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I am honored to represent injured workers.

In 2022, we were again victorious!

Kvernik v The Ohio Casualty Insurance Co. AWCB Dec. No 22-0001 (January 3, 2022)

The Employee injured his calf muscle and Achilles’ tendon while pushing a heavy pallet up a ramp at work. He had surgery to repair the tendon.

The insurance company underpaid temporary total disability (TTD) when it did pay, paid some TTD late, and failed to pay TTD for 12 weeks. It also failed to reimburse for travel expenses incurred to visit his doctor and medical costs the employee was required to pay out-of-pocket.

A claim was filed for an increased compensation rate, payment of unpaid TTD, payment of medical and transportation costs, interest, penalties, and unfair/frivolous controversion.

The Board held that the insurance company’s failure to pay TTD, failure to reimburse for medical and transporation costs, and failure to pay penalties and interest when it late-paid certain benefits was an unfair or frivolous controversion. It ordered that a referral would be made to the Division of Insurance for investigation. Additionally, the Employee won all the benefits he sought.

Employee won!

 

Guerrissi v State of Alaska AWCB Dec. No 22-0020 (March 23, 2022)

The Employee injured his neck and left shoulder while standing on a ladder, working with his arms overhead, when he turned his head. The doctors diagnosed a rotator cuff tear, SLAP tear, and a cervical disc herniation.

He had neck surgery to repair the herniation. He then had another surgery to repair the shoulder injuries.

After his surgeries, the State sent him to Dr. David Glassman for a “independent” medical evaluation. Dr. Glassman’s opinion was that neck was not injured at work and the shoulder injury was due to degenerative changes.

The State controverted all benefits, relying on Dr. Glassman’s report. The Employee filed a claim.

After two SIME (second independent medical evaluations) – one with a neck specialist and one with a shoulder specialist, the case went to hearing.

The Board ruled:

1.     The need for medical treatment for the cervical spine was work-related.

2.     The need for medical treatment for the shoulder was work-related.

3.     The State was required to reimburse him for medical treatment and transportation costs.

4.     The State was required to pay the Employee PPI ratings.

5.     The Employee was entitled to penalties and interest for unpaid benefits.

Employee won!

Torres v Zurich American Insurance Co. AWCB Dec. No 22-0021 (March 24, 2022)

The Employee, a roofer,  injured both shoulder when he was tearing off a roof. He experienced pain and weakness in both shoulders immediately. He tried physical therapy and when that didn’t improve his condition, he decided to go forward with recommended surgeries. He has not been able to work since the injuries.

The insurance company sent him to Dr. Scot Youngblood for an “independent” medical evaluation. As Dr. Youngblood so often opines, he stated that the Employee’s shoulder injuries were degenerative.

The insurance company controverted benefits, cutting of his medical and disability benefits.

The Employee filed a claim. After a SIME(second independent medical evaluation), the case went to hearing.

The Board ruled:

1.     The need for shoulder surgeries was work-related and it ordered the insurance company to pay for both of them,

2.     The Employee’s disability was work-related. The Board ordered the insurance company to pay for TTD benefits from the time it was cut off until he recovered from his surgeries.

3.     The Employee was entitled to transportation costs for visiting his providers,

Employee won!

Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 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 (in person, telephonic, or zoom), email: keenan@keenanpowell.com or call:  907 258 7663.

 

 

Employees have no duty to cooperate with a nurse case manager sent by the insurance company.  
medical stuff

Employees have no duty to cooperate with a nurse case manager sent by the insurance company.  

Think of the nurse case manager as an insurance adjuster with a nursing degree because that is what she is. Her job is to minimize the medical benefits paid for an injured worker. She looks for evidence that the injury may not be work-related in an effort to defeat medical benefits.

