Author: Keenan Powell

On May 15, 2018, I went to hearing on a Claim that I had filed January 25, 2018. That's lightening fast for a Workers Compensation case. This is how I got the case to hearing so fast:

2/26/18: Filed claim with Alaska Workers Compensation Board.

2/27/18: Board served the Claim (sent it to the insurance company).

3/19/18: Twenty days after the Claim is served by the Board, you can ask for a hearing date by filing an Affidavit of Readiness for Hearing. I always file on Day 20 unless it's a weekend, then I file the next business day. Be sure you really are ready for hearing because showing up unprepared is not a reason to get a continuance .

3/20/18: A prehearing conference took place because I filed the Claim. Per the regulations, the hearing must be set within 60 days after the prehearing conference. The insurance company attorney may claim that the hearing will take twice as long as it really will to make it difficult to schedule the hearing because the bigger blocks of available time are further out in the future. So if I say the hearing should take two hours, opposing counsel may say four hours. Or if I say four hours, opposing counsel may say all day. Only once have I had a hearing run longer than one day and that was because opposing counsel showed up with a bunch of co-employees to testify against my client. (I won anyway).

5/15/18: Hearing.

5/23/18: Record was held open to allow opposing counsel to object to my attorneys fees request and for my response.

6/22/18:  A decision from the Board is due. The Board generally gets the decisions out on time. If it's more than a week late, send the Board an e-mail (cc: opponent) asking for a status on the opinion.

If you need a Second Independent Medical Evaluation, the case will take 12 months to 18 months.  This is what you can expect based on an imaginary case:

Day 1: File Claim, Petition for Second Independent Medical Evaluation (SIME) with a SIME form and Medical Summaries with all the medical records attached in chronological order. Mail a copy of everything to the insurance company. If there is no insurance company, mail it to your employer.

Day 20: File an Affidavit of Readiness for Hearing on the Petition for Second Independent Medical Evaluation twenty days after you sent a copy of it to the insurance company.

Day 50: A prehearing will be held because of the Affidavit of Readiness that was filed. The insurance company attorney may agree to the SIME or not. If it doesn't, there needs to be a hearing date. The insurance company attorney will claim s/he is incredibly busy and cannot do the hearing until the last possible date.

Day 110: Hearing on Petition for SIME. The insurance company attorney may agree to the SIME at the hearing or may not.

Day 140: A decision from the Board on the Petition for SIME is due. The file is routed to the person who sets SIMEs.

Day 200: By now, there will have been an order to file all the medical records and proposed SIME questions and how to do it. All this stuff has to be on the desk of someone at the Board before the SIME appointment will be made.

Day 260: The Board will send out notice of the SIME appointment, generally one to two months in advance of the appointment.

Day 320: The SIME appointment.

Day 335: The SIME report is due. Some doctors get in on time; some have to be bugged. The parties are not allowed to contact the SIME doctor. The Board will contact the SIME doctor to find out what the problem is, but only if the Board is reminded. There is no point in reminding the Board until the SIME is at least a month late.

Day 375: Start bugging the Board about the status of the SIME report. An e-mail which is copied to opposing counsel will do.

Day 382: If haven't heard from the Board, bug them again.

Day 389: Bug the Board again about the SIME report.

Day 425: The SIME report should show up by now. File an Affidavit of Readiness for Hearing on the Claim.

Day 485: A prehearing is set on the Affidavit of Readiness for Hearing on the Claim.

Day 545: Hearing on the claim.

Day 595: A decision is due from the Board.

So if the claim was filed January 2, 2017, you can expect a decision from the Board in August of 2018. The biggest hang-up is getting the SIME scheduled and getting the SIME report. But the SIME report is very important. Many times, it can make or break the case.  So it's important to have.

Another reason it's important to pursue the SIME from the beginning vigorously is that you can end up in front of the Board after litigating your case for months, hoping for a decision and the Board decides to order an SIME which, as you see, will make the case last even longer.

The case could wind up faster than that if the insurance company's attorney sends you a reasonable settlement offer. They usually will not do that until the SIME report is in. With some defense firms, their M.O. is to wait until the week before the hearing to make a settlement offer. So that is why you want to keep pushing the case forward as fast as you can.

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.

