Last week, I featured Dr. David Bauer in my first installment of the Gang of Seven, a blog series devoted to identifying some of the insurance industry’s most frequently-used “independent” medical examiners. “The Gang of Seven” include: Dr. David Bauer, Dr. Lynne Bell, Dr. Dennis Chong, Dr. Keith Holley, Dr. Stephen Marble, Dr. Patrick Radecki, and Dr. Marilyn Yodlowski.
If your insurance
company sends you to any of these doctors, beware!
Today’s installment features Lynne Bell
MD, a neurologist who has been practicing in Oregon
since 1992 and Alaska
since 1997. She currently has no disciplinary actions nor reported medical
malpractice cases. There are 38 references to her in published Alaska workers
compensation cases between 2000 and 2018.
"Yes an insurance company ringer, as stated in another review, and I have a very serious brain herniation from my cerebellum 6mm herniation. She said that I’m not injured. This felt like nothing more than legal abuse. This ORCP 44 court “requirement” needs to stop if Dr’s are paid to hurt and injured person further! Was told by and attorney these type of people are known as 'Street Walkers in the Legal Community'."
"Dr. Bell is an insurance company shill. She is not an Independent Medical Examiner. She is an insurance company ringer. Zero care for the patient. Hostile bedside manner. Biased exam. An unhappy person who is only interested in pleasing her insurance company employers."
"I was required by worker's comp to receive an IME from Dr Bell. I felt like I was on trial, having to defend my symptoms her. Not only was she snarky during the exam, but also in her report. She blamed everything on my depression (which is treated) and said I was ready to return to work. I am no where near being able to return to work. It is time to get a lawyer. Be very careful what you say to her!"
“Independent” Medical Evaluations in Alaska
The following are a selection of cases in which
Dr. Bell opined that the injured worker was not injured at work and either had
psychiatric issues or an alcohol problem. This seems to be her mantra.
McNamee v Nabors Industries and American Zurich, AWCB Dec. 18-004 (1/11/18)
On July
26, 2012, the injured worker’s daugther completed an injury report on behalf of
her father. The report states Employee fell and suffered a head and back injury on October 16, 2011.
On October
15, 2014, Lynn Bell, MD, PhD., conducted an employer's medical evaluation
(EME), and began her report by stating her diagnoses were ““provisional” at that
time due to “insufficient” information. Based on the information available to
her, Dr. Bell was unable to attribute any of Employee's disability to the
“supposed” head injury in 2011. The most likely cause of Employee's
disability was, according to Dr. Bell, cerebrovascular disease. (Bell report, October 15, 2014).
On March
6, 2017, Dr. McCormack testified Employee's hydrocephalus was a preexisting condition and Employee's head injury aggravated that condition, causing it to
change from compensated hydrocephalus to uncompensated hydrocephalus. If Employee did not have preexisting hydrocephalus, the head injury would not have caused Employee any significant
issues.
Four months later, Dr. Bell
reviewed additional records and authored an addendum report, wherein she opined
the most likely explanation for Employee's clinical presentation of dementia and gait disorder was Wernicke's encephalopathy. She also wrote, “There is
also an indication from the more recently reviewed records that [Employee]
continues to use alcohol. Given that he likely has a history of severe
alcoholism, he should be completely abstinent from alcohol.” Among the
additional records Dr. Bell reviewed for her addendum report were a September
20, 2012 chart note that instructed Employee to avoid alcohol, an October 13,
2012 emergency room report that noted Employee was at a party and had a few
beers when he developed pain, a May 15, 2014 emergency room report that stated
Employee's liver function test was normal, and a May 16, 2014 chart note that
stated Employee used “occasional alcohol a couple of times a week.”
The Board wrote: “The
conclusions Dr. Bell draws from the additional records are curious. Physicians
commonly recommend patients avoid alcohol for a variety of reasons, and many,
if not most, adults do consume adult beverages while attending parties. Rogers
& Babler. Dr. Bell
failed to explain how either of these two facts, or a normal liver function
test, or how using “occasional alcohol a couple of times a week” evidences a
“history of severe alcoholism.” Id.
