MARIANNE E. BURKE, mother of ABIGAIL E. CAUDLE (deceased), Appellant,
RAVEN ELECTRIC, INC. and LIBERTY MUTUAL INSURANCE COMPANY, Appellees.
from the Alaska Workers' Compensation Appeals Commission.
Alaska Workers' Compensation Appeals Commission No.
Marianne E. Burke, pro se, Anchorage, Appellant.
Barlow and Constance Livsey, Burr, Pease & Kurtz,
Anchorage, for Appellees.
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
STOWERS, CHIEF JUSTICE.
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.
FACTS AND PROCEEDINGS
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
day of the accident Raven Electric initially planned to
"rough 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.
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.
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
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."
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
Raven Electric later petitioned the Board to dismiss
Burke's claim on those grounds.
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
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.
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
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.
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 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.
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-
CHAIR: - on yourself, not on behalf of the estate, as like an
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 -
BURKE: - not as a mother [sic].
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
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 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.
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 and (2) the Defective Machinery Act did
not apply to cases in which the Act also
applied. The Commission upheld the Board's
decision that Burke was not entitled to further benefits
under the Act.
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.
STANDARD OF REVIEW
appeal from the Alaska Workers' Compensation Appeals
Commission, we review the Commission's
decision. We apply our independent judgment to
questions of "statutory interpretation requiring the
application and analysis of various canons of statutory
construction." We also apply our independent judgment to
questions of constitutional law.
workers' compensation system consists of a trade-off,
sometimes called the "grand bargain,
" 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. This system
has been in place in the United States for over a century and
has withstood constitutional challenge. New
York's workers' compensation statute was found
constitutional under the United States Constitution in
1917. New York's compensation law became
the model for the federal Longshore and Harbor Workers'
Compensation Act,  which in turn served as the model for
'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."
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." 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."
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. The only exceptions to the
exclusive remedy provision are failure to
insure and intentional torts. 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. The exclusive remedy sections of the Act
were amended in 2004 to expand potential liability for
workers' compensation "up the chain of
contracts" to project owners and general
contractors 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. 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
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
The Exclusive Remedy Provision Does Not Violate Burke's
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.
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. 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. In Wright, quoting a federal
court, we observed that "the keystone" of the
workers' compensation system "was the exclusiveness
of the remedy." The bargain underlying workers'
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.
that tends to erode the exclusiveness of either the liability
or the recovery strikes at the very foundation of the bargain
underlying workers' compensation.
the loss of consortium claim in Wright, Burke's
personal claims arise "on account of the injury or
death" 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. To be entitled to workers'