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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Burke v. Raven Electric, Inc. (5/11/2018) sp-7241

Burke v. Raven Electric, Inc. (5/11/2018) sp-7241

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  


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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

MARIANNE  E.  BURKE,  mother  of                                 )  

ABIGAIL  E.  CAUDLE  (deceased),                                 )     Supreme  Court  No.  S-16137  



                              Appellant,                         )     Alaska Workers' Compensation  


                                                                 )     Appeals Commission No.  14-022  


          v.                                                     )  


                                                                       O P I N I O N  




LIBERTY MUTUAL INSURANCE                                         )  


COMPANY,                                                               No. 7241 - May 11, 2018  


                              Appellees.                         )  



                    Appeal from the  Alaska  Workers'  Compensation Appeals  



                    Appearances:   Marianne   E.  Burke,  pro   se,  Anchorage,  


                    Appellant.  Nora Barlow and Constance Livsey, Burr, Pease  


                    &  Kurtz,  Anchorage,  for  Appellees.                         Dario  Borghesan,  


                    Assistant         Attorney         General,         Anchorage,           and      Jahna  


                    Lindemuth,  Attorney  General,  Juneau,  for Amicus  Curiae  


                    State  of  Alaska.              Eric   Croft,  The  Croft  Law  Office,  


                    Anchorage, for Amicus Curiae Eric Croft.  


                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                    and Carney, Justices.  


                    STOWERS, Chief Justice.  

----------------------- Page 2-----------------------


                     After an apprentice electrician was killed on the job, her mother sought  


workers' compensation death benefits or other damages related to her daughter's death.  


Acting on the advice of attorneys but representing herself, she brought a claim before the  


Alaska Workers' Compensation Board.  She argued in part that the Alaska Workers'  


Compensation Act was unconstitutional because it inadequately compensated for her  


daughter's life, particularly given thecircumstances ofher daughter's death, and because  


it failed to consider her future dependency on her daughter. The Board denied her claim,  


and the Alaska Workers' Compensation Appeals Commission affirmed the Board's  


decision. The Commission also ordered the mother to pay the employer's attorney's fees  


and costs.  We hold that the mother's constitutional rights are not violated by the Act.  


We  reverse  the  Commission's  award  of  attorney's  fees  but  otherwise  affirm  the  


Commission's decision.  




                     Abigail Caudle was a 26-year-old apprentice electrician when she was  


electrocuted  on  the  job  while  working  for  Raven  Electric,  Inc.                                       According  to  a  


"Fatalgram" by the Alaska Department of Labor & Workforce Development, Division  


of Labor & Safety Standards, Occupational Safety & Health (AKOSH), it was Caudle's  


first day on that particular job, which involved the remodel of an Anchorage building.1  


           1         Fatalgram   11-07,   ALASKA    DEP 'T    OF    LABOR    &    WORKFORCE    DEV.,  

                                                                                                                         A "Fatalgram" is a short report  


of a work-related fatality, which AKOSH has evidently adopted from the U.S. Mine  

                                                                     ARRY   M. P       HILO   & H      ARRY   M. P      HILO, J     R.,  

Safety & Health Administration.   See  4 H 

  AWYERS  DESK  REFERENCE    29:13 (10th ed. 2014) (defining "fatalgrams" in mine                                              


safety    context).      In    mine    safety    the    documents    "include    a    description    of    the  

circumstances of the incident . . . and recommendations for preventing the death."                                                 Id.  

                                                                  -2-                                                           7241

----------------------- Page 3-----------------------

                             On the day of the accident Raven Electric initially planned to "rough[]                                                                   


in . . . three offices as far as outlets and switches," but the general contractor                                                                                     changed  


the scope of work after Raven Electric's crew arrived, asking the electricians to tear out  


old light fixtures instead because the contractors "had already taken out the grid ceiling"  


and could not proceed with their work while the old fixtures were in place.   Raven  


Electric did not have temporary lights set up, so the crew was "using some of the lights  


that were on while the construction was going on."   The light switches for the light  


fixture Caudle was working on had been turned off, but no one had turned off the power  


at the electrical panel or otherwise disconnected power to the lights.   Caudle used a  


noncontact voltage meter to check for power, and witnesses told AKOSH the meter  


showed a green signal, indicating no voltage.  


                             Caudle began to remove the wire nuts and then "disconnected the neutral  


wire  and  was  electrocuted  between  the  load  side  neutral  conductor  and  either  the  


grounded conduit junction box, or the conduit to the left side of the neutral conductor."  


Coworkers heard her cry out, rushed to her aid, called emergency services, and began  


CPR.  The efforts to assist her were unsuccessful, and Caudle was pronounced dead at  


the hospital less than an hour later.  The electricians interviewed during the AKOSH  


investigation thought there had been a "back feed on the neutral" wire and suggested that  


the circuit had been wired incorrectly at some time in the past.  AKOSH cited Raven  


Electric  for  several  safety  violations  and  ultimately  agreed  through  an  informal  


settlement to fine Raven Electric a total of $11,200 for those safety violations.  


                             Raven Electric filed a report of injury with the Board and paid funeral  


expenses required by the Alaska Workers' Compensation Act (Act).  Because Caudle  

              2              Raven Electric was a subcontractor on the job; Criterion General, Inc. was                                                                           

the project's general contractor, and Alaska USA Federal Credit Union was the building                                                                                   

owner and thus potentially a "project owner" under AS 23.30.045.                                                         

                                                                                          -3-                                                                                  7241

----------------------- Page 4-----------------------

was unmarried and had no dependents at the time of her death, the Act limited Raven                                                                                       

Electric's liability to funeral expenses up to $10,000 and a $10,000 payment to the                                                                                              


Second Injury Fund.                            


                            Two years after Caudle's death, her mother Marianne Burke filed a written  


workers' compensation claim seeking death benefits.  Burke was listed as a beneficiary  


on the claim form, and she attached a two-page addendum setting out some of her  


concerns about safety at the work site. She alleged that following Caudle's death she had  


"gotten the run around from all the lawyers on this," had "not been able to work," and  


had "been sick often due to [her] daughter's death."  


                            RavenElectricfiled ananswersayingithad paid allworkers' compensation  


benefits due and denying further benefits were owed.   It also raised two affirmative  


defenses:               Burke's claim was untimely  under  AS 23.30.105(a),  and she  was  not  a  


beneficiary because she was not dependent on Caudle at the time of Caudle's death as  

                                          4   Raven Electric later petitioned the Board to dismiss Burke's claim  



required by the Act. 

on those grounds.  


