Section 8 AAC 45.070 - Hearings(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).In effect before 7/28/59; am 5/28/83, Register 86; am 12/14/86, Register 100; am 7/1/88, Register 107; am 3/16/90, Register 113; am 7/20/97, Register 143; am 7/2/98, Register 146; am 3/31/2002, Register 161; am 5/12/2019, Register 230, April 2019; am 7/7/2024, Register 251, October 2024Authority:AS 23.30.005
AS 23.30.110
AS 23.30.135