Author: Keenan Powell

Sometimes an employer will try to avoid Workers Compensation benefits by claiming that his employee is not really an employee but an independent contractor instead. It’s happened so many times that a regulation was adopted by the Department of Labor and several cases have come down the pipes on the issue.

The “relative nature of the work test” was “put to the test” in the case of Misyukv Shastitko, AWCAC Decision No 202 (11/4/14). In that case, a long distance truck driver died in a trucking accident. His employers claimed he was an independent contractor and so his widow and orphans were not entitled to workers compensation benefits.  The Board found the trucker was an employee and the commission affirmed the decision based upon the following reasons:

1. There was a express oral contract by which the trucker was hired as a regular driver for the trucking firm,
2. The trucker did not have his own truck and he drove exclusively for the trucking firm,
3. The trucker had no authority to hire or fire other employees,
4. The trucker did not pay anyone else to help him,
5. The trucking company exercised control over how the deliveries,
6. The firm provided the truck and a company credit card for fuel. It also paid for liability insurance on the truck and provided for maintenance and repairs,
7. The trucker was paid bi-weekly, instead of by the job,
8. Trucking was the regular part of the employer’s business,
9. The trucker worked exclusively and consistently for the trucking firm,
10. The employment was continuous.

This is what the “relative nature of the work” test says:

8 AAC 45.890. Determining employee status

For purposes of AS 23.30.395(19) and this chapter, the board will determine whether a person is an “employee“ based on the relative-nature-of-the-work test. The test will include a determination under (1) - (6) of this section. Paragraphs (1) and (2) of this section are the most important factors, and at least one of these two factors must be resolved in favor of an “employee“ status for the board to find that a person is an employee. The board will consider whether the work

(1) is a separate calling or business; if the person performing the services has the right to hire or terminate others to assist in the performance of the service for which the person was hired, there is an inference that the person is not an employee; if the employer

(A) has the right to exercise control of the manner and means to accomplish the desired results, there is a strong inference of employee status;

(B) and the person performing the services have the right to terminate the relationship at will, without cause, there is a strong inference of employee status;

(C) has the right to extensive supervision of the work then there is a strong inference of employee status;

(D) provides the tools, instruments, and facilities to accomplish the work and they are of substantial value, there is an inference of employee status; if the tools, instruments, and facilities to accomplish the work are not significant, no inference is created regarding the employment status;

(E) pays for the work on an hourly or piece rate wage rather than by the job, there is an inference of employee status; and

(F) and person performing the services entered into either a written or oral contract, the employment status the parties believed they were creating in the contract will be given deference; however, the contract will be construed in view of the circumstances under which it was made and the conduct of the parties while the job is being performed;

(2) is a regular part of the employer's business or service; if it is a regular part of the employer's business, there is an inference of employee status;

(3) can be expected to carry its own accident burden; this element is more important than (4) - (6) of this section; if the person performing the services is unlikely to be able to meet the costs of industrial accidents out of the payment for the services, there is a strong inference of employee status;

(4) involves little or no skill or experience; if so, there is an inference of employee status;

(5) is sufficient to amount to the hiring of continuous services, as distinguished from contracting for the completion of a particular job; if the work amounts to hiring of continuous services, there is an inference of employee status;

(6) is intermittent, as opposed to continuous; if the work is intermittent, there is a weak inference of no employee status.

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.

All consultations are free.  To make an appointment, use the contact form on this website or call:  907 258 7663.

 

In my case,Williams v McDonalds, the Alaska Workers Compensation Board handed down a decision yesterday: Williams D&O 15-0116.  It's 75 pages long so I'll summarize: The Employee won!

The Board made several rulings, the most important is that the old "pre-existing condition" defense used by the Employer to refuse benefits was invalid. The Board ordered the Employer to pay all back temporary total disability benefits plus penalties and to immediately start paying medical benefits, including a needed back surgery.

In this case, the Employee had an injury and back surgery in 1987. For the following 27 years, he worked hard and had absolutely no back pain other than normal strains. In 2014, he slipped on ice and fell, injuring his back again. The 2014 employer claimed that his injury was "preexisting" because of the 1987 injury.

