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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nelson v. Municipality of Anchorage (12/23/2011) sp-6630

Nelson v. Municipality of Anchorage (12/23/2011) sp-6630

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 
        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

RYAN NELSON,                                  ) 
                                              )       Supreme Court No. S-13775 
                  Appellant,                  ) 
                                              )       Superior Court No. 3AN-08-04782 CI 
        v.                                    ) 
                                              )       O P I N I O N 
MUNICIPALITY OF ANCHORAGE                     ) 
and WESTERN POWER AND                         )       No. 6630 - December 23, 2011 
EQUIPMENT, INC.,                              ) 
                                              ) 
                  Appellees.                  ) 
                                              ) 

               Appeal from the Superior Court of the State of Alaska, Third 
               Judicial District, Anchorage, Sen K. Tan, Judge. 

               Appearances:      William H. Ingaldson and Peter J. Maassen, 
               Ingaldson,     Maassen     &   Fitzgerald,   P.C.,   Anchorage,     for 
               Appellant.      Joyce    Weaver    Johnson,    Assistant   Municipal 
               Attorney,     and   Dennis    A.  Wheeler,    Municipal     Attorney, 
               Anchorage, for Appellee Municipality of Anchorage.  Marc 
                G. Wilhelm, Richmond & Quinn, Anchorage, for Appellee 
               Western Power & Equipment, Inc. 

               Before:     Carpeneti,   Chief   Justice,   Winfree,   Christen,   and 
                Stowers, Justices.    [Fabe, Justice, not participating.] 

                CHRISTEN, Justice. 

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I.      INTRODUCTION 

                A worker agreed to perform an errand for his employer, a subcontractor, 

on the worker's day off.   While engaged in the errand, the worker was injured at the job 

site.  His employer filed a notice of controversion on the   basis that the worker was 

intoxicated at the time of the injury and his injuries were proximately caused by his 

intoxication.    The   worker   then   sued   the   general   contractor   and   the   Municipality   of 

Anchorage (the owner of the job site) for negligence.  The defendants asked the superior 

court to dismiss the action under the exclusive remedy provision of the Alaska Workers' 

Compensation   Act.       The   superior   court   granted   summary   judgment   to   the   general 

contractor and the Municipality.        The worker appeals, arguing that lack of a workers' 

compensation       remedy    permits    him   to  bring  a  common     law   negligence    action   or, 

alternatively, that the exclusivity provision of the Alaska Workers' Compensation Act 

denies him due process.       He also argues, as a matter of statutory construction, that the 

Municipality cannot be a project owner.           Because the worker has not shown that the 

employer's controversion of benefits left him to his common law remedies, his statutory 

construction and constitutional claims are not ripe.         We also hold that the Municipality 

can be a project owner. 

II.     FACTS AND PROCEEDINGS 

                Ryan Nelson worked for Alaska Concrete & Sawing, Inc. in February 2006. 

Nelson's regular day off was Saturday, but on Saturday, February 4, 2006, Nelson's 

employer   called him at home and asked him to deliver drill bits to a job site at the 

Municipality of Anchorage's Solid Waste Services Transfer Building. 

                The   job   site   was   the   building   where   solid   waste   is   received   from   both 

residential and commercial customers and transferred to dump   trucks bound for the 

municipal landfill.  The building has two levels:  solid waste is dumped onto the "tipping 

floor" on the upper level and then pushed by front-end loaders through openings in the 

                                                 -2-                                            6630
 

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floor.   Dump   trucks   are   filled   when   they   are   driven   through   the   lower   level. Two 

hydraulic cranes, called cherry pickers, are located on opposite sides of the tipping floor. 

                In late January 2006, the Municipality began repairs on the north cherry 

picker after its foundation failed. The Municipality contracted with an engineering firm, 

MACTEC Engineering and Consulting, Inc., to design a new foundation and oversee the 

repairs.     The    Municipality     also   contracted    with   Western     Power     &   Equipment 

Corporation to work on remounting the cherry picker; that work included removing the 
bolts that held the cherry picker in place.1        Western Power subcontracted with Alaska 

Concrete, Nelson's employer, to drill the bolts out of the concrete platform on which the 

cherry picker sat. 

