Sometimes a worker is injured as the result of an event that also gives rise to a personal injury claim. The most common example is a driver of some sort: parts store runner, pizza delivery guy, or taxi driver. If the driver is involved in an accident while he is working, he is entitled to workers compensation benefits. If the accident was caused by the negligence of a third person, he is also entitled to pursue a personal injury claim against the at-fault driver.
Problems can come up when its time to settle his personal injury claim. He must obtain the consent of his employer or the workers compensation insurance company before he accepts the personal injury settlement. If he does not obtain his employer or the workers compensation insurance company’s consent, then he will have lost all of his workers compensation benefits.
This came up in the case of Atkins v Inlet Transportation & Taxi Service, AWCAC Appeal No 14-011 decided September 26, 2016. Tracy Atkins, a taxi driver, was seriously injured in a head on collision in 2009. He filed a claim for workers compensation benefits. At the time of the accident, his employer was not insured so the workers compensation claim was being pursued against the Alaska Workers’ Compensation Benefits Guaranty Fund.
Neither Mr. Atkins nor his attorney knew about the Alaska statute, AS 23.30.015(h) which required him to obtain written consent prior to settling the claim. In 2011, his personal injury attorney settled his personal injury case without the written approval of the employer.
When the Fund found out he had settled his PI case without written consent, it filed a petition to dismiss his workers compensation claim. The Board dismissed the case. He appealed to the Commission. The Commission agreed with the Board even though the Employer had never participated in the Workers Compensation case and had failed to respond to Mr. Atkins’ attorney attempts to contact them about insurance coverage.
Mr. Atkins could have avoided the outcome had he first sought his employer’s permission to settle the case and then when the employer failed to respond, or he refused to do so, he could have filed a petition to the Board asking the Board to approve the settlement.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 30 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.
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