Author: Keenan Powell

How do you know if your employer or its insurer is treating you fairly? Here are the top seven signs when they aren’t and it’s time to find a lawyer.

1.            Your employer doesn’t report the injury to the Alaska Workers Compensation Board. The report of injury is due within 10 days. This report triggers payment of your medical bills and time loss. In other words, if your employer doesn’t report the injury, your case didn’t get opened.

2.            Your employer offers to pay your medical bills if you don’t report the injury. He won’t.  

3.            Your temporary total disability check is late. The first check is due 14 days after your turn in the doctor’s work release to your employer.

4.            Your doctors are calling you about paying the bills. The insurance company is supposed to pay them. It’s against the law for the doctors to demand money from an injured worker.

5.            The insurance company sends you to an “independent” medical evaluation. There’s nothing independent about them. The insurance company picks the doctor, controls what medical records he sees, and asks only the questions it wants answered.

6.            The insurance company makes an offer to settle your case.

7.            The insurance company controverts your benefits. You should receive a form called “Controversion Notice” stating what benefits are controverted and why.

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.

Dr. Scot Youngblood has become one of the new go-to doctors for insurance defense.  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 evidence, I hereby provide you with quotes from a number of reported cases in which he gave this opinion:

Tobar v Liberty Insurance Co, 447 P 3^rd 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 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. Then Employee Won.

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 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).

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 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.

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. He 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. The 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.

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 who opined that she had suffered a sprain which was resolved and required no further treatment. Amber Creeger, a Liberty adjuster, testified that Dr. Youngblood is “very fair” and “a lot of times” he opines in the injured worker’s favor. 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.

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 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.

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 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).

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. They concluded her knee problems were pre-existing. The Board ordered a Second Independent Medical Evaluation (SIME).

There are two morals of this story:

1. Dr. Youngblood’s opinion will be used against Employees,
2. 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, 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 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, use the contact form on this website or call:  907 258 7663.

We went to hearing again in the Cavitt case recently and won our sixth favorable decision. So far, we have gone to hearing and appeal as follows:

Cavitt I, AWCB Dec. No 17-0109 (September 13, 2017). After fighting the case, the Employer agreed at hearing that the injury was work-related. The Employer agreed to continue medical benefits. The Board ordered payment of TTD. A win.

Cavitt v D&D Services, AWCAC Dec. No 248 (May 4, 2018). On appeal from Cavitt I, the Commission reversed the Board’s award of attorney fees as inadequate. In addition, the Commission awarded fees on appeal. A win.

Cavitt II, AWCB Dec. No 18-0060 (June 25, 2018): The Board awarded continuing TTD and increased the attorney fees awarded in Cavitt I. The Board refused to order life-time medical benefits. A win and a loss.

The denial of life-time medical benefits was appealed leading to the Commission’s Decision No 259 (March 29, 2019) affirming the Board’s denial. That decision has been appealed to the Supreme Court and is ripe for an opinion.

In Cavitt III, AWCB Dec. No 18-0103 (October 15, 2018), the Board held it did not have jurisdiction to award penalties arising from late-paid TTD because an appeal was pending on a similar issue. The Commission reversed the Board on appeal leading to the hearing and win in 20-0012.

D&D Services v Cavitt, 444 P 3^rd 165 (Alaska, 2019). After paying fees ordered in AWCAC Dec. No 248, Liberty appealed the fees award to the Supreme Court. The Court affirmed those fees and further awarded additional fees for the Supreme Court appeal. A double win.

Cavitt v D&D Services, AWCAC Dec. No. 264 (July 8, 2019): The Commission reversed Cavitt III and ordered the Board to consider penalties for late-paid TTD. A win.

Cavitt IV, Dec. No 20-0012 (March 6, 2020) awarded penalties and interest for the late-paid TTD which was the Board originally refused to consider in Cavitt III resulting in the Commission’s reversal in Dec. No 264. Link: http://appeals.dol.alaska.gov/docs/workerscomp/2020/D&O%2020-0012.pdf

I blogged about this case on July 18, 2018 and again on January 6, 2020. https://www.keenanpowell.com/blog/2018/07/16/employee-wins-again-6/,

Never Give Up, Never Surrender – 2019 Victories

The moral of the story is: If your claim is insured by Ohio Casualty, Liberty Mutual or Liberty Northwest, you’re in for a fight. You need to speak with an experienced workers compensation attorney as soon as possible.

