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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Burke v. Raven Electric, Inc. (5/11/2018) sp-7241
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MARIANNE E. BURKE, mother of )
ABIGAIL E. CAUDLE (deceased), ) Supreme Court No. S-16137
)
Appellant, ) Alaska Workers' Compensation
) Appeals Commission No. 14-022
)
v. )
)
O P I N I O N
)
RAVEN ELECTRIC, INC. and
LIBERTY MUTUAL INSURANCE )
)
COMPANY, No. 7241 - May 11, 2018
)
Appellees. )
)
Appeal from the Alaska Workers' Compensation Appeals
Commission.
Appearances: Marianne E. Burke, pro se, Anchorage,
Appellant. Nora Barlow and Constance Livsey, Burr, Pease
& Kurtz, Anchorage, for Appellees. Dario Borghesan,
Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Amicus Curiae
State of Alaska. Eric Croft, The Croft Law Office,
Anchorage, for Amicus Curiae Eric Croft.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
STOWERS, Chief Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
After an apprentice electrician was killed on the job, her mother sought
workers' compensation death benefits or other damages related to her daughter's death.
Acting on the advice of attorneys but representing herself, she brought a claim before the
Alaska Workers' Compensation Board. She argued in part that the Alaska Workers'
Compensation Act was unconstitutional because it inadequately compensated for her
daughter's life, particularly given thecircumstances ofher daughter's death, and because
it failed to consider her future dependency on her daughter. The Board denied her claim,
and the Alaska Workers' Compensation Appeals Commission affirmed the Board's
decision. The Commission also ordered the mother to pay the employer's attorney's fees
and costs. We hold that the mother's constitutional rights are not violated by the Act.
We reverse the Commission's award of attorney's fees but otherwise affirm the
Commission's decision.
II. FACTS AND PROCEEDINGS
Abigail Caudle was a 26-year-old apprentice electrician when she was
electrocuted on the job while working for Raven Electric, Inc. According to a
"Fatalgram" by the Alaska Department of Labor & Workforce Development, Division
of Labor & Safety Standards, Occupational Safety & Health (AKOSH), it was Caudle's
first day on that particular job, which involved the remodel of an Anchorage building.1
1 Fatalgram 11-07, ALASKA DEP 'T OF LABOR & WORKFORCE DEV.,
http://labor.state.ak.us/lss/forms/Fatalgram_11-07.pdf. A "Fatalgram" is a short report
of a work-related fatality, which AKOSH has evidently adopted from the U.S. Mine
ARRY M. P HILO & H ARRY M. P HILO, J R.,
Safety & Health Administration. See 4 H
AWYERS DESK REFERENCE § 29:13 (10th ed. 2014) (defining "fatalgrams" in mine
L
safety context). In mine safety the documents "include a description of the
circumstances of the incident . . . and recommendations for preventing the death." Id.
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On the day of the accident Raven Electric initially planned to "rough[]
2
in . . . three offices as far as outlets and switches," but the general contractor changed
the scope of work after Raven Electric's crew arrived, asking the electricians to tear out
old light fixtures instead because the contractors "had already taken out the grid ceiling"
and could not proceed with their work while the old fixtures were in place. Raven
Electric did not have temporary lights set up, so the crew was "using some of the lights
that were on while the construction was going on." The light switches for the light
fixture Caudle was working on had been turned off, but no one had turned off the power
at the electrical panel or otherwise disconnected power to the lights. Caudle used a
noncontact voltage meter to check for power, and witnesses told AKOSH the meter
showed a green signal, indicating no voltage.
Caudle began to remove the wire nuts and then "disconnected the neutral
wire and was electrocuted between the load side neutral conductor and either the
grounded conduit junction box, or the conduit to the left side of the neutral conductor."
Coworkers heard her cry out, rushed to her aid, called emergency services, and began
CPR. The efforts to assist her were unsuccessful, and Caudle was pronounced dead at
the hospital less than an hour later. The electricians interviewed during the AKOSH
investigation thought there had been a "back feed on the neutral" wire and suggested that
the circuit had been wired incorrectly at some time in the past. AKOSH cited Raven
Electric for several safety violations and ultimately agreed through an informal
settlement to fine Raven Electric a total of $11,200 for those safety violations.
Raven Electric filed a report of injury with the Board and paid funeral
expenses required by the Alaska Workers' Compensation Act (Act). Because Caudle
2 Raven Electric was a subcontractor on the job; Criterion General, Inc. was
the project's general contractor, and Alaska USA Federal Credit Union was the building
owner and thus potentially a "project owner" under AS 23.30.045.
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----------------------- Page 4-----------------------
was unmarried and had no dependents at the time of her death, the Act limited Raven
Electric's liability to funeral expenses up to $10,000 and a $10,000 payment to the
3
Second Injury Fund.
Two years after Caudle's death, her mother Marianne Burke filed a written
workers' compensation claim seeking death benefits. Burke was listed as a beneficiary
on the claim form, and she attached a two-page addendum setting out some of her
concerns about safety at the work site. She alleged that following Caudle's death she had
"gotten the run around from all the lawyers on this," had "not been able to work," and
had "been sick often due to [her] daughter's death."
RavenElectricfiled ananswersayingithad paid allworkers' compensation
benefits due and denying further benefits were owed. It also raised two affirmative
defenses: Burke's claim was untimely under AS 23.30.105(a), and she was not a
beneficiary because she was not dependent on Caudle at the time of Caudle's death as
4 Raven Electric later petitioned the Board to dismiss Burke's claim
required by the Act.
on those grounds.
