and the 05 appearance of impropriety in hearings. 06 * Sec. 5. AS 23.30.005(b) is amended to read: 07 (b) The commissioner shall act as chair [CHAIRMAN] and executive officer 08 of the board and chair [CHAIRMAN] of each panel. The commissioner may 09 designate a representative to act for the commissioner as chair and executive 10 officer of the board. The commissioner may designate hearing officers to serve as 11 chairs of panels for hearing claims [IF THE COMMISSIONER DESIGNATES A 12 REPRESENTATIVE TO ACT FOR THE COMMISSIONER, THE 13 REPRESENTATIVE SHALL SERVE IN THAT CAPACITY ON THE BOARD 14 AND ON EACH PANEL]. 15 * Sec. 6. AS 23.30.005(h) is amended to read: 16 (h) The department shall adopt rules for all panels, and procedures for the 17 periodic selection, retention, and removal of both rehabilitation specialists and 18 physicians under AS 23.30.041 and 23.30.095, and shall adopt regulations to carry out 19 the provisions of this chapter. The department may by regulation provide for 20 procedural, discovery, or stipulated matters to be heard and decided by the 21 commissioner or a hearing officer designated to represent the commissioner 22 rather than a panel. If a procedural, discovery, or stipulated matter is heard and 23 decided by the commissioner or a hearing officer designated to represent the 24 commissioner, the action taken is considered the action of the full board on that 25 aspect of the claim. Process and procedure under this chapter shall be as summary 26 and simple as possible. The department, the board or a member of it may for the 27 purposes of this chapter subpoena witnesses, administer or cause to be administered 28 oaths, and may examine or cause to have examined the parts of the books and records 29 of the parties to a proceeding that relate to questions in dispute. The superior court, on 30 application of the department, the board or any members of it, shall enforce the 31 attendance and testimony of witnesses and the production and examination of books,
01 papers, and records. 02 * Sec. 7. AS 23.30.005 is amended by adding a new subsection to read: 03 (m) The board may by regulation delegate authority to the director to assist the 04 board in administering and enforcing this chapter. 05 * Sec. 8. AS 23.30 is amended by adding new sections to read: 06 Sec. 23.30.007. Workers' Compensation Appeals Commission. (a) There 07 is established in the Department of Labor and Workforce Development the Workers' 08 Compensation Appeals Commission. The commission has jurisdiction to hear appeals 09 from final decisions and orders of the board under this chapter. Jurisdiction of the 10 commission is limited to administrative appeals arising under this chapter. 11 (b) The commission consists of five members appointed by the governor and 12 confirmed by a majority of the members of the legislature in joint session. The 13 members shall be appointed as follows: 14 (1) a member appointed as chair who meets the requirements of (c)(2) 15 of this section; 16 (2) two members who meet the qualifications in (c)(1) of this section 17 and, because of their employment or affiliations, may be classified as a representative 18 of employees covered by this chapter; 19 (3) two members who meet the qualifications in (c)(1) of this section 20 and, because of their employment or affiliations, may be classified as a representative 21 of employers covered by this chapter. 22 (c) To be eligible for appointment under this section 23 (1) a member must 24 (A) be a citizen of the United States; 25 (B) be a resident of the state for the five years preceding the 26 appointment; and 27 (C) have not been convicted of either a 28 (i) felony; or 29 (ii) misdemeanor related to workers' compensation; 30 (D) have served for a total of not less than 18 months as a 31 member of the Alaska Workers' Compensation Board;
01 (2) the chair must 02 (A) meet the criteria specified in (1) of this subsection, except 03 for the requirement in (1)(D) of this subsection; 04 (B) be licensed to practice law in this state and be a member in 05 good standing with the Alaska Bar Association; and 06 (C) have engaged in the active practice of law for at least five 07 years with experience in workers' compensation in this state. 08 (d) An individual seeking appointment as a member or as chair shall submit an 09 application to the chief administrative law judge appointed under AS 44.64.010. The 10 application must show that the applicant meets requirements in (c) of this section that 11 are applicable to the position for which the application is submitted. For each vacant 12 position, other than the chair, the chief administrative law judge shall select not less 13 than two eligible individuals and submit the names of those individuals to the 14 governor. For the chair, the chief administrative law judge shall select not less than 15 three for submission to the governor. 16 (e) The term of service on the commission is five years. A member may be 17 reappointed so long as the reappointment complies with the provisions of this section, 18 including the application and appointment process described in (d) of this section. 19 (f) A vacancy arising in the commission shall be filled by appointment by the 20 governor and confirmed by a majority of the members of the legislature in joint 21 session. Except as provided in AS 39.05.080(4), an appointee selected to fill a 22 vacancy shall hold office for the unexpired term of the member whose vacancy is 23 filled. A vacancy in the commission does not impair the authority of a quorum of 24 members to exercise all the powers and perform all the duties of the commission. 25 (g) A member may act and receive compensation under this section from the 26 date of appointment until confirmation or rejection by the legislature. 27 (h) The chair of the commission is in the exempt service under AS 39.25.110 28 and shall receive a monthly salary that is not less than Step A nor more than Step F of 29 Range 27 of the salary schedule in AS 39.27.011(a) for Anchorage, Alaska. 30 (i) An appeal to the commission shall be heard and decided by a three-member 31 panel of the commission. An appeal panel shall consist of the chair of the commission
01 and two members of the commission assigned by the chair, one member classified as 02 representing employees, and one member classified as representing employers. At 03 other meetings to conduct commission business, the number of commission members 04 classified as representing employees must equal the number of commission members 05 classified as representing employers. The chair of the commission and two 06 representative members of the commission, one classified as representing employees 07 and one classified as representing employers, constitutes a quorum. 08 (j) A member of the commission may be removed from office by the governor 09 for good cause. To be removed for cause, a member of the commission shall be given 10 a copy of the charges and afforded an opportunity to be heard in person or by counsel 11 in the member's own defense upon not less than 10 days' notice. If the member is 12 removed for cause, the governor shall file with the lieutenant governor a complete 13 statement of all charges made against the member, the governor's findings on the 14 charges, and the record of any proceedings. In this subsection, "good cause" includes 15 (1) misconduct in office or violation of AS 39.52; 16 (2) conviction of a felony; 17 (3) conviction of a misdemeanor related to workers' compensation; 18 (4) inability to serve, neglect of duty, incompetence, unjustified failure 19 to handle the caseload assigned, or similar nonfeasance of office; and 20 (5) failure to continue to meet the requirements of this section relating 21 to qualification for office. 22 (k) Representative members are entitled to compensation in the amount of 23 $400 a day for each day spent in actual hearing of appeals or on authorized official 24 business incidental to their duties, and to transportation and per diem as provided by 25 law. Compensation shall be paid pro rata for each portion of a day spent in actual 26 hearing of appeals or on authorized official business. 27 (l) A member of the commission may not hear an appeal under this chapter if 28 (1) a party is an employee or was, in the past seven years, an employee 29 of the commission member or of a business that employs the commission member; 30 this paragraph does not apply to the chair of the commission when the State of Alaska 31 is or was the employer of a party;
01 (2) a party is a member or was, in the past seven years, a member of 02 the same union or employee association as the commission member; 03 (3) a party has a contractual relationship with the commission member, 04 a business that employs the commission member, or a union or employee association 05 of which the commission member is a member; 06 (4) the commission member is unable to be fair, impartial, and 07 unbiased toward the appeal participants; or 08 (5) participation in the appeal is a violation of AS 39.52. 09 (m) If the chair of the commission is unable to hear an appeal for reasons of 10 absence or illness in excess of 10 days, or for reasons set out in (l) of this section, the 11 chief administrative law judge appointed under AS 44.64.010 shall appoint a person 12 who meets the qualifications of this section to serve as chair to hear the appeal as chair 13 pro tem. The person shall receive the compensation provided in (k) of this section. 14 Appointment of a chair pro tem does not require legislative confirmation. 15 (n) Each member of the commission, before entering upon the duties of office, 16 shall take and subscribe to the oath prescribed for principal officers of the state. A 17 member of the commission, during tenure, may not 18 (1) hold or campaign for elective office; 19 (2) be an officer of a political party, political committee, or group; 20 (3) permit the member's name to be used, or make any contributions 21 whatsoever, in support of or in opposition to a candidate or proposition or question 22 that appears on any ballot in the state including but not limited to that of a 23 municipality; however, contributions may be made to a candidate for the office of 24 President of the United States; 25 (4) participate in any way in an election campaign or participate in or 26 contribute to any political party; or 27 (5) lobby, employ, or assist a lobbyist. 28 (o) The offices of the commission shall be physically separate from the offices 29 of the division. 30 (p) Notwithstanding (e) of this section, the terms of the individuals initially 31 appointed to the commission shall be as follows:
01 (1) the chair, five years; 02 (2) one member, four years; 03 (3) one member, three years; 04 (4) one member, two years; 05 (5) one member, one year. 06 Sec. 23.30.008. Powers and duties of the commission. (a) The commission 07 shall be the exclusive and final authority for the hearing and determination of all 08 questions of law and fact arising under this chapter in those matters that have been 09 appealed to the commission, except for an appeal to the Alaska Supreme Court. The 10 commission does not have jurisdiction in any case that does not arise under this 11 chapter or in any criminal case. On any matter taken to the commission, the decision 12 of the commission is final and conclusive, unless appealed to the Alaska Supreme 13 Court, and shall stand in lieu of the order of the board from which the appeal was 14 taken. Unless reversed by the Alaska Supreme Court, decisions of the commission 15 have the force of legal precedent. 16 (b) The commission, in its administrative capacity, shall maintain, index, and 17 make available for public inspection the final administrative decisions and orders of 18 the commission and of the board. The chair of the commission may review and 19 circulate among the other members of the relevant commission appeal panel the drafts 20 of the panel's formal decisions and decisions upon reconsideration. The drafts are 21 confidential documents and are not subject to disclosure. 22 (c) The chair of the commission shall draft and propose, and the commission 23 in its administrative capacity may adopt, regulations implementing the commission's 24 authority and duties under this chapter, including rules of procedure and evidence for 25 proceedings before the commission under this chapter. The provisions of AS 44.62 26 (Administrative Procedure Act) apply to the adoption of regulations by the 27 commission. 28 (d) In an appeal, the commission shall award a successful party reasonable 29 costs and, if the party is represented by an attorney, attorney fees that the commission 30 determines to be fully compensatory and reasonable. However, the commission may 31 not make an award of attorney fees against an injured worker unless the commission
01 finds that the worker's position on appeal was frivolous or unreasonable or the appeal 02 was taken in bad faith. 03 (e) The commission, in its administrative capacity, may adopt and alter an 04 official seal and do all things necessary, convenient, or desirable to carry out the 05 powers expressly granted or necessarily implied in this chapter. 06 Sec. 23.30.009. Powers and duties of the chair of the commission. (a) The 07 chair of the commission shall exercise general supervision over the office of the 08 commission and over appeals, and shall direct the administrative functions of the 09 commission. The chair of the commission shall serve as the executive officer of the 10 commission and shall have authority in all administrative matters relating to the 11 members. The chair may 12 (1) employ and supervise commission staff and appoint a commission 13 clerk; 14 (2) establish and implement a time management system for the 15 commission members and staff and manage the calendar of appeals; 16 (3) assign the work of the commission members and staff so that 17 appeals are resolved as expeditiously and competently as possible; 18 (4) advise and cooperate with the board to develop appropriate 19 procedures for maintenance and transfer of hearing files and the preservation and 20 transfer of records on appeal; and 21 (5) prepare an annual budget of the commission. 22 (b) The chair of the commission shall preside over hearings and arguments on 23 appeals. The chair of the commission shall ensure that all functions of the commission 24 are performed with due regard for the rights of all parties and consistent with the 25 orderly and prompt resolution of appeals. The chair of the commission shall rule on 26 questions of procedure and advise the representative members of the commission on 27 matters of law. 28 (c) The chair of the commission shall, not later than March 15 of each year, 29 make available to the public and file with the lieutenant governor, a report regarding 30 the commission for the prior calendar year, including data regarding time periods 31 between initial receipt and final decisions on appeals.