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.

Last year, I blogged about our win in Meili v Liberty Northwest. https://www.keenanpowell.com/blog/2019/09/10/employee-wins-meili-v-liberty-northwest/

The employee, a personal care attendant, had injured her back in 2009 while working in an assisted living home. She had two back surgeries and was sufficiently recovered to return to work on a full-time basis without restriction although she continued to experience chronic pain.

When working for a new employer in 2017, her pain increased to the point that another surgery was recommended. The new employer hired Dr. David Bauer as its “independent” medical evaluation who opined that her back problem was the result of natural degeneration exacerbated by her surgeries for the 2009 injury. In Alaska Workers Compensation law, when a work-related injury combines with, accelerates or aggravates a pre-existing condition, the injury is compensable as a workers compensation injury. The second employer controverted.

As it happens, all of the employee’s treating physicians also stated that the 2009 injury was the cause of her ongoing symptoms and need for treatment. So we filed a claim against the 2009 employer. The 2009 employer didn’t hire an “independent” medical expert of its own, later stating that it wanted to save the $10,000. So all the medical evidence supported the Board’s ruling that the 2009 injury was the substantial cause of the employee’s need for treatment. Meili v Sterling Assisted Living/Liberty Northwest, Dec. No 19-0092.

The day after Decision No 19-0092 came out, the 2009 employer and its insurer noticed an “independent” medical evaluation with Dr. Todd Fellars. Dr. Fellars opined that the 2009 injury was not the cause for the current need for treatment. On the basis of that, Liberty Northwest controverted and has refused to pay for any benefits although there is an outstanding Board order, Decision 19-0092, that says it must pay benefits and further it was unable to obtain a stay of that order.

The case went to hearing again before the Board on December 18, 2019.  Liberty claimed that the new “independent” medical evaluation was “newly discovered evidence” justifying the Board reconsidering its earlier decision.

The Board disagreed. The Board reasoned that Liberty had made a strategic decision before the first hearing not to hire its own expert, it could have, and it did not justify its failure to do so. Dr. Fellars’ report was excluded from the record and the Board refused to modify Meili I. Meili v Sterling Assisted Living/Liberty Northwest, Dec. No 20-0010 (February 28, 2020).

Interestingly, this is the same insurance company and the same defense firm which lost the following cases in 2019: D&D Services and Liberty Mutual v Cavitt 444 P 3^rd 165 (Alaska 2019), Cavitt v Liberty Mutual, AWCAC No 264 (July 8, 2019), Bruketta v Liberty Mutual, RBA Dec. No 19-0002 (March 19, 2019) and Bruketta v Liberty Mutual, Dec. No. 19-0096 (September 23, 2019). See my blog post: https://www.keenanpowell.com/blog/2020/01/06/never-give-up-never-surrender-2019-victories/

Additionally Liberty lost Cavitt again on March 6, 2020. I’ll blog about that in the near future.

The moral of the story is: If your claim is insured by Liberty Mutual or Liberty Northwest, you’re in for a fight. You need to speak with an experienced workers compensation attorney as soon as possible.

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.

Complex Regional Pain Syndrome (CRPS) is nasty stuff. In every day terms, it happens when the body's nervous system overreacts to an injury. It can happen to an injury as slight as a broken toe.

Also known as "reflex sympathetic dystrophy (RSD)," it was first diagnosed during the American Civil War. https://en.wikipedia.org/wiki/Complex_regional_pain_syndrome

Since that time, data has been collected and treatments have been developed but there is no known cure. The patient will suffer pain and motor dysfunction for the rest of his or her life.

Not only does the patient suffer extreme pain in a body part, that body part will also change color, swell (edema), have a different temperature, develop a different hair pattern, the nails will grow differently, and there will be weakness and disrupted motor function. These are all objectively measurable changes. In other words, even though there is no x-ray or MRI that can point to what is causing the pain, other physical symptoms support the diagnosis.

This is what happened in Harrison v Liberty Northwest, AWCB Dec. No 20-0008 (2/26/20). http://appeals.dol.alaska.gov/docs/workerscomp/2020/D&O%2020-0008.pdf

Mr. Harrison was working at a camp when a bear broke in to the building. He ran away, as one would. As he was running his toe caught on something and was fractured.