                When Nelson arrived at the waste transfer facility to deliver the drill bits, 

he asked where to take them and a municipal employee gave him directions.                     Nelson 

evidently did not find his coworkers and he returned to the municipal employee's station 

for instructions. The municipal employee radioed someone, who told her to send Nelson 

to the south (or "A") side door.  She relayed the information to Nelson, who went to the 

"A" door. 

                Inside the "A" door was a pony wall, about three feet high and covered by 

opaque Visqueen.       The Visqueen was placed there in order to retain heat in the truck 

tunnel; it concealed the hole in the floor through which waste was pushed into dump 

trucks.   There were evidently no signs or other indication of hazards in the area except 

some orange cones, which "had been placed along the open edge/perimeter of [the] floor 

opening on top of the [V]isqueen sheeting." In an apparent attempt to cross the building, 

Nelson jumped over the pony wall and landed on the Visqueen.                  He fell about 20 feet 

through the hole in the floor to the lower level and suffered head trauma. 

        1       Western Power was doing business as Yukon Equipment, Inc. at the time. 

                                                  -3-                                              6630 

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                Alaska Concrete reported the injury to the Alaska Workers' Compensation 

Board and began to pay workers' compensation benefits to Nelson.                   About six weeks 

after the accident, Alaska Concrete controverted further benefits, claiming that Nelson 

was intoxicated at the time of the accident and that his intoxication proximately caused 

the accident.    Nelson did nothing further in his workers' compensation case. 

                Instead,    Nelson    sued   the   Municipality,    Western     Power,    and   Yukon 

Equipment, Inc. for negligence.         The defendants all answered.        Initially, only Western 

Power raised the exclusive remedy provision of the Alaska Workers' Compensation Act 

as a defense.   The Municipality filed a third-party complaint against MACTEC because 

MACTEC planned and monitored the repairs. MACTEC answered and raised additional 

affirmative defenses. 

                On October 24, 2008, Western Power moved to dismiss Nelson's lawsuit 

because of the exclusive remedy provision of the Alaska Workers' Compensation Act. 

The other defendants joined the motion to dismiss.               Nelson opposed the motion.  He 

argued that extending the exclusive liability protection to general contractors and project 

owners violated his equal protection rights and that, as applied to the facts of his case, 

it violated his due process rights because he did not receive "a quid pro quo" after his 

employer stopped paying benefits.   He also argued that the exclusive remedy provision 

did not apply to the Municipality as a matter of law; and that, on the facts of his case, 

Western Power was not an "employer." 

                At   oral   argument   before   the   superior   court,   the   parties   agreed   that   the 

motion to dismiss should be treated as a motion for summary judgment.                   The superior 

court    granted   summary      judgment     to  all  defendants.    It  concluded     that:   (1)   the 

legislature's   extension   of   the   exclusive   remedy   protection   to   "project   owners"   and 

"general contractors" was not unconstitutional; (2) the Municipality and Western Power 

were protected by the exclusive remedy provision; and (3) the claims against Yukon 

                                                  -4-                                            6630
 

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Equipment should be dismissed.           Nelson moved for reconsideration, asserting that the 

court failed to address several of his legal arguments.  The superior court took no action 
on the motion for reconsideration and it was deemed denied.2                Nelson appeals. 

III.    DISCUSSION 

        A.      Standard Of Review 
                We review a grant of summary judgment de novo.3               Summary judgment is 

proper if there is no genuine factual dispute and the moving party is entitled to judgment 
as a matter of law.4    In reviewing a grant of summary judgment, we draw all reasonable 

inferences in favor of the nonmoving party.5          The interpretation of a statute is a question 

of law to which we apply our independent judgment; we interpret the statute according 

to   reason,   practicality,   and   common   sense,   considering   the   meaning   of   the   statute's 
language,   its   legislative   history,   and   its   purpose.6 Whether   a   case   is   ripe   is   a   legal 

question.7    "The   requirement   of   'ripeness'   means   that   there   must   be   'a   substantial 

        2       Alaska R. Civ. P. 77(k)(4). 

        3       Parker v. Tomera, 89 P.3d 761, 765 (Alaska 2004). 

        4       Id. 

        5       Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000). 