To whatever extent Dr. Bell appeared to be overreaching in her opinions was
conclusively resolved when she was deposed….On cross-examination, Dr. Bell
acknowledged Employee did not tell her he was an alcoholic, and neither did
Employee's daughter volunteer he was an alcoholic. Instead, and notwithstanding
Employee reporting he never drank more than one to three beers per week, Dr.
Bell explained her “very strong evidence” of a “history of severe alcoholism”
was Employee's wife was an alcoholic, and “it is pretty common that couples
will both abuse.”
The Board found that the
SIME doctor’s opinion “far” outweighed Dr. Bell’s opinion. The Employee won his
case.
Shafter v
Universal Health Services, Indemnity Insurance of North
America, AWCB Dec. 14-0010 (1/31/14)
On August
10, 2012, Employee reported injuring her hand while working as a housekeeper
for Employer when a shelf fell and struck her.
On
November 29, 2012, Dr. Levine examined Employee and found developing CRPS,
right hand, and status post blunt trauma to right hand
On June 5,
2013, neurologist Lynne Bell, MD examined Employee for a second EME. Dr. Bell
diagnosed: 1) right hand contusion; 2) injury to branch of superficial radial
nerve associated with hand contusion; 3) functional overlay related to preexisting
personality features and possible ongoing psychological problems. The report
stated, “[Employee] does not meet criteria for diagnosis of CRPS or reflex sympathetic dystrophy as defined in the AMA
Guides, 6 Edition.” Dr. Bell recommended a psychiatric EME to explore possible
psychological factors which may be contributing to Employee's ongoing
disability. Dr. Bell further reported, “The cause of the right hand contusion and injury to the branch of the superficial
radial nerve was the industrial injury ... No further active treatment is
required to address either the right hand contusion or the right superficial radial nerve injury.”
Dr. Bell found Employee was medical stable on June 5, 2013.
Employee
won petition for SIME.
Gianni v Pfeifer Constr., State Farm, AWCB Dec. No 08-0184
(10/10/2008)
While
working as a framing carpenter for the employer at Potter's Marsh, on the
outskirts of Anchorage, Alaska, on March 13, 2006, the employee was
struck on his the face, the top of his head, and his right temple by steel
choker hooks on cables from a boom truck
Over the
next few days, the employee developed physical and cognitive symptoms, and on
April 5, 2006, the employee was seen by Meganne Hendricks, M.D., in the Providence emergency
room. Dr. Hendricks diagnosed closed head injury, ataxia, dysarthia, and traumatic brain injury
At the
request of the employer, neurologist Lynne Bell MD examined the employee on May
20, 2006. Dr. Bell reported the employee's speech changed during the interview
and he displayed exaggerated movements on his physical testing. Dr. Bell
indicated the employee's neurological presentation was classical for
psychiatric disturbance, and indicated he showed no evidence of brain injury. Her impression was that the employee suffered
somatoform disorder, and she recommended he undergo a psychiatric
examination.
Employee
won SIME petition.
Hyder v Fortson, State Farm, AWCB Dec. No 04-0053 (3/2/04)
The employee worked for the employer, a physician, as a
certified medical assistant. The physician is a paraplegic dermatologist. On
February 10, 2003, the employee was injured when the employer ran over the
third digit of the employee's right hand with the employer's wheelchair
Dr. Chandler performed stellate
ganglion blocks and prescribed a self-administered physical
therapy program.8 Dr.
Chandler also diagnosed “right hand CRPS.”
Because the employee had extensive treatment with little
improvement, the employer scheduled an evaluation by neurologist Lynne Bell on
June 27, 2003. Dr. Bell evaluated the employee and reviewed her medical
history. She also performed a physical examination. She concluded that the
employee's right index finger crush type injury had resolved, that the employee
suffered from a somatoform
pain disorder with probable conversation symptomatology and found no
evidence of CRPS. She specifically recommended against additional treatment
through invasive means and recommended psychiatrically based treatment. Dr.