In the course of pleadings and proceedings before the Board, Burke
clarified that she was trying "to get justice for [her] daughter" and said the Board was
"the only place that been allowed to get any source of justice." She did not want to
produce tax records to show dependence on Caudle, and she asserted that she would have
depended on Caudle for care in the future, even if she did not do so at the time of
Caudle's death. Burke argued that simply because Caudle "was single . . . [did] not make
3 AS 23.30.040(c), .215(a). The Second Injury Fund is a fund designed to
provide partial reimbursement to employers who hire workers with certain preexisting
conditions in the event those workers later become disabled due to a work-related injury.
AS 23.30.205.
4 AS 23.30.215(a), (c).
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----------------------- Page 5-----------------------
her life worth nothing, as the current laws imply" from the low amount of compensation
benefits. Burke contended that both her own and Caudle's constitutional rights were
violated by the limited compensation available for Caudle's death, particularly because
of what Burke called Raven Electric's gross negligence. Burke filed a document entitled
"Notice of Intent to Rely" which contained a copy of the AKOSH file on which Burke
had made written comments.
The parties stipulated to a limited hearing in February 2014 to resolve
disputes about procedure. Burke raised constitutional arguments about the Act at the
hearing and explained her position on the procedural questions. The Board issued an
interlocutory order resolving the procedural disputes and informing Burke that it did not
have jurisdiction to decide constitutional issues. In its interlocutory order the Board
"excluded" Burke's "Notice of Intent to Rely" as not relevant to the issue of Burke's
entitlement to additional death benefits.
Raven Electric then requested a hearing on its petition to dismiss the claim;
Burke opposed setting a hearing because she wanted more time to research the law and
prepare her case. Burke's understanding was that she would have two years from the
date she filed the claim to prepare for a hearing. Burke also argued in opposing the
substance of Raven Electric's petition to dismiss that workers' compensation was the
only legal remedy available to her and that the purpose of workers' compensation was
"to protect workers, give value to their lives, [and] create safer work conditions, none of
which occurred for [her] daughter." (Emphasis omitted.) She did not think the death
benefits available for Caudle's death achieved these ends.
The Board set a hearing in July on the petition to dismiss. About 20 days
before this hearing, Burke filed a clean copy of the AKOSH file along with a notarized
statement from an agency representative that the copy was "from [the] State of Alaska
Occupational Safety & Health records." Raven Electric objected to this evidence
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----------------------- Page 6-----------------------
because it had been "excluded" in the Board's interlocutory order.
At the beginning of the July hearing, Raven Electric again sought to
exclude the AKOSH file as irrelevant; Burke contended that it should be part of the
record for purposes of appeal. The Board hearing chair told Burke the Board was "not
going to stop [her] from filing anything," that the AKOSH file was "not being . . .
stricken from the record," and that it was "part of the record of the case no matter what."
The Board panel decided to "exclude[] [the file] for the purpose of [the July] hearing."
The hearing consisted mainly of argument. As relevant to this appeal,
Raven Electric argued that Burke was seeking some type of compensatory or punitive
damages that were not authorized under the Act because workers' compensation was the
exclusive remedy available for a work-related death. Raven Electric pointed out that the
workers' compensation system had been in existence even in territorial days and that the
Act represented a trade-off. It cited precedent holding that the low level of death benefits
for single workers with no dependents did not violate equal protection. Burke reiterated
her position that the Act provided inadequate compensation for her daughter's death,
especially in light of what she considered Raven Electric's negligence and its failure to
provide a safe workplace. She asked the Board to consider awarding the full amount of
permanent partial impairment benefits under the Act, stating that something beyond
funeral expenses should be paid to families of single workers who die on the job. Burke
explained that she had suffered emotional harm and financial hardship due to Caudle's
death because she had difficulties working after the death, and that Caudle's aunt Betty,
from whom Caudle rented living quarters, had also suffered hardship. Burke again
explained that she had brought the claim to the Board because it was "the only place [she
could] get justice": the case had been "pigeonholed . . . into workers' comp," and the
family "couldn't go through civil court." And she restated her arguments that the
compensation scheme violated her constitutional rights.
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----------------------- Page 7-----------------------
At the end of the July hearing, the hearing chair clarified Burke's status in
asserting the claim:
CHAIR SLODOWY: Thank you. Ms. Burke, are
you . . . representing the estate of Abigail? Have you ever
been appointed, like, an executor of the estate or -
MS. BURKE: Betty was taking care of the estate to
begin with.
[BETTY]: Oh, Nate was.
BURKE: The father [Burke's ex-husband].
CHAIR: Okay. So . . . you're appearing on behalf of -
individually -
BURKE: Yes.
CHAIR: - on yourself, not on behalf of the estate, as
like an executor.
BURKE: On behalf of the estate, I suppose. I mean,
that's how I think it started. But I'm not -
CHAIR: I'm understanding -
BURKE: I'm in no contact with my ex.
CHAIR: Okay. So you're appearing individually.
BURKE: I guess you're right, individually -
CHAIR: Okay.
BURKE: - not as a mother [sic].
In its written decision the Board affirmed its oral order excluding the
evidence and determined that Burke's claim was not untimely. It agreed with Raven
Electric that Burke did not qualify for any compensation benefits, writing that she
"simply has no remedy under the Act." Accordingly the Board dismissed her claim "for
lack of a statutory remedy."
Burke appealed to the Commission. She again made constitutional claims
-7- 7241
----------------------- Page 8-----------------------
but also argued she should be able to sue Raven Electric under the Defective Machinery
5
Act
because Raven Electric had supplied Caudle with a voltage meter that was
inadequate to accurately detect the presence of electric current. She noted amendments
to the Workers' Compensation Act in 2004, which she said "took away a death victim's
family's right to sue in civil court [for] a wrongful death in the work place." Burke
contended that the Act effectively gave her and other family members nothing for
Caudle's life, observing that the funeral home, not the family, received the only benefits
available under the Act. Burke emphasized the impact of Caudle's death on her own
earning capacity and questioned the Act's dependency definition.
