Section 23.30.080. Employer's failure to insure.

   (a) If an employer fails to comply with AS 23.30.075 the employer may not escape liability for personal injury or death sustained by an employee when the injury sustained arises out of and in the usual course of the employment because
        (1) the employee assumed the risks inherent to or incidental to or arising out of the employment, or the risks arising from the failure of the employer to provide and maintain a reasonably safe place to work, or the risks arising from the failure of an employer to furnish reasonably safe tools or appliances; or because the employer exercises reasonable care in selecting reasonably competent employees in the business;
        (2) the injury was caused by the negligence of a co-employee;
        (3) the employee was negligent, unless it appears that the negligence was wilful and with intent to cause the injury or was the result of wilful intoxication on the part of the injured party.
   (b) In an action by an employee against an employer for personal injury sustained arising out of and in the course of the employment where the employer has failed to insure or to provide security as required by AS 23.30.075, it is presumed that the injury to the employee was the first result growing out of the negligence of the employer and that the employer's negligence was the proximate cause of the injury; the burden of proof rests upon the employer to rebut this presumption of negligence.
   (c) The limits of liability do not apply when an action is brought under this section.
   (d) If an employer fails to insure or provide security as required by AS 23.30.075, the board may issue a stop order at the request of the division prohibiting the use of employee labor by the employer until the employer insures or provides security as required by AS 23.30.075. The failure of an employer to file evidence of compliance as required by AS 23.30.085 creates a rebuttable presumption that the employer has failed to insure or provide security as required by AS 23.30.075. If an employer fails to comply with a stop order issued under this section, the board shall assess a civil penalty of $1,000 a day. The employer may not obtain a public contract with the state or a political subdivision of the state for three years following the violation of the stop order.
   (e) If a representative of the department investigates an employer's failure to file the evidence of compliance required by AS 23.30.085 and, after investigation, there is substantial evidence that the employer failed to insure or provide security as required by AS 23.30.075, the representative shall inform the employer. The representative may request the director to issue a stop order prohibiting the use of employee labor by the employer until the employer insures or provides security as required by AS 23.30.075. The director may issue a stop order, without a hearing, based on the representative's investigation. The director shall dissolve a stop order issued under this subsection upon receipt of substantial evidence that the employer is insured or has provided security as required by AS 23.30.075(a). If an employer fails to comply with a stop order issued under this subsection, the division may petition the board to assess a civil penalty. The board may assess a civil penalty of $1,000 a day. An employer who is assessed a penalty under this subsection may not obtain a public contract with the state or a political subdivision of the state for the three years following violation of the stop order.
   (f) If an employer fails to insure or provide security as required by AS 23.30.075, the division may petition the board to assess a civil penalty of up to $1,000 for each employee for each day an employee is employed while the employer failed to insure or provide the security required by AS 23.30.075. The failure of an employer to file evidence of compliance as required by AS 23.30.085 creates a rebuttable presumption that the employer failed to insure or provide security as required by AS 23.30.075.
   (g) If an employer fails to pay a civil penalty order issued under (d), (e), or (f) of this section within seven days after the date of service of the order upon the employer, the director may declare the employer in default. The director shall file a certified copy of the penalty order and declaration of default with the clerk of the superior court. The court shall, upon the filing of the copy of the order and declaration, enter judgment for the amount declared in default if it is in accordance with law. Anytime after a declaration of default, the attorney general shall, when requested to do so by the director, take appropriate action to ensure collection of the defaulted payment. Review of the judgment may be had as provided under the Alaska Rules of Civil Procedure. Final proceedings to execute the judgment may be had by writ of execution.

Authorities

23.30.082

Notes

Recent Bills that will modify this

HB 307 WORKERS' COMP;INDEP. CONTRACT.;PENALTIES

Implemented As

8 AAC 45.174
8 AAC 45.175
8 AAC 45.176
8 AAC 45.177

References

8 AAC 45.071
8 AAC 45.174
8 AAC 45.176
AS 23.30.082 Workers' compensation benefits guaranty fund.

History

(Sec. 38 ch 193 SLA 1959; am Sec. 6 ch 93 SLA 1982; am Sec. 29, 30 ch 10 FSSLA 2005)