The Board ruled the 2014 injury was not preexisting because the Employee had no pain complaints in the 27 years before the 2014 injury and he had not seen a doctor from the time he recovered from the 1987 surgery until the 2014 fall.

Keenan Powell has more than 30 years experience fighting for the rights of injured Alaskans. Currently accepting new cases.

Consultations are FREE.  Call 258-7663. 

"If it isn't documented, it didn't happen," a nurse said to me in a deposition once. Documentation is the very heart of evidence. And proof of documentation is even more important. It doesn't matter if you prepared a travel reimbursement log if you don't give it to the insurance company. And it won't matter if you can't prove you gave it to them. Because guess what? They lie.

An insurance defense attorney lie to my more than once in a case about proof she claimed she never received. She lied to my client before I entered the case. She lied to me when entered the case. She lied to the Board when I filed a motion demanding she produce the documentation. And then just weeks before the trial, she produced the documentation I had asked for. It had been in her file for almost a year.

She lost the case. I won.

So if you need to send the insurance company anything, keep proof that you sent it. If you fax it, keep a fax confirmation sheet and staple it to the fax you sent. If you mail it, send it certified mail. If you hand deliver it, demand that the secretary sign and date your copy.

Keenan Powell has more than 30 years experience fighting for the rights of injured Alaskans.

Consultations are FREE.  Call 258-7663. 

 

After a Claim or Petition is filed, the Alaska Workers Compensation Board will send a letter to all the parties notifying them that a prehearing has been scheduled.  The purpose of the prehearing is to get everyone in the same room at the same time and make sure that they are all on the same page. The purpose of the prehearing is NOT to settle the case or for the Board to make a decision regarding the merits of the case. However if the Board designee (the prehearing officer) will make decisions regarding discovery issues, such as the propriety of releases.

The kinds of things that will be discussed can include: scheduling depositions, scheduling a hearing date for the Claim or Petition, scheduling an employer independent medical examination or a second independent medical evaluation, and the discovery issues.

After the prehearing, the Board designee will issue a Prehearing Conference Summary and mail it to all the parties. The summary will include notes about everything that was discussed, what was agreed upon, any decision the Designee makes and whether further hearings or prehearings have been scheduled. It is imperative that an unrepresented employee read the summary and understand it because there will also be information about deadlines and the statute of limitations.

Keenan Powell has more than 30 years experience fighting for the rights of injured Alaskans.

Consultations are FREE.  Call 258-7663. 

When an insurance company sends you a Controversion Notice that means they will stop paying whatever benefits are listed.  The insurance company is required to list the reasons why it won’t pay those benefits anymore.  Usually the insurance company will controvert temporary total disability and medical benefits based upon the opinion of an insurance doctor.

If you think the insurance company is wrong, there is something you can do.  You can file a Claim with the Alaska Workers Compensation Board. The Board will ultimately decide in a hearing (it’s like a trial) whether the insurance company was right or wrong. If you win, you may receive past benefits, cash payments to you if you’re entitled to any, past medical bills. You might also get an order from the Board that the insurance company needs to pay for future medical benefits, like a specific surgery that you need.

There a many kinds of benefits that can be controverted and that can be claimed and that the Board will decide: reemployment benefits, travel benefits, permanent partial impairment benefits, permanent total disability.

If you have been controverted, you should talk to an attorney about your case. I have more than 30 years experience fighting for the rights of injured Alaskans.

Consultations are FREE.  Call 258-7663. 

 

When you call attorneys about a workers compensation case, the first thing they ask you is whether you have been controverted.  The first reason is that as long as you’re being treated fairly by the insurance company, you don’t need an attorney. The second reason is getting your attorney paid.

When the attorney’s office asks you “have you been controverted?”, you need to know there are two kinds of controversions: the first kind is when the insurance company sends you a formal Controversion Notice.  It looks like this: Controversion Notice.

The second kind of controversion is sneakier.  It’s when the insurance company fails to pay your benefits timely or verbally tells you it isn’t going to pay your benefits but fails to issue the Controversion Notice.  This kind of controversion is called controversion-in-fact.

