Gillion v Berkshire Hathaway D&O 17-0089 was issued on 7/31/17. In this case, the Employer disputed whether the Employee’s back injury was work-related right up until the morning of the hearing at which time the defense firm, Holmes, Weddle & Barcott, conceded that the injury was work-related. This happens more than one would expect.
The concession came after more than a year of intense litigation and the Employee was made to visit the insurance company’s doctor and fly out of state to visit the Board’s doctor (the Second Independent Medical Evaluation or SIME).
One of the issues, which I’ve seen in other cases, is that the insurance company failed to mail the Employee a per diem check prior to the SIME appointment. Under the law, the Employer is obligated to provide the Employee with sufficient funds before the trip to purchase meals and pay for incidentals in addition to providing transportation and hotel. Alaska law is very clear that the Employee shall not bear the cost of the evaluation.
Another issue was the Employee missed three days of work to attend the SIME. Working people cannot afford to take three days off to attend medical appointments because they are trying to enforce their rights after being wrongfully denied workers compensation benefits.
A third issue highlighted by this case was the Employer underpaid the amount of TTD when the Employee missed work right after the injury, thus forcing him to go back to work too soon against doctor’s orders. The Employer calculated the compensation rate twice and was low both times.
In the decision, the Employee won the issue of work-relatedness (causation and compensability), medical benefits, back temporary total disability (TTD) for the periods of time he missed work due to his injury, a compensation rate increase and penalties and interest on underpaid compensation as well as late-paid per diem to attend the Board’s Second Independent Medical Evaluation (SIME). However the Board neglected to rule upon the Employee’s request for travel and denied TTD for the work he missed to attend the SIME.
The Employee filed a petition for reconsideration which was ruled upon 10/16/17, Gillion v Berkshire Hathaway D&O 17-0120. In that decision, the Board admitted that it overlooked the travel and misapplied the law as to TTD. It ruled in his favor and awarded him travel benefits as well as three days of missed work to attend the SIME.
There are still a number of issues to be resolved in appeal. Stay tuned.
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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