SSSB 112: "An Act relating to the controlled substance prescription database; relating to employer-required drug testing; relating to the office of administrative hearings; relating to the Alaska Workers' Compensation Board; relating to the payment of workers' compensation or benefits; relating to compensable injuries; relating to rehabilitation and reemployment of injured workers; relating to reemployment vouchers; relating to the treatment or care of employees; relating to use of evidence-based treatment guidelines; relating to prescribing or dispensing a controlled substance to an employee for a compensable injury; relating to workers' compensation prehearings; relating to the filing of claims for workers' compensation benefits or petitions for other relief; relating to the burden of proof and credibility of witnesses in workers' compensation matters; relating to attorney fees; relating to the filing of a verified annual report; relating to permanent total disability; relating to temporary total disability; excluding independent contractors from workers' compensation coverage; and providing for an effective date."
00 SPONSOR SUBSTITUTE FOR SENATE BILL NO. 112 01 "An Act relating to the controlled substance prescription database; relating to 02 employer-required drug testing; relating to the office of administrative hearings; 03 relating to the Alaska Workers' Compensation Board; relating to the payment of 04 workers' compensation or benefits; relating to compensable injuries; relating to 05 rehabilitation and reemployment of injured workers; relating to reemployment 06 vouchers; relating to the treatment or care of employees; relating to use of evidence- 07 based treatment guidelines; relating to prescribing or dispensing a controlled substance 08 to an employee for a compensable injury; relating to workers' compensation 09 prehearings; relating to the filing of claims for workers' compensation benefits or 10 petitions for other relief; relating to the burden of proof and credibility of witnesses in 11 workers' compensation matters; relating to attorney fees; relating to the filing of a 12 verified annual report; relating to permanent total disability; relating to temporary total
01 disability; excluding independent contractors from workers' compensation coverage; 02 and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 17.30.200(b), as amended by sec. 38, ch. 2, SSSLA 2017, is amended to 05 read: 06 (b) The pharmacist-in-charge of each licensed or registered pharmacy, 07 regarding each schedule II, III, or IV controlled substance under federal law dispensed 08 by a pharmacist under the supervision of the pharmacist-in-charge, [AND] each 09 practitioner who directly dispenses a schedule II, III, or IV controlled substance under 10 federal law other than those dispensed or administered under the circumstances 11 described in (u) of this section, and each practitioner who prescribes a controlled 12 substance subject to AS 23.30.096 shall submit to the board, by a procedure and in a 13 format established by the board, the following information for inclusion in the 14 database on at least a daily basis: 15 (1) the name of the prescribing practitioner and the practitioner's 16 federal Drug Enforcement Administration registration number or other appropriate 17 identifier; 18 (2) the date of the prescription; 19 (3) the date the prescription was filled and the method of payment; this 20 paragraph does not authorize the board to include individual credit card or other 21 account numbers in the database; 22 (4) the name, address, and date of birth of the person for whom the 23 prescription was written; 24 (5) the name and national drug code of the controlled substance; 25 (6) the quantity and strength of the controlled substance dispensed; 26 (7) the name of the drug outlet dispensing the controlled substance; 27 and 28 (8) the name of the pharmacist or practitioner dispensing the controlled 29 substance and other appropriate identifying information. 30 * Sec. 2. AS 17.30.200(d) is amended to read:
01 (d) The database and the information contained within the database are 02 confidential, are not public records, are not subject to public disclosure, and may not 03 be shared with the federal government. The board shall undertake to ensure the 04 security and confidentiality of the database and the information contained within the 05 database. The board may allow access to the database only to the following persons, 06 and in accordance with the limitations provided and regulations of the board: 07 (1) personnel of the board regarding inquiries concerning licensees or 08 registrants of the board or personnel of another board or agency concerning a 09 practitioner under a search warrant, subpoena, or order issued by an administrative law 10 judge or a court; 11 (2) authorized board personnel or contractors as required for 12 operational and review purposes; 13 (3) a licensed practitioner having authority to prescribe controlled 14 substances or an agent or employee of the practitioner whom the practitioner has 15 authorized to access the database on the practitioner's behalf, to the extent the 16 information relates specifically to a current patient of the practitioner to whom the 17 practitioner is prescribing or considering prescribing a controlled substance; the agent 18 or employee must be licensed or registered under AS 08; 19 (4) a licensed or registered pharmacist having authority to dispense 20 controlled substances or an agent or employee of the pharmacist whom the pharmacist 21 has authorized to access the database on the pharmacist's behalf, to the extent the 22 information relates specifically to a current patient to whom the pharmacist is 23 dispensing or considering dispensing a controlled substance; the agent or employee 24 must be licensed or registered under AS 08; 25 (5) federal, state, and local law enforcement authorities may receive 26 printouts of information contained in the database under a search warrant or order 27 issued by a court establishing probable cause for the access and use of the information; 28 (6) an individual who is the recipient of a controlled substance 29 prescription entered into the database may receive information contained in the 30 database concerning the individual on providing evidence satisfactory to the board that 31 the individual requesting the information is in fact the person about whom the data
01 entry was made and on payment of a fee set by the board under AS 37.10.050 that 02 does not exceed $10; 03 (7) a licensed pharmacist employed by the Department of Health and 04 Social Services who is responsible for administering prescription drug coverage for 05 the medical assistance program under AS 47.07, to the extent that the information 06 relates specifically to prescription drug coverage under the program; 07 (8) a licensed pharmacist, licensed practitioner, or authorized 08 employee of the Department of Health and Social Services responsible for utilization 09 review of prescription drugs for the medical assistance program under AS 47.07, to the 10 extent that the information relates specifically to utilization review of prescription 11 drugs provided to recipients of medical assistance; 12 (9) the state medical examiner, to the extent that the information 13 relates specifically to investigating the cause and manner of a person's death; 14 (10) an authorized employee of the Department of Health and Social 15 Services may receive information from the database that does not disclose the identity 16 of a patient, prescriber, dispenser, or dispenser location, for the purpose of identifying 17 and monitoring public health issues in the state; however, the information provided 18 under this paragraph may include the region of the state in which a patient, prescriber, 19 and dispenser are located and the specialty of the prescriber; [AND] 20 (11) a practitioner, pharmacist, or clinical staff employed by an Alaska 21 tribal health organization, including commissioned corps officers of the United States 22 Public Health Service employed under a memorandum of agreement; in this 23 paragraph, "Alaska tribal health organization" has the meaning given to "tribal health 24 program" in 25 U.S.C. 1603; and 25 (12) a licensed practitioner, for the purpose of reporting to an 26 insurer, self-insured employer, or the Alaska Workers' Compensation Board 27 under AS 23.30.096. 28 * Sec. 3. AS 23.05.067(e) is amended to read: 29 (e) Annual service fees and civil penalties collected under this section shall be 30 deposited in the workers' safety and compensation administration account in the state 31 treasury. Under AS 37.05.146(c), the service fees and civil penalties shall be
01 accounted for separately, and appropriations from the account are not made from the 02 unrestricted general fund. The legislature may appropriate money from the account for 03 expenditures by the office of administrative hearings (AS 44.64.010) for necessary 04 costs incurred for administrative hearings required under AS 23.30 and by the 05 department for necessary costs incurred by the department in the administration of the 06 workers' safety programs contained in AS 18.60 and of the Alaska Workers' 07 Compensation Act contained in AS 23.30. Nothing in this subsection creates a 08 dedicated fund or dedicates the money in the account for a specific purpose. Money 09 deposited in the account does not lapse at the end of a fiscal year unless otherwise 10 provided by an appropriation. 11 * Sec. 4. AS 23.10.620 is amended by adding a new subsection to read: 12 (g) In addition to the tests required under (c) and (d) of this section, an 13 employer may require an employee to undergo drug testing under AS 23.30.096(b)(3) 14 if the employee has been prescribed a controlled substance described in 15 AS 17.30.200(a) by a physician under AS 23.30.096. 16 * Sec. 5. AS 23.30.001 is amended to read: 17 Sec. 23.30.001. Legislative intent. It is the intent of the legislature that 18 (1) this chapter be interpreted so as to ensure the quick, efficient, fair, 19 and predictable delivery of indemnity and medical benefits to injured workers at a 20 reasonable cost to the employers who are subject to the provisions of this chapter; 21 (2) workers' compensation cases shall be decided on their merits 22 except where otherwise provided by statute; 23 (3) this chapter may not be construed by the board, commission, 24 office of administrative hearings, and any reviewing courts in favor of a party; 25 (4) hearings in workers' compensation cases shall be impartial and fair 26 to all parties and that all parties shall be afforded due process and an opportunity to be 27 heard and for their arguments and evidence to be fairly considered; 28 (5) this chapter be strictly construed by the board, commission, 29 office of administrative hearings, and any reviewing courts; 30 (6) in determining whether a party has met the burden of proof on 31 an issue, the board, commission, office of administrative hearings, and any
