Current through November 28, 2024
(a) Hearings will be held at the time and
place fixed by notice served by the board under
8 AAC 45.060(e). A hearing may be
adjourned, postponed, or continued from time to time and from place to place at
the discretion of the board or its designee, and in accordance with this
chapter.
(b) Except as provided in
(1)(A) and (F) of this subsection and 8 AAC 45.074(c), a hearing will not be
scheduled unless a claim or petition has been filed, and an affidavit of
readiness for hearing has been filed and that affidavit is not returned by the
board or designee nor is the affidavit the basis for scheduling a hearing that
is cancelled or continued under 8 AAC 45.074(b). The board has available an
Affidavit of Readiness for Hearing form that a party may complete and file. The
board or its designee will return an affidavit of readiness for hearing, and a
hearing will not be set if the affidavit lacks proof of service upon all other
parties, or if the affiant fails to state that the party has completed all
necessary discovery, has all the necessary evidence, and is fully prepared for
the hearing.
(1) A hearing is requested by
using the following procedures:
(A) For
review of an administrator's decision issued under
AS
23.30.041(d), a party shall
file a petition asking for review of the administrator's decision an affidavit
of readiness for hearing form is not required. In reviewing the administrator's
decision, the board may not consider evidence that was not available to the
administrator at the time of the administrator's decision unless the board
determines the evidence is newly discovered and could not with due diligence
have been produced for the administrator's consideration.
(B) On the written arguments and evidence in
the board's case file regarding a claim or petition, a party must file an
affidavit of readiness for hearing in accordance with (2) of this subsection
requesting a hearing on the written record. If the opposing party timely files
an affidavit opposing a hearing on the written record, the board or designee
will schedule an in-person hearing. If the opposing party does not timely file
an affidavit opposing the hearing on the written record, the board will, in its
discretion, decide the claim or petition based on the written record. If the
board determines additional evidence or written arguments are needed to decide
a claim or petition, the board will schedule an in-person hearing or will
direct the parties to file additional evidence or arguments.
(C) For an appearance in-person at the
hearing, except for a venue determination, a party must file an affidavit of
readiness in accordance with (2) of this subsection requesting an in-person
hearing.
(D) On a venue dispute, a
party must file a petition asking the board to determine the venue and an
affidavit of readiness for hearing on the written record. In accordance with
8 AAC 45.072, the board will consider the parties'
written arguments and evidence in the case file, and an in-person hearing will
not be held.
(E) For default under
AS
23.30.170, a party shall file a claim and may
file the claim together with an affidavit of readiness for hearing.
(F) To resolve a medical dispute under AS
23.30.095(k) or to request the board order a physical examination under AS
23.30.110(g), a party shall file with the division and serve on opposing
parties a petition asking the board to order a second independent medical
evaluation, a completed second independent medical evaluation form signed by
the party that filed the petition, and medical records reflecting the medical
disputes; if the parties do not stipulate to the second independent medical
evaluation within 20 days of service of the documents, the board or its
designee will schedule a hearing, the board will hold a hearing on the written
record with briefs, and the board will issue its decision and order within 60
days of the date the documents were filed with the division and served on the
opposing party; an affidavit of readiness for hearing form is not
required.
(2) Except as
provided in (1) of this subsection, a party may not file an affidavit of
readiness for hearing until after the opposing party files an answer under
8 AAC 45.050 to a claim or petition or 20 days after the
service of the claim or petition, whichever occurs first. If an affidavit is
filed before the time set by this paragraph,
(A) action will not be taken by the board or
designee on the claim or petition; and
(B) the party must file another affidavit
after the time set by this paragraph.
