ALASKA WORKERS' COMPENSATION CLAIM HANDLING GUIDELINES
- 1 DEFINITIONS
- 2 EXCLUSIVE REMEDY
- 3 JURISDICTION AND LIMITATIONS OF ACTIONS
- 4 COMPENSABILITY
5 EXCLUSIONS AND DEFENSES
5.1 Arising Out of and in the Course and Scope of Employment
- 5.1.1 Test for Applicability of the Act
- 5.1.2 Traveling Employees
- 5.1.3 Commuting
- 5.1.4 Premises and Parking Lot Cases
- 5.2 Related to Employment
- 5.3 Intentionally Self-Inflicted Injury or Death
- 5.4 Employee’s Violation of the Law, Intoxication and Other Drugs
- 5.5 Retirement
- 5.1 Arising Out of and in the Course and Scope of Employment
- 6.1 Calculation of Average Weekly Wage
- 6.2 Total Disability
- 6.3 Partial Disability
- 6.4 Amputation or Loss of Use
- 6.5 Disfigurement/Scarring
- 6.6 Loss of Sight
- 6.7 Loss of Hearing
- 6.8 Penalties
- 6.9 Interest
- 6.10 Costs
- 6.11 Attorney’s Fees
- 6.12 Death Benefits
- 6.13 Medical Benefits
- 6.14 Refusal of Medical Treatment
- 7 SUBROGATION OR CREDIT
- 8 ATTORNEYS
- 9 CLAIMS PROFESSIONALS
10 LITIGATION AND APPEAL
- 10.1 Workers’ Compensation Board Proceedings
- 10.2 Workers’ Compensation Appeal Commission
- 10.3 Supreme Court
- 11 SETTLEMENT
- 12 INSURANCE
The term “employer” means the State or its political subdivision or a person employing one or more persons in connection with business or industry carried on in the State. Alaska Stat. § 23.30.395(20).
The term “statutory employer” does not appear in the Alaska Workers Compensation Act. However, Alaska has codified a version of the statutory employer. Generally, statutory employer status is found most commonly in construction cases. Under the Act, an employer has the duty to secure the payment for compensation payable to employees under the Act. In the case where a subcontract fails to secure payment for compensation to its employees under the Act, the contractor is liable. If the employer who fails to secure payment for its employees under the Act is a contractor, the project owner is liable. Alaska Stat. § 23.30.045(a).
The following definitions apply to the foregoing: “contractor” means a person who undertakes by contract performance of certain work for another but does not include a vendor whose primary business is the sale or leasing of tools, equipment, other goods, or property; “project owner” means a person who, in the course of the person's business, engages the services of a contractor and who enjoys the beneficial use of the work; and “subcontractor” means a person to whom a contractor sublets all or part of the initial undertaking. Alaska Stat. § 23.30.045(f).
The term “employee” means any person employed by an employer. Alaska Stat. § 23.30.395(19).
In defining employee, “decisions construing the term in social security and unemployment are relevant.” Searfus v. Northern Gas Co., 472 P.2d 966 (Alaska 1970).
In order to be an employee, there must be an express or implied contract for employment. Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 252 (Alaska 1976), A meeting of the minds must generally be reached before employment begins. Childs v. Kalgin Island Lodge, 779 P.2d 310 (Alaska 1989). Nature of work in relation to the regular business of an employer should be the test for applicability of workers’ compensation, rather than the master-servant test. Ostrem v. Alaska Workers’ Comp. Bd., 511 P.2d 106 (Alaska 1973).
Volunteer work generally does not establish an employee/employer relationship for purposes of the Act. City of Seward v. Wisdom, 413 P.2d 931 (Alaska 1966).
In order to be “loaned” an employee must be an employer of the “loaning” employer. Ostrem, 511 P.2d 106.
Where an employee is found to be an independent contractor, the loaned servant doctrine does not apply. Ostrem, 511 P.2d 106.
In order to distinguish between an employee and an independent contractor, the Board will consider the “relative nature of the work” advocated by Professor Larson. Searfus, 472 P.2d 966. This was further defined to include two parts:
(1) the character of the claimant’s work or business; and
(2) the relationship of the claimant’s work or business to the purported employer’s business. Ostrem, 511 P.2d 1061.
In performing its inquiry, the Board should consider the following:
(1) degree of skill involved;
(2) whether the claimant holds him/herself out to the public as a separate business; and
(3) whether the claimant bears the accident burden. Benner v. Wichman, 874 P.2d 949 (Alaska 1994).
