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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nelson v. Municipality of Anchorage (12/23/2011) sp-6630
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RYAN NELSON, )
) Supreme Court No. S-13775
Appellant, )
) Superior Court No. 3AN-08-04782 CI
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE )
and WESTERN POWER AND ) No. 6630 - December 23, 2011
EQUIPMENT, INC., )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sen K. Tan, Judge.
Appearances: William H. Ingaldson and Peter J. Maassen,
Ingaldson, Maassen & Fitzgerald, P.C., Anchorage, for
Appellant. Joyce Weaver Johnson, Assistant Municipal
Attorney, and Dennis A. Wheeler, Municipal Attorney,
Anchorage, for Appellee Municipality of Anchorage. Marc
G. Wilhelm, Richmond & Quinn, Anchorage, for Appellee
Western Power & Equipment, Inc.
Before: Carpeneti, Chief Justice, Winfree, Christen, and
Stowers, Justices. [Fabe, Justice, not participating.]
CHRISTEN, Justice.
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I. INTRODUCTION
A worker agreed to perform an errand for his employer, a subcontractor,
on the worker's day off. While engaged in the errand, the worker was injured at the job
site. His employer filed a notice of controversion on the basis that the worker was
intoxicated at the time of the injury and his injuries were proximately caused by his
intoxication. The worker then sued the general contractor and the Municipality of
Anchorage (the owner of the job site) for negligence. The defendants asked the superior
court to dismiss the action under the exclusive remedy provision of the Alaska Workers'
Compensation Act. The superior court granted summary judgment to the general
contractor and the Municipality. The worker appeals, arguing that lack of a workers'
compensation remedy permits him to bring a common law negligence action or,
alternatively, that the exclusivity provision of the Alaska Workers' Compensation Act
denies him due process. He also argues, as a matter of statutory construction, that the
Municipality cannot be a project owner. Because the worker has not shown that the
employer's controversion of benefits left him to his common law remedies, his statutory
construction and constitutional claims are not ripe. We also hold that the Municipality
can be a project owner.
II. FACTS AND PROCEEDINGS
Ryan Nelson worked for Alaska Concrete & Sawing, Inc. in February 2006.
Nelson's regular day off was Saturday, but on Saturday, February 4, 2006, Nelson's
employer called him at home and asked him to deliver drill bits to a job site at the
Municipality of Anchorage's Solid Waste Services Transfer Building.
The job site was the building where solid waste is received from both
residential and commercial customers and transferred to dump trucks bound for the
municipal landfill. The building has two levels: solid waste is dumped onto the "tipping
floor" on the upper level and then pushed by front-end loaders through openings in the
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floor. Dump trucks are filled when they are driven through the lower level. Two
hydraulic cranes, called cherry pickers, are located on opposite sides of the tipping floor.
In late January 2006, the Municipality began repairs on the north cherry
picker after its foundation failed. The Municipality contracted with an engineering firm,
MACTEC Engineering and Consulting, Inc., to design a new foundation and oversee the
repairs. The Municipality also contracted with Western Power & Equipment
Corporation to work on remounting the cherry picker; that work included removing the
bolts that held the cherry picker in place.1 Western Power subcontracted with Alaska
Concrete, Nelson's employer, to drill the bolts out of the concrete platform on which the
cherry picker sat.
When Nelson arrived at the waste transfer facility to deliver the drill bits,
he asked where to take them and a municipal employee gave him directions. Nelson
evidently did not find his coworkers and he returned to the municipal employee's station
for instructions. The municipal employee radioed someone, who told her to send Nelson
to the south (or "A") side door. She relayed the information to Nelson, who went to the
"A" door.
