State News : Alaska

The Governor signed SB 206 affecting workers compensation. It is effective 1/1/25.

NOTICE. The notice deadline in section AS 23.30.100(a) has been shortened from 30 days to 15 for Employee to report the injury to Employer.

REEMPLOYMENT: While the Board has to notify people of their rights sooner, the time frames for Employer’s mandatory referral was extended from 90 days to 120 days. The tuition amount went up to $22,150 and can be adjusted every 5 years to account for inflation. The SCODDOTS are replaced with the OIN database published by the US Dept of Labor. This is more objective than having rehab specialists develop job descriptions in every claim. This is a good change—updated objective job descriptions including jobs that didn’t exist back in the day when SCODDOTs were created.

A major change is the adoption of a “stay at work” program as AS 23.30.043. It will be developed by the rehab specialist and provided to the employee, employee, program coordinator, and attending physician. The board has to adopt regulations to develop the standards and procedures a rehab specialist must use to develop the stay at work plan. It is apparent that the employer will need to be responsive and be involved in this process. Fortunately, there is an opt-out provision. An employer may elect not to participate or continue to participate in the stay at work plan at any time before completion of the plan. This section is vague, with the discretion left to the board to implement regulations and procedures.  This is a process that we should try to be involved in as employer representatives and provide perspective on how this will impact real life. 

In addition, a last minute addendum was tacked on that resulted in a major change is the presumption of compensability for PTSD for a number of professions mostly related to first responders. AS 23.30.118. The notice timeline, presumption standard and rebuttal standard are all altered by this bill.

 The PTSD has to be diagnosed by a psychologist or psychiatrist. The diagnosis must come within 3 years after the last day of employee’s employment. We are not sure where/why this timeline came from as it is different from 2-year latent injury, and it doesn’t seem to be tied to any particular event, just general employment as a reason in one of the identified positions is sufficient to trigger the presumption of compensability. It also eliminates the comparison with others in a similar role. A broad category that it may apply to is “employees who are certified under state law to perform emergency medical services.” It appears broad enough to potentially include home health care workers and medical providers.

 Relevant definitions are in AS 18.08.200:

(9) “emergency medical services system” means a system that provides for the arrangement of personnel, facilities, and equipment for the effective and coordinated delivery of health care services, including trauma care, under emergency conditions, occurring either as a result of the patient's condition or of natural disasters or similar situations, and that is administered by a statewide network that has the authority and resources to provide effective administration of the system;

(13) “provider of emergency medical services” means a person whose occupation or profession is, or has been, the delivery or administration of emergency medical services; a person who has a fiduciary position with, or has a fiduciary interest in, a health activity, facility or other health agency, or a legal or financial interest in the rendering of any component of emergency medical services.”

Once the presumption has attached, there is a secondary change in the legal standard for rebuttal. The phrase “may be rebutted by a preponderance of the evidence that the employee’s PTSD resulted from factors that were not work related” is problematic because it means that we cannot controvert based on “substantial evidence.” Preponderance of the evidence is a factual determination by a trier of fact. This means that once the presumption of compensability is triggered by a psychologist or psychiatrist as minimally as, “Jane Doe has been diagnosed with PTSD and is unable to work. She was a nurse within the last 3 years,” there is no ability to controvert and the claim must go to hearing to establish whether the preponderance of evidence demonstrates that the PTSD resulted from factors that are not work related. The presumption for compensability “may be rebutted by a preponderance of the evidence that the employee’s PTSD resulted from factors that were not work related.” This appears to create an entirely new standard when compared to AS 23.30.010(b) which is that the work stress must be the predominant cause of the work injury.

In a practical application it means that large groups of first responders could all be taken off work at once with no recourse for Employers until after a merits hearing (which can take 9 months or more). There are also likely butterfly effect ramifications and increased stress that will result from understaffing. Without the comparison and controversion abilities there is little opportunity for mitigation. This portion of the legislation really deserved public comment and more thought.