        6       Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003) (citing Native Vill. of 

Elim v. State, 990 P.2d 1, 5 (Alaska 1999)). 

        7       See State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska 

2009) (holding that review of ripeness decisions is de novo). 

                                                  -5-                                             6630
 

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controversy, between parties having adverse legal interests, of sufficient immediacy and 
reality to warrant the issuance of a declaratory judgment.' "8 

        B.      The Municipality Can Be A Project Owner. 

                Alaska law requires that "project owners" must pay workers' compensation 

to injured workers if the workers' employer is a contractor that has failed to secure these 
payments.9     Nelson argues that the Municipality cannot be a "project owner" as defined 

by AS 23.30.045(f)(2) because, as a political subdivision of the State, it is covered by a 

different subsection of the statute, AS 23.30.045(d). He also argues that the Municipality 

is not a "person" for purposes of the workers' compensation act and concludes from this 

that   the   Municipality      cannot    be  a  "project    owner."     Nelson      contends     that  the 

Municipality        should     be    classified     as   a    "contract-awarding         entity"    under 

subsection .045(d) rather than a "project owner" under subsections .045(a) and .045(f); 

he   asserts   that,   as   a   result,   the   exclusive   remedy   provision   of   the   Alaska   Workers' 

Compensation Act does not shield the Municipality because AS 23.30.055 only protects 

those    who     are  liable   under    AS    23.30.045(a),     not   those   who     are  liable   under 

AS 23.30.045(d). 

                The Municipality responds that:  (1) Nelson waived the argument that the 

Municipality is a person because of his service of process on the Municipality; (2) as a 

matter of statutory construction, the Municipality is a person for purposes of the workers' 

compensation   act; and   (3)   the   legislative   history   demonstrates   that the   State   and   its 

political    subdivisions     can   be  project   owners.     Nelson      replies   that  accepting    the 

        8       Lowell v. Hayes, 117 P.3d 745, 758 n.61 (Alaska 2005) (quoting Brause 

v. State, Dep't of Health & Soc. Servs., 21 P.3d 357, 359 (Alaska 2001)). 

        9	      AS 23.30.045(a). 

                                                   -6-                                                6630 

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Municipality's arguments would "impose[] plainly redundant obligations on political 

subdivisions." 

                Alaska Statute 23.30.045(a) provides: 

                An employer is liable for   and shall secure the payment to 
                employees of the compensation payable under AS 23.30.041, 
                23.30.050, 23.30.095, 23.30.145, and 23.30.180 - 23.30.215. 
                If   the   employer   is   a   subcontractor   and   fails   to   secure   the 
                payment of compensation to its employees, the contractor is 
                liable for and shall secure the payment of compensation to 
                employees       of  the  subcontractor.      If  the   employer     is  a 
                contractor and fails to secure the payment of compensation 
                to   its   employees   or   the   employees   of   a   subcontractor,   the 
                project owner is liable for and shall secure the payment of 
                the    compensation      to   employees     of  the   contractor    and 
                employees of the subcontractor, as applicable.[10] 

                Alaska Statute 23.30.045(f)(2) defines "project owner" as "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."         "Person" is not separately defined for purposes 

of the workers' compensation act, but "employer" is defined as "the state or its political 

subdivision or a person employing one or more persons in connection with a business 
or industry coming within the scope of this chapter, and carried on in this state."11              And 

AS 01.10.060(a)(8) generally provides that "person" includes "a corporation, company, 

partnership, firm, association, organization, business trust, or society, as well as a natural 