Cozy Nurse-Doctor Relationship

In Freeman v ASRC, AWCB Decision No 15-0073 (6/26/15). the nurse case manager directed the injured worker from one physician to another with whom she had an established professional relationship - a relationship so cozy that the doctor signed letters that had been written by the nurse as if he had written them himself. The real reason the nurse sent the employee to that doctor was not because she was trying to secure good medical treatment from him but because she was hoping her favorite doctor would say the surgery wasn't needed or that it wasn't work related.

Under the Freeman case, the nurse case manager has a legal duty to inform the injured worker :

  • of her role, of the adversarial nature of workers compensation (i.e. she is working against him),
  • his right to decline her assistance
  • and the possibility and likelihood that the insurance company's and the worker's interest may someday diverge.

If the nurse case manager you're working with hasn't disclosed all this to you got to wonder what's going on.

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.  A sample of verdicts she has obtained for Employees is found at  http://www.keenanpowell.com/past-verdicts-settlements.

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

The Alaska Workers Compensation Divisions’ 2021 Annual Report (released on October 24, 2022, but not yet posted online) shows alarming trends for injured workers.

The Alaska Workers Compensation Divisions’ 2021 Annual Report (released on October 24, 2022, but not yet posted online) shows alarming trends for injured workers.

More Controversions

There were 3,605 total controversions filed in 2021, a 24.9% increase from 2020. Contoversions is the formal process by which insurance companies deny benefits to injured workers. This number does not include all the cases in which the insurance companies fail to report the benefits that were denied or withheld.

More Aggressive Legal Tactics

While insurance companies paid employee attorneys less in 2020, they paid their own attorneys more – another factor that would explain increased profits. Employers paid employees attorneys 4.3 million, a 30.8% decrease from 2020. Employers paid their own attorneys 7.2 million, a 11.86% increase from 2020.

Employees Fighting Back Less

The statistics suggest that employees are fighting back less than in previous years. There were 678 claims for benefits filed in 2201, a 6.7% decrease from 2020.

There were 161 hearings in 2021, decreased from 188 hearing in 2020 and 225 hearing in 2019. That’s a 28% decrease in hearings over those two years. The decrease in payment of employee attorney fees supports this conclusion.

Less Benefits = More Insurance Profits

Not surprisingly with the increase in controversions, insurers saved more in profits. Total benefits paid in 2021 were 188.2 million, a decrease of 8.28% from 2020.

Follow the Money

The reason insurance companies deny injured workers benefits is to improve their profits. The aggressive use of insurance attorneys coupled with increased controversions have led to increased profits.

What Are Your Rights? Find Out Now

You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.

Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 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 (in person, telephonic, or zoom), email: keenan@keenanpowell.com or call:  907 258 7663.

Should you be worried? You should.

The Workers Compensation Insurance Company Has the Right to Request an IME.

The law is clear. The insurance company is entitled to schedule IMEs (so-called “independent medical evaluation”). But the IME must be done at a reasonable time. If you’re out of state or cannot attend the scheduled IME for some other reason, contact the insurance company immediately in writing and ask them to reschedule the exam.

Do You Need to Collect Medical Records for the IME Doctor?

There is nothing in the law that says you do. The IME is the insurance company’s expert and it is their responsibility to provide him with all the records he needs. The insurance company should have been collecting your records since shortly after you were injured.

Why Does the Insurance Company Want an IME?

There are several reasons the insurance company might want an IME and they all boil down to: the insurance company is looking for excuse not to pay your benefits. Some of the typical questions they will ask their “independent” doctor are:

  1. Are you really injured?
  2. Is the work  injury the cause of medical treatment?
  3. Is the work injury the cause of disability?
  4. Can the injured worker go back to work?
  5. Does the injured worker need future medical treatment?
  6. Does the injured worker have a permanent impairment?

Where Do Insurance Companies Find IME Doctors?

They have two sources. If the IME doctor is practicing in Alaska, be aware. He’s working both sides of the street: giving insurance companies the opinions they want (and getting paid) and treating injured workers (and getting paid). The common denominator here is the doctor is getting paid by the insurance companies and that is where his loyalty lies.