The toe was splinted but the fracture took an unusually long time to heal. Once it did, he still suffered pain. Eventually his doctors diagnosed him with CRPS.

Liberty Northwest hired Dr. Dennis Chong, who has spent most of his career working for insurance companies. For more information on Dr. Chong, check out my blog post here: https://www.keenanpowell.com/blog/2019/04/29/gang-of-seven-episode-iii-dennis-chong-md-career-insurance-doctor/

Dr. Chong performed an "independent" medical evaluation and wrote a report stating that there was nothing was wrong with Mr. Harrison, he didn't need any more treatment, and he could go back to work. Based on that report, Liberty Northwest controverted his benefits. They cut off his disability payments and medical treatment.

We filed a claim, obtained a second independent medical evaluation, and went to hearing.

The Board disagreed with Dr. Chong. In fact, the Board found that Dr. Chong's testimony was inadequate to rebut the presumption that Mr. Harrison was entitled to benefits and further that Dr. Chong's deposition testimony supported the need for medical treatment. The Board also awarded TTD because it found Dr. Chong's report failed to rebut the presumption.

The Employee won!

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

All consultations are free.  To make an appointment, email: keenan@keenanpowell.com or call:  907 258 7663.

2019 was a very good year at the Law Office of Keenan Powell. Following are a list of Board decisions and appeals in which I had the honor to represent injured workers. You will note that all but one of the cases were against Liberty insurance.

Cavitt v Liberty Mutual, Alaska Supreme Court Op. No. 7383, July 5, 2019

In August of 2017, the Cavitt case went to hearing before the Alaska Workers Compensation Board. The Board ordered Liberty to continue paying temporary total disability (TTD) and interest for late-paid TTD. It awarded $500 in attorney fees. An appeal was filed and the Commission reversed the fees award holding that the award of future TTD was a valuable benefit which the Board had undervalued for purposes of attorney fees. Then the Commission awarded $6,000 in fees, one-half of what was sought, to the Employee’s attorney. Liberty appealed the award to the Supreme Court and lost. Attorney fees are an important benefit to Employees to make sure that there are experienced skilled counsel available to take their claims.

The Employee won.

Cavitt v Liberty Mutual, Alaska Workers’ Compensation Appeals Commission Dec. No 264, July 8, 2019

On May 15, 2018, the case went to hearing before the Board seeking temporary total disability and medical benefits. On the morning of the hearing, Liberty’s attorney represented to the Board that it had withdrawn all its controversions as of May 10, 2018 and would pay eight weeks of back-TTD. Amongst other things, the Board ordered that if the TTD was not paid within 14 days of May 10, i.e. May 24, then Liberty owed the Employee 25% penalties.

The TTD was paid late, after May 24; however Liberty refused to pay the penalties. A new claim was filed for penalties and went to hearing on September 27, 2018. The Board ruled that because there was another appeal pending in Cavitt on the issue of penalties, it did not have jurisdiction to hear the case.

An appeal was filed to the Commission. The Commission ruled that the issues in the first appeal were different than the second appeal therefor the Board had jurisdiction to decide the penalties issue. It remanded the case to the Board instructing it to award penalties.

The Employee won.

Bruketta v Liberty Mutual, Reemployment Benefits Administrator Dec. 19-0002, March 19, 2019

The Employee entered into a settlement agreement with Liberty Mutual on April 25, 2017 by which they agreed that he was eligible for reemployment benefits. The agreement, drafted by Liberty’s counsel Holmes, Weddle & Barcott stipulated “the employee agrees to immediate participation in the reemployment plan process and agrees to continue participation per medical advice and evidence. Soon thereafter, he had another surgery and additional complications and was not able to go to school. On August 27, 2018, his physician requested that the plan be put on hold until he recovered. The Reemployment Specialist notified Liberty and the Reemployment Benefits Administrator (RBA) that the plan was on hold for medical reasons, attaching the doctor’s note.

On February 4, 2019, Liberty filed a petition with the RBA to have Mr. Bruketta deemed non-compliant in the reemployment process because he had not begun school yet. As of that date, the doctor had not released him to start classes.

