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 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:
Are you really injured?
Is the work injury the cause of medical treatment?
Is the work injury the cause of disability?
Can the injured worker go back to work?
Does the injured worker need future medical treatment?
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:
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:
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
If the insurance company is not paying you a fair temporary total disability rate,
If the insurance company scheduled an examination with their doctor, the so-called "independent medical evaluation,"
If you need to reschedule the insurance examination because you can't attend it,
If the insurance company sends you a Controversion Notice (see below),
If the insurance company refuses to pay your medical benefits,
If the insurance company is late paying your disability benefits,
If you are being evaluated for reemployment benefits (retraining),
If the insurance company claims your case is closed,
If the insurance company makes an offer to settle your case,
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
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.
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. 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.
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.
I’m getting a lot of calls lately. Injured workers are worried. They have been sent to an"independent" medical evaluations. And, they have every reason to be concerned. If your insurance company is sending you to one of these doctors, then you should be worried too. The insurance company wants to cut off your benefits. And it hired Dr. Bauer or Dr. Youngblood to give them a reason. They don't care if you aren't finished treating. They don't care if you can't go back to work. They want to stop paying your disability and medical benefits.
Ain't Nothing "Independent" About Them.
Dr. David Bauer and Dr. Scot Youngblood are two insurance company darlings. They have been traveling up to Alaska frequently as of late. And they have been producing reports for years. But there ain’t nothing independent about them! These doctors are paid thousands of dollars for every report they write. And they keep writing these reports no matter how often the Alaska Workers Compensation Board shoots them down which is over and over again.
Once the insurance company receives the “independent” medical evaluation report, they will cut off your benefits immediately. They should send you a Controversion Notice. But they don’t always. Not to worry, you don’t need a formal notice to start the claims process.
If you want to see what the notice should look like, the forms are available on the Alaska Workers Compensation Board's website: Workers' Compensation Forms (alaska.gov).
Short story: if your insurance company is sending you to see one of these doctors, its because they intend to cut off your benefits, you're in for a fight.
What to do? Start collecting all your medical records from your treating physicians and call an attorney.
Contact an Experience Workers Compensation Attorney
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.
The insurance companies are bringing up Dr. Scot Youngblood for “independent” medical evaluations again.
How “Independent” is Dr. Youngblood?
Dr. Scot Youngblood has become one of the new go-to doctors so called "independent" medical evaluations. There is a reason for that. He can be relied upon to issue an opinion that there was no work injury, or work injury is not the cause of the ongoing need for treatment or disability, or that any problems are caused by “age and genetics.” As of 2017, Also, Dr. Youngblood was performing 15 to 20 "independent" medical evaluations per month which would earn him approximately $85,000 per month. Because of his incentive to curry his opinion to please his insurance employers, his opinion was given less weight. Piasini-Branchflower v Anchorage School District, AWCB Dec. No. 17-0041 (April 11, 2017)
Dr. Youngblood: Pain behavior and symptom magnification
Tobar v Liberty Insurance Co, 447 P 3rd 747 (Alaska 2019). In July 2013, a hotel housekeeper injured her back while lifting a pile of linens. She was taken by ambulance from her workplace to the hospital because she had difficulty walking. An MRI showed a bulging disc in her lumbar spine. She was given an epidural and prescribed physical therapy. In March of 2014, the insurer sent her to see Dr. Scot Youngblood for an "independent" medical evaluation who opined that she had a low back strain in July 2013, had “pain behavior and symptom magnification” and that the work injury was not the substantial cause of her degenerative disc disease. The case went to hearing before the Board in June 2017 where the claimant was not represented by counsel. She lost. She lost again in front of the Commission. The Employee Won.
Dr. Youngblood: Pre-existing degenerative disc disease
Reuer v New Hampshire Ins Co., AWCB Dec. 16-0033 (April 22, 2016). On October 26, 2010, the Employee was injured in a motor vehicle accident as a school bus driver. He reported injury to the neck, back, shoulders, and arms. On July 1, 2015, the Employer sent him to Dr. Scot Youngblood for an an "independent" medical evaluation who opined that he had suffered cervical sprain/strain in the work injury, now resolved and medically stable, and that he had “multilevel degenerative disc disease, pre-existing, age and genetics related” and not caused by the industrial injury. The Board ordered a Second Independent Medical Evaluation (SIME).
Dr. Youngblood: Age, genetics, gender, and obesity
Corona v State of Alaska, AWCB Dec. 20-0032 (May 21, 2020). On June 30, 2017, the Employee reported carpal tunnel syndrome symptoms in both wrists. She was seen by a number of doctors who were uncertain about the diagnosis and treatment. On September 15, 2017, the State sent her to Dr. Scot Youngblood for an an "independent" medical evaluation who opined that her carpal tunnel syndrome symptoms were related to her “age, genetics, gender, and obesity” and not substantially caused by industrial activities on June 3, 2017. In its decision, the Board pointed out that there was no family history of carpal tunnel syndrome and that Dr. Youngblood’s risk-factors did not conform to the statute and case law. The Employee won.
