Author: Keenan Powell

In a workers compensation case, why hire an attorney instead of a non-attorney representative?

The first and most obvious reason is that an attorney cannot accept money from an employee for a workers compensation case. If the case is won or settled, the attorney is paid by the insurance company. By contrast, non-attorney representatives take money from the employee -- win, lose, draw.

The second reason is experience. Attorneys know what can go wrong because of their experience and can head problems off at the pass. A non-attorney doesn't have that experience, can make serious mistakes and turn what should have been a case of delicate negotiations into an all-out losing war.

The third reason is training. Attorneys have a comprehensive knowledge of law, procedure and ethics because they went to law school and are mandated by the bar to take continuing legal education every year. Their superior knowledge is a bedrock for understanding how the workers compensation system works. A non-attorney doesn't know why the compensation system differs or how to borrow from civil court procedure and cases to strengthen the injured worker's case.

The fourth reason is bar admission. An attorney is subject to disciplinary action by the Bar Association in the event that s/he commits a foul. A non-attorney representative probably didn't go to law school and gets off scot-free if s/he malpractices the case.

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. www.keenanpowell.com.

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

The Alaska Workers Compensation Board handed an employee victory on January 5, 2016 in the case of Gerlach v Liberty Mutual Insurance Co, Decision No. 16-0003. In that case the employer denied that the claimant was an “employee” as defined by Alaska law.  The Board found otherwise.

Whether an employee is an “employee” or an “independent contractor” determines whether he is entitled to workers compensation benefits. An employee gets benefits. An independent contractor does not.

In applying the six factor “relative nature of the work” test, the Board found there was sufficient evidence to support an inference of an employer-employee relationship. The factors which the Board found decisive in this case were: the remodeling and maintenance of the fishing lodge was a regular part of the business, the employee wasn’t paid enough for him to secure his own insurance, the employee was hired on a continuance basis (rather than for a particular project), the employer exercised control over the employee’s work, and the maintenance tasks required little or no skill.

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. www.keenanpowell.com.

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

 

Employees have no duty to cooperate with a nurse case manager sent by the insurance company. Freeman v ASRC, AWCB Decision No 15-0073 (6/26/15). 

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.

And, sadly enough, there is one case documented (and probably more which have not shown up) where 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 evidence in the case tends to show that 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 of her role etc, 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.

When you’re first injured at work, there a three things you need to do.

First, you need to fill out a Report of Injury. Your employer should have that form. If your employer says they don’t have the form or refuses to give it to you, go to the Alaska Workers Compensation Board and tell them that you want to report your injury.  The Board’s office is at: 3301 Eagle Street Suite 304, Anchorage.   In Fairbanks, it’s at 756 Seventh Avenue Station K.   There is a Juneau office as well.  Call them at (907) 465-2790.

Second, if your doctor says you can’t work, then you need to get a disability slip from him.  Some doctors call this slip a “work release”.  You need to give that disability slip to your employer.  If the insurance company has already contacted you, then you should send them a copy.  You need to keep a copy for yourself and make a note of the date when you gave the slip to your employer or the insurer.

Third, you need to pull together your tax records from the previous two calendar years. If you were injured in 2015, then you need to pull together 2014 and 2013.  If you didn’t file taxes, you need to collect all of your W-2s.  You need to give a copy of these records to the adjuster so he or she can calculate your compensation rate.  You should keep a copy for yourself and again make a note of the date you gave this documentation to the adjuster.

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. www.keenanpowell.com.

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

 

 

It has long been Alaska law that complications as the result of a work-related injury are also workers compensation injuries and the insurance company must pay for all benefits caused by the complications as well as the original injury.  Kodiak Oilfield Haulers v Adams, 777 P 2d 1145 (Alaska, 1989).

In the Adams case, the injured worker was involved in an automobile accident while he was driving home from a doctor’s appointment which aggravated his work-related back injury.  The Board held that the motor vehicle accident injury was compensable and the Alaska Supreme Court affirmed it.

In Dupius v Glacier Seamless, AWCB Decision No 11-0103 (7/19/11), a worker cut his finger at work, had it treated in an emergency room and picked up a staph infection in the wound.  The Board held that the employer was responsible for the treatment of the staph infection as well as the cut.

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.

 

Sometimes an employer will try to avoid Workers Compensation benefits by claiming that his employee is not really an employee but an independent contractor instead. It’s happened so many times that a regulation was adopted by the Department of Labor and several cases have come down the pipes on the issue.

The “relative nature of the work test” was “put to the test” in the case of Misyukv Shastitko, AWCAC Decision No 202 (11/4/14). In that case, a long distance truck driver died in a trucking accident. His employers claimed he was an independent contractor and so his widow and orphans were not entitled to workers compensation benefits.  The Board found the trucker was an employee and the commission affirmed the decision based upon the following reasons:

1. There was a express oral contract by which the trucker was hired as a regular driver for the trucking firm,
2. The trucker did not have his own truck and he drove exclusively for the trucking firm,
3. The trucker had no authority to hire or fire other employees,
4. The trucker did not pay anyone else to help him,
5. The trucking company exercised control over how the deliveries,
6. The firm provided the truck and a company credit card for fuel. It also paid for liability insurance on the truck and provided for maintenance and repairs,
7. The trucker was paid bi-weekly, instead of by the job,
8. Trucking was the regular part of the employer’s business,
9. The trucker worked exclusively and consistently for the trucking firm,
10. The employment was continuous.