        10      Emphasis added. 

        11      AS 23.30.395(20). 

                                                  -7-                                               6630 

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person."12  When "includes" is used in a statute, it must be construed "as though followed 

by the phrase 'but not limited to.' "13 

                 Finally, AS 23.30.045(d) provides: 

                 A contract may not be awarded by the state or a home rule or 
                 other political subdivision of the state unless the person to 
                 whom   the   contract   is   to   be   awarded   has   submitted   to   the 
                 contracting agency proof, furnished by the insurance carrier, 
                 of current coverage by workers' compensation insurance. . . . 
                 The person to whom the contract is awarded shall keep the 
                 workers' compensation insurance policy in effect during the 
                 life of the contract with the state or political subdivision.  If 
                 the state or the political subdivision . . . fails to obtain proof 
                 of coverage . . . or to protect itself under (e) of this section, 
                 and an employee of the contractor is injured during the term 
                 of the contract, the state or the political subdivision is liable 
                 for workers' compensation to the employee if the employee 
                 is  unable    to  recover    from    the  employer      because    of   the 
                 employer's lack of financial assets.  The state or the political 
                 subdivision is not liable, however, to the employee for the 
                 workers' compensation if the employee can recover from the 
                 employer under (a) and (b) of this section. 

                 Nothing   in   the   language   or   the   legislative   history   of   the   project   owner 

provision   suggests   that   the   legislature   meant   to   exclude   the   State   and   its   political 

        12       The Municipality argues that Nelson waived any argument that it is not a 

corporation by serving his complaint on the Municipality under the rule for serving a 
public corporation.        This argument lacks merit.         How the court requires service on a 
political subdivision of the state has nothing to do with the legislature's definitions of the 
words   at   issue.     Different   statutes   have   different   definitions   of   "corporation"   and 
"person."      Compare  AS         10.25.640(3)      (including    state   or  political   subdivision     in 
definition   of   "person"),  with   AS   34.60.150   (defining   "person"   and   "state   agency" 
separately).  The relevant question here is how "person" is defined in AS 23.30.045 and 
.055. 

        13       AS 01.10.040(b). 

                                                    -8-                                               6630
 

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subdivisions from the definition of "project owner."               To the contrary, the legislative 

history manifests an intent to include the State and its political subdivisions.  In response 

to Senator Scott Ogan's concern that "the State of Alaska, being the largest project owner 

in   the   state,   could   be   liable   for   workers'   compensation   if   someone   doesn't   do   their 
homework,"14  Jack Miller, attorney for the Alaska State Chamber of Commerce, implied 

that the State would fall within the definition of "project owner."15                 Mr. Miller also 

informed the legislature that AS 23.30.045(d)-(e) require the State to ascertain whether 
its contractors have workers' compensation insurance.16 

                Nelson argues on appeal that Mr. Miller's testimony before the legislature 

should not be given great weight, but Senator Seekins, the sponsor of the project owner 

amendment, asked Mr. Miller to answer other legislators' questions about the legislation 
at   two   hearings.17  Under   these   circumstances,   Mr.   Miller's   testimony   is   entitled   to 

greater weight than that of the average witness.18 

                The statutory language evinces no attempt to exclude the State from the 

statute.  Alaska Statute 23.30.055 provides in part, "In this section, 'employer' includes, 

        14      Minutes, Sen. Judiciary Comm. Hearing on S.B. 323, 23d Leg. 2d Sess. at 

34 (Apr. 14, 2004) (statement of Sen. Scott Ogan). 

        15      Id. at 35 (testimony of Jack Miller). 

        16      Id. 

        17      Minutes, Sen. Judiciary Comm. Hearing on S.B. 323, 23d Leg. 2d Sess. at 

20 (Apr. 2, 2004) (statement of Sen. Ralph Seekins); Minutes, Sen. Judiciary Comm. 
Hearing on S.B. 323, 23d Leg. 2d Sess. at 9-10 (Apr. 16, 2004) (statement of Sen. Ralph 
Seekins). 