In relation to the work performed, the Board should consider the following:
(1) the extent to which the claimant’s work is the regular work of the employer;
(2) whether claimant’s work is continuous or intermittent; and
(3) whether the duration of work is such that it amounts to hiring versus contracting for servicers. Id.
The Alaska Workers' Compensation Act is the exclusive remedy available to employees who sustain work-related injuries, illnesses or deaths. Alaska Stat. § 23.30.055. An employer is even liable under the Act where a third party’s negligence has caused the injury or death, but the employer has a cause of action against the third party for amounts paid. Alaska Stat. § 23.30.050. The Alaska Supreme Court has consistently enforced this provision holding that the exclusivity of the act was “keystone” in its development, as both employers and employees bargain away certain rights for the greater good of widespread, no-fault insurance coverage for on-the-job injuries. Nickels v. Napolilli, 29 P.3d 242 (Alaska 2001).
Pursuant to Alaska law, where an employer has failed to secure the requisite payment of compensation due to the employee under the Act, an injured employee or employee’s representative in the case of death may elect to claim compensation under this chapter, or maintain a tort action against the employer at law or in admiralty for the damages related to the injury or death. Alaska Stat. § 23.30.055. An employer is prohibited from pleading as a defense in that action that the injury was caused by the negligence of a fellow servant; negligence of the employee him/herself; or the employee assumed the risk of employment. Id.
Pursuant to Alaska Stat. § 23.30.015 where a third party is liable for the injury or death to the employee, the employee maintains a right to file a tort action against the third party. The employer is still required to pay benefits under the Act, however they are able to seek a lien on the amounts recovered reduced by the pro rata share of attorney’s fees incurred in pursuing the third party action.
JURISDICTION AND LIMITATIONS OF ACTIONS
Generally, the Alaska Workers' Compensation Act applies to any disability, death or need for medical treatment which arise out of and in the course and scope of employment which occur within the State of Alaska. Alaska Stat. § 23.30.010.
Alaska Stat. § 23.30.011, provides that where injuries occur outside of Alaska jurisdiction exists nonetheless to file a claim under the Alaska Workers' Compensation Act in the following circumstances:
1. The employment is principally located in Alaska;
2. The employee is working under a contract of hire made in Alaska in employment which is not principally localized in any state;
3. The employee is working under a contract of hire made in Alaska in employment principally located in another state whose workers’ compensation law is not applicable to his or her employment; or
4. The employee is working under a contract of hire made in Alaska for employment outside the United States and Canada.
The payment of benefits under the workers’ compensation law of another state, territory, province or foreign nation is not a bar to a claim for benefits under the Alaska Workers' Compensation Act, as long as a claim is timely filed. Alaska Stat. § 23.30.011. Further, the employer is entitled to an offset for any benefits received by the employee or employee’s dependents from any claim in another jurisdiction.
Alaska Stat. 23.30.100 provides that employees must furnish notice of any injury to their employer within 30 days of the injury.
Failure to provide timely notice is not a bar to a claim under the Alaska Workers' Compensation Act if:
1. The employer, agent, or carrier had knowledge of the injury or death and the it is found the employer was not prejudiced;
2. The board excuses the failure on some satisfactory ground; or
3. Objection to the failure is raised before the board at the first hearing of a claim for compensation.
The Alaska Supreme Court has adopted a discovery rule in the workers’ compensation context. “Under this rule, the limitations period will begin to run on a claim only when a claimant knows:
(1) that he has an injury;
(2) that his injury is related to his employment; and
(3) that his injury has resulted in a disability.”
Groom v. State, Dep't of Transp., 169 P.3d 626, 640 (Alaska 2007).
Notice of Injury
Pursuant to Alaska Stat. § 23.30.100(b) notice of an injury must be in writing and contain the following:
1. Name and address of employee;
2. Time, place, nature, and cause of the injury or death; and
3. Be signed by the employee or by a person on behalf of an employee
Statute of Limitations
Alaska Stat. § 23.30.105(a) provides as follows: “[t]he right to compensation for disability under this chapter is barred unless acclaim for it is filed within two years after the employee ahs knowledge of the nature of the employee’s disability and its relation the employment and after disablement.” The maximum time allotted for filing any claim other than those arising out of an occupational disease is four years from the date of injury.
Failure to file timely is not a bar unless objection to the failure is made at the first hearing on the claim where all parties in interest have been provided reasonable notice and an opportunity to be heard. Alaska Stat. § 23.30.105(b).
Special Rules for Death Claims
Right to compensation for death is barred unless a claim is filed within one year after death. The only exception is if payment of compensation has been made without an award on account of the death, a claim may be filed within two years after the date of the last payment of benefits. Alaska Stat. § 23.30.105(a).