Liberty’s petition went to hearing before the RBA who ruled that Mr. Bruketta was not in non-compliance as he was following medical advice, as was permitted under the settlement agreement Liberty’s own attorney drafted.

The Employee won.

Meile v Liberty Northwest, AWCB Dec. No 19-0092, September 9, 2019

The Employee injured her back while working for an assisted living home in 2009. As a result, she had two surgeries but was eventually released to return to work as a personal care attendant. However, her physician told her that she would continue to suffer pain for the rest of her life. And she did continue to suffer pain intermittently. When she was working for a new employer in 2017, she had two more injuries to her back. That second employer hired Dr. David Bauer to say that her problems were caused by the 2009 injury. Two of her physicians also said the 2009 injury was the cause. A claim was filed against the first employer, insured by Liberty. Liberty did not send her to a defense medical examination.

The case went to hearing on July 17, 2019. Liberty insisted that it needed to depose one of the treating physicians so the Board kept the record open for thirty days. On the thirtieth day, Liberty’s attorney filed a notice that it would not be deposing the doctor.

The Board ruled that the Employee had proven that her current need for medical treatment was the result of the 2009 injury and awarded her medical benefits, future temporary total disability if she needed and permanent partial impairment benefits if she had a new PPI.

The Employee won.

Bruketta v Liberty Mutual, AWCB Decision 19-0096, September 23, 2019

After winning the reemployment benefits case, the Employee sought attorneys fees. The petition went to hearing on August 22, 2019. The Board ruled the Employee was entitled to have his attorney paid.

The Employee won.

Campoamor v Berkshire Hathaway, AWCB Decision 19-0114, November 8, 2019

While at work, the Employee slipped on stairs wet from melting snow and grabbed a handrailing to keep from falling, injuring his shoulder. After complications that required five surgeries, his physician recommended a total shoulder replacement. Berkshire Hathaway hired Dr. Youngblood to state his opinion that further treatment was not necessary.

At his deposition, Dr. Youngblood admitted that he charged $600 per hour for reading medical records, performing “independent” medical examinations, and writing his reports, and $650 per hour for depositions and that he typically performed 15 such evaluations per month. In an earlier case, the Board had estimated that Dr. Youngblood has the potential of earning $85,000 per month performing “independent” medical evaluations. Piasini-Branchflower v ASD, AWCB Dec. No 17-0041 (April 11, 2017). His rate had increased since the Piasini-Branchflower case.

The Board held that Dr. Youngblood’s report was unreliable. He failed to consider symptoms clearly documented in the medical records and failed to explain the Employee’s symptoms. Because Berkshire Hathaway had relied on his opinion to controvert, the Board held that the controverion was unfair and/or frivolous.

The Employee won.

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

All consultations are free.  To make an appointment, email: keenan@keenanpowell.com or call:  907 258 7663.

The Employee slipped on stairs that were wet from melting snow, grabbed a handrail to catch himself and injured his shoulder. After horrific complications, the insurance company, Berkshire Hathaway, hired Dr. Scot Youngblood to perform an so-called "independent" medical evaluation. Not surprisingly, Dr. Youngblood wrote in his report that the Employee did not require further medical treatment, was medically stable, and could return to work. Berkshire Hathaway then controverted his benefits.

A claim was filed on his behalf. He was seen for a second independent medical evaluation, the Board's doctor, and Dr. Youngblood was deposed. The case went to hearing.

The Alaska Workers Compensation Board ruled in the case of Campoamor v Berkshire Hathway AWCB Dec. No. 19-0114 (November 8, 2019) that Dr. Youngblood's report and testimony would be given less weight than the treating physicians for several reasons:

1. While he claimed the injured worker would become medically stable by a certain date, he didn't explain his reason for selecting that date.
2. Although he stated the injured worker could return to work, there was no physical capacity evaluation.
3. Although he claimed that the pain the injured worker was currently suffering was not work-related, he couldn't explain what was causing the pain, therefor, he could not logically rule out a work-related cause.
4. He minimized the injured worker's symptoms which was the basis of his opinion that the injured worker could go back to work although every other doctor documented significant pain symptoms.
5. He pointed to medical records to support his opinion but ignored other medical records that conflicted with his opinion.
6. He admitted that if his patient had the injured worker's symptoms, he'd refer them to another specialist.
7. He refused to discuss or consider one of the documented injuries.

