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Many clients are asking whether the new COLA calculation for workers at the maximum compensation rate adopted by the Alaska Supreme Court in the Roberge case will apply retroactively to the inception of a claim, will only apply going forward (prospective application), or whether there will be some intermediate limit placed on past benefits that can be claimed and awarded based on fairness. The Court in Roberge did not address that issue. The Supreme Court has the authority to determine whether a new rule should be applied retroactively or prospectively, but it would take litigation to reach that result. The application of Roberge is therefore an issue that can be legally challenged, and we expect the issue to be litigated.
When the Supreme Court altered the calculation of disability benefits under the Act in the past, it applied four factors to determine whether a new rule should be applied retroactively or only prospectively:
1) Whether the holding either overrules prior law or decides an issue of first impression whose resolution was not anticipated;
2) Whether the purpose and intended effect of the new rule of law is best accomplished by a retroactive or a prospective application;
3) The extent of reasonable reliance upon the old rule of law; and
4) The effect on the administration of a retroactive application of the new rule of law.
Based on these factors as applied in other cases, we expect the Board and the Court to decide that Roberge will generally apply retroactively to any claims that are open to adjudication and/or preserved for appeal.
Still, each case is different and may present facts that support a limitation on retroactive application of Roberge. For example, if a compensation rate issue was raised and settled in a case, an adjustment will likely not be allowed. If a C&R covering indemnity benefits was done, claiming additional past disability benefits will also likely be prohibited. And if more than two years has passed since the last payment of benefits, the statute of limitations in section .105 of the Act might apply.
On the other hand, for workers or beneficiaries currently receiving undisputed PTD or death benefits, there is likely no statute of limitations running on a claim for increased weekly benefits and there is a significant risk that increased benefits will be awarded from the inception of those benefits. The Supreme Court would have to determine if it would be unfair to employers to impose increased liability going back many years and the Court could adopt a limit of some kind, but it would take litigation to reach that result.
We recommend a practical approach to the issue of retroactive application of Roberge: determine the exposure and assess if litigating the issue will be worthwhile. Settlement may be preferable, or voluntarily paying additional past benefits may be the best option in order to avoid legal cost exposures.
If you decide to challenge liability for retroactive benefits, the most conservative approach is a petition asking for a Board determination whether and how far back a compensation rate adjustment needs to be made. A more aggressive approach is to file a controversion notice on the basis that Roberge does not apply retroactively under the factors described above. Since the issue of retroactive application of the rule adopted in Roberge is a question of law, a controversion on that basis could be filed in good faith. The worker would have to decide whether to challenge the controversion. Ultimately the issue will have to be decided by the Alaska Supreme Court.
In February, the Alaska Supreme Court issued a decision in Roberge v. ASRC in which it established a new method for applying the cost-of-living adjustment (COLA) under AS 23.30.175 for workers who are entitled to benefits at the maximum compensation rate. As a result, workers residing out-of-state who have been paid TTD benefits may be entitled to a higher compensation rate based on the new rule.
Prior to the Court’s decision, the rule as stated by the Appeals Commission was that employers and insurers would cap TTD/PTD benefits at the maximum compensation rate and then apply the applicable COLA adjustment to reduce the rate below the maximum. Using that method, a worker who was subject to COLA reductions would never receive the maximum Alaska rate where the cost of living was less than in Alaska.
However, in the Roberge case, the Supreme Court held that the Commission erred in its interpretation of the COLA statutes. The Court held that, for workers paid at the maximum compensation rate, employers and insurers must first apply the COLA adjustment to the “uncapped” TTD rate (the TTD rate that would apply if there was no maximum rate). If the COLA adjustment lowered the “uncapped” TTD rate below the maximum rate, that lower rate would apply. If the COLA adjustment did not lower the “uncapped” TTD rate below the maximum rate, the maximum rate would still apply, effectively eliminating the COLA.
This is best illustrated through an example:
A worker is injured on 9/20/21, is single with no dependents (S-1) and lives in Atlanta, Georgia after injury. The COLA rate for Atlanta is .6977. Gross weekly earnings equal $2,500.00. The board’s Benefit Calculator states that the spendable weekly wage (SWW) is $1,901.33 and the maximum TTD rate is $1,298.00. The Benefit Calculator does not state what the TTD rate would be if there was no maximum rate.
Prior formula: Based on GWE of $2,500.00, the maximum compensation rate of $1,298.00 applies per the board’s Benefit Calculator. The COLA for Atlanta of .6977 is applied to the maximum rate and reduces the TTD rate to $905.61 ($1,298 x .6977 = $905.61).
