Insurance companies routinely set the compensation rate (the amount you are paid) for an injured worker by relying upon the workers’ income records from two years prior to the injury. It’s legal, but is it fair?
The answer is: it may not be fair to you. And you may be entitled to seek an increase in your benefits.
But Is It Fair?
When is it not fair to look at past income? When the injured worker’s current income or future income is greater.
That’s because the purpose of disability benefits is to compensate the injured worker for the wages he is losing while he is disabled, which can be more than he was making in the past two years.
A Recent Case: Injured Worker Received an Increase in Compensation Rate
Recently, the Alaska Workers Compensation Board issued a decision in the case of Geerhart v Yukon Kuskokwim Health Corp, Dec. 23-0020 (April 4, 2023). The employee was a nurse who was injured while lifting a patient. She had just completed nursing training the year before. While she was in school, she didn’t work one year, and worked as a flagger one summer, earning significantly less than she earned as a nurse.
Alaska National Insurance Company used her flagging income to calculate her disability benefits. As a result, it paid her $308 per week, far less than she lost when she was off work recovering from her injuries.
After a claim was filed, the insurance company, represented by Jeffrey Holloway, voluntarily raised the compensation rate to $1,1125.25 per week, which still did not reflect her loss of income.
The Board ruled that both the $308 rate and $1,1125.25 rate were irrational. It increased the compensation rate to the legal maximum, $1298 per week.
The Board ruled:
There is no better evidence of what Employee lost than actual wages she was making when she became disabled and continues to make, as she still works for the Employer.
Kvernik v The Ohio Casualty Insurance Co. AWCB Dec. No 22-0001 (January 3, 2022)
The Employee injured his calf muscle and Achilles’ tendon while pushing a heavy pallet up a ramp at work. He had surgery to repair the tendon.
The insurance company underpaid temporary total disability (TTD) when it did pay, paid some TTD late, and failed to pay TTD for 12 weeks. It also failed to reimburse for travel expenses incurred to visit his doctor and medical costs the employee was required to pay out-of-pocket.
A claim was filed for an increased compensation rate, payment of unpaid TTD, payment of medical and transportation costs, interest, penalties, and unfair/frivolous controversion.
The Board held that the insurance company’s failure to pay TTD, failure to reimburse for medical and transporation costs, and failure to pay penalties and interest when it late-paid certain benefits was an unfair or frivolous controversion. It ordered that a referral would be made to the Division of Insurance for investigation. Additionally, the Employee won all the benefits he sought.
Employee won!
Guerrissi v State of Alaska AWCB Dec. No 22-0020 (March 23, 2022)
The Employee injured his neck and left shoulder while standing on a ladder, working with his arms overhead, when he turned his head. The doctors diagnosed a rotator cuff tear, SLAP tear, and a cervical disc herniation.
He had neck surgery to repair the herniation. He then had another surgery to repair the shoulder injuries.
After his surgeries, the State sent him to Dr. David Glassman for a “independent” medical evaluation. Dr. Glassman’s opinion was that neck was not injured at work and the shoulder injury was due to degenerative changes.
The State controverted all benefits, relying on Dr. Glassman’s report. The Employee filed a claim.
After two SIME (second independent medical evaluations) – one with a neck specialist and one with a shoulder specialist, the case went to hearing.
The Board ruled:
1. The need for medical treatment for the cervical spine was work-related.
2. The need for medical treatment for the shoulder was work-related.
3. The State was required to reimburse him for medical treatment and transportation costs.
4. The State was required to pay the Employee PPI ratings.
5. The Employee was entitled to penalties and interest for unpaid benefits.
Employee won!
Torres v Zurich American Insurance Co. AWCB Dec. No 22-0021 (March 24, 2022)
The Employee, a roofer, injured both shoulder when he was tearing off a roof. He experienced pain and weakness in both shoulders immediately. He tried physical therapy and when that didn’t improve his condition, he decided to go forward with recommended surgeries. He has not been able to work since the injuries.
The insurance company sent him to Dr. Scot Youngblood for an “independent” medical evaluation. As Dr. Youngblood so often opines, he stated that the Employee’s shoulder injuries were degenerative.
The insurance company controverted benefits, cutting of his medical and disability benefits.
