Legislature(2015 - 2016)BARNES 124
03/30/2016 03:15 PM House LABOR & COMMERCE
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| Audio | Topic |
|---|---|
| Start | |
| HB214 | |
| HB372 | |
| HB281 | |
| HB290 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 372 | TELECONFERENCED | |
| *+ | HB 281 | TELECONFERENCED | |
| *+ | HB 290 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 214 | TELECONFERENCED | |
HB 214-REPEAL WORKERS' COMP APPEALS COMMISSION
3:23:31 PM
CHAIR OLSON announced that the first order of business would be
HOUSE BILL NO. 214, "An Act repealing the Workers' Compensation
Appeals Commission; relating to decisions and orders of the
Alaska Workers' Compensation Board; relating to superior court
jurisdiction over appeals from Alaska Workers' Compensation
Board decisions and orders; repealing Rules 201.1, 401.1, and
501.1, Alaska Rules of Appellate Procedure, and amending Rules
202(a), 204(a) - (c), 210(e), 508(g), 601(b), 602, and 603,
Alaska Rules of Appellate Procedure; and providing for an
effective date."
3:24:09 PM4
LAURA STIDOLPH, staff to Representative Kurt Olson, Alaska State
Legislature, speaking on behalf of Representative Olson, sponsor
of HB 214, introduced the proposed committee substitute for HB
214, [labeled 29-LS0854\P], noting that the bill is at the
request of the commissioner of the Department of Labor &
Workforce Development. At the previous hearing on 3/14/16, the
Alaska Court System requested changes bringing back the original
language from the Workers' Compensation Act - enacted prior to
the establishment of the Worker's Compensation Appeals
Commission in 2005 - and adding language related to the transfer
of files to the Alaska Court System.
3:25:06 PM
REPRESENTATIVE HUGHES moved to adopt the proposed committee
substitute (CS) for HB 214, labeled 29-LS0854\P, Wallace,
3/21/16, as the working document.
3:25:21 PM
CHAIR OLSON objected for discussion purposes.
MS. STIDOLPH paraphrased the following summary of changes for HB
214, page 3, lines 6-31, and page 4, lines 1-11 [original
punctuation provided]:
Section 5. AS 23.30
Page 3, Lines 6-31 and Page 4, Lines 1-11
Delete all the material and insert original
language from the Workers' Compensation Act (AS
23.30.125) from 2004 prior to the establishment
of the WCAC.
MS. STIDOLPH said the proposed change to Section 5 was at the
request of the Alaska Court System to return power back to the
superior court. She continued to page 5, lines 24-26, and
paraphrased from the following summary of changes [original
punctuation provided]:
Section 12. Transitional Provisions
Page 5, Lines 24-26 (a)
Delete all material after "shall" and insert "be
transferred to the superior court in the judicial
district where the original claim was filed,
under AS 22.10.020 and Rules 604(b) and 609,
Alaska Rules of Appellate Procedure.
Page 5, Line 30
After "June 1, 2016" insert "within 30 days after
the date that the board decision becomes final."
Page 6, Lines 1-17
Delete all material in (c) and (d) and replace
with new language.
REPRESENTATIVE COLVER asked for the time period available for a
party to appeal after a decision is made.
MS. STIDOLPH said on or [before December 1, 2016], a party
seeking review may file an appeal or petition for review with
the supreme court as stated in [Section 12, subsection (c)].
3:29:40 PM
REPRESENTATIVE COLVER asked for clarification that an appeal of
a decision by the Workers' Compensation Board (board) would be
filed within 30 days.
3:29:52 PM
MS. STIDOLPH said, "It's ... thirty days after the date that the
board decision becomes final." She continued to page 6, line
22, and paraphrased the summary of changes, as follows:
[original punctuation provided]
Section 13. Terms of Commissioners
Page 6, Line 22
Remove "February 20, 2017" and insert "December
31, 2016."
Section 14. Conditional Effect
Page 6, Line 25
Insert "CONDITIONAL EFFECT. This Act takes effect
only if secs. 8 and 10 of this Act receive the
two-thirds majority vote of each house required
by art. IV, sec. 15, Constitution of the State of
Alaska.
REPRESENTATIVE LEDOUX questioned whether HB 214 exactly returns
legislation to the language before changes were made in 2005.
MS. STIDOLPH said yes.
3:31:13 PM
CHAIR OLSON removed his objection. There being no further
objection, Version P was before the committee.
REPRESENTATIVE HUGHES asked why the act takes effect June 1,
2016.
MS. STIDOLPH was unsure.
3:32:08 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, informed the
committee the bill reverts the appeals procedure to that in
2005, and the Alaska Court System sought the same wording as
existed in 2005, so that all case precedents would remain
applicable, and to streamline case decision-making. In
addition, the transitional provisions ensure that the files
transferred from the Department of Labor & Workforce Development
(DLWD) are in the proper format.
3:34:05 PM
ANNA LATHAM, Legislative Liaison, Office of the Commissioner,
DLWD, in response to Representative Hughes' question, responded
that DLWD requested the effective date to be June 1, 2016, so
that the Workers' Compensation Appeals Commission (commission)
would have until November 1, to finalize cases.
REPRESENTATIVE JOSEPHSON questioned whether an aggrieved party
would have until November to file an appeal to the commission,
or if they could wait and appeal to the superior court.
MS. MEADE stated that after June 1, an appeal of a final
decision of the commission would be submitted to the superior
court; furthermore, anything pending with the commission in
November will be transferred to the court. In response to an
earlier question from Representative Colver, she pointed out
that proposed Section 5, page 3, lines 6-10, clarifies that the
decision of the commission becomes final on its 31st day, after
which an appeal can be accepted. In response to Representative
Josephson, she said the commission will not accept new appeals
after June 1.