The Employee won past and future disability and medical benefits.

You can find the case posted on the Alaska Workers Compensation Board's site here: http://appeals.dol.alaska.gov/docs/workerscomp/2019/19-0114.pdf

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 Gang of Seven” blog series, I am reviewing seven of the most relied-upon insurance defense medical examiners: Dr. David Bauer, Dr. Lynne Bell, Dr. Dennis Chong, Dr. Keith Holley, Dr. Stephen Marble, Dr. Patrick Radecki, and Dr. Marilyn Yodlowski. Today, we’re looking at Patrick Radecki MD.

If your insurance company sends you to any of these doctors, beware!

Dr. Radecki graduated medical school in 1973. He has been practicing in Portland Oregon since 1983 and has been performing “independent” medical examinations in Alaska since 2001. His specialty is Physical Medicine and Rehabilitation.

On Healthgrades, his rating is 1.3 stars: https://www.healthgrades.com/physician/dr-patrick-radecki-xdlxm. One reviewer wrote:

I saw this Dr for an IME. Unfortunately the other reviewers are spot on. This physician beside manner made me quite uncomfortable. He’s awkward and at times downright rude. Throughout my exam he told me about his many years of working for insurance companies to deny claims. He’s an insurance company pawn. Despite having positive test results for my condition and no other way to justify how I could have developed these issues he filled a report claiming my issues were not work related.

There are seventy-five reported decision by the Alaska Workers Compensation Board in which Dr. Radecki is named beginning in 2002. The following is a selection.

Nichols v Alaska National Insurance Co., AWCB Dec. No 02-0209 (October 8, 2002)

In 1995, the worker was sitting in a pickup at work when it was rammed by a forklift, shoved over a berm, rolled several times and landed on its top. When the pickup stopped rolling, he unfastened his seat belt and fell to the roof of the cab.

He went to ER and had x-rays that showed no injury. Although he had aches and pains, particularly in his neck, he went back to work. His condition continued to get worse although he was taking pain medication until 1998 so he retired from his union and began drawing social security benefits.

In 2000, Dr. Kralick told him that he needed surgery and that the 1995 accident was the cause. He underwent a multilevel fusion in 2001.

The Employer sent him to Dr. Radecki who opined that the motor vehicle accident was not the cause of his condition and that he was simply suffering from the natural progression of spondylosis, a preexisting injury. The SIME doctor agreed with Dr. Radecki on causation. He also stated that the Employee could return to work as an ironworker. Dr. Kralik and the SIME doctor both stated he could not return to work.

The Board believed the Employee and his physician over Dr. Radecki and awarded him medical benefits and permanent total disability.  The Employee won.

Mary Samuel v Alaska National Insurance Co. AWCB Dec. No 03-103 (May 9, 2003)

The Employee injured her low back in 2000 when she fell from her chair while working as a car rental sales agent. An MRI showed a herniated disc. Surgery was recommended. She declined surgery and pursued chiropractic treatment instead.

The Employer sent her to Dr. Radecki. He opined that the work-related event was a temporary exacerbation of a pre-existing condition, she needed no further treatment and was capable of returning to her regular duties full-time. Another “independent” medical evaluation with Richard Peterson, DC, agreed.

The SIME doctor found that she had herniated her disc in the fall at work and recommended back surgery.

By the time the case got to hearing in 2003, the Employee wanted the surgery.

The Board found the testimony of the Employee and her physicians were more persuasive. She won her case.

James Wood v Ace Fire Underwriters, AWCB Dec. No 05-0005 (Jan. 13, 2005)

On 2002, the Employee was injured while driving a truck for his employer. The truck slipped and rolled over. He was taken to the hospital with right shoulder and back pain.

The Employer sent him to Dr. Radecki. He opined that the Employee had recovered from his injuries, did not need any more treatment, could go back to work as a truck driver and alluded to “nonphysiologic presentation” (that means he was faking his injury). His treating physicians stated that the injury was related to the work accident.

The Employee continued to suffer pain. In 2003, an MRI revealed a rotator cuff tear, degenerative changes, and tendinitis in the biceps tendon. Surgery was recommended.

The Board believed the Employee and his treating physicians over Dr. Radecki. The Employee won benefits for his shoulder injury.