Revised formula under Roberge:
1) For workers at the maximum TTD rate, determine the TTD rate as if there was no maximum rate (the “uncapped” TTD rate). In this example, based on a GWE of $2,500, the spendable weekly wage (SWW) would be $1,901.33 and the “uncapped” TTD rate would be $1,521.06 (80% of the SWW). The board’s Benefit Calculator provides the SWW but not the “uncapped” TTD rate. Multiply the SWW by .8 to get the “uncapped” TTD rate.
2) Apply the COLA to the “uncapped” TTD rate. In this example, multiply $1,521.06 by .6977. The result is $1,061.24.
3) Determine if the result from step 2 is above the maximum TTD rate for that year. If so, the maximum rate applies and no COLA is taken. If less than the maximum rate, the result from step 2 applies. In this example, the TTD rate of $1,061.24 from step 2 applies after the COLA.
In this example, the worker would receive $155.63 more per week in TTD benefits under the new formula compared to the prior COLA calculation method. The overall impact of this change is that a COLA might not apply in the case of a very high wage earner or may lead to a lower COLA adjustment than before.
Be aware that this procedure is only necessary if the worker is at the maximum compensation rate prior to application of a COLA. If the board’s Benefit Calculator indicates that the TTD rate is less than the maximum before any COLA, this procedure need not be followed and the COLA should be calculated as usual.
ALSO BE AWARE THAT THIS NEW FORMULA WILL APPLY IN DEATH CASES WHERE THE MAXIMUM COMPENsATION RATE APPLIES.
In light of the Court’s ruling in Roberge, we recommend that you review all cases where the maximum TTD/PTD rate applies and where a COLA has been taken to determine if a rate adjustment is necessary. This will avoid unnecessary attorney’s fees and litigation costs.
We issued a newsletter on 9/27/21 describing our view that a two-part causation test applies in Alaska to occupational diseases cases such as COVID-19 claims. We discussed that to be compensable, an occupational disease 1) must be caused by the conditions of the employment, and 2) the employment must create a risk of contracting the disease that is greater than that which generally prevails in employment and living conditions. Under this test, if work presents the same risk of contracting a disease as generally exists in employment and living conditions (e.g., co-worker spread of a common contagious disease), the disease is not an “occupational disease” for benefit purposes even if acquired at work.
Because this test was adopted in Alaska Supreme Court cases issued in 1966 and 1985 and has not been significantly discussed since then, it was unclear if the Board would follow that case law or strike out in a different direction. However, on January 13, 2023, the Board issued a decision adopting the above two-part legal test, denying compensability of a COVID-19 claim by an employee of Chugach Electric Company who alleged she contracted it from a co-worker. See, Cheryl Rapp v Chugach Electric Company, AWCB No 23-0004 (January 13, 2023).
In that case, Ms. Rapp and a co-worker were employed as customer service representatives and worked in proximity to each other in office cubicles. They did their work by telephone and did not have physical contact with the public. The co-worker, Jenny, exhibited signs of illness and on 8/4/21 tested positive for COVID. Ms. Rapp began to experience symptoms of COVID on 8/13/21, nine days after her last exposure to Jenny. She tested negative for COVID that day. Symptoms progressed and by 8/16, Ms. Rapp lost her sense of smell. She tested positive for COVID on 8/17. Ms. Rapp claimed about two weeks of TTD benefits and medical costs related to her bout of COVID. Medical care for her COVID infection was minimal, consisting of three visits to her regular doctor. Ms. Rapp has since fully recovered.
The Board denied the claim under both tests described above. Based on medical evidence from an IME physician, the Board concluded it was more probable than not that Ms. Rapp’s COVID was not contracted at work because of the delay between the last exposure and the onset of symptoms. The Board also found that even if contracted at work, the risk of contracting COVID was no greater for Ms. Rapp than the risk generally present in employment and living conditions at that time. That is, co-worker spread of diseases in that kind of employment setting is common, and there was nothing about Ms. Rapp’s work that elevated that risk above that experienced by workers in general.
We view this case as significant because of the Board’s recognition that the two-part causation test described above applies to communicable diseases such as COVID, especially the second test which requires that the risk of contracting the disease through work has to be “greater than that which generally prevails in employment and living conditions.” Under this test, a worker can contract a disease such as COVID from a co-worker, yet the disease would not be “occupational” for benefit purposes if the risk of contracting it was no greater than the risk that generally exists in similar employment settings and living conditions. Since COVID was a pandemic, the risk of contracting it generally existed in both employment settings and in living conditions.
Bear in mind that each case is different and must be evaluated based on the facts presented. COVID can be a compensable occupational disease for some workers and not others. Evaluating the risk in each employment setting will be important in order to determine the best course of action in a particular case.
This newsletter is to inform you of Senate Bill 131, and the changes that are coming to the Alaska Workers’ Compensation Act on January 1, 2023.