The Commission, like the Board, concluded it had no jurisdiction over
constitutional questions. The Commission cited cases in which this court had decided
that (1) the Act did not violate the equal protection rights of the estates of unmarried
6 and (2) the Defective Machinery
workers who died on the job leaving no dependents
7 The Commission upheld the
Act did not apply to cases in which the Act also applied.
Board's decision that Burke was not entitled to further benefits under the Act.
After the Commission affirmed the Board's decision, Raven Electric asked
the Commission to order Burke to pay its attorney's fees. Raven Electric argued that
Burke was not an injured worker and was thus not covered by the statutory provision
shielding injured workers from having to pay attorney's fees in Commission appeals.
The Commission agreed and ordered Burke to pay $11,203.20 in attorney's fees and
costs. Burke appeals.
5 AS 23.25.010-.040.
6 Taylor v. Se.-Harrison W. Corp. , 694 P.2d 1160, 1162-63 (Alaska 1985).
7
Gordon v. Burgess Constr. Co., 425 P.2d 602, 605 (Alaska 1967).
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----------------------- Page 9-----------------------
III. STANDARD OF REVIEW
In an appeal from the Alaska Workers' Compensation Appeals
8
Commission, we review the Commission's decision.
We apply our independent
judgment to questions of "statutory interpretation requiring the application and analysis
9
of various canons of statutory construction." We also apply our independent judgment
10
to questions of constitutional law.
IV. DISCUSSION
Theworkers' compensation systemconsistsofatrade-off,sometimescalled
the "grand bargain,"11 in which workers give up their right to sue in tort for damages for
a work-related injury or death in exchange for limited but certain benefits, and employers
agree to pay the limited benefits regardless of their own fault in causing the injury or
death.12 This system has been in place in the United States for over a century and has
8 Humphrey v. Lowe's Home Improvement Warehouse, Inc. , 337 P.3d 1174,
1178 (Alaska 2014) (citing Shehata v. Salvation Army , 225 P.3d 1106, 1113 (Alaska
2010)).
9 ARCTEC Servs. v. Cummings , 295 P.3d 916, 920 (Alaska 2013) (quoting
Tesoro Alaska Petrol. Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903-04 (Alaska 1987)).
10 Fraternal Order of Eagles v. City &Borough of Juneau, 254 P.3d 348, 352
(Alaska 2011).
11 See Baker v. Bridgestone/Firestone, 872 N.W.2d 672, 676 (Iowa 2015)
(describing "grand bargain removing workers' compensation matters from the civil
justice system").
12 Taylor v. Se.-Harrison W. Corp., 694 P.2d 1160, 1162 (Alaska 1985)
("[T]he Act serves 'the goal of securing adequate compensation for injured employees
without the expense and delay inherent in [ordinary civil litigation requiring] a
determination of fault as between the employee and employer.' " (second alteration in
original) (quoting Arctic Structures, Inc. v. Wedmore , 605 P.2d 426, 437 (Alaska
-9- 7241
----------------------- Page 10-----------------------
withstood constitutional challenge. 13 New York's workers' compensation statute was
14
found constitutional under the United States Constitution in 1917.
New York's
compensation law became the model for the federal Longshore and Harbor Workers'
15 which in turn served as the model for Alaska's Act.16
Compensation Act,
As Larson'sWorkers'CompensationLaw observes,workers'compensation
in the United States is similar to "social insurance" because "the right to benefits and
amount of benefits are based largely on a social theory of providing support and
preventing destitution, rather than settling accounts between two individuals according
to their personal deserts or blame," even though the funding mechanism for the system
is "unilateral employer liability."17 Larson's observes that "[a] compensation system,
unlike a tort recovery, does not pretend to restore to the claimant what he or she has
18 Instead, the goal of workers' compensation is to "give[] claimant a sum which,
lost."
added to his or her remaining earning ability, if any, will presumably enable claimant to
12 (...continued)
1979))).
13 See 1 A RTHUR LARSON ET AL .,L ARSON 'S WORKERS' C OMPENSATION LAW
§ 2.07 (Matthew Bender, Rev. Ed. 2015) (describing history of workers' compensation
in the United States).
14 N.Y. Cent. R.R. Co. v. White, 243 U.S. 188, 208 (1917).
15 Bell v. O'Hearne, 284 F.2d 777, 779 (4th Cir. 1960).
16 McCarter v. Alaska Nat'l Ins. Co., 883 P.2d 986, 990 n.5 (Alaska 1994).
17 1 ARTHUR LARSON ET AL., supra note 13, § 1.02.
18
Id. § 1.03[5].
-10- 7241
----------------------- Page 11-----------------------
exist without being a burden to others." 19
The basic provisions of this bargain in Alaska's Act are contained in
AS 23.30.045 and .055. Under AS 23.30.045 an employer is required to provide
workers' compensation coverage for employees, and in return, AS 23.30.055 makes
workers' compensation the employee's exclusive remedy. Most Alaska employers are
20 The only exceptions to the exclusive
required to provide workers' compensation.
remedy provision are failure to insure21 and intentional torts.22 To encourage employers
to keep their part of the "grand bargain" the Act allows employees to sue in tort those
employers who do not "secure payment of compensation" under the Act and takes from
noncompliant employers certain tort defenses.23 The exclusive remedy sections of the
Act were amended in 2004 to expand potential liability for workers' compensation "up
24 25 and at the same time
to project owners and general contractors
the chain of contracts"
to extend the exclusive remedy shield to all those "up the chain" who are now potentially
19 Id.
20 Alaska Statute 23.30.230 sets out a list of jobs that are not covered by the
Act. The Act has additional provisions governing sole proprietors, partners, corporate
officers, and members of limited liability companies. AS 23.30.239-.240.
