When you file a claim or petition before the Alaska Workers Compensation Board, you are entitled to a hearing and you are entitled to a decision.

Generally the Board will send out a prehearing notice following the filing of a claim or petition. The purpose of the prehearing is to determine that everyone understands on what the dispute is and how to go forward. Frequently the insurance defense attorney will show up and argue that you are wrong and not entitled to what you asked for. If the issue is a protective order that you requested regarding a discovery dispute, you need to explain the reasons why you think you are entitled to the protective order. The Board designee will make a decision and issue that decision in written form in the body of the prehearing conference summary which will be mailed to you.

If you disagree with the designee’s decision, you can file for a hearing. The procedure should be explained in the prehearing conference summary.

On all other matters, you are entitled to a hearing in front of the Board. Take note of what the insurance attorney is saying. Sometimes they will give you their entire case at the prehearing, which gives you an idea of what evidence you need to collect to prove your case and disprove their defense.

Twenty days after you file a claim or petition, you can file an affidavit of readiness for hearing (assuming you are ready). A prehearing will be set so that the Board, the insurance defense attorney and you can agree upon a date for the hearing. In the prehearing conference summary, there will be a schedule telling you when to file and serve your hearing brief, witness list, and evidence.

At the hearing, the Board may keep the record open for additional evidence or briefing. Otherwise the record closes at the hearing.

Thirty days after the record closes, the Board is supposed to issue a decision. The decision will be mailed to you and posted on the Board’s website. So what if the Board doesn’t issue a decision on time? What can you do?

You can remove the case to Superior Court. The first step in removing the case is filing a notice with the Board informing them of your intent to do so pursuant to AS 44.62.305. You must file this notice 30 days before you file the action in Superior Court. The requirements set out in the statute need to be met in the notice. If you are handling the case yourself, you can access the statutes and regulations at the courthouse library or on-line at the court’s website.

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 go to a prehearing, chances are the prehearing officer will explain Second Independent Medical Evaluations (SIME). Chances are he explained a lot of things and it all sounded like a foreign language. Because it is.

Not to fret. This is what SIMEs are about:

A Second Independent Medical Evaluation is an evaluation by the Board’s doctor. Here is the list of doctors who serve on the Board: SIME doctors , bulletin 16-03.

You are entitled to a SIME when the insurance doctor (“IME”) disagrees with your treating physician. Typical disagreements are: the insurance doctor says your injuries are preexisting degeneration; your treater says they are work-related. The insurance doctor says you don’t need any treatment; your treater says you need surgery. The insurance doctor says you aren’t disabled; your treater says you can’t work because of your injury.

If you have a documented dispute between the insurance doctor and your treating physician, you should request a SIME before you go to hearing. Otherwise you can go to hearing, lay out your entire case and have the Board decide it needs an SIME before it makes a decision. Ultimately, the case will go smoother if you get ask for the SIME as soon as you have a documented dispute.

A documented dispute means that your doctor said in writing something different than the IME doctor said. That is why it’s so important for you to collect all of your medical records. Many claimants think they can rely on the medical records the insurance company files, but the truth is the doctors don’t send all of their medical records to the insurance company in order to bill them. They don’t have to. So if you rely on the insurance company’s medical records, then you might miss an important piece of evidence that is in your doctor’s file.

That is why you need to go directly to your doctors and request a complete set of records.

To see if you have a documented dispute, see if you can fill in the boxes on the SIME form wc6147: If you can quote your doctor’s chart note with the date of the entry, then you probably have the evidence of a documented dispute.

In order to get a SIME, you need to fill out a Petition rev. 2016 and attach the SIME form and the relevant medical records you are quoting.

You need to file the SIME petition with the Board, mail a copy to the insurance company’s attorney and keep a copy for yourself. A few weeks after you file the petition, the Board will schedule a prehearing conference. At the prehearing conference, the insurance company will agree or disagree with your petition.

If the insurance company agrees to the SIME, the prehearing officer will schedule deadlines.

If the insurance company disagrees, you should ask for a hearing so you can get a Board ordering the SIME. If you have documented a dispute between the IME and your treater, the Board will order the SIME.

Once the SIME is scheduled, the insurance company will arrange and pay for your travel including hotel, air and ground travel. It should mail you a check before you go to the SIME for your meals and incidentals. If it doesn’t you can amend your claim asking for reimbursement of your meals and incidentals. You will need to file copies of your receipts to show what you paid. If you missed work because of the SIME travel, you may be entitled to temporary total disability for the missed says.

The SIME doctor is supposed to mail a copy of his or her report to you and the Board 14 days after the examination. If you haven’t received the SIME report within a month, call the Board. And keep calling the Board every two weeks after that asking about the status of the SIME report.