Inside the "A" door was a pony wall, about three feet high and covered by
opaque Visqueen. The Visqueen was placed there in order to retain heat in the truck
tunnel; it concealed the hole in the floor through which waste was pushed into dump
trucks. There were evidently no signs or other indication of hazards in the area except
some orange cones, which "had been placed along the open edge/perimeter of [the] floor
opening on top of the [V]isqueen sheeting." In an apparent attempt to cross the building,
Nelson jumped over the pony wall and landed on the Visqueen. He fell about 20 feet
through the hole in the floor to the lower level and suffered head trauma.
1 Western Power was doing business as Yukon Equipment, Inc. at the time.
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Alaska Concrete reported the injury to the Alaska Workers' Compensation
Board and began to pay workers' compensation benefits to Nelson. About six weeks
after the accident, Alaska Concrete controverted further benefits, claiming that Nelson
was intoxicated at the time of the accident and that his intoxication proximately caused
the accident. Nelson did nothing further in his workers' compensation case.
Instead, Nelson sued the Municipality, Western Power, and Yukon
Equipment, Inc. for negligence. The defendants all answered. Initially, only Western
Power raised the exclusive remedy provision of the Alaska Workers' Compensation Act
as a defense. The Municipality filed a third-party complaint against MACTEC because
MACTEC planned and monitored the repairs. MACTEC answered and raised additional
affirmative defenses.
On October 24, 2008, Western Power moved to dismiss Nelson's lawsuit
because of the exclusive remedy provision of the Alaska Workers' Compensation Act.
The other defendants joined the motion to dismiss. Nelson opposed the motion. He
argued that extending the exclusive liability protection to general contractors and project
owners violated his equal protection rights and that, as applied to the facts of his case,
it violated his due process rights because he did not receive "a quid pro quo" after his
employer stopped paying benefits. He also argued that the exclusive remedy provision
did not apply to the Municipality as a matter of law; and that, on the facts of his case,
Western Power was not an "employer."
At oral argument before the superior court, the parties agreed that the
motion to dismiss should be treated as a motion for summary judgment. The superior
court granted summary judgment to all defendants. It concluded that: (1) the
legislature's extension of the exclusive remedy protection to "project owners" and
"general contractors" was not unconstitutional; (2) the Municipality and Western Power
were protected by the exclusive remedy provision; and (3) the claims against Yukon
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Equipment should be dismissed. Nelson moved for reconsideration, asserting that the
court failed to address several of his legal arguments. The superior court took no action
on the motion for reconsideration and it was deemed denied.2 Nelson appeals.
III. DISCUSSION
A. Standard Of Review
We review a grant of summary judgment de novo.3 Summary judgment is
proper if there is no genuine factual dispute and the moving party is entitled to judgment
as a matter of law.4 In reviewing a grant of summary judgment, we draw all reasonable
inferences in favor of the nonmoving party.5 The interpretation of a statute is a question
of law to which we apply our independent judgment; we interpret the statute according
to reason, practicality, and common sense, considering the meaning of the statute's
language, its legislative history, and its purpose.6 Whether a case is ripe is a legal
question.7 "The requirement of 'ripeness' means that there must be 'a substantial
2 Alaska R. Civ. P. 77(k)(4).
3 Parker v. Tomera, 89 P.3d 761, 765 (Alaska 2004).
4 Id.
5 Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000).
6 Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003) (citing Native Vill. of
Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).
7 See State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska
2009) (holding that review of ripeness decisions is de novo).
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controversy, between parties having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.' "8
B. The Municipality Can Be A Project Owner.
Alaska law requires that "project owners" must pay workers' compensation
to injured workers if the workers' employer is a contractor that has failed to secure these
payments.9 Nelson argues that the Municipality cannot be a "project owner" as defined
by AS 23.30.045(f)(2) because, as a political subdivision of the State, it is covered by a
different subsection of the statute, AS 23.30.045(d). He also argues that the Municipality
is not a "person" for purposes of the workers' compensation act and concludes from this
that the Municipality cannot be a "project owner." Nelson contends that the
Municipality should be classified as a "contract-awarding entity" under
subsection .045(d) rather than a "project owner" under subsections .045(a) and .045(f);
he asserts that, as a result, the exclusive remedy provision of the Alaska Workers'
Compensation Act does not shield the Municipality because AS 23.30.055 only protects
those who are liable under AS 23.30.045(a), not those who are liable under
AS 23.30.045(d).