21 AS 23.30.055.
22 Elliott v. Brown, 569 P.2d 1323, 1327 (Alaska 1977) (holding that when
coworker commits an intentional tort, exclusive liability does not foreclose an action
against the coworker).
23 AS 23.30.055.
24 Minutes, Sen. Labor & Commerce Comm. Hearing on S.B. 323, 23d Leg.,
2d Sess. 20-21 (Mar. 4, 2004) (statement of Sen. Ralph Seekins, sponsor),
http://www.legis.state.ak.us/pdf/23/M/SL!C2004-03-041332.PDF.
25 AS 23.30.045.
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----------------------- Page 12-----------------------
26
liable for workers' compensation. We held in 2009 that the 2004 amendments were
constitutional, reasoning that the amendments furthered the goal of providing workers'
compensation at a reasonable cost to employers by expanding those entities who are
required to secure coverage and giving those who are now potentially liable the
protection of the exclusive remedy. 27
Burke, representing herself, has raised constitutional arguments about both
the 2004 amendments and the underlying exclusive remedy provisions of the Act. Some
of her arguments are related to her own potential status as a beneficiary while others
would more properly be asserted by Caudle's estate. Burke's briefing also suggests at
times that she was the personal representative of the estate. But because further review
of the record demonstrates that Burke was not a personal representative of the estate, we
decline to reach the merits of those issues, and we address the merits of only those claims
that Burke asserted on her own behalf.28
A. The Exclusive Remedy Provision Does Not Violate Burke's
Constitutional Rights.
Burke argues that the exclusive remedy provision of the Act violates her
rights to due process and equal protection under the Alaska and U.S. Constitutions and
also violates her right to privacy under the Alaska Constitution. She contends that by
failing to provide more compensation for Caudle's death, the Act "treat[s] [Caudle's] life
26 AS 23.30.055.
27 Schiel v. Union Oil Co. of Cal., 219 P.3d 1025, 1034-35 (Alaska 2009).
28 We asked the State of Alaska and Eric Croft, who had earlier requested
permission to file an amicus brief, to brief as amici constitutional and procedural issues
related to the 2004 amendments due to Burke's self-represented status. While we do not
reach the merits of the constitutional issues addressed in their briefing, we thank them
for their participation.
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----------------------- Page 13-----------------------
as if she was worth a piece of dirt" and violates Burke's due process rights because,
through the Act, the State "has taken away [her] right for justice and compensation" for
her daughter's death and left no means for her to redress it. In her view this is a
deprivation of life, liberty, or property without due process of law.
In Wright v. Action Vending Co. we considered challenges to the exclusive
remedy provision brought by the spouse of an injured worker when the superior court
determined that provision barred a spouse's loss of consortium action against the
29 We construed the Act as barring not only actions by the injured worker
employer.
individually but also actions that "arise[] out of, and cannot exist without, the . . . core
of activity" covered by the Act.30 In Wright, quoting a federal court, we observed that
"the keystone" of the workers' compensation system "was the exclusiveness of the
31 The bargain underlying workers' compensation is
remedy."
a balancing of the sacrifices and gains of both employees and
employers, in which the former relinquished whatever rights
they had at common law in exchange for a sure recovery
under thecompensation statutes, whiletheemployersontheir
part, in accepting a definite and exclusive liability, assumed
an added cost of operation which in time could be
actuari[al]ly measured and accurately predicted.[32]
"[A]nything that tends to erode the exclusiveness of either the liability or the recovery
29 544 P.2d 82 (Alaska 1975).
30
Id. at 86.
31
Id. at 84 (quoting Smither & Co. v. Coles, 242 F.2d 220, 222 (D.C. Cir.
1957)).
32 Id. at 85 (quoting Smither & Co., 242 F.2d at 222).
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----------------------- Page 14-----------------------
strikes at the very foundation of" the bargain underlying workers' compensation. 33
Like the loss of consortium claim in Wright, Burke's personal claims arise
34 covered by the Act and are barred by the exclusive
"on account of the injury or death"
remedy provision. Parents are listed, along with spouses, "dependents," and "next of
kin," as those whose actions against an employer are barred by the Act.35 To be entitled
to workers' compensation death benefits, a parent must show dependency at the time of
the child's death.36
Burke argues that the Act's failure to provide for her potential future
dependency on Caudle violates her right to equal protection. She also contends that
requiring her to show financial dependency violates her right to privacy by requiring
production of income tax returns and deprives her of due process by failing to
compensate her and other family members for their emotional, as opposed to financial,
dependence on Caudle. The Board did not require Burke to produce her income tax
information, and Burke did not try to prove that she was economically dependent on
Caudle at the time of Caudle's death, so questions related to privacy are not at issue on
appeal. Damage to emotional ties is a type of noneconomic damages,37 and the Act does
33 Id. (quoting Smither & Co. , 242 F.2d at 222).
34 See AS23.30.055 (providing thatworkers' compensation is"exclusiveand
in place of all other liability of the employer . . . on account of the injury or death").
35 Id.
36 AS 23.30.215(a)(4), (c).
37 Cf. Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 994 (Alaska
1987) (recognizing that minor children have independent claim for loss of consortium
when parent is injured).
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----------------------- Page 15-----------------------
38
not provide noneconomic damages to either injured workers or their families. Before
there can be a violation of due process, a person must have a substantive right that
39 But Burke does
entitles her to a certain level of process in order to protect that right.
not have such a right. The legislature has limited the substantive rights available to
nondependent family members of workers who die in work-related accidents, and the
claims processing mechanism in the Act provided Burke an opportunity to challenge the
constitutionality of the Act with respect to her own rights. Her argument that the Act
violates her due process rights is misplaced.