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.

You build your case on your medical records. Your medical records, before and after your date of injury, will prove that you did not have an injury before and you were injured afterwards. They will show that you did not need treatment before but needed treatment afterwards. They will show that you were not disabled before but you were disabled afterwards.

Do not trust the insurance company to collect all your medical records for you. If you are preparing to file, or have filed, a claim then the insurance company is not your friend.

It’s your job to prepare your case and to do that you need your complete medical records from at least two years prior to your date of injury. If you did have issues with the injured body part before (lots of people do – it’s not the end of your case), then you need to collect medical records from two years prior to any problems you had.

You are entitled to your medical records under Alaska law. To obtain them, you need to call your doctor’s office. If you sit through the options on the doctor’s answering system, there is usually an option for “records.” Select that option. Tell them you want a complete set of your medical records. If there isn’t any such option, ask the receptionist.

When you obtain your medical records, make a copy of them and put the original medical records in a safe place. DO NOT WRITE ON YOUR MEDICAL RECORDS. They are evidence. If you write on them, you have tainted the evidence and they will be inadmissible. You may need to copy them multiple times as your case progresses.

I keep the original medical records in separate file folders for each provider. When I obtain updates, I put the originals in that provider’s file folder.

When you have made a copy of your medical records, you need to sort the copies in chronological order and prepare medical summary forms. This is the medical summary form:  wc6103 - Medical Summary.

Feel free to download the form. Save a blank form to your database, then make a new copy for each medical summary you prepare. You can type directly on it. The form is also available, as are all forms, at the Alaska Workers Compensation Board's website: http://labor.state.ak.us/wc/pdf_list.htm.

Each record needs to be listed individually. Yes, it is tedious. But you will be happy later that you listed the records individually in chronological order because it will be easy for you to refer to. It will also make the Board’s life easier later on if they have to look for a particular record in your file. The codes to be used in the third column are listed on the bottom of the form. Here is a sample of a medical summary I prepared: wc6103 - Medical Summary sample

When you are finished with the form, print, sign and date on the bottom. You will probably need more than one form for all your records.

Then you take the medical summary and the records it lists and make two copies of it. You need to file the original medical summary form that you signed and dated, together with the records, with the Workers Compensation Board. Generally there are too many records for the Board’s electronic filing system to accept; it’s just easier to mail it or deliver it yourself. You need to mail a copy of everything to opposing counsel or the insurance company if there is no opposing counsel and you need to keep a copy for your own files.

If you continue treating as your case progresses, you will need to collect your medical records periodically and create medical summaries for them as well. How frequently you update your records depends on how frequently you treat. When you are going to hearing, you will need to have your complete medical records. You need to file your evidence 20 days before the hearing so give the doctors plenty of time to respond to your request for updated records and allow yourself plenty of time to create the medical summaries. It’s a good idea to ask for the updates 30 days before your deadline for filing evidence.

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.

 

The Alaska Workers Compensation Board issued a Final Decision and Order in the case of Gillion v The Northwest Co/Berkshire Hathaway Homestate Insurance Co. on 
July 31, 2017, Gillion v Berkshire Hathaway.

Holmes, Weddle & Barcott defended the insurance company.

In this case, the Employee had been treated with epidural injections for a herniated L5-S1 and annual tear. When the treating physicians  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.

The insurance then cut off the Employee's medical treatment without filing a controversion notice as required by Alaska law. In response, a claim was filed for medical benefits and an increase in the compensation rate that had been been paid when the Employee was off work.

The claim was filed which was vigorously defended by Holmes, Weddle & Barcott. A few days before the hearing, Holmes, Weddle & Barcott filed a petition demanding mediation and to have the hearing canceled. The Employee opposed the petition. The law is clear that a party is entitled to a hearing upon the claim. Once a hearing date is set, it cannot be canceled except for good cause. Moreover, the Employee was not willing to compromise his claim; he wanted a decision from the Board.

On the morning of the hearing, the Board denied Holmes, Weddle & Barcott's petition for mediation. In response, the insurer suddenly withdrew its controversions and agreed to pay medical benefits. However, Holmes, Weddle & Barcott did not agree to the compensation rate amount sought.

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.

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.

Say you’re having problems with you workers compensation insurance company and don’t know what to do.  Your first solution is to call an attorney. If you start calling firms, you will quickly find out that the first thing most attorneys want to know is whether you have been controverted and some attorneys will not review your case if you have not been.

I meet with clients whether or not they have been controverted and I’m happy to meet with you and review your case.

If you don’t feel ready to call attorneys, you still have options. You can go down to the nearest Workers Compensation office and explain the problems you’re having. The office addresses are posted on the Board’s website: http://labor.state.ak.us/wc/home.htm.