Bell did not consider the treatment provided to the employee to be reasonable
and necessary and rejected the proposal to implant a cervical stimulator. She
opined that the employee could return to work if her psychiatric issues were
addressed. She found no permanent partial impairment
The Employee won SIME petition.
Keenan Powell has
practiced law in Alaska
for more than 35 years and has dedicated her practice to Workers Compensation
representing injured Alaskans.
All
consultations arefree.
If you want to set up a meeting, use the contact form on www.keenanpowell.com or
call: 907 258 7663.
I’m starting a new series of blog posts devoted to identifying some of the insurance industry’s most frequently-used “independent” medical examiners. I call them “The Gang of Seven”. They include: Dr. David Bauer, Dr. Lynne Bell, Dr. Dennis Chong, Dr. Keith Holley, Dr. Stephen Marble, Dr. Patrick Radecki, and Dr. Marilyn Yodlowski.
If your insurance company sends you to any of these doctors, beware!
If you look up his Google rating, you’ll find he has a 1.5 star rating. Some of the comments which I have edited for brevity include:
A paid shill
for insurance companies…Be mindful that although the evaluation is mandatory; a
reputable orthopedic surgeon will not make a primary living masquerading as an
"Independent" Medical Examiner. – Victoria Coghlan
If I could give him negative stars I would. I was referred
to this quack by my workers comp….He did not listen to anything I had to say,
only telling he knew everything about my injury. He only spent about 10 minutes
with me and in the end of the appointment he walked out. …I fell an injured my
back and shoulders on the job and he has the nerve to tell them it was a
pre-existing condition. I was not having any pain prior to my fall….Whatever
you do... DO NOT see this doctor. – Laurie Langston
This doctor is paid by Workers Comp Ins to find nothing
wrong with you. I have three doctors that say I need knee surgery and Prolo
therapy for my SI Joint and continued PT for my upper back. This scum bag spent
20 mins with me and said nothing is wrong with me. – Beach_Bum5150
I was sent by my issurance company to go see this doctor to
see if Im getting the right treatments for my work injury. This doctor is a
joke he said he went through my entire file and looked at the six diffenent
doctors notes and finding. This doctor was paid to say that I no longer need
treatments or medications due to my injury and his findings. This guy looked at
all my MRIS CT SCANS, Molograms etc, and he say that I am exaggerating! Wow
what a joke….We talked about 30 minutes before he did a 5 minute exam!...–
Steven Hearn
Let's take a look at some of the recent Alaska cases in which Dr. Bauer issued opinions.
The earliest case reported with Dr. Bauer testifying in Alaska is 2017. There are approximately thirty cases. These would not include cases in which he issued a report and the employee didn’t fight it or cases that have not gone to hearing yet. Here are some of the cases in which Dr. Bauer testified in Alaska during the past few years.
Before you read the opinions, you’ll notice a trend. Most of
the time he is hires by Liberty Mutual. And most of the time he opines that the
employee does not need treatment and can go back to work.
Also keep in mind that although Dr. Bauer wrote reports
stating that these Employees were not entitled to benefits, ten of these
Employees won their hearings.
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.
The insurance company first sent
her to Dr. Keith Holly, who said the disc injury was caused by gaming at home
and need for treatment was not work-related. Her treating physician, Dr.
Johnston at Alaska Spine Institute disagreed.
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.
The case went to hearing. The Board found Employee credible and her physicians credible. Further, it found that the lack of treatment prior to injury, employee’s credible testimony, the medical records, her doctors’ credible testimony outweighed Holly and Bauer. It held
that the disability and need for
treatment was work-related. Ordered Liberty Mutual to reimburse for past
medicals.
The Employee won.
Bailey v Discovery Construction, AWCB 17-0043 (4/18/17)
On April 25, 2006, Employee
stopped his vehicle at a red light and a car struck him from behind. This
injury arose out of and in the course of his employment with Employer.