        18      Cf. Seward Marine Servs., Inc. v. Anderson, 643 P.2d 493, 496-97 n.8 

(Alaska 1982) (noting committee testimony must have been "endorsed by the legislature 
or relied on" to be persuasive evidence of legislative intent). 

                                                   -9-                                             6630
 

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in addition to the meaning given in AS 23.30.395, a person who, under AS 23.30.045(a) 

is liable for or potentially liable for securing payment of compensation."  The definition 

of "employer" for purposes of exclusive liability includes entities that are not employers 

under AS 23.30.395 - project owners and contractors.               Thus the distinction made in 

AS 23.30.395(20) between the State and other persons does not control our construction 

of AS 23.30.055.      The general definition of "person" in AS 01.10.060 can be used to 

determine whether the Municipality can be a "project owner."              As Nelson concedes, in 
appropriate circumstances "person" can include the State and its political subdivisions.19 

We hold that it does here. 

               Nelson   also   argues   that   AS   23.30.045(d)   -   not   the   exclusive   remedy 

provision - governs when the Municipality engages the services of a contractor because 

AS 23.30.045(d) is a more specific statute.         Alaska Statute 23.30.045(d) provides that 

the State or a political subdivision can only award contracts to persons who submit proof 

of workers' compensation coverage.           If the coverage is cancelled during the course of 

the contract, subsection .045(e) permits the State either to terminate its contract with the 

contractor or to pay for the contractor's workers' compensation policy. 

               Nelson contends that AS 23.30.045(d) would be redundant if the State or 

the Municipality fell under the definition of "project owner" in AS 23.30.045(f)(2).  In 

his view, AS 23.30.045(d) and .045(e) are more specific, so they should apply instead 

of the project owner provision, which Nelson considers more general. The Municipality 

responds     that  the  project  owner    amendments      "affect  the  potential   liability  of  the 

Municipality" and that subsection .045(d) "is not the sole source of the Municipality's 

potential    liability." It   maintains   that  because    it   is  potentially  liable  for  workers' 

        19      See Mustafoski v. State, 867 P.2d 824, 833-34 (Alaska App. 1994) (holding 

State is "person" for purposes of judicial recusal statute). 

                                                -10-                                             6630 

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compensation as a project owner, it is protected by AS 23.30.055's exclusive liability 

provision. 

                 When   construing   a   statute,   this   court   "presume[s]   that   the   legislature 

intended every word, sentence, or provision of a statute to have some purpose, force, and 
effect, and that no words or provisions are superfluous."20                "[A]ll sections of an act are 

to   be   construed     together    so  that  all  have   meaning      and   no   section   conflicts    with 
another."21    If one statutory "section deals with a subject in general terms and another 

deals   with   a   part   of   the   same   subject   in   a   more   detailed   way,   the   two   should   be 

harmonized, if possible; but if there is a conflict, the specific section will control over the 
general."22    "[I]f two statutes conflict, then the later in time controls over the earlier."23 

                 We find no conflict between these statutes.  Nelson argues that interpreting 

the statute so that the Municipality falls within the definition of "project owner" would 

make part of subsection .045(d) superfluous. There may be times when the two statutory 

provisions   overlap,   but   they   can   also   cover   different   situations.     The   two   statutory 

subsections impose the same type of obligation on the Municipality - they both require 

the Municipality to ensure that its contractors have workers' compensation insurance or 

assume       the   risk   of   being    liable   for   workers'      compensation        benefits    -    but 

AS 23.30.045(d) applies to a broader range of contracts than AS 23.30.045(f). 

        20       Mech. Contractors of Alaska, Inc. v. State, Dep't of Pub. Safety, 91 P.3d 

240, 248 (Alaska 2004) (quoting Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 
761 (Alaska 1999)) (internal quotation marks omitted). 

        21       In re Hutchinson's Estate, 577 P.2d 1074, 1075 (Alaska 1978). 

        22       Id. 

        23       Allen   v.   Alaska   Oil   &   Gas   Conservation   Comm'n ,   147   P.3d   664,   668 

(Alaska 2006). 

