Legislature(2017 - 2018)BELTZ 105 (TSBldg)
02/14/2017 01:30 PM Senate LABOR & COMMERCE
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| Audio | Topic |
|---|---|
| Start | |
| SB15 | |
| SB29 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 40 | TELECONFERENCED | |
| *+ | SB 29 | TELECONFERENCED | |
| *+ | SB 15 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 29-REPEAL WORKERS' COMP APPEALS COMMISSION
2:24:34 PM
CHAIR COSTELLO reconvened the meeting and announced the
consideration of SB 29. She welcomed Commissioner Drygas and
Director Marx.
2:25:08 PM
HEIDI DRYGAS, Commissioner, Department of Labor and Workforce
Development (DOLWD), stated that SB 29 will repeal the Workers'
Compensation Appeals Commission and return the appeals process
to the courts. She explained that the commission was created to
streamline the appeals process and provide expertise in handling
workers' compensation cases. However, since the commission was
created in 2005, 50 percent of its decisions have been reversed
by the Alaska Supreme Court. The commission is essentially an
appellate court, but it is not composed of a panel of lawyers.
Rather, the lay commissioners have no legal training, so it
falls to the commission chair to resolve the legal issues and
write the commission's decisions. This means the commission's
decisions are the work of just one person, not the work of a
panel with legal expertise in workers' compensation. This is a
further departure from the intent of the original legislation,
she said.
COMMISSIONER DRYGAS informed the committee that eliminating the
Workers' Compensation Appeals Commission is anticipated to save
the department over $220,000 for the remainder of FY18, and over
$440,000 in subsequent years. She emphasized that the impact on
the public would be minimal. The Court System, which regularly
hears administrative appeals, would see an increase of about 20-
30 cases a year. She understands that the Court System can
absorb volume, which is reflected in the zero fiscal note.
2:27:00 PM
MARIE MARX, Director, Workers' Compensation Division, Department
of Labor and Workforce Development (DOLWD) walked through the
following sectional analysis for SB 29:
Section 1 amends AS 23.30.005, by adding a new
subsection, clarifying that unless reversed or
modified by a court, decisions of the former
commission have the force of legal precedent. It also
specifies that the Workers' Compensation Board will be
the entity responsible for making sure those decisions
are available to the public.
Section 2 amends AS 23.30.107(b), by removing
reference to the appeals commission in existing
statutes.
Section 3 amends AS 23.30.108(d), by removing
reference to the appeals commission in existing
statutes.
Section 4 amends AS 23.30.108(e), by removing
reference to the appeals commission in existing
statutes.
Section 5 amends AS 23.30, by adding a new section,
clarifying when a board order becomes effective and is
final, when it may be stayed, and clarifying when the
board's findings are conclusive and binding on a
reviewing court, and when the director may intervene
in an appeal or petition for review.
Section 6 amends AS 23.30.155, by adding a new
subsection changing a statutory reference from the
appeals commission to the superior court.
Section 7 amends AS 39.50.200(b)(31), by removing
reference to the appeals commission.
Section 8 amends the uncodified law of the State of
Alaska, by amending Rule 204(c)(2) Alaska Rules of
Appellate Procedure, to address bonds for appeal
purposes.
Section 9 repeals Rules 201.1, 401.1, and 501.1,
Alaska Rules of Appellate Procedure.
Section 10 repeals AS 23.20.007, 23.30.008, 23.30.009,
23.30.009, 23.30.125, 23.30.127, 23.30.128, 23.30.129,
23.30.155(f), 23.30.395(10); AS 39.25.110(40); AS
44.64.020(a)(12), and 44.64.020(a)(13). These are
statutes that deal with commission proceedings, that
reference the commission, that deal with commission
appointments, and appeals to the commission.
Section 11 amends the uncodified law of the State of
Alaska, by adding a new section relating to indirect
court rule amendments.
Section 12 amends the uncodified law of the State of
Alaska, by adding conditional effect language that the
Act takes effect only if secs. 8, 9 and 11 receive the
two-thirds majority vote of each house required by
art. IV, sec. 15 of the Alaska Constitution.
