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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Atkins v. Inlet Transportation & Taxi Service, Inc. (9/21/2018) sp-7300

Atkins v. Inlet Transportation & Taxi Service, Inc. (9/21/2018) sp-7300

          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                                    



TRACY  O.  ATKINS,                                                 )  

                                                                   )                                     

                                                                         Supreme Court No. S-16485  

                               Appellant,                          )  

                                                                   )                                 

                                                                         Alaska Workers' Compensation  

          v.                                                       )                                               

                                                                         Appeals Commission No.  14-011  

                                                                   )  

INLET TRANSPORTATION & TAXI                                                                  

                                                                   )     O P I N I O N  

SERVICE, INC. and STATE OF  

                                                                   )  

ALASKA, WORKERS'  

                                                                   )  

COMPENSATION BENEFITS  

                                                                   )  

GUARANTY FUND,                                                                                                     

                                                                   )     No. 7300 - September 21, 2018  

                                                                   )  

                               Appellees.                          )  

                                                                   )  



                                                                                                      

                                           

                     Appeal from the Alaska Workers' Compensation Appeals  

                     Commission.  



                                                                                                 

                     Appearances: Eric Croft, The Croft Law Office, Anchorage,  

                                                                                                    

                     for   Appellant.             Siobhan   McIntyre,   Assistant   Attorney  

                                                                                                   

                     General,   Anchorage,   and   Jahna   Lindemuth,   Attorney  

                                                                                                    

                     General,  Juneau,  for  Appellee  State  of  Alaska,  Workers'  

                                                                                                               

                     Compensation Benefits Guaranty Fund.  No appearance by  

                                                                                

                     Inlet Transportation & Taxi Service, Inc.  



                                                                                                       

                     Before: Stowers, Chief Justice, Winfree, Bolger, and Carney,  

                                                                        

                     Justices.  [Maassen, Justice, not participating.]  



                                                    

                     STOWERS, Chief Justice.  



I.        INTRODUCTION  



                                                                                                                               

                     A taxi driver was injured in a car accident while working.  The taxi driver  


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

later filed a report of injury with the Alaska Workers' Compensation Board, but the                                                                                                                                                                                                                                                                                  



nature of the employment relationship between the taxi company and the driver was                                                                                                                                                                                                                                                                                



disputed.   The taxi driver retained an attorney for a tort suit against the other driver,                                                                                                                                                                                                                                                            



 settling that claim with the driver's insurance company without the taxi company's                                                                                                                                                                                                                                               



approval. Because the taxi company did not have workers' compensation insurance, the                                                                                                                                                                                                                                                                                  



Alaska    Workers'    Compensation    Benefits    Guaranty    Fund    (the    Fund)    assumed  



responsibility for adjusting the workers' compensation claim. The Fund asked the Board                                                                                                                                                                                                                                                                   



to dismiss the taxi driver's claim because of the unapproved settlement.                                                                                                                                                                                                                                                        The Board   



dismissed the claim, and the Alaska Workers' Compensation Appeals Commission                                                                                                                                                                                                                                               



ultimately affirmed the Board's decision.                                                                                                                                        The taxi driver appeals, advancing both legal                                                                                                                                



and equitable arguments.                                                                                      We affirm the Commission's decision.                                                                                              



II.                          FACTS AND PROCEEDINGS                                          



                             A.                          Facts  

                                                          Tracy Atkins began driving for Inlet Transportation & Taxi Service, Inc.                                                                                                                                                                                                                                               1  



(Inlet  Taxi)  in  the  Kenai  area  in  the  summer  of  2009.                                                                                                                                                                                                  Shortly  after  midnight  on  

                                                                                                                                                                                                                                                                                                                                                                      



 September 6, 2009, Atkins was en route to pick up his last fare of the night when another  

                                                                                                                                                                                                                                                                                                                                                   



car crossed the center line of the Kenai Spur Highway and hit his taxi head on. The other  

                                                                                                                                                                                                                                                                                                                                                             



driver, 19-year-old Jeffrey Vincent, died in the collision; Atkins was severely injured.  

                                                                                                                                                                                                                                                                                                                                                



                             1                            The identity of Atkins's employer is unclear, with two business entities                                                                                                                                                                                                                 



identified in the record.                                                                                      Acting at the Fund's request, the Board did not determine                                                                                                                                                               

whether   Atkins,   as   a   taxi   driver,   was   an   employee   under   the   Alaska   Workers'  

Compensation Act and, if he was, who his employer was.                                                                                                                                                                                                                See   AS 23.30.230(a)(7)   

(exempting from coverage taxi drivers with certain written contractual arrangements).                                                                                                                                                                                                                                                                                                

We refer to all the potential employer entities as Inlet Taxi unless the context requires   

otherwise.   



                                                                                                                                                                                    -2-                                                                                                                                                                        7300
  


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

                          Atkins's employment relationship with Inlet Taxi has been disputed, and  



the record about this relationship was not well developed because of the order in which  

                                                                                                                                                             



the Board decided to consider the issues.  Atkins testified that Michael Kinslow hired  

                                                                                                                                                               



himto work for Inlet Taxi; Atkins understood that Kinslow was buying the company and  

                                                                                                                                                                  



was acting as the manager for the owner, Robert Roper.                                                                 Kinslow in fact was not  

                                                                                                                                                                  



purchasing the business, but at the time Atkins was driving the cab, Kinslow had a  

                                                                                                                                                                      



business license to operate a business called Inlet Taxi & Transportation.  According to  

                                                                                                                                                                     



records from the State of Alaska Division of Corporations, Business and Professional  

                                                                                                                                                 



Licensing, Inlet Transportation & Taxi Service, Inc. was a corporation wholly owned by  

                                                                                                                                                                    



Roper at the time of the accident.  Nothing in the record shows that Atkins had a written  

                                                                                                                                                           



contract  with  Roper,  Kinslow,  or  Inlet  Taxi,  even  though  the  Board  ordered  the  

                                                                                                                                                                  



corporation to produce a written contract if one existed.  Atkins testified that while he  

                                                  



was hospitalized following the accident, Kinslow asked him to sign a contract at Roper's  

                                                                                                                                                          



behest.  Atkins refused to sign it.  

                                                             



                          Several months after the accident, Atkins contacted Joseph Kalamarides,  

                                                                                                            



anattorney experienced in representingworkers'compensationclaimants,toseewhether  

                                                                                                                                                          



his  injuries  might  be  covered  by  the  Alaska  Workers'  Compensation  Act  (Act).  

                                                                                                                                                                          



Kalamarides declined to represent Atkins but wrote an opinion letter setting out statutory  

                                                                                                                                                        

subsections relevant to taxi drivers.2                                  Kalamarides noted that it appeared Atkins did not  

                                                                                                                                                                   



have a written contract and told Atkins that if he filed a workers' compensation claim,  

                                                                                                                                                             



he "[might] need to know that any resolution with the liability carriers in the accident  

                                                                                                                                                        



ha[d] to be done with the written agreement of the workers' compensation carrier as they  

                                                                                                                                                                 



             2            AS 23.30.230(a)(7) generally exempts from coverage under the Act taxi                                                                  



drivers "whose compensation and written contractual arrangement is as described in                                                                                   

AS 23.10.055(a)(13)."   