Dr. Youngblood: Age and genetics
Campoamor v Berkshire Hathaway, AWCB Dec. 19-0014 (November 8, 2019). The Employee slipped on melted ice on stairs at work and stopped his fall by grabbing a handrail. He ended up having five shoulder surgeries. His treating physicians also believed that he had injured his neck. The insurer sent him to Dr. Youngblood for an "independent" medical evaluation who opined that “age and genetics” were the cause of cervical disc disease and that there was no further need for shoulder treatment. He also opined that there was no explanation for the continued pain symptoms. The SIME doctor diagnoses a brachial plexus injury. Th Board found that Dr. Youngblood’s opinions were not supported by the evidence and that it did not conform to legal requirements. The Employee won.
Dr. Youngblood: Cannot explain her pain
Longway-Marotta v Liberty Insurance Co., AWCB Dec. No. 17-0137 (December 8, 2017). On August 18, 2016, the Employee was working as a flagger when a bus drove through a construction zone striking her sign paddle, causing right arm and shoulder to hyperextend. She was diagnosed with shoulder impingement and rotator cuff tendinopathy. On November 16, 2016, she was sent to Dr. Youngblood for an an "independent" medical evaluation who opined that she had suffered a sprain which was resolved and required no further treatment. At his deposition, he testified that her subjective complaints of pain were in excess of objective findings (i.e. she is lying) and that her shoulder was not injured at all. He also testified that she had age-related arthritis in her neck and mild rotator cuff tendinopathy “which just means that, you know, like the rest of us, she’s getting older.” He could not explain her pain so the Board gave his opinion less weight and was against the weight of the evidence. The Employee won.
Dr. Youngblood: Age and genetics, psychological issues
Piasini-Branchflower v Anchorage School District, AWCB Dec. No. 17-0041 (April 11, 2017). The Employee, a teacher, slipped on the ice and fell twisting her back neck to hips, also injuring her right knee and right hand on January 2, 2009. The Employer sent her to Dr. Scot Youngblood for an an "independent" medical evaluation who opined that her right knee meniscus tear was preexisting, related to age and genetics, and not related to the fall. He stated that she had multilevel degenerative disc disease, not caused or aggravated by work, and that her ankle sprain and thumb injury were not related. He also found significant psychological issues and there were no objective findings to support her ongoing pain complaints. The Board found that her hand injury and right knee injuries were work-related and specifically discounted Dr. Youngblood’s “age and genetics” causation opinion because it was conclusory, he didn’t understand the mechanics of the fall, and he behaved more like an advocate for the Employer than as an objective medical evaluator. The Employee won.
Dr. Youngblood: Strain resolved, no need for further medical treatment
Contreras-Mendoza v Alaska National Insurance Co, AWCB Dec. No. 18-0023 (March 6, 2018). On January 21, 2016, the Employee twisted her left ankle during a work basketball game. She was diagnosed with a peroneus brevis tear and surgery was recommended. On October 21, 2016, the Employee sent her to see Dr. Scot Youngblood for an an "independent" medical evaluation who opined that her ankle strain was resolved and medically stable, that her subjective complaints were in excess of objective findings, and she did not need treatment. The Board ordered a Second Independent Medical Evaluation (SIME).
Dr. Youngblood: Pre-existing knee problems
Blakeslee-Edwards v State of Alaska, AWCB Dec. No 16-0097 (October 27, 2016). The Employee, who suffered from cerebral palsy, tripped at work on April 28, 2008, December 14, 2011, and February 10, 2012. On March 20, 2014, her Employer sent her to see Dr. Eugene Wong and Dr. Scot Youngblood for an an "independent" medical evaluation. They concluded her knee problems were pre-existing. The Board ordered a Second Independent Medical Evaluation (SIME).
Dr. Youngblood: Age, genetics, and inherent foot anatomy
In Lena v Fred Meyer Stores, AWCB Dec. No 16-0135 (December 30, 2016), Dr. Younblood's an "independent" medical evaluation report stated that the Employee’s shoes could not have caused her condition (without examining the shoes) and the potential causes were “age, genetics, and inherent foot anatomy”. He opined she was medically stable, and needed no further treatment. His opinion was given less weight because of the inadequate basis.
Moral of the Story
There are two morals of this story:
Dr. Youngblood’s opinion will be used against Employees,
The Alaska Workers Compensation Board, more often than not, does not agree with his opinions.
If the insurance company in your case is sending you to see Dr. Youngblood for an an "independent" medical evaluation, it is because it plans to controvert your benefits. You should collect all your medical records and find an attorney now.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for nearly 40 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. http://www.keenanpowell.com/past-verdicts-settlements
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 resolved. Because 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.
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 23.30.122; Smith; Moore. 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 23.30.122; Smith; Moore.
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 23.30.122; Smith. 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.
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.
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.
“Preexisting conditions” is an excuse that the insurance companies like to use to deny benefits. Frequently they will hire their own doctor ("IME") to say that an Employee’s need for medical treatment or his disability is not because the Employee was injured at work, but instead due to preexisting conditions, usually degenerative disc disease.
The law is clear: work-related injuries which aggravate, accelerate or combine with pre-existing conditions to cause a disability or need for medical treatment is still a Workers Compensation injury.