REPRESENTATIVE COLVER assumed filed decisions are written
orders.
MS. MEADE said yes.
REPRESENTATIVE COLVER suggested that during the 31 days there is
an opportunity for a party to ask for partial reconsideration
before the order is final.
3:38:31 PM
MARIE MARKS, Director, Central Office, Division of Workers'
Compensation, DLWD, answered that a decision by the Workers'
Compensation Board is issued in a written format and becomes
effective when signed and served on all parties. At that time,
a prospective appellant has 14 days to ask the board for
reconsideration, and 30 days to appeal its decision to a higher
power. If the board takes no action, the power to reconsider
ends, and she opined that in the proposed version, "if you don't
reach that 30-day window by June first, you need to go ahead and
seek appeal with the superior court. So, it's June first, and
you have to reach your 30-day window before June first, that's
my understanding of the working draft."
REPRESENTATIVE COLVER questioned if a party asked for
reconsideration within the 14-day period, whether that would
stay the 30-day period for appeal.
MS. MARKS said no, the periods proceed at the same time. In
further response to Representative Colver, she said the board
must take action on reconsideration within the 14-day period by
contacting the parties, and if no action is taken, that is a
denial of reconsideration.
REPRESENTATIVE COLVER observed that the board process is
unchanged, except that the appeal would go to the superior
court.
MS. MARKS agreed. She added that every decision issued informs
the parties of their right to ask for reconsideration or
modification; the only change made by the proposed legislation
is that the appeal would go to the superior court rather than
the commission.
3:42:56 PM
REPRESENTATIVE LEDOUX inquired as to how many cases would be
caught in the transition brought about by the legislation.
MS. MEADE was assured there would be about six cases or less
pending before the commission, but not resolved.
REPRESENTATIVE LEDOUX posited if a case is not resolved, the
parties must submit new briefs.
MS. MEADE acknowledged there may be some delay during the
transition process; however, parties would not have to re-brief
because the commission will provide documents in the proper
form. She said she anticipates working with DLWD to minimize
delay.
REPRESENTATIVE COLVER inquired as to whether there still is a
hearing officer who hears the initial request for benefits or
compensation.
MS. MARKS explained that a board decision is made by a board
panel consisting of two or three members: one chair, who is a
staff attorney; one labor representative; and one industry
representative.
3:46:52 PM
REPRESENTATIVE COLVER related his experience that attorney fees
were a time-consuming issue.
MS. MARKS said the fees awarded at the board level follow a
statute that provides for actual attorney fees when restrictions
are met.
MS. MEADE directed attention to the bill on page 4, lines 9-11,
which read:
(g) A court may not make an award of costs and
attorney fees against an injured worker unless the
court finds that the worker's position on judicial
review was frivolous or unreasonable or the judicial
review was sought in bad faith
MS. MEADE said subsection (g) is the statutory guidance given to
the courts on how to award attorney fees. Generally on appeal,
the court has different provisions than at the board level.
MS. MARKS restated that with exceptions, at the board level
attorney fees are full, actual, and reasonable.
MS. MEADE recalled there was much litigation about attorney fees
in workers' compensation cases at the superior court level, and
prior case decisions will be effective.
REPRESENTATIVE COLVER stated that subsection (g) was also a
protection for the worker.
MS. MEADE indicated yes.
REPRESENTATIVE COLVER gave an example of a case in which the
injured worker prevailed and asked, "and then the insurance
company, the workers' comp carrier, then would be liable to
cover the injured worker's fees, right?"
MS. MARKS advised that the board will award reasonable fees to
be paid to the employee's attorney on the issue(s) on which they
prevail, and those fees are a compensation benefit, so the
entity that pays compensation benefits would be responsible.
REPRESENTATIVE COLVER asked for an indication of whether
attorney fees are a big issue.
3:51:36 PM
ANDY HEMENWAY, Chair, Workers' Compensation Appeals Commission,
Anchorage Office, Division of Workers' Compensation, DLWD,
advised that for cases that were appealed from the commission to
the supreme court, attorney fees are a common - but not the most
common - subject for litigation beyond the appeals commission.
The experience at the appeals commission is that it is not a
major subject in terms of the amount of fees.
REPRESENTATIVE LEDOUX asked whether attorneys are granted full
reasonable fees before the appeals commission.
MR. HEMENWAY said the same standards apply before the
commission, as apply before the board.
REPRESENTATIVE LEDOUX asked about attorney fees garnered for
cases before the superior court.
MS. MEADE will provide an answer to the committee.
CHAIR OLSON said the issue can be addressed in the next
committee of referral, the House Judiciary Standing Committee.
REPRESENTATIVE HUGHES asked what differs between the language in
HB 214, and the related statute prior to the changes made in
2005.
MS. MEADE said Section 5, subsection (a) provides timelines that
are slightly different, but clearer. On page 3, lines 11-31 are
copied from the 2005 law; on page 4, lines 5-11 are subsections
which did not appear in the 2005 law, and that were added by
DLWD.
3:57:51 PM
CHAIR OLSON opened public testimony on HB 214; after
ascertaining no one wished to testify, public testimony was
closed.
3:58:42 PM
REPRESENTATIVE HUGHES moved to report the committee substitute
(CS) for HB 214, Version 29-LS0854\P, Wallace, 3/21/16, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 214(L&C) was
reported out of the House Labor and Commerce Standing Committee.