                                                    -11-                                               6630
 

----------------------- Page 12-----------------------

                By its terms, AS 23.30.045(d)   applies   any time the State or a political 

subdivision contracts with another party.   Alaska Statute 23.30.045(f)(2) applies only to 

a subset of those contracts, those involving project owners.              To be a "project owner," a 
person must "engage[] the services of a contractor."24           A contractor "does not include a 

vendor whose primary business is the sale or leasing of tools, equipment, other goods, 
or property."25     The Municipality would not be a "project owner" if it entered into a 

contract     with   a   vendor    whose     primary     business    was    leasing    equipment,     but 

AS     23.30.045(d)     would    still  require   it  to  ensure   that  the  vendor    had   workers' 

compensation coverage. We conclude that AS 23.30.045(d) and AS 23.30.045(f) do not 

conflict, and that the Municipality can be a "project owner" under AS 23.30.045(f)(2). 
We affirm the superior court's decision that the Municipality was a project owner here.26 

        C.      Nelson's Constitutional And Statutory Claims Are Not Ripe. 

                In   this   court   Nelson   argues   that   the   project   owner   amendments   to   the 

workers' compensation act must be construed as permitting him to sue the Municipality 

and Western Power because to construe them otherwise would violate his due process 
rights.27   Nelson's argument arises from the premise that he has been deprived of a 

workers' compensation remedy because his employer controverted further benefits based 

        24      AS 23.30.045(f)(2). 

        25      AS 23.30.045(f)(1). 

        26      Nelson     does   not   appear   to   contest   that   the   Municipality  engaged   the 

services of a contractor in the course of its business and enjoyed the beneficial use of the 
contractor's work. 

        27      In the trial court, Nelson focused his arguments on a facial challenge to the 

constitutionality of the 2004 project owner amendments.  Our opinion in Schiel v. Union 
Oil Co. of Cal. foreclosed those arguments in Nelson's case.  See 219 P.3d 1025, 1029- 
37 (Alaska 2009) (holding that extension of exclusive liability to project owners did not 
violate due process or equal protection rights of injured workers). 

                                                  -12-                                            6630
 

----------------------- Page 13-----------------------

on    his  alleged   intoxication     at  the  time   of  the   accident.    According       to  Nelson, 

controversion of benefits leaves him to his common law remedies:                     if AS 23.30.055 

prevents him from pursuing a negligence claim, he will be denied any remedy for his 

injury, which would violate his right of access to the court.             Nelson concludes that he 

therefore has a right to bring a negligence action. 

                We   asked   the   parties   to   provide   supplemental   briefing   on   the   issue   of 

ripeness.   We also asked for supplemental information about whether Nelson had filed 

a written workers' compensation claim with the Board.   The parties agreed that Nelson 

had not filed a written workers' compensation claim.  Instead, shortly after Nelson was 

injured, Alaska Concrete filed a notice of Nelson's injury and voluntarily began paying 

benefits.  When toxicology tests revealed that Nelson may have been intoxicated at the 

time of the accident, Alaska Concrete filed a notice of controversion.                   Although the 

parties all argued, for different reasons, that this appeal is ripe despite Nelson's failure 

to adjudicate his claim before the Board, we conclude that, with a few exceptions, the 
issues raised in this appeal are not yet ripe for review.28 

                1.	     Alaska   Concrete's   controversion   did   not   leave   Nelson   to   his 
                        common law remedies. 

                Nelson argues that his employer's controversion of benefits leaves him to 

his common law remedies because the controversion "took [him] outside the coverage 

of the Workers' Compensation Act, by the Act's own terms."  Because he considers his 

case to be outside the scope of the act, he alleges that he must be allowed to pursue his 

common law remedies.   Western Power responds that Nelson's argument is contrary to 

        28      See State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska 

2009) (citing Istrice v. City of Sparks, 8 Fed. Appx. 841, 843 (9th Cir. 2001)) ("Because 
ripeness constrains the power of courts to act, courts should not rely on agreement by the 
parties that a case is ripe for decision."). 