Occupational Disease Claims
In cases of latent injuries causing compensable disabilities, the injured employee has full right to claim as shall be determined by the board, time limitations notwithstanding. Alaska Stat. § 23.30.105(a). An occupational disease falls under the Alaska Workers' Compensation Act if the disease was likely caused by the employment and not as a result of living conditions in general. Aleutain Homes v. Fischer, 418 P.2d 769 (Alaska 1966).
The employer who was closest in time and bears a causal relation to the disability is generally liable for the entire compensation of an occupational disease. Underwrites at Lloyds v. Alaska Indus. Bd., 160 F. Supp. 248 (D. Alaska 1958).
Extension of Limitation Period
If payment of compensation has been made without an award on account of an injury, a claim may be filed within two years after the date of the last payment of benefits. Alaska Stat. § 23.30.105(a).
Pursuant to Alaska Stat. § 23.30.120, the Alaska Workers' Compensation Act provides a general presumption of compensability. It is presumed that a claim for compensation is valid in the absence of substantial evidence to the contrary if the following four conditions are met:
1. The claim comes within the provisions of the Act;
2. Sufficient notice of the claim has been given;
3. The injury was not proximately caused as a result of the employee being intoxicated or under the influence of drugs; and
4. The employee did not intend to injure or kill self or another.
When determining the compensability of an injury and whether the injury arose out of the course and scope of employment, the Board must consider the relative contribution of different causes of the injury or need for medical treatment. Compensation for benefits under the Alaska Workers' Compensation Act is only due where the employment was the substantial cause of the injury. Alaska Stat. § 23.30.010. Aggravation, acceleration, or combination with a disease to bring about an injury may be compensable under the act as long as it arises out of the course and scope of employment. Wilson v. Erickson, 477 P.2d 998 (Alaska 1970).
An injured worker is afforded a presumption that all the benefits he or she seeks are compensable. AS 23.30.120(a) provides in pertinent part: “In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of the chapter….” The Alaska Supreme Court has held “the text of AS 23.30.120(a)(1) indicates that the presumption of compensability is applicable to any claim for compensation under the workers' compensation statute.” Meek v. Unocal Corp., 914 P.2d 1276, 1279 (Alaska 1996), (quoting Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991)).
The employee must present some evidence that
(1) he has an injury and
(2) an employment event or exposure could have caused it.
The evidence necessary to raise the presumption of compensability varies depending on the type of claim. “[I]n claims based on highly technical medical considerations, medical evidence is often necessary in order to make that connection.” Burgess Construction Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981). In less complex cases, lay evidence may be sufficiently probative to establish causation. Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).
The Alaska Workers' Compensation Act defines injury as accidental injury or death arising out of and in the course of employment, including an occupational disease or infection that arises naturally out of the employment or that naturally or unavoidably results from an accidental injury. This includes breakage or damage to eyeglasses, hearing aids, dentures or prosthetic devices. It also includes an injury caused by the willful act of a third person against an employee because of the employment. Alaska Stat. § 23.30.395(24).
Types of Injuries
Accident Not Required
While an accidental injury causing trauma or derangement to an employee’s body is obviously compensable, Alaska provides compensation for many more esoteric types of injuries. A disease may be considered an injury under the Alaska Workers' Compensation Act if it is traceable to a definite time and place of origin and not be an anticipated circumstance of an employee’s work but rather be contracted as a direct result of unusual circumstances connected therewith. McNeill & Libbey v. Alaska Indus. Bd., 11 Alaska 327 (1947).
Employees exposed to a serious risk of contracting a disease known to be highly contagious or infections and possibly deadly will be considered “injured” for purposes of the Alaska Workers' Compensation Act if the employee is able to demonstrate a link between working for the employer and the condition. See, e.g. Bolieu v. Our Lady of Compassion Care Ctr., 938 P.2d 1270 (Alaska 1999).
Heart conditions including but not limited to heart attacks are compensable. A heart attack is considered within the statutory presumption of compensability of accidental injuries under the Alaska Workers' Compensation Act. Employers Com. Union Ins. Cos. V. Schoen, 554 P.2d 1146 (Alaska 1976).
Pursuant to Alaska Stat. § 23.30.010(b), mental injuries are generally not compensable under the Alaska Workers' Compensation Act, unless it is established:
1. The work stress was extraordinary and unusual in comparison to pressures or tensions experienced by individuals in comparable work environments; and
2. The work stress was the predominant cause of the mental injury.
A mental injury is not considered to arise out of the course and scope of employment if it is the result of a disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or other similar action taken in good faith by the employer.