Otherwise, there are staffing agencies that provide doctors for “IME” evaluations. Here are some of those companies in Alaska cases:

Examworks: ExamWorks|Independent Medical Examinations, Peer Reviews, Bill Reviews

Objective Medical Assessments Inc (OMAC): OMAC | Genex (genexservices.com)

First Medical Advisory Group: About (firstmagime.com)

Oregon Medical Evaluations: Oregon Medical Evaluations, Inc. – a resource for effective claims management (ormedeval.com)

Should You Be Worried?

You should. If the insurance company wanted to continue paying your benefits, it wouldn’t have scheduled an “IME.” There is nothing “independent” about these evaluations. The insurance companies have established relationships with the evaluators. They pay these doctors, many of whom are retired, lots of money. And the insurance companies are shopping for a particular opinion, one that is favorable to them and unfavorable to the injured worker.

What Should You Do?

You need to go to the appointment.

If they get the opinion they want, they will immediately cut off your medical benefits, your disability benefits, or both. And then you'll be scrambling to collect your records. Don't wait.

Meanwhile you should be collecting a complete set of your medical records. You will need them to fight for your rights if the insurance company controverts your case. That means contacting every provider that saw and asking their records department for all you records. You are legally entitled to these records.

Why Bother Fighting?

Because the insurance companies lose these cases all of the time. Most often, they lose because the Alaska Workers Compensation Board decides the so-called “IME” doctor was wrong. For a list of cases employees won, check out:

Never give up! Never surrender! 2021 in Review - Keenan Powell, Attorney at Law

Never Give Up, Never Surrender 2020! - Keenan Powell, Attorney at Law

Never Give Up, Never Surrender - 2019 Victories - Keenan Powell, Attorney at Law

Never Give Up. Never Surrender. - Keenan Powell, Attorney at Law

What Are Your Rights? Find Out Now

You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.

Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 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 (in person, telephonic, or zoom), email: keenan@keenanpowell.com or call:  907 258 7663.

When You Need to Call a Workers Compensation Lawyer

Don't wait to call a Workers Compensation Lawyer! You need to know your rights before you are controverted. It is important to be prepared as early as possible in case you need to fight for your rights.

When to Call a Workers Compensation Lawyer

  1. If the insurance company is not paying you a fair temporary total disability rate,
  2. If the insurance company scheduled an examination with their doctor, the so-called "independent medical evaluation,"
  3. If you need to reschedule the insurance examination because you can't attend it,
  4. If the insurance company sends you a Controversion Notice (see below),
  5. If the insurance company refuses to pay your medical benefits,
  6. If the insurance company is late paying your disability benefits,
  7. If you are being evaluated for reemployment benefits (retraining),
  8. If the insurance company claims your case is closed,
  9. If the insurance company makes an offer to settle your case,
  10. If you have any questions.

What Are Your Rights? Find Out Now

Call now! (907) 258-7663

You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.

Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com

keenan@keenanpowell.com

Controversion Notice

In three recent cases, the Alaska Workers Compensation Board rejected Dr. Bauer's opinions
independent medical examination
Insurance Doctor

Dr. Bauer  – Go-to Insurance Expert

David Bauer MD is one of the go-to insurance experts in workers compensation cases. I’ve blogged about him before – a lot. For more posts about this doctor, see below.

Here are three recent decisions from the Alaska Workers Compensation Board where Dr. Bauer’s opinion was rejected.

Mitchell v State of Alaska, D&O 21-0039 .pdf (alaska.gov)

In May of 2019, the Employee injured his right ankle. He was diagnosed with a partial tear of his Achilles tendon. He was given physical therapy and fitted with a boot.