The Board has employees there who will talk to you and try to guide you through the process.

If you believe you haven’t been treated fairly, you will need to file a claim. The claim form is found on the Board’s website in the forms directory:  http://labor.state.ak.us/wc/forms/wc6106.pdf/

You can fill it out on the computer, then print it off and e-mail it to the Workers Compensation Board: workerscomp@alaska.gov.

The Board will send a copy to the insurance company and your employer. The Board will also send you a copy by US mail documenting that your claim has been filed.

The next thing that will happen is the Board will set a prehearing. You can attend by telephone if you need to, but if you don’t have an attorney and you can attend in person, it would be a good idea. At that time, a Board employee will explain the procedures and deadlines to you more fully.

You can expect to see an answer from a law firm representing your employer and the insurer twenty days after the claim is filed. As a general rule, they will send you a list of questions and some forms to fill out. Their questions may or may not be appropriate. If you have not consulted with an attorney by then, you should seriously consider doing so.

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.

 

The Employee won her case again in Lena v Fred Meyer Stores, (Lena II), Decision and Order 17-0072 issued June 26, 2017. Lena II

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. Lena I.

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 three defenses raised by Fred Meyers was found to be “incorrect”. First, 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. Second and third, it 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.

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.

 

 

 

Maybe you don’t. Here are a few things to consider:

A lawyer knows how to fill the forms out correctly.

A lawyer will know if the insurance company is treating you fairly.

A lawyer will know the statutes, the regulations, the Board decisions and Commission decisions. Issues that commonly come up in hearings before the Board include pre-existing conditions, palliative care, compensation rate adjustments and reemployment benefits.

A lawyer knows what releases you need to sign for the insurance companies and which releases should be disputed.

A lawyer will know when an “independent medical evaluation” is not legally sufficient to deny benefits.

A lawyer will be with you in your deposition.

A lawyer will prepare your case for hearing, draft and file a hearing brief and the exhibits.

A lawyer will know whether you should file an appeal.

A lawyer will know whether you need a lawyer. Call one and ask if you need a lawyer.

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.

According to the Governor's office, a shutdown would affect the Alaska Workers Compensation Board and Commission: "The failure to pass a budget would have significant impacts on the department’s ability to perform important responsibilities, including resolution of labor disputes and elections, workers’ compensation adjudications and appeals, and resolution of wage and hour violations." https://gov.alaska.gov/newsroom/2017/06/services-to-alaskans-at-risk-in-potential-state-government-shutdown/

A word to the wise: if you have any workers compensation issues, you need to file a claim or petition, you need to ask for a hearing date, you need to talk to an attorney, do it now. No one knows how long this is going to last. You don't want to be in a position of arguing that you missed a deadline because of the shutdown; it's better to have your file up-to-date before it happens.

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.

Mediation – Sometimes, the insurance company will suggest that a case should be mediated. There are a few reasons why the insurance company might do this, and these reasons are always to benefit the insurance company, not the injured worker. The insurance company may think you have a really good case and they want to get out of it as soon as possible with the least amount spent. The insurance company may think you have a horrible case and they want to get out of it as soon as possible with the least amount spent.

The insurance company might think you are being unreasonable they want to get out of it as soon as possible with the least amount spent. The insurance company’s attorney might think his adjuster is being unreasonable and he wants to get out of it gracefully.  Sometimes, the insurance company is afraid that Board will find out how badly it treated you and it wants to sweep the whole thing under the rug because the Alaska Workers Compensation Board can send a referral to the Division of Insurance and the insurance company can be investigated for violating insurance laws.

The point is: the insurance company wants to get out of the case.

You don’t have to go to mediation if you don’t want to. If you go to mediation and you don’t like the settlement offer, you don’t have to take it. Settlement negotiations are per se inadmissible in a hearing on the merits so if you refused a settlement offer should not have an adverse impact upon your case.

If you do go to mediation, a mediator will be selected from the Board’s hearing officers unless the insurance company offers to pay for private mediation, which is increasingly rare.

If you do agree to mediation, the mediator will send you a letter setting out what s/he needs before the date of the mediation, including the mediation brief and exhibits.

You do not send a copy of your mediation brief to the insurance company’s attorney. Your brief is filed only with the Board. The insurance company will not send you a copy of their brief.

At the mediation, the mediator will tell you how good s/he thinks your case is and how good s/he thinks the insurance company’s case is.

You don’t have to settle.

You can settle some benefits and leave other benefits open. It is common to settle the indemnity benefits and leave medical benefits open.