01 reviewing courts weigh the evidence impartially and without presumption in 02 favor of a party except where otherwise provided by statute; 03 (7) the workers' compensation system be cost-effective to the 04 citizens of the state. 05 * Sec. 6. AS 23.30.005(a) is amended to read: 06 (a) The Alaska Workers' Compensation Board consists of two public [A 07 SOUTHERN PANEL OF THREE] members representing [SITTING FOR] the first 08 judicial district, two public [NORTHERN PANELS OF THREE] members 09 representing [SITTING FOR] the second and fourth judicial districts, eight public 10 [FIVE SOUTHCENTRAL PANELS OF THREE] members representing [EACH 11 SITTING FOR] the third judicial district, and includes [ONE PANEL OF THREE 12 MEMBERS THAT MAY SIT IN ANY JUDICIAL DISTRICT. EACH PANEL 13 MUST INCLUDE] the commissioner of labor and workforce development. The 14 public members in each judicial district must equally consist of representatives of 15 industry and [OR A HEARING OFFICER DESIGNATED TO REPRESENT THE 16 COMMISSIONER, A REPRESENTATIVE OF INDUSTRY, AND A 17 REPRESENTATIVE OF] labor. The public members [LATTER TWO MEMBERS 18 OF EACH PANEL] shall be appointed by the governor and are subject to 19 confirmation by a majority of the members of the legislature in joint session. The 20 board shall by regulation provide procedures to avoid conflicts and the appearance of 21 impropriety in hearings. 22 * Sec. 7. AS 23.30.005(b) is amended to read: 23 (b) The commissioner shall act as chair and executive officer of the board and 24 chair of any hearing [EACH] panel. The commissioner may designate a 25 representative to act for the commissioner as chair and executive officer of the board. 26 The commissioner may designate hearing officers to serve as chairs of panels for 27 hearing settlement agreements under AS 23.30.012 or claims arising under 28 AS 23.30.015 or 23.30.247. These hearings may be by telephonic means and do 29 not need to be held in the judicial district where the injury occurred [CLAIMS]. 30 * Sec. 8. AS 23.30.005(c) is amended to read: 31 (c) [THE GOVERNOR SHALL APPOINT THE MEMBERS OF THE
01 PANELS.] Each member, except the commissioner of labor and workforce 02 development, serves a term of three years. The term of a management member and the 03 term of a labor member of each panel may not expire in the same year. The 04 management and labor members are entitled to compensation in the amount of $50 a 05 day for each day or portion of a day spent in actual meeting or on authorized official 06 business incidental to their duties and to all other transportation and per diem as 07 provided by law. 08 * Sec. 9. AS 23.30.005(e) is amended to read: 09 (e) A member of one judicial district [PANEL] may serve on any 10 [ANOTHER] panel [WHEN THE COMMISSIONER CONSIDERS IT NECESSARY 11 FOR THE PROMPT ADMINISTRATION OF THIS CHAPTER. TRANSFERS 12 SHALL BE ALLOWED ONLY IF A LABOR OR MANAGEMENT 13 REPRESENTATIVE REPLACES A COUNTERPART ON THE OTHER PANEL]. 14 * Sec. 10. AS 23.30.005(g) is amended to read: 15 (g) A claim or petition for other relief must be heard by administrative 16 law judges from the office of administrative hearings on a rotating basis and 17 these proceedings will be subject to AS 44.62 (Administrative Procedure Act), 18 except as otherwise provided in this chapter [MAY BE HEARD BY ONLY ONE 19 PANEL]. 20 * Sec. 11. AS 23.30.005(h) is amended to read: 21 (h) The department [SHALL ADOPT RULES FOR ALL PANELS, AND 22 PROCEDURES FOR THE PERIODIC SELECTION, RETENTION, AND 23 REMOVAL OF BOTH REHABILITATION SPECIALISTS AND PHYSICIANS 24 UNDER AS 23.30.041 AND 23.30.095, AND] shall adopt regulations to carry out the 25 provisions of this chapter, except on matters over which AS 44.62 (Administrative 26 Procedure Act) controls [. THE DEPARTMENT MAY BY REGULATION 27 PROVIDE FOR PROCEDURAL, DISCOVERY, OR STIPULATED MATTERS TO 28 BE HEARD AND DECIDED BY THE COMMISSIONER OR A HEARING 29 OFFICER DESIGNATED TO REPRESENT THE COMMISSIONER RATHER 30 THAN A PANEL. IF A PROCEDURAL, DISCOVERY, OR STIPULATED 31 MATTER IS HEARD AND DECIDED BY THE COMMISSIONER OR A
01 HEARING OFFICER DESIGNATED TO REPRESENT THE COMMISSIONER, 02 THE ACTION TAKEN IS CONSIDERED THE ACTION OF THE FULL BOARD 03 ON THAT ASPECT OF THE CLAIM. PROCESS AND PROCEDURE UNDER 04 THIS CHAPTER SHALL BE AS SUMMARY AND SIMPLE AS POSSIBLE. THE 05 DEPARTMENT, THE BOARD OR A MEMBER OF IT MAY FOR THE 06 PURPOSES OF THIS CHAPTER SUBPOENA WITNESSES, ADMINISTER OR 07 CAUSE TO BE ADMINISTERED OATHS, AND MAY EXAMINE OR CAUSE TO 08 HAVE EXAMINED THE PARTS OF THE BOOKS AND RECORDS OF THE 09 PARTIES TO A PROCEEDING THAT RELATE TO QUESTIONS IN DISPUTE]. 10 The superior court, upon [ON] application of the department, the board or any 11 members of it, or the office of administrative hearings shall enforce the attendance 12 and testimony of witnesses and the production and examination of books, papers, and 13 records. 14 * Sec. 12. AS 23.30.005(i) is amended to read: 15 (i) The department may adopt regulations concerning the medical care 16 provided for in this chapter. In addition to the reports required of physicians under 17 AS 23.30.095(a) - (d), the board may direct a physician or hospital rendering medical 18 treatment or service under this chapter to furnish to the board or office of 19 administrative hearings periodic reports of treatment or services on forms procured 20 from the board. 21 * Sec. 13. AS 23.30.005(j) is amended to read: 22 (j) The board may also arrange to have hearings held by the commission, 23 officer, or tribunal having authority to hear cases arising under the workers' 24 compensation law of any other state, of the District of Columbia, or of any territory of 25 the United States. The testimony and proceedings at the hearing shall be reported to 26 the board and are a part of the record in the case. Evidence taken at the hearing is 27 subject to rebuttal upon final hearing before the office of administrative hearings 28 [BOARD]. 29 * Sec. 14. AS 23.30.007(a) is amended to read: 30 (a) There is established in the Department of Labor and Workforce 31 Development the Workers' Compensation Appeals Commission. The commission has
01 jurisdiction to hear appeals from final decisions and orders of the board and the office 02 of administrative hearings under this chapter. Jurisdiction of the commission is 03 limited to administrative appeals arising under this chapter. 04 * Sec. 15. AS 23.30.008(a) is amended to read: 05 (a) The commission shall be the exclusive and final authority for the hearing 06 and determination of all questions of law and fact arising under this chapter in those 07 matters that have been appealed to the commission, except for an appeal to the Alaska 08 Supreme Court. The commission does not have jurisdiction in any case that does not 09 arise under this chapter or in any criminal case. On any matter taken to the 10 commission, the decision of the commission is final and conclusive, unless appealed 11 to the Alaska Supreme Court, and shall stand in lieu of the order of the office of 12 administrative hearings [BOARD] from which the appeal was taken. Unless 13 reversed by the Alaska Supreme Court, decisions of the commission have the force of 14 legal precedent. 15 * Sec. 16. AS 23.30.008(b) is amended to read: 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 office of administrative hearings, and the board. 19 The chair of the commission may review and circulate among the other members of 20 the relevant commission appeal panel the drafts of the panel's formal decisions and 21 decisions upon reconsideration. The drafts are confidential documents and are not 22 subject to disclosure. 23 * Sec. 17. AS 23.30.010(a) is repealed and reenacted to read: 24 (a) The employer shall pay compensation or furnish benefits required by this 25 chapter if the employee suffers an accidental compensable injury or death arising out 26 of work performed in the course and the scope of employment. The injury, its 27 occupational cause, and any resulting manifestations or disability must be established 28 to a reasonable degree of medical certainty, based on relevant objective medical 29 evidence, and the accidental compensable injury must be the major contributing cause 30 of any resulting condition, disability, or need for medical treatment. In cases involving 31 occupational disease or repetitive exposure, both causation and sufficient exposure to
01 support causation must be proven by clear and convincing evidence. Under this 02 chapter, pain or other subjective complaints are not compensable in the absence of 03 objective relevant medical evidence that correlate to the subjective complaints of the 04 injured employee and are confirmed by physical examination findings or diagnostic 05 testing. The causal relationship between a compensable accident and injuries or 06 conditions that are not readily observable must be established through medical 07 evidence by physical examination findings or diagnostic testing. 08 * Sec. 18. AS 23.30.010 is amended by adding new subsections to read: 09 (c) This chapter does not require the payment of compensation or benefits for 10 a subsequent injury the employee suffers as a result of an original injury arising out of 11 and in the course of employment unless the original injury is the major contributing 12 cause of the subsequent injury. 13 (d) If an injury arising out of and in the course of employment aggravates or 14 combines with a preexisting disease or condition to cause or prolong a condition, 15 disability, or the need for treatment, the employer shall pay compensation or benefits 16 required under this chapter to the extent that the injury arising out of and in the course 17 of employment is and remains the major contributing cause of the disability or need 18 for treatment. 19 (e) To be considered the major contributing cause under this chapter, the 20 compensable injury must be more than 50 percent responsible for the injury as 21 compared to all other causes combined for which treatment or benefits are sought and 22 may be demonstrated only by objective medical evidence. 23 * Sec. 19. AS 23.30.015(b) is amended to read: 24 (b) Acceptance of compensation under an award in a compensation order filed 25 by the office of administrative hearings [BOARD] operates as an assignment to the 26 employer of all rights of the person entitled to compensation and the personal 27 representative of a deceased employee to recover damages from the third person 28 unless the person or representative entitled to compensation commences an action 29 against the third person within one year after an award. 30 * Sec. 20. AS 23.30.015(e) is amended to read: 31 (e) An amount recovered by the employer under an assignment, whether by
01 action or compromise, shall be distributed as follows: 02 (1) the employer shall retain an amount equal to 03 (A) the expenses incurred by the employer with respect to the 04 action or compromise, including a reasonable attorney fee determined by the 05 office of administrative hearings [BOARD]; 06 (B) the cost of all benefits actually furnished by the employer 07 under this chapter; 08 (C) all amounts paid as compensation and second-injury fund 09 payments, and if the employer is self-insured or uninsured, all service fees paid 10 under AS 23.05.067; 11 (D) the present value of all amounts payable later as 12 compensation, computed from a schedule prepared by the office of 13 administrative hearings [BOARD], and the present value of the cost of all 14 benefits to be furnished later under AS 23.30.095 as estimated by the office of 15 administrative hearings [BOARD]; the amounts so computed and estimated 16 shall be retained by the employer as a trust fund to pay compensation and the 17 cost of benefits as they become due and to pay any finally remaining excess 18 sum to the person entitled to compensation or to the representative; and 19 (2) the employer shall pay any excess to the person entitled to 20 compensation or to the representative of that person. 21 * Sec. 21. AS 23.30.030(6) is amended to read: 22 (6) All claims for compensation, death benefits, physician's fees, 23 nurse's charges, hospital services, hospital supplies, medicines, prosthetic devices, 24 transportation charges to the nearest point where adequate medical facilities are 25 available, and burial expenses may be made directly against either the employer or the 26 insurer, or both, and the order or award of the office of administrative hearings 27 [BOARD] may be made against either the employer or the insurer or both. 28 * Sec. 22. AS 23.30.040(a) is amended to read: 29 (a) There is created a second injury fund, administered by the commissioner. 30 Money in the second injury fund may only be paid for the benefit of those persons 31 entitled to payment of benefits from the second injury fund under this chapter.