Occupational disease or infection that arises naturally out of the employment or that naturally or unavoidably results from an accidental injury has been considered as an injury under the Alaska Workers' Compensation Act and is considered compensable. Alaska Stat. § 23.30.395(24).
The Alaska Workers' Compensation Act specifically addresses coverage for disability from disease for certain firefighters. Alaska Stat. § 23.30.121. There is a presumption of compensability for a firefighter as defined under the act for disability as a result of the following diseases:
1. Respiratory disease;
2. Cardiovascular events experienced within 72 hours of exposure;
3. Primary brain cancer;
4. Malignant melanoma;
6. Non-Hodgkin’s lymphoma;
7. Bladder cancer;
8. Ureter cancer;
9. Kidney cancer; and
10. Prostate cancer.
EXCLUSIONS AND DEFENSES
Arising Out of and in the Course and Scope of Employment
An injury is compensable under the Alaska Workers' Compensation Act only if it arises out of and is in the course and scope of employment. Alaska Stat. 23.30.395(2) defines this as:
employer-required or supplied travel to and from a remote job site; activities performed at the director or under the control of the employer; and employer-sanctioned activities at employer-provided facilities; but excludes recreational league activities sponsored by the employer, unless participation is a condition of employment, and activities of a personal nature away from employer-provided facilities.
Test for Applicability of the Act
The work being performed by the employee at the time of injury will be considered in relation to the regular business of the employer. The employee’s status will be determined by the consideration of the character of the work or business and the relationship of the employee’s work or business to the employer’s business. Searfus, 472 P.2d 966 (Alaska 1970); Ostrem, 511 P.2d 1061 (Alaska 1973). There must be a causal connection between the working conditions and the injury, and it must be possible to trace the injury to the nature or risks of the employer’s work or business. Ellamar Mining Co. v. Possus, 247 F. 420 (9th Cir. 1918). Where an injury occurs at a time where personal and business activities are combined, the injury is not per se compensable. Malone v. Lake & Peninsula Borough Sch. Dist., 977 P.2d 733 (Alaska 1999).
As a general rule under the Alaska Workers' Compensation Act, employment begins once the employee has reached the employer’s premises. Uganik Fisheries, Inc. v. Alaska Indus. Bd., 12 Alaska 242 (1949).
In the case of travel, Alaska courts have found that if the travel is necessitated by the employment, the employee is presumed to be in the course and scope of his or her employment. Id.
Commuting to and from work is generally not in the course and scope of employment. This is commonly known as the “coming and going rule.” R.C.A. Serv. Co. v. Liggett, 394 P.2d 675 (Alaska 1964). The following are exceptions thereto:
1. Special errand exception;
2. Special hazard exception;
3. Compensation exception;
4. Employer provided transport; and
5. Remote site doctrine
Special Errand Exception
An employee may be considered to have a compensable injury under the Alaska Workers' Compensation Act in a case where an employee is coming and going and would generally not be considered within the course and scope of his or her employment if that employee has an express or implied agreement that the work begins when he or she leaves his or her home and is required to drive for extra hours or is required to run special errands which benefit the employer. Liggett, 394 P.2d 675 (Alaska 1964).
Special Hazard Exception
Where an employer is required to maintain or control a hazard in an area adjacent to its premises, even if it is a public hazard, any injury to an employee is considered to be compensable due to the employer’s legal duty. Seville v. Holland Am. Line Westours, 977 P.2d 103 (Alaska 1999).
If an employee is compensated for the time he or she commutes, than that employee is considered within the course and scope of his or her employment. State, Dep’t of Hwys. V. Johns, 422 P.2d 855 (Alaska), aff’d, 431 P.2d 148 (Alaska 1967).
Transportation Included in Employment Exception
When an employee’s employment requires him or her to take a vehicle to and from work and the vehicle is an integral part of the employee’s employment, any injury will be generally compensable. State, Dep’t of Hwys. V. Johns, 422 P.2d 855 (Alaska), aff’d, 431 P.2d 148 (Alaska 1967).
Remote Site Doctrine
Activities that would normally be considered non-work related are considered part of an employee’s job for workers compensation purposes due to the necessity the employee is living at a remote site and thus has limited activity choices. Doyon Universal Servs. & Alaska Nat’l Ins. Co. v. Allen, 999 P.2d 764 (Alaska 2000). Even recreational activities at a remote site can fall under the act in certain circumstances. See, e.g., Anderson v. Employers Liab. Assurance Corp., 498 P.2d 288 (Alaska 1972).
