Author: Keenan Powell

When you file a claim or petition before the Alaska Workers Compensation Board, you are entitled to a hearing and you are entitled to a decision.

Generally the Board will send out a prehearing notice following the filing of a claim or petition. The purpose of the prehearing is to determine that everyone understands on what the dispute is and how to go forward. Frequently the insurance defense attorney will show up and argue that you are wrong and not entitled to what you asked for. If the issue is a protective order that you requested regarding a discovery dispute, you need to explain the reasons why you think you are entitled to the protective order. The Board designee will make a decision and issue that decision in written form in the body of the prehearing conference summary which will be mailed to you.

If you disagree with the designee’s decision, you can file for a hearing. The procedure should be explained in the prehearing conference summary.

On all other matters, you are entitled to a hearing in front of the Board. Take note of what the insurance attorney is saying. Sometimes they will give you their entire case at the prehearing, which gives you an idea of what evidence you need to collect to prove your case and disprove their defense.

Twenty days after you file a claim or petition, you can file an affidavit of readiness for hearing (assuming you are ready). A prehearing will be set so that the Board, the insurance defense attorney and you can agree upon a date for the hearing. In the prehearing conference summary, there will be a schedule telling you when to file and serve your hearing brief, witness list, and evidence.

At the hearing, the Board may keep the record open for additional evidence or briefing. Otherwise the record closes at the hearing.

Thirty days after the record closes, the Board is supposed to issue a decision. The decision will be mailed to you and posted on the Board’s website. So what if the Board doesn’t issue a decision on time? What can you do?

You can remove the case to Superior Court. The first step in removing the case is filing a notice with the Board informing them of your intent to do so pursuant to AS 44.62.305. You must file this notice 30 days before you file the action in Superior Court. The requirements set out in the statute need to be met in the notice. If you are handling the case yourself, you can access the statutes and regulations at the courthouse library or on-line at the court’s website.

Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 30 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.

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

 

If you go to a prehearing, chances are the prehearing officer will explain Second Independent Medical Evaluations (SIME). Chances are he explained a lot of things and it all sounded like a foreign language. Because it is.

Not to fret. This is what SIMEs are about:

A Second Independent Medical Evaluation is an evaluation by the Board’s doctor. Here is the list of doctors who serve on the Board: SIME doctors , bulletin 16-03.

You are entitled to a SIME when the insurance doctor (“IME”) disagrees with your treating physician. Typical disagreements are: the insurance doctor says your injuries are preexisting degeneration; your treater says they are work-related. The insurance doctor says you don’t need any treatment; your treater says you need surgery. The insurance doctor says you aren’t disabled; your treater says you can’t work because of your injury.

If you have a documented dispute between the insurance doctor and your treating physician, you should request a SIME before you go to hearing. Otherwise you can go to hearing, lay out your entire case and have the Board decide it needs an SIME before it makes a decision. Ultimately, the case will go smoother if you get ask for the SIME as soon as you have a documented dispute.

A documented dispute means that your doctor said in writing something different than the IME doctor said. That is why it’s so important for you to collect all of your medical records. Many claimants think they can rely on the medical records the insurance company files, but the truth is the doctors don’t send all of their medical records to the insurance company in order to bill them. They don’t have to. So if you rely on the insurance company’s medical records, then you might miss an important piece of evidence that is in your doctor’s file.

That is why you need to go directly to your doctors and request a complete set of records.

To see if you have a documented dispute, see if you can fill in the boxes on the SIME form wc6147: If you can quote your doctor’s chart note with the date of the entry, then you probably have the evidence of a documented dispute.

In order to get a SIME, you need to fill out a Petition rev. 2016 and attach the SIME form and the relevant medical records you are quoting.

You need to file the SIME petition with the Board, mail a copy to the insurance company’s attorney and keep a copy for yourself. A few weeks after you file the petition, the Board will schedule a prehearing conference. At the prehearing conference, the insurance company will agree or disagree with your petition.

If the insurance company agrees to the SIME, the prehearing officer will schedule deadlines.

If the insurance company disagrees, you should ask for a hearing so you can get a Board ordering the SIME. If you have documented a dispute between the IME and your treater, the Board will order the SIME.