                            In  the  course  of  pleadings  and  proceedings  before  the  Board,  Burke  


clarified that she was trying "to get justice for [her] daughter" and said the Board was  


"the only place that been allowed to get any source of justice."  She did not want to  


produce tax records to show dependence on Caudle, and she asserted that she would have  


depended on Caudle for care in the future, even if she did not do so at the time of  


Caudle's death. Burke argued that simply because Caudle "was single . . . [did] not make  


              3             AS 23.30.040(c), .215(a).  The Second Injury Fund is a fund designed to                                                 

provide partial reimbursement to employers who hire workers with certain preexisting                                                                            

conditions in the event those workers later become disabled due to a work-related injury.                                                                                                

AS 23.30.205.   

              4             AS 23.30.215(a), (c).  


                                                                                         -4-                                                                                 7241

----------------------- Page 5-----------------------


her life worth nothing, as the current laws imply" from the low amount of compensation  


benefits.  Burke contended that both her own and Caudle's constitutional rights were  


violated by the limited compensation available for Caudle's death, particularly because  


of what Burke called Raven Electric's gross negligence. Burke filed a document entitled  


"Notice of Intent to Rely" which contained a copy of the AKOSH file on which Burke  


had made written comments.  


                    The parties stipulated to a limited hearing in February 2014 to resolve  


disputes about procedure.  Burke raised constitutional arguments about the Act at the  


hearing and explained her position on the procedural questions.  The Board issued an  


interlocutory order resolving the procedural disputes and informing Burke that it did not  


have jurisdiction to decide constitutional issues.  In its interlocutory order the Board  


"excluded" Burke's "Notice of Intent to Rely" as not relevant to the issue of Burke's  


entitlement to additional death benefits.  


                    Raven Electric then requested a hearing on its petition to dismiss the claim;  


Burke opposed setting a hearing because she wanted more time to research the law and  


prepare her case.  Burke's understanding was that she would have two years from the  


date she filed the claim to prepare for a hearing.  Burke also argued in opposing the  


substance of Raven Electric's petition to dismiss that workers' compensation was the  


only legal remedy available to her and that the purpose of workers' compensation was  


"to protect workers, give value to their lives, [and] create safer work conditions, none of  


which occurred for [her] daughter."  (Emphasis omitted.)  She did not think the death  


benefits available for Caudle's death achieved these ends.  


                    The Board set a hearing in July on the petition to dismiss.  About 20 days  


before this hearing, Burke filed a clean copy of the AKOSH file along with a notarized  


statement from an agency representative that the copy was "from [the] State of Alaska  


Occupational  Safety  &  Health  records."                        Raven  Electric  objected  to  this  evidence  

                                                               -5-                                                         7241

----------------------- Page 6-----------------------


because it had been "excluded" in the Board's interlocutory order.  


                    At  the  beginning  of  the  July  hearing,  Raven  Electric  again  sought  to  


exclude the AKOSH file as irrelevant; Burke contended that it should be part of the  


record for purposes of appeal.  The Board hearing chair told Burke the Board was "not  


going to stop [her] from filing anything," that the AKOSH file was "not being . . .  


stricken from the record," and that it was "part of the record of the case no matter what."  


The Board panel decided to "exclude[] [the file] for the purpose of [the July] hearing."  


                    The hearing consisted mainly of argument.   As relevant to this appeal,  


Raven Electric argued that Burke was seeking some type of compensatory or punitive  


damages that were not authorized under the Act because workers' compensation was the  


exclusive remedy available for a work-related death. Raven Electric pointed out that the  


workers' compensation system had been in existence even in territorial days and that the  


Act represented a trade-off. It cited precedent holding that the low level of death benefits  


for single workers with no dependents did not violate equal protection. Burke reiterated  


her position that the Act provided inadequate compensation for her daughter's death,  


especially in light of what she considered Raven Electric's negligence and its failure to  


provide a safe workplace.  She asked the Board to consider awarding the full amount of  


permanent partial impairment benefits under the Act, stating that something beyond  


funeral expenses should be paid to families of single workers who die on the job. Burke  


explained that she had suffered emotional harm and financial hardship due to Caudle's  


death because she had difficulties working after the death, and that Caudle's aunt Betty,  


from whom Caudle rented living quarters, had also suffered hardship.   Burke again  


explained that she had brought the claim to the Board because it was "the only place [she  


could] get justice":  the case had been "pigeonholed . . . into workers' comp," and the  


family "couldn't go through  civil court."   And she restated her arguments that the  


compensation scheme violated her constitutional rights.  

                                                                -6-                                                         7241

----------------------- Page 7-----------------------


                    At the end of the July hearing, the hearing chair clarified Burke's status in  


asserting the claim:  


                    CHAIR SLODOWY:                         Thank   you.             Ms.   Burke, are  


                    you . . . representing the estate of Abigail?  Have you ever


                    been appointed, like, an executor of the estate or -


                    MS. BURKE:                   Betty  was  taking  care  of  the  estate to


                    begin with.


                    [BETTY]:            Oh, Nate was.


                    BURKE:             The father [Burke's ex-husband].


                    CHAIR:             Okay.  So . . . you're appearing on behalf of -


                    individually -

                    BURKE:             Yes.


                    CHAIR:             - on yourself, not on behalf of the estate, as


                    like an executor.


                    BURKE:             On  behalf  of  the  estate,  I  suppose.                I  mean,


                    that's how I think it started.  But I'm not -


                    CHAIR:             I'm understanding -  


                    BURKE:             I'm in no contact with my ex.  


                    CHAIR:             Okay.  So you're appearing individually.  


                    BURKE:             I guess you're right, individually -  

                    CHAIR:             Okay.  


                    BURKE:             - not as a mother [sic].  


                    In its written decision the Board affirmed  its  oral order excluding the  


evidence and determined that Burke's claim was not untimely.  It agreed with Raven  


Electric that Burke did not qualify for any compensation  benefits, writing that she  


"simply has no remedy under the Act." Accordingly the Board dismissed her claim "for  


lack of a statutory remedy."  


                    Burke appealed to the Commission.  She again made constitutional claims  

                                                              -7-                                                        7241

----------------------- Page 8-----------------------

but also argued she should be able to sue Raven Electric under the Defective Machinery                                                        



          because  Raven  Electric  had  supplied  Caudle  with  a  voltage  meter  that  was  


inadequate to accurately detect the presence of electric current.  She noted amendments  


to the Workers' Compensation Act in 2004, which she said "took away a death victim's  


family's right to sue in civil court [for] a wrongful death in the work place."  Burke  


contended  that the Act effectively  gave her  and other  family members  nothing  for  


Caudle's life, observing that the funeral home, not the family, received the only benefits  


available under the Act.  Burke emphasized the impact of Caudle's death on her own  


earning capacity and questioned the Act's dependency definition.  


