Legislature(2003 - 2004)
2004-04-28 Senate Journal
Full Journal pdf2004-04-28 Senate Journal Page 3127 SB 311 SENATE BILL NO. 311 "An Act providing for a special deposit for workers' compensation insurers; relating to the board of governors of the Alaska Insurance Guaranty Association; relating to covered workers' compensation claims paid by the Alaska Insurance Guaranty Association; stating the intent of the legislature, and setting out limitations, concerning the interpretation, construction, and implementation of workers' compensation laws; relating to restructuring the Alaska workers' compensation system; eliminating the Alaska Workers' Compensation Board; establishing a division of 2004-04-28 Senate Journal Page 3128 workers' compensation within the Department of Labor and Workforce Development and assigning certain Alaska Workers' Compensation Board functions to the division and the Department of Labor and Workforce Development; establishing a Workers' Compensation Appeals Commission; assigning certain functions of the Alaska Workers' Compensation Board to the Workers' Compensation Appeals Commission; relating to agreements that discharge workers' compensation liability; providing for hearing officers in workers' compensation proceedings; relating to workers' compensation awards; relating to an employer's failure to insure and keep insured or provide security; providing for appeals from compensation orders; relating to workers' compensation proceedings; providing for supreme court jurisdiction of appeals from the Workers' Compensation Appeals Commission; providing for a maximum amount for the cost-of-living adjustment for workers' compensation benefits; providing for administrative penalties for employers uninsured or without adequate security for workers' compensation; relating to assigned risk pools and insurers; and providing for an effective date" was read the second time. Senator Seekins, Chair, moved and asked unanimous consent for the adoption of the Judiciary Committee Substitute offered on page 2900. Without objection, CS FOR SENATE BILL NO. 311(JUD) "An Act providing for a special deposit for workers' compensation insurers; relating to the board of governors of the Alaska Insurance Guaranty Association; stating the intent of the legislature, and setting out limitations, concerning the interpretation, construction, and implementation of workers' compensation laws; relating to restructuring the Alaska workers' compensation system; eliminating the Alaska Workers' Compensation Board; establishing a division of workers' compensation within the Department of Labor and Workforce Development and assigning certain Alaska Workers' Compensation Board functions to the division and the Department of Labor and Workforce Development; establishing a Workers' Compensation Appeals Commission; assigning certain functions of the Alaska Workers' Compensation Board to the Workers' Compensation Appeals Commission and the Workers' Compensation Hearings Board; relating to agreements that discharge workers' compensation liability; providing for hearing examiners and hearing panels in workers' compensation proceedings; relating to workers' compensation awards; 2004-04-28 Senate Journal Page 3129 relating to an employer's failure to insure and keep insured or provide security; providing for appeals from compensation orders; relating to workers' compensation proceedings; providing for supreme court jurisdiction of appeals from the Workers' Compensation Appeals Commission; providing for a maximum amount for the cost-of-living adjustment for workers' compensation benefits; providing for administrative penalties for employers uninsured or without adequate security for workers' compensation; relating to assigned risk pools and insurers; and providing for an effective date" was adopted. Senator French offered Amendment No. 1 : Page 1, lines 9 - 10: Delete "Workers' Compensation Appeals Commission" Insert "workers' compensation hearings office" Page 1, line 11: Delete "Workers' Compensation Appeals Commission" Insert "workers' compensation hearings office" Page 2, lines 4 - 6: Delete "providing for supreme court jurisdiction of appeals from the Workers' Compensation Appeals Commission;" Page 4, line 27: Delete "Workers' Compensation Appeals Commission" Insert "workers' compensation hearings office" Page 4, lines 29 - 30: Delete "Workers' Compensation Appeals Commission" Insert "workers' compensation hearings office" Page 5, line 6: Delete "Workers' Compensation Appeals Commission" Insert "workers' compensation hearings office" Page 6, lines 20 - 21: Delete "Workers' Compensation Appeals