01 (d) The chair of the commission shall devote full time to the duties of the chair 02 of the commission and may not engage in any other employment or business. The 03 chair of the commission may not hold any other office or position under the United 04 States, this state, any municipality or political subdivision of this state, or any tribal 05 government or corporation. The chair of the commission may not hold office or 06 position in a partisan political organization or party. 07 * Sec. 9. AS 23.30.010 is repealed and reenacted to read: 08 Sec. 23.30.010. Coverage. (a) Except as provided in (b) of this section, 09 compensation or benefits are payable under this chapter for disability or death or the 10 need for medical treatment of an employee if the disability or death of the employee or 11 the employee's need for medical treatment arose out of and in the course of the 12 employment. To establish a presumption under AS 23.30.120(a)(1) that the disability 13 or death or the need for medical treatment arose out of and in the course of the 14 employment, the employee must establish a causal link between the employment and 15 the disability or death or the need for medical treatment. A presumption may be 16 rebutted by a demonstration of substantial evidence that the death or disability or the 17 need for medical treatment did not arise out of and in the course of the employment. 18 When determining whether or not the death or disability or need for medical treatment 19 arose out of and in the course of the employment, the board must evaluate the relative 20 contribution of different causes of the disability or death or the need for medical 21 treatment. Compensation or benefits under this chapter are payable for the disability 22 or death or the need for medical treatment if, in relation to other causes, the 23 employment is the substantial cause of the disability or death or need for medical 24 treatment. 25 (b) Compensation and benefits under this chapter are not payable for mental 26 injury caused by mental stress, unless it is established that (1) the work stress was 27 extraordinary and unusual in comparison to pressures and tensions experienced by 28 individuals in a comparable work environment; and (2) the work stress was the 29 predominant cause of the mental injury. The amount of work stress shall be measured 30 by actual events. A mental injury is not considered to arise out of and in the course of 31 employment if it results from a disciplinary action, work evaluation, job transfer,
01 layoff, demotion, termination, or similar action taken in good faith by the employer. 02 * Sec. 10. AS 23.30.012 is amended to read: 03 Sec. 23.30.012. Agreements in regard to claims. (a) At any time after 04 death, or after 30 days subsequent to the date of the injury, the employer and the 05 employee or the beneficiary or beneficiaries, as the case may be, have the right to 06 reach an agreement in regard to a claim for injury or death under this chapter [IN 07 ACCORDANCE WITH THE APPLICABLE SCHEDULE IN THIS CHAPTER], but 08 a memorandum of the agreement in a form prescribed by the director [BOARD] shall 09 be filed with the division [BOARD]. Otherwise, the agreement is void for any 10 purpose. Except as provided in (b) of this section, an agreement filed with the 11 division discharges the liability of the employer for the compensation, 12 notwithstanding the provisions of AS 23.30.130, 23.30.160, and 23.30.245, and is 13 enforceable as a compensation order. 14 (b) The agreement shall be reviewed by a panel of the board if the 15 claimant or beneficiary is not represented by an attorney licensed to practice in 16 this state, the beneficiary is a minor or incompetent, or the claimant is waiving 17 future medical benefits. If approved by the board, the agreement is enforceable the 18 same as an order or award of the board and discharges the liability of the employer for 19 the compensation notwithstanding the provisions of AS 23.30.130, 23.30.160, and 20 23.30.245. The agreement shall be approved by the board only when the terms 21 conform to the provisions of this chapter, and, if it involves or is likely to involve 22 permanent disability, the board may require an impartial medical examination and a 23 hearing in order to determine whether or not to approve the agreement. A [THE 24 BOARD MAY APPROVE] lump-sum settlement may be approved 25 [SETTLEMENTS] when it appears to be to the best interest of the employee or 26 beneficiary or beneficiaries. 27 * Sec. 11. AS 23.30.015(e) is amended to read: 28 (e) An amount recovered by the employer under an assignment, whether by 29 action or compromise, shall be distributed as follows: 30 (1) the employer shall retain an amount equal to 31 (A) the expenses incurred by the employer with respect to the
01 action or compromise, including a reasonable attorney fee determined by the 02 board; 03 (B) the cost of all benefits actually furnished by the employer 04 under this chapter; 05 (C) all amounts paid as compensation and second-injury fund 06 payments, and [,] if the employer is self-insured or uninsured, all service fees 07 paid under AS 23.05.067; 08 (D) the present value of all amounts payable later as 09 compensation, computed from a schedule prepared by the board, [;] and the 10 present value of the cost of all benefits to be furnished later under 11 AS 23.30.095 as estimated by the board; the amounts so computed and 12 estimated shall [TO] be retained by the employer as a trust fund to pay 13 compensation and the cost of benefits as they become due and to pay any 14 finally remaining excess sum to the person entitled to compensation or to the 15 representative; and 16 (2) the employer shall pay any excess to the person entitled to 17 compensation or to the representative of that person. 18 * Sec. 12. AS 23.30.015(j) is amended to read: 19 (j) Notice of the commencement of an action against a third party shall be 20 given to the division [BOARD] and to all interested parties within 30 days. 21 * Sec. 13. AS 23.30.025(a) is amended to read: 22 (a) An insurer may not enter into or issue a policy of insurance under this 23 chapter until its policy form has been submitted to and approved by the director of the 24 division of insurance. The director of the division of insurance may not approve the 25 policy form of an insurance company until the company files with it the certificate of 26 the director of the division of insurance showing that the company is authorized to 27 transact the business of workers' compensation insurance in the state. The filing of a 28 policy form by an insurance company with the division of workers' compensation 29 [BOARD] for approval constitutes, on the part of the company, a conclusive and 30 unqualified acceptance of the provisions of this chapter, and an agreement by it to be 31 bound by them.
01 * Sec. 14. AS 23.30.030(5) is amended to read: 02 (5) A termination of the policy by cancellation is not effective as to the 03 employees of the insured employer covered by it until 20 days after written notice of 04 the termination has been received by the division [BOARD]. If the employer has a 05 contract with the state or a home rule or other political subdivision of the state, and the 06 employer's policy is cancelled due to nonpayment of a premium, the termination of the 07 policy is not effective as to the employees of the insured employer covered by it until 08 20 days after written notice of the termination has been received by the contracting 09 agency, and the agency has the option of continuing the payments on behalf of the 10 employer in order to keep the policy in force. If, however, the employer has secured 11 insurance with another insurance carrier, cancellation is effective as of the date of the 12 new coverage. 13 * Sec. 15. AS 23.30.041(a) is amended to read: 14 (a) The director [BOARD] shall select and employ a reemployment benefits 15 administrator. The director [BOARD] may authorize the administrator to select and 16 employ additional staff. The administrator is in the partially exempt service under 17 AS 39.25.120. 18 * Sec. 16. AS 23.30.041(b) is amended to read: 19 (b) The administrator shall 20 (1) enforce regulations adopted by the board to implement this section; 21 (2) recommend regulations for adoption by the board that establish 22 performance and reporting criteria for rehabilitation specialists; 23 (3) enforce the quality and effectiveness of reemployment benefits 24 provided for under this section; 25 (4) review on an annual basis the performance of rehabilitation 26 specialists to determine continued eligibility for delivery of rehabilitation services; 27 (5) submit to the department, on or before May 1 of each year, a report 28 of reemployment benefits provided under this section for the previous calendar year; 29 the report must include a general section, sections related to each rehabilitation 30 specialist employed under this section, and a statistical summary of all rehabilitation 31 cases, including
01 (A) the estimated and actual cost of each active rehabilitation 02 plan; 03 (B) the estimated and actual time of each rehabilitation plan; 04 (C) a status report on all individuals requesting, waiving, 05 beginning, completing, or terminating a reemployment benefits program 06 including 07 (i) reasons for denial, waiver, suspension, or 08 termination; 09 (ii) dates of completion and [A] return to work; and 10 (iii) other information required by the director 11 [DATE]; 12 (D) the cost of reemployment benefits; 13 (E) status reports of all individuals who successfully 14 completed a reemployment plan that includes 15 (i) the plan's occupational goal and whether the 16 individual obtained work after completion in the planned or 17 another occupation; and 18 (ii) the individual's employment status six months, 19 one year, and two years after reemployment plan completion; 20 (6) maintain a list of rehabilitation specialists who meet the 21 qualifications established under this section; 22 (7) promote awareness among physicians, adjusters, injured workers, 23 employers, employees, attorneys, training providers, and rehabilitation specialists of 24 the reemployment program established in this subsection. 25 * Sec. 17. AS 23.30.041(c) is repealed and reenacted to read: 26 (c) An employee and an employer may stipulate to the employee's eligibility 27 for reemployment benefits at any time. If an employee suffers a compensable injury 28 and, as a result of the injury, the employee is totally unable, for 45 consecutive days, 29 to return to the employee's employment at the time of injury, the administrator shall 30 notify the employee of the employee's rights under this section within 14 days after the 31 45th day. If the employee is totally unable to return to the employee's employment for
01 60 consecutive days as a result of the injury, the employee or employer may request an 02 eligibility evaluation. The administrator may approve the request if the employee's 03 injury may permanently preclude the employee's return to the employee's occupation 04 at the time of the injury. If the employee is totally unable to return to the employee's 05 employment at the time of the injury for 90 consecutive days as a result of the injury, 06 the administrator shall, without a request, order an eligibility evaluation unless a 07 stipulation of eligibility was submitted. If the administrator approves a request or 08 orders an evaluation, the administrator shall, on a rotating and geographic basis, select 09 a rehabilitation specialist from the list maintained under (b)(6) of this section to 10 perform the eligibility evaluation. If the person that employs a rehabilitation specialist 11 selected by the administrator to perform an eligibility evaluation under this subsection 12 is performing any other work on the same workers' compensation claim involving the 13 injured employee, the administrator shall select a different rehabilitation specialist. 14 * Sec. 18. AS 23.30.041(f) is amended to read: 15 (f) An employee is not eligible for reemployment benefits if 16 (1) the employer offers employment within the employee's predicted 17 post-injury physical capacities at a wage equivalent to at least the state minimum wage 18 under AS 23.10.065 or 75 percent of the worker's gross hourly wages at the time of 19 injury, whichever is greater, and the employment prepares the employee to be 20 employable in other jobs that exist in the labor market; 21 (2) the employee previously declined the development of a 22 reemployment benefits plan under (g) of this section, received a job dislocation 23 benefit under (g)(2) of this section, and returned to work in the same or similar 24 occupation in terms of physical demands required of the employee at the time of 25 the previous injury; 26 (3) the employee has been previously rehabilitated in a former 27 worker's compensation claim and returned to work in the same or similar occupation 28 in terms of physical demands required of the employee at the time of the previous 29 injury; or 30 (4) [(3)] at the time of medical stability, no permanent impairment is 31 identified or expected.