                         The Commission, like the Board, concluded it had no jurisdiction over  


constitutional questions.  The Commission cited cases in which this court had decided  


that (1) the Act did not violate the equal protection rights of the estates of unmarried  

                                                                                                 6  and (2) the Defective Machinery  


workers who died on the job leaving no dependents 

                                                                                                         7   The Commission upheld the  

Act did not apply to cases in which the Act also applied.                                                                                                   


Board's decision that Burke was not entitled to further benefits under the Act.  


                         After the Commission affirmed the Board's decision, Raven Electric asked  


the Commission to order Burke to pay its attorney's fees.  Raven Electric argued that  


Burke was not an injured worker and was thus not covered by the statutory provision  


shielding injured workers from having to pay attorney's fees in Commission appeals.  


The Commission agreed and ordered Burke to pay $11,203.20 in attorney's fees and  


costs.  Burke appeals.  


             5           AS 23.25.010-.040.   

             6           Taylor v. Se.-Harrison W. Corp.                             , 694 P.2d 1160, 1162-63 (Alaska 1985).                          



                         Gordon v. Burgess Constr. Co., 425 P.2d 602, 605 (Alaska 1967).  

                                                                              -8-                                                                       7241

----------------------- Page 9-----------------------

III.       STANDARD OF REVIEW              

                      In   an    appeal    from    the    Alaska    Workers'    Compensation    Appeals  


Commission,   we   review   the   Commission's   decision.                                                                

                                                                                               We  apply  our  independent  


judgment to questions of "statutory interpretation requiring the application and analysis  



of various canons of statutory construction."                              We also apply our independent judgment  



to questions of constitutional law. 


                      Theworkers' compensation systemconsistsofatrade-off,sometimescalled  


the "grand bargain,"11  in which workers give up their right to sue in tort for damages for  


a work-related injury or death in exchange for limited but certain benefits, and employers  


agree to pay the limited benefits regardless of their own fault in causing the injury or  


death.12       This system has been in place in the United States for over a century and has  


           8          Humphrey v. Lowe's Home Improvement Warehouse, Inc.                                           , 337 P.3d 1174,       

 1178 (Alaska 2014) (citing                   Shehata v. Salvation Army                    , 225 P.3d 1106, 1113 (Alaska           


           9          ARCTEC Servs. v. Cummings , 295 P.3d 916, 920 (Alaska 2013) (quoting  


 Tesoro Alaska Petrol. Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903-04 (Alaska 1987)).  


           10         Fraternal Order of Eagles v. City &Borough of Juneau, 254 P.3d 348, 352  


(Alaska 2011).  


           11         See Baker v. Bridgestone/Firestone, 872 N.W.2d 672, 676 (Iowa 2015)  


(describing "grand bargain removing workers' compensation matters from the civil  


justice system").  


           12         Taylor v. Se.-Harrison W. Corp., 694 P.2d 1160, 1162 (Alaska 1985)  


("[T]he Act serves 'the goal of securing adequate compensation for injured employees  


without  the  expense  and  delay  inherent  in  [ordinary  civil  litigation  requiring]  a  


determination of fault as between the employee and employer.' " (second alteration in  


original)  (quoting Arctic  Structures,  Inc.  v.  Wedmore ,  605  P.2d  426,  437  (Alaska  


                                                                     -9-                                                              7241

----------------------- Page 10-----------------------

withstood constitutional challenge.                                   13  New York's workers' compensation statute was                                                


found   constitutional   under   the   United   States   Constitution   in   1917.                                                                             

                                                                                                                                                   New  York's  


compensation law became the model for the federal Longshore and Harbor Workers'  

                                       15  which in turn served as the model for Alaska's Act.16  



Compensation Act, 

                           As Larson'sWorkers'CompensationLaw observes,workers'compensation  


in the United States is similar to "social insurance" because "the right to benefits and  


amount  of  benefits  are  based  largely  on  a  social  theory  of  providing  support  and  


preventing destitution, rather than settling accounts between two individuals according  


to their personal deserts or blame," even though the funding mechanism for the system  


is "unilateral employer liability."17                                   Larson's observes that "[a] compensation system,  


unlike a tort recovery, does not pretend to restore to the claimant what he or she has  


           18   Instead, the goal of workers' compensation is to "give[] claimant a sum which,  


added to his or her remaining earning ability, if any, will presumably enable claimant to  


              12           (...continued)  


              13           See  1 A       RTHUR  LARSON ET AL                       .,L   ARSON 'S  WORKERS' C                        OMPENSATION  LAW  

 2.07 (Matthew Bender, Rev. Ed. 2015) (describing history of workers' compensation                                                               

in the United States).       

              14           N.Y. Cent. R.R. Co. v. White, 243 U.S. 188, 208 (1917).  


              15           Bell v. O'Hearne, 284 F.2d 777, 779 (4th Cir. 1960).  


              16          McCarter v. Alaska Nat'l Ins. Co., 883 P.2d 986, 990 n.5 (Alaska 1994).  


              17           1 ARTHUR  LARSON ET AL.,  supra  note 13,  1.02.                                       




                           Id.   1.03[5].  

                                                                                   -10-                                                                            7241

----------------------- Page 11-----------------------

exist without being a burden to others."                                  19  


                         The  basic  provisions  of  this  bargain  in  Alaska's  Act  are  contained  in  


AS  23.30.045  and  .055.                          Under  AS  23.30.045  an  employer  is  required  to  provide  


workers' compensation coverage for employees, and in return, AS 23.30.055 makes  


workers' compensation the employee's exclusive remedy.  Most Alaska employers are  

                                                                                    20    The only exceptions to the exclusive  


required to provide workers' compensation. 

remedy provision are failure to insure21  and intentional torts.22   To encourage employers  


to keep their part of the "grand bargain" the Act allows employees to sue in tort those  


employers who do not "secure payment of compensation" under the Act and takes from  


noncompliant employers certain tort defenses.23  The exclusive remedy sections of the  


Act were amended in 2004 to expand potential liability for workers' compensation "up  


                                         24                                                                              25  and at the same time  

                                             to project owners and general contractors                                                                    

the chain of contracts"                                                                              


to extend the exclusive remedy shield to all those "up the chain" who are now potentially  


             19          Id.  

            20           Alaska Statute 23.30.230 sets out a list of jobs that are not covered by the                                                       

Act.   The Act has additional provisions governing sole proprietors, partners, corporate                                                        

officers, and members of limited liability companies.                                                AS 23.30.239-.240.   