                                                                                 -3-                                                                           7300
  


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                                                                                                                                                                                           3  

may have a lien on those proceeds."                                                                                                                                                               Kalamarides directed Atkins to the Board for                                                                                                                                              



 further information if Atkins wanted to pursue a workers' compensation claim.                                                                                                                                                                                                                                                                                                                             Atkins  



later contacted the Division of Workers' Compensation to see whether Inlet Taxi had                                                                                                                                                                                                                                                                                                                                          



workers'   compensation   insurance;   according   to   the   Division's   database,   it   was  



uninsured.  



                                                                   Atkins retained an attorney, Stuart Cam Rader, to represent him in his                                                                                                                                                                                                                                                                       



personal injury claims.  Rader later testified that he advised Atkins to "follow through  



on" "any means of redress that would put money in his pocket quickly," including                                                                                                                                                                                                                                                                                                              



workers' compensation.                                                                                                       Rader said he did not practice workers' compensation law                                                                                                                                                                                                                                       



 except for a small amount "15 or 20 years ago" but was aware that "an employer has a                                                                                                                                                                                                                                                                                                                                                     



comp lien" on proceeds from a negligence action against a third party; he was not,                                                                                                                                                                                                                                                                                                                                         



however, aware of the specific statutory provision related to employer approval of third-                                                                                                                                                                                                                                                                                                                           



party settlements.   Rader attempted to contact Roper, Inlet Taxi, and "the person that                                                                                                                                                                                                                                                                                                                                     



purchased Inlet" to inform them of his representation of Atkins and "to find out about                                                                                                                                                                                                                                                                



their insurance coverage."                                                                                                           Rader did not recall talking to anyone at Inlet Taxi until he                                                                                                                                                                                                                                 



"was able to make a connection with an adjuster for National Continental Insurance,"                                                                                                                                                                                                                                                                                                 



Roper's   commercial   liability   insurer.     The   adjuster   requested   that   Rader   "recover  



whatever [he] could from the at-fault parties . . . so that . . . [the adjuster] could properly                                                                                                                                                                                                                                                                                                      



 address the underinsured's liability under Inlet Taxi's policy." Rader obtained a policy-                                                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                                                                                               4  and Atkins signed  

limits settlement against the estate's automobile insurance policies,                                                                                                                                                                                                                                                                                                                                          



                                 3                                 AS 23.30.015(h) provides, "If compromise with a third person is made by                                                                                                                                                                                                                                                                                         



the person entitled to compensation . . . of an amount less than the compensation to                                                                                                                                                                                                                                                                                                                                                 

which the person . . . would be entitled, the employer is liable for compensation . . . only                                                                                                                                                                                                                                                                                                                  

if the compromise is made with the employer's written approval."                                                                                                                                                                                                                     



                                  4                                Vincent was driving a parent's car at the time of the accident, so Atkins  

                                                                                                                                                                                                                                                                                                                                                                                                              

received a policy-limits payment from two policies, one from Vincent's policy and  

                                                                                                                                                                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                                                                                                                              (continued...)  



                                                                                                                                                                                                                  -4-                                                                                                                                                                                                   7300
  


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

 releases related to the estate's insurance on May 5, 2011. Each policy paid $50,000 plus                                                                                                                



prejudgment interest and Alaska Civil Rule 82 attorney's fees.                                                                                              After Rader provided             



 Roper's insurer's adjuster with copies of the releases, the commercial liability carrier                                                                                                          



 settled Atkins's underinsured motorist claim.                                                                 Although Rader was not entirely sure, he                                                      



 thought he "was aware [Atkins] was pursuing a comp remedy before . . . settl[ing] with                                                                                                                 



 the [estate]."                  Nothing in the record indicates that Rader obtained written approval from                                                                                             



 Roper or Inlet Taxi for the settlement with the Vincent estate.                                                                       



                 B.              Proceedings  



                                 When Atkins contacted the Division to inquire whether Inlet Taxi had  

                                                                                                                                                                                                         



 compensation coverage, a Division employee urged him to file a claim with the Board.  

                                                                                                                                                                                                                     



 Atkins filed a Report of Injury in early April 2011, noting that Inlet Taxi was uninsured.  

                                                                                                                                                                                                                     



 He filed a written workers' compensation claim for a variety of benefits the same day.  

                                                                                                                                                                                                                     



 His claim identified Inlet Taxi & Transportation as his employer and asked the Board to  

                                                                                                                                                                                                              

join the Fund.  The Fund, established in 2005, 5  can provide compensation benefits to  

                                                                                                                                                                                                              

 injured workers in some circumstances.6                                                                  An employee whose employer (1) has no  

                                                                                                                                                                                                            



 compensation coverage and (2) "fails to pay compensation and  benefits due to the  

                                                                                                                                                                                                           

 employee under [the Act]" can "file a claim for payment by the [F]und."7                                                                                                           "The [F]und  

                                                                                                                                                                                                  

 may assert the same defenses as an insured employer under [the Act]."8  

                                                                                                                                                                                



                 4               (...continued)
  



 another  from  the  parent's  policy.
  



                 5               Ch.   10,    31,  FSSLA  2005.  



                 6               AS  23.30.082.  



                 7               AS  23.30.082(c).  



                 8               Id.  



                                                                                                      -5-                                                                                              7300
  


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

                                                                                                                                                            9  

                          The Board sent notice of the claim to Inlet Taxi; it did not answer.                                                                 The  



Fund filed an answer to Atkins's claim, disputing the existence of                                                                      an  employment  



relationship.   The Fund filed its first notice of controversion in May 2011, disputing                                                              



whether Atkins was covered by the Act because he was a taxi driver.                                                                       The Fund also         

petitioned to join the corporate officers of Inlet Transportation & Taxi Services, Inc.                                                                             10  



and Michael Kinslow d/b/a Inlet Taxi & Transportation Services.  

                                                                                                             



                          On May 16 the Fund's adjuster, Joanne Pride, interviewed Atkins.  Atkins  

                                                                                                                                                           



told her the circumstances of the accident and his employment with Inlet Taxi, and gave  

                                                                                                                                                               



her information about his work history.  Atkins shared letters from Kalamarides and the  

                                                                                                                                                                  



estate's insurance adjuster with Pride.  Atkins told Pride he was being represented by  

                                                                                                                                                                   



Rader and that they were "working on" a settlement with the estate, saying, "Have no  

                                                                                                                                                                   



monies as of yet but working on it." Atkins informed Pride that the settlement would be  

                                                                                                                                                                   



for policy limits and would total $100,000 before attorney's fees and liens were taken  

                                                                                                                                                             



out.  He confirmed that his medical expenses exceeded the amount of the settlement.  

                                                                                                                                                                         



Atkins did not advise Pride that he had signed the two automobile insurance releases 11  

                                                                                                                                                                   



days earlier.  Pride did not tell Atkins he might need to get written approval from either  

                                                                                                                                                             



his employer or the Fund for any settlement with the estate.  

                                                                                                        



                          TheBoard joined Kinslowand all corporate officers ofInletTransportation  

                                                                                                                                            



& Taxi Service, Inc.  The only employer entity who answered the claim was Kinslow;  

                                                                                                                                                      



in an untimely answer he asked to be dismissed from the case, which the Board refused  

                                                                                                                                                          



to do.  The record indicates that Brian Altman, the vice-president of the corporation,  

                                                                                                                                                



contacted the Board to say he "would have no participation in the case" because "Atkins  

                                                                                                                                                         



             9            Many notices sent to Inlet Taxi were returned to the Board.                                           



             10           By the time Atkins filed his workers' compensation claim, the corporation  

                                                                                                                                                  

was jointly owned by Roper and Brian Altman; Roper, Altman, and Jay Edelman were  

                                                                                                                                                              

its officers.  