01 Payments from the second injury fund must be made by the commissioner in 02 accordance with the orders and awards of the office of administrative hearings 03 [BOARD]. 04 * Sec. 23. AS 23.30.040(d) is amended to read: 05 (d) The office of administrative hearings [BOARD] may refund a payment 06 made into the second injury fund if the employer or insurance carrier shows that it 07 made the payment by mistake or inadvertence, or if it shows there existed at the time 08 of the death of the employee a beneficiary entitled to benefits under AS 23.30.215. 09 * Sec. 24. AS 23.30.041 is repealed and reenacted to read: 10 Sec. 23.30.041. Rehabilitation and reemployment of injured workers. (a) 11 The director shall select and employ a reemployment benefits administrator. The 12 director may authorize the administrator to select and employ additional staff. The 13 administrator is in the partially exempt service under AS 39.25.120. 14 (b) The administrator shall enforce regulations adopted by the board to 15 implement this section. 16 (c) If the employee is medically stable, the injury causes a permanent partial 17 impairment rating equal to or greater than five percent, and the employee's attending 18 physician or employer independent physician has determined that the employee will 19 be permanently incapable of returning to the employee's occupation at the time of 20 injury upon review of a job description prepared in accordance with the most recent 21 version of the United States Department of Labor's "Selected Characteristics of 22 Occupations Defined in the Revised Dictionary of Occupational Titles." The employee 23 shall be entitled to a reemployment voucher as provided in this section, unless the 24 employer makes an offer of suitable alternative employment that meets the following 25 criteria: 26 (1) the offer is made within 90 days after receiving the first report from 27 the employee's attending physician or employer independent physician, on a form 28 created by the board, that the employee is medically stable, has a permanent partial 29 impairment rating equal to or greater than five percent, and will be permanently 30 incapable of returning to the employee's occupation at the time of injury, as described 31 in accordance with the most recent version of the United States Department of Labor's
01 "Selected Characteristics of Occupations Defined in the Revised Dictionary of 02 Occupational Titles"; 03 (2) if the employer or claims adjuster has provided the physician with a 04 job description of the employer's proposed modified work, or proposed alternative 05 work, the physician shall indicate whether the employee has the physical or mental 06 requirements to perform the duties described in that job description; and 07 (3) the offer is for regular work, modified work, or alternative work 08 that will last at least 12 months and pay the employee at least 75 percent of wages 09 earned at the time of injury. 10 (d) If an offer of suitable work cannot be timely made, the employer or claims 11 adjuster shall issue a voucher, on a form prescribed by the board, within 14 days after 12 expiration of the 90-day deadline for making an offer of suitable alternative 13 employment under (c) of this section. 14 (e) An employee may receive a reemployment voucher after the employee 15 attains medical stability, receives a permanent partial impairment rating equal to or 16 greater than five percent from the employee's attending physician or employer's 17 independent physician, and the employee's attending physician or employer's 18 independent physician determines that the employee is permanently incapable of 19 returning to the employee's occupation at the time of injury as determined under (c) of 20 this section, based on the following amounts: 21 (1) $18,000 if the permanent partial impairment rating is five percent 22 or more but less than 15 percent; 23 (2) $23,000 if the permanent partial impairment rating is 15 percent or 24 more, but less than 30 percent; or 25 (3) $28,000 if the permanent partial impairment rating is 30 percent or 26 more. 27 (f) A voucher issued under this section may be applied toward a retraining 28 program chosen by the employee. The voucher may be used for payment of tuition, 29 fees, books, tools, and other expenses required by the school, institution, or 30 educational organization for retraining or skill enhancement. The board shall adopt 31 regulations governing the form of payment, direct payment to the school, institution,
01 or educational organization, reimbursement to the employee upon presentation to the 02 employer of appropriate documentation and receipts, and other matters necessary to 03 administer the reemployment benefit. 04 (g) Up to $1,000 of a voucher issued under this section may be paid as a 05 miscellaneous expense, reimbursement, or advance payable to the employee upon 06 request and without need for itemized documentation or accounting. An amount 07 greater than $1,000 must be agreed upon by the parties. The employee will not be 08 entitled to a voucher payment for transportation, travel expenses, telephone or Internet 09 access, clothing, uniforms, or other incidental expenses. 10 (h) A voucher under this section expires two years after the date the voucher is 11 furnished to the employee or five years after the date of injury. The employee will not 12 be entitled to payment or reimbursement of any expenses that have not been incurred 13 and submitted with appropriate documentation to the employer after the reemployment 14 voucher expiration date. If the employee requests, in writing on a form prescribed by 15 the board, assistance in helping the employee identify or develop a plan, the employer 16 or claims adjuster shall, within 30 days, provide the employee with a vocational 17 rehabilitation specialist of the employer's or claims adjuster's choice to provide 18 vocational rehabilitation counseling to the employee. The vocational rehabilitation 19 specialist may not be paid more than 15 percent of the voucher amount to provide 20 counseling to the employee and must be paid by the employer in addition to the 21 reemployment voucher amount under (e) of this section. The employee shall cooperate 22 and stay in contact with the vocational rehabilitation specialist on a full-time basis, as 23 an extension of time of the deadline under (h) of this section is not allowed. The 24 vocational rehabilitation specialist shall meet with the employee and perform the work 25 necessary to assist the employee in returning to work or retraining counseling within 26 30 days of assignment. It is not the duty of the vocational rehabilitation specialist to 27 prepare a formal vocational rehabilitation plan or to secure employment for the 28 employee. 29 (i) The voucher amounts under (e) of this section may not be paid to the 30 employee, except as provided under (f) of this section, and may not be calculated into 31 any settlement figures as part of any compromise and release.
01 (j) An employer may not be liable for compensation for injuries incurred by 02 the employee while using a voucher issued under this section. 03 (k) The employee may not be entitled to any further remuneration, wage 04 replacement, or other indemnity benefit while undergoing retraining, other than the 05 lump-sum payment of permanent partial impairment under AS 23.30.190. 06 (l) The employer or claims adjuster may select a vocational rehabilitation 07 specialist to prepare job descriptions under this section. Before using the job 08 descriptions under (c) of this section, the vocational rehabilitation specialist shall 09 submit the job descriptions chosen for the employee for the employee's agreement to 10 the employee. If the employee does not agree with the job descriptions chosen for use 11 under (c) of this section, the employee shall file a request for review on a form 12 prescribed by the board to the administrator within seven days after receiving the job 13 descriptions. The administrator shall review, and issue an order either approving or 14 disapproving, the descriptions chosen for use under (c) of this section within 10 days 15 and, in the order, state which job descriptions are appropriate according to the most 16 recent version of the United States Department of Labor's "Selected Characteristics of 17 Occupations Defined in the Revised Dictionary of Occupational Titles." If the 18 employee or the administrator fails to meet the deadlines under this subsection, the job 19 descriptions chosen by the vocational rehabilitation specialist will be considered 20 appropriate. If a dispute arises regarding the job descriptions under (c) of this section, 21 the 90-day deadline under (c) of this section shall be tolled until the deadlines under 22 this subsection have been exhausted. 23 (m) An employee may not receive permanent total disability benefits under 24 AS 23.30.180 if the employee 25 (1) rejects or fails to accept, in the form and manner prescribed by the 26 board, suitable alternative employment under (c) of this section; or 27 (2) qualifies for a voucher under this section and fails to use the 28 voucher. 29 (n) In this section, 30 (1) "administrator" means the reemployment benefits administrator 31 under (a) of this section;
01 (2) "rehabilitation specialist" means a person who is a certified 02 vocational rehabilitation specialist, a certified rehabilitation counselor, or a person 03 who has equivalent or better qualifications as determined under regulations adopted by 04 the department. 05 * Sec. 25. AS 23.30.070(f) is amended to read: 06 (f) An employer who fails or refuses to send a report required of the employer 07 by this section or who fails or refuses to send the report required by (a) of this section 08 within the time required shall, if so required by the office of administrative hearings 09 [BOARD], pay the employee or the legal representative of the employee or other 10 person entitled to compensation by reason of the employee's injury or death an 11 additional award equal to 20 percent of the amounts that were unpaid when due. The 12 award shall be against either the employer or the insurance carrier, or both. 13 * Sec. 26. AS 23.30.095(a) is amended to read: 14 (a) The employer shall furnish medical, surgical, and other attendance or 15 treatment, nurse and hospital service, medicine, crutches, and apparatus for the injury 16 in accordance with evidence-based treatment guidelines based on the most recent 17 version of the American College of Occupational and Environmental Medicine's 18 Occupational Medicine Practice Guidelines published by Reed Group. If medical 19 treatment outside the evidence-based treatment guidelines is recommended to the 20 employee, the employer or insurer may request that the office of administrative 21 hearings appoint a third party to conduct an independent utilization review and 22 make recommendations to the office of administrative hearings on the treatment 23 recommended for the employee. If medical treatment is recommended after two 24 years from the date of injury to the employee, the employee may not be afforded 25 the presumption of compensability under AS 23.30.120(a), but [PERIOD WHICH 26 THE NATURE OF THE INJURY OR THE PROCESS OF RECOVERY REQUIRES, 27 NOT EXCEEDING TWO YEARS FROM AND AFTER THE DATE OF INJURY 28 TO THE EMPLOYEE. HOWEVER, IF THE CONDITION REQUIRING THE 29 TREATMENT, APPARATUS, OR MEDICINE IS A LATENT ONE, THE TWO- 30 YEAR PERIOD RUNS FROM THE TIME THE EMPLOYEE HAS KNOWLEDGE 31 OF THE NATURE OF THE EMPLOYEE'S DISABILITY AND ITS
01 RELATIONSHIP TO THE EMPLOYMENT AND AFTER DISABLEMENT. IT 02 SHALL BE ADDITIONALLY PROVIDED THAT, IF CONTINUED TREATMENT 03 OR CARE OR BOTH BEYOND THE TWO-YEAR PERIOD IS INDICATED,] the 04 injured employee has the right of review by the office of administrative hearings 05 [BOARD]. The office of administrative hearings [BOARD] may authorize 06 continued treatment or care or both, as the process of recovery may require, for up to 07 an additional two years upon clear and convincing evidence that the continued 08 treatment or care is necessary. When medical care is required, the injured employee 09 may designate a licensed physician to provide all medical and related benefits. Any 10 time after acceptance of liability by an employer or insurer, the employer or 11 insurer may designate a different attending physician. Designation by the 12 employer or insurer of an attending physician does not constitute the employer's 13 or insurer's right to an employer independent medical examination under (e) of 14 this section. The employee may not make more than one change in the employee's 15 choice of attending physician without the written consent of the employer. Referral to 16 a specialist by the employee's attending physician is not considered a change in 17 physicians, but a referral to a specialist by the employee's attending physician 18 within the same specialty is considered a change in physician. Upon procuring the 19 services of a physician, the injured employee shall give proper notification of the 20 selection to the employer within a reasonable time after first being treated. Notice of a 21 change in the attending physician shall be given before the change. After expiration 22 of an additional two years for continued treatment or care under this subsection, 23 no further medical treatment may be authorized except for 24 (1) prosthetic devices, braces, and supports; 25 (2) non-narcotic prescription medications; 26 (3) narcotic prescription medications necessary to allow the 27 employee to continue to work or participate in vocational rehabilitation; 28 (4) services necessary to monitor the status, replacement, or repair 29 of prosthetic devices, braces, and supports or to prescribe prescription 30 medications under (2) or (3) of this subsection; and 31 (5) life-preserving modalities similar to insulin therapy, dialysis,
01 and transfusions, if related to the claimed injury or exposure. 02 * Sec. 27. AS 23.30.095(c) is amended to read: 03 (c) A claim for medical or surgical treatment, or treatment requiring 04 continuing and multiple treatments of a similar nature, is not valid and enforceable 05 against the employer unless, within 14 days following treatment, the physician or 06 health care provider giving the treatment or the employee receiving it furnishes to the 07 employer and the office of administrative hearings [BOARD] notice of the injury 08 and treatment, preferably on a form prescribed by the board. The office of 09 administrative hearings [BOARD] shall, however, excuse the failure to furnish 10 notice within 14 days when it finds it to be in the interest of justice to do so, and it 11 may, upon application by a party in interest, make an award for the reasonable value 12 of the medical or surgical treatment so obtained by the employee. When a claim is 13 made for a course of treatment requiring continuing and multiple treatments of a 14 similar nature, in addition to the notice, the physician or health care provider shall 15 furnish a written treatment plan if the course of treatment will require more frequent 16 outpatient visits than the standard treatment frequency for the nature and degree of the 17 injury and the type of treatments. The treatment plan shall be furnished to the 18 employee and the employer within 14 days after treatment begins. The treatment plan 19 must include objectives, modalities, frequency of treatments, and reasons for the 20 frequency of treatments. If the treatment plan is not furnished as required under this 21 subsection, neither the employer nor the employee may be required to pay for 22 treatments [THAT EXCEED THE FREQUENCY STANDARD. THE BOARD 23 SHALL ADOPT REGULATIONS ESTABLISHING STANDARDS FOR 24 FREQUENCY OF TREATMENT]. 25 * Sec. 28. AS 23.30.095(d) is amended to read: 26 (d) If, at any time during the period the employee unreasonably refuses to 27 submit to medical or surgical treatment or appropriate diagnostic tests, the office of 28 administrative hearings [BOARD] may by order suspend the payment of further 29 compensation while the refusal continues, and no compensation may be paid at any 30 time during the period of suspension, unless the circumstances justified the refusal. 31 * Sec. 29. AS 23.30.095(e) is amended to read:
01 (e) The employee shall, after an injury, at reasonable times during the 02 continuance of the disability, if requested by the employer or when ordered by the 03 office of administrative hearings [BOARD], submit to an examination by a 04 physician, [OR] surgeon, or mental health provider of the employer's choice 05 authorized to practice medicine under the laws of the jurisdiction in which the 06 examination occurs, furnished and paid for by the employer. The employer may not 07 make more than one change in the employer's choice of a physician or surgeon 08 without the written consent of the employee. Referral to a specialist by the employer's 09 physician is not considered a change in physicians. An examination requested by the 10 employer not less than 14 days after injury, and every 60 days thereafter, shall be 11 presumed to be reasonable, and the employee shall submit to the examination without 12 further request or order by the office of administrative hearings [BOARD]. Unless 13 medically appropriate, the physician shall use existing diagnostic data to complete the 14 examination. Facts relative to the injury or claim communicated to or otherwise 15 learned by a physician or surgeon who may have attended or examined the employee, 16 or who may have been present at an examination are not privileged, either in the 17 hearings provided for in this chapter or an action to recover damages against an 18 employer who is subject to the compensation provisions of this chapter. If an 19 employee refuses to submit to an examination provided for in this section, the 20 employee's rights to compensation shall be suspended until the obstruction or refusal 21 ceases, and the employee's compensation during the period of suspension may, in the 22 discretion of the office of administrative hearings [BOARD] or the court 23 determining an action brought for the recovery of damages under this chapter, be 24 forfeited. The office of administrative hearings [BOARD] in any case of death may 25 require an autopsy at the expense of the party requesting the autopsy. An autopsy may 26 not be held without notice first being given to the widow or widower or next of kin if 27 they reside in the state or their whereabouts can be reasonably ascertained, of the time 28 and place of the autopsy and reasonable time and opportunity given the widow or 29 widower or next of kin to have a representative present to witness the autopsy. If 30 adequate notice is not given, the findings from the autopsy may be suppressed on 31 motion made to the office of administrative hearings [BOARD] or to the superior
01 court, as the case may be. 02 * Sec. 30. AS 23.30.095(h) is amended to read: 03 (h) Upon the filing with the office of administrative hearings [DIVISION] 04 by a party in interest of a claim or other pleading, all parties to the proceeding shall 05 file with the office of administrative hearings, [MUST IMMEDIATELY, OR IN 06 ANY EVENT] within 30 [FIVE] days after service of the pleading, [SEND TO THE 07 DIVISION] the original signed reports of all physicians relating to the proceedings 08 that they may have in their possession or under their control, and copies of the reports 09 shall be served by the party immediately on any adverse party. There is a continuing 10 duty on all parties to file and serve all the reports during the pendency of the 11 proceeding. 12 * Sec. 31. AS 23.30.095(j) is amended to read: 13 (j) The commissioner shall appoint a medical services review committee to 14 assist and advise the department, the board, and the office of administrative 15 hearings [BOARD] in matters involving the appropriateness, necessity, and cost of 16 medical and related services provided under this chapter. The medical services review 17 committee shall consist of nine members to be appointed by the commissioner as 18 follows: 19 (1) one member who is a member of the Alaska State Medical 20 Association; 21 (2) one member who is a member of the Alaska Chiropractic Society; 22 (3) one member who is a member of the Alaska State Hospital and 23 Nursing Home Association; 24 (4) one member who is a health care provider, as defined in 25 AS 09.55.560; 26 (5) four public members who are not within the definition of "health 27 care provider" in AS 09.55.560; and 28 (6) one member who is the designee of the commissioner and who 29 shall serve as chair. 30 * Sec. 32. AS 23.30.095(o) is amended to read: 31 (o) Notwithstanding (a) of this section, an employer is not liable for palliative
01 care after the date of medical stability unless the palliative care is consistent with the 02 evidence-based treatment guidelines established in (a) of this section 03 [REASONABLE] and necessary [(1)] to enable the employee to continue in the 04 employee's employment at the time of treatment [, (2) TO ENABLE THE 05 EMPLOYEE TO CONTINUE TO PARTICIPATE IN AN APPROVED 06 REEMPLOYMENT PLAN, OR (3) TO RELIEVE CHRONIC DEBILITATING 07 PAIN]. A claim for palliative care is not valid and enforceable unless it is 08 accompanied by a certification of the attending physician that the palliative care meets 09 the requirements of this subsection. A claim for palliative care is subject to the 10 requirements of (c) - (n) of this section. [IF A CLAIM FOR PALLIATIVE CARE IS 11 CONTROVERTED BY THE EMPLOYER, THE BOARD MAY REQUIRE AN 12 EVALUATION UNDER (k) OF THIS SECTION REGARDING THE DISPUTED 13 PALLIATIVE CARE.] A claim for palliative care may be heard by the office of 14 administrative hearings [BOARD] under AS 23.30.110. 15 * Sec. 33. AS 23.30.095 is amended by adding new subsections to read: 16 (p) An entity that provides durable medical equipment, prosthetics, orthotics, 17 or supplies to an employee must be accredited by an accreditation organization 18 approved by the federal Centers for Medicare and Medicaid Services. If a medical 19 provider provides durable medical equipment, prosthetics, orthotics, or supplies 20 ancillary to the employee's visit, reimbursement or payment by the employer or 21 insurer may not exceed 10 percent of the cost of the durable medical equipment, 22 prosthetics, orthotics, or supplies. 23 (q) If prescription drugs are dispensed by a medical provider as part of the 24 medical treatment provided to an employee, the employer or insurer may only be 25 required to pay the lesser of the 26 (1) reimbursement amount specified under the schedule of fees 27 adopted by the director; 28 (2) reimbursement amount for prescription drugs obtained by mail 29 order; or 30 (3) cost of the prescription if obtained at a pharmacy. 31 * Sec. 34. AS 23.30 is amended by adding a new section to read:
01 Sec. 23.30.096. Controlled substances. (a) Within two business days after 02 prescribing or dispensing a supply of 30 or more days of a controlled substance 03 described in AS 17.30.200(a) to an employee for a compensable injury, a physician 04 shall submit a report to the Board of Pharmacy under AS 17.30.200 and request the 05 employee's prescription information that is compiled and maintained under 06 AS 17.30.200. Notwithstanding AS 17.30.200(d), the physician shall report the results 07 to the employer and office of administrative hearings as soon as practicable, but not 08 later than 30 days after the date of the inquiry. Thereafter, the employer or office of 09 administrative hearings may, not more than once every two months, request that the 10 physician make additional inquiries to the Board of Pharmacy under AS 17.30.200. 11 (b) A physician shall include in a report required under (a) of this section 12 (1) the employee's prescription information, including the 13 (A) off-label use of a narcotic, opium-based controlled 14 substance, or other controlled substance described in AS 17.30.200(a) 15 prescribed to the employee; 16 (B) use of a narcotic or opium-based controlled substance or 17 the prescription of a combination of narcotics or opium-based controlled 18 substances at or exceeding a 120 milligram morphine equivalent dose a day; 19 and 20 (C) prescription of a long-acting or controlled-release opioid 21 for acute pain; 22 (2) the justification for the use of the controlled substance and a 23 treatment plan that includes a description of measures that the physician will 24 implement to monitor and prevent the development of abuse, dependence, addiction, 25 or diversion by the employee; and 26 (3) a medication agreement, a plan for subsequent follow-up visits, 27 random drug testing, and documentation that the medication regime is providing relief 28 that is demonstrated by clinically meaningful improvement in function. 29 (c) The results of any drug test ordered under (b)(3) of this section must be 30 included in the medical records of the employee. 31 (d) If a drug test under (b)(3) of this section reveals inconsistent results, the
01 physician shall, within five business days after receiving the inconsistent results, 02 provide a written report to the employer and office of administrative hearings setting 03 out a treatment plan to address the inconsistent drug test results. 04 (e) If the result of an inquiry to the Board of Pharmacy under (a) of this 05 section reveals that the employee is receiving a controlled substance described in 06 AS 17.30.200(a) from another undisclosed health care provider, the physician shall, 07 within five business days after receiving the results, on a form prescribed by the board, 08 report the results to the employer. 09 (f) If an employee resides outside the state and receives treatment from an out- 10 of-state physician for a compensable injury, the employer is not liable for providing 11 prescription medications that require reporting under this section if the out-of-state 12 physician fails to comply with this section. If the other state has a controlled 13 substances monitoring program, the out-of-state physician shall submit an inquiry to 14 the out-of-state database and report to the employer and office of administrative 15 hearings as prescribed under this section. 16 (g) This section does not apply to prescription medications administered to the 17 employee while the employee is receiving inpatient hospital treatment. 18 (h) The employer or office of administrative hearings may require a physician 19 to comply with this section, notwithstanding the existence of a prior award addressing 20 medical maintenance benefits for prescription medications. An insurer or employer is 21 not liable for bad faith or unfair claims processing under AS 21.36 for an act taken in 22 compliance with or consistent with this section. 23 (i) If a physician fails to comply with this section, 24 (1) the employer is not liable for payment of the physician's services 25 until the physician complies with this section; and 26 (2) the employer may request a change of physician after making a 27 written request to the physician to comply with this section and identifying the area of 28 noncompliance; if a change of physician is ordered and the order becomes final, the 29 employee shall select a physician whose practice includes pain management and who 30 agrees to comply with this section. 31 (j) In this section,
01 (1) "clinically meaningful improvement in function" means 02 (A) a clinically documented improvement in range of motion; 03 (B) an objective increase in the performance of activities of 04 daily living; or 05 (C) a return to gainful employment. 06 (2) "inconsistent results" means 07 (A) the employee's reported medications or the parent drugs or 08 metabolites are not detected; or 09 (B) controlled substances are detected that are not reported by 10 the employee; 11 (3) "off-label use" means use of a prescription medication by a 12 physician to treat a condition other than the use for which the drug was approved by 13 the United States Food and Drug Administration. 14 * Sec. 35. AS 23.30.097(d) is amended to read: 15 (d) Payment for medical treatment under this chapter, excluding 16 prescription charges or transportation for medical treatment, is not due 17 immediately or on demand. An employer shall pay an employee's bills for medical 18 treatment under this chapter, excluding prescription charges or transportation for 19 medical treatment, within 30 days after the date that the employer receives the 20 provider's bill and [OR] a completed report as required by AS 23.30.095(c), 21 regardless of whether the employer has earlier notice that medical treatment has 22 been prescribed for the employee [WHICHEVER IS LATER]. 23 * Sec. 36. AS 23.30.097(g) is amended to read: 24 (g) Unless the employer controverts a charge, the employer shall reimburse an 25 employee's prescription charges under this chapter within 30 days after the employer 26 receives the employee's request for reimbursement, the health care provider's 27 completed report and an itemization of the prescription charges for the employee. 28 Unless the employer controverts a charge, an employer shall reimburse any 29 transportation expenses for medical treatment under this chapter within 30 days after 30 the employer receives the health care provider's completed report and an itemization 31 of the dates, destination, and transportation expenses for each date of travel for
01 medical treatment. If the employer does not plan to make or does not make payment or 02 reimbursement in full as required by this subsection, the employer shall notify the 03 employee and the employee's health care provider in writing that payment will not be 04 made timely and the reason for the nonpayment. The notification must be provided not 05 later than the date that the payment is due under this subsection. 06 * Sec. 37. AS 23.30.100(d) is amended to read: 07 (d) Failure to give notice does not bar a claim under this chapter 08 (1) if the employer, an agent of the employer in charge of the business 09 in the place where the injury occurred, or the carrier had knowledge of the injury or 10 death and the office of administrative hearings [BOARD] determines that the 11 employer or carrier has not been prejudiced by failure to give notice; 12 (2) if the office of administrative hearings [BOARD] excuses the 13 failure on the ground that for some satisfactory reason notice could not be given; 14 (3) unless objection to the failure is raised before the office of 15 administrative hearings [BOARD] at the first hearing of a claim for compensation in 16 respect to the injury or death. 17 * Sec. 38. AS 23.30.105(a) is amended to read: 18 (a) The right to compensation for benefits [DISABILITY] under this chapter 19 is barred unless a claim for it is filed within two years after the employee has 20 knowledge of the nature of the employee's disability or need for medical treatment 21 and its relation to the employment [AND AFTER DISABLEMENT]. However, the 22 maximum time for filing the claim in any event other than arising out of an 23 occupational disease shall be four years from the date of injury, and the right to 24 compensation for death is barred unless a claim therefor is filed within one year after 25 the death, except that, if payment of compensation has been made without an award on 26 account of the injury or death, a claim may be filed within two years after the date of 27 the last payment of benefits under AS 23.30.041, 23.30.180, 23.30.185, 23.30.190, 28 23.30.200, or 23.30.215. In [IT IS ADDITIONALLY PROVIDED THAT, IN] the 29 case of latent defects pertinent to and causing compensable disability, the injured 30 employee has full right to claim as shall be determined by the office of administrative 31 hearings [BOARD], time limitations notwithstanding.