On October 9, 2008, James Eule,
M.D., examined Employee for his 2006 work injury and said, “[Employee's] injury
to his neck and his back from my history from his [sic] is likely to both have
occurred from this automobile accident ....” Dr. Eule opined Employee had a
cervical disc herniation and herniations at L3-4 and L4-5, and his options were
a microdisectomy or continuing to live with the condition. Dr. Eule also noted
“physical therapy and/or an epidural
injection” might be more helpful than
chiropractic treatment.
On May 14, 2016, David Bauer, M.D., performed an EME on Employee in the instant case
and diagnosed resolved cervical and lumbar
strains related to the 2006 work
injury, and preexisting vertical and lumbar degenerative changes neither
aggravated nor accelerated by the work injury. He stated treatments after
Dr. Eule's September 22, 2009 examination were unrelated to the work injury,
and said ongoing narcotic use was related to the 2012 injury.
The Employee may have had a good
cause, but he didn’t win a SIME order because he had filed his request late,
and he was denied back TTD because he had filed that request late. The Board
had ordered that he could file new claims for TTD, TPD and PPI at a later date.
Israelson v AK Marine, AWCB 17-0064 (6/6/17)
The Employee injured his back at
work moving pallets. The first insurance doctor said his injuries were
work-related. So the Employer got a second evaluation from Dr. Bauer and denied
all benefits after certain date. Because the case was on hearing only upon the
issue of attorneys fees, the details of Dr. Bauer’s report are not listed.
However at some point the
Employer must have recognized he had a good case notwithstanding Dr. Bauer’s
report because it settled for $248,224.85.
Adams v Michael Heath AWCB 17-0065 (6/7/17)
On August 18, 2011, the Employee
was injured while doing roofing and construction work. Employee fell from a
ladder supported by cribbing and was unable to move after the fall. Dr. Steven
Johnson performed a temporary trial spinal cord stimulator (SCS) implant. When the Employee decided he wanted
to go forward with a permanent SCS, the Employer sent him to Drs. Bauer and
Cong.
Drs. Bauer and Chong opined: All medical treatment so far has been medically necessary and reasonable. Employee reached medical stability after the work injury in August of 2014, though he did have complications which required treatment. Drs. Bauer and Chong recommend against implanting a spinal cord stimulator, based in part on Employee's history of chronic substance abuse and the current high doses of narcotic pain medications, which they feel would very likely increase complications from this procedure.
Further they opined: Mr. Adams does not have the physical
capacity nor the lower limb dexterity to perform the duties of a roofer/carpenter.
Yes he can certainly work. All individuals with an ASIA
D L3 neurological level of injury are capable of gainful employment on a
full-time basis should they choose to do so.
Dr. Jon Scarpino performed a
second independent medical examination (SIME). He stated: The substantial cause
of Employee's condition and ongoing need for medical treatment was the August
18, 2011 work injury for Employer, and that the Employee was a candidate for a dorsal column
stimulator to try and reduce pain
complaints and need for medication.
The Board found Dr. Scarpino
credible and ordered SCS, and further
that the Employee was permanently totally disabled (PTD).
The employee won.
Gillion v North West Co, Berkshire Hathaway, Liberty Mutual 17-0089 7/31/17
The Employee injured back
wrapping pallet. He was treated with epidural steroid injections.
He attended an employer medical
examination (EME) with R. David Bauer, M.D. Dr. Bauer diagnosed
a strain of the lumbar spine and “degenerative disease of the lumbar spine,
neither aggravated by, nor accelerated by, the incident in question.” Dr. Bauer indicated Employee's lumbar strain caused the short-term pain from December 10, 2015
to February 2016, but the work injury would not be the substantial cause of any
ongoing disability or need for treatment except the 12 sessions of physical
therapy Employee was participating in. Dr. Bauer also opined Employee would be medically stable with
no ratable permanent impairment after the 12 sessions of physical therapy, and
would be able to perform heavy work with no physical restrictions.
