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 fist-pumplook 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.

 

A precedent was set last week when the Alaska Workers Compensation Commission ruled that a snowplow driver who was on call was covered by the Workers Compensation Act. Spain & Sons v Stevens, AWCAC Decision No 238 (4/14/17).

In that case, the driver, James Stevens was "on call" when he received a telephone call from his boss to go out and sand icy roads on a particularly nasty winter night. His boss only paid him from the time he got into his snowplow truck, and not from the time he left his home, to drive to his truck which he had parked in on a different property. Along the way to his truck, he was injured in a motor vehicle accident when a vehicle coming from the other direction lost control on the ice, crossed the center line and struck him.

The employer's insurance company refused to pay for his medical treatment because it claimed he was not working at the time he was in the accident. The case went to hearing. The Board found he was working at the time of the accident. The employer appealed. The Commission affirmed the Board's decision. It held that he was working when he was driving to his truck because:

  1.  He was on the road in direct response to a call from his boss to go to work,
  2.  His employer allowed him only 30 minutes to get to his truck,
  3.  The general public had the option to stay off the icy road, but he did not,
  4.  Driving on the icy road was necessitated by his employment,
  5.  He was driving on the only road that he could use to get to his truck,
  6.  The nature of his work, plowing and sanding snowy and/or icy roads, necessitated travel in extreme weather conditions,
  7.  His work-related travel increased the likelihood of an accident,
  8.  Because of the nature of his work, he was exposed to special hazards which other individuals could avoid,
  9.  The hazard the caused the accident was an integral part of his employment,
  10.  If he had parked his snowplow at his house, he would have been on the clock as soon as he stepped out his door as many of his co-workers were,
  11.  The on-call status of the drivers was a direct and substantial benefit to the employer.

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.

 

Preauthorization usually becomes an issue when you need surgery because a doctor will not perform surgery if someone doesn’t promise to pay the bill. And if you can’t get the insurance company to preauthorize the surgery, you’re stuck. You can’t work without the surgery and you can’t get the surgery.

Insurance companies will sometimes say that they are under no duty to preauthorize medical treatment. That’s not true. In Alaska workers compensation cases, the insurance company has a duty pay all reasonable and necessary medical treatment which is caused by the work-related injury. If they don’t want to pay the bill, the insurance company must justify its refusal.

The right way for the insurance company to do that is to controvert the recommended surgery based upon an EIME report. Sometimes the insurance company will stall preauthorization while it sends the injured employee to an EIME (Employer “Independent” Medical Evaluation) to see if the doctor of their choosing agrees that you need surgery and the recommended surgery was caused by the work injury.  When the insurance company controverts, it should send you a Controversion Notice.

But sometimes the insurance company will just blow you off. That is called “controversion-in-fact.”

In each of these cases, there is something you can do. You can file a claim for medical benefits including obtaining a Board order authorizing the surgery. The claim must be filed with the Workers Compensation Division. http://labor.state.ak.us/wc/home.htm.

If the insurance company is refusing to preauthorize your surgery, you need to find out whether you are 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 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.

 

The Alaska Workers Compensation Act provides that a disabled injured worker is entitled to TTD (Temporary Total Disability) or TPD (Temporary Partial Disability) for the period of time during which he or she cannot work.

TTD is paid when the injured worker cannot work at all.  TPD is paid when the injured worker is working part-time.

These payments begin when the employer, or his insurance adjuster, receives written notice that the injured worker is disabled. This is where a lot of injured workers make their first mistake. They trust the doctor to send the note to the right people. Or they trust a nurse case manager who the insurance company sent to get the note to the right people.

Don’t trust anyone to do your work for you. Doctor’s offices do not routinely send out work releases. They might. But they don’t always do it, nor do they think to do it. The folks at the doctor’s office front counter who process your bill don’t need to see the work release so they probably won’t look for it.

The nurse case manager is an insurance company spy. Her job is not to make sure you get the most you can out of your case. Her job is to make sure the insurance company pays as little as possible. So she has no incentive to ask for the work release and deliver it to the right people.

You need to get a copy of the written work release during your doctor visit. Do not leave the office without the work release. Ask for three copies: one for you, one for your employer and one for the insurance adjuster. Then, drive straight to your employer’s office and deliver a copy of the work release to them. Make a note on your copy of the work release of the date and time when you delivered it and the person you handed it to.

Then drive to the adjuster’s office and do the same thing. Make a note of the date and time you delivered it and who you gave it to. If the adjuster doesn’t have an Alaska office, go to Mail Boxes Etc or the UPS store or the Fed Ex store and fax it to the adjuster with your claim number, if you have it. If you don’t have the claim number, fax it anyway with the name of your employer and your date of injury. Keep a copy of the fax confirmation sheet for your records.

