Reform Alaska's outdated Permanent Totally Disabled (PTD) Workers Compensation laws
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In November of 1999, Jerry Falcone went to work inside the Whittier Tunnel Project. The project was implemented by the State of Alaska to benefit the burgeoning cruise ship industry. Cruise ships are unable to navigate the Cook Inlet into Anchorage proper, and instead had been taking port in Seward, Alaska. By renovating the existing train tunnel, cruise ships could then take port in the small town of Whittier, and through the tunnel, tourists could be shuttled in to downtown Anchorage in less than half the time it took to drive in from nearby Seward.
The project was contracted out to Kiewit Construction of Omaha, Nebraska. The original cost estimate was in the neighborhood of $80 million and was to be completed within 2 years. The Alaska Department of Transportation had even promised the cruise ship companies that the tunnel would be done on time.
Part of the tunnel excavation included increasing the ceiling height and diameter of the existing tunnel through the use of explosives. On the night Jerry entered the tunnel for work, portions of the rock ceiling began to collapse. Boulders ranging from the size of medicine balls to softballs rained down on the workers. Jerry was struck on his lower back by a rock weighing about 40 pounds. It had fallen from nearly 40 feet above him. His spine was crushed by nearly 90%. As rocks and boulders continued to sporadically fall from the ceiling, a quickthinking co-worker drove a piece of heavy equipment over the top of Jerry, straddling him between the machines tracks to protect Jerry from falling debris.
Jerry was not using drugs or drinking. He showed up to work on time, worked hard, and had the admiration of his supervisors and co-workers. He attended safety meetings and paid attention to his surroundings. What Jerry did not know the night he entered that tunnel, was that Kiewit Construction failed to follow safety protocols, and was later fined by OSHA over the incident. In fact, at the time, another employee was embroiled in a dispute over “whistleblowing” when Kiewit fired that employee. The worker claimed that he had informed Kiewit that safety protocols were not being followed. Kiewit was under a significant amount of pressure to complete the tunnel on time, especially considering that the Alaska Department of Transportation had promised the cruise ship companies that it would open on time.
The injury he sustained that night, left him paralyzed from the waist down. Over the course of the next few months, Jerry learned, that due to the extent of his injuries, it was 99.9% certain that he would never regain the use of his legs.
Because of Alaska tort laws which were put in place to control construction costs during the 1970’s Alaska Pipeline Project, Jerry discovered that he could not sue Kiewit Construction. He could not sue, even though they were found by OSHA to be negligent in how they administered safety protocols during the project. It was more important for them to get the tunnel opened on time, so the Alaska cruise ship industry would have their funnel of money right into Anchorage.
Jerry would not get his day in court for what Kiewit Construction did to him. But at least he would have his daily needs met through Alaska Workers Compensation, right?
Due to his injuries, he was forced to move to the Seattle area for rehabilitation and recovery. Over the course of the last 15 years, the challenges for Jerry have been vast. At the time of his injury, Jerry was making nearly $75k per year. After his injury, his weekly compensation was reduced to no more than $700 per week. He has done the best he can do on his limited income to make the most out of his life that he can. $700 per week probably seems like a lot of money to most folks, but not when you are paralyzed from the waist down.
What is perhaps most unfortunate about Jerry’s recovery, is the fact that if his injury had occurred 7 months later, his workers compensation benefits would have been calculated far differently. As you may or may not know, Alaska Workers Compensation benefits were greatly improved for injured workers after July 1, 2000. The problem was, Jerry was injured in November of 1999.
The Alaska Legislature updated the Alaskan Workers Compensation Law to provide workers compensation benefits which were much more reflective of a workers earnings at the time of their injury. However, when the law was passed, thousands of workers who were injured prior to July 1, 2000, saw their benefits remain capped at $700 per week, no matter how much they earned prior, or how extensive their injuries. The timing of such injuries is no one’s fault. We understand that laws have specific dates and we also understand the necessity of such things. Every human being who has heard these type of stories readily sympathizes with Jerry and others like him.
We all understand the law is the law, but perhaps the time has come to make a change that will treat all injured Alaskan workers with equally.
Now, nearly 15 years later, many of the workers under the old law have returned to work or passed away. But many who are still receiving benefits under the old law, are not doing so because they choose not to work. They are doing so because their injuries were so significant and life altering, that they are permanently, and totally disabled. These workers typically face greater expenses than other injured workers.
For example, Jerry’s electric bill alone has increased over $200 per month simply because he is no longer able to use a manual wheelchair and must use an electric one which must be recharged daily. Simple tasks like car maintenance, home maintenance, grocery shopping and other perfunctory tasks are significantly more difficult, and in the end, more costly as result of his injury.
Recently, the insurance company representing Jerry’s former employer attempted to settle Jerry’s claim. The essentially asked that he agree to no more than $700 per week for the rest of his life, no cost of living adjustments, nothing. In fact, they argued, that if he didn’t agree, that they would claim that he has been getting “overpaid” over the last 15 years because he moved out of Alaska where the cost of living is lower, and that they would reduce his weekly pay by 20% until they recouped their money. This, of course, was nothing more than a strong arm tactic meant to get him to take less than he deserves.
Jerry refused to bend on his principles. What happened to him 15 years ago in that tunnel was not his fault. He would in no way agree with the insurance company, that what happened to him was worth $700 per week.
He refused their settlement offer.
Now, Jerry has started a campaign to reform Alaska Workers Compensation Laws for Permanently Totally Disabled Workers.
We believe that the time has come for Alaska to treat ALL injured Alaskan workers consistently, regardless of when their injury occurred. We are asking that the Alaskan statute which governs the current Workers Compensation benefits be changed so workers who are classified as Permanently Totally Disabled (PTD) no longer have their maximum indemnity benefits capped based on “the year of their injury,” but on the current year.
We want to be clear, we are not asking that these workers receive “back compensation” at the higher rate.
This change would allow PTD injured workers, like Jerry Falcone, to receive just compensation that is reflective of current wages. Wages they are missing out on, due to their life altering PTD status. This change would improve the lives of those workers who most desperately need the change. Workers, whose numbers are now only in the hundreds. We are calling this movement: “Fair and Equal Standards for Permanently Totally Disabled Alaskan Workers.”
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