If you do go to mediation, plan to spend the day. Bring your cell phone charger. Bring something to read, a deck of cars, a crossword puzzle, or your knitting. Bring plenty of food and water and coffee. The more comfortable and entertained you are, the longer you can hang in there and get a better deal.

The insurance company won’t make a serious offer until after lunch time. Why is that? Why don’t they just tell you up front what they are willing to pay? One reason, I think, is that it’s become part of the culture; it’s been done that way for years. Another reason is that they’re afraid if they offer you everything they have up front, you’ll reject it and the case won’t settle. I tend to think it’s because of the heavy influence of masculine competition that dominated the practice of law for so many years. They need to feel like there was a big fight and that they won something, so you end up playing a tug-of-war like you do with your puppy.

Settlements – If you come to a settlement agreement, with or without mediation, the agreement will be reduced to writing. The insurance company attorney should send you the agreement before you sign it. ALWAYS read the settlement agreement carefully before you sign it. DO NOT go into the insurance company’s law office to sign it unless you have already read and fully understand it. A few things to remember:

DON’T waive your reemployment benefits unless you are actually getting money for them. There is currently a dispute about whether waiving reemployment benefits will forever foreclose an injured worker from seeking reemployment benefits in the future even if it’s for a different injury. For instance, if you injured your knee in one case and waived reemployment benefits because you could go back to work and didn’t need retraining, someday if you injure your back and can’t go back to work, you would not be eligible for reemployment benefits because you waived your benefits in the knee case. Because insurance companies generally insist on a waiver of reemployment benefits, you might be better off years down the line if you went to hearing instead and had the Board order you were not eligible. That way, you would not have waived your benefits and may be eligible some day in the future.

Waiving medical benefits is usually a bad idea, especially in back cases and some knee and shoulder cases which can become a lifetime problems. Think hard about whether the money they are offering you is worth the risk of you not being able to get medical treatment some day in the future for that injury. Talk to your doctor and ask him or her whether you may need treatment in the future.

Closing indemnity benefits means you are going to give up all your future claims to temporary total disability, temporary partial disability, permanent partial impairment rating and permanent total disability. That means if you are ever off work again because of this injury, you will not get any more money. There are many reasons why you could be off work in the distant future because of your current injury. You may need more surgeries or your injury may deteriorate to the point where you just can’t work anymore.

Don’t forget penalties and interest. If the insurance company failed to pay any of your past benefits on time without a legally-recognized excuse, you are entitled to 25% penalties.

Don’t forget your transportation benefits. For the past several years, you have been entitled to more than 50 cents per mile for round-trip travel to your treatment, including physical therapy appointments. That can add up fast.

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.

 

On 9/17/15, the Employee won his case. Williams v Arctic Terra/Umiliak Insurance Co., AWCB Decision No 15-0116 after a year of litigation during which time he was required to attend another “independent” medical evaluation plus testify at his deposition plus fly to San Diego for the Board-ordered second independent medical evaluation and a full day of trial. The Board ordered Umialik Insurance Company to pay his temporary total disability (TTD) back to January 24, 2014, to pay his past and future medical costs for his work injury and to pay his fees and costs.  Umialik was also ordered to pay penalties because it had obtained an “independent” medical evaluation from Dr. Yodlowski in which she rated the Employee with a PPI rating but Umialik never paid it.

Because of the decision, he was able to get the surgery he needed. However Umiliak was consistently late with his 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. Williams v Arctic Terra/Umiliak Insurance Co., AWCB Decision No 16-0095 (10/26/16).

She testified that she had timely mailed a 5/16/16 TTD check to the Employee. By 5/19/16, his attorney had contacted her attorney who told her the check had not been received. She stopped payment on it on 5/27/16 and mailed the first replacement check on 6/1/16, a period of 13 days.

On 6/8/16, she was informed by her attorney that neither the 5/19/16 check nor the first replacement check had been received. On 6/27/16, she mailed an unrelated, routine TTD check but still had not made good on the missing 5/19/16 check. By 7/15/16, she has learned that neither the 5/19/16 check nor the first replacement check had been received. On 8/12/16, she stopped payment on the 6/1/16 first replacement check and mailed a second replacement check. She had no explanation for why she waited from 6/8/16 to 8/12/16, a period of two months and 6 days to issue the second replacement check.

The second replacement check was received by the employee on 8/13/16, the day after she mailed it.

Umialik said it mailed the 5/16/16 check on time, however it claimed that it did not owe penalties because the check had been lost in the mail. However it was the Employee’s position that once Umialik learned the check had been lost, it needed to issue a new check and the 14-day payment period began to run with that notice. The Board agreed, holding the event which trigged the 14-day payment period is when the Employer learns that the check had not been received, cashed or returned.

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.

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.