With regard to Burke's argument about future dependency, we rejected a
40
similar argument in the wrongful death context in In re Estate of Pushruk . There we
held that a mother needed to show dependency at the time of her adult child's death to
41 We observed that to hold
be considered a beneficiary under the wrongful death statute.
otherwise would require undue speculation because a fact finder would have to speculate
twice: "first, as to the facts and circumstances which might create a relationship of
dependency in the future; and, second, as to the amount of damages which would flow
38 See C.J. v. State, Dep't of Corr., 151 P.3d 373, 381 (Alaska 2006)
(observing that the workers' compensation system "essentially eliminat[es]"
noneconomic damages). Additionally, the wrongful death statute does not allow
recovery of noneconomic damages when a decedent has no dependents at the time of
death. AS 09.55.580(a); Sowinski v. Walker , 198 P.3d 1134, 1161 (Alaska 2008).
39 See Alex H. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 389 P.3d 35, 50 (Alaska 2017).
40 562 P.2d 329 (Alaska 1977).
41 Id. at 331-32.
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----------------------- Page 16-----------------------
42
from the loss of this hypothesized relationship."
Unlikethewrongfuldeathstatute,theActexplicitly limits statutory benefits
43 Basing
to parents who are "dependent upon" their child at the time of the child's death.
statutory compensation benefits on dependency at the time of a child's death does not
violate the equal protection rights of parents who may in the future depend financially
on their children. For a viable equal protection claim to exist, similarly situated groups
must be treated differently: "[w]here there is no unequal treatment, there can be no
violation of the right to equal protection of the law."44 The legal conclusion that "two
classes are not similarly situated necessarily implies that the different legal treatment of
the two classes is justified by the differences between the two classes."45 We reach this
legal conclusion through application "in shorthand" of our traditional equal protection
46 We consider "whether a
analysis to the legislature's creation of the classification.
legitimate reason for disparate treatment exists, and, given a legitimate reason, whether
the enactment creating the classification bears a fair and substantial relationship to that
42 Id. at 332.
43 AS 23.30.215(a)(4), (c).
44 Glover v. State, Dep't of Transp., Alaska Marine Highway Sys., 175 P.3d
1240, 1257 (Alaska 2008) (quoting Matanuska-Susitna Borough Sch. Dist. v. State, 931
P.2d 391, 397 (Alaska 1997)).
45 Lauth v. State, Dep't of Health & Soc. Servs., Div. of Pub. Assistance , 12
P.3d 181, 187 (Alaska 2000) (quoting Shepherd v. Dep't of Fish & Game, 897 P.2d 33,
44 n.12 (Alaska 1995)).
46 See id. (quoting Shepherd, 897 P.2d at 44 n.12); see also Gonzales v.
Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994) (explaining shorthand analysis
and application to legislative classifications).
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----------------------- Page 17-----------------------
47
reason." As applied to the classification here, parents who depend financially on their
child at the time of the child's death lose a present source of income, which workers'
48 Parents who may depend on their child in
compensation is designed to replace in part.
the future do not lose the present source of income workers' compensation replaces, and
they might never have become dependent on the child in any event. Because the two
groups of parents are not similarly situated, the different treatment Burke questions is not
constitutionally impermissible.
Burke also argues that because of the 2004 amendments to the Act, which
expanded the entities deemed to be "employers" for purposes of the exclusive remedy
provision, she is now barred from bringing a lawsuit against anyone who might be liable
for Caudle's death. The list of those she views as responsible for Caudle's death
includes not only Raven Electric but also some of Caudle's co-employees, the general
contractor, and the building owner. She contends the amendments violate her right to
due process because the amendments to the Act "took away [her] right to sue in [c]ivil
[c]ourt for justice." But Burke did not have a right to bring such an action even before
the 2004 amendments. Both the Act and the wrongful death statute require the parent
of an adult child to be dependent on the child in order to be a beneficiary.49 Because
Burke was not dependent on Caudle, Burke is not a beneficiary. When there is no
statutory beneficiary, a wrongful death action is brought for the benefit of the estate
47 Gonzales, 882 P.2d at 396 (citing State, Dep't of Revenue v. Cosio , 858
P.2d 621, 629 (Alaska 1993)).
48 See Taylor v. Se.-Harrison W. Corp., 694 P.2d 1160, 1162 (Alaska 1985)
(explaining that legislature recognized "the need to replace the income that provided
support for those dependent upon the deceased worker" in giving more benefits to estates
of deceased workers with dependents).
49 AS 09.55.580(a); AS 23.30.215(a).
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50 51
alone. Thus in this case, the real party in interest in both claims is Caudle's estate.
Because Burke is not the personal representative of Caudle's estate and is not the real
party in interest in asserting any rights with regard to the estate, we decline to reach any
questions about the effect of the 2004 amendments on the rights of the estates of injured
workers who die without dependents.
B. The Exclusive Remedy Provision Bars A Lawsuit Under The Defective
Machinery Act.
52
Burke argues that the Defective Machinery Act should apply to her case
because Raven Electric supplied Caudle with the wrong type of equipment, a noncontact
voltage meter. She contends that the voltage meter was defective in the sense that it did
not work for its intended purpose because it did not show that a wire was energized when
in fact it was. The Commission addressed this argument in a footnote, citing our
precedent about the interaction between the Workers' Compensation Act and the
Defective Machinery Act and observing that "a claim against the employer that is not
based on the . . . Act must be addressed to the courts rather than the . . . Board."