The Employee filed a claim. After a SIME(second independent medical evaluation), the case went to hearing.
The Board ruled:
1. The need for shoulder surgeries was work-related and it ordered the insurance company to pay for both of them,
2. The Employee’s disability was work-related. The Board ordered the insurance company to pay for TTD benefits from the time it was cut off until he recovered from his surgeries.
3. The Employee was entitled to transportation costs for visiting his providers,
Employee won!
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com
All consultations are free. To make an appointment (in person, telephonic, or zoom), email: keenan@keenanpowell.com or call: 907 258 7663.
Employees have no duty to cooperate with a nurse case manager sent by the insurance company.
Think of the nurse case manager as an insurance adjuster with a nursing degree because that is what she is. Her job is to minimize the medical benefits paid for an injured worker. She looks for evidence that the injury may not be work-related in an effort to defeat medical benefits.
Cozy Nurse-Doctor Relationship
In Freeman v ASRC, AWCB Decision No 15-0073 (6/26/15). the nurse case manager directed the injured worker from one physician to another with whom she had an established professional relationship - a relationship so cozy that the doctor signed letters that had been written by the nurse as if he had written them himself. The real reason the nurse sent the employee to that doctor was not because she was trying to secure good medical treatment from him but because she was hoping her favorite doctor would say the surgery wasn't needed or that it wasn't work related.
Under the Freeman case, the nurse case manager has a legal duty to inform the injured worker :
of her role, of the adversarial nature of workers compensation (i.e. she is working against him),
his right to decline her assistance
and the possibility and likelihood that the insurance company's and the worker's interest may someday diverge.
If the nurse case manager you're working with hasn't disclosed all this to you got to wonder what's going on.
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. A sample of verdicts she has obtained for Employees is found at http://www.keenanpowell.com/past-verdicts-settlements.
All consultations are free. To set up an appointment, use the contact form on this website or call: 907 258 7663.
The Alaska Workers Compensation Divisions’ 2021 Annual Report (released on October 24, 2022, but not yet posted online) shows alarming trends for injured workers.
The Alaska Workers Compensation Divisions’ 2021 Annual Report (released on October 24, 2022, but not yet posted online) shows alarming trends for injured workers.
More Controversions
There were 3,605 total controversions filed in 2021, a 24.9% increase from 2020. Contoversions is the formal process by which insurance companies deny benefits to injured workers. This number does not include all the cases in which the insurance companies fail to report the benefits that were denied or withheld.
More Aggressive Legal Tactics
While insurance companies paid employee attorneys less in 2020, they paid their own attorneys more – another factor that would explain increased profits. Employers paid employees attorneys 4.3 million, a 30.8% decrease from 2020. Employers paid their own attorneys 7.2 million, a 11.86% increase from 2020.
Employees Fighting Back Less
The statistics suggest that employees are fighting back less than in previous years. There were 678 claims for benefits filed in 2201, a 6.7% decrease from 2020.
There were 161 hearings in 2021, decreased from 188 hearing in 2020 and 225 hearing in 2019. That’s a 28% decrease in hearings over those two years. The decrease in payment of employee attorney fees supports this conclusion.
Less Benefits = More Insurance Profits
Not surprisingly with the increase in controversions, insurers saved more in profits. Total benefits paid in 2021 were 188.2 million, a decrease of 8.28% from 2020.
Follow the Money
The reason insurance companies deny injured workers benefits is to improve their profits. The aggressive use of insurance attorneys coupled with increased controversions have led to increased profits.
What Are Your Rights? Find Out Now
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com
All consultations are free.
To make an appointment (in person, telephonic, or zoom), email: keenan@keenanpowell.com or call: 907 258 7663.
The Workers Compensation Insurance Company Has the Right to Request an IME.
The law is clear. The insurance company is entitled to schedule IMEs (so-called “independent medical evaluation”). But the IME must be done at a reasonable time. If you’re out of state or cannot attend the scheduled IME for some other reason, contact the insurance company immediately in writing and ask them to reschedule the exam.
Do You Need to Collect Medical Records for the IME Doctor?
There is nothing in the law that says you do. The IME is the insurance company’s expert and it is their responsibility to provide him with all the records he needs. The insurance company should have been collecting your records since shortly after you were injured.
Why Does the Insurance Company Want an IME?