Here are three tips for winning your worker's compensation case:

1.  Get ALL of the medical records regarding your treatment. When you leave the doctor's office, if they give you any records, it is not all the records. So collect ALL the records, and in particular, ask for the billing records with including the Physician's Report forms. If the provider used the Alaska Workers Compensation Board's Physician Report forms, there is a box on it they will check to describe your injury and whether it is work-related. You need to know what your doctors said. Get a copy of all the x-ray, MRI and any other diagnostic reports. Get a copy of the actual films on a CD. Get a copy of your physical therapy notes.
2. Read ALL the medical records. Make sure you understand what your doctor, and the insurance doctor, are saying about whether your injury is work-related, whether you are disabled or can work light duty or part-time and what your recommended treatment is.
3. File ALL the medical records with the Alaska Workers Compensation Board attached to a wc6103 - Medical Summary form. Here is a sample of how to fill out the medical summary:  wc6103 - Medical Summary sample. DO NOT trust the insurance company to do it. In almost every case I do, I send the insurance company a complete set of medical records and then, when they file their set, they leave out some of the records.

Bonus tip: Call an experienced workers compensation attorney to have your case evaluated. The sooner, the better. Even if the insurance company is treating you fairly now, you need to know what to look out for and how to protect yourself in case they don't later on.

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.

 

When you look at the Workers Compensation Claim form, you will see a box 21.f. which asks whether the employee is claiming that the insurance company had made an unfair or frivolous controversions.

“Unfair or frivolous controversion” is the workers compensation term for bad faith. If the Board finds that the insurance company controverted benefits without justification, i.e. unfairly or frivolously, it will refer the finding to the Division of Insurance for an investigation into that insurance company’s settlement practices. Additionally, the insurance company will be ordered to pay the employee 25% penalty plus interest on the benefits that were denied.

This applies to formal controversions and controversions-in-fact. Sometimes the insurance company stops paying benefits or refuses to pay benefits without filing a controversion notice. In that case, they have committed a “controversion-in-fact” and can be liable for penalties and interest and are vulnerable to an unfair or frivolous finding as if they had filed a controversion notice.

In the past ten years, the Law Office of Keenan Powell has obtained findings that the insurance company was unfair or frivolous in four cases:

Williams v Arctic Terra/Umiliak Ins Co, AWCB Decision No. 16-0095 (10/26/16)

On 9/17/15, the Employee won his case. Williams v Arctic Terra/Umiliak Insurance Co., AWCB Decision No 15-0116. Because of the decision, he was able to get the surgery he needed. However Umiliak was consistently late with his disability checks, which were supposed to be issued every 14 days.

A new claim was filed against Umialik for penalties. The case went to hearing on 9/28/16 and the Umialik adjuster, Robbie Sullivan, testified. Although Robbie Sullivan testified she followed the statute in issuing TTD checks and replacement checks, the Board found she had not. Once she learned a check was missing, she had 14 days to investigate and issue a replacement check. “The adjuster inexplicably waited until August 12, 2016, to stop payment and to issue the second replacement check…well beyond the 14 day period and the seven day grace period following notice on June 8, 2016 and July 15, 2016 (that the first replacement check had not been received.)

“Furthermore, Employer had an obligation to either pay or controvert the penalty and interest claims….It did neither.” Because of Umialik and Robbie Sullivan’s failure to issue the second replacement check on time and failure to pay penalties and interest, it was ordered by the Board to pay penalties and costs and fees associated with bringing the claim.

Lena v Fred Meyers, AWCB Decision No. 17-0072 (6/26/17)

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.

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 defenses raised by Fred Meyers was found to be “incorrect”. 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. It also 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.

Baker v Liberty Northwest, AWCB Decision No 15-0069 (6/16/15)

Liberty Northwest was represented by Holmes, Weddle &  Barcott.  The Employee had negotiated a settlement by which Liberty agreed to assume liability for paying medical bills in excess of $100,000 and for holding the Employee harmless on the bills.  After the settlement was approved by the Board, Liberty refused to pay the Providence bill, demanding that Providence negotiate the amount. Providence refused and began pursuing the Employee again for payment.  Keenan Powell filed a Claim against Liberty. Liberty=s response was that it was only responsible for reimbursing the Employee if he paid the bills.  After a hearing, a Decision and Order was entered finding that the Employee was entitled to payment of the bills, the providers were entitled to payment of the bills, that Liberty had acted in bad faith when refusing to pay the bills and mandating Liberty pay the bills with 25% penalties.

