Legislature(2003 - 2004)

2004-04-28 Senate Journal

Full Journal pdf

2004-04-28                     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.