Enter Dr. Bauer

The State sent the injured worker to Dr. Bauer who said there was no tear of the Achilles and only a longstanding, chronic condition of a degenerating Achilles tendon. Further he stated that the work event was not the substantial cause of the conditions or symptoms and that he did not need surgery. After Bauer’s report, the Employee continued physical therapy.

The Employee Filed a Claim

In response, the state controverted (cut off) his benefits.

The Board Ruled

That Dr. Bauer’s report conflicted with the evidence and his own report. Whereas at one point he said there was no injury, he also stated that the past treatment was reasonable and necessary for an acute aggravation and increase in symptoms. And whereas his report said there was no Achilles tear, he testified there was a tear.

The Board gave Dr. Bauer’s opinion very little weight because his report and testimony conflicted with themselves, other medicine, and the prevailing law on the aggravation of pre-existing conditions.

The Employee won!

Christensen v Liberty Mutual D&O 21-0061.pdf (alaska.gov)

On May 1, 2020, the Employee was assaulted by a coworker. His neck was injured. He was given physical therapy and his pain did not improve.

On June 25, 2020, a surgeon recommended discectomy and fusion for his neck. He was given a preoperative exam.

Enter Dr. Bauer

Just before the surgery was to be done, Liberty sent the injured worker to Dr. Bauer on July 9, 2020. He diagnosed “symptoms out of proportion to objective findings.” He did not recommend additional medical treatment for the work incident.

Liberty controverted (cut off) benefits relying upon Dr. Bauer’s report.

On August 5, 2020, the injured worker had neck surgery.

The Employee Filed a Claim

On September 1, 2020, his doctor’s examination showed that he had none of the symptoms prior to surgery.

The Board Ruled

Again, the Board found Dr. Bauer’s report and testimony provided conflicting evidence, did not comport with the overall medical records, and was unclear about the Alaska law regarding acceleration and aggravation of preexisting conditions. The Board particularly criticized Dr. Bauer because he stated there were no new symptoms following the assault but the hospital records showed rapid symptom onset.

Employee won!

Wilson v Markel Insurance, D&O 21-0119.pdf (alaska.gov)

The Employee was given chiropractic treatment at work, after which he developed significant back pain which radiated down his left leg. An MRI showed a disc protrusion at L3-4. He was given physical therapy.

Enter Dr. Bauer

On June 5, 2020, the insurance company sent the injured worker to Dr. Bauer. Dr. Bauer diagnosed a lumbar strain as the result of the chiropractic treatment. He stated there was no radicular pain or other condition that would require invasive treatment. The insurer denied benefits relying upon Dr. Bauer’s report.

The Employee Filed a Claim

A Second Independent Medical Evaluation (SIME) was conducted. For more on SIMEs, see Negotiating the Maze III: Second Independent Medical Evaluations (SIME) - Keenan Powell, Attorney at Law

The Board’s doctor agreed with the Employee’s doctor that the chiropractic treatment had caused the disc protrusion.

The Board Ruled

The Board gave Dr. Bauer’s opinion little weight because of his failure to acknowledge and explain the disc herniations and the Employee’s lack of pain prior to the work event.

Employee won!

The Pattern

A pattern is forming!

  1. An Employee suffers a permanent life-changing injury.
  2. The insurance company hires Dr. Bauer who ignores the medical records and denies there was an injury.
  3. The Board rejects Dr. Bauer’s opinion.
  4. The Employee wins.

See More David Bauer MD Posts

Dr. David Bauer and Dr. Scot Youngblood: "Independent" Medical Evaluations - Keenan Powell, Attorney at Law

"Independent" Medical Evaluations: The Boys Are Back in Town - Keenan Powell, Attorney at Law

Employee Wins Again! Meili vs. Liberty Northwest II - Keenan Powell, Attorney at Law

Never give up! Never surrender! 2021 in Review - Keenan Powell, Attorney at Law

What Are Your Rights? Find Out Now

You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.

Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 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, email: keenan@keenanpowell.com or call:  907 258 7663.