Permanent Partial Impairment
Most notably, for the first time in 22 years, the legislature is amending
AS 23.30.190 to increase permanent partial impairment (PPI) benefits. Under the
new law, you will need to multiply an injured worker’s impairment rating
percentage by $273,000, rather than by $177,000 under the current law. This
increase is effective on January 1, 2023, meaning that it will apply to
injuries sustained on or after January 1, 2023. For dates of injury before
January 1, 2023, you will continue to calculate PPI awards by multiplying the
percentage of impairment by $177,000. For injuries on or after January 1, 2023,
the PPI award will be the percentage of impairment multiplied by $273,000. The dollar
amount is the only aspect of AS 23.30.190 that is changing, the rest of the law
will remain intact.
Changes to death benefits under AS 23.30.215 will also go into effect on January 1, 2023. Under the new law, benefits for reasonable and necessary funeral costs increase to $12,000. The amount payable to surviving widows/widowers, or surviving children increases from $5,000 to $8,000. SB 131 substantially increases the maximum payable allowable to a deceased worker’s dependent father, mother, grandchildren, brothers, and sisters. After January 1, 2023, beneficiaries under AS 23.30.215(a)(4) may receive up to $150,000.00 in death benefits. This represents a $130,000 increase from the current maximum of $20,000, which was set in 1968. SB 131 will create a new subsection to AS 23.30.215, which will permit death benefits to a child beneficiary until they are 23. This is a four-year increase in benefits under the current law, and it does not preclude children of deceased workers from receiving an additional four years of benefits during post-high school education under AS 23.30.395(8) The various changes to death benefits under AS 23.30.215 only apply to deaths that occur on or after January 1, 2023.
For most insurers, the remaining changes in SB 131 will not impact you. It will amend AS 23.30.121, which only applies to firefighters. In recognition of increased cancer risks for women, the legislature is adding a presumption of compensability for breast cancer following exposure to smoke, fumes, or toxic substances. SB 131 also amends the definition of “firefighter” to clarify which firefighters who work for the state, municipal, or volunteer departments may come within the provisions of AS 23.30.121. Unlike claims for PPI or death benefits, firefighters with injuries prior to January 1, 2023, can apply the legislative changes to AS 23.30.121 going into effect that day. The amendments to AS 23.30.121 will apply to claims made after January 1, 2023.
If you have any questions regarding the impact of SB 131 and its effect on exposures and benefits owed, please reach out to any of the attorneys at our office, and we will be happy to help.
Alaska Statute 23.30.395(24) includes in its definition of an injury, “an occupational disease or infection that arises naturally out of the employment or that naturally or unavoidably results from an accidental injury.” It is well established that a virus such as COVID-19, or Coronavirus, is an illness that if contracted in the workplace, would entitle the affected worker to workers’ compensation benefits that may arise from the illness.
The Alaska Supreme Court, in *Delaney v. Alaska Airlines, *held that in order to succeed in a claim for an “occupational disease” or illness, an employee must show that: 1) the disease was caused by the conditions of their employment; and 2) as a result of the conditions of the employment, the risk of contracting the disease is greater than that which generally prevails in employment and living conditions. In a claim for Coronavirus, the Board would evaluate this two-prong test at the first step of the compensability analysis. Both elements must be satisfied to create the “preliminary link” between employment and the claimed workplace disease. The Alaska Supreme Court described the rationale for requiring a “preliminary link” before finding a worker is entitled to workers’ compensation benefits as, “… the idea is to rule out cases in which claimant can show neither that the injury occurred in the course of employment nor that it arose out of it, as where he contracted the disease but has no evidence to show where he got it. In claims that are ‘based upon highly technical medical considerations,’ medical evidence will likely be necessary for the employee to meet their burden of showing a ‘preliminary link.’”
In reviewing claims for Coronavirus, the Board would likely find that the disease is a “highly technical medical consideration” and require some medical evidence that the worker has contracted the virus. Once medical evidence establishes that a person has the virus, they will also need to show that they contracted it through the conditions of their employment. The Alaska Supreme Court has held that this requirement is intended to bar claims where an employee “has no evidence” that they contracted an illness out of the course of their employment. Employees seeking benefits for Coronavirus would likely need to prevail on one of the two theories of compensability for occupational disease. If the employee can show evidence of direct contact with a person positive for Coronavirus in the workplace, the presumption of compensability will have attached. Or, alternatively, if the employee can show that the condition of their employment exposed them to a greater risk of contracting the disease than the general public, there is also a good chance that the Board would find a preliminary link between the employment and the disability or need for treatment, and the employer and its carrier may be liable.