01 * Sec. 39. AS 23.30.107(b) is amended to read: 02 (b) Medical or rehabilitation records, and the employee's name, address, social 03 security number, electronic mail address, and telephone number contained on any 04 record, in an employee's file maintained by the division or held by the board, the 05 office of administrative hearings, or the commission are not public records subject to 06 public inspection and copying under AS 40.25.100 - 40.25.295. This subsection does 07 not prohibit 08 (1) the reemployment benefits administrator, the division, the board, 09 the office of administrative hearings, the commission, or the department from 10 releasing medical or rehabilitation records in an employee's file, without the 11 employee's consent, to a [PHYSICIAN PROVIDING MEDICAL SERVICES 12 UNDER AS 23.30.095(k) OR 23.30.110(g), A] party to a claim filed by the employee, 13 or a governmental agency; or 14 (2) the quoting or discussing of medical or rehabilitation records 15 contained in an employee's file during a hearing on a claim for compensation [OR IN 16 A DECISION OR ORDER OF THE BOARD OR COMMISSION]. 17 * Sec. 40. AS 23.30.108 is amended to read: 18 Sec. 23.30.108. Prehearings on discovery matters; objections to requests 19 for release of information; sanctions for noncompliance. (a) If an employee objects 20 to a request for written authority under AS 23.30.107, the employee must file a 21 petition with the office of administrative hearings [BOARD] seeking a protective 22 order within 14 days after service of the request. If the employee fails to file a petition 23 and fails to deliver the written authority as required by AS 23.30.107 within 14 days 24 after service of the request, the employee's rights to benefits under this chapter are 25 suspended until the written authority is delivered. 26 (b) If a petition seeking a protective order is filed, the board shall notify the 27 office of administrative hearings, and the office of administrative hearings shall 28 set a prehearing within 21 days after the filing date of the petition. At a prehearing 29 conducted by the office of administrative hearings, the office of administrative 30 hearings [THE BOARD'S DESIGNEE, THE BOARD'S DESIGNEE] has the 31 authority to resolve disputes concerning the written authority. If the office of
01 administrative hearings [BOARD OR THE BOARD'S DESIGNEE] orders delivery 02 of the written authority and if the employee refuses to deliver it within 10 days after 03 being ordered to do so, the employee's rights to benefits under this chapter are 04 suspended until the written authority is delivered. During any period of suspension 05 under this subsection, the employee's benefits under this chapter are forfeited unless 06 the board, or the court determining an action brought for the recovery of damages 07 under this chapter, determines that good cause existed for the refusal to provide the 08 written authority. 09 (c) At a prehearing on discovery matters conducted by the office of 10 administrative hearings, the office of administrative hearings [BOARD'S 11 DESIGNEE, THE BOARD'S DESIGNEE] shall direct parties to sign releases or 12 produce documents, or both, if the parties present releases or documents that are likely 13 to lead to admissible evidence relative to an employee's injury. If a party refuses to 14 comply with an order by the office of administrative hearings [BOARD'S 15 DESIGNEE OR THE BOARD] concerning discovery matters, the office of 16 administrative hearings [BOARD] may impose appropriate sanctions in addition to 17 any forfeiture of benefits, including dismissing the party's claim, petition, or defense. 18 [IF A DISCOVERY DISPUTE COMES BEFORE THE BOARD FOR REVIEW OF 19 A DETERMINATION BY THE BOARD'S DESIGNEE, THE BOARD MAY NOT 20 CONSIDER ANY EVIDENCE OR ARGUMENT THAT WAS NOT PRESENTED 21 TO THE BOARD'S DESIGNEE, BUT SHALL DETERMINE THE ISSUE SOLELY 22 ON THE BASIS OF THE WRITTEN RECORD.] The decision by the office of 23 administrative hearings [BOARD] on a discovery dispute shall be made within 30 24 days. [THE BOARD SHALL UPHOLD THE DESIGNEE'S DECISION EXCEPT 25 WHEN THE BOARD'S DESIGNEE'S DETERMINATION IS AN ABUSE OF 26 DISCRETION.] 27 (d) If the employee files a petition seeking a protective order to recover 28 medical and rehabilitation information that has been provided but is not related to the 29 employee's injury, and the office of administrative hearings [BOARD OR THE 30 BOARD'S DESIGNEE] grants the protective order, the office of administrative 31 hearings [BOARD OR THE BOARD'S DESIGNEE GRANTING THE
01 PROTECTIVE ORDER] shall direct [THE DIVISION, THE BOARD, THE 02 COMMISSION, AND] the parties to return to the employee, as soon as practicable 03 following the issuance of the protective order, all medical and rehabilitation 04 information, including copies, in their possession that is unrelated to the employee's 05 injury under the protective order. 06 (e) If the office of administrative hearings [BOARD OR THE BOARD'S 07 DESIGNEE] limits the medical or rehabilitation information that may be used by the 08 parties to a claim, either by an order on the record or by issuing a written order, the 09 division, [THE BOARD,] the commission, and a party to the claim may request and an 10 employee shall provide or authorize the production of medical or rehabilitation 11 information only to the extent of the limitations of the order. If information has been 12 produced that is outside of the limits designated in the order, the office of 13 administrative hearings [BOARD OR THE BOARD'S DESIGNEE] shall direct the 14 party in possession of the information to return the information to the employee as 15 soon as practicable following the issuance of the order. 16 * Sec. 41. AS 23.30.110(a) is amended to read: 17 (a) Subject to the provisions of AS 23.30.105, a claim for benefits or a 18 petition for other relief shall [COMPENSATION MAY] be filed with the office of 19 administrative hearings [BOARD] in accordance with [ITS] regulations adopted by 20 the board at any time after the first seven days of disability following an injury, or at 21 any time after death. The parties shall make requests with the office of 22 administrative hearings on all matters, except those under AS 23.30.012 and 23 23.30.247 [, AND THE BOARD MAY HEAR AND DETERMINE ALL 24 QUESTIONS IN RESPECT TO THE CLAIM]. 25 * Sec. 42. AS 23.30.110(b) is amended to read: 26 (b) Within 10 days after a claim is filed, the office of administrative hearings 27 [BOARD], in accordance with its regulations, shall notify the employer and any other 28 person, other than the claimant, whom the office of administrative hearings 29 [BOARD] considers an interested party that a claim has been filed. The notice may be 30 served personally upon the employer or other person, or sent by registered or 31 electronic mail.