01 * Sec. 19. AS 23.30.041(g) is amended to read: 02 (g) Within 30 [15] days after the employee receives the administrator's 03 notification of eligibility for benefits, an employee [WHO DESIRES TO USE THESE 04 BENEFITS] shall file a statement under oath with the board, on a form 05 prescribed or approved by the board, to notify the administrator and the 06 employer of the employee's election to either use the reemployment benefits or to 07 accept a job dislocation benefit under (2) of this subsection. The notice of the 08 election is effective upon service to the administrator and the employer. The 09 following apply to an election under this subsection: 10 (1) an employee who elects to use the reemployment benefits also 11 shall notify the [GIVE WRITTEN NOTICE TO THE] employer of the employee's 12 selection of a rehabilitation specialist who shall provide a complete reemployment 13 benefits plan; failure [. FAILURE] to give notice of selection of a rehabilitation 14 specialist required by this paragraph [SUBSECTION] constitutes noncooperation 15 under (n) of this section; if [. IF] the employer disagrees with the employee's choice 16 of rehabilitation specialist to develop the plan and the disagreement cannot be 17 resolved, then the administrator shall assign a rehabilitation specialist; the [. THE] 18 employer and employee each have one right of refusal of a rehabilitation specialist; 19 (2) an employee who elects to accept a job dislocation benefit in 20 place of reemployment benefits and who has been given a permanent partial 21 impairment rating by a physician shall be paid 22 (A) $5,000 if the employee's permanent partial impairment 23 rating is greater than zero and less than 15 percent; 24 (B) $8,000 if the employee's permanent partial impairment 25 rating is 15 percent or greater but less than 30 percent; or 26 (C) $13,500 if the employee's permanent partial 27 impairment rating is 30 percent or greater; 28 (3) the form provided by the division for election must specify that 29 the employee understands the scope of the benefits and rights being waived by 30 the election; the board shall serve a copy of the executed election form on the 31 administrator and the employer within 10 days after receiving the form from the
01 employee; 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; the administrator 04 may not accept an election to accept a job dislocation benefit by an employee who 05 has not signed a form that conspicuously notes the benefit being waived. 06 * Sec. 20. AS 23.30.041(k) is amended to read: 07 (k) Benefits related to the reemployment plan may not extend past two years 08 from date of plan approval or acceptance, whichever date occurs first, at which time 09 the benefits expire. If an employee reaches medical stability before completion of the 10 plan, temporary total disability benefits shall cease, and permanent impairment 11 benefits shall then be paid at the employee's temporary total disability rate. If the 12 employee's permanent impairment benefits are exhausted before the completion or 13 termination of the reemployment process [PLAN], the employer shall provide 14 compensation equal to 70 percent of the employee's spendable weekly wages, but not 15 to exceed 105 percent of the average weekly wage, until the completion or termination 16 of the process [PLAN], except that any compensation paid under this subsection is 17 reduced by wages earned by the employee while participating in the process [PLAN] 18 to the extent that the wages earned, when combined with the compensation paid under 19 this subsection, exceed the employee's temporary total disability rate. If permanent 20 partial disability or permanent partial impairment benefits have been paid in a lump 21 sum before the employee requested or was found eligible for reemployment benefits, 22 payment of benefits under this subsection is suspended until permanent partial 23 disability or permanent partial impairment benefits would have ceased, had those 24 benefits been paid at the employee's temporary total disability rate, notwithstanding 25 the provisions of AS 23.30.155(j). A permanent impairment benefit remaining unpaid 26 upon the completion or termination of the plan shall be paid to the employee in a 27 single lump sum. An employee may not be considered permanently totally disabled so 28 long as the employee is involved in the rehabilitation process under this chapter. The 29 fees of the rehabilitation specialist or rehabilitation professional shall be paid by the 30 employer and may not be included in determining the cost of the reemployment plan. 31 * Sec. 21. AS 23.30.041(n) is amended to read:
01 (n) After the employee has elected to participate in reemployment benefits, if 02 the employer believes the employee has not cooperated, the employer may terminate 03 reemployment benefits on the date of noncooperation. Noncooperation means 04 (1) unreasonable failure to 05 (A) keep appointments; 06 (B) maintain passing grades; 07 (C) attend designated programs; 08 (D) maintain contact with the rehabilitation specialist; 09 (E) cooperate with the rehabilitation specialist in developing a 10 reemployment plan and participating in activities relating to reemployability on 11 a full-time basis; 12 (F) comply with the employee's responsibilities outlined in the 13 reemployment plan; or 14 (G) participate in any planned reemployment activity as 15 determined by the administrator; or 16 (2) failure to give written notice to the employer of the employee's 17 choice of rehabilitation specialists within 30 [15] days after receiving notice of 18 eligibility for benefits from the administrator as required by (g) of this section. 19 * Sec. 22. AS 23.30.041(p) is amended to read: 20 (p) When the United States Department of Labor publishes a new edition, 21 revision, or replacement for the "Selected Characteristics of Occupations Defined in 22 the Revised Dictionary of Occupational Titles" referred to in (e) of this section, the 23 director [BOARD] shall, not later than 90 days after the last day of the month in 24 which the new edition, revision, or replacement standard is published, hold an open 25 meeting under AS 44.62.310 to select the proposed date on which the new edition, 26 revision, or replacement standard will be implemented to make all eligibility 27 determinations required under (e) of this section. The date selected by the 28 department [BOARD] for implementing the new edition, revision, or replacement 29 standard may not be later than 90 days after the last day of the month in which the new 30 edition, revision, or replacement standard is published. After the meeting, the 31 director [BOARD] shall issue a public notice announcing the date selected by the
01 department. The requirements of AS 44.62.010 - 44.62.300 do not apply to the 02 selection or announcement of the date under this subsection. 03 * Sec. 23. AS 23.30.041(q) is amended to read: 04 (q) Notwithstanding AS 23.30.012, after medical stability has been determined 05 and a physician has predicted that the employee may have a permanent impairment 06 that may cause the employee to have permanent physical capacities that are less than 07 the physical demands of the employee's job at the time of injury, an employee may 08 waive any benefits or rights under this section, including an eligibility evaluation and 09 benefits related to a reemployment plan. To waive any benefits or rights under this 10 section, an employee must file a statement under oath with the division [BOARD] to 11 notify the parties of the waiver and to specify the scope of benefits or rights that the 12 employee seeks to waive. The statement must be on a form prescribed or approved by 13 the director [BOARD]. The division [BOARD] shall serve the notice of waiver on 14 all parties to the claim within 10 days after filing. The waiver is effective upon service 15 to the party. A waiver effective under this subsection discharges the liability of the 16 employer for the benefits or rights contained in this section. The waiver may not be 17 modified under AS 23.30.130. 18 * Sec. 24. AS 23.30.065 is amended to read: 19 Sec. 23.30.065. Employer's record of injuries. An employer shall keep a 20 record with [IN] respect of an injury to an employee. The record must contain the 21 information of disease, other disability, or death with [IN] respect to an injury that the 22 division [BOARD] requires, and must be available to inspection by the division 23 [BOARD] or by a state authority at the times and under the conditions that the 24 department [BOARD] prescribes by regulation. 25 * Sec. 25. AS 23.30.070(a) is amended to read: 26 (a) Within 10 days from the date the employer has knowledge of an injury or 27 death or from the date the employer has knowledge of a disease or infection, alleged 28 by the employee or on behalf of the employee to have arisen out of and in the course 29 of the employment, the employer shall send to the division [BOARD] a report setting 30 out 31 (1) the name, address, and business of the employer;
01 (2) the name, address, and occupation of the employee; 02 (3) the cause and nature of the alleged injury or death; 03 (4) the year, month, day, and hour when and the particular locality 04 where the alleged injury or death occurred; and 05 (5) the other information that the division [BOARD] may require. 06 * Sec. 26. AS 23.30.070(b) is amended to read: 07 (b) Additional reports with [IN] respect to the injury and to the condition of 08 the employee shall be sent by the employer to the division [BOARD] at the times and 09 in the manner that the director [BOARD] prescribes. 10 * Sec. 27. AS 23.30.070(d) is amended to read: 11 (d) Mailing of the report and copy to the division [BOARD] in a stamped 12 envelope, within the time prescribed in (a) or (b) of this section, is compliance with 13 this section. 14 * Sec. 28. AS 23.30.075 is amended to read: 15 Sec. 23.30.075. Employer's liability to pay. (a) An employer under this 16 chapter, unless exempted, shall either insure and keep insured for the employer's 17 liability under this chapter in an insurance company or association duly authorized to 18 transact the business of workers' compensation insurance in this state, or shall furnish 19 the division [BOARD] satisfactory proof of the employer's financial ability to pay 20 directly the compensation provided for. If an employer elects to pay directly, the 21 board may, in its discretion, require the deposit of an acceptable security, indemnity, 22 or bond to secure the payment of compensation liabilities as they are incurred. 23 (b) If an employer fails to insure and keep insured employees subject to this 24 chapter or fails to obtain a certificate of self-insurance from the division [BOARD], 25 upon conviction, the court shall impose a fine of $10,000 and may impose a sentence 26 of imprisonment for not more than one year. If an employer is a corporation, all 27 persons who, at the time of the injury or death, had authority to insure the corporation 28 or apply for a certificate of self-insurance, and the person actively in charge of the 29 business of the corporation shall be subject to the penalties prescribed in this 30 subsection and shall be personally, jointly, and severally liable together with the 31 corporation for the payment of all compensation or other benefits for which the
01 corporation is liable under this chapter if the corporation at that time is not insured or 02 qualified as a self-insurer. 03 * Sec. 29. AS 23.30.080(d) is amended to read: 04 (d) If an employer fails to insure or provide security as required by 05 AS 23.30.075, the board may issue a stop order at the request of the division 06 prohibiting the use of employee labor by the employer until the employer insures or 07 provides security as required by AS 23.30.075. The failure of an employer to file 08 evidence of compliance as required by AS 23.30.085 creates a rebuttable presumption 09 that the employer has failed to insure or provide security as required by AS 23.30.075. 10 If an employer fails to comply with a stop order issued under this section, the board 11 shall assess a civil penalty of $1,000 a [PER] day. The employer may not obtain a 12 public contract with the state or a political subdivision of the state for three years 13 following the violation of the stop order. 14 * Sec. 30. AS 23.30.080 is amended by adding new subsections to read: 15 (e) If a representative of the department investigates an employer's failure to 16 file the evidence of compliance required by AS 23.30.085 and, after investigation, 17 there is substantial evidence that the employer failed to insure or provide security as 18 required by AS 23.30.075, the representative shall inform the employer. The 19 representative may request the director to issue a stop order prohibiting the use of 20 employee labor by the employer until the employer insures or provides security as 21 required by AS 23.30.075. The director may issue a stop order, without a hearing, 22 based on the representative's investigation. The director shall dissolve a stop order 23 issued under this subsection upon receipt of substantial evidence that the employer is 24 insured or has provided security as required by AS 23.30.075(a). If an employer fails 25 to comply with a stop order issued under this subsection, the division may petition the 26 board to assess a civil penalty. The board may assess a civil penalty of $1,000 a day. 27 An employer who is assessed a penalty under this subsection may not obtain a public 28 contract with the state or a political subdivision of the state for the three years 29 following violation of the stop order. 30 (f) If an employer fails to insure or provide security as required by 31 AS 23.30.075, the division may petition the board to assess a civil penalty of up to
01 $1,000 for each employee for each day an employee is employed while the employer 02 failed to insure or provide the security required by AS 23.30.075. The failure of an 03 employer to file evidence of compliance as required by AS 23.30.085 creates a 04 rebuttable presumption that the employer failed to insure or provide security as 05 required by AS 23.30.075. 06 (g) If an employer fails to pay a civil penalty order issued under (d), (e), or (f) 07 of this section within seven days after the date of service of the order upon the 08 employer, the director may declare the employer in default. The director shall file a 09 certified copy of the penalty order and declaration of default with the clerk of the 10 superior court. The court shall, upon the filing of the copy of the order and 11 declaration, enter judgment for the amount declared in default if it is in accordance 12 with law. Anytime after a declaration of default, the attorney general shall, when 13 requested to do so by the director, take appropriate action to ensure collection of the 14 defaulted payment. Review of the judgment may be had as provided under the Alaska 15 Rules of Civil Procedure. Final proceedings to execute the judgment may be had by 16 writ of execution. 17 * Sec. 31. AS 23.30 is amended by adding a new section to read: 18 Sec. 23.30.082. Workers' compensation benefits guaranty fund. (a) The 19 workers' compensation benefits guaranty fund is established in the general fund to 20 carry out the purposes of this section. The fund is composed of civil penalty payments 21 made by employers under AS 23.30.080, income earned on investment of the money 22 in the fund, money deposited in the fund by the department, and appropriations to the 23 fund, if any. However, money appropriated to the fund does not lapse. Amounts in 24 the fund may be appropriated for claims against the fund, for expenses directly related 25 to fund operations and claims, and for legal expenses. 26 (b) Every three months, the Department of Revenue shall provide the division 27 with a statement of the activities of, balances in, interest earned on, and interest 28 returned to the fund. 29 (c) Subject to the provisions of this section, an employee employed by an 30 employer who fails to meet the requirements of AS 23.30.075 and who fails to pay 31 compensation and benefits due to the employee under this chapter, may file a claim for