Liberty Northwest was represented by Holmes, Weddle &  Barcott.  The insurance company had provided the Employee with a Aprescription card@ to use to fill his prescriptions.  On at least four occasions, the pharmacy would not fill the prescriptions because it called the insurance company and the insurance company refused to authorize the specific prescription.  The insurance company=s position is that it does not have a duty to pre-authorize prescriptions and instead is only obligated to reimburse for prescriptions paid by the Employee. At the hearing, Keenan Powell was successful in obtaining an order from the Board requiring the insurance company to arrange for filling the prescriptions when they are presented, plus a finding that the insurance company had acted in bad faith and would be reported to the Division of Insurance for an investigation, plus fees and costs.  The order has subsequently been appealed and the appeal is on-going.

Hubbard vs. Zurich American, AWCB Decision 08-0245 (12/11/2008)

Zurich was defended by Holmes, Weddle & Barcott.  Zurich received a PPI rating from its doctor on May 18, 2007.  PPI should have been paid no later than 21 days from its receipt of PPI rating, which would have been June 7, 2008.  PPI was mailed out ten days late, on July 17, 2008.  Keenan Powell on behalf of the Employee was successful in obtaining a Board award of 25% penalty for late payment of PPI and fees and costs.

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.

 

 

Two bills are floating through the Alaska legislature right now designed to gut workers compensation benefits. For a complete analysis of these bills, read my letter to representatives:  Letter to Representatives re HB 303 SB 112.

To read HB 303, go here: HB 303. To read SB 112, go here: SB 112.

To contact your senator, go here: Alaska Senate.

To contact your representative, go here: Alaska House.

Tell your senator and representative that HB 303 and SB 112 are bad for Alaskans and bad for Alaska. Ask them to vote against these bills.

At the Law Office of Keenan Powell, we received several favorable decisions from the Alaska Workers Compensation Board during 2017 in addition to a settling a number of cases. If you take a look at the decisions, you’ll notice a few trends:

1.      Fred Meyers cases were defended by Russell, Wagg, Meschke & Budzinski. They took those cases to hearing even though they should have known they were going to lose. Long before the hearing, both attorneys have all the evidence available to them. An experienced attorney would be able to anticipate how the Board would rule.

2.     All the other cases were defended by Holmes, Weddle & Barcott which represents Liberty Mutual and Berkshire Hathaway. In those cases, the defense showed up at the hearing conceding that they would lose most of the issues in the case.

3. A fair conclusion from these cases would be that the insurance company will controvert and defend cases to the very end.In other words, employees must fight for their rights to be treated fairly under the law.

For more detail regarding each decision, visit Verdicts & Settlements.

Lena v Fred Meyers (Lena I), AWCB Decision No. 16-0135, 12/30/2016

Fred Meyers then claimed that the employee’s foot pain, an aggravation of foot condition that required surgery, was not work-related. It relied upon the opinion of a doctor it hired, Dr. Scot Youngblood, an "independent medical examiner.” The Board discounted his opinion because he didn't understand Alaska’s legal standard.

Under the Alaska Workers Compensation Act, if a work event aggravates, accelerates or combined with a pre-existing condition to create a disability or need for medical treatment, then it is workers compensation injury.

Most importantly, the Board held that there is no distinction between aggravation of symptoms and aggravation of an underlying condition. If a work event, including chronic overuse, aggravates symptoms creating a disability or creating a need for treatment, then the injury is workers compensation. The Employee is entitled to have her medical treatment paid by the Employer and to be compensated for her lost wages.

Lena v Fred Meyers (Lena II), AWCB Decision No. 17-0072, 6/26/17

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, 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.

Second, 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.

Gillion v Berkshire Hathaway (Gillion I), AWCB Decision No. 17--0089, 7/31/17

In this case, the Employee had been treated with epidural injections for a herniated L5-S1 and annual tear. When the treating physician referred the Employee for a consultation with a surgeon, the insurance company obtained an "independent medical evaluation" by Dr. David Bauer. Dr. Bauer opined that in the Employee had only suffered a lumbar strain, that if he had any symptoms they were due to "preexisting degenerative disease" and that he needed no further treatment other than some physical therapy.

At the hearing, the Employer represented by Holmes, Weddle & Barcott, withdrew its controversion and represented that the only issue was  a compensation rate adjustment.