The Municipality responds that: (1) Nelson waived the argument that the
Municipality is a person because of his service of process on the Municipality; (2) as a
matter of statutory construction, the Municipality is a person for purposes of the workers'
compensation act; and (3) the legislative history demonstrates that the State and its
political subdivisions can be project owners. Nelson replies that accepting the
8 Lowell v. Hayes, 117 P.3d 745, 758 n.61 (Alaska 2005) (quoting Brause
v. State, Dep't of Health & Soc. Servs., 21 P.3d 357, 359 (Alaska 2001)).
9 AS 23.30.045(a).
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Municipality's arguments would "impose[] plainly redundant obligations on political
subdivisions."
Alaska Statute 23.30.045(a) provides:
An employer is liable for and shall secure the payment to
employees of the compensation payable under AS 23.30.041,
23.30.050, 23.30.095, 23.30.145, and 23.30.180 - 23.30.215.
If the employer is a subcontractor and fails to secure the
payment of compensation to its employees, the contractor is
liable for and shall secure the payment of compensation to
employees of the subcontractor. If the employer is a
contractor and fails to secure the payment of compensation
to its employees or the employees of a subcontractor, the
project owner is liable for and shall secure the payment of
the compensation to employees of the contractor and
employees of the subcontractor, as applicable.[10]
Alaska Statute 23.30.045(f)(2) defines "project owner" as "a person who,
in the course of the person's business, engages the services of a contractor and who
enjoys the beneficial use of the work." "Person" is not separately defined for purposes
of the workers' compensation act, but "employer" is defined as "the state or its political
subdivision or a person employing one or more persons in connection with a business
or industry coming within the scope of this chapter, and carried on in this state."11 And
AS 01.10.060(a)(8) generally provides that "person" includes "a corporation, company,
partnership, firm, association, organization, business trust, or society, as well as a natural
10 Emphasis added.
11 AS 23.30.395(20).
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person."12 When "includes" is used in a statute, it must be construed "as though followed
by the phrase 'but not limited to.' "13
Finally, AS 23.30.045(d) provides:
A contract may not be awarded by the state or a home rule or
other political subdivision of the state unless the person to
whom the contract is to be awarded has submitted to the
contracting agency proof, furnished by the insurance carrier,
of current coverage by workers' compensation insurance. . . .
The person to whom the contract is awarded shall keep the
workers' compensation insurance policy in effect during the
life of the contract with the state or political subdivision. If
the state or the political subdivision . . . fails to obtain proof
of coverage . . . or to protect itself under (e) of this section,
and an employee of the contractor is injured during the term
of the contract, the state or the political subdivision is liable
for workers' compensation to the employee if the employee
is unable to recover from the employer because of the
employer's lack of financial assets. The state or the political
subdivision is not liable, however, to the employee for the
workers' compensation if the employee can recover from the
employer under (a) and (b) of this section.
Nothing in the language or the legislative history of the project owner
provision suggests that the legislature meant to exclude the State and its political
12 The Municipality argues that Nelson waived any argument that it is not a
corporation by serving his complaint on the Municipality under the rule for serving a
public corporation. This argument lacks merit. How the court requires service on a
political subdivision of the state has nothing to do with the legislature's definitions of the
words at issue. Different statutes have different definitions of "corporation" and
"person." Compare AS 10.25.640(3) (including state or political subdivision in
definition of "person"), with AS 34.60.150 (defining "person" and "state agency"
separately). The relevant question here is how "person" is defined in AS 23.30.045 and
.055.