Premises and Parking Lot Cases
In Alaska, employment begins when the employee reaches the entrance of the employer’s business. Uganik, 12 Alaska 242 (1949). Injuries that occur on areas outside or adjacent to the premises, such as a parking lot, may be compensable if there is a causal connection between the conditions the employee must enter or leave the premises and the occurrence of the injury. Seville v. Holland Am. Line Westours, 977 P.2d 103 (Alaska 1999).
Related to Employment
Alaska law provides that in order to be compensable an injury must arise out of and occur in the course of employment. Alaska Stat. § 23.30.395(2). The Alaska Supreme Court has upheld that the injury must meet both the test of “arising out of” and the test “in the course of” employment. Northern Corp. v. Saari, 409 P.2d 845 (Alaska 1966). In order to meet the two tests, the injury must not only be incidental to employment but also have been reasonably foreseeable by the employer. Anchorage Roofing Co. v. Gonzales, 507 P.2d 1134 (Alaska 1978). If the injury to the employee is connected with any of the incidents of employment, the injury would be presumed to arise out of and be in the course and scope of employment. Id.
Intentionally Self-Inflicted Injury or Death
Alaska Stat. § 23.30.235 provides that compensation is not available if the injury was proximately caused by the employee’s willful intent to injure. “An act is willful if it is done intentionally and purposefully, rather than accidentally or inadvertently. Walt's Sheet Metal v. Debler, 826 P.2d 333, 336 (Alaska 1992).
Employee’s Violation of the Law, Intoxication and Other Drugs
Alaska Stat. § 23.30.235 provides that compensation is not available for an injury:
(1) Proximately caused by the employees willful intent to injure or kill any person; or
(2) Proximately caused by the intoxication of the injured employee being under the influence of drugs unless the drugs were taken as prescribed by the employee’s physician.
The Alaska Workers’ Compensation Board has followed the majority rule that when an injured employee retires there must be an inquiry into whether the employee is retiring voluntarily or as a function fo the job-related injury.
If the injury causes the worker to retire for all purposes or interferes with plans to continue working elsewhere, then the worker cannot be said to be unwilling to work and would have an earning capacity diminished by the injury. Thus, the worker may establish by preponderance of the evidence an intent to pursue other work interrupted by the job-related injury.
Yvaneck N. Tremblay, Employee, Applicant, 198410940, 2003 WL 150815 (Alaska Work. Comp. Bd. Jan. 14, 2003).
Calculation of Average Weekly Wage
Pursuant to Alaska Stat. § 23.30.175, the weekly rate of compensation for disability or death may not exceed the maximum compensation rate, 120 percent of the average weekly wage, may not be less than 22 percent of the maximum compensation rate, and initially may not be less than $110. The average weekly wage is determined by dividing the average annual wage for the preceding calendar year by 52. Additional calculations are necessary if the employee no longer resides within the State.
In Alaska, an employee is permanently totally disabled if that employee is permanently disabled from doing any work. The employee will be paid 80 percent of his or her spendable weekly wages during the continuance of the total disability. Alaska Stat. § 23.30.180. Loss of both hands, both arms, both feet, both legs, or both eyes is automatically presumed to constitute permanent total disability. In all other cases, the determination is fact intensive. Id.
Alaska law also provides for total disability that is temporary in nature. In that case, the employee is again compensated 80 percent of his or her spendable weekly wages during the time of disability. Alaska Stat. § 23.30.185.
Any disability less than total is partial disability.
In order to determine the amount of compensation owed, the whole person impairment rating assigned by a physician is multiplied by $177,000. Alaska Stat. § 23.30.190. Alaska law proscribes that all determinations of both the existence and degree of any rating shall be determined as set forth in the American Medical Association Guides to the Evaluation of Permanent Impairment. Id. If there was a pre-existing condition for which the employee already had an impairment rating, any rating subsequent to the work-related injury shall be reduced by the prior impairment rating. Id.
Alaska Stat. § 23.30.041 governs rehabilitation of injured workers. Rehabilitation of an employee can be stipulated by the employee and employer at any time. If an employee is unable to return to work within 45 days, the reemployment benefits administrator shall notify the employee within 14 days of the employee’s rights regarding rehabilitation. If an employee is unable to return to work within 60 days, either party may request an eligibility evaluation. If an employee is unable to return to work within 90 days, the reemployment benefits administrator shall, without any request, order an eligibility evaluation.