In the Final Decision, the Board held:

1.     The Employee was entitled medical benefits for treatment of his back injury;

2.     The Employee was entitled to an increase in compensation rate and the insurance company owed him back pay;

3.     When the Employee was re-injured approximately one year after his first injury, that second injury constituted a new injury and that his compensation rate needed to be increased again.

Cavitt v D&D Services, AWCB Decision No 17-0109, 9/13/17

In 2016, the Employee fell at work shattering his elbow and had partial elbow replacement surgery. He continued to suffer pain and in 2017, his doctor took an MRI which showed that the prosthesis had loosened and recommended it had to be replaced. At the time the doctor made the recommendation, he took the Employee off work.

The Employer, represented by Holmes, Weddle & Barcott refused to pre-authorize the surgery and further refused to pay temporary total disability as the adjuster thought there may have been another cause for the need for surgery. Ultimately the adjuster obtained an “independent medical evaluation” which determined that the surgery was work-related. Under existing Alaska law, complications from a work-injury treatment are covered by workers compensation benefits.

Before the hearing, the Employer withdrew its controversion and began paying temporary total disability. At the hearing, the Employer argued that it should only have to pay three months of temporary total disability after the surgery as their doctor stated that was how long the Employee would need to recover.

The Board disagreed and ordered that the Employer will continue to pay temporary total disability benefits until the Employee is medically stable. The Board also awarded interest on the late-paid temporary total disability.

Gillion v Berkshire Hathaway (Gillion II), AWCB Decision No. 17-120, 10/16/17

Following a decision in Gillion I, Employee’s counsel sought reconsideration of the decision as the Board had failed to some of the claims in the first decision. Following new briefing, the Board awarded the Employee three days of Temporary Total Disability for attending a Second Independent Medical Evaluation of state and transportation costs for visits to providers.

For a free consultation, call Keenan Powell: 258-7663.

 

 

If you get hurt at work, these three tips will make your life a lot easier later down the line:

1.Keep a copy of the Report of Injury for your files. The Report is important because one of the first things that can happen is your employer denying you told him that you were hurt.

If your employer did not have you fill out a report of injury, print down this  Report of Injury.

Fill it out, send or give a copy to your employer and deliver a copy to the Alaska Workers Compensation Division and keep a copy for your files.

2.Keep a copy of every work release your physician gives you. If your physician tells you that you cannot work, or that you can work part-time or only with light duty, you need to provide a copy of that immediately to your employer and you need to keep a copy for your files. The reason you need to keep a copy is that the second thing that can happen is that your employer claims you never told them you needed time off or light duty. You would hope the doctor kept a copy of the note, but every medical office is different and those notes are sometimes difficult to locate.

3.Don’t let a nurse case manager into your appointments. Nurse case managers are insurance spies. In some cases, the insurance company will hire a very nice lady to call you and talk to you about your injuries and offer to go to the doctor’s visits with you. Don’t let her. Her real job is to control what kind of treatment your doctor recommends, so as to save the insurance company money, and to get the doctor to send you back to work as soon as possible, also to save the insurance company money. She is not your friend.

Bonus Tip: If you have questions, call a workers compensation attorney. Our job is to make sure you get the benefits you’re entitled to. Many attorneys are happy to spend some time on the phone with you.

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.

 

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.

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

 

If you are being treated fairly by the insurance company, you don't need to file a claim with the Workers Compensation Board. How do you know if you are being treated fairly?

Tip #1: Are you getting your TTD checks on time? The first check must be postmarked 21 days from the date you turned in the doctor's work release. All other checks be postmarked every 14 days after that. You should not have to pick up the check at the insurance company. They need to mail it to you.

If the checks are postmarked late, you are entitled to 25% penalties.

Tip #2: Are you being paid the right amount of money for your lost wages? The general rule is the insurance company will look to your prior two years of wages, for all jobs you had, to calculate your compensation rate. You can visit the Alaska Workers Compensation Board and use the Benefit Calculator to see if the computations are correct.

But, even if the rate is correct mathematically, it might not be fair to you and there are different reasons why that might not be fair.

Tip #3: Are you getting the medical treatment you need or is the insurance company dragging its feet approving the recommended treatment? If the insurance company is dragging its feet, that's a sign it plans to send you to their doctor, the so-called "independent medical evaluation" in hopes that doctor will justify denying your treatment.

If the insurance company is dragging its feet, it's time for you to collect all of your medical records relating to your injury and find an attorney.

Tip #4: If you aren't sure you're being treated fairly, call an experienced workers compensation attorney.

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.

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