Section 23.30.015. Compensation where third persons are liable.

   (a) If on account of disability or death 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 and the personal representative of a deceased employee to recover damages from the third person unless the person or representative entitled to compensation commences an action against the third person within one year after an award.
   (c) Payment of compensation into the second-injury fund as a result of death operates as an assignment to the employer of all rights of the representative of the deceased to recover damages from the third person.
   (d) An employer under an assignment may either institute proceedings for the recovery of damages or may compromise with a third person, either without or after instituting an action.
   (e) An amount recovered by the employer under an assignment, whether by action or compromise, shall be distributed as follows:
        (1) the employer shall retain an amount equal to
             (A) the expenses incurred by the employer with respect to the action or compromise, including a reasonable attorney fee determined by the board;
             (B) the cost of all benefits actually furnished by the employer under this chapter;
             (C) all amounts paid as compensation and second-injury fund payments, and if the employer is self-insured or uninsured, all service fees paid under AS 23.05.067;
             (D) the present value of all amounts payable later as compensation, computed from a schedule prepared by the board, and the present value of the cost of all benefits to be furnished later under AS 23.30.095 as estimated by the board; the amounts so computed and estimated shall be retained by the employer as a trust fund to pay compensation and the cost of benefits as they become due and to pay any finally remaining excess sum to the person entitled to compensation or to the representative; and
        (2) the employer shall pay any excess to the person entitled to compensation or to the representative of that person.
   (f) Even if an employee, the employee's representative, or the employer brings an action or settles a claim against the third person, the employer shall pay the benefits and compensation required by this chapter.
   (g) If the employee or the employee's representative recovers damages from the third person, the employee or representative shall promptly pay to the employer the total amounts paid by the employer under (e)(1)(A) - (C) of this section insofar as the recovery is sufficient after deducting all litigation costs and expenses. Any excess recovery by the employee or representative shall be credited against any amount payable by the employer thereafter. If the employer is allocated a percentage of fault under AS 09.17.080, the amount due the employer under this subsection shall be reduced by an amount equal to the employer's equitable share of damages assessed under AS 09.17.080(c).
   (h) If compromise with a third person is made by the person entitled to compensation or the representative of that person of an amount less than the compensation to which the person or representative 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.
   (i) If the employer is insured and the carrier has assumed the payment of compensation, the carrier shall be subrogated to all the rights of the employer.
   (j) Notice of the commencement of an action against a third party shall be given to the division and to all interested parties within 30 days.

Authorities

9.17.080;23.30.050;23.30.082

Notes

Implemented As

8 AAC 45.162
8 AAC 45.188

References

8 AAC 45.071
8 AAC 45.162
8 AAC 45.188
AS 9.17.080 .080">Sec. 09.17.080. Apportionment of damages.
AS 23.30.050 Employer's liability despite negligence of a third party.
AS 23.30.082 Workers' compensation benefits guaranty fund.

History

(Sec. 30 ch 193 SLA 1959; am Sec. 7 ch 42 SLA 1962; am Sec. 1 ch 73 SLA 1965; am Sec. 2 ch 75 SLA 1977; am Sec. 36 ch 26 SLA 1997; am Sec. 3 ch 89 SLA 2000; am Sec. 11, 12 ch 10 FSSLA 2005)