Once the SIME is scheduled, the insurance company will arrange and pay for your travel including hotel, air and ground travel. It should mail you a check before you go to the SIME for your meals and incidentals. If it doesn’t you can amend your claim asking for reimbursement of your meals and incidentals. You will need to file copies of your receipts to show what you paid. If you missed work because of the SIME travel, you may be entitled to temporary total disability for the missed says.

The SIME doctor is supposed to mail a copy of his or her report to you and the Board 14 days after the examination. If you haven’t received the SIME report within a month, call the Board. And keep calling the Board every two weeks after that asking about the status of the SIME report.

Keenan Powell has practiced law in Alaska for more than 30 years and has dedicated her practice to Workers Compensation representing injured Alaskans.

All consultations are free.  If you want to set up a meeting, use the contact form on www.keenanpowell.com or call:  907 258 7663.

You build your case on your medical records. Your medical records, before and after your date of injury, will prove that you did not have an injury before and you were injured afterwards. They will show that you did not need treatment before but needed treatment afterwards. They will show that you were not disabled before but you were disabled afterwards.

Do not trust the insurance company to collect all your medical records for you. If you are preparing to file, or have filed, a claim then the insurance company is not your friend.

It’s your job to prepare your case and to do that you need your complete medical records from at least two years prior to your date of injury. If you did have issues with the injured body part before (lots of people do – it’s not the end of your case), then you need to collect medical records from two years prior to any problems you had.

You are entitled to your medical records under Alaska law. To obtain them, you need to call your doctor’s office. If you sit through the options on the doctor’s answering system, there is usually an option for “records.” Select that option. Tell them you want a complete set of your medical records. If there isn’t any such option, ask the receptionist.

When you obtain your medical records, make a copy of them and put the original medical records in a safe place. DO NOT WRITE ON YOUR MEDICAL RECORDS. They are evidence. If you write on them, you have tainted the evidence and they will be inadmissible. You may need to copy them multiple times as your case progresses.

I keep the original medical records in separate file folders for each provider. When I obtain updates, I put the originals in that provider’s file folder.

When you have made a copy of your medical records, you need to sort the copies in chronological order and prepare medical summary forms. This is the medical summary form:  wc6103 - Medical Summary.

Feel free to download the form. Save a blank form to your database, then make a new copy for each medical summary you prepare. You can type directly on it. The form is also available, as are all forms, at the Alaska Workers Compensation Board's website: http://labor.state.ak.us/wc/pdf_list.htm.

Each record needs to be listed individually. Yes, it is tedious. But you will be happy later that you listed the records individually in chronological order because it will be easy for you to refer to. It will also make the Board’s life easier later on if they have to look for a particular record in your file. The codes to be used in the third column are listed on the bottom of the form. Here is a sample of a medical summary I prepared: wc6103 - Medical Summary sample

When you are finished with the form, print, sign and date on the bottom. You will probably need more than one form for all your records.

Then you take the medical summary and the records it lists and make two copies of it. You need to file the original medical summary form that you signed and dated, together with the records, with the Workers Compensation Board. Generally there are too many records for the Board’s electronic filing system to accept; it’s just easier to mail it or deliver it yourself. You need to mail a copy of everything to opposing counsel or the insurance company if there is no opposing counsel and you need to keep a copy for your own files.

If you continue treating as your case progresses, you will need to collect your medical records periodically and create medical summaries for them as well. How frequently you update your records depends on how frequently you treat. When you are going to hearing, you will need to have your complete medical records. You need to file your evidence 20 days before the hearing so give the doctors plenty of time to respond to your request for updated records and allow yourself plenty of time to create the medical summaries. It’s a good idea to ask for the updates 30 days before your deadline for filing evidence.

Keenan Powell has practiced law in Alaska for more than 30 years and has dedicated her practice to Workers Compensation representing injured Alaskans.

All consultations are free.  If you want to set up a meeting, use the contact form on www.keenanpowell.com or call:  907 258 7663.