We considered the interaction of the Defective Machinery Act and the
exclusive remedy provision of the Act in two cases: Gordon v. Burgess Construction
50 Kulawik v. ERA Jet Alaska , 820 P.2d 627, 635 (Alaska 1991) (noting
"mutually exclusive dichotomy between estate recovery and beneficiary recovery"
(citing In re Estate of Pushruk , 562 P.2d 329, 331 (Alaska 1977))).
51 In re Pushruk, 562 P.2d at 331 ("[I]f the deceased is not survived by the
beneficiaries named in the [wrongful death] statute, the personalrepresentativeis the real
party in interest in the wrongful death action.").
52 AS 23.25.010-.040. Unlike the Workers' Compensation Act and the
wrongful death statute, the Defective Machinery Act does not require a parent to show
dependency on an adult child to be a statutory beneficiary. AS 23.25.010.
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53 54
Co. and Haman v. Allied Concrete Products, Inc. We harmonized the Defective
MachineryActand theexclusiveremedy provision by applying theDefectiveMachinery
Act only to those occupations that are exempt from the coverage of the Act, such as "part
time baby sitters, cleaning persons, harvest help, and similar part time or transient
55 In Gordon we rejected an argument that "the Alaska Legislature, by continuing
help."
the Defective Machinery Act in existence after enactment of the . . . Act, evidenced its
intent to exclude defective, dangerous machinery from the coverage of the . . . Act in
order to coerce employers to furnish safe machinery."56 And in Haman we observed that
permitting an exception to the exclusive remedy provision when an accident was caused
by inadequate or defective machinery "would seriously undermine, if not engulf, the
comprehensiveness" of the workers' compensation system.57
Burke has not shown that the rule we adopted in Gordon "was originally
erroneous or is no longer sound because of changed conditions."58 We decline to
overrule our precedent, and because it is uncontested that Caudle's occupation was
covered by the Act, the exclusive remedy provision bars a suit against Raven Electric
under the Defective Machinery Act.
53 425 P.2d 602 (Alaska 1967).
54 495 P.2d 531 (Alaska 1972).
55 Gordon, 425 P.2d at 605. Those exemptions (and others) remain in place.
See AS 23.30.230.
56 425 P.2d at 605.
57 495 P.2d at 535.
58 See State v. Carlin, 249 P.3d 752, 757-58 (Alaska 2011) (setting out tests
for overruling precedent).
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C. The Board Did Not Err In Its Procedural Decisions.
As noted earlier, Burke submitted a copy of the AKOSH report with a
Board form prior to the hearing. Burke's purpose in proffering the AKOSH report was
in part to support her argument that Raven Electric had been grossly negligent. The
Board panel who heard the case excluded it "for purposes of [the July] hearing," but the
Board hearing chair, recognizing that Burke was making a constitutional challenge, told
her the AKOSH file was "not being . . . stricken from the record" and was "part of the
record of the case no matter what." Raven Electric argues the Board's exclusion of the
file was correct, while Burke maintains the documents were relevant to her Defective
Machinery Act claim.
A Board regulation gives the Board the authority to determine which
59 Because the Board does not have
documents it will consider when making its decision.
jurisdiction to decide constitutional issues and because benefits under the Act are
awarded regardless of fault, the Board appropriately declined to consider the AKOSH
file in making its decision related to the Act but not striking it from the record.
Burke also contends the Board erred in denying her request for more time
to prepare for the hearing. According to Burke, Board staff told her she would have two
years from the time she filed the workers' compensation claim to prepare for a hearing.
She argues that had she been given more time to prepare, she would have been able to
subpoena witnesses to testify about worker safety and could have gathered more
evidence from state agencies about the accident. She also asserts that she "[w]ould have
had more time to read and research more legal information."
Raven Electric filed an affidavit of readiness for hearing on its petition to
dismiss shortly after the Board's March 2014 interlocutory order and about nine months
59 8 Alaska Administrative Code (AAC) 45.120(f) (2011).
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after Burke filed her claim. Burke opposed setting a hearing, but the Board set a July
2014 hearing date.
The Board can set a hearing on a claim or petition either on its own motion
60 Because Burke filed an
or after receipt of an affidavit of readiness for hearing.
opposition, the Board was required to hold a prehearing conference,61 which it did.
Regulations give the Board some discretion in scheduling the hearing.62 We review an
administrative agency's application of its own regulations to a particular case to
determine "whether the agency's decision was arbitrary, unreasonable, or an abuse of
discretion."63
We conclude that scheduling the hearing over Burke's objection was not
improper. The evidence Burke wanted to admit was not relevant to the issues the Board
could decide: Burke sought to admit evidence related to negligent conduct that she said
led to Caudle's death, but the Act creates a system of payment without regard to fault.
Absent the possibility of a deliberate intent to injure a worker - and Burke agrees that
Raven Electric did not intend to hurt Caudle - an employer's negligence is irrelevant
to a workers' compensation proceeding.64 And Burke had more than three months after
60 8 AAC 45.060(e) (2017). The two-year deadline Burke alludes to is most
likely related to AS 23.30.110(c), which authorizes denial of a claim when the claimant
does not file an affidavit of readiness for hearing within two years of an employer's
controversion. This statute does not prohibit an earlier hearing on a claim.
61 8 AAC 45.070(c) (2011).
62 8 AAC 45.070(a), (c).
63 Griffiths v. Andy's Body & Frame, Inc., 165 P.3d 619, 623 (Alaska 2007).
64 See Fenner v. Municipality of Anchorage , 53 P.3d 573, 576-77 (Alaska
2002) (reaffirming precedent holding that employer must have specific intent to injure
(continued...)