            21           AS 23.30.055.  


            22           Elliott v. Brown, 569 P.2d 1323, 1327 (Alaska 1977) (holding that when  


coworker commits an intentional tort, exclusive liability does not foreclose an action  


against the coworker).  


            23           AS 23.30.055.  


            24           Minutes, Sen. Labor & Commerce Comm. Hearing on S.B. 323, 23d Leg.,  


2d   Sess.   20-21   (Mar.   4,   2004)   (statement   of   Sen.   Ralph   Seekins,   sponsor),  


            25           AS 23.30.045.  


                                                                             -11-                                                                       7241

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


liable for workers' compensation.                                   We held in 2009 that the 2004 amendments were               

constitutional, reasoning that the amendments furthered the goal of providing workers'                                                          

compensation at a reasonable cost to employers by expanding those entities who are                                                                         

required   to  secure   coverage   and   giving   those   who   are   now   potentially   liable   the  

protection of the exclusive remedy.                               27  

                         Burke, representing herself, has raised constitutional arguments about both  


the 2004 amendments and the underlying exclusive remedy provisions of the Act. Some  


of her arguments are related to her own potential status as a beneficiary while others  


would more properly be asserted by Caudle's estate.  Burke's briefing also suggests at  


times that she was the personal representative of the estate.  But because further review  


of the record demonstrates that Burke was not a personal representative of the estate, we  


decline to reach the merits of those issues, and we address the merits of only those claims  


that Burke asserted on her own behalf.28  


            A.	          The        Exclusive              Remedy              Provision              Does         Not        Violate           Burke's  


                         Constitutional Rights.  


                         Burke argues that the exclusive remedy provision of the Act violates her  


rights to due process and equal protection under the Alaska and U.S. Constitutions and  


also violates her right to privacy under the Alaska Constitution.  She contends that by  


failing to provide more compensation for Caudle's death, the Act "treat[s] [Caudle's] life  


            26           AS  23.30.055.   

            27           Schiel  v.   Union  Oil  Co.  of  Cal.,  219  P.3d   1025,   1034-35  (Alaska  2009).  

            28           We   asked  the   State  of  Alaska  and  Eric  Croft,  who  had  earlier  requested  

permission  to  file  an  amicus  brief,  to  brief  as  amici  constitutional  and  procedural  issues  

related  to  the  2004  amendments  due  to  Burke's  self-represented  status.   While  we  do  not  

reach  the merits of the constitutional issues  addressed in their briefing, we thank them  

for  their  participation.  

                                                                             -12-	                                                                     7241

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

as if she was worth a piece of dirt" and violates Burke's due process rights because,                                                                                                          

through the Act, the State "has taken away [her] right for justice and compensation" for                                                                                                                      

her daughter's death and left no means for her to redress it.                                                                                                  In her view this is a                             

deprivation of life, liberty, or property without due process of law.                                                                                    

                                 In  Wright v. Action Vending Co.                                              we considered challenges to the exclusive                                      

remedy provision brought by the spouse of an injured worker when the superior court                                                                                               

determined   that   provision   barred   a   spouse's   loss   of   consortium   action   against   the  

                         29     We construed the Act as barring not only actions by the injured worker  


individually but also actions that "arise[] out of, and cannot exist without, the . . . core  


of activity" covered by the Act.30  In  Wright, quoting a federal court, we observed that  


"the keystone" of the workers' compensation system "was the exclusiveness of the  


                       31     The bargain underlying workers' compensation is  


                                 a balancing of the sacrifices and gains of both employees and  


                                 employers, in which the former relinquished whatever rights  


                                 they had at common law in exchange for a sure recovery  


                                 under thecompensation statutes, whiletheemployersontheir  


                                 part, in accepting a definite and exclusive liability, assumed  


                                 an   added   cost   of   operation   which   in   time   could   be  


                                 actuari[al]ly measured and accurately predicted.[32]  


"[A]nything that tends to erode the exclusiveness of either the liability or the recovery  


                29               544 P.2d 82 (Alaska 1975).                          



                                Id. at 86.  



                                Id.  at 84 (quoting Smither & Co. v. Coles, 242 F.2d 220, 222 (D.C. Cir.  


                32              Id. at 85 (quoting Smither & Co., 242 F.2d at 222).  


                                                                                                     -13-                                                                                               7241

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

strikes at the very foundation of" the bargain underlying workers' compensation.                                                                               33  


                          Like the loss of consortium claim in Wright, Burke's personal claims arise  

                                                                   34  covered by the Act and are barred by the exclusive  



"on account of the injury or death" 

remedy provision.  Parents are listed, along with spouses, "dependents," and "next of  


kin," as those whose actions against an employer are barred by the Act.35   To be entitled  


to workers' compensation death benefits, a parent must show dependency at the time of  


the child's death.36  


                          Burke  argues  that the Act's failure to  provide for her  potential future  


dependency on Caudle violates her right to equal protection.  She also contends that  


requiring her to show financial dependency violates her right to privacy by requiring  


production  of  income  tax  returns  and  deprives  her  of  due  process  by  failing  to  


compensate her and other family members for their emotional, as opposed to financial,  


dependence on Caudle.  The Board did not require Burke to produce her income tax  


information, and Burke did not try to prove that she was economically dependent on  


Caudle at the time of Caudle's death, so questions related to privacy are not at issue on  


appeal. Damage to emotional ties is a type of noneconomic damages,37  and the Act does  


             33           Id.  (quoting  Smither & Co.                         , 242 F.2d at 222).         

             34           See  AS23.30.055 (providing thatworkers' compensation is"exclusiveand                                                                    

in place of all other liability of the employer . . . on account of the injury or death").                                                           

             35           Id.  

             36           AS  23.30.215(a)(4),  (c).  

             37           Cf.  Hibpshman  v.  Prudhoe  Bay  Supply,  Inc.,  734  P.2d  991,  994  (Alaska  

 1987) (recognizing that minor  children have independent claim for  loss of consortium  

when  parent  is  injured).  

                                                                                 -14-                                                                           7241

----------------------- Page 15-----------------------


not provide noneconomic damages to either injured workers or their families.                                                                                    Before  

there can be a violation of due process, a person must have a substantive right that                                                                       

                                                                                                                                         39    But Burke does  

entitles her to a certain level of process in order to protect that right.                                                                                           

not have such a right.  The legislature has limited the substantive rights available to  


nondependent family members of workers who die in work-related accidents, and the  


claims processing mechanism in the Act provided Burke an opportunity to challenge the  


constitutionality of the Act with respect to her own rights.  Her argument that the Act  


violates her due process rights is misplaced.  