13 AS 01.10.040(b).
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subdivisions from the definition of "project owner." To the contrary, the legislative
history manifests an intent to include the State and its political subdivisions. In response
to Senator Scott Ogan's concern that "the State of Alaska, being the largest project owner
in the state, could be liable for workers' compensation if someone doesn't do their
homework,"14 Jack Miller, attorney for the Alaska State Chamber of Commerce, implied
that the State would fall within the definition of "project owner."15 Mr. Miller also
informed the legislature that AS 23.30.045(d)-(e) require the State to ascertain whether
its contractors have workers' compensation insurance.16
Nelson argues on appeal that Mr. Miller's testimony before the legislature
should not be given great weight, but Senator Seekins, the sponsor of the project owner
amendment, asked Mr. Miller to answer other legislators' questions about the legislation
at two hearings.17 Under these circumstances, Mr. Miller's testimony is entitled to
greater weight than that of the average witness.18
The statutory language evinces no attempt to exclude the State from the
statute. Alaska Statute 23.30.055 provides in part, "In this section, 'employer' includes,
14 Minutes, Sen. Judiciary Comm. Hearing on S.B. 323, 23d Leg. 2d Sess. at
34 (Apr. 14, 2004) (statement of Sen. Scott Ogan).
15 Id. at 35 (testimony of Jack Miller).
16 Id.
17 Minutes, Sen. Judiciary Comm. Hearing on S.B. 323, 23d Leg. 2d Sess. at
20 (Apr. 2, 2004) (statement of Sen. Ralph Seekins); Minutes, Sen. Judiciary Comm.
Hearing on S.B. 323, 23d Leg. 2d Sess. at 9-10 (Apr. 16, 2004) (statement of Sen. Ralph
Seekins).
18 Cf. Seward Marine Servs., Inc. v. Anderson, 643 P.2d 493, 496-97 n.8
(Alaska 1982) (noting committee testimony must have been "endorsed by the legislature
or relied on" to be persuasive evidence of legislative intent).
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in addition to the meaning given in AS 23.30.395, a person who, under AS 23.30.045(a)
is liable for or potentially liable for securing payment of compensation." The definition
of "employer" for purposes of exclusive liability includes entities that are not employers
under AS 23.30.395 - project owners and contractors. Thus the distinction made in
AS 23.30.395(20) between the State and other persons does not control our construction
of AS 23.30.055. The general definition of "person" in AS 01.10.060 can be used to
determine whether the Municipality can be a "project owner." As Nelson concedes, in
appropriate circumstances "person" can include the State and its political subdivisions.19
We hold that it does here.
Nelson also argues that AS 23.30.045(d) - not the exclusive remedy
provision - governs when the Municipality engages the services of a contractor because
AS 23.30.045(d) is a more specific statute. Alaska Statute 23.30.045(d) provides that
the State or a political subdivision can only award contracts to persons who submit proof
of workers' compensation coverage. If the coverage is cancelled during the course of
the contract, subsection .045(e) permits the State either to terminate its contract with the
contractor or to pay for the contractor's workers' compensation policy.
Nelson contends that AS 23.30.045(d) would be redundant if the State or
the Municipality fell under the definition of "project owner" in AS 23.30.045(f)(2). In
his view, AS 23.30.045(d) and .045(e) are more specific, so they should apply instead
of the project owner provision, which Nelson considers more general. The Municipality
responds that the project owner amendments "affect the potential liability of the
Municipality" and that subsection .045(d) "is not the sole source of the Municipality's
potential liability." It maintains that because it is potentially liable for workers'
19 See Mustafoski v. State, 867 P.2d 824, 833-34 (Alaska App. 1994) (holding
State is "person" for purposes of judicial recusal statute).
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compensation as a project owner, it is protected by AS 23.30.055's exclusive liability
provision.