Alaska Holds Dr. Youngblood's Opinion is "Questionable"

Dr. Youngblood – Go-to Insurance Expert

Scot Youngblood MD is one the go-to insurance experts in workers compensation cases. I’ve blogged about him before – a lot. For more posts about this doctors, see below.

Here is a unique decision regarding an evaluation by Dr. Youngblood, the case of Williams v Employers Insurance Co of Wausau, Dec. No 21-0106 (November 19, 2021). You can read the decision here: D&O 21-0106.pdf (alaska.gov)

Employee Injured at Work

On November 18, 2020, the Employee reported to his doctor that he injured himself at work lifting and twisting. His job required him to repackage six to seven pallets of soda per day. Each pallet had 81 cases. Each case had two 12-packs. He would bland three cases weight 62 pounds and stack them onto pallets about 54 times a day.

Insurance Company Hired Dr. Youngblood

An MRI revealed a disc protrusion. On March 19, 2021, he was evaluated by Dr. Youngblood upon the Employer’s request. He did not look at the MRI. Regardless he diagnosed a lumbar strain with excessive subjective complaints caused by “age, genetics, and the industrial accident.” It was his opinion that the Employee was medically stable three months after his injury, needed no further treatment, and was clear to return to full duty.

On April 16, 2021, the insurance company denied all benefits based upon Dr. Youngblood’s report. On that same day, he was seen by Dr. Fix who diagnosed a L4/5 disc herniation and recommended a partial discectomy.

Employee Filed Claim

On April 27, 2021, he filed a claim with the Alaska Workers Compensation Board. It went to hearing on November 19, 2021. The Employee’s three physicians agreed that his injury was caused by work. Before November 18, 2020, he did not have radiculopathy (pain running down one leg). An MRI after the event showed a herniated disc. He needed surgery. However, Dr. Youngblood was the lone voice who opined that his condition was merely a strain, had resolved, and did not require future treatment.

The Alaska Workers Compensation Board’s Decision

The Board gave the treating physician’s testimony the greatest weight because they had physically examined the Employee, reviewed the MRI, considered his complaints before giving the radiculopathy diagnosis. They all agreed that his job caused his need for medical treatment and disability, that he was not medically stable, and needed back surgery.

The Board was critical of Dr. Youngblood because he merely conducted a chart review, did not personally examine the Employee, and never looked at the MRI. Dr. Youngblood’s excuse for not looking at the MRI was that he was in a busy clinic and it was the adjuster’s job to provide the MRI to him. The Board held “MRIs are essential in determining muscoskeletal issues.” Further it held “Dr. Youngblood’s commitment to provide an accurate medical opinion is questionable, his opinion is given no weight.”

The Board awarded the Employee temporary total disability (TTD) benefits, medical benefits, and travel benefits.

See More Scot Youngblood MD Posts

Dr. David Bauer and Dr. Scot Youngblood: "Independent" Medical Evaluations - Keenan Powell, Attorney at Law

"Independent" Evaluations: Scot Youngblood, MD - Keenan Powell, Attorney at Law

Insurance Defense Doctor: Dr. Scot Youngblood - Keenan Powell, Attorney at Law

Injured Worker Beats Dr. Youngblood at Hearing - Keenan Powell, Attorney at Law

Victory in Workers Compensation Case! - Keenan Powell, Attorney at Law

What Are Your Rights? Find Out Now

You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.

Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 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, email: keenan@keenanpowell.com or call:  907 258 7663.

On March 24, 2022, an injured worker won his case.
Victory in Workers Compensation Case

Victory in Workers Compensation Case!

On March 24, 2022, an injured worker won his case. Then Alaska Workers Compensation Board issued a decision in the case of Torres v Zurich American Insurance Co and Northern Adjusters, AWCB Dec. No. 22-0021: D&O 22-0021.pdf (alaska.gov)

Work Injury

Facts: The employee injured both shoulders while working as roofer, clearing off a roof. When he realized the pain and weakness was not going away, he went to the doctor and reported the injury to his employer. MRIs showed that he had tears in both shoulders.