                           With regard to Burke's argument about future dependency, we rejected a  



similar argument in the wrongful death context in In re Estate of Pushruk .    There we  


held that a mother needed to show dependency at the time of her adult child's death to  


                                                                                                                        41  We observed that to hold  

be considered a beneficiary under the wrongful death statute.                                                                                                         


otherwise would require undue speculation because a fact finder would have to speculate  


twice:   "first, as to the facts and circumstances which might create a relationship of  


dependency in the future; and, second, as to the amount of damages which would flow  


             38            See   C.J.   v.   State,   Dep't   of  Corr.,  151   P.3d   373,   381   (Alaska   2006)  

(observing                that        the       workers'              compensation                    system            "essentially                eliminat[es]"  

noneconomic   damages).     Additionally,   the   wrongful   death   statute   does   not   allow  

recovery of noneconomic damages when a decedent has no dependents at the time of                                                                                          

death.   AS 09.55.580(a);                          Sowinski v. Walker                    , 198 P.3d 1134, 1161 (Alaska 2008).                            

             39            See Alex H. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 389 P.3d 35, 50 (Alaska 2017).  


             40            562 P.2d 329 (Alaska 1977).  


             41            Id. at 331-32.  


                                                                                   -15-                                                                             7241

----------------------- Page 16-----------------------


from the loss of this hypothesized relationship."                                   


                      Unlikethewrongfuldeathstatute,theActexplicitly limits statutory benefits  

                                                                                                                              43  Basing  



to parents who are "dependent upon" their child at the time of the child's death. 

statutory compensation benefits on dependency at the time of a child's death does not  


violate the equal protection rights of parents who may in the future depend financially  


on their children.  For a viable equal protection claim to exist, similarly situated groups  


must be treated differently:  "[w]here there is no unequal treatment, there can be no  


violation of the right to equal protection of the law."44  The legal conclusion that "two  

classes are not similarly situated necessarily implies that the different legal treatment of  


the two classes is justified by the differences between the two classes."45   We reach this  


legal conclusion through application "in shorthand" of our traditional equal protection  


                                                                                                46   We consider "whether a  

analysis to the legislature's creation of the classification.                                                                               


legitimate reason for disparate treatment exists, and, given a legitimate reason, whether  


the enactment creating the classification bears a fair and substantial relationship to that  


           42         Id.  at  332.  

           43         AS  23.30.215(a)(4),  (c).  

           44         Glover  v.  State,  Dep't  of  Transp.,  Alaska  Marine  Highway  Sys.,   175  P.3d  

1240,  1257  (Alaska  2008)  (quoting  Matanuska-Susitna  Borough  Sch.  Dist.  v.  State,  931  

P.2d  391,  397  (Alaska   1997)).  

           45         Lauth v. State, Dep't of Health & Soc. Servs., Div. of Pub. Assistance , 12  


P.3d 181, 187 (Alaska 2000) (quoting Shepherd v. Dep't of Fish & Game, 897 P.2d 33,  


44 n.12 (Alaska 1995)).  


           46         See  id.  (quoting Shepherd,  897 P.2d  at 44  n.12);  see  also  Gonzales v.  


Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994) (explaining shorthand analysis  


and application to legislative classifications).  


                                                                    -16-                                                              7241

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


reason."             As applied to the classification here, parents who depend financially on their                                                          

child at the time of the child's death lose a present source of income, which workers'                                                               

                                                                                  48   Parents who may depend on their child in  

compensation is designed to replace in part.                                                                                                                      

the future do not lose the present source of income workers' compensation replaces, and  


they might never have become dependent on the child in any event.  Because the two  


groups of parents are not similarly situated, the different treatment Burke questions is not  


constitutionally impermissible.  


                          Burke also argues that because of the 2004 amendments to the Act, which  


expanded the entities deemed to be "employers" for purposes of the exclusive remedy  


provision, she is now barred from bringing a lawsuit against anyone who might be liable  


for  Caudle's death.                      The  list  of  those she views as responsible for  Caudle's death  


includes not only Raven Electric but also some of Caudle's co-employees, the general  

contractor, and the building owner.  She contends the amendments violate her right to  


due process because the amendments to the Act "took away [her] right to sue in [c]ivil  


[c]ourt for justice."  But Burke did not have a right to bring such an action even before  


the 2004 amendments.  Both the Act and the wrongful death statute require the parent  


of an adult child to be dependent on the child in order to be a beneficiary.49                                                                       Because  


Burke was not dependent on Caudle, Burke is not a beneficiary.   When there is no  


statutory beneficiary, a wrongful death action is brought for the benefit of the estate  


             47           Gonzales, 882 P.2d at 396 (citing                                 State, Dep't of Revenue v. Cosio                               , 858   

P.2d 621, 629 (Alaska 1993)).                

             48          See Taylor v. Se.-Harrison W. Corp., 694 P.2d 1160, 1162 (Alaska 1985)  


(explaining that legislature recognized "the need to replace the income that provided  


support for those dependent upon the deceased worker" in giving more benefits to estates  


of deceased workers with dependents).  


             49          AS 09.55.580(a); AS 23.30.215(a).  


                                                                               -17-                                                                         7241

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

           50                                                                                                                                          51  

alone.         Thus in this case, the real party in interest in both claims is Caudle's estate.                                                             


Because Burke is not the personal representative of Caudle's estate and is not the real  


party in interest in asserting any rights with regard to the estate, we decline to reach any  


questions about the effect of the 2004 amendments on the rights of the estates of injured  


workers who die without dependents.  


            B.	         The Exclusive Remedy Provision Bars A Lawsuit Under The Defective  


                        Machinery Act.  



                        Burke argues that the Defective Machinery Act                                          should apply to her case  


because Raven Electric supplied Caudle with the wrong type of equipment, a noncontact  


voltage meter.  She contends that the voltage meter was defective in the sense that it did  


not work for its intended purpose because it did not show that a wire was energized when  


in  fact it was.             The Commission  addressed  this argument in a footnote,  citing  our  


precedent  about  the  interaction  between  the  Workers'  Compensation  Act  and  the  


Defective Machinery Act and observing that "a claim against the employer that is not  


based on the . . . Act must be addressed to the courts rather than the . . . Board."  


                        We considered the interaction of the Defective Machinery Act and the  


exclusive remedy provision of the Act in two cases:  Gordon v. Burgess Construction  

            50          Kulawik v. ERA Jet Alaska                         , 820 P.2d 627, 635 (Alaska 1991) (noting                          

"mutually   exclusive   dichotomy   between   estate   recovery   and   beneficiary   recovery"  

(citing  In re Estate of Pushruk                      , 562 P.2d 329, 331 (Alaska 1977))).                