01 payment by the fund. In order to be eligible for payment, the claim form must be filed 02 within the same time, and in the same manner, as a workers' compensation claim. The 03 fund may assert the same defenses as an insured employer under this chapter. 04 (d) If the fund pays benefits to an employee under this section, the fund shall 05 be subrogated to all of the rights of the employee to the amount paid, and the 06 employee shall assign all right, title, and interest in that portion of the employee's 07 workers' compensation claim and any recovery under AS 23.30.015 to the fund. 08 Money collected by the division on the claim or recovery shall be deposited in the 09 fund. 10 (e) If the money deposited in the fund is insufficient at a given time to satisfy 11 a duly authorized claim against the fund, the fund shall, when sufficient money has 12 been deposited in the fund and appropriated, satisfy unpaid claims in the order in 13 which the claims were originally filed, without interest. 14 (f) The division may contract under AS 36.30 (State Procurement Code) with 15 a person for the person to adjust claims against the fund. The contract may cover one 16 or more claims. 17 (g) In this section, "fund" means the workers' compensation benefits guaranty 18 fund. 19 * Sec. 32. AS 23.30.085(a) is amended to read: 20 (a) An employer subject to this chapter, unless exempted, shall initially file 21 evidence of compliance with the insurance provisions of this chapter with the division 22 [BOARD], in the form prescribed by the director [IT]. The employer shall also give 23 evidence of compliance within 10 days after the termination of the employer's 24 insurance by expiration or cancellation. These requirements do not apply to an 25 employer who has certification from the board of the employer's financial ability to 26 pay compensation directly without insurance. 27 * Sec. 33. AS 23.30.095(h) is amended to read: 28 (h) Upon the filing with the division [BOARD] by a party in interest of a 29 claim [AN APPLICATION] or other pleading, all parties to the proceeding must 30 immediately, or in any event within five days after service of the pleading, send to the 31 division [BOARD] the original signed reports of all physicians relating to the
01 proceedings that [WHICH] they may have in their possession or under their control, 02 and copies of the reports shall be served by the party immediately on any [THE] 03 adverse party. There is a continuing duty on all [THE] parties to [SO] file and serve 04 all the reports during the pendency of the proceeding. 05 * Sec. 34. AS 23.30.095(j) is amended to read: 06 (j) The commissioner shall [BOARD MAY] appoint a medical services 07 review committee [, OR CONTRACT WITH AN EXISTING ORGANIZATION IN 08 THE STATE OR ANOTHER STATE,] to assist and advise the department and the 09 board in matters involving the appropriateness, necessity, and cost of medical and 10 related services provided under this chapter. The medical services review committee 11 shall consist of nine members to be appointed by the commissioner as follows: 12 (1) one member who is a member of the Alaska State Medical 13 Association; 14 (2) one member who is a member of the Alaska Chiropractic 15 Society; 16 (3) one member who is a member of the Alaska State Hospital and 17 Nursing Home Association; 18 (4) one member who is a health care provider, as defined in 19 AS 09.55.560; 20 (5) four public members who are not within the definition of 21 "health care provider" in AS 09.55.560; and 22 (6) one member who is the designee of the commissioner and who 23 shall serve as chair. 24 * Sec. 35. AS 23.30.095 is amended by adding new subsections to read: 25 (n) A generic drug product must be used when dispensing a drug product to an 26 employee under this chapter unless the prescribing physician provides justification in 27 writing explaining the medical necessity for the name-brand drug product. The 28 department, by regulation, shall establish a preferred drug list and a procedure for 29 establishing medical necessity to depart from the list and to use a name-brand drug 30 product. In this subsection, "generic drug product" has the meaning given the term 31 "equivalent drug product" in AS 08.80.480.
01 (o) Notwithstanding (a) of this section, an employer is not liable for palliative 02 care after the date of medical stability unless the palliative care is reasonable and 03 necessary (1) to enable the employee to continue in the employee's employment at the 04 time of treatment, (2) to enable the employee to continue to participate in an approved 05 reemployment plan; or (3) to relieve chronic debilitating pain. A claim for palliative 06 care is not valid and enforceable unless it is accompanied by a certification of the 07 attending physician that the palliative care meets the requirements of this subsection. 08 A claim for palliative care is subject to the requirements of (c) - (n) of this section. If 09 a claim for palliative care is controverted by the employer, the board may require an 10 evaluation under (k) of this section regarding the disputed palliative care. A claim for 11 palliative care may be heard by the board under AS 23.30.110. 12 * Sec. 36. AS 23.30 is amended by adding a new section to article 2 to read: 13 Sec. 23.30.097. Fees for medical treatment and services. (a) All fees and 14 other charges for medical treatment or service are subject to regulation by the board 15 consistent with this section. A fee or other charge for medical treatment or service 16 may not exceed the lesser of 17 (1) the usual, customary, and reasonable fees for the treatment or 18 service in the community in which it is rendered, not to exceed the fees in the fee 19 schedule specified by the board in its published bulletin dated December 1, 2004; 20 (2) the fee or charge for the service when provided to the general 21 public; or 22 (3) the fee or charge negotiated by the provider and the employer 23 under (c) of this section. 24 (b) An employer, or group of employers, may establish a list of preferred 25 physicians and treatment service providers to provide medical, surgical, and other 26 attendance or treatment services to the employer's employees under this chapter; 27 however, 28 (1) the employee's right to chose the employee's attending physician 29 under AS 23.30.095(a) is not impaired; 30 (2) when given to the employee, the employer's preferred physician list 31 must clearly state that the list is voluntary, that the employee's choice is not restricted
01 to the list, that the employee's rights under this chapter are not impaired by choosing 02 an attending physician from the list, and that, if the employee chooses an attending 03 physician from the list, the employee may, in the manner provided in AS 23.30.095, 04 make one change of attending physician, from the list or otherwise; and 05 (3) establishment of a list of preferred physicians does not affect the 06 employer's choice of physician for an employer medical examination under 07 AS 23.30.095. 08 (c) An employer, or group of employers, may negotiate with physicians and 09 other treatment service providers under this chapter to obtain reduced fees and service 10 charges and may take the fees and charges into account when forming a list of 11 preferred physicians and providers. In no event may an employer, or group of 12 employers, attempt to influence the treatment, medical decisions, or ratings by the 13 physicians in the course of the negotiations of such a preferred physician and provider 14 fee plans. 15 (d) An employer shall pay an employee's bills for medical treatment under this 16 chapter, excluding prescription charges or transportation for medical treatment, within 17 30 days after the date that the employer receives the provider's bill or a completed 18 report as required by AS 23.30.095(c), whichever is later. 19 (e) A physician or other provider of treatment services under this chapter, 20 including hospital services, that submits a bill for medical treatment to the insurer or 21 self-insured employer shall also submit a copy of the bill to the employee to whom the 22 treatment was provided. An employee who notifies the insurer or self-insured 23 employer's adjuster in writing of an overcharge in the bill that was not previously 24 identified by the insurer or self-insured employer's adjuster shall be entitled to a 25 reward equal to 25 percent of the billing reduction or reimbursement achieved due to 26 the employee's report. This reward does not apply to overcharges of an amount under 27 $100 if the insurer or self-insured employer's adjuster elects not to pursue correction 28 of the bill. 29 (f) An employee may not be required to pay a fee or charge for medical 30 treatment or service provided under this chapter. 31 (g) Unless the employer controverts a charge, the employer shall reimburse an
01 employee's prescription charges under this chapter within 30 days after the employer 02 receives the health care provider's completed report and an itemization of the 03 prescription charges for the employee. Unless the employer controverts a charge, an 04 employer shall reimburse any transportation expenses for medical treatment under this 05 chapter within 30 days after the employer receives the health care provider's 06 completed report and an itemization of the dates, destination, and transportation 07 expenses for each date of travel for medical treatment. If the employer does not plan 08 to make or does not make payment or reimbursement in full as required by this 09 subsection, the employer shall notify the employee and the employee's health care 10 provider in writing that payment will not be made timely and the reason for the 11 nonpayment. The notification must be provided not later than the date that the 12 payment is due under this subsection. 13 * Sec. 37. AS 23.30.100(b) is amended to read: 14 (b) The notice must be in writing, contain the name and address of the 15 employee, [AND] a statement of the time, place, nature, and cause of the injury or 16 death, and authority to release records of medical treatment for the injury or 17 death, and be signed by the employee or by a person on behalf of the employee, or, in 18 case of death, by a person claiming to be entitled to compensation for the death or by a 19 person on behalf of that person. 20 * Sec. 38. AS 23.30.107 is amended to read: 21 Sec. 23.30.107. Release of information. (a) Upon written request, an 22 employee shall provide written authority to the employer, carrier, rehabilitation 23 specialist, or reemployment benefits administrator to obtain medical and rehabilitation 24 information relative to the employee's injury. The request must include notice of the 25 employee's right to file a petition for a protective order with the division [BOARD] 26 and must be served by certified mail to the employee's address on the notice of injury 27 or by hand delivery to the employee. This subsection may not be construed to 28 authorize an employer, carrier, rehabilitation specialist, or reemployment benefits 29 administrator to request medical or other information that is not applicable to the 30 employee's injury. 31 (b) Medical or rehabilitation records in an employee's file maintained by the
01 division or held by the board are not public records subject to public inspection and 02 copying under AS 40.25. This subsection does not prohibit 03 (1) the reemployment benefits administrator, the division, the board, 04 or the department from releasing medical or rehabilitation records in an employee's 05 file, without the employee's consent, to a physician providing medical services under 06 AS 23.30.095(k) or 23.30.110(g), a party to a claim filed by the employee, or a 07 governmental agency; or 08 (2) the quoting or discussing of medical or rehabilitation records 09 contained in an employee's file during a hearing on a claim for compensation [,] or in 10 a decision and order of the board. 11 * Sec. 39. AS 23.30.107 is amended by adding a new subsection to read: 12 (c) The division may not assemble, or provide information respecting, 13 individual records for commercial purposes that are outside the scope of this chapter. 14 * Sec. 40. AS 23.30.125 is repealed and reenacted to read: 15 Sec. 23.30.125. Administrative review of compensation order. (a) A 16 compensation order becomes effective when filed with the office of the board as 17 provided in AS 23.30.110, and, unless proceedings to reconsider, suspend, or set aside 18 the order are instituted as provided in this chapter, the order becomes final on the 31st 19 day after it is filed. 20 (b) Notwithstanding other provisions of law, a decision or order of the board is 21 subject to review by the commission as provided in this chapter. 22 (c) If a compensation order is not in accordance with law or fact, the order 23 may be suspended or set aside, in whole or in part, through proceedings in the 24 commission brought by a party in interest against all other parties to the proceedings 25 before the board. The payment of the amounts required by an award may not be 26 stayed pending a final decision in the proceeding unless, upon application for a stay, 27 the commission, on hearing, after not less than three days' notice to the parties in 28 interest, allows the stay of payment, in whole or in part, where the party filing the 29 application would otherwise suffer irreparable damage. Continuing future periodic 30 compensation payments may not be stayed without a showing by the appellant of 31 irreparable damage and the existence of the probability of the merits of the appeal
01 being decided adversely to the recipient of the compensation payments. The order of 02 the commission allowing a stay must contain a specific finding, based upon evidence 03 submitted to the commission and identified by reference to the evidence, that 04 irreparable damage would result to the party applying for a stay and specifying the 05 nature of the damage. 06 (d) Proceedings for reconsidering, suspending, setting aside, or enforcing a 07 compensation order, whether rejecting a claim or making an award, may not be 08 instituted, except as provided in this chapter. 09 * Sec. 41. AS 23.30 is amended by adding new sections to read: 10 Sec. 23.30.127. Appeals to commission. (a) A party in interest may appeal a 11 compensation order issued by the board to the commission within 30 days after the 12 compensation order is filed with the office of the board under AS 23.30.110. The 13 director may intervene in an appeal. If a party in interest is not represented by counsel 14 and the compensation order concerns an unsettled question of law, the director may 15 file an appeal to obtain a ruling on the question by the commission. 16 (b) An appeal is initiated by filing with the office of the commission 17 (1) a signed notice of appeal specifying the compensation order 18 appealed from; 19 (2) a statement of the grounds upon which the appeal is taken; and 20 (3) other material the commission may by regulation require. 21 (c) A cross-appeal may be initiated by filing with the office of the commission 22 a signed notice of cross-appeal within 30 days after the decision is filed or within 15 23 days after service of notice of an appeal, whichever is later. The notice of cross- 24 appeal shall specify the compensation order appealed from and the grounds upon 25 which the cross-appeal is taken. 26 (d) The office of the commission may charge a fee, not to exceed $100, for 27 filing appeals and cross-appeals, except that the office of the commission may not 28 charge a fee if the appellant is the state or a political subdivision of the state. The 29 commission may require an appellant to pay the costs of the transcript of hearing and 30 the preparation of the record on appeal. The commission may require cross-appellants 31 or intervenors to share in the costs.