At first, physical therapy was recommended. When it did not improve his pain and function, his physician recommended surgery.

Enter Dr. Scot Youngblood

That is when the insurance company, Zurich, hired an “independent” medical evaluator, Dr. Scot Youngblood, who wrote a report stating that the SLAP tears were the produce of age-related degeneration and that the tears were not the result of the employee’s work activities. For more information on Dr. Youngblood, see: "Independent" Evaluations: Scot Youngblood, MD - Keenan Powell, Attorney at Law

The insurance company, represented by Jeffrey Holloway of Babcock, Holloway, Caldwell and Stires, controverted the claim. It cut off medical benefits so the doctors wouldn’t get paid and the surgeries could not go forward. They also cut of the employee’s disability benefits.

Fighting the Insurance Company

The employee hired Keenan Powell, who filed a claim on his behalf. The Board ordered a second independent medical evaluation (SIME) from a truly independent doctor. For information on the SIME process, see: Negotiating the Maze III: Second Independent Medical Evaluations (SIME) - Keenan Powell, Attorney at Law

The Board’s doctor said the shoulder injuries were work-related, the employee was disabled from the injuries, and he needed surgery.

The case went to hearing on February 17, 2022. Afterwards, the Board issued the Final Decision and Order which held, amongst other things the Employee was entitled to an order finding work is the substantial cause of his need for bilateral shoulder medical treatment and disability.  

What Are Your Rights? Find Out Now!

You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.

Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 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, email: keenan@keenanpowell.com or call:  907 258 7663.

Espionage in Workers Compensation

Don't you just love a good spy movie? James Bond maybe? Maxwell Smart? I like Tinker, Tailor, Soldier, Spy. Tales of loyalty, betrayal, truth, and lies are all great fun - when it isn't your life.

Who Can You Trust?

There are two types of spies in Workers Compensation cases. The first is the Mata Hari. She pretends to be your friend. She makes life easier for you. But all the while, she's telling your deepest secrets to those who wish you harm, the insurance company. She is the nurse case manager, that nice person the insurance company sent to sit with you at your doctor visits and help move things along. Only she isn't moving things along for you. She's moving things allow for her boss, the insurance company. And that insurance company has only one goal: closing out your file. So beware of the Mata Hari!

By the way, you don't have to allow Mata Hari into your visits. You can just say no and there is nothing the insurance company can do to retaliate.

To learn more about nurse case managers, check out my post here: https://www.keenanpowell.com/blog/2018/10/18/nurse-case-managers-insurance-spies-2/

The Double Agent

There's a new spy in town: the double agent. He's the guy who is loyal to no one. He's acts like he's going to fix your problems. But he's on both sides. While he's treating your injuries, he takes money from insurance companies by performing "independent" medical evaluations, trashing the claims of other injured workers. When it comes time that the insurance company wants to close out your file, he's their go-to guy. The horrible thing is that they've trained him to say the magic words that will kill your claim. Want to learn more about double agents practicing medicine in Alaska?

Stay tuned.

Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 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, email keenan@keenanpowell.com or call  907 258 7663.

"Independent" Medical Evaluations: The Boys Are Back in Town!

independent medical examination
Insurance Doctor

Word has it that so called "independent medical evaluations" are taking place again in Alaska. One of the doctors being flown up to evaluate injured workers is Dr. David Bauer. Odds are if the insurance company has scheduled an appointment for you to see Dr. Bauer, he is going to deny your claim.

Dr. Bauer's History of "Independent Medical Evaluations"

Doctor Bauer has been evaluating injured Alaskans for several years and a number of cases involving him have gone to hearing before the Workers Compensation Board. Take a look and see if any of these cases sound like yours. In each case, Dr. Bauer denied the employee was entitled to benefits. And in each of these cases, the Employee won.