            51         In re Pushruk, 562 P.2d at 331 ("[I]f the deceased is not survived by the  


beneficiaries named in the [wrongful death] statute, the personalrepresentativeis the real  


party in interest in the wrongful death action.").  


            52          AS  23.25.010-.040.                    Unlike  the  Workers'  Compensation  Act  and  the  


wrongful death statute, the Defective Machinery Act does not require a parent to show  


dependency on an adult child to be a statutory beneficiary.  AS 23.25.010.  


                                                                         -18-	                                                                   7241

----------------------- Page 19-----------------------

       53                                                                                          54  

Co.         and  Haman v. Allied Concrete Products, Inc.                                                 We harmonized the Defective             

MachineryActand                     theexclusiveremedy provision by applying theDefectiveMachinery                                              

Act only to those occupations that are exempt from the coverage of the Act, such as "part                                                                  

time baby            sitters, cleaning                persons, harvest help,                      and similar             part time or transient       

           55   In Gordon we rejected an argument that "the Alaska Legislature, by continuing  


the Defective Machinery Act in existence after enactment of the . . . Act, evidenced its  


intent to exclude defective, dangerous machinery from the coverage of the . . . Act in  


order to coerce employers to furnish safe machinery."56  And in Haman we observed that  


permitting an exception to the exclusive remedy provision when an accident was caused  


by inadequate or defective machinery "would seriously undermine, if not engulf, the  


comprehensiveness" of the workers' compensation system.57  


                         Burke has not shown that the rule we adopted in Gordon "was originally  


erroneous  or  is no  longer  sound  because of changed conditions."58                                                                  We decline to  


overrule our precedent, and because it is uncontested that Caudle's occupation was  


covered by the Act, the exclusive remedy provision bars a suit against Raven Electric  


under the Defective Machinery Act.  


             53          425  P.2d  602  (Alaska   1967).  

             54          495  P.2d  531  (Alaska   1972).  

             55          Gordon,  425  P.2d  at  605.   Those  exemptions  (and  others)  remain  in  place.   

See  AS  23.30.230.  

             56          425  P.2d  at  605.   

             57          495  P.2d  at  535.  

             58          See  State  v.  Carlin,  249  P.3d  752,  757-58  (Alaska  2011)  (setting  out  tests  

for  overruling  precedent).  

                                                                              -19-                                                                        7241

----------------------- Page 20-----------------------

                    C.                 The Board Did Not Err In Its Procedural Decisions.                                                                                

                                       As noted earlier, Burke submitted a copy of the AKOSH report with a                                                                                                                                              

 Board form prior to the hearing.                                                              Burke's purpose in proffering the AKOSH report was                                                                                               

 in part to support her argument that Raven Electric had been grossly negligent.                                                                                                                                                             The  

 Board panel who heard the case excluded it "for purposes of [the July] hearing," but the                                                                                                                                                          

 Board hearing chair, recognizing that Burke was making a constitutional challenge, told                                                                                                                                                         

 her the AKOSH file was "not being . . . stricken from the record" and was "part of the                                                                                                                                                            

 record of the case no matter what."                                                                   Raven Electric argues the Board's exclusion of the                                                                                          

 file was correct, while Burke maintains the documents were relevant to her Defective                                                                                                                                          

 Machinery Act claim.                         

                                       A   Board   regulation  gives   the   Board   the   authority   to   determine   which  

                                                                                                                                                       59  Because the Board does not have  

 documents it will consider when making its decision.                                                                                                                                                                                         

jurisdiction  to  decide  constitutional  issues  and  because  benefits  under  the  Act  are  


 awarded regardless of fault, the Board appropriately declined to consider the AKOSH  


 file in making its decision related to the Act but not striking it from the record.  


                                       Burke also contends the Board erred in denying her request for more time  


 to prepare for the hearing. According to Burke, Board staff told her she would have two  


 years from the time she filed the workers' compensation claim to prepare for a hearing.  


 She argues that had she been given more time to prepare, she would have been able to  


 subpoena  witnesses  to  testify  about  worker  safety  and  could  have  gathered  more  


 evidence from state agencies about the accident. She also asserts that she "[w]ould have  


 had more time to read and research more legal information."  


                                       Raven Electric filed an affidavit of readiness for hearing on its petition to  


 dismiss shortly after the Board's March 2014 interlocutory order and about nine months  


                    59                  8  Alaska  Administrative  Code  (AAC)  45.120(f)  (2011).  

                                                                                                                        -20-                                                                                                                             7241  

----------------------- Page 21-----------------------

after Burke filed her claim.                                   Burke opposed setting a hearing, but the Board set a July                                                              

2014 hearing date.             

                              The Board can set a hearing on a claim or petition either on its own motion                                                                        

                                                                                                                                 60      Because  Burke  filed  an  

or   after   receipt   of   an   affidavit   of   readiness   for   hearing.                                                                                                              

opposition, the Board was required to hold a prehearing conference,61  which it did.  


Regulations give the Board some discretion in scheduling the hearing.62                                                                                          We review an  


administrative  agency's  application  of  its  own  regulations  to  a  particular  case  to  


determine "whether the agency's decision was arbitrary, unreasonable, or an abuse of  



                              We conclude that scheduling the hearing over Burke's objection was not  

improper.  The evidence Burke wanted to admit was not relevant to the issues the Board  


could decide: Burke sought to admit evidence related to negligent conduct that she said  


led to Caudle's death, but the Act creates a system of payment without regard to fault.  


Absent the possibility of a deliberate intent to injure a worker - and Burke agrees that  


Raven Electric did not intend to hurt Caudle - an employer's negligence is irrelevant  


to a workers' compensation proceeding.64   And Burke had more than three months after  


               60             8 AAC 45.060(e) (2017).                                   The two-year deadline Burke alludes to is most                                                

likely related to AS 23.30.110(c), which authorizes denial of a claim when the claimant                                                                                       

does not file an affidavit of readiness for hearing within two years of an employer's                                                                                  

controversion.   This statute does not prohibit an earlier hearing on a claim.                                                                          

               61             8 AAC 45.070(c) (2011).  


               62             8 AAC 45.070(a), (c).  


               63             Griffiths v. Andy's Body & Frame, Inc., 165 P.3d 619, 623 (Alaska 2007).  


               64             See Fenner v. Municipality  of Anchorage , 53 P.3d 573, 576-77 (Alaska  


2002) (reaffirming precedent holding that employer must have specific intent to injure  



                                                                                           -21-                                                                                      7241

----------------------- Page 22-----------------------

the prehearing conference to prepare for a late-July hearing.                                                        In sum the Board did not                   

abuse its discretion in its procedural decisions.                                        65  


             D.	          The  Commission  Erred  In  Awarding  Attorney's  Fees  To  Raven  



                         After winning the Commission appeal Raven Electric asked for an award  


of full reasonable attorney's fees as the successful party, arguing that Burke did not  


qualify for the protection for injured workers set out in the Act. The Commission agreed  


and ordered Burke to pay $11,203.20 in costs and fees to Raven Electric.  