01 (e) If a request for reconsideration of a board decision was timely filed with 02 the office of the board, the notice of appeal must be filed within 30 days after the 03 reconsideration decision is mailed to the parties, or the date the request for 04 reconsideration is considered denied in the absence of any action on the request, 05 whichever is earlier. 06 (f) The commission may require written briefs and make other rules and 07 orders to facilitate the business of the commission and advance the prompt, fair, and 08 just disposition of appeals. 09 Sec. 23.30.128. Commission proceedings. (a) An appeal from a decision of 10 the board under this chapter, and other proceedings under this section, shall be heard 11 and decided by a three-member panel of the commission. An appeal panel of the 12 commission must include the chair of the commission. The chair of the commission 13 shall assign two members to each appeal, including one commission member 14 classified as representing employees and one commission member classified as 15 representing employers. Acts, decisions, and orders of the commission panel in the 16 appeal or related proceeding shall be considered the acts, decisions, and orders of the 17 full commission. The matter on appeal shall be decided on the record made before the 18 board, a transcript or recording of the proceedings before the board, and oral argument 19 and written briefs allowed by the commission. Except as provided in (c) of this 20 section, new or additional evidence may not be received with respect to the appeal. 21 (b) The commission may review discretionary actions, findings of fact, and 22 conclusions of law by the board in hearing, determining, or otherwise acting on a 23 compensation claim or petition. The board's findings regarding the credibility of 24 testimony of a witness before the board are binding on the commission. The board's 25 findings of fact shall be upheld by the commission if supported by substantial 26 evidence in light of the whole record. In reviewing questions of law and procedure, 27 the commission shall exercise its independent judgment. 28 (c) The commission may hold hearings and receive evidence on applications 29 for (1) stays under AS 23.30.125; (2) attorney fees and costs of appeal; (3) waiver of 30 fees by indigent appellants; or (4) dismissal of appeals for failure to prosecute or upon 31 settlement. The commission may rely on new or additional evidence presented during
01 the hearing in making its decision on the application. 02 (d) The commission may affirm, reverse, or modify a decision or order upon 03 review and issue other orders as appropriate. The commission may remand matters it 04 determines were improperly, incompletely, or otherwise insufficiently developed. The 05 commission may remand for further proceedings and appropriate action with or 06 without relinquishing the commission's jurisdiction of the appeal. The administrative 07 adjudication procedures of AS 44.62 (Administrative Procedure Act) do not apply to 08 the proceedings of the commission. 09 (e) Within 90 days after written briefing on the appeal is completed or oral 10 argument is held, whichever is later, the commission shall issue a decision in writing. 11 The decision must contain a concise statement of reasons for the decision, including 12 findings of fact, if required, and conclusions of law. The commission shall serve each 13 party and the director with a copy of the decision. Appeals may be expedited for good 14 cause by the commission. Unless reconsideration is ordered under (f) of this section, a 15 decision under this subsection is the final commission decision. 16 (f) A party or the director may request reconsideration of a decision issued 17 under (e) of this section within 30 days after the date of service shown in the 18 certificate of service of the decision. The request must state specific grounds for 19 reconsideration. Reconsideration may be granted if, in reaching the decision, the 20 commission (1) overlooked, misapplied, or failed to consider a statute, regulation, 21 court or administrative decision, or legal principle directly controlling; (2) overlooked 22 or misconceived a material fact; (3) misconceived a material question in the case; or 23 (4) applied law in the ruling that has subsequently changed. The panel of the 24 commission hearing the request for reconsideration shall consist of the same members 25 of the panel that issued the decision. The commission may issue an order for 26 reconsideration of all or part of the decision upon request of a party or the director. 27 Reconsideration is based on the record, unless the commission allows additional 28 argument. The power to order reconsideration expires 60 days after the date of 29 service, as shown on the certificate of service, of a decision issued under (e) of this 30 section. If the commission does not issue an order for reconsideration within the time 31 allowed for ordering reconsideration, a request for reconsideration is considered
01 denied. If reconsideration is ordered, the commission shall issue a decision within 30 02 days after the close of the record on reconsideration. The commission shall serve each 03 party in the case with a copy of the decision upon reconsideration. The decision upon 04 reconsideration is the final commission decision. 05 (g) A decision of the commission becomes final on the 06 (1) 31st day after the date of service of a decision if reconsideration is 07 not requested; 08 (2) 61st day after the date of service of a decision if reconsideration is 09 requested but an order for reconsideration is not issued; or 10 (3) date of service of the commission decision upon reconsideration 11 under (f) of this section if reconsideration is requested and an order for reconsideration 12 is issued. 13 Sec. 23.30.129. Judicial review of commission orders. (a) Notwithstanding 14 the provisions of AS 44.62.560, orders of the commission may not be appealed to the 15 superior court. Consistent with AS 22.05.010(b), final decisions of the commission 16 may be appealed to the supreme court, and other orders may be reviewed by the 17 supreme court as provided by the Alaska Rules of Appellate Procedure. 18 (b) A finding by the commission concerning the weight to be accorded a 19 witness's testimony, including medical testimony and reports, is conclusive even if the 20 evidence is conflicting or susceptible to contrary conclusions. The commission's 21 findings of fact may be reversed on appeal if not supported by substantial evidence in 22 light of the whole record. 23 * Sec. 42. AS 23.30.140 is amended to read: 24 Sec. 23.30.140. Appointment of guardian by court. The director 25 [BOARD] may require the appointment of a guardian or other representative by a 26 competent court for any person who is mentally incompetent or a minor to receive 27 compensation payable to the person under this chapter and to exercise the powers 28 granted to or to perform the duties required of the person under this chapter. If the 29 director [BOARD] does not require the appointment of a guardian to receive the 30 compensation of a minor, appointment for this purpose is not necessary. 31 * Sec. 43. 23.30.145(b) is amended to read:
01 (b) If an employer fails to file timely notice of controversy or fails to pay 02 compensation or medical and related benefits within 15 days after it becomes due or 03 otherwise resists the payment of compensation or medical and related benefits and if 04 the claimant has employed an attorney in the successful prosecution of the claim, the 05 board shall make an award to reimburse the claimant for the costs in the proceedings, 06 including [A] reasonable attorney fees [FEE]. The award is in addition to the 07 compensation or medical and related benefits ordered. 08 * Sec. 44. AS 23.30.155(a) is amended to read: 09 (a) Compensation under this chapter shall be paid periodically, promptly, and 10 directly to the person entitled to it, without an award, except where liability to pay 11 compensation is controverted by the employer. To controvert a claim, the employer 12 must file a notice, on a form prescribed by the director [BOARD], stating 13 (1) that the right of the employee to compensation is controverted; 14 (2) the name of the employee; 15 (3) the name of the employer; 16 (4) the date of the alleged injury or death; and 17 (5) the type of compensation and all grounds upon which the right to 18 compensation is controverted. 19 * Sec. 45. AS 23.30.155(c) is amended to read: 20 (c) The insurer or adjuster shall notify the division [BOARD] and the 21 employee on a form prescribed by the director [BOARD] that the payment of 22 compensation has begun or has been increased, decreased, suspended, terminated, 23 resumed, or changed in type. An initial report shall be filed with the division 24 [BOARD] and sent to the employee within 28 days after the date of issuing the first 25 payment of compensation. If at any time 21 days or more pass and no compensation 26 payment is issued, a report notifying the division [BOARD] and the employee of the 27 termination or suspension of compensation shall be filed with the division [BOARD] 28 and sent to the employee within 28 days after the date the last compensation payment 29 was issued. A report shall also be filed with the division [BOARD] and sent to the 30 employee within 28 days after the date of issuing a payment increasing, decreasing, 31 resuming, or changing the type of compensation paid. If the division [BOARD] and
01 the employee are not notified within the 28 days prescribed by this subsection for 02 reporting, the insurer or adjuster shall pay a civil penalty of $100 for the first day plus 03 $10 for each day after the first day [THEREAFTER] that the notice was not given. 04 Total penalties under this subsection may not exceed $1,000 for a failure to file a 05 required report. Penalties assessed under this subsection are eligible for reduction 06 under (m) of this section. A penalty assessed under this subsection after penalties have 07 been reduced under (m) of this section shall be increased by 25 percent and shall bear 08 interest at the rate established under AS 45.45.010. 09 * Sec. 46. AS 23.30.155(d) is amended to read: 10 (d) If the employer controverts the right to compensation the employer shall 11 file with the division [BOARD] and send to the employee a notice of controversion on 12 or before the 21st day after the employer has knowledge of the alleged injury or death. 13 If the employer controverts the right to compensation after payments have begun, the 14 employer shall file with the division [BOARD] and send to the employee a notice of 15 controversion within seven days after an installment of compensation payable without 16 an award is due. When payment of temporary disability benefits is controverted solely 17 on the grounds that another employer or another insurer of the same employer may be 18 responsible for all or a portion of the benefits, the most recent employer or insurer 19 who is party to the claim and who may be liable shall make the payments during the 20 pendency of the dispute. When a final determination of liability is made, any 21 reimbursement required, including interest at the statutory rate, and all costs and 22 attorney [ATTORNEYS'] fees incurred by the prevailing employer, shall be made 23 within 14 days after [OF] the determination. 24 * Sec. 47. AS 23.30.155(e) is amended to read: 25 (e) If any installment of compensation payable without an award is not paid 26 within seven days after it becomes due, as provided in (b) of this section, there shall be 27 added to the unpaid installment an amount equal to 25 percent of the installment [IT]. 28 This additional amount shall be paid at the same time as, and in addition to, the 29 installment, unless notice is filed under (d) of this section or unless the nonpayment is 30 excused by the board after a showing by the employer that owing to conditions over 31 which the employer had no control the installment could not be paid within the period