Section 13 amends the uncodified law of the State of
Alaska, by adding a new section relating to
applicability of amendments to proceedings pending
before the Commission.
Section 14 amends the uncodified law of the State of
Alaska, by adding transitional language clarifying
proceedings seeking review of a board decision and
order that have not yet been filed before the
Commission, must be filed in the superior court on or
after June 1, 2017 Any appeals not completed by the
appeals commission on or before December 1, 2017 will
be transferred to the superior court on December 2,
2017, and clarifying procedures for requests for
reconsideration during the transition period.
Section 15 amends the uncodified law of the State of
Alaska, by adding transitional language.
Section 16 clarifies when the Act takes effect.
2:30:16 PM
CHAIR COSTELLO reminded the committee that this was introduced
on the Senate floor as an amendment in a budget process and some
members felt it needed a full vetting. She asked Ms. Marx if she
had any concern with the measure.
MS. MARX answered she has no concerns. The idea in 2005 was that
the commission would make the appeals process run better, but
that has not been the case.
2:31:27 PM
SENATOR STEVENS questioned whether this would impose a burden on
the Court System and potentially slow the progress of these
cases. He also asked what these appeals would look like under
the Court System. "We're not talking about a jury trial; we're
talking about a judgement by a judge. Can you help me understand
that?"
CHAIR COSTELLO suggested Nancy Meade with the Court System
respond to the question after the committee finishes questioning
Director Marx and Commissioner Drygas.
MS. MARX directed attention to the document in the packet that
explains the number of cases appealed to the commission and how
many are appealed to the Alaska Supreme Court. She also pointed
out that the Court System was handling more appeals cases prior
to the creation of the commission. The average number of appeals
now is about 33 and the expectation is that those would be
absorbed by the Court System throughout all jurisdictions.
Addressing the question about timeliness, she said the proposal
is to return to the court process because the appeals commission
process has not improved the appeals procedure.
2:34:02 PM
COMMISSIONER DRYGAS added that when a case is appealed from a
panel of the Workers' Compensation Board it will go to the
superior court that will act as the appellate court, just as the
appeals commission currently acts as the appellate court for the
Workers' Compensation Board.
SENATOR HUGHES asked if the only reason the appeals commission
didn't work is because the commissioners didn't have the
necessary legal expertise.
COMMISSIONER DRYGAS replied it was a multiple system failure,
but the biggest problem is that the appeals commission is made
up of lay commissioners rather than a panel of attorneys, which
is the typical makeup for the appellate process. Because the
appeals commission doesn't have a panel of attorneys, there
hasn't been enough vetting of the facts in these cases. The
result is that the Alaska Supreme Court has overturned about 50
percent of the decisions the appeals commission has made.
The other problem with the current system is that it has a
double administrative layer. The departmental administrative
process made up of a panel of three works well, she said, but
after that the litigant should have the opportunity to have
their case heard in court rather than going to another
administrative level. "It's clunky and didn't work the way I
think it was intended to work," she said.
2:37:37 PM
SENATOR GARDNER asked if it would have worked better, but been
more expensive, if all the appeals commission members were
attorneys.
COMMISSIONER DRYGAS said possibly, but only so many attorneys
practice workers' compensation in Alaska and it would be very
difficult to seat a panel that didn't have conflicts.
SENATOR MEYER asked if two positions would be eliminated if the
bill were to pass.
COMMISSIONER DRYGAS answered yes.
CHAIR COSTELLO asked Ms. Meade to respond to Senator Steven's
question about how this proposal would impact the Court System.
2:39:16 PM
NANCY MEADE, General Council, Administrative Staff, Alaska Court
System, stated that the Court System will be able to absorb the
impact of SB 29, but she appreciates the question because the
court is doing more now with less. She said the average number
of cases over the past 10 years appears to be about 33. Should
the bill become law, the cases that went from the board to the
commission would go from the board to the superior court. Those
cases will be divided among the 42 superior court judges,
depending on the venue of the injured worker. Because Anchorage
is the population center, most of the cases will be filed there
and divided among the 11 civil superior court judges that
preside in the municipality.