 

The Alaska Workers Compensation Board issued a Final Decision and Order in the case of Gillion v The Northwest Co/Berkshire Hathaway Homestate Insurance Co. on 
July 31, 2017, Gillion v Berkshire Hathaway.

Holmes, Weddle & Barcott defended the insurance company.

In this case, the Employee had been treated with epidural injections for a herniated L5-S1 and annual tear. When the treating physicians  referred the Employee for a consultation with a surgeon, the insurance company obtained an "independent medical evaluation" by Dr. David Bauer. Dr. Bauer opined that in the Employee had only suffered a lumbar strain, that if he had any symptoms they were due to "preexisting degenerative disease" and that he needed no further treatment other than some physical therapy.

The insurance then cut off the Employee's medical treatment without filing a controversion notice as required by Alaska law. In response, a claim was filed for medical benefits and an increase in the compensation rate that had been been paid when the Employee was off work.

The claim was filed which was vigorously defended by Holmes, Weddle & Barcott. A few days before the hearing, Holmes, Weddle & Barcott filed a petition demanding mediation and to have the hearing canceled. The Employee opposed the petition. The law is clear that a party is entitled to a hearing upon the claim. Once a hearing date is set, it cannot be canceled except for good cause. Moreover, the Employee was not willing to compromise his claim; he wanted a decision from the Board.

On the morning of the hearing, the Board denied Holmes, Weddle & Barcott's petition for mediation. In response, the insurer suddenly withdrew its controversions and agreed to pay medical benefits. However, Holmes, Weddle & Barcott did not agree to the compensation rate amount sought.

In the Final Decision, the Board held:

1.  The Employee was entitled medical benefits for treatment of his back injury,
2. The Employee was entitled to an increase in compensation rate and the insurance company owed him back pay,
3. When the Employee was re-injured approximately one year after his first injury, that second injury constituted a new injury and that his compensation rate needed to be increased again.

Keenan Powell has practiced law in Alaska for more than 30 years and has dedicated her practice to Workers Compensation representing injured Alaskans.

All consultations are free.  If you want to set up a meeting, use the contact form on www.keenanpowell.com or call:  907 258 7663.

Say you’re having problems with you workers compensation insurance company and don’t know what to do.  Your first solution is to call an attorney. If you start calling firms, you will quickly find out that the first thing most attorneys want to know is whether you have been controverted and some attorneys will not review your case if you have not been.

I meet with clients whether or not they have been controverted and I’m happy to meet with you and review your case.

If you don’t feel ready to call attorneys, you still have options. You can go down to the nearest Workers Compensation office and explain the problems you’re having. The office addresses are posted on the Board’s website: http://labor.state.ak.us/wc/home.htm.

The Board has employees there who will talk to you and try to guide you through the process.

If you believe you haven’t been treated fairly, you will need to file a claim. The claim form is found on the Board’s website in the forms directory:  http://labor.state.ak.us/wc/forms/wc6106.pdf/

You can fill it out on the computer, then print it off and e-mail it to the Workers Compensation Board: workerscomp@alaska.gov.

The Board will send a copy to the insurance company and your employer. The Board will also send you a copy by US mail documenting that your claim has been filed.

The next thing that will happen is the Board will set a prehearing. You can attend by telephone if you need to, but if you don’t have an attorney and you can attend in person, it would be a good idea. At that time, a Board employee will explain the procedures and deadlines to you more fully.

You can expect to see an answer from a law firm representing your employer and the insurer twenty days after the claim is filed. As a general rule, they will send you a list of questions and some forms to fill out. Their questions may or may not be appropriate. If you have not consulted with an attorney by then, you should seriously consider doing so.

Keenan Powell has practiced law in Alaska for more than 30 years and has dedicated her practice to Workers Compensation representing injured Alaskans.

All consultations are free.  If you want to set up a meeting, use the contact form on www.keenanpowell.com or call:  907 258 7663.

 

The Employee won her case again in Lena v Fred Meyer Stores, (Lena II), Decision and Order 17-0072 issued June 26, 2017. Lena II

This wasn't Lena's first trip to the Board, nor was it her first win. In fact, she had previously won Lena v Fred Meyer Stores, (Lena I) Decision 16-0135 issued Dec. 30, 2016. Lena I.