Dr. Paul M. Puziss conducted an
SIME examination of Employee, and supplemented his report with later deposition
testimony. Dr. Puziss opined that the work injury was the substantial cause of
Employee's past and continuing disability and need for medical treatment, and
no other cause existed. Dr. Puziss opined Employee was not medically stable,
and recommended treatment including an L5-S1 facet medial branch block, left
medial branch block radiofrequency
ablations at L5-S1 facet and
possibly L4-5, left sacroiliac (SI) joint local anesthetic and steroid
injection, lateral branch block of left SI joint, and left SI joint lateral branch radiofrequency
ablations, as the success of progressive
treatments required. Dr. Puziss opined Employee could perform light duty work,
but noted that Employee's description of his actual duties was not light
duty.
Dr. Puziss criticized Dr. Bauer's EME report, noting that Dr. Bauer had not performed a Kemp test or a Milgram test, which might have revealed the conditions and symptoms that Dr. Puziss observed and diagnosed.
The Board found that Dr. Puziss conducted a thorough and
professional examination, gave a detailed and well-supported medical opinion.
Dr. Puziss's medical opinions and testimony are credible.
At the hearing, the Employer
withdrew its opposition to a number of Employee's claimed benefits. It
agreed to pay the Employee what it owed him.
The Employee won.
Carrico v Peterkin, Liberty Mutual, AWCB 17-0132 (11/22/17)
The issue was whether
Reemployment Benefits Administrator’s decision should be modified because of
new evidence.
Employee worked for Employer as
a driver. He reported that on December 9, 2015 he had injured his right
shoulder transferring gallons of milk from a pallet to milk crates.
On March 11, 2016, Herbert Bote,
M.D., performed surgery on Employee's shoulder.
On October 13, 2016, Ms. Cranston sent the job
titles to Dr. Bote. Dr. Bote reviewed the job descriptions and predicted
Employee would have the permanent physical capacities to perform all three
jobs. Based on Dr. Bote's prediction,
Ms. Cranston recommended Employee be found not eligible for reemployment
benefits.
Employee did not recover as
expected. On December 1, 2016, Dr. Bote performed a second surgery, and on
April 11, 2017, he recommended a total shoulder replacement.
The Employee was seen by
David Bauer,
M.D., for an employer's medical evaluation (EME). Dr. Bauer opined the cause of Employee's need for the shoulder
replacement surgery was the degenerative changes in his shoulder, not the
December 2015 work injury.
The Employee petitioned for
modification of the RBAD's eligibility determination based on a change in
condition: Dr. Bote’s changed prediction, stating Employee would not have the
physical capacities to return to his job at the time of injury
Board ordered remand.
The Employee won.
Donnelly v Harnish Group AWCB 17-0149 (1/2/18)
On November 30, 2016, Employee
underwent an EME with Dr. Bauer. Dr. Bauer diagnosed lumbar strain resolved, substantially caused by the December 12,
2007 work incident and progressive degenerative disease of the lumbar spine,
neither substantially caused by nor aggravated by the December 12, 2007
incident.
Dr. Bauer found no causal relationship between the work injury
and the low back problems that led to Employee seeking treatment in 2015. The
once commonly held view that disc degeneration was the result of ‘wear and
tear’ from mechanical insults and injuries or aging has been replaced by the
scientific viewpoint that ‘disc degeneration’ appears to be determined in great
part by genetic influences. Although environmental factors also play a
role, it is not primarily through physical demands as once suspected .... The
injured workers' condition was not secondary to an acceleration or aggravation
created by the December 12, 2007 incident.
The Employee won a SIME order.
Johnson v Blazy Construction AWCB 18-0040 (4/20/18)
On October 16, 2017,
Employee filed a claim for temporary total disability (TTD), a permanent partial
impairment rating and benefit (PPI), medical and related transportation costs,
interest, and review of a reemployment eligibility determination. The claim
states on June 11, 2017 Employee herniated a disc in his back removing heavy
debris as part of a demolition project for Employer.
Employee was seen by Dr. Lee,
who stated Employee had recently undergone surgery for a herniated
disc, and that “[t]his surgery was
medically necessary and most likely the result of a work-related injury.” Employee
was seen by Brian Tureman, PA-C at Kenai Spine in Soldotna, Alaska.
PA-C Tureman opined Employee's symptoms were consistent with disc herniation
and are work-related.