There are several reasons the insurance company might want an IME and they all boil down to: the insurance company is looking for excuse not to pay your benefits. Some of the typical questions they will ask their “independent” doctor are:
Are you really injured?
Is the work injury the cause of medical treatment?
Is the work injury the cause of disability?
Can the injured worker go back to work?
Does the injured worker need future medical treatment?
Does the injured worker have a permanent impairment?
Where Do Insurance Companies Find IME Doctors?
They have two sources. If the IME doctor is practicing in Alaska, be aware. He’s working both sides of the street: giving insurance companies the opinions they want (and getting paid) and treating injured workers (and getting paid). The common denominator here is the doctor is getting paid by the insurance companies and that is where his loyalty lies.
Otherwise, there are staffing agencies that provide doctors for “IME” evaluations. Here are some of those companies in Alaska cases:
You should. If the insurance company wanted to continue paying your benefits, it wouldn’t have scheduled an “IME.” There is nothing “independent” about these evaluations. The insurance companies have established relationships with the evaluators. They pay these doctors, many of whom are retired, lots of money. And the insurance companies are shopping for a particular opinion, one that is favorable to them and unfavorable to the injured worker.
What Should You Do?
You need to go to the appointment.
If they get the opinion they want, they will immediately cut off your medical benefits, your disability benefits, or both. And then you'll be scrambling to collect your records. Don't wait.
Meanwhile you should be collecting a complete set of your medical records. You will need them to fight for your rights if the insurance company controverts your case. That means contacting every provider that saw and asking their records department for all you records. You are legally entitled to these records.
Why Bother Fighting?
Because the insurance companies lose these cases all of the time. Most often, they lose because the Alaska Workers Compensation Board decides the so-called “IME” doctor was wrong. For a list of cases employees won, check out:
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com
All consultations are free!
To make an appointment (in person, telephonic, or zoom), email: keenan@keenanpowell.com or call: 907 258 7663.
When You Need to Call a Workers Compensation Lawyer
Don't wait to call a Workers Compensation Lawyer! You need to know your rights before you are controverted. It is important to be prepared as early as possible in case you need to fight for your rights.
When to Call a Workers Compensation Lawyer
If the insurance company is not paying you a fair temporary total disability rate,
If the insurance company scheduled an examination with their doctor, the so-called "independent medical evaluation,"
If you need to reschedule the insurance examination because you can't attend it,
If the insurance company sends you a Controversion Notice (see below),
If the insurance company refuses to pay your medical benefits,
If the insurance company is late paying your disability benefits,
If you are being evaluated for reemployment benefits (retraining),
If the insurance company claims your case is closed,
If the insurance company makes an offer to settle your case,
If you have any questions.
What Are Your Rights? Find Out Now
Call now! (907) 258-7663
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com
David Bauer MD is one of the go-to insurance experts in workers compensation cases. I’ve blogged about him before – a lot. For more posts about this doctor, see below.
Here are three recent decisions from the Alaska Workers Compensation Board where Dr. Bauer’s opinion was rejected.
In May of 2019, the Employee injured his right ankle. He was diagnosed with a partial tear of his Achilles tendon. He was given physical therapy and fitted with a boot.
Enter Dr. Bauer
The State sent the injured worker to Dr. Bauer who said there was no tear of the Achilles and only a longstanding, chronic condition of a degenerating Achilles tendon. Further he stated that the work event was not the substantial cause of the conditions or symptoms and that he did not need surgery. After Bauer’s report, the Employee continued physical therapy.
The Employee Filed a Claim
In response, the state controverted (cut off) his benefits.
The Board Ruled
That Dr. Bauer’s report conflicted with the evidence and his own report. Whereas at one point he said there was no injury, he also stated that the past treatment was reasonable and necessary for an acute aggravation and increase in symptoms. And whereas his report said there was no Achilles tear, he testified there was a tear.
The Board gave Dr. Bauer’s opinion very little weight because his report and testimony conflicted with themselves, other medicine, and the prevailing law on the aggravation of pre-existing conditions.
On May 1, 2020, the Employee was assaulted by a coworker. His neck was injured. He was given physical therapy and his pain did not improve.
On June 25, 2020, a surgeon recommended discectomy and fusion for his neck. He was given a preoperative exam.