01 * Sec. 43. AS 23.30.110(c) is amended to read: 02 (c) Before a hearing is scheduled, the party seeking a hearing shall file a 03 request for a hearing together with an affidavit stating that the party has completed 04 necessary discovery, obtained necessary evidence, and is prepared for the hearing. An 05 opposing party shall have 10 days after the hearing request is filed to file a response. If 06 a party opposes the hearing request, the office of administrative hearings [BOARD 07 OR A BOARD DESIGNEE] shall, within 30 days of the filing of the opposition, 08 conduct a prehearing [PRE-HEARING] conference and set a hearing date consistent 09 with affording both parties an opportunity to conduct discovery and adequate 10 time to prepare for the hearing and to schedule witnesses. If opposition is not filed, 11 a hearing shall be scheduled not [NO] later than 60 days after the receipt of the 12 hearing request. The office of administrative hearings [BOARD] shall give each 13 party at least 10 days' notice of the hearing, either personally or by certified mail. 14 After a hearing has been scheduled, the parties may not stipulate to change the hearing 15 date or to cancel, postpone, or continue the hearing, except for good cause as 16 determined by the office of administrative hearings [BOARD]. After completion of 17 the hearing, the office of administrative hearings [BOARD] shall close the hearing 18 record. If a settlement agreement is reached by the parties less than 14 days before the 19 hearing, the parties shall appear at the time of the scheduled hearing before the office 20 of administrative hearings to state the terms of the settlement agreement. Within 30 21 days after the hearing record closes, the office of administrative hearings [BOARD] 22 shall file its decision. If the employer controverts a claim on a board-prescribed 23 controversion notice and the employee does not request a hearing within two years 24 following the filing of the controversion notice, the claim is denied. 25 * Sec. 44. AS 23.30.110(d) is amended to read: 26 (d) At the hearing the claimant and the employer may each present evidence in 27 respect to the claim or petition and may be represented by any person authorized by 28 regulation of the board [IN WRITING] for that purpose. 29 * Sec. 45. AS 23.30.110(e) is amended to read: 30 (e) The order rejecting the claim or making the award, referred to in this 31 chapter as a compensation order, shall be filed in the office of the board, or office of
01 administrative hearings consistent with this chapter, and a copy of it shall be sent 02 [BY REGISTERED MAIL] to the claimant and [TO THE] employer electronically or 03 by registered mail to [AT] the last known address of each. 04 * Sec. 46. AS 23.30.110(h) is amended to read: 05 (h) The filing of a hearing request under (c) of this section suspends the 06 running of the two-year time period specified in (c) of this section. However, if the 07 employee subsequently requests a continuance of the hearing and the request is 08 approved by the office of administrative hearings [BOARD], the granting of the 09 continuance renders the request for hearing inoperative, and the two-year time period 10 specified in (c) of this section continues to run again from the date of the [BOARD'S] 11 notice by the office of administrative hearings to the employee of the [BOARD'S] 12 granting by the office of administrative hearings of the continuance and of its effect. 13 If the employee fails to again request a hearing before the conclusion of the two-year 14 time period in (c) of this section, the claim is denied. 15 * Sec. 47. AS 23.30.115 is amended to read: 16 Sec. 23.30.115. Attendance and fees of witnesses. (a) A person is not 17 required to attend as a witness in a proceeding before the office of administrative 18 hearings or the board at a place more than 100 miles from the person's place of 19 residence, unless the person's lawful mileage and fee for one day's attendance is first 20 paid or tendered to the person; but the testimony of a witness may be taken by 21 deposition or interrogatories according to the Rules of Civil Procedure. 22 (b) A witness summoned in a proceeding before the office of administrative 23 hearings or the board or whose deposition is taken shall receive the same fees and 24 mileage as a witness in the superior court. 25 * Sec. 48. AS 23.30.120(a) is amended to read: 26 (a) In a proceeding for the enforcement of a claim for compensation under this 27 chapter, once the employee has established a preliminary link between 28 employment or employment injury and the resulting condition, disability, or need 29 for medical treatment through objective relevant medical evidence, it is presumed 30 [, IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY,] that 31 (1) the claim comes within the provisions of this chapter;
01 (2) sufficient notice of the claim has been given; 02 (3) the injury was not proximately caused by the intoxication of the 03 injured employee or proximately caused by the employee being under the influence of 04 drugs unless the drugs were taken as prescribed by the employee's physician; 05 (4) the injury was not occasioned by the wilful intention of the injured 06 employee to injure or kill self or another. 07 * Sec. 49. AS 23.30.120(b) is amended to read: 08 (b) If delay in giving notice is excused by the office of administrative 09 hearings [BOARD] under AS 23.30.100(d)(2), the burden of proof of the validity of 10 the claim shifts to the employee notwithstanding the provisions of (a) of this section. 11 * Sec. 50. AS 23.30.120 is amended by adding new subsections to read: 12 (d) An employee may not establish a preliminary link under (a) of this section 13 solely by disproving other possible causes or explanations for how the injury, disease, 14 resulting condition, disability, or need for medical treatment occurred. 15 (e) After the employee establishes a preliminary link, the presumption of 16 compensability under (a) of this section may be rebutted by presentation of objective 17 relevant medical evidence that it is more likely than not that the compensable injury is 18 not, or is no longer, the major contributing cause of the condition, disability, or need 19 for medical treatment, even if there is no clear alternative explanation or known cause 20 of the compensable injury. 21 (f) Once the presumption has been rebutted under (e) of this section, the 22 employee must prove the claim by clear and convincing objective relevant medical 23 evidence. 24 * Sec. 51. AS 23.30.122 is amended to read: 25 Sec. 23.30.122. Credibility of witnesses. Only the office of administrative 26 hearings and the [THE] board have the [HAS THE SOLE] power to determine the 27 credibility of a witness. A finding by the office of administrative hearings or the 28 board concerning the weight to be accorded a witness's testimony, including medical 29 testimony and reports, is conclusive even if the evidence is conflicting or susceptible 30 to contrary conclusions. The findings of the office of administrative hearings and 31 the board are subject to the same standard of review as a jury's finding in a civil
01 action. 02 * Sec. 52. AS 23.30.122 is amended by adding new subsections to read: 03 (b) The office of administrative hearings may not afford a physician's opinion 04 more weight merely because the physician is the employee's treating physician. The 05 office of administrative hearings may not give less weight to an employer's medical 06 evaluator merely because that physician has not seen the employee as frequently as the 07 treating physician. The probative value of an employer's medical evaluator opinion on 08 causation, the extent of disability, impairment, ability to work, or need for medical 09 treatment is evidence to be considered on a footing equal to all other proof in the case. 10 The office of administrative hearings shall consider the following factors in affording 11 weight to a medical expert's opinion: 12 (1) whether the medical expert's opinion is based on objective medical 13 evidence that meets the criteria of Rule 702, Federal Rules of Evidence, and all United 14 States Supreme Court case law applicable to that rule; 15 (2) whether the medical opinion is consistent with the medical record 16 as a whole; 17 (3) how independent the medical expert's opinion is from inappropriate 18 influences from the employee or employer; 19 (4) whether the medical expert is board certified in the medical expert's 20 specialty and whether the opinion of the medical expert is within the medical expert's 21 specialty; and 22 (5) the degree to which the medical expert presents an explanation and 23 relevant evidence to support an opinion, particularly with review of prior medical 24 reports, physical examinations, radiology, or other diagnostic or laboratory tests. 25 (c) Lay testimony may only be relied on to decide factual disputes that do not 26 involve causation, degree of impairment, ability to work, physical capacities, or past 27 and future medical treatment. In deciding medical issues on causation, degree of 28 impairment, ability to work, physical capacities, or past and future medical treatment, 29 the office of administrative hearings and the board may not rely on lay testimony. 30 * Sec. 53. AS 23.30.125(a) is amended to read: 31 (a) A compensation order becomes effective when filed with the office of
01 administrative hearings [THE BOARD] as provided in AS 23.30.110, and, unless 02 proceedings to reconsider, suspend, or set aside the order are instituted as provided in 03 this chapter, the order becomes final on the 31st day after it is filed. 04 * Sec. 54. AS 23.30.125(b) is amended to read: 05 (b) Notwithstanding other provisions of law, a decision or order of the office 06 of administrative hearings or the board is subject to review by the commission as 07 provided in this chapter. 08 * Sec. 55. AS 23.30.125(c) is amended to read: 09 (c) If a compensation order is not in accordance with law or fact, the order 10 may be suspended or set aside, in whole or in part, through proceedings in the 11 commission brought by a party in interest against all other parties to the proceedings 12 before the office of administrative hearings [BOARD]. The payment of the amounts 13 required by an award may not be stayed pending a final decision in the proceeding 14 unless, upon application for a stay, the commission, on hearing, after not less than 15 three days' notice to the parties in interest, allows the stay of payment, in whole or in 16 part, where the party filing the application would otherwise suffer irreparable damage. 17 Continuing future periodic compensation payments may not be stayed without a 18 showing by the appellant of irreparable damage and the existence of the probability of 19 the merits of the appeal being decided adversely to the recipient of the compensation 20 payments. The order of the commission allowing a stay must contain a specific 21 finding, based on [UPON] evidence submitted to the commission and identified by 22 reference to the evidence, that irreparable damage would result to the party applying 23 for a stay and specifying the nature of the damage. 24 * Sec. 56. AS 23.30.127(a) is amended to read: 25 (a) A party in interest may appeal a compensation order issued by the board or 26 the office of administrative hearings to the commission within 30 days after the 27 compensation order is filed [WITH THE OFFICE OF THE BOARD] under 28 AS 23.30.110. The director may intervene in an appeal. If a party in interest is not 29 represented by counsel and the compensation order concerns an unsettled question of 30 law, the director may file an appeal to obtain a ruling on the question by the 31 commission.
01 * Sec. 57. AS 23.30.127(e) is amended to read: 02 (e) If a request for reconsideration of a [BOARD] decision of the board or 03 the office of administrative hearings was timely filed with the office of 04 administrative hearings or the board, the notice of appeal must be filed within 30 05 days after the reconsideration decision is mailed to the parties or the date the request 06 for reconsideration is considered denied in the absence of any action on the request, 07 whichever is earlier. 08 * Sec. 58. AS 23.30.128(a) is amended to read: 09 (a) An appeal from a decision of the board or the office of administrative 10 hearings 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 or the office of administrative hearings, a transcript or recording of the 19 proceedings before the board or the office of administrative hearings, and oral 20 argument and written briefs allowed by the commission. Except as provided in (c) of 21 this section, new or additional evidence may not be received with respect to the 22 appeal. 23 * Sec. 59. AS 23.30.128(b) is amended to read: 24 (b) The commission may review discretionary actions, findings of fact, and 25 conclusions of law by the board or the office of administrative hearings in hearing, 26 determining, or otherwise acting on a compensation claim or petition. The 27 [BOARD'S] findings of the board or the office of administrative hearings 28 regarding the credibility of testimony of a witness before the board or the office of 29 administrative hearings are binding on the commission. The [BOARD'S] findings of 30 fact of the board or the office of administrative hearings shall be upheld by the 31 commission if supported by substantial evidence in light of the whole record. In