On August 30, 2017, David Bauer, M.D., performed an employer's medical evaluation (EME). Dr. Bauer opined
Employee had a herniated
disc at L2-3, which herniated in the middle of the night as
Employee was turning over in bed. Herniated
discs occur spontaneously in life, and the substantial portion
of them do not occur as a result of trauma. In Employee's case, this is a
spontaneous event, the substantial cause of which
is unrelated to employment. Although
Employee was not yet medically stable, there was no evidence of an impairment
caused by work for Employer.
The Employee won a SIME
evaluation.
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 RBA Designee Penny Helgeson issued an
eligibility evaluation determination finding Employee not eligible for
reemployment benefits. The determination notes that Employee had filed
documents on March 10, 2016 disputing the “light” classification of the Chef
job title, but states that the documents did not change the outcome of the
determination.
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.
Tumenas v Katmailand,Wausau, a Liberty Mutual Company AWCB 18-0047 (5/15/18)
The Employee reported an injury
to his lower back that had occurred in June 2008 while working for Employer.
On January 7, 2016, Employee
filed a claim for medical benefits and a finding of unfair or frivolous
controversion, stating that the claim had been controverted for unknown
reasons, and the adjuster and his manager had not responded to calls or an
office visit.
Employer and Insurer rely on the IME opinion of Dr.
David Bauer that
Employee is medically stable from the work injury and that no additional
medical treatment is reasonable or necessary to the process of recovery from
the work injury. The work injury is not the substantial cause of
Employee's waxing and waning low back symptoms or continued treatment.
This may have been a good case,
but we will never know. The Employee did not timely comply with deadlines so
his case was dismissed.
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
were 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.
Thomas v State of Alaska, AWCB 18-0110 (10/24/18)
On February 28, 2018, Employee
was seen by M. Sean Green, M.D., and R. David Bauer, M.D., for an employer's medical evaluation (EME).
Drs. Green and Bauer reviewed Employee's medical records from before the work injury, including an August 11, 2005 record and a February 16, 2010 record. The next record reviewed was for treatment on January 20, 2017, two days after the work injury, with Teresa Bormann, M.D. Dr. Bormann diagnosed back strain and neck pain and prescribed massage therapy. The report documents several medical records for massage therapy and chiropractic treatment through December 7, 2017 when Employee returned to Dr. Bormann. Dr. Bormann diagnosed a chronic neck muscle strain and referred Employee to Claimant for physical therapy.
Drs. Green and Bauer stated cervical
strains resolve in a matter of days
to weeks and there is “no such thing as a chronic muscle strain.” They
opined all treatment beyond the initial evaluation was neither reasonable nor
necessary.
The Employee won a SIME order.
Summary: If it all kind of sounds the same, that's because it is. The insurance companies, Liberty Mutual and its subsidiaries know they can rely on a report from Dr. Bauer saying what they want to hear: that the Employee wasn't hurt at work at all, or if s/he was, s/he has recovered and needs no further treatment and can go back to work.
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.
The insurance companies have come up with a new dirty trick: filing a controversion of benefits but withholding the doctor's report which they are relying on.
Why would they do that? Because most attorneys, before they accept a workers compensation case, want to see the so-called "independent" medical evaluation and compare it to the treating doctor's records. Insurance companies know that most attorneys won't talk to an injured employee who has been controverted unless they can produce the so-called "independent" medical evaluation.
Why would they withhold that report? Because they know that there is something in that report that your attorney would love to see. Something that doesn't make sense. Something that isn't true.
Where does that leave the injured worker? You should have the controversion notice. Collect all of your medical records from every doctor you have seen for your work injury and call an attorney anyway. Your attorney can demand a copy of the report. And the insurance company is legally obliged to produce the report no later than five days after the claim is filed. If they don't, they can get into a lot of trouble.