Enter Dr. Bauer
Just before the surgery was to be done, Liberty sent the injured worker to Dr. Bauer on July 9, 2020. He diagnosed “symptoms out of proportion to objective findings.” He did not recommend additional medical treatment for the work incident.
Liberty controverted (cut off) benefits relying upon Dr. Bauer’s report.
On August 5, 2020, the injured worker had neck surgery.
The Employee Filed a Claim
On September 1, 2020, his doctor’s examination showed that he had none of the symptoms prior to surgery.
The Board Ruled
Again, the Board found Dr. Bauer’s report and testimony provided conflicting evidence, did not comport with the overall medical records, and was unclear about the Alaska law regarding acceleration and aggravation of preexisting conditions. The Board particularly criticized Dr. Bauer because he stated there were no new symptoms following the assault but the hospital records showed rapid symptom onset.
The Employee was given chiropractic treatment at work, after which he developed significant back pain which radiated down his left leg. An MRI showed a disc protrusion at L3-4. He was given physical therapy.
Enter Dr. Bauer
On June 5, 2020, the insurance company sent the injured worker to Dr. Bauer. Dr. Bauer diagnosed a lumbar strain as the result of the chiropractic treatment. He stated there was no radicular pain or other condition that would require invasive treatment. The insurer denied benefits relying upon Dr. Bauer’s report.
The Board’s doctor agreed with the Employee’s doctor that the chiropractic treatment had caused the disc protrusion.
The Board Ruled
The Board gave Dr. Bauer’s opinion little weight because of his failure to acknowledge and explain the disc herniations and the Employee’s lack of pain prior to the work event.
Employee won!
The Pattern
A pattern is forming!
An Employee suffers a permanent life-changing injury.
The insurance company hires Dr. Bauer who ignores the medical records and denies there was an injury.
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com
All consultations are free. To make an appointment, email: keenan@keenanpowell.com or call: 907 258 7663.
Scot Youngblood MD is one the go-to insurance experts in workers compensation cases. I’ve blogged about him before – a lot. For more posts about this doctors, see below.
Here is a unique decision regarding an evaluation by Dr. Youngblood, the case of Williams v Employers Insurance Co of Wausau, Dec. No 21-0106 (November 19, 2021). You can read the decision here: D&O 21-0106.pdf (alaska.gov)
Employee Injured at Work
On November 18, 2020, the Employee reported to his doctor that he injured himself at work lifting and twisting. His job required him to repackage six to seven pallets of soda per day. Each pallet had 81 cases. Each case had two 12-packs. He would bland three cases weight 62 pounds and stack them onto pallets about 54 times a day.
Insurance Company Hired Dr. Youngblood
An MRI revealed a disc protrusion. On March 19, 2021, he was evaluated by Dr. Youngblood upon the Employer’s request. He did not look at the MRI. Regardless he diagnosed a lumbar strain with excessive subjective complaints caused by “age, genetics, and the industrial accident.” It was his opinion that the Employee was medically stable three months after his injury, needed no further treatment, and was clear to return to full duty.
On April 16, 2021, the insurance company denied all benefits based upon Dr. Youngblood’s report. On that same day, he was seen by Dr. Fix who diagnosed a L4/5 disc herniation and recommended a partial discectomy.
Employee Filed Claim
On April 27, 2021, he filed a claim with the Alaska Workers Compensation Board. It went to hearing on November 19, 2021. The Employee’s three physicians agreed that his injury was caused by work. Before November 18, 2020, he did not have radiculopathy (pain running down one leg). An MRI after the event showed a herniated disc. He needed surgery. However, Dr. Youngblood was the lone voice who opined that his condition was merely a strain, had resolved, and did not require future treatment.
The Alaska Workers Compensation Board’s Decision
The Board gave the treating physician’s testimony the greatest weight because they had physically examined the Employee, reviewed the MRI, considered his complaints before giving the radiculopathy diagnosis. They all agreed that his job caused his need for medical treatment and disability, that he was not medically stable, and needed back surgery.
The Board was critical of Dr. Youngblood because he merely conducted a chart review, did not personally examine the Employee, and never looked at the MRI. Dr. Youngblood’s excuse for not looking at the MRI was that he was in a busy clinic and it was the adjuster’s job to provide the MRI to him. The Board held “MRIs are essential in determining muscoskeletal issues.” Further it held “Dr. Youngblood’s commitment to provide an accurate medical opinion is questionable, his opinion is given no weight.”