Lifting injury, herniated disc.

In Serafin v Denali AK Fed Credit Union and Liberty Mutual AWCB 17-0032 (3/21/17), the Employee injured her back lifting and moving a small refrigerator at work. She was diagnosed with a herniated disc and annular tear. Dr. Flanum performed a microdisctomy.

The Second Independent Medical Evaluator (SIME), Dr. Coulter, found the injury was work-related and treatment reasonable and necessary.

She continued to have pain and had a second surgery.

The insurance company sent her to see Dr. Bauer who concluded the February 24, 2010 work injury was not the substantial cause of any then-current disability or need for medical treatment, including surgery. Dr. Flanum disagreed with Bauer’s opinion. The SIME doctor, too, disagreed with Dr. Bauer. After the SIME doctor’s deposition, Bauer wrote a rebuttal letter stating: I do not believe the work injury from February 24, 2010, is the substantial cause of the need for medical treatment from January 19, 2012, through January 31, 2014. In my medical opinion, Ms. Serafin's occasional back symptoms between 2012 and 2013 were due to the progression of degenerative disease consistent with age. The symptoms from mid-2013, when she had the disk herniation, through 2014 are due to a sudden and unrelated event. Therefore, the 2010 work injury is not the substantial cause of her disability or need for medical treatment.

At his deposition, Dr. Bauer testified the 2010 MRI study as revealing a disc “bulge” rather than herniation. He believed the February 24, 2010 work injury was not the substantial cause of Employee's need for treatment, but only an aggravation of a pre-existing degenerative condition which resolvedBecause disk bulges can be caused by aging, Dr. Bauer believes the disc bulge was present prior to and not caused by the 2010 work injury.  Employee had an “age appropriate” spine on the imaging ….Referencing academic literature, 70-80 percent of studied individuals with one-level disc herniation had no identifiable, known cause. The majority of these injuries are caused by a “wrong move” or even turning over in bed.

The case went to hearing. The Board found Employee credible and her physicians credible. Further, it found that the lack of treatment prior to injury, employee’s credible testimony, the medical records, her doctors’ credible testimony outweighed Holly and Bauer. It held that the disability and need for treatment was work-related. Ordered Liberty Mutual to reimburse for past medicals.

The Employee won!

Dr. Bauer had "no explanation"

In Henson v Apicda Joint Ventures, Liberty Mutual AWCB 18-0044 (5/11/18), the Employee tripped in a freezer container in the course of his employment and injured his leg and back.

The Employee was examined by Dr. Kirkham, who recommended Employee find sedentary work, based on the April 20, 2016 FCE. Dr. Kirkham states “... chef is a light duty position and not a sedentary duty position, so he would not be able to return to work as a chef.” 

The Employee attended an EME with R. David Bauer, M.D. Dr. Bauer found no objective or physiological basis for Employee's pain complaints, no objective or physiological reason Employee could not return to his job at the time of the injury, or other heavy-duty work.

The Employee won a remand to the RBA for modification of her previous denial. While the Board did not address the credibility of Dr. Bauer’s report specifically, it found instead that the Employee and her treating physician were credible.

The Employee won!

Dr. Bauer a "no show" at the hearing!

In Cavitt v D&D Services and Ohio Casualty Company AWCB 18-0060 (6/25/18), the employee fell from scaffolding at work and fractured his elbow.  He had partial elbow replacement surgery. He had a second surgery because hardware came loose due to osteomyletis (infection.) His treating physician recommended continuing follow-ups every year or two because of infection and stated that in future there would be additional surgeries and that he could not go back to the job he was doing at time of injury or subsequently.