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
There are many times when you should talk to a workers
compensation attorney. These are some of the most important:
1. If your employer does not fill out the workers compensation report of injury within 10 days of your injury. That’s a bad sign. You’ll know because you are supposed to sign the report. It could mean your employer doesn’t want to report the injury to keep his insurance premiums down. It could mean he doesn’t have insurance. It’s okay if he doesn’t have insurance, because there is a fund available to reimburse your benefits.
2. If you don’t hear from an insurance adjuster within 14 days of your injury. That is a bad sign. You should have gotten a call or a letter with your claim number and an address for turning in your receipts. You’re hurt, you might not be able to work, you are racking up bills, you need money to pay the rent and buy food. The longer it takes for the insurance company to set up your file, the longer it’ll take for you to get your benefits.
3. If you were
taken off work and haven’t received your first temporary total disability payment
within 21 days. That is a bad sign. That means the insurance company is not
processing your file correctly.
4. If the
insurance company schedules you for an “independent” medical evaluation. That
is a bad sign. That means the insurance company doesn’t believe you got hurt at
work.
5. If the
insurance company sends a nurse to your doctor appointments with you. That is a
bad sign. She is an insurance company spy and sent to influence your doctor’s
recommendations.
6. If you notice someone following you around. That’s a bad sign. They do hire private investigators. They will videotape you buying groceries, filling your car up, walking in and out of your doctor’s office. That means they don’t believe you are really hurt.
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.
Workers compensation benefits are not taxable. When you are receiving W-2s and 1099s from your employers, you will get nothing from the insurance company because it's not taxable income. You don't have to declare it as income because it's a disability benefit. Talk to your accountant if you have one. Make sure he or she is familiar with IRC 104. https://www.law.cornell.edu/uscode/text/26/104
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.
What if you get hurt on the job and your employer knows you got hurt, but he
doesn’t do anything about it?
The law says that he is supposed to keep a record of all injuries and to
report any injury to the Alaska Workers Compensation Board within 10 days of
learning about it.
Then what happens? The employer is also supposed to inform his workers
compensation insurance company of the injury. Lots of times they don’t because
they want to keep their safety record clean.
If the employer reports it to the insurance company, then an adjuster will
call you for information. They will want to know how you got hurt, if a doctor
took you off work, what doctors you are seeing, what kind of injury you have,
and what kind of treatment has been
recommended. They will also mail you medical releases to be signed and
returned.
Beware! The law has recently changed
on what is proper to put in a medical release, so if you are sent one, you
should check with an attorney before signing it and returning it to the
insurance company.
The insurance company is supposed to pay your medical bills and send you
disability payments. The first installment of disability check is due 14 days
after the employer has received a work release from your doctor. The subsequent
checks should come every 14 days.
Beware! Keep copies of all work
releases for your records. Without it, you have no proof that you turned in the
release. You can also send a copy of the release to the insurance company. But
always keep a copy for yourself.
When is it time to call a lawyer?
1. If you told your employer you got hurt and more than 10 days
has gone by without anything happening,
2. If the insurance company or its law firm sends you a medical
release,
3. If your disability payment is late,
4. If your doctor says he isn’t getting paid or a treatment has
not been preauthorized by the insurance company.
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’ve seen scenarios like this several times. Someone gets hurt at work. The employer pulls together all his co-employees to say “He looked fine to me” and “I didn’t see anything happen.”
In this particular case, a roustabout fell working on the North Slope and hit his head. When he came home from work, his daughter noticed he seemed different and his neighbors noticed he was acting out of sorts. His daughter took him to a doctor who diagnosed a fluid build-up in the brain requiring surgical placement of a shunt to relieve pressure. His daughter filed a claim on his behalf.
The employer denied that there had been a fall. At the hearing, employer’s witnesses provided a videotape that claimed to prove he couldn’t have fallen in the way he described and his co-employees testified against him. The employer also submitted a “independent” employer medical evaluation by Dr. Lynne Bell who found “very strong evidence” of alcohol abuse and a “history of severe alcoholism” based upon a report that his wife, not the injured worker, had been an alcoholic. Nice.
But the injured worker won his case. The Board found that the employer’s witnesses and Dr. Bell were less credible than the employee, his daughter, and the second independent medical examiner, Dr. McCormack.