Commission" Insert "workers' compensation hearings office" 2004-04-28 Senate Journal Page 3130 Page 7, line 14: Delete "chair of the commission" Insert "chief hearing officer" Page 8, line 16, through page 11, line 30: Delete all material and insert: "Sec. 23.30.007. Workers' compensation hearings office. (a) There is established in the Department of Labor and Workforce Development a workers' compensation hearings office. The hearing examiners and hearing panels hear original petitions when a claim is filed under this chapter and have jurisdiction to hear appeals from decisions and orders of the director. (b) The commissioner shall appoint a chief hearing officer and hearing examiners. (c) The chief hearing officer may (1) employ and supervise hearing office staff, hearing examiners, and hearing panels and appoint a hearings office clerk; (2) establish and implement a time management system for the hearings office, staff, and hearing examiners; (3) assign the work of the hearing examiners, hearing panels, and staff so that hearings and appeals are resolved as expeditiously and competently as possible, including designating hearing examiners to hear preliminary matters; and (4) prepare an annual budget of the hearings office and hearing panels. (d) The hearings office, in its administrative capacity, shall maintain, index, and make available for public inspection the final administrative decisions and orders of the hearing examiners and hearing panels. To promote consistency among legal determinations, the chief hearing officer may review and circulate among the other hearing examiners the drafts of formal decisions, decisions upon reconsideration, and other legal opinions of the other hearing examiners of the hearings office. The drafts are confidential documents and are not subject to disclosure. 2004-04-28 Senate Journal Page 3131 (e) The hearings office, in its administrative capacity, may adopt regulations implementing its authority and duties under this chapter, including rules of procedure and evidence for proceedings before hearing examiners and hearing panels in workers' compensation proceedings under AS 23.30.090 and 23.30.110 and for the adjudication of all claims and petitions under this chapter. The provisions of AS 44.62 (Administrative Procedure Act) apply to the adoption of regulations by the hearings office. (f) The hearings office, in its administrative capacity, may adopt and alter an official seal and do all things necessary, convenient, or desirable to carry out the powers expressly granted or necessarily implied in this chapter." Page 14, line 6: Delete "with the office of the commission [BY" Insert "by a hearing examiner or hearing panel [" Page 15, line 6: Delete "commission" Insert "hearings office" Page 30, line 23: Delete "commission" Insert "hearings office" Page 30, lines 25 - 26: Delete "office of the commission" Insert "hearings office" Page 31, line 1: Delete ", hearing panel, or commission" Insert "or hearing panel" Page 31, line 13: Delete "commission, and the commission clerk " Insert "hearings office, and the hearings office" 2004-04-28 Senate Journal Page 3132 Page 32, line 3, following "defense.", through line 16: Delete all material. Insert "[IF A DISCOVERY DISPUTE COMES BEFORE THE BOARD FOR REVIEW OF A DETERMINATION BY THE BOARD'S DESIGNEE, THE BOARD MAY NOT CONSIDER ANY EVIDENCE OR ARGUMENT THAT WAS NOT PRESENTED TO THE BOARD'S DESIGNEE, BUT SHALL DETERMINE THE ISSUE SOLELY ON THE BASIS OF THE WRITTEN RECORD. THE DECISION BY THE BOARD ON A DISCOVERY DISPUTE SHALL BE MADE WITHIN 30 DAYS. THE BOARD SHALL UPHOLD THE DESIGNEE'S DECISION EXCEPT WHEN THE BOARD'S DESIGNEE'S DETERMINATION IS AN ABUSE OF DISCRETION.]" Page 32, line 31: Delete "office of the commission" Insert "hearings office" Page 33, line 9: Delete "commission clerk" Insert "chief hearing officer" Page 34, line 1: Delete "commission" Insert "director" Page 35, line 11: Delete "commission" Insert "hearings office" Page 35, line 16: Delete ", but is not a public employee for purposes of AS 23.40" Page 36, line 3: Delete "commission" Insert "hearings office" 2004-04-28 Senate Journal Page 3133 Page 36, line 10: Delete "commission" Insert "hearings office" Page 37, lines 8 - 9: Delete "the commission, a hearing panel, or a hearing examiner [" Insert "a hearing panel or hearing examiner [THE" Page 37, lines 14 - 15: Delete "the commission, a hearing panel, or a hearing examiners [" Insert "a hearing panel or hearing examiner [THE" Page 37, line 17: Delete "commission clerk" Insert "chief hearing officer" Page 37, line 19: Delete "commission" Insert "chief hearing officer" Page 