       



                                                                                 -6-                                                                          7300
  


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

was not an employee of the corporation."                                                                                                                                                        In October 2011, the Fund filed a second                                                                                                                    



notice of controversion based on Atkins's settlement with the estate.                                                                                                                                                                                                                



                                                            Atkins filed an affidavit                                                                               ofreadiness for hearing in October 2013, two years                                                                                                                                                     



after the Fund's second notice of controversion.                                                                                                                                                                      The Fund then petitioned the Board to                                                                                                                              



dismiss Atkins's workers' compensation claim on two grounds:                                                                                                                                                                                                                                              (1) he did not get                                                      



written permission from the employer prior to settling with the estate and (2) he did not                                                                                                                                                                                                                                                                                          



timely file an affidavit of readiness for hearing because he did not file it within two years                                                                                                                                                                                                                                                                              



of the first notice of controversion.                                                      



                                                            The Board scheduled a hearing on the petition to dismiss. Atkins, who was                                                                                                                                                                                                                                            



 self-represented, emailed the Board                                                                                                                                     shortly before the hearing to complain that the                                                                                                                                                          



parties had not yet determined whether he even had a workers' compensation case.                                                                                                                                                                                                                                                                                                  He  



renewed his objection at the hearing, arguing that if Inlet Taxi was not his employer                                                                                                                                                                                                                                                                 



under the Act, there was no reason for the parties to have a hearing.                                                                                                                                                                                                                                         The Fund asserted                               



the employment question was "more complicated" and asked the Board to dispose of the                                                                                                                                                                                                                                                                                                



case on other grounds.                                                                                   The Fund's position was that Atkins's medical bills from the                                                                                                                                                                                                              



accident exceeded the total settlement with the estate, so Atkins's failure to obtain                                                                                                                                                                                                                                                                               



written approval of that settlement from his employer or the Fund was an adequate legal                                                                                                                                                                                                                                                                                     

basis on which to dismiss the claim.                                                                                                                             11  



                                                            At the hearing the Board chair initially questioned the Fund's attorney  

                                                                                                                                                                                                                                                                                                                                                           



about the order in which the issues were being presented for decision, noting "two big  

                                                                                                                                                                                                                                                                                                                                                                                   



preliminary issues" that were disputed, one being "Was Mr. Atkins an employee for  

                                                                                                                                                                                                                                                                                                                                                                                   



purposes of the Act?" and the other being "Was he exempt from the Act as a taxi  

                                                                                                                                                                                                                                                                                                                                                                               



driver?"  The Fund refused to concede Atkins was an employee for purposes of the Act  

                                                                                                                                                                                                                                                                                                                                                                                 



                              11  

                                                                                                                                                                                                                                                                                                                                                                                

                                                            The payment from Roper's insurance was not at issue because Roper was  

                                                                                                                              

not a third person under AS 23.30.015.  



                                                                                                                                                                                           -7-                                                                                                                                                                                                  7300  


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

but asked the Board to go forward with the hearing assuming Atkins was an employee                                                               



                                   12  

of some employer.                                                                                                                                    

                                        The Board agreed to hear the issues in the order the Fund wanted  



                                                                                                                                        

themheard afterdeterminingtheparties agreed thatAtkins's medical bills (compensation  



                                                                                                                                                               

the Fund might be liable for) exceeded the amount of the settlement with the estate.  



                                                                                                                                                 

                         Pride testified about the controversions she filed and about the interview  



                                                                                                                                                             

she conducted with Atkins in May 2011, indicating Atkins had informed her of the  



                                                                                                                                                                    

amount of his medical bills and the settlement negotiations with the estate's insurer.  



                                                                                                                                                            

Pride testified that Atkins told her a settlement was "in the works" but did not say he had  



                                                                                                                                                        

already  signed  releases  for  the  estate's  insurance,  and  when  she  contacted  other  



                                                                                                                                                          

insurance companies in October 2011, "[t]hey were very taken aback, because they were  



                                                                                                                                                             

not aware that workers' comp was involved in this, or they would never have settled the  

              13     Pride  calculated  the  amount  of  Atkins's  benefits,  estimating  his  weekly  

claim."                                                                                                                                              



disability benefit would be $362.  

                                                    



                         Rader  did  not  recall  when  he  found  out  Atkins  had  filed  a  workers'  

                                                                                                                                                 



compensation claimand could not recall whether he had referred Atkins to Kalamarides,  

                                                                                                                                          



but he remembered telling Atkins that Atkins "should follow through on" other "means  

                                                                                                                                                     

of redress."14  Rader testified that he attempted more than once - though he was not sure  

                                                                                                                                                            



how many times - to contact Inlet Taxi or a representative of that company and that he  

                                                                                                                                                               



was aware that the employer might have "a comp lien" on settlement proceeds. The only  

                                                                                                                                                           



             12          No   one questioned Atkins's employment status on appeal, so we also                                                              



assume he was an employee for purposes of the Act.                                         



             13          No one clarified which insurers she talked to. The Board made no findings  

                                                                                                                                                    

about this, and the Commission inferred shehad talked totheestate's automobile liability  

                                                                                                                                                     

insurer.  



             14          Rader was in the hospital when he testified and presumably did not have  

                                                                                            

his file with him.  

                        



                                                                               -8-                                                                       7300
  


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

                                                                                                                      

person connected to Inlet Taxi that Rader heard from was the adjuster for National  



                                                                                                                           

Continental Insurance. Rader's understanding was that National Continental had issued  



                                                                                                                               

a commercial liability policy with Roper as the insured, but he thought the policy had the  



                                                                                                                       

name of a business entity as well.   Rader admitted he was unaware of the specific  



                                                                                                                                  

statutory subsection requiring the employer's written approval of a settlement with a  



                                                                                                                     

third party.  He indicated that the adjuster asked him to obtain a policy-limits settlement  



                                                                                                       

from the estate so the adjuster could address underinsured motorist coverage.  



                                                                                                                                 

                    Altman, testifying as a witness for the Fund, said he had been an officer of  



                                                                                                                             

Inlet Transportation & Taxi Service, Inc. (which was no longer in business by the time  



                                                                                                                             

of the hearing) beginning in 2008.  He was a driver, but Roper asked him to join "the  



                                                                                                                                 

management team and made [him] vice-president of the corporation."  According to  



                                                                      

Altman, Roper was "senile" and had not had a driver's license for some time.  Altman  



                                                                                                                        

testified that Kinslow had expressed an interest in buying the company, but Altman  



                                                                                                                          

thought Kinslow had taken advantage of Roper because when Altman returned from a  



                                                                                                                              

"hiatus" "Roper felt he had no control of the company."  Altman said he had never met  



                                                                                                                       

Atkins and that Atkins's attorney had not contacted him. Altman was aware of Atkins's  



                                                                                                                              

accident because Altman was "the liaison to the Alaska State Troopers to retrieve any  



                                            

property" belonging to Inlet Taxi.  



                                                                                                                                

                    At the start of his own testimony, Atkins again objected to the order of  



                                                                                                                                 

proceeding.  He then testified about his contacts with the Board and the steps he took to  



                                                                                                                              

file his claim.   He disclaimed any "malicious" intent in the sequence of events and  



                                                                                                                             

explained  his  delay  in  filing  a  workers'  compensation  claim  by  saying  he  was  



                                                       

overwhelmed with the extent of his injuries.  