01 prescribed for the payment. The additional amount shall be paid directly to the 02 recipient to whom the unpaid installment was to be paid. 03 * Sec. 48. AS 23.30.155(f) is amended to read: 04 (f) If compensation payable under the terms of an award is not paid within 14 05 days after it becomes due, there shall be added to that unpaid compensation an amount 06 equal to 25 percent of the unpaid installment. The additional amount [IT, 07 WHICH] shall be paid at the same time as, but in addition to, the compensation, unless 08 review of the compensation order making the award [IS HAD] as provided under 09 AS 23.30.008 [IN AS 23.30.125] and an interlocutory injunction staying payments is 10 allowed by the court. The additional amount shall be paid directly to the recipient 11 to whom the unpaid compensation was to be paid. 12 * Sec. 49. AS 23.30.155(i) is amended to read: 13 (i) When the director [BOARD] considers it advisable, the director [IT] may 14 require an employer to make a deposit with the Department of Revenue to secure the 15 prompt and convenient payment of the compensation, and payments from the deposit 16 upon an award shall be made upon order of the director [BOARD]. 17 * Sec. 50. AS 23.30.155(k) is amended to read: 18 (k) An injured employee [,] or, in case of death, the employee's dependents or 19 personal representative [,] shall give receipts for payment of compensation to the 20 employer paying the compensation, [IT] and the employer shall produce the receipts 21 [THEM] for inspection by the director [BOARD], whenever required. 22 * Sec. 51. AS 23.30.155(m) is amended to read: 23 (m) On or before March 1 of each year, the insurer or adjuster shall file a 24 verified annual report on a form prescribed by the director [BOARD] stating the total 25 amount of all compensation by type, the number of claims received and the percentage 26 controverted, medical [,] and related benefits, vocational rehabilitation expenses, legal 27 fees, including a separate total of fees paid to attorneys and fees paid for the other 28 costs of litigation, and penalties paid on all claims during the preceding calendar year. 29 If the annual report is timely and complete when received by the division [BOARD] 30 and provides accurate information about each category of payments, the director 31 [COMMISSIONER] shall review the timeliness of the insurer's or adjuster's reports
01 filed during the preceding year under (c) of this section. If, during the preceding year, 02 the insurer or adjuster filed at least 99 percent of the reports on time, the penalties 03 assessed under (c) of this section shall be waived. If, during the preceding year, the 04 insurer or adjuster filed at least 97 percent of the reports on time, 75 percent of the 05 penalties assessed under (c) of this section shall be waived. If, during the preceding 06 year, the insurer or adjuster filed 95 percent of the reports on time, 50 percent of the 07 penalties assessed under (c) of this section shall be waived. If, during the preceding 08 year, the insurer's or adjuster's reports have not been filed on time at least 95 percent 09 of the time, none of the penalties assessed under (c) of this section shall be waived. 10 The penalties that are not waived are due and payable when the insurer or adjuster 11 receives notification from the director [COMMISSIONER] regarding the timeliness 12 of the reports. If the annual report is not filed by March 1 of each year, the insurer or 13 adjuster shall pay a civil penalty of $100 for the first day the annual report is late [,] 14 and $10 for each additional day the report is late. If the annual report is incomplete 15 when filed, the insurer or adjuster shall pay a civil penalty of $1,000. 16 * Sec. 52. AS 23.30.155(o) is amended to read: 17 (o) The director [BOARD] shall promptly notify the division of insurance if 18 the board determines that the employer's insurer has frivolously or unfairly 19 controverted compensation due under this chapter. After receiving notice from the 20 director [BOARD], the division of insurance shall determine if the insurer has 21 committed an unfair claim settlement practice under AS 21.36.125. 22 * Sec. 53. AS 23.30.175(b) is amended to read: 23 (b) The following rules apply to benefits payable to recipients not residing in 24 the state at the time compensation benefits are payable: 25 (1) the weekly rate of compensation shall be calculated by multiplying 26 the recipient's weekly compensation rate calculated under AS 23.30.180, 23.30.185, 27 23.30.190, 23.30.200, or 23.30.215 [,] by the ratio of the cost of living of the area in 28 which the recipient resides to the cost of living in this state; 29 (2) the calculation required by (1) of this subsection does not apply if 30 the recipient is absent from the state for medical or rehabilitation services not 31 reasonably available in the state;
01 (3) if the gross weekly earnings of the recipient and the resulting 02 compensation rate are determined under AS 23.30.220(a)(6), (7), or (10), the 03 calculation required by this subsection applies only to the portion of the recipient's 04 weekly compensation rate attributable to wages earned in the state; 05 (4) application of this subsection may not reduce the weekly 06 compensation rate to less than $154 a week, except as provided in (a) of this section; 07 (5) application of (1) - (4) of this subsection may not result in 08 raising a recipient's weekly compensation rate to an amount that exceeds the 09 weekly compensation rate that the recipient would have received if the recipient 10 had been residing in the state. 11 * Sec. 54. AS 23.30.175(c) is amended to read: 12 (c) The department [BOARD] shall provide by regulation for the 13 determination and comparison of living costs for this state and the other areas in which 14 recipients reside and for the [ANNUAL] redetermination and comparison of these 15 costs every three years. 16 * Sec. 55. AS 23.30.175 is amended by adding a new subsection to read: 17 (e) If the commissioner fails to determine the average weekly wage in the state 18 as required in (d) of this section until after January 1, but before April 1, of the year 19 following the date the determination was to be made, an employer is not required to 20 make a retroactive adjustment of compensation. 21 * Sec. 56. AS 23.30.205(e) is amended to read: 22 (e) The second injury fund may not be bound as to any question of law or fact 23 by reason of an award or an adjudication to which it was not a party or in relation to 24 which the director [COMMISSIONER] was not notified at least three weeks before 25 the award or adjudication [,] that the fund might be subject to liability for the injury or 26 death. 27 * Sec. 57. AS 23.30.220(a) is amended to read: 28 (a) Computation of compensation under this chapter shall be on the basis of an 29 employee's spendable weekly wage at the time of injury. An employee's spendable 30 weekly wage is the employee's gross weekly earnings minus payroll tax deductions. 31 An employee's gross weekly earnings shall be calculated as follows:
01 (1) if at the time of injury the employee's earnings are calculated by the 02 week, the weekly amount is the employee's gross weekly earnings; 03 (2) if at the time of injury the employee's earnings are calculated by the 04 month, the employee's gross weekly earnings are the monthly earnings multiplied by 05 12 and divided by 52; 06 (3) if at the time of injury the employee's earnings are calculated by the 07 year, the employee's gross weekly earnings are the yearly earnings divided by 52; 08 (4) if at the time of injury the [(A)] employee's earnings are calculated 09 by the day, by the hour, or by the output of the employee, then the employee's gross 10 weekly earnings are 1/50 of the total wages that the employee earned from all 11 occupations during either of the two calendar years immediately preceding the 12 injury, whichever is [THE EMPLOYEE'S EARNINGS] most favorable to the 13 employee [COMPUTED BY DIVIDING BY 13 THE EMPLOYEE'S EARNINGS, 14 INCLUDING OVERTIME OR PREMIUM PAY, EARNED DURING ANY PERIOD 15 OF 13 CONSECUTIVE CALENDAR WEEKS WITHIN THE 52 WEEKS 16 IMMEDIATELY PRECEDING THE INJURY; 17 (B) EMPLOYEE HAS BEEN EMPLOYED FOR LESS THAN 18 13 CALENDAR WEEKS IMMEDIATELY PRECEDING THE INJURY, 19 THEN, NOTWITHSTANDING (1) - (3) OF THIS SUBSECTION AND (A) 20 OF THIS PARAGRAPH, THE EMPLOYEE'S GROSS WEEKLY 21 EARNINGS ARE COMPUTED BY DETERMINING THE AMOUNT THAT 22 THE EMPLOYEE WOULD HAVE EARNED, INCLUDING OVERTIME 23 OR PREMIUM PAY, HAD THE EMPLOYEE BEEN EMPLOYED BY THE 24 EMPLOYER FOR 13 CALENDAR WEEKS IMMEDIATELY PRECEDING 25 THE INJURY AND DIVIDING THIS SUM BY 13]; 26 (5) if at the time of injury the employee's earnings have not been fixed 27 or cannot be ascertained, the employee's earnings for the purpose of calculating 28 compensation are the usual wage for similar services when the services are rendered 29 by paid employees; 30 (6) if at the time of injury the employee's earnings are calculated by 31 the week under (a)(1) of this section or by the month under (a)(2) of this section
01 and the employment is exclusively seasonal or temporary, then [, 02 NOTWITHSTANDING (1) - (5) OF THIS SUBSECTION,] the gross weekly 03 earnings are 1/50 of the total wages that the employee has earned from all occupations 04 during the 12 calendar months immediately preceding the injury; 05 (7) when the employee is working under concurrent contracts with two 06 or more employers, the employee's earnings from all employers is considered as if 07 earned from the employer liable for compensation; 08 (8) if an employee when injured is a minor, an apprentice, or a trainee 09 in a formalized [FORMAL] training program, as determined by the board, whose 10 wages under normal conditions would increase during the period of disability, the 11 projected increase may be considered by the board in computing the gross weekly 12 earnings of the employee; if the minor, apprentice, or trainee would have likely 13 continued that training program, then the compensation shall be the average 14 weekly wage at the time of injury rather than that based on the individual's prior 15 earnings; 16 (9) if the employee is injured while performing duties as a volunteer 17 ambulance attendant, volunteer police officer, or volunteer fire fighter, then, 18 notwithstanding (1) - (6) of this subsection, the gross weekly earnings for calculating 19 compensation shall be the minimum gross weekly earnings paid a full-time ambulance 20 attendant, police officer, or fire fighter employed in the political subdivision where the 21 injury occurred, or, if the political subdivision has no full-time ambulance attendants, 22 police officers, or fire fighters, at a reasonable figure previously set by the political 23 subdivision to make this determination, but in no case may the gross weekly earnings 24 for calculating compensation be less than the minimum wage computed on the basis of 25 40 hours work per week; 26 (10) if an employee is entitled to compensation under AS 23.30.180 27 and the board determines that calculation of the employee's gross weekly earnings 28 under (1) - (7) of this subsection does not fairly reflect the employee's earnings during 29 the period of disability, the board shall determine gross weekly earnings by 30 considering the nature of the employee's work, work history, and resulting disability, 31 but compensation calculated under this paragraph may not exceed the employee's
01 gross weekly earnings at the time of injury. 02 * Sec. 58. AS 23.30 is amended by adding a new section to read: 03 Sec. 23.30.224. Coordination of benefits. (a) Notwithstanding other 04 provisions of this chapter, an employer's liability for payment of weekly compensation 05 under AS 23.30.180 or 23.30.185 to an employee eligible for a disability benefit under 06 AS 14.25.130, AS 39.35.400, or 39.35.410 may not exceed the lesser of 07 (1) the difference between the disability benefit payable to the 08 employee under AS 14.25.130, AS 39.35.400, or 39.35.410, converted to a weekly 09 basis, and 100 percent of the employee's spendable weekly wage as calculated under 10 AS 23.30.220; or 11 (2) the maximum compensation rate calculated under AS 23.30.175. 12 (b) An employer's liability for payment of compensation under 13 AS 23.30.041(k) to an employee eligible for a disability benefit payable under 14 AS 14.25.130, AS 39.35.400, or 39.35.410 may not exceed the lesser of 15 (1) the difference between the disability benefit payable to the 16 employee under AS 14.25.130, AS 39.35.400, or 39.35.410, converted to a weekly 17 basis, and 80 percent of the employee's spendable weekly wage as calculated under 18 AS 23.30.220; or 19 (2) 105 percent of the average weekly wage calculated under 20 AS 23.30.175(d). 21 (c) Notwithstanding other provisions of this chapter, the liability of an 22 employer for payment of compensation for an injury or illness under AS 23.30.180 or 23 23.30.185 to an employee who is covered by a union or group retirement system to 24 which the employer makes contributions under a collective bargaining agreement or 25 by membership in a welfare or pension plan or trust may not exceed the lesser of 26 (1) the difference between 100 percent of the employee's spendable 27 weekly wage and an amount equal to the disability benefit, disability pension, or 28 medical retirement benefit that the employee is eligible to receive as a result of the 29 injury or illness, as calculated on a weekly basis, under the retirement system or 30 welfare or pension plan or trust; or 31 (2) the maximum compensation rate calculated under AS 23.30.175.