On January 25, 2018, Employee was seen by Dr. Bauer for a second EME. In addition to examining Employee, Dr. Bauer reviewed medical records dated after his April 26, 2017 EME. Dr. Bauer's diagnosis was unchanged since his April 2017 EME report, and he continued to find the work injury was the substantial cause of Employee's disability and need for medical treatment, and treatment to date had been reasonable and necessary. However, Dr. Bauer found Employee had reached medical stability as of the date of his examination and the only further treatment needed was a home exercise program and continued use of his elbow brace, although a functional capacity evaluation would aid in determining appropriate restrictions for future employment. Dr. Bauer rated Employee with an eight percent permanent partial impairment. 

When the Employee filed a claim and took the case to hearing, the insurance company, Ohio Casualty (a Liberty Mutual company) withdrew its controverson and refused to produce Dr. Bauer for testimony.

The Employee won!

Dr. Bauer said back injury was not work-related, only degeneration.

In LaBlanc v Alaska Inga’s Gallery Dec. No 20-0098 (10/23/20), Dr. Bauer opined that the back injury was not work-related and instead the result of degeneration. The Board found Dr. Bauer’s testimony deserved less weight in this analysis:   

Dr. Bauer opined Employee's pain complaints were not consistent with the L3-4 herniation because it required pain radiating into her thigh and she did not report it to him during his examination. His opinion is given less weight than Drs. Bursell's and Pohlman's because the medical record is clear that Employee has experienced anterior thigh pain. AS 23.30.122SmithMoore. The preponderance of the lay and medical evidence is the work injury was the substantial cause of Employee's past and current need for low back medical treatment. Saxton.

And again, in regards to his opinion on acupuncture:

Dr. Bauer's opinion is given less weight than Dr. Hess's because he testified he did not discuss the effect of acupuncture with Employee. AS 23.30.122SmithMoore.

The Employee won!

Dr. Bauer diagnosed a pre-existing condition.

In Wise v Wolverine Dec. 20-0095 (10/13/20), Dr. Bauer opined the cervical condition was pre-existing. As in Cavitt, the Employer failed to produce him for testimony. His opinion was excluded. The Employee won!

Dr. Bauer said there was no need for treatment.

In Elardo v Walmart Dec. 19-0057 (5/8/19), Dr. Bauer opined the condition was not-worked related degeneration, there was no need for medical treatment and the Employee was medically stable. The Board held his opinion would be given less weight:

Dr. Bauer testified “all the findings on this MRI were due to aging”; they were related to the progression of the degenerative condition that would have occurred regardless of the work injury. He explained that a person constantly degenerates so his steady state is not a straight line across the bottom, but rather, a line of steadily increasing impairments and disabilities as he gets older. A 2015 study showed someone in his fourth decade of life would be 40 to 50 percent likely, even if asymptomatic, to have all the findings of Employee's MRI. Thus, just because Employee had an injury, it does not mean that everything that followed was caused by that injury. However, Dr. Bauer's opinions are given little weight and credibility as he neither addressed why degeneration would only show at one disc, and not in others, nor provided the basis for his conclusion degeneration pre-existed the work injury. AS 23.30.122Smith. He did not consider other potential causes of degeneration; he did not explain why Employee would belong to the 40 to 50 percent group, rather than the 50 to 60 percent group, absent the work injury. Id. Emphasis added.

The Employee won!

For More Information on Dr. Bauer

A more detailed list of cases in which Dr. Bauer has issued reports can be found here: Gang of Seven: Insurance “Independent” Experts

Call an Experience Workers Compensation Attorney!

If the insurance company set up an appointment for you to see Dr. Bauer or someone like him, chances are they are preparing to cut off your benefits. Call an experienced Workers Compensation attorney.

Check out my past verdicts & settlements page here: http://www.keenanpowell.com/past-verdicts-settlements

And for updated verdicts and settlements, check out these posts: Never Give Up, Never Surrender – 2019 Victories, Never Give Up, Never Surrender 2020!

Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 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, email: keenan@keenanpowell.com or call:  907 258 7663.