                                                                                                                               

                    The  Board  dismissed  Atkins's claim because  he  had  not  obtained  the  



                                                                                                                          

written approval of the Fund or Inlet Taxi before settling with the estate.  The Board  



                                                                                                                              

observed that the Fund could assert the same defenses as insured employers and that  



                                                               -9-                                                         7300
  


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

AS 23.30.082(c) had "long been construed to apply also to uninsured employers."                                                                                                                                                                                                                                                                                                                                                                                                             The  



Board said the language of AS 23.30.015(h) was "clear and unequivocal."  The Board                                                                                                                                                                                                                                                                            



 declined to decide the Fund's request to dismiss for failure to file a timely hearing                                                                                                                                                                                                                                                                                                                                                                                  



request because there was "no need" to do so.                                                                                                                                                                                                            



                                                                              Atkins appealed to the Commission. While the appeal was pending, Atkins                                                                                                                                                                                                                                                                                                                           



 obtained representation in his workers' compensation case.                                                                                                                                                                                                                                                                                             Atkins asserted in his brief                                                                                                      



before the Commission that Inlet Taxi was aware of or consented to the settlement with                                                                                                                                                                                                                                                                                                                                                                                                      



the   estate.     He   argued   that   Inlet   Taxi   should   not  be   allowed   to   avail   itself   of   the  



 employer-approval defense to payment because of its refusal to participate in the Board                                                                                                                                                                                                                                                                                                                                                                                           



proceedings or to communicate with Rader when Rader attempted to contact it.                                                                                                                                                                                                                                                                                                                                                                                                Atkins  



 argued   his   policy-limits   settlement   without   Inlet   Taxi's   written   approval   was   not  



prejudicial to the employer and contended that equitable principles barred application of                                                                                                                                                                                                                                                                                                                                                                                                                 



the employer-approval provision to the case because "the insurance carrier for . . . Inlet                                                                                                                                                                                                                                                                                                                                                                                   



Taxi had actual knowledge of the attempts to settle insurance claims" by virtue of the                                                                                                                                                                                                                                                                                                                                                                                                             



 adjuster's contact with Rader. He                                                                                                                                                              raised a substantial compliance argument, arguing that  



the purpose of the written-approval requirement was fulfilled in his case because his                                                                                                                                                                                                                                                                                                                                                                                                               



policy-limits settlement with the estate gave Inlet Taxi all it could have gotten from the                                                                                                                                                                                                                                                                                                                                                                                                          



 claim.  He asked the Commission to reverse the Board's decision and remand the case                                                                                                                                                                                                                                                                                                                                    



to the Board so that the Board could determine his eligibility for benefits.                                                                                                                                                                                                                                                                                                            



                                                                              The Commission issued a short decision remanding the case to the Board                                                                                                                                                                                                                                                                                                                              



 for factual findings related to Atkins's equitable defenses and for consideration of the                                                                                                                                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   15  The  

Fund's argument that Atkins had not asked for a hearing by the statutory deadline.                                                                                                                                                                                                                                                                                                                                                                                                            



 Commission stated it could not "rule on Mr. Atkins'[s] equitable argument, or on the  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



                                       15                                     See  AS 23.30.110(c) ("If the employer controverts a claim on a board-                                                                                                                                                                                                                                                                                                                          



prescribed controversion notice and the employee does not request a hearing within two                                                                                                                                                                                                                                                                                                                                                                                                          

years following the filing of the controversion notice, the claim is denied.").                                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                                                -10-                                                                                                                                                                                                                                       7300
  


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

                                                                                                                         

argument that Inlet Transportation was not prejudiced by the settlement, in the absence  



                                                                                                                  

of pertinent factual findings."  In its discussion of the need for remand, the Commission  



                                                                                                                                 

first noted testimony from Rader that he had tried to contact Inlet Taxi but had gotten no  



                                                                                                                      

response, which it considered relevant to an estoppel argument.  It also noted testimony  



                                                                                                                  

that Roper's "commercial insurance carrier was aware of the third party settlement,"  



                                                                                                                              

which it considered relevant to whether Inlet Taxi had notice of the settlement.  The  



                                                                                                                       

Commission also observed that Atkins's argument about excusing the lack of employer  



                                                                                                                         

approval "need not be considered at all, if his claim [was] otherwise barred" because  



                                                                                                   

Atkins  did  not  timely  request  a  hearing.                        The  Commission  retained  jurisdiction,  



                                                                                                                           

remanded to the Board for further proceedings and factual findings, and said it would  



                                                                                                                                

consider the arguments raised on appeal "after completion of the further proceedings and  



                                                     

findings in compliance with [the] order."  



                                                                                                                              

                    The Board held a second hearing in 2015 at which it heard testimony from  



                                                                                                                                   

a Division employee related to her advice to Atkins about his deadline for requesting a  



                                                                                                                             

hearing.  Atkins called two witnesses to show that the estate had negligible assets aside  



                                                         

from insurance; Atkins also testified again.  



                                                                                                                      

                    In its second decision, the Board decided the claim should be dismissed  



                                                                                                                                

because Atkins had not filed an affidavit of readiness for hearing within two years of the  



                                                                                                                        

first controversion.  The Board thought the May 2011 controversion based on Atkins's  



                                                                                                                         

occupation as a taxi driver was a good-faith controversion, and it decided that because  



                                                                                                                                

Atkins did not request a hearing within two years of the May 2011 controversion, his  



                                                                                                                                

claim should be dismissed.  The Board made some further factual findings, but they did  



                                                                                                                                

not pertain to the settlement or prejudice to the employer. The Board did not discuss the  



                                                                                                                     

equitable issues and "denied as moot" the Fund's petition to dismiss under the employer- 



                                                                                     

approval requirement in light of the dismissal on other grounds.  



                                                                                                                        

                    Atkins again appealed.  The Commission reversed the Board's decision  



                                                               -11-                                                         7300
  


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

about the timeliness of Atkins's hearing request because the Commission determined the                                                                                     



May 2011 controversion was not in good faith and, under earlier Commission decisions,                                                                        

a bad-faith controversion cannot start the limitations period to request a hearing.                                                                                 16  



                                                                                                                                                               

                           The  Commission  then  decided  that  Atkins's  claim  had  been  properly  



                                           

dismissed under the employer-approval provision in AS 23.30.015(h).  It decided first  



                                                                                                                                                                 

that AS 23.30.015(h) applied to uninsured employers.  The Commission then decided  



                                                                                                                                                                            

that Inlet Taxi's failure to file an answer could not serve as basis for waiver of its  



                                                                                                                                                                       

employer-approval defense.  It also assumed that an employer could be estopped from  



                                                                                                                                                                  

asserting such a defense and "that the failure to respond at all to a request for written  



                                                                                                                                                              

consent would be sufficient to avoid application" of that defense "under an equitable  



                                                                                                                                                              

theory."             But  it  decided  that  because  Rader  was  unaware  of  the  specific  statutory  



                                                                                                                                                                       

requirement of written approval, "his attempt to contact Inlet Taxi could not have been  



                                                                                                                                                                  

an effort to obtain its written consent" and thus no causal relationship existed to support  



                                                                                                                                                                          

estoppel.   The Commission decided Atkins had not substantially complied with the  



                                                                                                                                      

statute and that the statutory penalty applied even in the absence of actual prejudice to  



                                                                                                                                                                           

the employer.   The Commission then decided "that, when an employee notifies an  



                                                                                                                                                                           

employer of the intent to compromise a third party claim and requests its approval of the  



                                                                                                                                                                    

settlement, the employer may withhold its approval only if it does so in good faith."  