                          On appeal Burke asserts she should not have to pay attorney's fees because  


the injured worker in this case is dead and unable to fight for justice on her own behalf.  


Raven  Electric  responds  that  the  Commission  correctly  determined  Burke  was  not  


entitled to the protection against attorney's fees the statute gives to injured workers.  


Raven Electric contends that because Burke disavowed any financial dependence on  


Caudle at the time of Caudle's death, the Commission correctly awarded it fees.  Raven  



Electric relies on State, Division of Workers' Compensation v. Titan Enterprises, LLC 


in making its argument.  


                          This issue is one of statutory construction.  Alaska Statute 23.30.008(d)  


provides that the Commission should award attorney's fees and costs to the prevailing  


party in a Commission appeal but "may not make an award of attorney['s] fees against  


an injured worker" absent a finding "that the worker's position on appeal was frivolous  

             64           (...continued)  


employee to be within intentional tort exception to exclusive remedy provision).  

             65           Burke makes several other arguments related to the Act.  We do not find  


them persuasive and do not address them here.                                              

             66           338 P.3d 316 (Alaska 2014).  


                                                                               -22-	                                                                        7241

----------------------- Page 23-----------------------


or unreasonable or the appeal was taken in bad faith."                                                                     



                             Although we have construed AS 23.30.008(d) several times,                                                                             we have not  

                                                                                          69  When interpreting a statute, we consider the  



addressed the meaning of injured worker.  

meaning of the statutory language, the legislative history, and the purpose of the statute,  


adopting "the rule of law that is most persuasive in light of precedent, reason, and  


policy."70  We consider all parts of a statute together and presume the legislature is aware  


of other statutory sections on the same subject as well as prior cases when enacting  




                             There is no legislative definition of injured worker, and the term is only  


used sporadically in the Act.72                                     At times injured worker is used in the same sentence as  


               67            AS 23.30.008(d).   

               68            See Titan Enters., LLC                            , 338 P.3d at 321-23 (interpreting statute when two                                                   

nonclaimants  were  involved  in  appeal);  Humphrey  v.  Lowe's  Home  Improvement  


 Warehouse, Inc.                    , 337 P.3d 1174, 1181-82 (Alaska 2014) (reversing refusal to award fees                                                                          

when claimant's attorney prevailed on some issues);                                                                Lewis-Walunga v. Municipality of                                      

Anchorage , 249 P.3d 1063, 1068 (Alaska 2011) (holding that "a claimant is a successful  


party in an appeal to the Commission when the claimant prevails on a significant issue                                                                                            

in the appeal");                     Shehata v. Salvation Army                                   , 225 P.3d 1106, 1119-20 (Alaska 2010)                                         

 (reversing   fee   award   for   Commission   appeal   because   claimant's   appeal   was   not  


               69            In Shehata v. Salvation Army, the only case in which we considered the  


 shield against paying fees for a Commission appeal, the employer conceded Shehata  


"was an injured worker because he had a compensable injury."  225 P.3d at 1119.  


               70            L.D.G., Inc. v. Brown, 211 P.3d 1110, 1133 (Alaska 2009) (citing Enders  


v. Parker, 66 P.3d 11, 13-14 (Alaska 2003)).  


               71             Young v. Embley, 143 P.3d 936, 947 (Alaska 2006).  


               72            See, e.g., AS 23.30.001, .008, .041, .225.  


                                                                                          -23-                                                                                    7241

----------------------- Page 24-----------------------


employee  to refer to the same person.                                                                 We observed in                            Lewis-Walunga v. Municipality                     

of Anchorage  that "[t]here is little legislative history about AS 23.30.008(d), but what   

there is suggests that the legislature intended Commission attorney's fees awards to                                                                                                                                          

                                                                                                                                                                                                  74      Appellate  

follow the same rules as appellate attorney's fees awards in the courts."                                                                                                                                

attorney's fees in the courts were governed by former Alaska Appellate Rule 508(g) in  


2005 when the Commission was created.75                                                                              Former Rule 508(g)(1) prohibited a court  


from awarding  costs or  attorney's  fees  against  a  "claimant"  unless  "the  claimant's  


position was frivolous, unreasonable, or taken in bad faith."76  


                                   The key difference between former Rule 508(g)(1) and AS 23.30.008(d)  


is that the statute uses the term injured worker rather than claimant.   Nothing in the  


legislative history manifests an intent to narrow those who are shielded from an award  


of  attorney's  fees;  to  the  contrary,  the  scant  legislative  history  "suggests  that  the  


legislature intended Commission attorney's fees awards to follow the same rules as  



appellate attorney's fees awards in the courts."                                                                                  


                  73               See,   e.g.,   AS   23.30.225(c)   ("If   employer   contributions   to   a   qualified  

pension . . . plan have been included in the determination of gross earnings and the                                                                                                                                        

employee   is receiving pension . . . payments, weekly compensation benefits payable                                                                                                                           

under this chapter shall be reduced by the amount paid or payable to the                                                                                                                    injured worker   

under the plan . . . ." (emphasis added)).                                          

                  74               249 P.3d 1063, 1067 (Alaska 2011) (citing STATE OF                                                                                             ALASKA, D                     EP 'T OF   


LAW, SECTION BY SECTION ANALYSIS OF SB 130 at 7 (Mar. 3, 2005)).                                                                                                     


                  75               Ch. 10,  8, FSSLA 2005; former Alaska R. App. P. 508(g)(1) (2005).                                                                                                    

                  76               Former Alaska R. App. P. 508(g)(1).                                                               The language of AS 23.30.008(d) is                                                         

similar to former Rule 508(g)(2) in that the statute, like our former rule, allows an award                                                                                                                          

of full reasonable attorney's fees.  


                  77               Lewis-Walunga, 249 P.3d at 1067 (citing STATE OF                                                                                              ALASKA, D                      EP 'T OF   



                                                                                                             -24-                                                                                                      7241

----------------------- Page 25-----------------------

                        Furthermore,   when   the   legislature   created   the   Commission,   it   did   not  

 change the restrictions it had placed on payment of attorney's fees for legal services                                                       

                                                 78    As we discussed in  Titan Enterprises, "[a]ttorneys are  

 "with respect to               a claim       ."                                                                                                       

prohibited from receiving fees for representing claimants unless the Board awards them  


 fees when claimants are successful."79  But claimants can include others in addition to  


injured workers: Alaska Statute 23.30.030(4) requires a workers' compensation insurer  


to "promptly pay to the person entitled to them the benefits conferred by [the Act]," and  


we have construed this subsection as meaning that an employer is directly liable to those  


persons.80           A Board regulation permits "person[s] other than the employee" to file a  


 claim; with some exceptions, those who file their own claims must join the employee as  


 a party.81        But because the statutory restrictions on fee arrangements do not distinguish  


between injured workers and others to whom payment may be required, claimants, not  


just injured workers, are entitled to the protection of the shield against an award of  


 attorney's fees.  