She described workers' compensation cases as difficult, time-
consuming, and fact laden. Oftentimes the litigant is self-
represented, which is difficult and more time-consuming for the
Court System. That is some of the reason that these cases went
from the court to the appeals commission in 2005, as well as the
argument that some of the superior court judge decisions were
inconsistent. Nevertheless, since the appeals commission has not
improved on the time to get cases resolved or accuracy of the
decisions, the Court System is prepared to take these cases back
without any additional funding to handle the additional
workload.
2:42:07 PM
SENATOR STEVENS asked if the $220,000 savings reflected in the
Department of Labor and Workforce Development fiscal note will
be absorbed by the Court System.
MS. MEADE opined that there wouldn't be additional cost because
the additional work would be spread around. For example, if the
clerk's office in Fairbanks gets 7-8 new administrative appeals
next year, they would be able to handle that in the normal
course of business.
SENATOR STEVENS asked if there is a way to move these cases
through the system more quickly.
MS. MEADE said she didn't have an answer, but superior court
judges do handle administrative agency appeals. A process and
court rules are already in place, so a superior court judge
would be the logical place if these cases were to come to the
Court System.
2:44:45 PM
SENATOR HUGHES asked if eliminating one administrative layer
make things easier for the court.
MS. MEADE replied it probably won't make much difference.
2:46:54 PM
ANDREW HEMENWAY, former appeals commissioner, Anchorage, Alaska,
said he was asked to be available for questions.
CHAIR COSTELLO asked his view of the bill.
MR. HEMENWAY stated that when he was leaving the appeals
commission he told Commissioner Drygas that it is difficult for
a single person to deal with the legal issues that come up in a
workers' compensation appeal. However, going to the superior
court would also be just one judge deciding the cases, and that
judge won't have any particular expertise in workers'
compensation laws. He offered his personal view that it's
difficult for one person, but it's better to have one person
with expertise in that area of law working on these cases. He
said his personal policy preference would be to use a couple of
administrative law judges from the Office of Administrative
Hearings to work with the chair of the appeals commission. There
would be three, legally-trained people looking at each case
which would address the concern he expressed about having just
one judge rule on these hotly contested and difficult legal
issues. He noted that a concern about using superior court
judges was that the decisions could be inconsistent. As chair of
the appeals commission he didn't hear that complaint. He
concluded that there are policy arguments pro and con for
abolishing the appeals commission and it's up to the legislature
to decide.
2:50:13 PM
CHAIR COSTELLO closed public testimony on SB 29 and held the
bill for further consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 29 - Sponsor Statement.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 29 |
| SB 29.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 29 |
| SB 40 - Background IRS.PDF |
SL&C 2/14/2017 1:30:00 PM |
SB 40 |
| SB 40 - Fiscal Note DOLWD-SIF.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 40 |
| SB 40 - Fiscal Note DOLWD-WC.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 40 |
| SB 40 - Opposition Letter - NFIB.PDF |
SL&C 2/14/2017 1:30:00 PM |
SB 40 |
| SB 40 - Sectional Analysis.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 40 |
| SB 40 - Sponsor Statement.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 40 |
| SB 40.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 40 |
| Slide Presentation for SB 40 02.14.17.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 40 |
| SB 15 - Background - E-Cig Fires.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 - Background - E-Cigarettes Poison the Airways.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 - Background - E-Cigs AAAS More Dangerous Than Tobacco.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 - Background - Ecigs DHSS Bulletin.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 - Background - E-cigs NCSL LegisBrief.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 - Background - E-Cigs Sales To AK Youth.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 - Fiscal Note DCCED.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 - Fiscal Note DHSS.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 - Fiscal Note DPS.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 - Fiscal Note LAW.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 Sectional Analysis.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15 Sponsor Statement.pdf |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |
| SB 15.PDF |
SL&C 2/14/2017 1:30:00 PM |
SB 15 |