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the prehearing conference to prepare for a late-July hearing. In sum the Board did not
abuse its discretion in its procedural decisions. 65
D. The Commission Erred In Awarding Attorney's Fees To Raven
Electric.
After winning the Commission appeal Raven Electric asked for an award
of full reasonable attorney's fees as the successful party, arguing that Burke did not
qualify for the protection for injured workers set out in the Act. The Commission agreed
and ordered Burke to pay $11,203.20 in costs and fees to Raven Electric.
On appeal Burke asserts she should not have to pay attorney's fees because
the injured worker in this case is dead and unable to fight for justice on her own behalf.
Raven Electric responds that the Commission correctly determined Burke was not
entitled to the protection against attorney's fees the statute gives to injured workers.
Raven Electric contends that because Burke disavowed any financial dependence on
Caudle at the time of Caudle's death, the Commission correctly awarded it fees. Raven
66
Electric relies on State, Division of Workers' Compensation v. Titan Enterprises, LLC
in making its argument.
This issue is one of statutory construction. Alaska Statute 23.30.008(d)
provides that the Commission should award attorney's fees and costs to the prevailing
party in a Commission appeal but "may not make an award of attorney['s] fees against
an injured worker" absent a finding "that the worker's position on appeal was frivolous
64 (...continued)
employee to be within intentional tort exception to exclusive remedy provision).
65 Burke makes several other arguments related to the Act. We do not find
them persuasive and do not address them here.
66 338 P.3d 316 (Alaska 2014).
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67
or unreasonable or the appeal was taken in bad faith."
68
Although we have construed AS 23.30.008(d) several times, we have not
69 When interpreting a statute, we consider the
addressed the meaning of injured worker.
meaning of the statutory language, the legislative history, and the purpose of the statute,
adopting "the rule of law that is most persuasive in light of precedent, reason, and
policy."70 We consider all parts of a statute together and presume the legislature is aware
of other statutory sections on the same subject as well as prior cases when enacting
legislation.71
There is no legislative definition of injured worker, and the term is only
used sporadically in the Act.72 At times injured worker is used in the same sentence as
67 AS 23.30.008(d).
68 See Titan Enters., LLC , 338 P.3d at 321-23 (interpreting statute when two
nonclaimants were involved in appeal); Humphrey v. Lowe's Home Improvement
Warehouse, Inc. , 337 P.3d 1174, 1181-82 (Alaska 2014) (reversing refusal to award fees
when claimant's attorney prevailed on some issues); Lewis-Walunga v. Municipality of
Anchorage , 249 P.3d 1063, 1068 (Alaska 2011) (holding that "a claimant is a successful
party in an appeal to the Commission when the claimant prevails on a significant issue
in the appeal"); Shehata v. Salvation Army , 225 P.3d 1106, 1119-20 (Alaska 2010)
(reversing fee award for Commission appeal because claimant's appeal was not
frivolous).
69 In Shehata v. Salvation Army, the only case in which we considered the
shield against paying fees for a Commission appeal, the employer conceded Shehata
"was an injured worker because he had a compensable injury." 225 P.3d at 1119.
70 L.D.G., Inc. v. Brown, 211 P.3d 1110, 1133 (Alaska 2009) (citing Enders
v. Parker, 66 P.3d 11, 13-14 (Alaska 2003)).
71 Young v. Embley, 143 P.3d 936, 947 (Alaska 2006).
72 See, e.g., AS 23.30.001, .008, .041, .225.
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73
employee to refer to the same person. We observed in Lewis-Walunga v. Municipality
of Anchorage that "[t]here is little legislative history about AS 23.30.008(d), but what
there is suggests that the legislature intended Commission attorney's fees awards to
74 Appellate
follow the same rules as appellate attorney's fees awards in the courts."
attorney's fees in the courts were governed by former Alaska Appellate Rule 508(g) in
2005 when the Commission was created.75 Former Rule 508(g)(1) prohibited a court
from awarding costs or attorney's fees against a "claimant" unless "the claimant's
position was frivolous, unreasonable, or taken in bad faith."76
The key difference between former Rule 508(g)(1) and AS 23.30.008(d)
is that the statute uses the term injured worker rather than claimant. Nothing in the
legislative history manifests an intent to narrow those who are shielded from an award
of attorney's fees; to the contrary, the scant legislative history "suggests that the
legislature intended Commission attorney's fees awards to follow the same rules as
77
appellate attorney's fees awards in the courts."
73 See, e.g., AS 23.30.225(c) ("If employer contributions to a qualified
pension . . . plan have been included in the determination of gross earnings and the
employee is receiving pension . . . payments, weekly compensation benefits payable
under this chapter shall be reduced by the amount paid or payable to the injured worker
under the plan . . . ." (emphasis added)).
74 249 P.3d 1063, 1067 (Alaska 2011) (citing STATE OF ALASKA, D EP 'T OF
LAW, SECTION BY SECTION ANALYSIS OF SB 130 at 7 (Mar. 3, 2005)).
75 Ch. 10, § 8, FSSLA 2005; former Alaska R. App. P. 508(g)(1) (2005).
76 Former Alaska R. App. P. 508(g)(1). The language of AS 23.30.008(d) is
similar to former Rule 508(g)(2) in that the statute, like our former rule, allows an award
of full reasonable attorney's fees.
77 Lewis-Walunga, 249 P.3d at 1067 (citing STATE OF ALASKA, D EP 'T OF
(continued...)