The morals of the story: Don’t expect your co-employees to testify for you. They don’t want to lose their safety bonuses or their jobs. Don’t expect your employer to admit you got hurt. They don’t want their insurance rates going up. And if the insurance company sends you to see Dr. Lynne Bell, you’re in for a fight. Might was as well find a lawyer 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, email: keenan@keenanpowell.com or call: 907 258 7663.
The 2017 Annual Report shows some interesting trends. In a nutshell, fewer injuries are being reported, less is being paid in benefits including medical and indemnity (TTD, TPD, PPI, PTD), and attorney fees have increased. One could conclude that employers are fighting harder to deny benefits and employee attorneys are having to fight harder to win benefits. You can view the Report on the Board’s website at: Annual Report 2017.
In particular, the statistics show that in 2017:
259.5 million total benefits were paid, a decrease of 3.8%
9.5 million was paid to employer attorneys, an increase of 9.14%
The take away: Employers are paying their attorneys more than ever and employees are getting less. Denying employee benefits is big business for insurance defense firms. So, if the insurance company thinks it needs an attorney, maybe the injured worker does too.
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 several favorable
decisions from the Alaska Workers Compensation Board and the Alaska Workers
Compensation Commission during 2017-2018 in addition to settling a number of
cases. If you take a look at the decisions, you’ll notice a couple of trends:
All the other cases were defended by Holmes, Weddle &
Barcott which represents Liberty Mutual, Ohio Casualty Company and Berkshire
Hathaway. On three different occasions, the defense showed up at the hearing and
withdrew its controversions.
A fair conclusion from these cases would be that the insurance company
will controvert and defend cases to the very end, and then, very possibly, give
up.
Cavitt v Ohio Casualty Co/Liberty Mutual. In AWCB Decision and
Order 0109 (9/13/17), the Board awarded ongoing temporary total disability
(TTD) after the Employer’s attorney, Holmes, Weddle & Barcott, appeared
that the hearing and announced it was withdrawing the controversion.
Merely
three months later, the Employer took another bite at the apple. It sent the
Employee to yet another employer medical evaluation (EME) at which time Dr.
David Bauer and filed a new controversion of TTD and medical benefits.
At the hearing on the January 25, 2018 claim,
the employer’s attorney failed to producer Dr. Bauer for testimony as demanded
by the employee’s attorney and so his opinion was stricken from the record. No
explanation was offered for the failure to produce Dr. Bauer. The employer’s
attorney withdrew its controversion based on that opinion. Again. Just like
it did in the 2017 case.
In the new decision, AWCB
Decision No 18-0060 (6/25/18), the Board awarded ongoing TTD, past TTD, ongoing
medical benefits and a remand to the reemployment benefits administrator. Moreover,
the Board ruled that the Employee could not be forced to mediate his claim.
In Gillion v Berkshire
Hathaway,
the issue in dispute was whether the injured worker’s condition was
work-related, which the Employer disputed right up until the hearing. At the hearing,
Holmes, Weddle & Barcott conceded that the injury was work-related. Decision
17-0089 (7/31/17).
The Board awarded
the Employee won the issue of work-relatedness (causation and compensability),
medical benefits, back temporary total disability (TTD) for the periods of time
he missed work due to his injury, a compensation rate increase and penalties and
interest on underpaid compensation as well as late-paid per diem to attend the
Board’s Second Independent Medical Evaluation (SIME).
Several issues were
appealed by both parties resulting in a decision from the Alaska Workers Compensation
Commission, Decision No. 253 (8/23/18), which ruled, amongst other things, that
the Employee was entitled to TTD during the three days he was out of state
attending a SIME and therefor unable to work at his job.
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.
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.
The 2017 Annual Report shows some interesting trends. In a nutshell, fewer injuries are being reported, less is being paid in benefits including medical and indemnity (TTD, TPD, PPI, PTD), and attorney fees have increased. One could conclude that employers are fighting harder to deny benefits and employee attorneys are having to fight harder to win benefits. You can view the Report on the Board’s website at: 