01 reviewing questions of law and procedure, the commission shall exercise its 02 independent judgment. 03 * Sec. 60. AS 23.30.129(a) is amended to read: 04 (a) Notwithstanding the provisions of AS 44.62.560, orders of the office of 05 administrative hearings and the commission issued under this chapter may not be 06 appealed to the superior court. Consistent with AS 22.05.010(b), final decisions of the 07 commission may be appealed to the supreme court, and other orders may be reviewed 08 by the supreme court as provided by the Alaska Rules of Appellate Procedure. 09 * Sec. 61. AS 23.30.130 is amended to read: 10 Sec. 23.30.130. Modification of awards. (a) Upon [ITS OWN INITIATIVE, 11 OR UPON] the application of any party in interest on the ground of a change in 12 conditions, including, for the purposes of AS 23.30.175, a change in residence, or 13 because of a mistake in its determination of a fact, the board or the office of 14 administrative hearings may, before one year after the date of the last payment of 15 compensation benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200, or 16 23.30.215, whether or not a compensation order has been issued, or before one year 17 after the rejection of a claim, review a compensation case under the procedure 18 prescribed with [IN] respect to [OF] claims in AS 23.30.110. Under AS 23.30.110, the 19 board or the office of administrative hearings may issue a new compensation order 20 that [WHICH] terminates, continues, reinstates, increases, or decreases the 21 compensation, or award compensation. 22 (b) A new order does not affect compensation previously paid, except that an 23 award increasing the compensation rate may be made effective from the date of the 24 injury, and if part of the compensation due or to become due is unpaid, an award 25 decreasing the compensation rate may be made effective from the date of the injury, 26 and payment made earlier in excess of the decreased rate shall be deducted from the 27 unpaid compensation, in the manner the board or the office of administrative 28 hearings determines. 29 * Sec. 62. AS 23.30.135 is amended to read: 30 Sec. 23.30.135. Procedure before the board and the office of 31 administrative hearings. (a) In making an investigation or inquiry or conducting a
01 hearing, the board or the office of administrative hearings is not bound by common 02 law or statutory rules of evidence or by technical or formal rules of procedure, except 03 as provided by this chapter. The board or the office of administrative hearings may 04 make its investigation or inquiry or conduct its hearing in the manner by which it may 05 best ascertain the rights of the parties. Declarations of a deceased employee 06 concerning the injury in respect to which the investigation or inquiry is being made or 07 the hearing conducted shall be received in evidence and are, if corroborated by other 08 evidence, sufficient to establish the injury. 09 (b) All testimony given during a hearing before the board and the office of 10 administrative hearings shall be recorded, but need not be transcribed unless further 11 review is initiated. Hearings before the board and the office of administrative 12 hearings shall be open to the public. 13 * Sec. 63. AS 23.30.145 is repealed and reenacted to read: 14 Sec. 23.30.145. Attorney fees. (a) Fees for legal services rendered with respect 15 to a claim are not valid unless approved by the office of administrative hearings. 16 Except as provided under (b) of this section, attorney fees may not exceed the 17 following percentage of the contested amount of compensation benefits secured as a 18 result of a claim filed by an attorney: 19 (1) 25 percent of the settlement amount between the parties; 20 (2) 30 percent of the amount awarded by the office of administrative 21 hearings after a hearing or upon appeal to the commission; 22 (3) 35 percent of the amount awarded after a successful appeal to the 23 Alaska Supreme Court. 24 (b) If a written offer to settle an issue pending before the office of 25 administrative hearings is made at least 30 days before a hearing on the claim, for 26 purposes of calculating the amount of attorney fees to be paid under (a) of this section, 27 only the amount of benefits awarded to the employee above the amount specified in 28 the offer to settle may be considered. If multiple issues are pending before the office 29 of administrative hearings, the offer to settle must address each issue and clearly state 30 whether or not the offer on each issue is severable. Any written offer to settle must be 31 kept confidential and not disclosed to the office of administrative hearings until after
01 the final decision on the merits of the case has been decided. After the final decision 02 on the merits of the case has been issued, the parties shall file the offer to settle with 03 the office of administrative hearings so that the office of administrative hearings can 04 award appropriate attorney fees and costs. 05 (c) Attorney fees and costs may be paid in a lump sum on the present value of 06 the settlement or adjudicated amount. 07 (d) In this section, "benefits secured" does not include medical benefits 08 awarded three or more years after the date of injury. 09 * Sec. 64. AS 23.30.155(b) is amended to read: 10 (b) The first installment of compensation becomes due on the 14th day after 11 the employer has knowledge of the injury or death. On this date all compensation then 12 due shall be paid. Subsequent compensation shall be paid in installments, every 14 13 days, except where the office of administrative hearings [BOARD] determines that 14 payment in installments should be made monthly or at some other period. 15 * Sec. 65. AS 23.30.155(j) is amended to read: 16 (j) If an employer has made advance payments or overpayments of 17 compensation, the employer is entitled to be reimbursed by withholding up to 20 18 percent out of each unpaid installment or installments of compensation due. More than 19 20 percent of unpaid installments of compensation due may be withheld from an 20 employee 21 (1) when the only benefit remaining is a lump-sum payment of 22 permanent partial impairment benefits; or 23 (2) upon approval of the office of administrative hearings [ONLY 24 ON APPROVAL OF THE BOARD]. 25 * Sec. 66. AS 23.30.155(m) is amended to read: 26 (m) On or before March 1 of each year, the insurer or adjuster shall file a 27 verified annual report on a form prescribed by the director stating the total amount of 28 all compensation by type, the number of claims received and the percentage 29 controverted, medical and related benefits, vocational rehabilitation expenses, legal 30 fees, including a separate total of fees paid to attorneys and fees paid for the other 31 costs of litigation, and penalties paid on all claims during the preceding calendar year.
01 If the annual report is timely and complete when received by the division and provides 02 accurate information about each category of payments, the director shall review the 03 timeliness of the insurer's or adjuster's reports filed during the preceding year under (c) 04 of this section. If, during the preceding year, the insurer or adjuster filed at least 99 05 percent of the reports on time, the penalties assessed under (c) of this section shall be 06 waived. If, during the preceding year, the insurer or adjuster filed at least 97 percent of 07 the reports on time, 75 percent of the penalties assessed under (c) of this section shall 08 be waived. If, during the preceding year, the insurer or adjuster filed 95 percent of the 09 reports on time, 50 percent of the penalties assessed under (c) of this section shall be 10 waived. If, during the preceding year, the insurer's or adjuster's reports have not been 11 filed on time at least 95 percent of the time, none of the penalties assessed under (c) of 12 this section shall be waived. The penalties that are not waived are due and payable 13 when the insurer or adjuster receives notification from the director regarding the 14 timeliness of the reports. If the annual report is not filed by March 1 of each year, the 15 insurer or adjuster shall pay a civil penalty of $100 for the first day the annual report is 16 late and $10 for each additional day the report is late. [IF THE ANNUAL REPORT IS 17 INCOMPLETE WHEN FILED, THE INSURER OR ADJUSTER SHALL PAY A 18 CIVIL PENALTY OF $1,000.] 19 * Sec. 67. AS 23.30.155(o) is amended to read: 20 (o) The director shall promptly notify the division of insurance if the office of 21 administrative hearings [BOARD] determines that the employer's insurer has 22 frivolously or unfairly controverted compensation due under this chapter. After 23 receiving notice from the director, the division of insurance shall determine if the 24 insurer has committed an unfair claim settlement practice under AS 21.36.125. 25 * Sec. 68. AS 23.30.175(a) is amended to read: 26 (a) The weekly rate of compensation for disability or death may not exceed 27 the maximum compensation rate, may not be less than 22 percent of the maximum 28 compensation rate, and initially may not be less than $110; however, if the office of 29 administrative hearings [BOARD] determines that the employee's spendable weekly 30 wages are less than $110 a week as computed under AS 23.30.220, or less than 22 31 percent of the maximum compensation rate a week in the case of an employee who
01 has furnished documentary proof of the employee's wages, it shall issue an order 02 adjusting the weekly rate of compensation to a rate equal to the employee's spendable 03 weekly wages. If the employer can verify that the employee's spendable weekly wages 04 are less than 22 percent of the maximum compensation rate, the employer may adjust 05 the weekly rate of compensation to a rate equal to the employee's spendable weekly 06 wages without an order of the office of administrative hearings [BOARD]. If the 07 employee's spendable weekly wages are greater than 22 percent of the maximum 08 compensation rate, but 80 percent of the employee's spendable weekly wages is less 09 than 22 percent of the maximum compensation rate, the employee's weekly rate of 10 compensation shall be 22 percent of the maximum compensation rate. Prior payments 11 made in excess of the adjusted rate shall be deducted from the unpaid compensation in 12 the manner the office of administrative hearings [BOARD] determines. In any case, 13 the employer shall pay timely compensation. In this subsection, "maximum 14 compensation rate" means 120 percent of the average weekly wage, calculated under 15 (d) of this section, applicable on the date of injury of the employee. 16 * Sec. 69. AS 23.30.180 is amended to read: 17 Sec. 23.30.180. Permanent total disability. (a) In case of total disability 18 adjudged to be permanent, 80 percent of the injured employee's spendable weekly 19 wages shall be paid to the employee during the continuance of the total disability until 20 the employee begins receiving social security, pension, or other retirement 21 benefits. If a permanent partial disability award has been made before a permanent 22 total disability determination, permanent total disability benefits must be reduced by 23 the amount of the permanent partial disability award, adjusted for inflation, in a 24 manner determined by the board. Loss of both hands, or both arms, or both feet, or 25 both legs, or both eyes, or of any two of them, in the absence of conclusive proof to 26 the contrary, constitutes permanent total disability. In all other cases permanent total 27 disability is determined in accordance with the facts. In making this determination the 28 market for the employee's services shall be 29 (1) area of residence; 30 (2) area of last employment; 31 (3) the state of residence; and
01 (4) the State of Alaska. 02 (b) Failure to achieve remunerative employability [AS DEFINED IN 03 AS 23.30.041(r)] does not, by itself, constitute permanent total disability. 04 * Sec. 70. AS 23.30.185 is amended to read: 05 Sec. 23.30.185. Compensation for temporary total disability. In case of 06 disability total in character but temporary in quality, 80 percent of the injured 07 employee's spendable weekly wages shall be paid to the employee during the 08 continuance of the disability. Temporary total disability benefits may not be paid for 09 any period of disability occurring after the date of medical stability and for more 10 than an aggregate total of 104 weeks for each claim. 11 * Sec. 71. AS 23.30.190 is amended by adding a new subsection to read: 12 (e) An employee who returns to work for the same employer in a position that 13 pays a wage equal to or greater than that paid at the time of injury is not eligible to 14 receive permanent partial impairment benefits under this section. 15 * Sec. 72. AS 23.30.200(b) is amended to read: 16 (b) The wage-earning capacity of an injured employee is determined by the 17 actual spendable weekly wage of the employee if the actual spendable weekly wage 18 fairly and reasonably represents the wage-earning capacity of the employee. The 19 office of administrative hearings [BOARD] may, in the interest of justice, fix the 20 wage-earning capacity that is reasonable, having due regard to the nature of the injury, 21 the degree of physical impairment, the usual employment, and other factors or 22 circumstances in the case that may affect the capacity of the employee to earn wages 23 in a disabled condition, including the effect of disability as it may naturally extend into 24 the future. 25 * Sec. 73. AS 23.30.215(d) is amended to read: 26 (d) Compensation under this chapter to aliens not residents, or about to 27 become nonresidents, of the United States or Canada is the same in amount as 28 provided for residents, except that dependents in a foreign country are limited to 29 widow or widower and child or children, or if there is no widow or widower and child 30 or children, to surviving father or mother whom the employee has supported, either 31 wholly or in part, for a period of one year before the date of injury. The office of
