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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
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
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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.
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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)."
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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...)
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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.
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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.
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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.
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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.
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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
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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.").
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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
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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.
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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)).
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. . . .
(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).
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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).
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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.
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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).
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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).
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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.
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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.
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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)).
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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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