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Furthermore, when the legislature created the Commission, it did not
change the restrictions it had placed on payment of attorney's fees for legal services
78 As we discussed in Titan Enterprises, "[a]ttorneys are
"with respect to a claim ."
prohibited from receiving fees for representing claimants unless the Board awards them
fees when claimants are successful."79 But claimants can include others in addition to
injured workers: Alaska Statute 23.30.030(4) requires a workers' compensation insurer
to "promptly pay to the person entitled to them the benefits conferred by [the Act]," and
we have construed this subsection as meaning that an employer is directly liable to those
persons.80 A Board regulation permits "person[s] other than the employee" to file a
claim; with some exceptions, those who file their own claims must join the employee as
a party.81 But because the statutory restrictions on fee arrangements do not distinguish
between injured workers and others to whom payment may be required, claimants, not
just injured workers, are entitled to the protection of the shield against an award of
attorney's fees.
Titan Enterprises is not to the contrary. There we construed
77 (...continued)
LAW, S ECTION BY SECTION ANALYSIS OF SB 130 at 7 (Mar. 3, 2005)).
78 AS 23.30.145, .260 (emphasis added).
79 State, Div. of Workers' Comp. v. Titan Enters., LLC, 338 P.3d 316, 323
(Alaska 2014) (emphasis added).
80 See Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1128
(Alaska 2008) (quoting Sherrod v. Municipality of Anchorage, 803 P.2d 874, 875
(Alaska 1990)).
81 8 AAC 45.040(a) (2011).
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AS 23.30.008(d) as permitting an award of attorney's fees to either party in an appeal. 82
But in allowing the Commission to consider the relative success of two nonclaimants
when it awarded fees, we observed that AS 23.30.008(d) provided no shield to "non-
83 We also considered
claimants who lose a significant issue in a Commission appeal."
the Act's restrictions on fee arrangements to explain the difference in treatment of
nonclaimants and claimants.84
Burke asserted constitutional claims as a possible beneficiary of a deceased
worker as well as claims more properly made by Caudle's estate.85 She was thus a
claimant under the Act. As such, she is entitled to the protection afforded other
claimants against having to pay attorney's fees to Raven Electric unless her position on
appeal was frivolous, unreasonable, or the appeal was taken in bad faith. We hold that
it was not.
Tobefrivolousor unreasonableaworkers' compensationclaimant'sappeal
86 In its Commission brief Raven Electric contended
must have no basis in law or fact.
82 Titan Enters., LLC, 338 P.3d at 321.
83 Id. at 321-22.
84 Id. at 322-23.
85 It was only at the end of the July 2014 hearing that the Board chair clarified
Burke's status.
86 See Shehata v. Salvation Army , 225 P.3d 1106, 1119 (Alaska 2010)
(holding that legal issue raised in appeal "had a basis in law and fact" and was not
frivolous or unreasonable). This standard is similar to one used in federal civil rights
litigation. See Okopu v. Cty. of Suffolk, 123 F. Supp. 3d 404, 411 (E.D.N.Y. 2015)
(holding in federal civil rights suit that "[a] claim is frivolous where it lacks an arguable
basis either in law or in fact" (alteration in original) (quoting Shakur v. Selsky, 391 F.3d
106, 113 (2d Cir. 2004))).
(continued...)
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----------------------- Page 27-----------------------
that Burke's appeal was frivolous and unreasonable because the positions she advocated
87 88
came within our precedent.
Because precedent can be, and sometimes is, overruled,
asserting a position that is contrary to controlling precedent is not per se unreasonable
or frivolous.
Pleadings of self-represented litigants are held to less stringent standards
than those of attorneys.89 The Board and the Commission clearly understood Burke was
raising constitutional claims, and both administrative bodies told her they lacked
jurisdiction to decidethoseissues. Raven Electricacknowledged at oral argument before
us that Burke used an appropriate process to assert claims related to the constitutionality
86 (...continued)
Raven Electric has never asserted that Burke filed her claim in bad faith.
In fact it acknowledges that "Burke is acting as the personal representative of Caudle's
memory and seeking justice."
87 Raven Electric relied only on DeNardo v. Cutler, 167 P.3d 674 (Alaska
2007), to support this argument. But DeNardo did not hold that advocating a position
contrary to precedent was unreasonable and frivolous: there we upheld an award of fees
against an experienced self-represented litigant who had, after losing several similar
lawsuits in the past, "persisted in [suing a judge] despite [the litigant's] apparent
understanding of the law." Id. at 680.
88 See, e.g., State v. Carlin, 249 P.3d 752, 759-60 (Alaska 2011), overruling
Hartwell v. State, 423 P.2d 282 (Alaska 1967).
89 DeNardo v. Calista Corp., 111 P.3d 326, 330-31 (Alaska 2005).
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of the Act. Here, the core position Burke advanced - that the Act violates the
constitutional rights of estates of workers who have no dependents when they die in
work-related accidents - was adopted at one point by the New Hampshire Supreme
90 and was endorsed more recently by dissenting justices in Montana.91
Court
Given Burke's self-represented status and the acknowledgment of both the
administrative agencies and the employer that only this court had jurisdiction to decide
Burke's constitutional arguments, we cannot say that her appeal to the Commission -
a prerequisite for review by this court - was unreasonable or frivolous.
V. CONCLUSION
We HOLD that the Alaska Workers' Compensation Act does not violate
Burke's rights to equal protection or due process. We AFFIRM the Commission's
decision that Burke is not entitled to benefits under the Act. We REVERSE the
Commission's award of attorney's fees to Raven Electric.
90 Park v. Rockwell Int'l Corp ., 436 A.2d 1136, 1139 (N.H. 1981), overruled
by Alonzi v. Ne. Generation Servs. Co. , 940 A.2d 1153, 1162-63 (N.H. 2008).
91 Walters v. Flathead Concrete Prods., Inc., 249 P.3d 913, 922 (Mont. 2011)
(Wheat, J., dissenting); id. at 923 (Nelson, J., dissenting).
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