                                                                                                                                                               

Because of this requirement, the Commission saw no reason "that the term 'persons  



                                                                                                                                                                           

entitled to compensation' in AS 23.30.015(h) must be construed as limited to persons for  



                                                                                                                                                    

whom  the  employer  has  accepted  liability  or  to  whom  it  has  made  compensation  



                                                                                                                                                                

payments."  The Commission did not deem it necessary to address bad faith in Atkins's  



case.  



                                           

                           Atkins appeals.  



              16  

                                                                                                              

                           The Fund did not appeal this part of the decision.  



                                                                                    -12-                                                                                     7300  


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

III.       STANDARD OF REVIEW             



                      In a workers' compensation appeal from the Commission, we review the   



                                                                                 17  

Commission's   decision   rather   than   the   Board's.                                                                                  

                                                                                       "Interpretation  of  a  statute  is  a  



                                                                                                                                  

question of law to which we apply our independent judgment, interpreting a statute  



                                                                                                                                        

'according to reason, practicality, and common sense, considering the meaning of the  



                                                                                                 18  

                                                                                                     

statute's language, its legislative history, and its purpose.' " 



IV.        DISCUSSION  



                      Alaska Statute 23.30.015 governs the interaction between the parties to a  

                                                                                                                                       



compensation case and  third parties who  are responsible in  whole  or  in  part  for  a  

                                                                                                                                          



worker's injuries.  It provides in pertinent part:  

                                                                      



                                (a)  If  on  account  of  disability  .  .  .  for  which  

                                                                                                            

                      compensation  is  payable  under  this  chapter  the  person  

                                                                                                           

                      entitled to the compensation believes that a third person other  

                                                                                                               

                      than the employer or a fellow employee is liable for damages,  

                                                                                                        

                      the person need not elect whether to receive compensation or  

                                                                                                                    

                      to recover damages from the third person.  

                                                                              



                                (b) Acceptance of compensation under an award in a  

                                                                                                                 

                      compensation  order  filed  by  the  board  operates  as  an  

                                                                                                                  

                      assignment to the employer of all rights of the person entitled  

                                                                                                           

                      to compensation . . . to recover damages from the third person  

                                                                                                            

                     unless the person . . . entitled to compensation commences an  

                                                                                                                    

                      action against the third person within one year after an award.  

                                                                                                            



                                 . . . .  

                                       



                                (f) Even if an employee . . . or the employer brings an  

                                                                                                                   

                      action or settles a claimagainst the third person, the employer  

                                                                                                        

                      shall  pay  the  benefits  and  compensation  required  by  this  

                                                                                                                 

                      chapter.  



           17        Huit v. Ashwater Burns, Inc.                   , 372 P.3d 904, 912 (Alaska 2016).             



           18  

                                                                                                                                

                     Id. (quoting Louie v. BP Expl. (Alaska), Inc., 327 P.3d 204, 206 (Alaska  

2014)).  



                                                                   -13-                                                             7300
  


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

                                                   . . . .  



                                                   (h) If compromise with a third person is made by the                                                                  

                                  person entitled to compensation . . . of an amount less than                                                                                

                                  the compensation to which the person . . . would be entitled,                                                                     

                                  the employer is liable for compensation stated in (f) of this                                                                                

                                  section only if the compromise is made with the employer's                                                                

                                  written approval.   



                                  Here, the Fund rather than theemployer participated in the proceedings and                                                                                                      



                                                                                                                                                                    19  

raised defenses available to an employer under AS 23.30.015(h).                                                                                                          



                 A.               The Release Was A Compromise Subject To AS 23.30.015(h).  

                                                                                                                                                                     



                                  Atkins argues first that his release of the estate for policy limits was not a  

                                                                                                                                                                                                                       



compromise under AS 23.30.015(h) because the amount of his recovery was set by an  

                                                                                                                                                 



independent source - the limits of the insurance policies - rather than negotiations  

                                                                                                                                                                                           



between the parties. Hecontends that not allsettlements or agreements are compromises,  

                                                                                                                                                                                        



citing  various  definitions  of  these  words  as  well  as  general  principles  of  statutory  

                                                                                                                                                                                                   



construction to support his argument.  The Fund responds that the statutory language is  

                                                                                                                                                                                                                      



clear and that the releases were compromises because Atkins gave something up - the  

                                                                                                                                                                                                                   



right to receive more in damages from the estate - to get something - the policy limits  

                                                                                                                                                                                                            



of the insurance policies.  The Fund disputes the distinctions Atkins attempts to make  

                                                                                                                                                                                                             



between the terms settlement, agreement, and compromise, three terms the Act uses in  

                                                                                                                                                                                              



different contexts.  In reply Atkins reiterates that the terms have different meanings and  

                                                                                                                                                                                                                 



points out that the only time the Act uses the term compromise is in AS 23.30.015.  

                                                                                                                                                                                      



                                  We construe a statute according to reason, practicality, and common sense,  

                                                                                                                                                                                                           



considering  the  meaning  of  the  statute's  language,  its  legislative  history,  and  its  

                                                                                                                                                                                                                   



                 19  

                                                                                                                                                                                                                     

                                  See AS 23.30.082(c) (permitting the Fund to raise defenses available to  

                     

insured employers).  



                                                                                                        -14-                                                                                                           7300  


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

                    20  

purpose.                 Here, no legislative history is readily available because AS 23.30.015(h) has                                                                                       



been part of the Act since 1959 and has undergone only slight changes in wording since                                                                                                   



                     21  

that time.                 

                                                                                                                                         22  so we construe the word  

                                                                                                                                                                                         

                                                                                                                                

                              The word compromise is not defined in the Act, 

according to any technical meaning it has acquired.23                                                                       The more relevant definition of  

                                                                                                                                                                                               



compromise in Black's Law Dictionary is "[a]n agreement between two or more persons  

                                                                                                                                                                                   



to settle matters in dispute between them; an agreement for the settlement of a real or  

                                                                                                                                                                                               

supposed claim in which each party surrenders something in concession to the other."24  

                                                                                                                                                                                                      



The agreement between the estate (through its insurer) and Atkins meets this definition.  

                                                                                                                                                                             



                              Both releases signed by Atkins contain this phrase:  "It is understood and  

                                                                                                                                                                                            



agreed that this settlement is in full compromise of a . . . disputed claim . . . ." Atkins and  

                                                                                                                                                                                            



the estate had a dispute about liability for the car wreck and damages related to it.  The  

                                                                                                                                                                                           



estate gave up something ($100,000 plus prejudgment interest and attorney's fees) and  

                                                                                                                                                                                            



in return got a release of further liability. Atkins surrendered any right to damages above  

                                                                                                                                                                                       



policy limits and got the money, minus attorney's fees and costs.  Atkins contends that  

                                                                                                                                                                                            



he was "not 'compromising' because an outside entity or limit force[d] the amount of the  

                                                                                                                                                                                              



               20             Louie, 327 P.3d at 206.
                    



               21  

                                                                                                                                                                    

                              See ch. 193,  30(7), SLA 1959; see also ch. 73,  1, SLA 1965.
  



