Author: Keenan Powell

Do not assume that you have blown the statute of limitations in your workers compensation case! The statute is complicated. So, before you give up, talk to an experienced workers compensation attorney and find out what can be done.

 But beware! If you are not vigilant in pursuing your rights under the Alaska Workers Compensation Act, your case – no matter how valid it is – can be dismissed. Here are two recent examples:

Vanderpool v State of Alaska, AWCB Dec. No. 21-0123 (12/28/21)

The Employee’s claim was dismissed because his attorney failed to ask for a hearing before the deadline.

On January 1, 2017, the Employee reported a traumatic injury to multiple parts caused by ice or snow. Two years and one month later, on January 31, 2019, an attorney entered file a claim on his behalf for temporary total disability (TTD), permanent partial impairment (PPI), unfair/frivolous controversion, penalty for late paid benefits, and interest.

On February 28, 2019, the State’s attorney filed a controversion notice denying all benefits. It relied on its “independent” medical evaluation report which stated that he was medically stable and did not sustain a permanent injury.

On October 23, 2019, the Employee’s attorney brought up the topic of a SIME (Second Independent Medical Evaluation) at a prehearing. (For more information about SIMEs, see: Negotiating the Maze III: Second Independent Medical Evaluations (SIME) - Keenan Powell, Attorney at Law. The Employee’s attorney did not file a petition for SIME.

On June 11, 2021, over two years after the Employee’s attorney filed the claim, he sent a letter to the State’s attorney asking the State to agree to a SIME. Note: you don’t need the Employer’s agreement to go forward on a SIME.

On June 16, 20201, the Employer filed a petition to dismiss the Employee’s claim because had failed to request a hearing within two years of the February 28, 2019, post-claim controversion.

On August 17, 2021, the Employee’s attorney filed an ARH (Affidavit of Readiness for Hearing), the document that must be filed no later than two years following the post-claim controversion. It was due on March 3, 2021, so it was five months and 26 days late.

The Board dismissed the Employee’s case, finding:

1.            The Employee’s attorney could have filed an ARH on time or a request for additional time to prepare for one – on time. He did not.

2.            A SIME is one reason to excuse filing an ARH within two years, but the Employee’s attorney never filed a petition seeking a SIME.

3.            The Employee’s attorney’s neglect in failing to file the ARH on time was not excusable.

4.            The Employee’s attorney’s claim that he was confused about the deadlines was not reasonable when he had been served with a notice about the deadlines twice.

5.            The Employee’s attorney’s failure to calendar his deadlines was not good cause to excuse his failure to request a hearing.

6.            The COVID epidemic was not an excuse for meeting the deadline.

You can read the opinion for yourself here: D&O 21-0124 not 21-0123 .pdf (alaska.gov)

Moral of the story: An attorney who isn’t familiar with workers compensation law or procedure, or who isn’t vigilant in pursuing your rights, can destroy your case.

Ducasse v Making Employment Connections, AWCB Dec. No 22-0002 (1/5/2022)

The Employee’s claim was dismissed because her claim was filed late.

On December 19, 2017, the Employee injured her back when wheeling a Hoyer lift with a patient in it around a door. The Employer accepted the work injury and began paying TTD and medical costs.

On December 11, 2018, the Employee received her final TTD payment. On February 14, 2019, the Employee received her final PPI payment. Also on February 14, 2019, the Employer controverted all benefits based on an “independent” medical evaluation.

On August 10, 2021, the Employee’s attorney filed a new claim for TTD, PPI, medical and transportation benefits, fees, costs, and reemployment benefits.

On August 30, 2021, the Employer filed a petition to dismiss the Employee’s TTD claim as it was time-barred, i.e. the statute of limitations had run.

In dismissing the Employee’s case, the Board held:

1.            The statute of limitations applies to PPI as well as TTD claims. The Employee could file a claim for additional TTD or PPI no later than two years after the last payment of either benefit.

2.            The August 10, 2021, claim had missed both deadlines.

You can read the opinion for yourself here: D&O 22-0002.pdf (alaska.gov)

Moral of the story: You need to be vigilant in pursuing your workers compensation rights.