                                                  -13-	                                              6630 

----------------------- Page 14-----------------------

the Alaska Workers' Compensation Act because, under Nelson's theory, every time an 

employer controverted a claim for any reason, the worker would have the right to bring 

a tort suit, even when he had a remedy before the Board. 

                A controversion is a notice from the employer that it has a basis in law or 

fact to stop paying workers' compensation benefits that are otherwise automatically due 
by statute.29  If an injured worker wants to pursue workers' compensation benefits in the 

face of a controversion, he must take the next procedural step to secure them.30               If the 

worker has not filed a written claim before the controversion, he must do so within a 
specific period of time.31      If the   worker has filed a written claim, he must ask for a 

hearing or take other steps to preserve his right to a hearing; otherwise, his claim can be 
denied by operation of statute.32 

                There are times when the parties disagree about whether an injury comes 

within   the   scope   of   the   workers'   compensation   act. For   example,   in  Himschoot   v. 

Shanley, the parties disputed whether a worker injured in a car crash on his way to lunch 
was injured in the course and scope of employment.33          Under our case law, the Board and 

the superior court have concurrent jurisdiction over the issue of an employee's status at 

        29      AS 23.30.155.      See also Irby v. Fairbanks Gold Mining, Inc., 203 P.3d 

1138, 1147 (Alaska 2009) (describing when controversion is made in good faith). 

        30      See Bailey v. Tex. Instruments, Inc., 111 P.3d 321, 325-26 n.10 (Alaska 

2005) ("Once an employer controverts a claim, the burden shifts to the employee to 
prosecute the claim promptly.").  AS 23.30.155(h) also permits the Board to take action 
"upon its own initiative" when, inter alia, a controversion is filed. 

        31      AS 23.30.105. 

        32      AS 23.30.110(c); Kim v. Alyeska Seafoods, Inc., 197 P.3d 193, 198 (Alaska 

2008). 

        33      908 P.2d 1035, 1036-37 (Alaska 1996). 

                                                -14-                                           6630
 

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the time of injury, and "the question whether a court should defer [to the Board] depends 
on the unique facts of every case."34           To decide whether a court should defer to the 

Board, we have looked at whether cases involved questions of law;35 what action, if any, 

was taken in the administrative proceeding;36 and how long the parties litigated in court.37 

                But the court's jurisdiction to decide whether an injury comes within the 

workers'   compensation   act's   coverage   does   not   mean   that   the   worker   is   left   to   his 

common law remedies.  If a trial court decides that the injury occurred in the course and 

scope of employment, the case is remanded to the Board for adjudication of the worker's 
claim.38   If the court determines that the injury did not happen in the course and scope 

of employment, it has jurisdiction over the worker's negligence action.39 

                Western      Power    argues    that  an  employer's     exposure     to  liability  as  a 

"contractor" or "project owner" is determined at the time of injury, not after the Board 

hears a case.      But because it may not always be clear at the outset whether an on-site 

injury occurred in the course and scope of employment, status as a project owner cannot 

        34      Ehredt v. DeHavilland Aircraft Co. of Canada, Ltd., 705 P.2d 446, 450 

(Alaska 1985) (citing G & A Contractors v. Alaska Greenhouses, 517 P.2d 1379, 1382- 
83 (Alaska 1974)). 

        35      Id. 

        36      Id.; see also Himschoot, 908 P.2d at 1040 (noting that no claim had been 

filed). 

        37      Himschoot, 908 P.2d at 1040. 

        38      See Nickels v. Napolilli, 29 P.3d 242, 254 (Alaska 2001) (affirming decision 

that Nickels was employee and remanding case to allow her to pursue claim before the 
Board). 

        39      See   Himschoot,   908   P.2d   at   1038-39   (describing   bifurcated   trial   court 

proceeding). 