Alaska Stat. § 23.30.041(e) requires strict compliance with the physical capacity description set forth in the United States Department of Labor’s Dictionary of Occupational Titles, even though it may not be commensurate with the actual physical capacities expended in the employee’s position. Konecky v. Camco Wireline, 920 P.2d 277 (Alaska 1996),
Job Dislocation Benefits
In lieu of reemployment benefits, an injured employee, who has been assigned an impairment rating, may select a job dislocation benefit pursuant to Alaska Stat. § 23.30.041(g)(2). In order to elect the benefit, the employee must sign a waiver indicating that he or she understands the benefits and rights being waived by the election.
Employer Job Offer
Alaska Stat. § 23.30.041(f)(1) states:
An employee is not eligible for reemployment benefits if
the employer offers employment within the employee's predicted post-injury physical capacities at a wage equivalent to at least the state minimum wage under AS 23.30.065 or 75 percent of the worker's gross hourly wages at the time of injury, whichever is greater, and the employment prepares the employee to be employable in other jobs that exist in the labor market;
See Michael W. Wheeler v. Trident Seafoods, Inc., AWCB NO. 8901347, 1990 WL 264865 (Alaska Work. Comp. Bd. Mar. 30, 1990)
Alaska Stat. § 23.30.041 provides for rehabilitation and reemployment of injured workers. Under this statute an employee’s claim for reemployment benefits will be evaluated by a rehabilitation specialist. Rehabilitation specialist is defined as “a person who is a certified insurance rehabilitation specialist, a certified rehabilitation counselor, or a person who has equivalent or better qualifications…”
Amputation or Loss of Use
Amputation or loss of use constitute a permanent physical impairment pursuant to Alaska Stat. § 23.30.205(f).
Alaska law no longer specifically provides for cases involving disfigurement and/or scarring. However, Alaska Stat. § 23.30.190 provides that an employee will be compensated for an impairment that is partial in character but permanent in quality that does not result in permanent total disability.
Loss of Sight
Loss of sight of one or both eyes or a partial loss of uncorrected vision more than 75 percent bilaterally represents is identified under Alaska Law as a permanent physical impairment. Alaska Stat. § 23.30.205(d)(1)(F).
Loss of Hearing
Hearing loss is not specifically provided for in Alaska. However, if the hearing loss is a result of an injury arising out of and in the course and scope of employment, it may be compensable under the law. Alaska Stat. § 23.30.190 provides that an employee will be compensated for an impairment that is partial in character but permanent in quality that does not result in permanent total disability.
Pursuant to Alaska Stat. § 23.30.155 compensation must be paid promptly to an employee who is entitled to it, except where the employer has contorverted a claim by filing notice with the director. If payment is not made by the seventh day after payment is due, a penalty equal to 25 percent of the amount then due must be paid to the employee. Penalties will not be assessed if a controversion is filed within 21 days of notice to the employer of an injury; if the employer files a controversion notice within 21 days of the last payment issued; or if the late payment was due to a situation outside the control of the employer.
Alaska Stat. § 23.30.155(p) provides that an employer is required to pay interest on compensation that is not timely paid. Interest required accrues at the rate specified under the Code of Civil Procedure for prejudgment interest.
8 AAC 45.180(f) provides that the employee shall receive his or her reasonable costs where the employee prevailed at the hearing on the claim. A statement must be filed listing the costs. Costs awarded are at the Board’s discretion, but include: witness fees; court reporter fees; medical record fees; expert and treating physician fees; travel costs; telephonic participation; costs; copy costs; and any other costs determined by the board.
All awards of attorney’s fees must be approved by the Board. “The fees may not be less than 25 percent on the first $1,000 of compensation… and 10 percent of all sums in excess of $1,000 of compensation.” Alaska Stat. § 23.30.145(a). The Board shall consider the representation offered when contemplating the award, by considering the nature, length, and complexity of the services offered.
Where death results from an injury or occupational disease under the Act, weekly compensation benefits and burial expenses are provided. The percentage of weekly compensation benefits will depend on whether or not the widow/widower has children. Burial expenses are capped at $10,000. Alaska Stat. § 23.30.215.
Widow is defined as “the decedent’s wife living with or dependent for support upon the decedent at the time of death, or living apart for justifiable cause or by reason of the decedent’s desertion at such a time.” Alaska Stat. § 23.30.395(40).
Widower is defined as “the decedent’s husband living with or dependent for support upon the decedent at the time of death, or living apart for justifiable cause or by reason of the decedent’s desertion at such a time.” Alaska Stat. § 23.30.395(41).