38, line 3: Delete "office of the commission" Insert "hearings office" Page 38, line 6: Delete "office of the commission" Insert "hearings office" Page 38, line 12: Delete "commission" Insert "hearings office" Page 38, line 14, through page 43, line 1: Delete all material and insert: "* Sec. 63. AS 23.30.125(a) is amended to read: (a) A compensation order becomes effective when filed with the director [IN THE OFFICE OF THE BOARD] as provided in AS 23.30.110, and, unless proceedings to 2004-04-28 Senate Journal Page 3134 suspend it or set it aside are instituted as provided in (c) of this section, it becomes final on the 31st day after it is filed. * Sec. 64. AS 23.30.125(c) is amended to read: (c) If not in accordance with law, a compensation order filed by a hearing examiner or hearing panel as provided in (a) of this section may be suspended or set aside, in whole or in part, through injunction proceedings in the superior court brought by a party in interest against the division [BOARD] and all other parties to the proceedings [BEFORE THE BOARD]. The payment of the amounts required by an award may not be stayed pending final decision in the proceeding unless upon application for an interlocutory injunction the court on hearing, after not less than three days' notice to the parties in interest and the director [BOARD], allows the stay of payment, in whole or in part, where irreparable damage would otherwise ensue to the employer. The order of the court allowing a stay must [SHALL] contain a specific finding, based upon evidence submitted to the court and identified by reference to it, that irreparable damage would result to the employer, and specifying the nature of the damage. * Sec. 65. AS 23.30.125(d) is amended to read: (d) If an employer fails to comply with a compensation order making an award that has become final, a beneficiary of the award or the director [BOARD] may apply for the enforcement of the order to the superior court. If the court determines that the order was made and served in accordance with law, and that the employer or the officers or agents of the employer have failed to comply with it, the court shall enforce obedience to the order by writ of injunction or by other proper process to enjoin upon the employer and the officers and agents of the employer compliance with the order. * Sec. 66. AS 23.30.125(f) is amended to read: (f) Subject to an employer's or employee's burden of proof, a finding of fact made by the hearing examiner or hearing panel [BOARD] as a part of a compensation order is conclusive unless the court specifically finds that a reasonable person could not have reached the conclusion made by the hearing examiner or hearing panel [BOARD]." 2004-04-28 Senate Journal Page 3135 Renumber the following bill sections accordingly. Page 47, lines 13 - 20: Delete all material. Renumber the following bill sections accordingly. Page 57, line 2: Delete ", the commission," Page 57, lines 20 - 21: Delete all material. Renumber the following paragraphs accordingly. Page 58, lines 8 - 9: Delete "Appeals Commission (AS 23.30.007) and Workers' Compensation" Page 58, line 17: Delete "sec. 85" Insert "sec. 86" Page 58, line 18: Delete "sec. 85" Insert "sec. 86" Page 59, lines 24 - 25: Delete: "WORKERS' COMPENSATION APPEALS COMMISSION AND" Page 59, line 26, following "BOARD.", through line 30, following the first occurrence of "(b)": Delete all material. Page 60, line 16: Delete "chair of the commission" Insert "chief hearing officer" 2004-04-28 Senate Journal Page 3136 Delete "commission" Insert "hearings office" Page 60, line 17: Delete "commission" Insert "hearings office" Page 60, line 18: Delete "commission" Insert "hearings office" Page 60, lines 26 - 27: Delete all material. Renumber the following paragraphs accordingly. Page 61, line 17: Delete "sec. 108" Insert "sec. 109" Page 61, line 29: Delete "Workers' Compensation Appeals Commission" Insert "workers' compensation hearings office" Page 61, line 30: Delete "under AS 23.30.008, enacted by sec. 10 of this Act" Page 62, line 2: Delete "Section 113(a)" Insert "Section 114(a)" Page 62, line 3: Delete "sec. 114" Insert "sec. 115" Senator French moved for the adoption of Amendment No. 1. Senator Green objected. 