When construing a statute, this court "presume[s] that the legislature
intended every word, sentence, or provision of a statute to have some purpose, force, and
effect, and that no words or provisions are superfluous."20 "[A]ll sections of an act are
to be construed together so that all have meaning and no section conflicts with
another."21 If one statutory "section deals with a subject in general terms and another
deals with a part of the same subject in a more detailed way, the two should be
harmonized, if possible; but if there is a conflict, the specific section will control over the
general."22 "[I]f two statutes conflict, then the later in time controls over the earlier."23
We find no conflict between these statutes. Nelson argues that interpreting
the statute so that the Municipality falls within the definition of "project owner" would
make part of subsection .045(d) superfluous. There may be times when the two statutory
provisions overlap, but they can also cover different situations. The two statutory
subsections impose the same type of obligation on the Municipality - they both require
the Municipality to ensure that its contractors have workers' compensation insurance or
assume the risk of being liable for workers' compensation benefits - but
AS 23.30.045(d) applies to a broader range of contracts than AS 23.30.045(f).
20 Mech. Contractors of Alaska, Inc. v. State, Dep't of Pub. Safety, 91 P.3d
240, 248 (Alaska 2004) (quoting Kodiak Island Borough v. Exxon Corp., 991 P.2d 757,
761 (Alaska 1999)) (internal quotation marks omitted).
21 In re Hutchinson's Estate, 577 P.2d 1074, 1075 (Alaska 1978).
22 Id.
23 Allen v. Alaska Oil & Gas Conservation Comm'n , 147 P.3d 664, 668
(Alaska 2006).
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By its terms, AS 23.30.045(d) applies any time the State or a political
subdivision contracts with another party. Alaska Statute 23.30.045(f)(2) applies only to
a subset of those contracts, those involving project owners. To be a "project owner," a
person must "engage[] the services of a contractor."24 A contractor "does not include a
vendor whose primary business is the sale or leasing of tools, equipment, other goods,
or property."25 The Municipality would not be a "project owner" if it entered into a
contract with a vendor whose primary business was leasing equipment, but
AS 23.30.045(d) would still require it to ensure that the vendor had workers'
compensation coverage. We conclude that AS 23.30.045(d) and AS 23.30.045(f) do not
conflict, and that the Municipality can be a "project owner" under AS 23.30.045(f)(2).
We affirm the superior court's decision that the Municipality was a project owner here.26
C. Nelson's Constitutional And Statutory Claims Are Not Ripe.
In this court Nelson argues that the project owner amendments to the
workers' compensation act must be construed as permitting him to sue the Municipality
and Western Power because to construe them otherwise would violate his due process
rights.27 Nelson's argument arises from the premise that he has been deprived of a
workers' compensation remedy because his employer controverted further benefits based
24 AS 23.30.045(f)(2).
25 AS 23.30.045(f)(1).
26 Nelson does not appear to contest that the Municipality engaged the
services of a contractor in the course of its business and enjoyed the beneficial use of the
contractor's work.
27 In the trial court, Nelson focused his arguments on a facial challenge to the
constitutionality of the 2004 project owner amendments. Our opinion in Schiel v. Union
Oil Co. of Cal. foreclosed those arguments in Nelson's case. See 219 P.3d 1025, 1029-
37 (Alaska 2009) (holding that extension of exclusive liability to project owners did not
violate due process or equal protection rights of injured workers).
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on his alleged intoxication at the time of the accident. According to Nelson,
controversion of benefits leaves him to his common law remedies: if AS 23.30.055
prevents him from pursuing a negligence claim, he will be denied any remedy for his
injury, which would violate his right of access to the court. Nelson concludes that he
therefore has a right to bring a negligence action.
We asked the parties to provide supplemental briefing on the issue of
ripeness. We also asked for supplemental information about whether Nelson had filed
a written workers' compensation claim with the Board. The parties agreed that Nelson
had not filed a written workers' compensation claim. Instead, shortly after Nelson was
injured, Alaska Concrete filed a notice of Nelson's injury and voluntarily began paying
benefits. When toxicology tests revealed that Nelson may have been intoxicated at the
time of the accident, Alaska Concrete filed a notice of controversion. Although the
parties all argued, for different reasons, that this appeal is ripe despite Nelson's failure
to adjudicate his claim before the Board, we conclude that, with a few exceptions, the
issues raised in this appeal are not yet ripe for review.28
1. Alaska Concrete's controversion did not leave Nelson to his
common law remedies.