Ramondino v Hartford Insurance Co, AWCB Dec. No 12-0214 (December 20, 2012)

Prior to her work injury, the Employee had been on low dosage narcotics for low back pain. He had never had any hip problems before she was injured at work. In early March 2011, he began experiencing right hip pain working as an assistant store manager at Sports Authority. By June 2011, his physician took him off work. He was diagnosed with right hip osteoarthrosis with acute exacerbation.

The Employer sent him to Dr. Radecki. He opined that there was no injury, that his work temporarily aggravated a preexisting condition, he could return to work, and he did not need any more medical treatment. His physicians offered him a variety of treatment including injections and surgery.

The SIME doctor said that work had caused the symptoms and suggested the Employee may need a total hip replacement.

The Board relied upon the Employee’s testimony combined with his treating physicians’ recommendations and the SIME report over Dr. Radecki’s opinions. The other doctors reports were given more weight because they made sense. Regarding Dr. Radecki’s opinions, the Board stated:

Lastly, weighing the evidence, Dr. Radecki's contrary opinion is not credible and is afforded very little weight. AS 23.30.122. According to his report, Dr. Radecki reviewed only three medical records before formulating his initial opinions. Dr. Radecki did not address all the questions his client asked him, but rather, provided answers not relevant to the medical-legal inquiry. Dr. Radecki focused on the substantial cause of the right hip “condition,” rather than on the substantial cause of Employee's disability and need for medical care regarding his right hip. As stated above, Dr. Radecki has an improper legal understanding of “injury” under Alaska law.

He believes there must be a traumatic event. Nothing in the 2005 amendments to the Alaska Workers' Compensation Act suggests the legislature intended to eliminate aggravations of preexisting conditions as “injuries.” DeYonge. Even Employer's representative appears to acknowledge this, when he or she inquired of Dr. Radecki initially and for clarification of his initial opinion, and queried about “cumulative” injury, as discussed below. Hawkins; Thurston. Consequently, Dr. Radecki's reports are given extremely little weight. They are inadequate to overcome the significant weight given to the opinions of Drs. Ross, Davidhizar and particularly SIME Silverman on the causation and compensability issues.

The Employee won benefits for his hip injury including medical benefits and TTD.

In sum, despite the fact that Dr. Radecki’s opinion has often been discounted by the Alaska Workers Compensation Board, the insurance companies keep hiring him to say the same thing he always says: that the Employee wasn’t injured, that he suffers from a preexisting condition, that he doesn’t need medical treatment, and he can go back to work.

The reason the insurance companies keep hiring him is because the majority of Employees they send to him don’t fight their cases so even if the insurance companies lose from time to time, they are saving a fortune on those other cases that were denied.

If you don’t want to walk away from your case, your best bet for winning is to hire 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.

 “The Gang of Seven” blog series, I am reviewing seven of the most relied-upon insurance defense medical examiners: Dr. David Bauer, Dr. Lynne Bell, Dr. Dennis Chong, Dr. Keith Holley, Dr. Stephen Marble, Dr. Patrick Radecki, and Dr. Marilyn Yodlowski. Today, we’re looking at Stephen Marble MD.

If your insurance company sends you to any of these doctors, beware!

Stephen Marble MD is an orthopedic surgeon practicing in Utah. He renewed his license in the beginning of 2019, so expect to see more of him. There are reported administrative opinions involving Dr. Marble’s testimony since 1996 making a comprehensive review impossible. So let’s look at the general trend.

However, some of them do go to hearing and the employee has won despite the insurance company’s reliance upon Holley’s opinion. Following are a sample of such cases which can be accessed on the Alaska Workers Compensation Board website at: http://appeals.dol.alaska.gov/SearchRoot/workerscomp/

Olsen v Sealand Services, AWCB Dec. No 97-0144 (7/1/97). The Employee, a truck driver, twisted his right knee climbing down from a truck. Shortly after he had surgery on the right knee, his left knee began bothering him. He had surgery on that for a torn ACL and medial meniscus. His surgeon believed he had injured the left knee compensating for the right knee injury. The Employer hired Dr. Marble and Dr. Bald who opined that his left knee injury was pre-existing and not work-related.