01 (d) If the union or group retirement system, pension plan, or trust referred to in 02 (c) of this section provides by its terms that its benefits are precluded or reduced if 03 benefits are awarded under this chapter, the limitation provided in (c)(1) of this section 04 is not applicable to the extent of the amount precluded or reduced. 05 (e) Notwithstanding other provisions of this chapter, the liability of an 06 employer for payment of compensation for an injury or illness under AS 23.30.041(k) 07 to an employee who is covered by a union or group retirement system to which the 08 employer makes contributions under a collective bargaining agreement or by 09 membership in a welfare or pension plan or trust may not exceed the lesser of 10 (1) the difference between 100 percent of the employee's spendable 11 weekly wage and an amount equal to the disability benefit, disability pension, or 12 medical retirement benefit that the employee is eligible to receive as a result of the 13 injury or illness, calculated on a weekly basis, under the retirement system or welfare 14 or pension plan or trust; or 15 (2) 105 percent of the average weekly wage calculated under 16 AS 23.30.175(d). 17 (f) If the union or group retirement system, pension plan, or trust referred to in 18 (e) of this section provides by its terms that its benefits are precluded or reduced if 19 benefits are awarded under this chapter, the limitation provided in (e)(1) of this section 20 is not applicable to the extent of the amount precluded or reduced. 21 (g) If the employee receives a lump sum distribution of disability benefits, 22 disability pension, or medical retirement benefits, the combined workers' 23 compensation and weekly disability or medical retirement benefit specified in this 24 section shall be calculated by assuming that the employee received weekly disability 25 or medical retirement payments under the applicable plan from the date of eligibility 26 for the disability benefit or medical retirement until the total of the weekly payments 27 equals the amount of the lump sum, exclusive of that portion of the lump sum 28 specifically set aside under the applicable plan for retraining expenses, medical and 29 transportation expenses, and attorney fees or other legal costs. 30 * Sec. 59. AS 23.30.240 is amended to read: 31 Sec. 23.30.240. Officers of corporations, municipal corporations and
01 nonprofit corporations and members of limited liability companies as employees. 02 An executive officer elected or appointed and empowered in accordance with the 03 charter and bylaws of a corporation, other than an official of a municipal corporation 04 or a charitable, religious, educational, or other nonprofit corporation, is an employee 05 of the corporation under this chapter. However, an executive officer of a corporation 06 may waive coverage under this chapter, subject to the approval of the director 07 [COMMISSIONER OF LABOR AND WORKFORCE DEVELOPMENT], 08 notwithstanding AS 23.30.245(b). Notwithstanding any other provision of this 09 chapter, an executive officer of a municipal corporation or of a charitable, religious, 10 educational, or other nonprofit corporation may be brought within the coverage of its 11 insurance contract by the corporation by specifically including the officer in the 12 contract of insurance. The election to bring an executive officer within the coverage 13 continues in force for the period the contract of insurance is in effect. During that 14 period, an executive officer brought within the coverage of the insurance contract is an 15 employee of the corporation under this chapter. 16 * Sec. 60. AS 23.30.240 is amended by adding a new subsection to read: 17 (b) Except as provided in this subsection, a member of a limited liability 18 company organized under AS 10.50 is not an employee of the company under this 19 chapter. Notwithstanding any other provision of this chapter, a limited liability 20 company may bring a member of the company within the coverage of the company's 21 insurance contract by specifically including the member in the contract of insurance. 22 The election to bring the member within the company's coverage continues in force 23 for the period the contract of insurance is in effect. During that period, a member 24 brought within the coverage of the insurance contract is an employee of the company 25 under this chapter. 26 * Sec. 61. AS 23.30.250(b) is amended to read: 27 (b) If the board, after a hearing, finds that a person has obtained compensation, 28 medical treatment, or another benefit provided under this chapter, or that a provider 29 has received a payment, by knowingly making a false or misleading statement or 30 representation for the purpose of obtaining that benefit, the board shall order that 31 person to make full reimbursement of the cost of all benefits obtained. Upon entry of
01 an order authorized under this subsection, the board shall also order that person to pay 02 all reasonable costs and attorney fees incurred by the employer and the employer's 03 carrier in obtaining an order under this section and in defending any claim made for 04 benefits under this chapter. If a person fails to comply with an order of the board 05 requiring reimbursement of compensation and payment of costs and attorney fees, the 06 employer may declare the person in default and proceed to collect any sum due as 07 provided under AS 23.30.170(b) and (c). 08 * Sec. 62. AS 23.30.250 is amended by adding a new subsection to read: 09 (c) To the extent allowed by law, in a civil action under (a) of this section, an 10 award of damages by a court or jury may include compensatory damages and an 11 award of three times the amount of damages sustained by the person, subject to 12 AS 09.17. Attorney fees may be awarded to a prevailing party as allowed by law. 13 * Sec. 63. AS 23.30.260 is amended to read: 14 Sec. 23.30.260. Penalty for receiving unapproved fees and soliciting. A 15 person is guilty of a misdemeanor [,] and, upon conviction, is punishable for each 16 offense by a fine of not more than $1,000 [,] or by imprisonment for not more than one 17 year, or by both, if the person 18 (1) receives a fee, other consideration, or a gratuity on account of any 19 services rendered for representation or advice with [IN] respect to a claim, unless 20 the consideration or gratuity is approved by the board or the court; or 21 (2) makes it a business to solicit employment for a lawyer or for the 22 person making the solicitation with [ONESELF IN] respect to a claim or award for 23 compensation. 24 * Sec. 64. AS 23.30.260 is amended by adding a new subsection to read: 25 (b) Notwithstanding AS 23.30.145 and (a) of this section, approval of a fee is 26 not required if the fee does not exceed $300 and is a one-time-only charge to an 27 employee by an attorney licensed in this state who performed legal services with 28 respect to the employee's claim but did not enter an appearance. 29 * Sec. 65. AS 23.30 is amended by adding a new section to read: 30 Sec. 23.30.280. Investigation of fraud; staffing. (a) The director shall 31 establish a section within the division for the investigation of fraudulent or misleading
01 acts under AS 23.30.250 and other fraudulent acts relating to workers' compensation. 02 (b) The director may investigate facts reported under this section and may 03 refer facts indicating a possible violation of law to the appropriate prosecutor or 04 agency. If the director determines that there is credible evidence that a person 05 obtained a payment, compensation, medical treatment, or other benefit provided under 06 this chapter by a fraudulent act or false or misleading statement or representation as 07 provided in AS 23.30.250(a), the director shall notify the affected employer, insurer, 08 and adjuster upon conclusion of the investigation. If the fraudulent act or false or 09 misleading statement or representation was perpetrated against the division, the 10 director may file a petition as provided in AS 23.30.110 for an order of forfeiture 11 against the person, precluding, in whole or in part, the person from future payment, 12 compensation, medical treatment, or other benefit provided under this chapter. 13 (c) The director shall establish a toll-free fraud hotline to receive calls relating 14 to fraudulent or misleading acts under this chapter. The director shall publicize the 15 availability of the toll-free fraud hotline and encourage the public to provide 16 information to the division relating to fraudulent or misleading acts relating to 17 workers' compensation. 18 (d) The section established by the director under (a) of this section shall 19 include not less than two full-time investigators with the primary responsibility of 20 investigating fraudulent or misleading acts relating to workers' compensation. The 21 director shall also ensure that there are sufficient personnel to staff the toll-free fraud 22 hotline established under (c) of this section. 23 (e) Except as provided in (f) of this section, a person is not liable for civil 24 damages for filing a report concerning a suspected, anticipated, or completed 25 fraudulent act or a false or misleading statement or representation with, or for 26 furnishing other information, whether written or oral, concerning a suspected, 27 anticipated, or completed fraudulent act or false or misleading statements or 28 representation to 29 (1) law enforcement officials or their agents and employees; 30 (2) the division of workers' compensation, the division of insurance in 31 the Department of Commerce, Community, and Economic Development, or an agency
01 in another state that regulates insurance or workers' compensation; 02 (3) an insurer or adjuster or its agents, employees, or designees, or the 03 risk manager of a self-insured employer under this chapter. 04 (f) The provisions of (e) of this section do not preclude liability for civil 05 damages as described in (e) of this section if the liability arose as a result of gross 06 negligence or reckless or intentional misconduct. 07 (g) The papers, reports, documents, and evidence received under this section 08 or in an investigation arising from information received under this section are not 09 subject to public inspection for so long as the director considers confidentiality to be 10 in the public interest or reasonably necessary to complete an investigation or protect 11 the person investigated from unwarranted injury. Papers, reports, documents, and 12 other evidence related to an investigation under this section are confidential. 13 (h) If the material that the director seeks to obtain is located outside the state, 14 the material may be made available to the director to examine at the place where the 15 material is located. The director may designate representatives, including officials of 16 the state in which the material is located, to inspect the material on behalf of the 17 director. The director may respond to a request from an official of another state for 18 similar material. 19 (i) Papers, reports, documents and other evidence related to an investigation 20 under this section are not subject to subpoena unless, after notice to the director and a 21 hearing, a court determines that the director would not be unduly hindered by public 22 inspection. 23 * Sec. 66. AS 23.30.395(17) is amended to read: 24 (17) "injury" means accidental injury or death arising out of and in the 25 course of employment, and an occupational disease or infection that [WHICH] arises 26 naturally out of the employment or that [WHICH] naturally or unavoidably results 27 from an accidental injury; "injury" includes breakage or damage to eyeglasses, hearing 28 aids, dentures, or any prosthetic devices that [WHICH] function as part of the body 29 and further includes an injury caused by the wilful act of a third person directed 30 against an employee because of the employment; ["INJURY" DOES NOT INCLUDE 31 MENTAL INJURY CAUSED BY MENTAL STRESS UNLESS IT IS
01 ESTABLISHED THAT (A) THE WORK STRESS WAS EXTRAORDINARY AND 02 UNUSUAL IN COMPARISON TO PRESSURES AND TENSIONS 03 EXPERIENCED BY INDIVIDUALS IN A COMPARABLE WORK 04 ENVIRONMENT, AND (B) THE WORK STRESS WAS THE PREDOMINANT 05 CAUSE OF THE MENTAL INJURY; THE AMOUNT OF WORK STRESS SHALL 06 BE MEASURED BY ACTUAL EVENTS; A MENTAL INJURY IS NOT 07 CONSIDERED TO ARISE OUT OF AND IN THE COURSE OF EMPLOYMENT 08 IF IT RESULTS FROM A DISCIPLINARY ACTION, WORK EVALUATION, JOB 09 TRANSFER, LAYOFF, DEMOTION, TERMINATION, OR SIMILAR ACTION, 10 TAKEN IN GOOD FAITH BY THE EMPLOYER;] 11 * Sec. 67. AS 23.30.395 is amended by adding new paragraphs to read: 12 (35) "attending physician" means one of the following designated by 13 the employee under AS 23.30.095(a) or (b): 14 (A) a licensed medical doctor; 15 (B) a licensed doctor of osteopathy; 16 (C) a licensed dentist or dental surgeon; 17 (D) a licensed physician assistant acting under supervision of a 18 licensed medical doctor or doctor of osteopathy; 19 (E) a licensed advanced nurse practitioner; or 20 (F) a licensed chiropractor; 21 (36) "chronic debilitating pain" means pain that is of more than six 22 months duration and that is of sufficient severity that it significantly restricts the 23 employee's ability to perform the activities of daily living; 24 (37) "commission" means the Workers' Compensation Appeals 25 Commission; 26 (38) "commissioner" means the commissioner of labor and workforce 27 development; 28 (39) "department" means the Department of Labor and Workforce 29 Development; 30 (40) "director" means the director of the division of workers' 31 compensation in the department;