Nelson argues that his employer's controversion of benefits leaves him to
his common law remedies because the controversion "took [him] outside the coverage
of the Workers' Compensation Act, by the Act's own terms." Because he considers his
case to be outside the scope of the act, he alleges that he must be allowed to pursue his
common law remedies. Western Power responds that Nelson's argument is contrary to
28 See State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska
2009) (citing Istrice v. City of Sparks, 8 Fed. Appx. 841, 843 (9th Cir. 2001)) ("Because
ripeness constrains the power of courts to act, courts should not rely on agreement by the
parties that a case is ripe for decision.").
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the Alaska Workers' Compensation Act because, under Nelson's theory, every time an
employer controverted a claim for any reason, the worker would have the right to bring
a tort suit, even when he had a remedy before the Board.
A controversion is a notice from the employer that it has a basis in law or
fact to stop paying workers' compensation benefits that are otherwise automatically due
by statute.29 If an injured worker wants to pursue workers' compensation benefits in the
face of a controversion, he must take the next procedural step to secure them.30 If the
worker has not filed a written claim before the controversion, he must do so within a
specific period of time.31 If the worker has filed a written claim, he must ask for a
hearing or take other steps to preserve his right to a hearing; otherwise, his claim can be
denied by operation of statute.32
There are times when the parties disagree about whether an injury comes
within the scope of the workers' compensation act. For example, in Himschoot v.
Shanley, the parties disputed whether a worker injured in a car crash on his way to lunch
was injured in the course and scope of employment.33 Under our case law, the Board and
the superior court have concurrent jurisdiction over the issue of an employee's status at
29 AS 23.30.155. See also Irby v. Fairbanks Gold Mining, Inc., 203 P.3d
1138, 1147 (Alaska 2009) (describing when controversion is made in good faith).
30 See Bailey v. Tex. Instruments, Inc., 111 P.3d 321, 325-26 n.10 (Alaska
2005) ("Once an employer controverts a claim, the burden shifts to the employee to
prosecute the claim promptly."). AS 23.30.155(h) also permits the Board to take action
"upon its own initiative" when, inter alia, a controversion is filed.
31 AS 23.30.105.
32 AS 23.30.110(c); Kim v. Alyeska Seafoods, Inc., 197 P.3d 193, 198 (Alaska
2008).
33 908 P.2d 1035, 1036-37 (Alaska 1996).
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the time of injury, and "the question whether a court should defer [to the Board] depends
on the unique facts of every case."34 To decide whether a court should defer to the
Board, we have looked at whether cases involved questions of law;35 what action, if any,
was taken in the administrative proceeding;36 and how long the parties litigated in court.37
But the court's jurisdiction to decide whether an injury comes within the
workers' compensation act's coverage does not mean that the worker is left to his
common law remedies. If a trial court decides that the injury occurred in the course and
scope of employment, the case is remanded to the Board for adjudication of the worker's
claim.38 If the court determines that the injury did not happen in the course and scope
of employment, it has jurisdiction over the worker's negligence action.39
Western Power argues that an employer's exposure to liability as a
"contractor" or "project owner" is determined at the time of injury, not after the Board
hears a case. But because it may not always be clear at the outset whether an on-site
injury occurred in the course and scope of employment, status as a project owner cannot
34 Ehredt v. DeHavilland Aircraft Co. of Canada, Ltd., 705 P.2d 446, 450
(Alaska 1985) (citing G & A Contractors v. Alaska Greenhouses, 517 P.2d 1379, 1382-
83 (Alaska 1974)).