In Lena I, Fred Meyers had used every defense available to an Employer and lost all of them. The Board ordered that her injury was a workers compensation injury and she was entitled to time loss and medical benefits.

When the Board finds that a claim is compensable, the Employer must pay all benefits due no later than 14 days following the Board’s decision. However, although the Employee won her case on Dec. 30, 2016, no benefits were paid by Fred Meyers until long after the 14 days passed.  Because the benefits had not been paid, a claim was filed on her behalf for payment of the benefits plus penalties and interest. After the claim was filed, Fred Meyers paid some, but not all of the benefits owed.

In the new decision, Lena II, the Board ruled that the Employee was entitled to a 25% penalty on her temporary total disability, temporary partial disability and late-paid and unpaid medical benefits.  Three of the Board’s rulings are particularly noteworthy.

First, Fred Meyers claimed that it did not owe medical benefits until received a HCFA bill and matching chart note from the physician. A HCFA bill is a particular form that providers use when billing insurance companies. The Board held that there is no such requirement under the Act. Because the Employer had been provided with chart notes and bills that had been sent to the Employee or billing statements generated by the providers, it had enough information to trigger its duty to pay. And when it did not pay on time, it owed 25% penalty plus interest to the providers. Lena II, pgs 21-22.

Second, the Employee had paid the providers directly to obtain medical treatment when Fred Meyers controverted her.  She paid at the rate charged to individuals, which is ironically higher than group insurance or workers compensation or Medicaid or Medicare pays. Fred Meyers claimed that because it was only required to pay for the treatment at a reduced rate according to Alaska Workers Compensation law, it was entitled to pay the provider and then the Employee could fight it out with the provider as to how much she was entitled to get back.

The Board ruled that was unfair. When an Employee pays the provider directly, s/he is entitled to be reimbursed in full directly from the insurance company. Because Fred Meyers did not reimburse her, or reimbursed her late on some of the bills, she was entitled to 25% penalty plus interest. Lena II, pgs 23-24.

Third, the Board ruled that the defenses raised by Fred Meyers were unfair and frivolous, which in turn could result in a referral to the Division of Insurance for investigation. Each of the three defenses raised by Fred Meyers was found to be “incorrect”. First, Fred Meyers claimed that it didn’t have the chart notes and bills from a certain provider until January of 2017. That wasn’t true. It had those chart notes and bills in 2016. Second and third, it claimed that the payment pursuant to the Lena I was not due until 14 days after the decision and that penalties were not due for an additional 14 days after that. That is not the law.

When the Board renders a decision, the benefits must be paid 14 days after the decision’s date. If the payment is mailed even one day late, there is a 25% penalty that must be paid. And, that penalty is to be paid with the benefit payment.  The Employee should not have to file a claim to collect it.

Keenan Powell has practiced law in Alaska for more than 30 years and has dedicated her practice to Workers Compensation representing injured Alaskans.

All consultations are free.  If you want to set up a meeting, use the contact form on www.keenanpowell.com or call:  907 258 7663.

 

 

 

Maybe you don’t. Here are a few things to consider:

A lawyer knows how to fill the forms out correctly.

A lawyer will know if the insurance company is treating you fairly.

A lawyer will know the statutes, the regulations, the Board decisions and Commission decisions. Issues that commonly come up in hearings before the Board include pre-existing conditions, palliative care, compensation rate adjustments and reemployment benefits.

A lawyer knows what releases you need to sign for the insurance companies and which releases should be disputed.

A lawyer will know when an “independent medical evaluation” is not legally sufficient to deny benefits.

A lawyer will be with you in your deposition.

A lawyer will prepare your case for hearing, draft and file a hearing brief and the exhibits.

A lawyer will know whether you should file an appeal.

A lawyer will know whether you need a lawyer. Call one and ask if you need a lawyer.

Keenan Powell has practiced law in Alaska for more than 30 years and has dedicated her practice to Workers Compensation representing injured Alaskans.

All consultations are free.  If you want to set up a meeting, use the contact form on www.keenanpowell.com or call:  907 258 7663.