Employee Wins Again!

The Employee won her case again in Lena v Fred Meyer Stores, (Lena II), Decision and Order 17-0072 issued June 26, 2017. Lena II

This wasn't Lena's first trip to the Board, nor was it her first win. In fact, she had previously won Lena v Fred Meyer Stores, (Lena I) Decision 16-0135 issued Dec. 30, 2016. Lena I.

In Lena I, Fred Meyers had used every defense available to an Employer and lost all of them. The Board ordered that her injury was a workers compensation injury and she was entitled to time loss and medical benefits.

When the Board finds that a claim is compensable, the Employer must pay all benefits due no later than 14 days following the Board’s decision. However, although the Employee won her case on Dec. 30, 2016, no benefits were paid by Fred Meyers until long after the 14 days passed.  Because the benefits had not been paid, a claim was filed on her behalf for payment of the benefits plus penalties and interest. After the claim was filed, Fred Meyers paid some, but not all of the benefits owed.

In the new decision, Lena II, the Board ruled that the Employee was entitled to a 25% penalty on her temporary total disability, temporary partial disability and late-paid and unpaid medical benefits.  Three of the Board’s rulings are particularly noteworthy.

First, Fred Meyers claimed that it did not owe medical benefits until received a HCFA bill and matching chart note from the physician. A HCFA bill is a particular form that providers use when billing insurance companies. The Board held that there is no such requirement under the Act. Because the Employer had been provided with chart notes and bills that had been sent to the Employee or billing statements generated by the providers, it had enough information to trigger its duty to pay. And when it did not pay on time, it owed 25% penalty plus interest to the providers. Lena II, pgs 21-22.

Second, the Employee had paid the providers directly to obtain medical treatment when Fred Meyers controverted her.  She paid at the rate charged to individuals, which is ironically higher than group insurance or workers compensation or Medicaid or Medicare pays. Fred Meyers claimed that because it was only required to pay for the treatment at a reduced rate according to Alaska Workers Compensation law, it was entitled to pay the provider and then the Employee could fight it out with the provider as to how much she was entitled to get back.

The Board ruled that was unfair. When an Employee pays the provider directly, s/he is entitled to be reimbursed in full directly from the insurance company. Because Fred Meyers did not reimburse her, or reimbursed her late on some of the bills, she was entitled to 25% penalty plus interest. Lena II, pgs 23-24.

Third, the Board ruled that the defenses raised by Fred Meyers were unfair and frivolous, which in turn could result in a referral to the Division of Insurance for investigation. Each of the three defenses raised by Fred Meyers was found to be “incorrect”. First, Fred Meyers claimed that it didn’t have the chart notes and bills from a certain provider until January of 2017. That wasn’t true. It had those chart notes and bills in 2016. Second and third, it claimed that the payment pursuant to the Lena I was not due until 14 days after the decision and that penalties were not due for an additional 14 days after that. That is not the law.

When the Board renders a decision, the benefits must be paid 14 days after the decision’s date. If the payment is mailed even one day late, there is a 25% penalty that must be paid. And, that penalty is to be paid with the benefit payment.  The Employee should not have to file a claim to collect it.

Keenan Powell has practiced law in Alaska for more than 30 years and has dedicated her practice to Workers Compensation representing injured Alaskans.

All consultations are free.  If you want to set up a meeting, use the contact form on www.keenanpowell.com or call:  907 258 7663.




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