So when you answer the question “have you been controverted?” tell the attorney’s office whether you have received a formal Controversion Notice or, if not, whether you have had problems getting your benefits timely paid: whether your TTD or TPD has been paid timely, whether you are receiving medical treatment or if the insurance company is dragging its feet authorizing your medical treatment.

If the insurance company has controverted you wrongfully, then you should have no problem getting an attorney to represent you in a claim because if your case is won or settled, the insurance company will pay your attorneys fees.

If you have questions about your workers compensation claim, call my office.  I have more than 30 years experience fighting for the rights of injured Alaskans. Consultations are FREE.  Call 258-7663.

 

 

 

Do you want to know what the Alaska Workers Compensation Board is thinking? Maybe you went to hearing in your case and you're impatient for the result.  Well, the Board posts all of its decisions on line. You'll find your decision there before it comes to you in the mail.  Just go to the Board's website search engine: http://appeals.dol.alaska.gov/SearchRoot/workerscomp/. You can search by name or by date. Easy, peasy.

 

When you are injured at work, you are required to inform your employer. Your employer is required to inform its insurance carrier. The carrier is required to file a notice with the Alaska Workers Compensation Board (AWCB).

The AWCB maintains records of all reports of injury. It also acts as an administrative tribunal, like a court, when there is a dispute between the Employee and Employer or Insurer relating to the workers compensation injury. The AWCB does not have the power to adjudicate complaints that fall outside of the act, such as discrimination or work hazards.  There are other agencies who handle those issues.

The AWCB published the attached brochure explaining basic rights and responsibilities under the Alaska Workers Compensation Act: wc-brochure.

The AWCB maintains a website where more information can be obtained. http://labor.state.ak.us/wc/home.htm.

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.

All consultations are free.  To make an appointment, use the contact form on this website or call:  907 258 7663.

 

 

On July 22, 2015, the Alaska Workers Compensation Board issued a decision in Marquez v Sunset Haven, AWCB Decision No. 15-0086 awarding the Employee all of the benefits she requested!

The decision can be found at the Board's site: http://appeals.dol.alaska.gov/docs/workerscomp/2015/15-0086.pdf

Flordeliza Marquez was working as a personal care attendant for Sunset Haven. She was paid a salary plus room and board plus cash under the table for working overtime. She fell in November of 2014 fracturing to vertebrae. On account of her injuries, she was unable to work as an attendant and was forced to move from the home.

The Employer, whose workers compensation insurance had lapsed, disputed that the Ms. Marquez had been injured while working for him.

The Board found that Ms. Marquez was injured while she was working, that she had reported her injury to him timely, that she was entitled to back benefits which compensated her for her lost wages plus room and board, medical benefits, plus 25% penalties for the Employer’s failure to pay her disability timely, plus interest, plus fees and costs.

The Board ordered the Employer to pay Ms. Marquez what he owes her and if the does not pay within 30 days, the Alaska Workers Compensation Guaranty Fund will pay the judgment.

The Law Office of Keenan Powell provides free consultations regardless of whether or not you have been controverted.   To contact Keenan Powell, use the contact form on this page or call 258-7663.

For more information about Workers Compensation, see:  http://www.keenanpowell.com/faq‑wc.html

 

 

The insurance companies frequently “offer” the injured employee a nurse case manager to “assist” in making appointments and to “accompany” the injured employee to doctors appointments. These people are insurance company spies.

Nurse spies are sent by the insurance company for a number of reasons: The nurse spy will discourage the doctor from recommending treatment the insurance company doesn’t want to pay for. The nurse spy will report back immediately to the insurance company of what was said so that the insurance company can adjust its strategy against you. The nurse spy will take anything you say and give it to the insurance company to use against you.  And the nurse spy will testify against you and the doctor at the hearing in your case.

You don’t have to accept the nurse spy’s “assistance”. You can refuse to allow her into the doctor’s visits.  The insurance company already has a release of information you signed when you were first hurt so it can collect your medical records, correspond and speak with your doctor. That is all the insurance company is legally entitled to.

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.

All consultations are free.  To make an appointment, use the contact form on this website or call:  907 258 7663.