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Burke v. Raven Electric, Inc.

Supreme Court of Alaska

May 11, 2018

MARIANNE E. BURKE, mother of ABIGAIL E. CAUDLE (deceased), Appellant,

          Appeal from the Alaska Workers' Compensation Appeals Commission. Alaska Workers' Compensation Appeals Commission No. 14-022

          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.




         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 the circumstances of her 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.


         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]

         On the day of the accident Raven Electric initially planned to "rough[] in .. . three offices as far as outlets and switches, " but the general contractor[2] 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 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 Second Injury Fund.[3]

         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."

         Raven Electric filed an answer saying it had paid all workers' 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 required by the Act.[4] Raven Electric later petitioned the Board to dismiss Burke's claim 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 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 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.

         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 -
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 but also argued she should be able to sue Raven Electric under the Defective Machinery Act[5] 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 workers who died on the job leaving no dependents[6] and (2) the Defective Machinery Act did not apply to cases in which the Act also applied.[7] The Commission upheld the 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.


         In an appeal from the Alaska Workers' Compensation Appeals Commission, we review the Commission's decision.[8] We apply our independent judgment to questions of "statutory interpretation requiring the application and analysis of various canons of statutory construction."[9] We also apply our independent judgment to questions of constitutional law.[10]


         The workers' compensation system consists of a trade-off, sometimes called 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 withstood constitutional challenge.[13] New York's workers' compensation statute was found constitutional under the United States Constitution in 1917.[14] New York's compensation law became the model for the federal Longshore and Harbor Workers' Compensation Act, [15] which in turn served as the model for Alaska's Act.[16]

         AsLarson 's Workers' Compensation Law 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 lost."[18] Instead, the goal of workers' compensation is to "give[] claimant a sum which, added to his or her remaining earning ability, if any, will presumably enable claimant to 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 required to provide workers' compensation.[20] The only exceptions to the exclusive remedy provision are failure to insure[21] 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 the chain of contracts"[24] to project owners and general contractors[25] and at the same time to extend the exclusive remedy shield to all those "up the chain" who are now potentially liable for workers' compensation.[26] 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 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 employer.[29] We construed the Act as barring not only actions by the injured worker 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 remedy."[31] The bargain underlying workers' compensation is

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 the compensation statutes, while the employers on their 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 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 "on account of the injury or death"[34] covered by the Act and are barred by the exclusive 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 ...

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