Alaska Stat. § 23.30.215 provides that a child is eligible to receive benefits under the Act. Child includes, “posthumous child, a child legally adopted before the injury of the employee, a child in relation to whom the deceased employee stood in loco parentis for at least one year before the time of injury, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on the employee.” Alaska Stat. § 23.30.395(7).
Death Benefits/Parents and Siblings
A parent or sibling of a decedent can be considered a dependent under certain circumstances. Alaska Stat. §23.30.215(a)(4).
Death Benefits/Amount of Benefits
Alaska law provides the percentages of spendable weekly wage due to dependents based on the makeup of the dependents and shall be provided pursuant to the Act. Death benefits cease once the dependent who received the benefit is no longer entitled to the same. Alaska Stat. § 23.30.215.
The employer is obligated to pay medical expenses for up to two years following the injury. After two years, medical expenses may be ordered by the Board to continue. The employee has the choice of doctor, but can request the employer appoint a physician to designate care. If at any time, the employee refuses to submit to medical treatment, the Board may suspend the payment of further compensation while the refusal continues. Alaska Stat. § 23.30.095.
At the employer’s request, the employee must, at reasonable times during the continuance of disability, submit to an examination by a physician of the employer’s choosing. Failure to submit to an examination can lead to the suspension of benefits. Alaska Stat. § 23.30.095(e).
Employer’s are not liable for palliative care after the date of medical stability unless the care is to enable the employee to continue employment; to enable the employee to participate in a reemployment plan or to relieve chronic debilitating pain. Alaska Stat. § 23.30.095(o).
An employer is required to pay reasonable transportation expenses. The employee must use the most reasonable and efficient means of transportation under the circumstances. A reasonable amount for meals and lodging when traveling for medical purposes must also be reimbursed if supported by receipts. 8 AAC 45.084.
Refusal of Medical Treatment
An employee’s failure to receive medical treatment may result in the suspension of benefits. Alaska Stat. § 23.30.095. However, due to the risks involved in surgery, refusal of surgery may not lead to the suspension of benefits. The Board will consider the facts surrounding the refusal of surgery. Fluor Alaska, Inc. v. Mendoza, 616 P.2d 25 (Alaska 1980).
SUBROGATION OR CREDIT
Even if an employee files an action against a third party for the same incident giving rise to an award under the Act, the employer must continue to pay benefits. Alaska Stat. § 23.30.015
If an employee accepts compensation under the Act and a third party is liable, the employee assigns all rights to recover damages from the third person unless the employee files an action against the third person within one year after an award. Alaska Stat. § 23.30.015.
If an employee through a third party action recovers damages, the employee must repay the employer for benefits paid if the recovery is sufficient after deducting all litigation costs and expenses.
Alaska case law has addressed attorney’s fees under a third party recovery, and the total amount considered must be reduced by an attorney’s fees and costs as consideration for the fact that the employer did not have to participate in the third-party litigation under which a recovery was realized. See Cooper v. Argonaut, 556 P.2d 525, 526 (Alaska 1976); Stone v. Fluid Air Components of Alaska, 990 P.2d 621 (Alaska 1999).
Motor Vehicle Accidents
The receipt of third party benefits does not affect an injured claimant’s ability to collect benefits under the Act.
Under the Act, workers’ compensation benefits are presumed to cover the claimed injury. Any insurance will be subject to reimbursement to the extent that other health benefits were paid.
Compensation is not payable to an employee under the Act for permanent total disability or temporary total disability for a week in which the employee receives unemployment benefits. Alaska Stat. § 23.30.187.
There is no specified certifying organization in Alaska. A person may only collect fees for representation if they are licensed to practice law in Alaska or another state.8 AAC 45.180
There is no workers’ compensation specialist certification in Alaska.
There is no workers’ compensation specialist certification in Alaska.
The Alaska Division of Insurance sets forth all licensing and continuing education requirements for adjusters.
LITIGATION AND APPEAL
Workers’ Compensation Board Proceedings
Alaska Workers’ Compensation Board
The Board is organized by judicial district. There are five judicial districts in Alaska. There are different numbers of members and panels depending on the population of each district. Each panel must include the commission of labor and workforce development or a representative appointed to represent the commissioner. The commissioner or person acting therefore shall serve as the chair. A claim may be heard by only one panel. Alaska Stat. § 23.30.005.
Appointment of Workers’ Compensation Board Members
Beyond the commissioner, additional members are appointed to the Board by the governor. They are subject to confirmation y a majority of the members of the legislature in joint session. Alaska Stat. § 23.30.005.