               22             See  AS 23.30.395.
   



               23             See  AS 01.10.040(a) ("Technical words and phrases and those which have
                                                                                    



                                                                                                                                                                                              

acquired  a  peculiar  and  appropriate  meaning,  whether  by  legislative  definition  or  

otherwise, shall be construed according to the peculiar and appropriate meaning.").                                                                               



               24              Compromise,  BLACK 'S   LAW   DICTIONARY   (10th   ed.   2014).     A   general  

                                                               

dictionary definition is essentially the same: "A settlement of differences in which each                                                                                                 

side makes concessions."                                   Compromise, W                         EBSTER 'S  II N                EW  COLLEGE  DICTIONARY  (3d  

ed. 2005).   



                                                                                             -15-                                                                                        7300
  


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

 settlement," but no one forced the amount of the settlement. Nothing in the record shows                                                                                                                                                                                                                                                                                          



 that Rader                                         was  prevented   from filing                                                                                                       suit against the estate and                                                                                                      obtaining   a larger   



judgment. The end result of a judgment against the estate may have been the same as the                                                                                                                                                                                                                                                                                                           



 settlement   because   the   estate   had   virtually   no   other   assets,   but   the   settlement  was  



 nonetheless a compromise.      



                                B.	                            Lack Of Prejudice To Inlet Taxi Did Not In Itself Excuse The Failure                                                                                                                                                                                                                                        

                                                               To Get Written Approval.                                                      



                                                              Atkins'sprincipalargumentisthathis                                                                                                                                         claimshouldnotbeforfeited because                                                                                                  



 his failure to get Inlet Taxi's written approval of his settlement with the estate did not                                                                                                                                                                                                                                                                                                     



 prejudice Inlet Taxi. Hecontends                                                                                                                         that preventing prejudice to the employer fromsettling   



 a claim for too little is the purpose of the written-approval requirement and that in his                                                                                                                                                                                                                                                                                                       



 case a settlement for policy limits was the most anyone could get.                                                                                                                                                                                                                                           He concludes that he                                                                   



 should be excused from failing to get Inlet Taxi's written approval.                                                                                                                                                                                                                                               He relies on federal                                       



 cases, two of our prior cases, and some out-of-state cases to support his argument.                                                                                                                                                                                                                                                                                                       The  



 Fund   distinguishes   the   cases   Atkins   relies   on   and   argues   that   substantial   evidence  



 supports the denial of benefits.                                                                      



                                                               Our case                                    law   applying AS 23.30.015(h) does not suggest that lack of                                                                                                                                                                                                                             



 prejudice to an employer is alone sufficient to excuse failure to get employer approval                                                                                                                                                                                                                                                                              



 of a third-party settlement. In                                                                                                        State, Department of Fish &Game v. Kacyon                                                                                                                                                                       we held that                           



 AS 23.30.015(h) did not apply because we determined that under the facts of that case                                                                                                                                                                                                                                                                                                     



 the    third-party    compromise    exceeded    the    collective    amount    of    the    workers'  

 compensation benefits to both beneficiaries of a worker's estate.                                                                                                                                                                                                                                        25  



                                                              Nor does  Forest v. Safeway Stores, Inc.  hold that prejudice alone can  

                                                                                                                                                                                                                                                                                                                                                                                              



                                25                             31  P.3d   1276,   1283  (Alaska  2001).  



                                                                                                                                                                                               -16-                                                                                                                                                                                                            7300  


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

                                                                                                                     26  

relieve a worker from complying with AS 23.30.015(h).                                                                      There an injured worker              



stipulated to dismiss a malpractice action against a physician whose treatment of the                                                                                   

                                                                                                                                            27   Following the  

worker for a work-related injury allegedly aggravated that condition.                                                                                                   



dismissal the employer asked the Board to terminate all workers' compensation benefits  

                                                                                                                                                               

because the worker had not obtained the employer's permission to dismiss the case.28  

                                                                                                                                                                                



We identified the purpose of AS 23.30.015 as "allow[ing] employees to seek damages  

                                                                                                                                                   



from third-party tortfeasors without jeopardizing their compensation while, at the same  

                                                                                                                                                                     



time, allowing employers to share in damage awards up to the limit of their exposure  

                                                                                                                                                            

under the workers' compensation law."29                                             We differentiated between benefits related to  

                                                                                                                                                                           



the original injury and those related to the "negligent aggravation, if any, of the original  

                                                                                                                                                               

work-related injury."30                         We decided that the compromise only affected benefits related  

                                                                                                                                                                 



to the aggravation, not the original injury, and that the employer's obligation to provide  

                                                                                                                                                               



compensation for the initial injury remained unchanged because that obligation was  

                                                                                                                                                                      

                                                           31    We wrote that to construe the statute as the employer  

unaffected by the settlement.                                                                                                                              

                                     



proposed "would result in a windfall for the employer" and would be "a particularly  

                                                                                                                                                       



harsh  penalty  for  an  injured  worker  who  would  end  up  paying  for  what  [was]  

                                                                                                                                                                  



             26            830 P.2d 778 (Alaska 1992).
                  



             27  

                                       

                           Id. at 779.
  



             28
           Id.  at 780.   



             29            Id. at 781.  

                                       



             30            Id.  at 782.   



             31            Id.  



                                                                                   -17-                                                                             7300
  


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

                                                              32  

undoubtedly an attorney's blunder."                               We held in         Forest  that compensation for any part                    



of   the   disability   attributed   to   the   alleged   aggravation   would   be   barred   by   the  

unauthorized dismissal.                  33  



                                                                                                                                        

                       Atkins also argues that "when there is no prejudice to the employer because  



                                                                                                                             

the settlement amount was set by something other than negotiation or compromise,"  



                                                                                                                                         

federal cases have not barred claims under a provision in the Longshore and Harbor  

                                                                                                                    34   He maintains the  

                                                                                                                                                

Workers' Compensation Act (LHWCA) similar to AS 23.30.015(h). 



amount of the settlement with the estate was set by an outside force - the policy limits  

                                                                                                                                            



of the insurance policy - so lack of prejudice to Inlet Taxi is sufficient to relieve him  

                                                    



of the statutory requirement of getting Inlet Taxi's written approval.  

                                                                                                      



                       The federal cases Atkins relies on are distinguishable because in both  

                                                                                                                                             



instances there was a trial before the settlement.  In Bell v. O'Hearne the decedent's  

                                                                                                                                   



parents  won  a  jury  verdict  of  $6,500  against  a  third  party  but  settled  without  the  

                                                                                                                                               

                                                                                                                                       35     The  

employer's  approval  for  $5,000  while  the  third-party  case  was  on  appeal.                                                            

                                                                                                                           



decedent's parents agreed the employer could get a credit for the full amount of the jury  

                                                                                                                                              



verdict, so in the case between the decedent's parents and the employer, the court  

                                                                                                                                            



decided the purposes of the employer-approval statute had been fulfilled because "there  

                                                                                                                                           



           32          Id.  



           33          See id.       (holding that the Board should have dismissed that part of the                                            



employee's claim "attributable to the physician's negligence").                       



           34          Alaska's Act is modeled on the LHWCA, McCarter v. Alaska Nat'l Ins.  

                                                                                                                                               

Co., 883 P.2d 986, 990 n.5 (Alaska 1994), but because of statutory amendments, the  

                                                                                                                                                

subsection corresponding to AS 23.30.015(h) is no longer similar.  Compare 33 U.S.C.  

                                                                                                                                          

 933(g) (2012), with AS 23.30.015(h).  

                                              



           35          284 F.2d 777, 778 (4th Cir. 1960).  