If the employee can establish the “preliminary link,” the employer must rebut the presumption, or pay benefits on the claim. In *Huit v. Ashwater Burns,* the Alaska Supreme Court held that rebutting the presumption requires the employer to either eliminate the possibility that the illness was related to the employment, or show that some other source outside of the employment caused the disease. It will be difficult to rebut the presumption in cases where the claimant can show direct contact with an infected person in the workplace. In such instances, benefits will likely need to be paid for any disability or need for treatment related to the Coronavirus. Employers and their insurers should have more factual grounds to dispute a claimant’s assertion that their workplace has placed them at a greater risk for contracting the virus than the general population. Factors to consider are how many people might the claimant come in close contact with on an average day, were there safety precautions such as hand sanitizing stations or masks, or other measures in the workplace to reduce the likelihood of spreading the disease was acquired through work exposure.
We recommend that Alaska employers and their insurers and adjusters be prepared for an influx of claims related to the Coronavirus. Actions are being taken at the local and State level to minimize the spread of the virus, and as a result of keeping people away from workplaces that have high risks for spreading the disease, it could result in a significant decrease in the potential burden on employers and their workers’ compensation carriers during this pandemic. Where possible, employers are encouraged to take steps in reducing the possibility of spreading the disease in the workplace. By doing so, it may improve chances of convincing the Board that the person’s employment did not place the claimant at greater risk of getting the disease than the general population.
Claims should be closely evaluated when they come in for whether they satisfy the first step of the presumption analysis and create the preliminary link between their employment and their illness. It will be during that first step of the presumption analysis that employers will have the best chance to successfully deny a claim, because once the presumption has been attached, it may be difficult to successfully rebut under the standard articulated by the Court in *Huit*. Please feel free to contact us if there is more information we can provide on this issue.
Below are informational links from the Division about how COVID-19 is effecting Board and Appeals Commission procedures and from the State of Alaska regarding its mandates which may affect medical care in workers’ compensation claims. Please note that these bulletins and mandates can change.
We wish you all good health!
Meshke Paddock & Budzinski, P.C.
September 5, 2013Commission Keeps Claimant's Counsel and Recording Devices out of Employer's Medical Evaluations
by Merrilee Harrell
A recent decision of the Alaska Workers’ Compensation Appeals Commission concluded that claimant’s counsel may not attend and record an employer’s independent medical evaluation (EME) unless the examining physician consents. InASRC Energy Services, Inc. v. Kollman, AWCAC Decision No. 186 (August 21, 2013), the Commission reversed an interlocutory decision of the Alaska Workers’ Compensation Board that injured worker Jeffrey Kollman may record an EME and have a witness present despite the objection of the employer’s physicians. Kollman v. ASRC Energy Services, Inc., AWCB Decision No. 13-0076 (June 27, 2013). The Board had relied onLangfeldt-Haaland v. Saupe Enterprises, 768 P.2d 1144 (Alaska 1989), which held that a civil litigant had a right to record a court-ordered Rule 35 medical evaluation and have his attorney present during the evaluation. On appeal, the Commission noted that Civil Rule 35 is significantly different from AS 23.30.095(e) of the Alaska Workers’ Compensation Act. AS 23.30.095(e) states that “The employee shall... submit to an examination by a physician or surgeon of the employer’s choice...” which, the Commission noted, leaves the choice of EME physician exclusively with the employer. A Rule 35 medical evaluation, in contrast, may be ordered by a judge “only on motion for good cause shown and upon notice... to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”
The Commission also noted that Langfeldt-Haaland was a 3-2 decision that explicitly limited its holding to Civil Rule 35 medical evaluations. The majority had argued the importance of allowing counsel to “observe shortcomings and improprieties during the examination which could be the subject of inquiries on cross-examination at trial; and ... [to] object to questions posed to the plaintiff during the examination that concern privileged information.” The dissenting judges pointed out that “adopting such a rule could have a chilling effect on otherwise reputable physicians performing medical examinations.” The Commission found the dissent’s position more persuasive, and also took into account a survey of SIME physicians that showed a significant percentage of the physicians surveyed would decline to perform evaluations if they were required to allow the evaluation to be witnessed and recorded. Requiring EME evaluations to be witnessed and recorded would thus have a chilling effect on the employer’s choice of physician if the employer’s choice was limited by such a requirement.
The commission emphasized that the plain language of AS 23.30.095(e) gives the employer the exclusive choice of EME physician, noting that the statute “does not say that the choice of an EME physician is exclusively the employer’s, provided that the employer chooses a physician who would allow witnessing and recording of the EME.” The commission concluded that such a restriction would interfere with the employer’s choice of physician as contemplated by AS 23.30.095(e). Kollman has appealed the Commission’s ruling to the Alaska Supreme Court.
Russell, Wagg, Gabbert & Budzinski510 L Street, Suite 300Anchorage, AK 99501-1952907-258-1747
========RWGB seeks to provide the latest information on workers' compensation law in Alaska. The information provided above is based upon the decision of the Alaska Workers' Compensation Appeals Commission and is subject to change on appeal. RWGB will issue an updated newsletter should the Alaska Supreme Court overrule the Commission's decision.
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