Qualifications of WCBM
There are no set qualifications required of members to be appointed to the Board.
The procedures for the Board are set forth in the Alaska Administrative Code. Hearings are scheduled when a claim or petition has been filed and an affidavit for readiness of hearing is filed. 8 AAC 45.070. An affidavit of readiness may generally not be filed until after an answer has been filed to a claim or petition or 20 days after the service of a claim or petition. Hearings will be held for several reasons, including venue, default, discovery or to adjudicate the claim. All testimony given before the board is recorded. Alaska Stat. § 23.30.135.
The Board is not bound by common law, rules of evidence or formal rules of procedure except as required by the Act. “The Board may make its investigation or inquiry or conduct its hearing in the manner by which it may best ascertain the rights of the parties.” Alaska Stat. § 23.30.135.
Reasoned decision is not a term used or defined under the Act in Alaska.
Workers’ Compensation Appeal Commission
A party in interest may appeal to the Appeal Commission within 30 days after a compensation order is filed with the Board. Alaska Stat. § 23.30.127.
In order to be appointed to the panel, a member must be a US citizen; be a resident of Alaska for the preceding five years; have not been convicted of a felony; have not been convicted of a misdemeanor related to workers’ compensation; and have served for a total of not less than 18 months as a member of the Board. Alaska Stat. § 23.30.007.
Scope of Review of WCAC
The commission may review the following: discretionary actions; findings of fact; and conclusions of law. An order will be upheld if supported by substantial evidence in light of the whole record. The commission may also hear evidence regarding the following: stays under Alaska Stat. § 23.30.125; attorney’s fees and costs of appeal; waiver of fees by indigent appellants; and dismissal of appeals for failure to prosecute upon settlement. Alaska Stat. § 23.30.128.
“The commission has jurisdiction to hear appeals from final decisions and orders of the board under [the Act].” Alaska Stat. § 23.30.007.
Final decisions of the appeals commission are to be appealed to the Supreme Court. Alaska Stat. § 23.30.129.
Appeal to Supreme Court
The weight the appeals commission affords a witness’s testimony is conclusive even if evidence is conflicting or contrary. The appeals commission’s finding of fact may be reversed if they are not supported by substantial evidence in light of the whole record. Alaska Stat. § 23.30.129
Mediation is not mandatory under the Act in Alaska.
Voluntary mediation is always an option for employers and employees. Together the parties will select a third-party to mediate their matter. There is no statutory authority for mediation under the Act in Alaska.
Informal Settlement Conferences
Informal settlement conferences are not provided for under the Act in Alaska.
Compromise and Release
Any time after death or 30 days post-injury, the parties may reach an agreement to settle the claim. The agreement must be filed with the director in the form of a memorandum. If it is not, the agreement will be considered void. The filed agreement will be reviewed by a panel of the Board to ensure that the employee is protected. If the Board approves the agreement it shall be enforceable and discharge any liability on the part of the employee. Alaska Stat. § 23.30.012.
An employer in Alaska must either maintain workers’ compensation insurance or demonstrate the director the employer’s ability to pay a directly a claim for compensation. Alaska Stat. § 23.30.075.
If an employee suffers a compensable injury that results in temporary total or temporary partial disability, permanent partial or permanent total disability, the employer must make a contribution to the second injury fund. The amount is determined by the compensation provided to the employee. If an employee dies as a result of a compensable injury, the employer shall pay $10,000 to the second injury fund. Alaska Stat. § 23.30.040.
General Rule Where Employer is Uninsured
An employer is still liable even if they do not have the requisite insurance. In an action against an employer for a compensable injury where the employer is uninsured, it is presumed the injury was the “first result growing out of the negligence of the employer and that the employer’s negligence was the proximate cause of the injury; the burden of proof rests upon the employer to rebut this presumption of negligence.” Alaska Stat. 23.30.080.
If it is found that an employee has failed to secure the appropriate insurance, the Board at the request of the division may issue a stop order to prohibit the use of employee labor until the employer acquires the requisite insurance or security. Alaska Stat. 23.30.080.
Damages by Action at Law Where Employer is Uninsured
An employer who does not have the requisite insurance or security may be assessed a civil penalty of up to $1,000 per employee, per day for the period the employer failed to insure or provide the requisite security. Alaska Stat. § 23.30.082.
Uninsured Employers Guaranty Fund
The Guaranty Fund exists to carry out the Act. The fund is comprised of civil penalty payments by employers, interest, investments and appropriations. An employee who works for an employer without insurance or requisite security may apply to receive compensation from the fund. Alaska Stat. § 23.30.085.