                                                                        



                                                                       -18-                                                                 7300
  


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

ha[d] been a          judicial  determination of the damages" and no prejudice to the employer.                                                      36  



                                                                                                                                       

                       Banks  v.  Chicago  Grain  Trimmers  Ass'n  also  involved  a  post-trial  



                   37  

                                                                                                                                                

settlement.            After a widow obtained a $30,000 verdict against a third party from a jury,  



                                                                                                                                                  

the trial judge told her he would grant the third party's motion for a new trial unless she  



                                                            38  

                                                                                                                                    

agreed to a remittitur of $11,000.                               When she did so without getting the employer's  



                                                                                                                                   39  

                                                                                                                                                 

approval, the employer later contested her eligibility for LHWCA benefits.                                                              The U.S.  



                                                                                                                                        

Supreme Court, considering the New York law on which the LHWCA was modeled,  



                                                                                                                                    

held that remittitur was not a compromise but "a judicial  determination of recoverable  



                  40  

                                                                                                                                                    

damages."                The court then  said  the purpose of the compromise  provision was to  



                                                                                                                                                    

"protect[] the employer against [the] employee's accepting too little for his cause of  



                                                                                                                                                  

action  against  the  third  party"  and  this  "danger  is  not  present  when  damages  are  



                                                                                                                                                   

determined, not by negotiations between the employee and a third party, but rather by the  



                                                                        41  

                                                            

independent evaluation of a trial judge." 



                                                                                                                                          

                       In  Atkins's  case  the  settlement  amount  was  not  based  on  a  judicial  



                                                                                                                                               

assessment of his claim, and we are not persuaded that the rule can be extended to cover  



                                                                                                                                         

compromises reached before a lawsuit is even filed.   It is uncontested that Atkins's  



                                                                                                                                       

damages far exceeded the estate's policy limits - his medical bills alone exceeded  



                                                                                                                                            

$160,000. While the policy concern about "accepting too little for [the] cause of action"  



            36         Id.  at 780 (emphasis added).
        



            37  

                                                 

                       390 U.S. 459 (1968).
  



            38
        Id.  at 461.   



            39         Id. at 461, 466-67.  

                                           



            40         Id.  at 467 (emphasis added).         



            41  

                                                 

                       Id. (emphasis added).  



                                                                        -19-                                                                   7300
  


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

may seem less important here because the estate had so few assets, nothing in the record                                                                                                                                                                                               



indicates that Rader knew about the estate's value before the settlement or told any of the                                                                                                                                                                                                       

 other insurers about a potential workers' compensation claim.                                                                                                                                                          42  



                                                                                                                                                                                                                                                                                                 

                                               Assuming  as  we  do  that  Atkins  was  an  employee  under  the  Act,  we  



                                                                                                                                                                                                                                                                                       

 acknowledge  that  Atkins  bears  a  "particularly  harsh  penalty  .  .  .  for  what  [was]  

                                                                                                                             43  in not discovering the nature of the "comp lien"  

                                                                                                                                                                                                                                                                                           

undoubtedly an attorney's blunder" 



Inlet Taxi had.  Rader evidently did not consult the Alaska Statutes to understand the  

                                                                                                                                                                                                                                                                                                  



interface between the rights of employers and employees in third-party settlements in  

                                                                                                                                                                                                                                                                                                      

workers' compensation caselaw.44  Rader's actions are particularly troublesome because  

                                                                                                                                                                                                                                                                                  



he advised Atkins to pursue "any means of redress that would put money in his pocket  

                                                                                                                                                                                                                                                                                     



quickly," including workers' compensation. Nonetheless, the statute requires employer  

                                                                                                                                                                                                                                                                            



 approval, and neither Rader nor Atkins obtained the approval of Inlet Taxi before settling  

                                                                                                                                                                                                                                                                                    



                       42                      The out-of-state cases Atkins cites to support his argument about prejudice                                                                                                                                                   



to the employer are not persuasive because all of those states' statutory provisions differ                                                                                                                                                                                               

 significantly from AS 23.30.015(h).                                                                                             New York's statute allows for a type of judicial                                                                                                 

bypass when an employer does not consent to a third-party settlement; that provision was                                                                                                                                                                                                        

used in the cases Atkins relies on.                                                                                  Fid. &Guar. Ins. Co. v. DiGiacomo                                                                                           , 3 N.Y.S.3d 384,                           

 387-88 (N.Y. App. Div. 2015) (citing N.Y. Workers' Comp. Law  29(5));                                                                                                                                                                                             Lindberg v.   

Ross, 964 N.Y.S.2d 677, 678 (N.Y. App. 2013). Arizona's statute did not have a specific                                                                                                                                                                                        

penalty for failure to obtain employer approval.                                                                                                                         Bohn v. Indus. Comm'n of Ariz.                                                                                     , 999   

P.2d 180, 181-82 (Ariz. 2000) (en banc) (citing former Ariz. Rev. Stat.  23-103(C)). In                                                                                                                                                                                                              

 contrast,   AS   23.30.015(h)   makes   employer   approval   of   a   third-party   settlement   a  

prerequisite to continuing benefits.                                                                                       And Maryland's statute has no provision similar to                                                                                                                         

AS 23.30.015(h).                                               See Ankney v. Franch                                                          , 652 A.2d 1138, 1149, 1151 (Md. Spec. App.                                                                                                   

 1995),  rev'd on other grounds                                                                           , 670 A.2d 951 (Md. 1996).                                               



                       43                      See Forest v. Safeway Stores, Inc., 830 P.2d 778, 782 (Alaska 1992).  

                                                                                                                                                                                                                                                                        



                       44                      Like the Fund, we do not doubt Atkins's truthfulness in his interactions  

                                                                                                                                                                                                                                                                   

with the Fund's adjuster.  

                                                         



                                                                                                                                                -20-                                                                                                                                        7300
  


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

with the estate.                                   The statutory penalty for not getting employer approval, while harsh, is                                                                                                                                                            



clear.  



                      C.	                   The   Commission   Did   Not   Err   In   Deciding   That   Atkins   Did   Not  

                                            Substantially Comply With AS 23.30.015(h).                                                                     



                                            Atkins argues that hesubstantially complied withAS23.30.015(h)because                                                                                                                                                  



Rader "attempted to communicate with Inlet Taxi in order to satisfy any lien it had" and                                                                                                                                                                                        



then "followed the direction of the insurance carrier for Inlet Taxi to get policy limits                                                                                                                                                                                



settlements thereby allowing payment under Inlet Taxi's underinsured policy." He also  

                                                                                                                                                                                                                                                                               



contends that the Commission "erred by failing to consider the fact that Inlet Taxi was  

                                                                                                                                                                                                                                                                               



willfully avoiding participation and the fact that Inlet Taxi's insurance carrier directed                                                                                       



Mr. Rader to make the policy limits settlements."                                                                                                                             The Fund does not contest                                                                         that  



substantial compliance can apply to the written-approval requirement, but it argues that                                                                                                                                                                                        



substantialevidencesupports                                                                    theCommission's                                             decision thatAtkinsdid                                                       notsubstantially   

comply with the requirement.                                                                     45  



                                            The purpose of AS 23.30.015(h) is "to allow employees to seek damages  

                                                                                                                                                                                                                                                               



from third-party tortfeasors without jeopardizing their compensation while, at the same  

                                                                                                                                                                                                                                                                           



time, allowing employers to share in damage awards up to the limit of their exposure  

                                                                                                                                                                                                                                                              

under the workers' compensation law."46  

                                                                                                                                                                                                                                                                            