01 administrative hearings [BOARD], at its option, or upon the application of the 02 insurance carrier, may commute all future installments of compensation to be paid to 03 an alien dependent who is not a resident of the United States or Canada by paying or 04 causing to be paid to the alien dependent one-half of the commuted amount of the 05 future installments of compensation as determined by the office of administrative 06 hearings [BOARD]. 07 * Sec. 74. AS 23.30.220(a) is amended to read: 08 (a) Computation of compensation under this chapter shall be on the basis of an 09 employee's spendable weekly wage at the time of injury. An employee's spendable 10 weekly wage is the employee's gross weekly earnings minus payroll tax deductions. 11 An employee's gross weekly earnings shall be calculated as follows: 12 (1) if at the time of injury the employee's earnings are calculated by the 13 week, the weekly amount is the employee's gross weekly earnings; 14 (2) if at the time of injury the employee's earnings are calculated by the 15 month, the employee's gross weekly earnings are the monthly earnings multiplied by 16 12 and divided by 52; 17 (3) if at the time of injury the employee's earnings are calculated by the 18 year, the employee's gross weekly earnings are the yearly earnings divided by 52; 19 (4) if at the time of injury the employee's earnings are calculated by the 20 day, by the hour, or by the output of the employee, then the employee's gross weekly 21 earnings are 1/50 of the total wages that the employee earned from all occupations 22 during either of the two calendar years immediately preceding the injury, whichever is 23 most favorable to the employee; 24 (5) if at the time of injury the employee's earnings have not been fixed 25 or cannot be ascertained, the employee's earnings for the purpose of calculating 26 compensation are the usual wage for similar services when the services are rendered 27 by paid employees; 28 (6) if at the time of injury the employee's earnings are calculated by the 29 week under (1) of this subsection or by the month under (2) of this subsection and the 30 employment is exclusively seasonal or temporary, then the gross weekly earnings are 31 1/50 of the total wages that the employee has earned from all occupations during the
01 12 calendar months immediately preceding the injury; 02 (7) when the employee is working under concurrent contracts with two 03 or more employers, the employee's earnings from all employers is considered as if 04 earned from the employer liable for compensation; 05 (8) if an employee when injured is a minor, an apprentice, or a trainee 06 in a formalized training program, as determined by the office of administrative 07 hearings [BOARD], whose wages under normal conditions would increase during the 08 period of disability, the projected increase may be considered by the office of 09 administrative hearings [BOARD] in computing the gross weekly earnings of the 10 employee; if the minor, apprentice, or trainee would have likely continued that 11 training program, then the compensation shall be the average weekly wage at the time 12 of injury rather than that based on the individual's prior earnings; 13 (9) if the employee is injured while performing duties as a volunteer 14 ambulance attendant, volunteer police officer, or volunteer firefighter, then, 15 notwithstanding (1) - (6) of this subsection, the gross weekly earnings for calculating 16 compensation shall be the minimum gross weekly earnings paid a full-time ambulance 17 attendant, police officer, or firefighter employed in the political subdivision where the 18 injury occurred, or, if the political subdivision has no full-time ambulance attendants, 19 police officers, or firefighters, at a reasonable figure previously set by the political 20 subdivision to make this determination, but in no case may the gross weekly earnings 21 for calculating compensation be less than the minimum wage computed on the basis of 22 40 hours work a [PER] week; 23 (10) if an employee is entitled to compensation under AS 23.30.180 24 and the office of administrative hearings [BOARD] determines that calculation of 25 the employee's gross weekly earnings under (1) - (7) of this subsection does not fairly 26 reflect the employee's earnings during the period of disability, the office of 27 administrative hearings [BOARD] shall determine gross weekly earnings by 28 considering the nature of the employee's work, work history, and resulting disability, 29 but compensation calculated under this paragraph may not exceed the employee's 30 gross weekly earnings at the time of injury. 31 * Sec. 75. AS 23.30.230(a) is amended to read:
01 (a) The following persons are not covered by this chapter: 02 (1) a part-time baby-sitter; 03 (2) a cleaning person; 04 (3) harvest help and similar part-time or transient help; 05 (4) a person employed as a sports official on a contractual basis and 06 who officiates only at sports events in which the players are not compensated; in this 07 paragraph, "sports official" includes an umpire, referee, judge, scorekeeper, 08 timekeeper, organizer, or other person who is a neutral participant in a sports event; 09 (5) a person employed as an entertainer on a contractual basis; 10 (6) a commercial fisherman, as defined in AS 16.05.940; 11 (7) an individual who drives a taxicab whose compensation and written 12 contractual arrangement is as described in AS 23.10.055(a)(13), unless the hours 13 worked by the individual or the areas in which the individual may work are restricted 14 except to comply with local ordinances; 15 (8) a participant in the Alaska temporary assistance program 16 (AS 47.27) who is engaged in work activities required under AS 47.27.035 other than 17 subsidized or unsubsidized work or on-the-job training; 18 (9) a person employed as a player or coach by a professional hockey 19 team if the person is covered under a health care insurance plan provided by the 20 professional hockey team, the coverage is applicable to both work-related and 21 nonwork-related injuries, and the coverage provides medical and related benefits as 22 required under this chapter, except that coverage may not be limited to two years from 23 the date of injury as described under AS 23.30.095(a); in this paragraph, "health care 24 insurance" has the meaning given in AS 21.12.050; 25 (10) a person working as a qualified real estate licensee who performs 26 services under a written contract that provides that the person will not be treated as an 27 employee for federal income tax or workers' compensation purposes; in this 28 paragraph, "qualified real estate licensee" means a person who is required to be 29 licensed under AS 08.88.161 and whose payment for services is directly related to 30 sales or other output rather than the number of hours worked; [AND] 31 (11) a transportation network company driver who provides a
01 prearranged ride or is otherwise logged onto the digital network of a transportation 02 network company as a driver; and 03 (12) a person employed as an independent contractor; a person is 04 an independent contractor for the purposes of this chapter only if the person 05 (A) has an express contract to perform the services; 06 (B) is free from direction and control over the means and 07 manner of providing services, subject only to the right of the individual 08 for whom, or entity for which, the services are provided to specify the 09 desired results, completion schedule, or range of work hours, or to 10 monitor the work for compliance with contract plans and specifications, 11 or federal, state, or municipal law; 12 (C) incurs most of the expenses for tools, labor, and other 13 operational costs necessary to perform the services, except that materials 14 and equipment may be supplied; 15 (D) has an opportunity for profit and loss as a result of the 16 services performed for the other individual or entity; 17 (E) is free to hire and fire employees to help perform the 18 services for the contracted work; 19 (F) has all business, trade, or professional licenses required 20 by federal, state, or municipal authorities for a business or individual 21 engaging in the same type of services as the person; 22 (G) follows federal Internal Revenue Service requirements 23 by 24 (i) obtaining an employer identification number, if 25 required; 26 (ii) filing business or self-employment tax returns for 27 the previous tax year to report profit or income earned for the 28 same type of services provided under the contract; or 29 (iii) intending to file business or self-employment tax 30 returns for the current tax year to report profit or income earned 31 for the same type of services provided under the contract if the
01 person's business was not operating in the previous tax year; and 02 (H) meets at least two of the following criteria: 03 (i) the person is responsible for the satisfactory 04 completion of services that the person has contracted to perform 05 and is subject to liability for a failure to complete the contracted 06 work, or maintains liability insurance or other insurance policies 07 necessary to protect the employees, financial interests, and 08 customers of the person's business; 09 (ii) the person maintains a business location or a 10 business mailing address separate from the location of the 11 individual for whom, or the entity for which, the services are 12 performed; 13 (iii) the person provides contracted services for two 14 or more different customers within a 12-month period or engages 15 in any kind of business advertising, solicitation, or other marketing 16 efforts reasonably calculated to obtain new contracts to provide 17 similar services. 18 * Sec. 76. AS 23.30.250(b) is amended to read: 19 (b) If the office of administrative hearings [BOARD], after a hearing, finds 20 that a person has obtained compensation, medical treatment, or another benefit 21 provided under this chapter, or that a provider has received a payment, by knowingly 22 making a false or misleading statement or representation for the purpose of obtaining 23 that benefit, the office of administrative hearings [BOARD] shall order that person 24 to make full reimbursement of the cost of all benefits obtained. Upon entry of an order 25 authorized under this subsection, the office of administrative hearings [BOARD] 26 shall also order that person to pay all reasonable costs and attorney fees incurred by 27 the employer and the employer's carrier in obtaining an order under this section and in 28 defending any claim made for benefits under this chapter. If a person fails to comply 29 with an order of the office of administrative hearings [BOARD] requiring 30 reimbursement of compensation and payment of costs and attorney fees, the employer 31 may declare the person in default and proceed to collect any sum due as provided
01 under AS 23.30.170(b) and (c). 02 * Sec. 77. AS 23.30.260(a) is amended to read: 03 (a) A person is guilty of a misdemeanor and, upon conviction, is punishable 04 for each offense by a fine of not more than $1,000 or by imprisonment for not more 05 than one year, or by both, if the person 06 (1) receives a fee, other consideration, or a gratuity on account of any 07 services rendered for representation or advice with respect to a claim, unless the 08 consideration or gratuity is approved by the office of administrative hearings 09 [BOARD] or the court; or 10 (2) makes it a business to solicit employment for a lawyer or for the 11 person making the solicitation with respect to a claim or award for compensation. 12 * Sec. 78. AS 23.30.395(2) is amended to read: 13 (2) "arising out of and in the course of employment" includes 14 employer-required or supplied travel to and from a remote job site; activities 15 performed at the direction or under the control of the employer; and employer- 16 sanctioned activities at employer-provided facilities if the activities are the major 17 contributing cause of the death, disease, or resulting condition, disability, or need 18 for medical treatment; but excludes recreational league activities sponsored by the 19 employer, unless participation is required as a condition of employment, and activities 20 of a personal nature away from employer-provided facilities; 21 * Sec. 79. AS 23.30.395(3) is amended to read: 22 (3) "attending physician" means one of the following designated by the 23 employee under AS 23.30.095(a) [OR (b)]: 24 (A) a licensed medical doctor; 25 (B) a licensed doctor of osteopathy; 26 (C) a licensed dentist or dental surgeon; 27 (D) a licensed physician assistant acting under supervision of a 28 licensed medical doctor or doctor of osteopathy; 29 (E) a licensed advanced practice registered nurse; or 30 (F) a licensed chiropractor; 31 * Sec. 80. AS 23.30.395 is amended by adding a new paragraph to read:
01 (43) "office of administrative hearings" means the office of 02 administrative hearings established under AS 44.64.010. 03 * Sec. 81. AS 44.64.030(a) is amended by adding a new paragraph to read: 04 (51) AS 23.30 (Alaska Workers' Compensation Act). 05 * Sec. 82. AS 23.30.005(f), 23.30.095(b), 23.30.095(i), 23.30.095(k), 23.30.110(g), 06 23.30.135(a), 23.30.155(h), 23.30.224(b), 23.30.224(e), and 23.30.224(f) are repealed. 07 * Sec. 83. The uncodified law of the State of Alaska is amended by adding a new section to 08 read: 09 APPLICABILITY. Sections 6 - 82 of this Act apply to claims for injuries filed on or 10 after the effective dates of those sections. 11 * Sec. 84. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 TRANSITION: CLAIMS. (a) The Alaska Workers' Compensation Board shall hear 14 and decide claims filed under AS 23.30.110 before the effective date of secs. 41 - 46 of this 15 Act as that statute read on the day before the effective date of secs. 41 - 46 of this Act. 16 (b) A claim for benefits or petition for other relief under AS 23.30 that has not been 17 filed with the Alaska Workers' Compensation Board before the effective date of secs. 41 - 46 18 of this Act shall be filed with the office of administrative hearings (AS 44.64.010) after the 19 effective date of secs. 41 - 46 of this Act in accordance with AS 23.30.110, as amended by 20 secs. 41 - 46 of this Act. 21 * Sec. 85. The uncodified law of the State of Alaska is amended by adding a new section to 22 read: 23 TRANSITION: REGULATIONS. (a) The Department of Labor and Workforce 24 Development may adopt regulations necessary to implement the changes made by this Act. 25 The regulations take effect under AS 44.62 (Administrative Procedure Act), but not before the 26 effective date of the sections being implemented. 27 (b) The chief administrative law judge of the office of administrative hearings 28 (AS 44.64.010) may adopt regulations necessary to establish procedures for administrative 29 hearings required by the changes made by this Act. The regulations take effect under 30 AS 44.62 (Administrative Procedure Act), but not before the effective date of the sections 31 being implemented.
01 * Sec. 86. Section 85 of this Act takes effect immediately under AS 01.10.070(c). 02 * Sec. 87. Section 1 of this Act takes effect on the effective date of Sec. 38, ch. 2, SSSLA 03 2017.