01 (41) "division" means the division of workers' compensation in the 02 department; 03 (42) "palliative care" means medical care or treatment rendered to 04 reduce or moderate temporarily the intensity of pain caused by an otherwise stable 05 medical condition, but does not include those medical services rendered to diagnose, 06 heal, or permanently alleviate or eliminate a medical condition. 07 * Sec. 68. AS 37.05.146(c) is amended by adding a new paragraph to read: 08 (78) workers' compensation benefits guaranty fund (AS 23.30.082). 09 * Sec. 69. AS 39.25.110 is amended by adding a new paragraph to read: 10 (40) the chair of the Workers' Compensation Appeals Commission 11 (AS 23.30.007). 12 * Sec. 70. AS 39.25.120(c)(14) is amended to read: 13 (14) the rehabilitation administrator of the division of workers' 14 compensation [WORKERS' COMPENSATION BOARD]; 15 * Sec. 71. AS 39.50.200(b)(31) is amended to read: 16 (31) Workers' Compensation Board (AS 23.30.005) and Workers' 17 Compensation Appeals Commission (AS 23.30.007); 18 * Sec. 72. AS 44.23.020 is amended by adding a new subsection to read: 19 (f) The attorney general shall designate not less than one-half attorney position 20 in the Department of Law for the purpose of prosecuting actions for fraudulent acts 21 related to workers' compensation under AS 23.30. 22 * Sec. 73. AS 44.64.020(a) is amended to read: 23 (a) The chief administrative law judge shall 24 (1) supervise the office; 25 (2) employ administrative staff, who shall be in the classified service; 26 (3) employ administrative law judges, who shall be in the partially 27 exempt service; 28 (4) preside over administrative hearings handled by the office or, based 29 upon the qualifications and expertise of the administrative law judges, assign 30 administrative law judges to preside over hearings, and protect, support, and enhance 31 the decisional independence of the administrative law judges;
01 (5) establish and implement performance standards, including 02 provision for timeliness, and peer review programs for administrative law judges 03 employed or retained by the office; 04 (6) make available and facilitate training and continuing education 05 programs and services in administrative procedure, administrative adjudication, 06 substantive law, alternate dispute resolution, and technical matters for administrative 07 law judges and other administrative adjudicators; 08 (7) survey administrative hearing participants and use other methods to 09 monitor the quality of administrative hearings held by the office and other state 10 agencies, and submit to the governor and the legislature on January 31 of each year the 11 results of the survey along with a report that includes a description of the activities of 12 the office and recommendations for statutory changes that may be needed in relation 13 to the administrative hearings held by the office or other state agencies; 14 (8) review and comment on regulations proposed by state agencies to 15 govern procedures in administrative hearings; 16 (9) enter into contracts as necessary to carry out the functions of the 17 office; 18 (10) annually prepare and submit to the commissioner of 19 administration a budget for the office for the next fiscal year that shall include and 20 separately identify funding for training and continuing education; a copy of the budget 21 submitted to the commissioner under this paragraph shall also be submitted to the 22 Finance Committee of each house of the legislature; [AND] 23 (11) after consulting with affected agencies, adopt regulations under 24 AS 44.62 (Administrative Procedure Act) to carry out the duties of the office and 25 implement this chapter; 26 (12) receive and review applications from individuals seeking 27 appointments to the Workers' Compensation Appeals Commission and submit 28 the names of individuals to the governor for appointment as provided in 29 AS 23.30.007(d); and 30 (13) appoint a chair pro tem for the Workers' Compensation 31 Appeals Commission as provided in AS 23.30.007(m).
01 * Sec. 74. AS 23.30.095(f), 23.30.095(l), and 23.30.095(m) are repealed. 02 * Sec. 75. AS 23.30.097(a)(1) is repealed August 1, 2007. 03 * Sec. 76. The uncodified law of the State of Alaska is amended by adding a new section to 04 read: 05 INDIRECT COURT RULE AMENDMENT. AS 23.30.280(i), as enacted by sec. 65 06 of this Act, has the effect of changing Rule 45, Alaska Rules of Civil Procedure, by changing 07 the procedure relating to subpoenas. 08 * Sec. 77. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 TASK FORCE ON WORKERS' COMPENSATION. (a) There is established in the 11 legislative branch the Task Force on Workers' Compensation to address the improvement of 12 the Alaska workers' compensation system, including 13 (1) a review of workers' compensation and insurance reform measures 14 throughout the United States and an assessment of the effects of those reforms; 15 (2) an analysis and assessment of proposals for workers' compensation and 16 workers' compensation liability insurance reform in Alaska; 17 (3) a review of current Alaskan workers' compensation benefits and costs and 18 an assessment of needed changes; 19 (4) a review of compliance with current Alaska workers' compensation laws; 20 (5) a consideration of other issues determined to be relevant by members of 21 the task force. 22 (b) The task force established under (a) of the section shall consist of 13 voting 23 members. One member shall be a state senator appointed by the president of the senate who 24 shall serve as co-chair, one member shall be a state representative appointed by the speaker of 25 the house of representatives who shall serve as co-chair, and one member shall be a member 26 of the minority in either house jointly selected by the president of the senate and the speaker 27 of the house of representatives. Ten members shall be appointed jointly by the president of 28 the senate and speaker of the house of representatives as follows: 29 (1) a representative of the Alaska State Medical Association; 30 (2) a representative of the Alaska State Hospital and Nursing Home 31 Association;
01 (3) an attorney who represents employees in workers' compensation cases; 02 (4) an attorney who represents employers in workers' compensation cases; 03 (5) a representative from organized labor; 04 (6) a person representing employees not represented by organized labor; 05 (7) a representative of the insurance industry that provides workers' 06 compensation insurance in the state; 07 (8) a representative of self-insured employers; 08 (9) a person representing businesses that employ less than 100 employees; and 09 (10) a person representing businesses that employ more than 99 employees. 10 (c) With the approval of the co-chairs, nonvoting members may be appointed to the 11 task force. The nonvoting members may take part in discussions but shall defer to the voting 12 members on the matters to be discussed. 13 (d) The task force established under (a) of this section 14 (1) may begin work immediately upon the appointment of its full voting 15 membership and shall meet at least three times telephonically or in person; 16 (2) shall hold public hearings and may perform research related to its work; 17 (3) may meet in the interim and vote telephonically; 18 (4) shall report its written findings and give a copy of proposed legislation and 19 other recommendations to the president of the senate and the speaker of the house of 20 representatives before December 1, 2005; and 21 (5) is terminated on February 1, 2006. 22 * Sec. 78. The uncodified law of the State of Alaska is amended by adding a new section to 23 read: 24 APPLICABILITY. The amendment to AS 23.30.175(b) made by sec. 53 of this Act 25 applies to an injury occurring on or after the effective date of sec. 53 of this Act. 26 * Sec. 79. The uncodified law of the State of Alaska is amended by adding a new section to 27 read: 28 TRANSITION: STAFF. (a) In order to ensure the smooth assumption of duties in 29 the shortest possible time, for a period of six months after the effective date of this section, the 30 director may, with the approval of the commissioner of labor and workforce development and 31 the chair of the commission, temporarily assign division employees to the commission and the
01 commission may reimburse the division for the temporarily assigned employees. Division 02 employees temporarily assigned to the commission shall continue in the same position and 03 rate of pay for the duration of the temporary assignment as the employees held at the division. 04 (b) In this section, 05 (1) "commission" means the Workers' Compensation Appeals Commission 06 established by AS 23.30.007, enacted by sec. 8 of this Act; 07 (2) "director" means the director of the division of workers' compensation in 08 the Department of Labor and Workforce Development; 09 (3) "division" means the division of workers' compensation in the Department 10 of Labor and Workforce Development. 11 * Sec. 80. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 TRANSITIONAL PROVISIONS. (a) Litigation, investigations, and other 14 proceedings pending under a law amended or repealed by this Act or in connection with 15 functions transferred by this Act continue in effect and may be continued and completed, 16 notwithstanding a transfer or amendment or repeal provided for in this Act. 17 (b) Certificates, decisions, and orders issued under authority of a law amended or 18 repealed by this Act remain in effect for the term issued, or until revoked, vacated, or 19 otherwise modified under the provisions of this Act. Contracts, rights, liabilities, and 20 obligations created by or under a law amended or repealed by this Act and in effect on the day 21 before the effective date of this section remain in effect, notwithstanding this Act's taking 22 effect. 23 * Sec. 81. The uncodified law of the State of Alaska is amended by adding a new section to 24 read: 25 TRANSITION: REGULATIONS. (a) The Department of Labor and Workforce 26 Development and the director of insurance in the Department of Commerce, Community, and 27 Economic Development may proceed to adopt regulations necessary to implement the 28 respective provisions for which each is responsible under this Act. The regulations take effect 29 under AS 44.62 (Administrative Procedure Act), but not before the effective date of the 30 statutory changes. 31 (b) In order to provide for the procedures and other administrative matters necessary
01 to ensure the ongoing implementation of the state's workers' compensation laws to meet the 02 urgent needs of injured workers, and thus ensure the preservation of the public peace, health, 03 safety, or general welfare, the Workers' Compensation Appeals Commission established by 04 AS 23.30.007, enacted by sec. 8 of this Act, may adopt under AS 23.30.008, enacted by sec. 8 05 of this Act, as emergency regulations, the regulations necessary to implement the changes 06 made by this Act. 07 * Sec. 82. The uncodified law of the State of Alaska is amended by adding a new section to 08 read: 09 TRANSITION: MEDICAL SERVICES REVIEW COMMITTEE STUDY, 10 REPORTS, AND RECOMMENDATIONS. (a) The medical services review committee 11 appointed under AS 23.30.095(j), as amended by sec. 34 of this Act, shall proceed to study 12 medical and related benefits provided under AS 23.30 to determine the appropriateness, 13 necessity, and cost of the benefits. 14 (b) The medical services review committee appointed under AS 23.30.095(j), as 15 amended by sec. 34 of this Act, shall assist the Task Force on Workers' Compensation 16 established in sec. 77 of this Act and make recommendations for medical procedure 17 guidelines to the task force, not later than December 1, 2005, which may be included in the 18 written findings and proposed legislation under sec. 77(d)(4) of this Act. 19 * Sec. 83. The uncodified law of the State of Alaska is amended by adding a new section to 20 read: 21 CONDITIONAL EFFECT. AS 23.30.280(i), enacted by sec. 65 of this Act, takes 22 effect only if sec. 76 of this Act receives the two-thirds majority vote of each house required 23 by art. IV, sec. 15, Constitution of the State of Alaska. 24 * Sec. 84. Sections 34, 77, and 81(a) of this Act take effect immediately under 25 AS 01.10.070(c). 26 * Sec. 85. Sections 1, 2, 53, and 82 of this Act take effect September 1, 2005. 27 * Sec. 86. Except as provided in secs. 84 and 85 of this Act, this Act takes effect August 1, 28 2005.