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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,  

                                                                                                                 

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                   

          corrections@akcourts.us.  



                     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  

                                                                 )  

RAVEN ELECTRIC, INC. and  

                                   

LIBERTY MUTUAL INSURANCE                                         )  

                                                                 )                                     

COMPANY,                                                               No. 7241 - May 11, 2018  

                                                                 )  

                              Appellees.                         )  

                                                                 )  



                                                                                                   

                    Appeal from the  Alaska  Workers'  Compensation Appeals  

                    Commission.  



                                                                                             

                    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-----------------------

I.         INTRODUCTION  



                     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.  

                         



II.        FACTS AND PROCEEDINGS  

                                   



                     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.,  



                                                                                                                               

http://labor.state.ak.us/lss/forms/Fatalgram_11-07.pdf.  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                                              

L                          

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[]                                                                   



                                                                                                                                                                     2  

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                                                                                              



                                            3  

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                                                        



       5  

Act                                                                                                                                                       

          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).                          



             7  

                                                                                                                                         

                         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  



                                                                                           8  

Commission,   we   review   the   Commission's   decision.                                                                

                                                                                               We  apply  our  independent  



                                                                                                                                  

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



                                                                        9  

                                                                                                                               

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



                                                        10  

                                                  

to questions of constitutional law. 



IV.        DISCUSSION  



                      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           

2010)).  



           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                                                



                                                                                                                                            14  

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,  

lost."                                                                                                                                                          



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

                                                                                                                                                                          



              12           (...continued)  



 1979))).  



              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.                                       

                               



              18  

                                     

                           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),  

                                                                                                                           

http://www.legis.state.ak.us/pdf/23/M/SL!C2004-03-041332.PDF.  



            25           AS 23.30.045.  

                                 



                                                                             -11-                                                                       7241
  


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

                                                               26  

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  

employer.                                                                                                                                                                                          



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  

remedy."                                                                                                                                                  



                                 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).                          



                30  

                                               

                                Id. at 86.  



                31  

                                                                                                                                                                                                           

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

 1957)).  



                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-----------------------

                                                                                                                                                           38  

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  

                                                                                                                                                                            



                                                                                                                                                      40 

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-----------------------

                                                                               42  

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-----------------------

                47  

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.  



                                                                                                           52  

                                                                                                                                                   

                        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  

help."                                                                                                                                          



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  

                                                                                                                                                                                           

discretion."63  



                              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  

                                                                                                                                                                                   

                                                                                                                                                                  (continued...)  



                                                                                           -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  

                          Electric.  



                                                                                                                                                          

                         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  



                                                                                                                                                                  66  

                                                                                                                                                           

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-----------------------

                                                                                                                      67  

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



                                                                                                                                                               68  

                                                                                                                                                                                       

                             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  

                                                                                                                                               

legislation.71  

                              



                             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  

frivolous).  



               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-----------------------

                                                                                                 73  

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  

                                                                                                                                                                                                                              



                                                                                                                           77  

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   

                                                                                                                                                     

                                                                                                                                                                                                 (continued...)  



                                                                                                             -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))).  

                              

                                                                                                                         (continued...)  



                                                                    -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  

Court                                                                                                                                   



                            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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