35 Id.
36 Id.; see also Himschoot, 908 P.2d at 1040 (noting that no claim had been
filed).
37 Himschoot, 908 P.2d at 1040.
38 See Nickels v. Napolilli, 29 P.3d 242, 254 (Alaska 2001) (affirming decision
that Nickels was employee and remanding case to allow her to pursue claim before the
Board).
39 See Himschoot, 908 P.2d at 1038-39 (describing bifurcated trial court
proceeding).
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always be determined at the time of injury. For example, in Estate of Milos v. Quality
Asphalt Paving, Inc., the superior court granted summary judgment to an employer based
on the exclusive remedy provision of the workers' compensation act.40 We reversed that
trial court order granting summary judgment because we decided that a material factual
dispute existed about the employee's status at the time of injury.41 The exclusive liability
protection afforded a project owner or a contractor is no greater than that of an employer;
if an employer cannot use the exclusive remedy defense in a case, neither can the project
owner or contractor.
2. Nelson must pursue his claim before making a constitutional
challenge to the statute.
As explained, Nelson asks us to construe AS 23.30.055 as permitting him
to bring a negligence action against Western Power and the Municipality. His argument
has two parts: he argues that if AS 23.30.055 is construed as prohibiting his lawsuit, he
will have no remedy at all for his injury and that this would violate his due process
rights. Alternatively, he argues as a matter of statutory construction that the language
of AS 23.30.055 does not bar a negligence action when a workers' compensation claim
is controverted under AS 23.30.235. Both arguments rely on Nelson's lack of a workers'
compensation remedy, yet he has never asked the Board or the superior court to
determine whether his injury occurred in the course and scope of employment,42 nor has
40 145 P.3d 533, 541 (Alaska 2006).
41 Id. at 538-41.
42 Relying on cases from other states, Nelson argues that Alaska Concrete's
controversion based on his alleged intoxication takes the injury outside the coverage of
the workers' compensation act because under these cases the injury would not have
occurred in the course and scope of employment.
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he attempted to pursue a remedy before the Board.43 Because the mere controversion of
benefits did not establish that Nelson is not entitled to his workers' compensation
remedies, his constitutional and statutory claims are not ripe. We have previously
required a party to use available administrative processes before asserting a constitutional
claim because "successful pursuit of a claim through the administrative process could
obviate the need for judicial review of the constitutional issues."44 Likewise, we have
held that "[a] party raising a constitutional challenge to a statute bears the burden of
demonstrating the constitutional violation."45 These principles apply to Nelson's case.
Nelson does not raise a facial constitutional challenge to the statute in this
court: his constitutional argument hinges on the alleged lack of a remedy for his injury,
not on a general lack of a remedy under all circumstances.46 Because Nelson has not
litigated his claim before either the Board or the court, he is unable to demonstrate that
43 We also asked the parties to provide supplemental briefing on whether
Nelson could still pursue a workers' compensation claim. The parties agreed that he
could. We do not decide this issue because Alaska Concrete was not a party in the
superior court or this appeal.
44 Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d 119, 122 (Alaska
1988).
45 Baxley v. State, 958 P.2d 422, 428 (Alaska 1998).
46 See State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 405 (Alaska 2007)
(distinguishing between facial and as-applied constitutional challenges).
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in fact he has no remedy.47 Nelson is effectively asking us to address a hypothetical
situation, but we decline to do so.
IV. CONCLUSION
We AFFIRM the superior court's decision that the Municipality is a project
owner. We REMAND the case for further proceedings consistent with this opinion.
47 We acknowledge that it has been more than two years since Nelson was
injured, but this does not necessarily preclude him from receiving benefits under the
workers' compensation act. See Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121, 1125
(Alaska 1995) (holding that two-year period for requesting hearing after employer's
controversion only applies to employee's written claim for workers' compensation
benefits). Here, Nelson did not file a written claim for benefits; his employer paid
benefits voluntarily until it received his toxicology test results.
-18- 6630
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