                                                  -15-                                             6630
 

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always be determined at the time of injury.           For example, in Estate of Milos v. Quality 

Asphalt Paving, Inc., the superior court granted summary judgment to an employer based 
on the exclusive remedy provision of the workers' compensation act.40  We reversed that 

trial court order granting summary judgment because we decided that a material factual 
dispute existed about the employee's status at the time of injury.41        The exclusive liability 

protection afforded a project owner or a contractor is no greater than that of an employer; 

if an employer cannot use the exclusive remedy defense in a case, neither can the project 

owner or contractor. 

                2.	     Nelson must pursue his claim before making a constitutional 
                        challenge to the statute. 

                As explained, Nelson asks us to construe AS 23.30.055 as permitting him 

to bring a negligence action against Western Power and the Municipality. His argument 

has two parts:   he argues that if AS 23.30.055 is construed as prohibiting his lawsuit, he 

will have no remedy at all for his injury and that this would violate his due process 

rights.  Alternatively, he argues as a matter of statutory construction that the language 

of AS 23.30.055 does not bar a negligence action when a workers' compensation claim 

is controverted under AS 23.30.235. Both arguments rely on Nelson's lack of a workers' 

compensation   remedy,   yet   he      has  never   asked   the   Board   or   the   superior   court   to 
determine whether his injury occurred in the course and scope of employment,42 nor has 

        40	     145 P.3d 533, 541 (Alaska 2006). 

        41      Id. at 538-41. 

        42      Relying on cases from other states, Nelson argues that Alaska Concrete's 

controversion based on his alleged intoxication takes the injury outside the coverage of 
the workers' compensation act because under these cases the injury would not have 
occurred in the course and scope of employment. 

                                                 -16-	                                          6630
 

----------------------- Page 17-----------------------

he attempted to pursue a remedy before the Board.43             Because the mere controversion of 

benefits   did   not   establish   that   Nelson   is   not   entitled   to   his   workers'   compensation 

remedies,   his   constitutional   and   statutory   claims   are   not   ripe. We   have   previously 

required a party to use available administrative processes before asserting a constitutional 

claim because "successful pursuit of a claim through the administrative process could 
obviate the need for judicial review of the constitutional issues."44             Likewise, we have 

held that "[a] party raising a constitutional challenge to a statute bears the burden of 
demonstrating the constitutional violation."45          These principles apply to Nelson's case. 

                Nelson does not raise a facial constitutional challenge to the statute in this 

court:  his constitutional argument hinges on the alleged lack of a remedy for his injury, 
not on a general lack of a remedy under all circumstances.46                Because Nelson has not 

litigated his claim before either the Board or the court, he is unable to demonstrate that 

        43      We also asked the parties to provide supplemental briefing on whether 

Nelson could still pursue a workers' compensation claim.                 The parties agreed that he 
could.    We do not decide this issue because Alaska Concrete was not a party in the 
superior court or this appeal. 

        44      Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d 119, 122 (Alaska 

1988). 

        45      Baxley v. State, 958 P.2d 422, 428 (Alaska 1998). 

        46      See State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 405 (Alaska 2007) 

(distinguishing between facial and as-applied constitutional challenges). 

                                                  -17-                                             6630
 

----------------------- Page 18-----------------------

in fact he has no remedy.47       Nelson is effectively asking us to address a hypothetical 

situation, but we decline to do so. 

IV.     CONCLUSION 

                We AFFIRM the superior court's decision that the Municipality is a project 

owner.    We REMAND the case for further proceedings consistent with this opinion. 

        47      We acknowledge that it has been more than two years since Nelson was 

injured, but this does not necessarily preclude him from receiving benefits under the 
workers' compensation act.  See Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121, 1125 
(Alaska 1995) (holding that two-year period for requesting hearing after employer's 
controversion   only   applies   to   employee's  written   claim   for   workers'   compensation 
benefits).   Here,   Nelson   did   not   file   a   written   claim   for   benefits;   his   employer   paid 
benefits voluntarily until it received his toxicology test results. 

                                                 -18-                                             6630 
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