This is what the “relative nature of the work” test says:

8 AAC 45.890. Determining employee status

For purposes of AS 23.30.395(19) and this chapter, the board will determine whether a person is an “employee“ based on the relative-nature-of-the-work test. The test will include a determination under (1) - (6) of this section. Paragraphs (1) and (2) of this section are the most important factors, and at least one of these two factors must be resolved in favor of an “employee“ status for the board to find that a person is an employee. The board will consider whether the work

(1) is a separate calling or business; if the person performing the services has the right to hire or terminate others to assist in the performance of the service for which the person was hired, there is an inference that the person is not an employee; if the employer

(A) has the right to exercise control of the manner and means to accomplish the desired results, there is a strong inference of employee status;

(B) and the person performing the services have the right to terminate the relationship at will, without cause, there is a strong inference of employee status;

(C) has the right to extensive supervision of the work then there is a strong inference of employee status;

(D) provides the tools, instruments, and facilities to accomplish the work and they are of substantial value, there is an inference of employee status; if the tools, instruments, and facilities to accomplish the work are not significant, no inference is created regarding the employment status;

(E) pays for the work on an hourly or piece rate wage rather than by the job, there is an inference of employee status; and

(F) and person performing the services entered into either a written or oral contract, the employment status the parties believed they were creating in the contract will be given deference; however, the contract will be construed in view of the circumstances under which it was made and the conduct of the parties while the job is being performed;

(2) is a regular part of the employer's business or service; if it is a regular part of the employer's business, there is an inference of employee status;

(3) can be expected to carry its own accident burden; this element is more important than (4) - (6) of this section; if the person performing the services is unlikely to be able to meet the costs of industrial accidents out of the payment for the services, there is a strong inference of employee status;

(4) involves little or no skill or experience; if so, there is an inference of employee status;

(5) is sufficient to amount to the hiring of continuous services, as distinguished from contracting for the completion of a particular job; if the work amounts to hiring of continuous services, there is an inference of employee status;

(6) is intermittent, as opposed to continuous; if the work is intermittent, there is a weak inference of no employee status.

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.

 

In my case,Williams v McDonalds, the Alaska Workers Compensation Board handed down a decision yesterday: Williams D&O 15-0116.  It's 75 pages long so I'll summarize: The Employee won!

The Board made several rulings, the most important is that the old "pre-existing condition" defense used by the Employer to refuse benefits was invalid. The Board ordered the Employer to pay all back temporary total disability benefits plus penalties and to immediately start paying medical benefits, including a needed back surgery.

In this case, the Employee had an injury and back surgery in 1987. For the following 27 years, he worked hard and had absolutely no back pain other than normal strains. In 2014, he slipped on ice and fell, injuring his back again. The 2014 employer claimed that his injury was "preexisting" because of the 1987 injury.

The Board ruled the 2014 injury was not preexisting because the Employee had no pain complaints in the 27 years before the 2014 injury and he had not seen a doctor from the time he recovered from the 1987 surgery until the 2014 fall.

Keenan Powell has more than 30 years experience fighting for the rights of injured Alaskans. Currently accepting new cases.

Consultations are FREE.  Call 258-7663. 

"If it isn't documented, it didn't happen," a nurse said to me in a deposition once. Documentation is the very heart of evidence. And proof of documentation is even more important. It doesn't matter if you prepared a travel reimbursement log if you don't give it to the insurance company. And it won't matter if you can't prove you gave it to them. Because guess what? They lie.

An insurance defense attorney lie to my more than once in a case about proof she claimed she never received. She lied to my client before I entered the case. She lied to me when entered the case. She lied to the Board when I filed a motion demanding she produce the documentation. And then just weeks before the trial, she produced the documentation I had asked for. It had been in her file for almost a year.

She lost the case. I won.

So if you need to send the insurance company anything, keep proof that you sent it. If you fax it, keep a fax confirmation sheet and staple it to the fax you sent. If you mail it, send it certified mail. If you hand deliver it, demand that the secretary sign and date your copy.

Keenan Powell has more than 30 years experience fighting for the rights of injured Alaskans.

Consultations are FREE.  Call 258-7663. 

 

After a Claim or Petition is filed, the Alaska Workers Compensation Board will send a letter to all the parties notifying them that a prehearing has been scheduled.  The purpose of the prehearing is to get everyone in the same room at the same time and make sure that they are all on the same page. The purpose of the prehearing is NOT to settle the case or for the Board to make a decision regarding the merits of the case. However if the Board designee (the prehearing officer) will make decisions regarding discovery issues, such as the propriety of releases.

The kinds of things that will be discussed can include: scheduling depositions, scheduling a hearing date for the Claim or Petition, scheduling an employer independent medical examination or a second independent medical evaluation, and the discovery issues.

After the prehearing, the Board designee will issue a Prehearing Conference Summary and mail it to all the parties. The summary will include notes about everything that was discussed, what was agreed upon, any decision the Designee makes and whether further hearings or prehearings have been scheduled. It is imperative that an unrepresented employee read the summary and understand it because there will also be information about deadlines and the statute of limitations.

Keenan Powell has more than 30 years experience fighting for the rights of injured Alaskans.

Consultations are FREE.  Call 258-7663.