                         Titan   Enterprises   is   not   to   the   contrary.                                      There   we   construed  


            77           (...continued)  

LAW, S        ECTION BY  SECTION  ANALYSIS OF  SB 130 at 7 (Mar. 3, 2005)).                                       

            78          AS 23.30.145, .260 (emphasis added).                     

            79          State, Div. of Workers' Comp. v. Titan Enters., LLC, 338 P.3d 316, 323  


 (Alaska 2014) (emphasis added).  


            80          See Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1128  


 (Alaska  2008)  (quoting  Sherrod  v.  Municipality  of  Anchorage,  803  P.2d  874,  875  


 (Alaska 1990)).  


            81           8 AAC 45.040(a) (2011).  


                                                                           -25-                                                                    7241

----------------------- Page 26-----------------------

AS 23.30.008(d) as permitting an award of attorney's fees to either party in an appeal.                                                     82  


But in allowing the Commission to consider the relative success of two nonclaimants  


when it awarded fees, we observed that AS 23.30.008(d) provided no shield to "non- 

                                                                                                          83  We also considered  



claimants who lose a significant issue in a Commission appeal." 

the Act's restrictions on fee arrangements to explain the difference in treatment of  


nonclaimants and claimants.84  


                      Burke asserted constitutional claims as a possible beneficiary of a deceased  


worker as well as claims more properly made by Caudle's estate.85                                                    She was thus a  


claimant  under  the  Act.                   As  such,  she  is  entitled  to  the  protection  afforded  other  


claimants against having to pay attorney's fees to Raven Electric unless her position on  


appeal was frivolous, unreasonable, or the appeal was taken in bad faith.  We hold that  


it was not.  


                      Tobefrivolousor unreasonableaworkers' compensationclaimant'sappeal  


                                                        86  In its Commission brief Raven Electric contended  

must have no basis in law or fact.                                                                                            

           82         Titan  Enters.,  LLC,  338  P.3d  at  321.   

           83         Id.  at  321-22.  

           84         Id.  at  322-23.  

           85         It  was  only  at  the  end  of  the  July  2014  hearing  that  the  Board  chair  clarified  

Burke's  status.  

           86         See  Shehata  v.  Salvation  Army ,  225  P.3d  1106,  1119  (Alaska  2010)  


(holding that  legal issue raised  in  appeal "had  a basis  in law and  fact" and was not  


frivolous or unreasonable).  This standard is similar to one used in federal civil rights  



litigation.  See Okopu v. Cty. of Suffolk, 123 F. Supp. 3d 404, 411 (E.D.N.Y. 2015)  


(holding in federal civil rights suit that "[a] claim is frivolous where it lacks an arguable  


basis either in law or in fact" (alteration in original) (quoting Shakur v. Selsky, 391 F.3d  


 106, 113 (2d Cir. 2004))).  



                                                                    -26-                                                              7241

----------------------- Page 27-----------------------

that Burke's appeal was frivolous and unreasonable because the positions she advocated                                                   

                                                 87                                                                                                     88  

 came within our precedent.                                                                                                           

                                                     Because precedent can be, and sometimes is, overruled, 

 asserting a position that is contrary to controlling precedent is not per se unreasonable  


 or frivolous.  


                        Pleadings of self-represented litigants are held to less stringent standards  


than those of attorneys.89   The Board and the Commission clearly understood Burke was  


raising  constitutional  claims,  and  both  administrative  bodies  told  her  they  lacked  


jurisdiction to decidethoseissues. Raven Electricacknowledged at oral argument before  


us that Burke used an appropriate process to assert claims related to the constitutionality  


            86          (...continued)  


                        Raven Electric has never asserted that Burke filed her claim in bad faith.  


In fact it acknowledges that "Burke is acting as the personal representative of Caudle's  


memory and seeking justice."  

            87          Raven Electric relied only on DeNardo v. Cutler, 167 P.3d 674 (Alaska  


2007), to support this argument.  But DeNardo did not hold that advocating a position  


 contrary to precedent was unreasonable and frivolous: there we upheld an award of fees  


 against an experienced self-represented litigant who had, after losing several similar  


lawsuits  in  the  past,  "persisted  in  [suing  a  judge]  despite  [the  litigant's]  apparent  


understanding of the law."  Id. at 680.  


            88          See, e.g., State v. Carlin, 249 P.3d 752, 759-60 (Alaska 2011), overruling  


Hartwell v. State, 423 P.2d 282 (Alaska 1967).  


            89          DeNardo v. Calista Corp., 111 P.3d 326, 330-31 (Alaska 2005).  


                                                                          -27-                                                                    7241

----------------------- Page 28-----------------------

of   the   Act.     Here,   the   core   position   Burke   advanced   -   that   the   Act   violates   the  

constitutional rights of estates of workers who have no dependents when they die in                                                                                            

work-related accidents - was adopted at one point by the New Hampshire Supreme                                                                                   

            90  and was endorsed more recently by dissenting justices in Montana.91  


                            Given Burke's self-represented status and the acknowledgment of both the  


administrative agencies and the employer that only this court had jurisdiction to decide  


Burke's constitutional arguments, we cannot say that her appeal to the Commission -  


a prerequisite for review by this court - was unreasonable or frivolous.  


V.            CONCLUSION  

                            We HOLD that the Alaska Workers' Compensation Act does not violate  


Burke's rights to equal protection or due process.   We AFFIRM the Commission's  


decision  that  Burke  is  not  entitled  to  benefits  under  the  Act.                                                                  We  REVERSE  the  


Commission's award of attorney's fees to Raven Electric.  


              90           Park v. Rockwell Int'l Corp                              ., 436 A.2d 1136, 1139 (N.H. 1981),                                        overruled  

by Alonzi v. Ne. Generation Servs. Co.                                          , 940 A.2d 1153, 1162-63 (N.H. 2008).                                

              91            Walters v. Flathead Concrete Prods., Inc., 249 P.3d 913, 922 (Mont. 2011)  


(Wheat, J., dissenting); id. at 923 (Nelson, J., dissenting).  


                                                                                     -28-                                                                                7241

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