                                                                                                                                         We do not disagree with the parties that there  



                                                                                                                                                                                                                                                                          

may  be  times  when  an  employee  can  show  that  his  conduct  "falls  short  of  strict  



                                                                                                                                                                                                                                                                          

compliance" with the written-approval requirement but gives the employer the same  



                      45                    The Fund also asserts that under AS 23.30.082 Atkins was required to get                                                                                                                                                              



the Fund's approval of any third-party settlement, even though it never paid anything to                                                                                                                                                                                              

him.   We do not address this argument because we need not do so.                                                                                                                                                



                      46                    Forest, 830 P.2d at 781.  

                                                                                                                             



                                                                                                                                        -21-	                                                                                                                               7300
  


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

                                                                                                                                                                                                                                                                                          47  

protection that the statute is intended to provide.                                                                                                                                                                                                                                                   But nothing in the record here                                                                                                                             



indicates that Rader ever told Inlet Taxi or Roper about Atkins's workers' compensation                                                                                                                                                                                                                                                                                                                        



 claim even though Rader had advised Atkins to try to secure compensation and was                                                                                                                                                                                                                                                                                                                                                                                    



 aware that Atkins was trying to pursue a claim. Roper's or Inlet Taxi's potential liability                                                                                                                                                                                                                                                                                                                                                     



to Atkins for a workers' compensation claim would have been different from its liability                                                                                                                                                                                                                                                                                                                                                         



under its commercial liability policy, which paid Atkins pursuant to its underinsured                                                                                                                                                                                                                                                                                                                            



motorist coverage. Any assent from the commercial carrier to a policy-limits settlement                                                                                                                                                                                                                                                                                                                                            



would not have been given with an awareness of Roper's or Inlet                                                                                                                                                                                                                                                                                                                                    Taxi's potential   



 exposure to workers' compensation liability. Rader's letters to Inlet Taxi and Roper that                                                                                                                                                                                                                                                                                                                                                                             



he was representing Atkins in the third-party claim - which according to Rader had the                                                                                                                                                                                                                                                                                                                                                                                    



purpose   of     "find[ing]   out   about   their   insurance   coverage"   and   "get[ting]   them   to  



 cooperate with [the] third-party claim" - may have given them some notice about                                                                                                                                                                                                                                                                                                                                                                           



negotiations.   But giving notice is not the same as getting approval of a policy-limits                                                                                                                                                                                                                                                                                                                    



 settlement,   even   if   Inlet   Taxi   and   Roper   were   refusing   to   participate   in   the   Board  



proceedings and did not communicate with Rader.                                                                                                                                                                                                                                         Rader had the option of preserving                                                                                                      



Atkins's workers' compensation eligibility by obtaining a judgment against the estate                                                                                                                                                                                                                                                                                                                                                                      



rather than entering into a settlement without approval from Inlet Taxi or Roper.                                                                                                                                                                                                                                                                                                                                   



                                                                          On these facts we hold that Atkins did not show that his and Rader's                                                                                                                                                                                                                                                                                                



 conduct afforded Inlet Taxi or Roper the same protection that the statute would have                                                                                                                                                                                                                                                                                                                                                                           



provided.  



                                     D.	                                  TheCommissionCorrectly                                                                                                                                       DecidedThatInlet                                                                                             Taxi Was Not Estopped  

                                                                          From Using The Employer-Approval Defense.                                                                                                                                                                                    



                                                                          Of the equitable defenses he raised below, Atkins argues on appeal only                                                                                                                                                                                                                                                                                                                 



that equitable estoppel applies to prevent the Fund from using Inlet Taxi's defense to                                                                                                                                                                                                                                                                                                                                                                                          



                                     47  

                                                                                                                                                                                                                                                                                                                                                                                                                                                           

                                                                         See Adamson v. Municipality of Anchorage, 333 P.3d 5, 14 (Alaska 2014)  

                                                                                                                                                                                                                                                                                                                        

 (quoting Jones v. Short, 696 P.2d 665, 667 n.10 (Alaska 1985)).  



                                                                                                                                                                                                                                   -22-	                                                                                                                                                                                                                         7300  


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                                           48  

paying compensation.                             As he notes, equitable estoppel requires "the assertion of a                                                        



position by conduct or word, reasonable reliance thereon by another party, and resulting                                                               



                     49  

                                                                                                                                                            

prejudice."               He argues that he has met all of these elements, contending that Inlet Taxi's  



                                                                                                                                                                 

failureto communicatecoupledwith thecommercialcarrier's adjuster "asserting that Mr.  



                                                                                                              

Rader should get the policy limits" constitutes equitable estoppel.  



                                                                                                                                                                     

                          The adjuster's statement cannot reasonably be seen as an assertion of a  



                                                                                                                                                         

position related to the Act's employer-approval provision.  The record does not suggest  



                                                                                                                                                                    

that the adjuster was aware of the workers' compensation claim, so any instruction to  



                                                                                                                                                     

Rader  about  settlement  was  not  tied  to  approval  of  a  settlement  for  workers'  



                                                                                                                                                                  

compensation purposes.  Because an employer must pay compensation as set out in the  



                                            50  

                                                                                                                                                         

Act regardless of fault,                        the employer's potential liability and its motivation to recover  



                                                                                                                                             

damages froma third party could be significantly different in the workers' compensation  



                                                                                                       

context than it would be in an underinsured motorist claim.  



                                                                                                                                                               

                          Even if the adjuster's statement was a representation, it is hard to see how  



                                                                                                                                                                    

Rader could reasonably have relied on it when he was by his own admission unaware of  



                                                                                                                                                                  

the Act's employer-approval requirement.  Additionally, the adjuster represented the  



                                                                                                                                             

commercial liability carrier, not Inlet Taxi as an employer for workers' compensation  



                                                                                                                                            

purposes.              A  commercial  liability  carrier  would  not  make  workers'  compensation  



                                                                                                                                                        

payments, so it would not have been reasonable for Rader to rely on a position asserted  



                                                                                                                                             

by the commercial liability carrier's adjuster when settling a workers' compensation  



             48           AS 23.30.082(c) allows the Fund to "assert the same defenses as an insured                                                      



employer under [the Act]."               



             49           Hull v. Alaska Fed. Sav. & Loan Ass'n of Juneau, 658 P.2d 122, 126  

                                                                                                                                                                

(Alaska 1983).  

                               



             50           AS 23.30.045(a)-(b).  

                                  



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claim.51  



                                                Finally,becauseAtkins had                                                                       an alternativelegal meansofaccomplishing                                                                                                                  the  



same result - he could have filed a lawsuit - prejudice is not clear either.                                                                                                                                                                                                               At the   



second Board hearing, Atkins argued that there                                                                                                                       were risks involved in litigating the claim                                                                                  



against the estate and that the actual recovery would be the same as the settlement                                                                                                                                                                                            



regardless.   But the alternative of filing suit existed.                                                                                                                                     Had Rader sued the estate rather                                                                 



than settling, Atkins would have retained the ability topursuehisworkers' compensation                                                                                                                                                                              



claim.  



V.                      CONCLUSION  



                                                We AFFIRM the Commission's decision.                                                                                 



                        51  

                                                                                                                                                                                                                                                                                                            

                                                See  AS  23.30.015(i)  (providing  that  insurer  who  assumes  payment  of  

                                                                                                                                                                                                         

workers' compensation is subrogated to all rights of the employer).  



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