The Board agreed with the treating surgeon, that the left knee injury was caused because the Employee was compensating for his right knee, therefor the left knee injury was work-related. The Employee won.

Leen v RJ Reynolds, AWCB Dec. No 98-0243 (9/23/98). The Employee injured his back when he fell off a ladder while installing a bay window. He had back surgery and was off work for two years. He went back to work and his back was injured again in a rear-end accident and when erecting a cigarette display rack at Carr’s in Eagle River. On the last occasion he heard a “pop” and experienced immediate pain. The next day, he could not stand up straight and went to surgeon. The Insurer sent him to Dr. Marble who opined that he needed no further medical treatment, could go back to work in medium category and his chronic low back pain was related to pre-existing condition.

The Board gave Dr. Marble’s testimony little weight as compared to the testimony of the two treating physicians. The Employee won continued medical benefits.

Troy v Save-U-More, AWCB Dec. No 01-0042 (3/7/02). In this case, the worker was lifting 50-pound bags of dog food at work when he developed back pain. An MRI showed central disc protrusion at L-45 and mild annular bulging at L2-3 and L3-4. He treated with physical therapy. He worked off and on after that. The Insurer hired Dr. Marble who opined that there was no need for additional medical treatment, his medication was due to pre-existing degenerative disc disease, and that he only suffered a lumbar sprain/strain in the work-event which had resolved.  His treating physicians said that his back was injured at work and his treatment was for that back injury. The Board agreed with the treaters. The Employee won.

Miscovich v Tri-Con Mining of Alaska, AWCB Dec. No 04-0091 (4/23/04).  The Employee got a puncture wound in his left ankle while stepping down from a loader working at a remote gold mine. He ended up developing an infection and had surgery. Although Dr. Marble agreed that there was a work injury, he found there was no PPI rating. The treating physician found he had a 3% rating. The Board found that Dr. Marble’s report was insufficient to rebut the presumption because he couldn’t rule out the infection was work-related and agreed with the treating physician regarding the PPI rating. The Employee won.

Laframboise v Weldin Construction, AWCB Dec. No 08-0139 (7/29/08). The Employee was driving a front-end loader on the shoulder of the road when the dirt gave away and the loader crashed. He heard his spine snap and was immediately unable to move or feel his legs and he had pain in his chest and upper quadrant. Despite surgery, the injury rendered him paraplegic. Despite that, the Insurer sent him to see Dr. Marble who agreed he had a work injury, awarded him an unheard-of 94% PPI rating and said he could go back to work performing sedentary physical work after he had vocational rehabilitation. The Insurer, Liberty Northwest, reversed its strategy and agreed the Employee was PTD (permanently totally disabled) – after he hired an attorney. The Employee won.

***

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

All consultations are free.  To make an appointment, email: keenan@keenanpowell.com or call:  907 258 7663.

On September 9, 2019, the Alaska Workers Compensation Board entered Meili v Sterling Assisted Living/Liberty Northwest Decision No. 19-0092 awarding the injured worker medical, disability and transportation benefits.

In that case, the employee, a personal care attendant, had injured her back in 2009 while working at an assisted living home. She had back surgery and recovered sufficiently to return to work on a full-time basis although she continued to experience chronic pain.

When working for a new employer in 2017, she suffered two aggravations, the second of which was so severe that she had to quit her job and seek medical attention. Her doctors believe she now needs another back surgery. Thinking that the 2017 aggravations were new injuries, she filed a claim against the second employer. It obtained a defense medical evaluation from Dr. David Bauer who opined that her problems were because of the progression of the 2009 injury. The second employer therefor controverted her benefits.

Within a month of receiving the controversion, she filed a claim against the first employer. The first employer failed to hire a defense doctor of its own, but instead based its defense on the two-year statute of limitations. It claimed that she was injured in 2009 and her new claim for medical treatment did not fall within the two years of 2009.

The Board disagreed with the employer, relying on the fact that the employee is not a medical professional and although she believe she had a new injury, the evidence including Dr. Bauer's report indicated otherwise. Further, because she filed her claim within a month of learning that her current problems were related to the 2009 injury, she was well within the statute of limitations.

The moral of this story: Don't believe anything an insurance adjuster, or doctor, or lawyer says. Get a consultation from an experienced workers compensation attorney and find out what the truth is.

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.