Get a new doctor’s work release every time you go see the doctor. Every time you get the work release, give a copy to your employer and a copy to the adjuster documenting again when it was delivered, as before.

Your first TTD or TPD check is due on the 14th day after the employer received the work release. AS 23.30.155(b). Subsequent payments should be made every 14 days after that. The payments will continue until you go back to work or are deemed medically stable or you are controverted.

If the payments are more than seven days late, you are entitled to a 25% penalty. AS 23.30.155(e). Some insurance companies will voluntarily pay the penalty but the recent trend is that you have to fight for it.  To do that, you must file a claim with the Workers Compensation Division. http://labor.state.ak.us/wc/home.htm.

If your payments are not paid, or paid late or if you are controverted, you need to find out whether you are 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 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.

 

Events in Anchorage this weekend include: the immortal ballet, The Nutcracker Suite, at the PAC, the immortal warriors, Alaska Aces, playing at the Sullivan Arena and the immortal theater experience, Christmas in Spenard, at Hard Rock Cafe.

If you don't want to spend money, there's sledding at Kincaid Park and the various hills around town. The lakes are still a little thin, use caution if you're skating. The cross-country trails haven't been groomed yet so you can still walk your dogs. IceTrailsStatus.

Temperatures are predicts to drop to single digits over the weekend.

Only twelve days to Solstice and counting.

 

 

The 2015 Annual Report from the State of Alaska Division or Workers Compensation shows what a big business workers compensation claims are and insurance companies’ trends to improve their profits. The full report is accessible on the Division’s website at: http://labor.state.ak.us/wc/forms/2015AR.pdf

In 2015, a total of 301.7 million dollars of benefits was paid, an increase of 2% over 2014. Medical benefits of $162.5 million and indemnity (temporary total disability, temporary partial disability, permanent partial impairment and permanent total disability) in the amount of $73 million were paid.

There were some interesting changes in the amount of indemnity benefits paid in 2015. TTD (temporary total disability) was down by 4.8 million. TPD (temporary partial disability) was down by .1 million while PPI (permanent partial impairment ratings) were up 2.4 million.

One could infer from these numbers that insurance companies are forcing PPI ratings earlier which in turn terminates the Employee’s TTD or TPD benefits sooner at a huge savings to the insurance companies.  In 2015, the savings to the insurance companies for rushing the PPI rating according to these numbers is 2.5 million dollars!

These numbers are consistent with what I have been seeing . More and more Employees are sent to an “independent” medical evaluation (arranged by an insurance company) where that doctor states that they are medically stable, able to go back to work and have a small, if any, PPI rating – even while the Employee is still in pain and still seeing his doctor for treatment, even while the treating doctors are contemplating surgery or a second surgery.

Although it looks legal enough on paper, so much so that a trusting Employee would not contest the insurance doctors’ statements, the Employee still has rights. He always has the right to fight unfair treatment by the insurance company. Being rushed to a PPI rating is one such example of unfair treatment.

If an Employee is disabled from work and requires medical treatment, he is entitled to TTD or TPD and medical benefits regardless of what the insurance doctor says. The Employee has the right to file a Claim to pursue his rights and to hire an attorney to assist him.

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.

 

The general rule is that Temporary Total Disability (TTD) is computed based upon the best of the employee’s prior two years of earnings. Say the employee was injured in 2016 and he would have made $30,000 but in 2015 he made $15,000 and in 2014, he made $4,000. His TTD would be computed based on the $15,000 he earned in 2015.

There are exceptions to this rule.  In order to determine whether an exception applies to your case, you will need to speak with an attorney.

To find out how much money you would be entitled to, you divide the gross earnings of that best year (in our case $15,000) by 50 to yield a Gross Weekly Wage.  If the gross earning were $15,000, that divided by 50 equals $300 Gross Weekly Wages.

Then you go to the Alaska Workers Compensation Board website’s Benefit Calculator Page: http://labor.state.ak.us/wc/benefitcalculator.htm.

In box marked "type of benefit", you would select Temporary Total Disability, then type in your date of injury and your Gross Weekly Wage and the website will compute how much you are entitled to. In our case, if the Employee was injured on 2/1/2016 and had a Gross Weekly Wage of $300, and he filed his taxes as single with one exemption, then he would be entitled to $259.14 per week. The checks come every two weeks so he would receive $518.28 for every two-week period that he was totally disabled from work.

Keenan Powell has practiced law in the State of 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.