2004-04-28 Senate Journal Page 3137 Senator Ogan moved and asked unanimous consent to abstain from voting due to a conflict of interest. Objections were heard and Senator Ogan was required to vote. Senator Wilken called the Senate. The call was satisfied. The question being: "Shall Amendment No. 1 be adopted?" The roll was taken with the following result: CSSB 311(JUD) Second Reading Amendment No. 1 YEAS: 9 NAYS: 11 EXCUSED: 0 ABSENT: 0 Yeas: Davis, Ellis, Elton, French, Guess, Hoffman, Lincoln, Olson, Wagoner Nays: Bunde, Cowdery, Dyson, Green, Ogan, Seekins, Stedman, Stevens B, Stevens G, Therriault, Wilken and so, Amendment No. 1 failed. Senator French offered Amendment No. 2 : Page 40, lines 28 - 31: Delete "The commission may review de novo all discretionary actions, findings of fact, and conclusions of law by the hearing examiner, hearing panel, or the director in hearing, determining, or otherwise acting on any compensation claim or petition." Insert "The commission shall review all discretionary actions and findings of fact by a hearing examiner, hearing panel, or the director under the substantial evidence standard of review. The commission shall review the conclusions of law by a hearing examiner, hearing panel, or the director using the commission's independent judgment." Senator French moved for the adoption of Amendment No. 2. Senator Ben Stevens objected. The question being: "Shall Amendment No. 2 be adopted?" The roll was taken with the following result: 2004-04-28 Senate Journal Page 3138 CSSB 311(JUD) Second Reading Amendment No. 2 YEAS: 8 NAYS: 12 EXCUSED: 0 ABSENT: 0 Yeas: Davis, Ellis, Elton, French, Guess, Hoffman, Lincoln, Olson Nays: Bunde, Cowdery, Dyson, Green, Ogan, Seekins, Stedman, Stevens B, Stevens G, Therriault, Wagoner, Wilken and so, Amendment No. 2 failed. Senator French offered Amendment No. 3 : Page 35, line 16: Delete ", but is not a public employee for purposes of AS 23.40" Senator French moved for the adoption of Amendment No. 3. Senator Ben Stevens objected. The question being: "Shall Amendment No. 3 be adopted?" The roll was taken with the following result: CSSB 311(JUD) Second Reading Amendment No. 3 YEAS: 8 NAYS: 12 EXCUSED: 0 ABSENT: 0 Yeas: Davis, Ellis, Elton, French, Guess, Hoffman, Lincoln, Olson Nays: Bunde, Cowdery, Dyson, Green, Ogan, Seekins, Stedman, Stevens B, Stevens G, Therriault, Wagoner, Wilken and so, Amendment No. 3 failed. Senator French offered Amendment No. 4 : 2004-04-28 Senate Journal Page 3139 Page 38, line 30, following "irreparable", through page 39, line 3: Delete all material. Insert "damage, and, if the party is filing an application for a stay of continuing compensation or medical benefits, or both, the commission may only allow the stay if the party filing the application has also shown probable success on the merits. The order of the commission allowing the stay must contain specific findings based on evidence submitted to the commission and identified by reference to it to support the standard required for a stay in the matter." Page 39, line 20, following "where", through line 23: Delete all material. Insert "the party filing the application would otherwise suffer irreparable damage, and, if the party is filing an application for a stay of continuing compensation or medical benefits, or both, the commission may only allow the stay if the party filing the application has also shown probable success on the merits. The order of the commission allowing the stay must contain specific findings based on evidence submitted to the commission and identified by reference to it to support the standard required for a stay in the matter." Senator French moved for the adoption of Amendment No. 4. Senator Green objected. The question being: "Shall Amendment No. 4 be adopted?" The roll was taken with the following result: CSSB 311(JUD) Second Reading Amendment No. 4 YEAS: 8 NAYS: 11 EXCUSED: 0 ABSENT: 1 Yeas: Bunde, Ellis, Elton, French, Guess, Hoffman, Lincoln, Olson Nays: Cowdery, Dyson, Green, Ogan, Seekins, Stedman, Stevens B, Stevens G, Therriault, Wagoner, Wilken Absent: Davis and so, Amendment No. 4 failed. 2004-04-28 Senate Journal Page 3140 Senator French offered Amendment No. 5 : Page 10, line 3: Delete "29" Insert "25" Page 10, line 4: Delete "30" Insert "26" Senator French moved for the adoption of Amendment No. 5. Senator Ben Stevens objected. The question being: "Shall Amendment No. 5 be adopted?" The roll was taken with the following result: CSSB 311(JUD) Second Reading Amendment No. 5 YEAS: 10 NAYS: 10 EXCUSED: 0 ABSENT: 0 Yeas: Bunde, Davis, Ellis, Elton, French, Guess, Hoffman, Lincoln, Ogan, Olson Nays: Cowdery, Dyson, Green, Seekins, Stedman, Stevens B, Stevens G, Therriault, Wagoner, Wilken and so, Amendment No. 5 failed. Senator Ben Stevens moved and asked unanimous consent that the bill be considered engrossed, advanced to third reading and placed on final passage. Senator Ellis objected. President Therriault stated CS FOR SENATE BILL NO. 311(JUD) will be on the April 29 calendar.