(3) If the board or designee determines a
hearing should be scheduled even though a party has not filed an affidavit of
readiness for hearing, the board or designee will give notice of the hearing in
accordance with
AS
23.30.110 and
8 AAC 45.060(e).
(c) To oppose a hearing, a party must file an
affidavit of opposition in accordance with this subsection. If an affidavit of
opposition to a hearing on a claim for compensation or medical benefits is
filed in accordance with this subsection, the board or its designee will,
within 30 days after the filing of the affidavit of opposition, hold a
prehearing conference. In the prehearing conference the board or its designee
will schedule a hearing date within 60 days or, in the discretion of the board
or its designee, schedule a hearing under (a) of this section on a date
stipulated by all the parties. If the affidavit of opposition is not in
accordance with this subsection, and unless the parties stipulate to the
contrary, the board or its designee will schedule a hearing within 60 days, and
will exercise discretion in holding a prehearing conference before scheduling a
hearing. An affidavit of opposition that is filed under this subsection must
(1) be filed with the board's office nearest
the requested hearing location;
(2)
be filed within 10 days after the filing of the affidavit of readiness for
hearing that is being opposed;
(3)
have proof of service upon the other parties;
(4) list the parties' names and the date of
the affidavit of readiness for hearing that is being opposed; and
(5) state the specific reason, and not a
general allegation, that the case should not be heard, that a party is not
ready, or why a hearing is not appropriate.
(d) If an agreed settlement is reached less
than 14 days before a scheduled hearing and
(1) it conforms to
AS
23.30.012 and
8 AAC 45.160, and is filed with the board at least two
working days before the scheduled hearing, the parties must appear at the
scheduled hearing time to request board action under
AS
23.30.012 on the agreed settlement; if the
board does not approve the agreed settlement, the hearing will proceed as
scheduled; or
(2) it is not in
accordance with
AS
23.30.012,
8 AAC 45.160 and this subsection, the parties must
appear before the board or its designee at the scheduled hearing time to state
the terms of the settlement agreement; after the parties have stated the terms
of the settlement, a request to continue, postpone, cancel, or change the
scheduled hearing may be made in accordance with
8 AAC 45.074; if the board or its designee denies the
request to continue, postpone, cancel, or change the scheduled hearing, the
hearing will proceed as scheduled.
(e) If a settlement is reached more than 14
days before a scheduled hearing, but it is not written and signed by the
parties, and approved by the board, the hearing will proceed as
scheduled.
(f) If the board finds
that a party was served with notice of hearing and is not present at the
hearing, the board will, in its discretion, and in the following order of
priority,
(1) proceed with the hearing in the
party's absence and, after taking evidence, decide the issues in the claim or
petition;
(2) dismiss the claim or
petition without prejudice; or
(3)
adjourn, postpone, or continue the hearing.
(g) Except when the board or its designee
determines that unusual and extenuating circumstances exist, the prehearing
summary, if a prehearing was conducted and if applicable, governs the issues
and the course of the hearing.
(h)
If no prehearing was conducted or if not determined at the prehearing, the
board will provide for opening and closing arguments, including a statement of
the issues, in accordance with
8 AAC 45.116.
(i) At hearing, the board will consider a
legal memorandum only if it is in accordance with
8 AAC 45.114.
(j) If the hearing is not completed on the
scheduled hearing date and the board determines that good cause exists to
continue the hearing for further evidence, legal memoranda, or oral arguments,
the board will set a date for the completion of the hearing.
(k) The board will, in the board's
discretion, permit a member
(1) to attend a
hearing by telephone; or
(2) who
did not attend a hearing before a two-member panel to review the written
record, evidence, and hearing recording and to deliberate with
(A) a deadlocked two-member panel to make a
decision; or
(B) the remaining
member of a two-member panel if, before a decision is filed on a case heard by
a two-member panel, one member dies, resigns from the board, is replaced by the
governor, or the member's term of appointment expires.
(l) Before the member is added to
the panel under (k) of this section, the board will write to the parties,
stating the member's name, and give the parties an opportunity to request the
member's disqualification from the panel in accordance with
AS
44.62.450(c).
Authority:
AS
23.30.005
AS 23.30.110
AS
23.30.135