The Board awarded the Employee temporary total disability (TTD) benefits, medical benefits, and travel benefits.
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com
All consultations are free. To make an appointment, email: keenan@keenanpowell.com or call: 907 258 7663.
On March 24, 2022, an injured worker won his case. Then Alaska Workers Compensation Board issued a decision in the case of Torres v Zurich American Insurance Co and Northern Adjusters, AWCB Dec. No. 22-0021: D&O 22-0021.pdf (alaska.gov)
Work Injury
Facts: The employee injured both shoulders while working as roofer, clearing off a roof. When he realized the pain and weakness was not going away, he went to the doctor and reported the injury to his employer. MRIs showed that he had tears in both shoulders.
At first, physical therapy was recommended. When it did not improve his pain and function, his physician recommended surgery.
Enter Dr. Scot Youngblood
That is when the insurance company, Zurich, hired an “independent” medical evaluator, Dr. Scot Youngblood, who wrote a report stating that the SLAP tears were the produce of age-related degeneration and that the tears were not the result of the employee’s work activities. For more information on Dr. Youngblood, see: "Independent" Evaluations: Scot Youngblood, MD - Keenan Powell, Attorney at Law
The insurance company, represented by Jeffrey Holloway of Babcock, Holloway, Caldwell and Stires, controverted the claim. It cut off medical benefits so the doctors wouldn’t get paid and the surgeries could not go forward. They also cut of the employee’s disability benefits.
The Board’s doctor said the shoulder injuries were work-related, the employee was disabled from the injuries, and he needed surgery.
The case went to hearing on February 17, 2022. Afterwards, the Board issued the Final Decision and Order which held, amongst other things the Employee was entitled to an order finding work is the substantial cause of his need for bilateral shoulder medical treatment and disability.
What Are Your Rights? Find Out Now!
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com
All consultations are free. To make an appointment, email: keenan@keenanpowell.com or call: 907 258 7663.
The Workers Compensation Case, Guerrissi v State Dec. No 22-0020
On February 13, 2019, the Employee injured his neck and left shoulder at work. He say his physician the next day because of his neck pain and numbness in his shoulder radiating into his hand. After evaluations by a number of doctors, he had neck surgery, a discectomy and fusion, for a herniated disc. He then had surgery on his shoulder.
Enter The Hitman: Dr. David Glassman
On September 7, 2019, the Employer sent him to Dr. David Glassman, an orthopedic surgeon for an employer’s medical evaluation (EME). (Employers wrongly refer to these as “independent” medical evaluations.) Dr. Glassman works at the Navy hospital along side a long-time insurance defense expert, Dr. Scot Youngblood. For more on Dr. Youngblood, see: "Independent" Evaluations: Scot Youngblood, MD - Keenan Powell, Attorney at Law.
Not surprisingly, Dr. Glassman issued a report that stated all of the Employee’s problems were pre-existing, that he had a temporary aggravation of neck pain because of the work injury which had resolved, and that neither surgery was the result of the neck injury. As a result of the report, the Employer controverted all benefits including medical.
The Employer opposed a SIME evaluation. So the case went to hearing the first time. The Alaska Workers Compensation Board ordered a SIME over the Employer’s objection. Guerissi v State, Dec. No 20-0013 (3/16/20): D&O 20-0013.pdf (alaska.gov)
The Employee was seen by Dr. Bruce McCormack for his neck issues and Dr. John Lane for his shoulder issues. Both doctors agreed this his injuries were work-related and his surgeries were reasonable and necessary.
The Board's Decision: Employee Wins!
The case went to hearing on November 4, 2021. The Board ruled in favor of the Employee, specifically finding:
1. The February 13, 2019, work injury is the substantial cause of the Employee’s need for medical treatment for his cervical spine and left shoulder,
2. The Employee is entitled to medical and transportation benefits including all his out-of-pocket expenses, plus interest,
3. The Employee is entitled to PPI benefits,
4. The Employee is entitled to interest and penalty,
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com
All consultations are free. To make an appointment, email: keenan@keenanpowell.com or call: 907 258 7663.