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.

At the Law Office of Keenan Powell, we received a number of favorable decisions from the Alaska Workers Compensation Board in 2021. Below are two significant wins:

Brown v Titan Medical Holdings AWCB Dec. No. 21-0081 (9/8/21)

The Employee fell on icy stairs at her employer-provided housing while she was on her way to work, injuring her back, right hip, right knee, and right shoulder. Most of her injuries resolved within a few months, but surgery on her right shoulder was recommended on October 14, 2020.

On January 20, 2021, the Employer controverted her benefits relying upon an opinion from Dr. Pino, its “independent” medical evaluator, having failed to read or understand his report. Dr. Pino had performed an evaluation the prior summer and found that the right shoulder condition was caused by the work injury and that recommended treatment was reasonable and necessary. The insurance company failed to attach a copy of Dr. Pino’s report to the controversion.

A claim was filed on her behalf by this office for unfair controversion and for a compensation rate adjustment as the adjuster had purposefully selected a year when the Employee made the least amount of money to calculate her benefits. Dr. Pino’s report was demanded. When it came in, the undersigned emailed opposing counsel, pointing out to him that his expert had agreed with the treating physicians. The insurance company immediately lifted the controversion of right shoulder benefits.

The case went to hearing on July 15, 2021. The Alaska Workers Compensation Board held:

            1.         Work was the substantial cause of the Employee’s disability and need for medical treatment,

            2,         The Employee was entitled to medical benefits and transportation costs,

            3.         The Employee was entitled to a compensation rate adjustment.

            4.         The insurance company had committed unfair or frivolous controversion and was referred to the Division of Insurance.

Nelson v State of Alaska, AWCB Dec. No 21-0092 (9/27/21)

This case has a long and storied past.

The Employee injured his neck at work in 2015. In early 2016, the Employer controverted benefits relying up a report by its “independent” medical evaluator, Dr. Craven. A claim was filed together with a petition for second independent medical evaluation. In late 2016, the Employee was seen by Dr. Scarpino in Hawaii who reported that the neck pain was caused by the work event. After that report, the Employer withdrew its controversion and the Employee had neck surgery.

In 2019, the Employer obtained another “independent” medical evaluator, this one from Dr. David Bauer. Dr. Bauer reported that the ongoing neck pain was not work-related. The Employer did not controvert at the time of the report.

In late 2020, the Employee’s doctor said he needed another neck surgery. The Employer refused to authorize the surgery. In early 2021, the undersigned filed a claim on the Employee’s behalf.

The Employer had a third “independent” medical evaluation, this one by Dr. Bauer, performed in April of 2021. He again stated that the need for treatment was not work-related.

A petition for second independent medical evaluation (SIME) was filed by the undersigned in May of 2021. The Employer objected to a SIME so the petition went to hearing.

The Board granted the Employee’s petition for SIME and ordered that it would be performed by Dr. Scarpino, who had performed the first SIME.

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.

Sign No 1: No Communication

The adjuster doesn’t respond to your calls or emails.

Sign No 2: No Reimbursements.

The insurance company didn't reimburse you for travel and out-of-pocket medical expenses.

Sign No 3: The “Independent” Medical Evaluation

The insurance company scheduled an “independent” medical evaluation. Ain’t nothing independent about them. The only one reason the insurance company sends you to its doctor is to cut off your benefits. It wants their hired guy to say you don’t need the treatment your doctor recommended, or you can work. Or both.

For more information on “independent” medical evaluations, click here: Gang of Seven: Insurance "Independent" Experts - Keenan Powell, Attorney at Law

Sign No 4: Medical Treatment Delayed

Your medical treatment is delayed because the insurance company refuses to authorize it. This usually happens when surgery is recommended. The problem is, the longer your surgery is delayed, the longer it is before you can go back to work.

Sign No 5: Disability Payment Late or Never

Your temporary total disability payments are not being paid, paid late, or underpaid. If you want to check to see what your benefits should be, look at this benefit calculator: Workers' Compensation Online Benefits Calculator. (alaska.gov)

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.