Gillion v Berkshire Hathaway
AWCAC Decision No. 253
8/28/18
Following a hearing in 2017 that resulted in two decisions, appeal was filed on a denial of attorneys fees and challenging the adequacy of Dr. Bauer’s “independent medical evaluation” opinion. The Employer cross-appealed upon the award of three days of temporary total disability for attending a second independent medical evaluation. The Alaska Workers’ Compensation Appeals Commission ruled that the Board must award additional attorneys fees because the Employer had resisted the second independent medical evaluation, that Dr. Bauer’s “independent medical evaluation” was adequate under old law, but would have been inadequate under new law, and that the Employee was entitled to the three days of temporary total disability for the second independent medical evaluation appointment.
Cavitt v D&D Services (Cavitt II)
AWCB Decision No 18-0060
6/25/18
This is the second time this case went to the Board because of Ohio Casualty’s refusal to pay temporary total disability (TTD) and medical benefits, the case having been won on 9/13/17 (AWCB Decision No 17-0109, reported below).
After the Employee received a partial elbow replacement surgery in 2016, developed osteomyelitis in 2017 which required a new surgery to remove and replace the joint prosthesis, the Employer controverted all benefits. After the Employee filed a new claim because of the denial of benefits, the Employer agreed to pay for the surgery but still had not paid for TTD benefits while the Employee was off-work recovering from surgery. When the case went to hearing on 9/13/17, the Employer withdrew its controversion and agreed to pay TTD.
The same thing happened all over again in 2018. Although it is recognized by all competent orthopedic surgeons that a joint replacement prosthesis will need to be replaced every ten years and that once a patient contract osteomyelitis (a bone infection), the patient will need to be followed more closely for possible recurrences, the Employer obtained an incredulous EME (Employer Medical Evaluation) from Dr. David Bauer who opined that this Employee was medically stable and would never need medical treatment again for the rest of his life. Dr. Bauer also opined that he would not be able to go back to the job he was doing when he was injured or the job he held after his injury.
Based upon the insurance doctor’s report, the Employee filed a claim for continued TTD and a modification of a prior reemployment decision that had denied him benefits because after the initial injury, the Employee had found a job. Medical benefits were also sought as the treating physicians, an orthopedic surgeon and an infection specialist, both had recommended follow-up and treatment for the Employee’s life time. The Employer opposed.
On the eve of hearing, the Employer filed a petition to force the Employee into mediation which would have canceled the hearing date. The Employee refused. Why should the Employee be forced to trade benefits to which he was entitled in order to obtain other benefits to which he is entitled?
When the Board denied the Employer’s petition for mediation, the Employer withdrew its controversions, just as it had in the 9/13/17 hearing. However it refused to agree to future treatment, had still not paid for two months of past TTD and refused to agree to the reemployment modification. So the case went to hearing.
The Employee had filed a Request for Cross Examination of Dr. Bauer and sent an email to Employer’s counsel asking that he be produced for deposition. He was not. Nor was he produced to testify at the hearing. Because he was not produced for cross-examination, he report was stricken from the record.
Because Dr. Bauer’s report was stricken with the result that the Employer had no evidence to support its arguments, the Board awarded the Employee:
- Past and future medical benefits,
- Back and future TTD,
- Remand to Reemployment Benefits Administrator for new evaluation of eligibility.
Gillion v Berkshire Hathaway (Gillion II)
AWCB Decision No. 17-120
10/16/17
Following a decision in Gillion I, Employee’s counsel sought reconsideration of the decision as the Board had failed to some of the claims in the first decision. Following new briefing, the Board awarded the Employee three days of Temporary Total Disability for attending a Second Independent Medical Evaluation of state and transportation costs for visits to providers.
Cavitt v D&D Services
AWCB Decision No 17-0109
9/13/17
In 2016, the Employee fell at work shattering his elbow and had partial elbow replacement surgery. He continued to suffer pain and in 2017, his doctor took an MRI which showed that the prosthesis had loosened and recommended it had to be replaced. At the time the doctor made the recommendation, he took the Employee off work.
The Employer, represented by Holmes, Weddle & Barcott refused to pre-authorize the surgery and further refused to pay temporary total disability as the adjuster thought there may have been another cause for the need for surgery. Ultimately the adjuster obtained an “independent medical evaluation” which determined that the surgery was work-related. Under existing Alaska law, complications from a work-injury treatment are covered by workers compensation benefits.
Before the hearing, the Employer withdrew its controversion and began paying temporary total disability.
At the hearing, the Employer argued that it should only have to pay three months of temporary total disability after the surgery as their doctor stated that was how long the Employee would need to recover.
The Board disagreed and ordered that the Employer will continue to pay temporary total disability benefits until the Employee is medically stable. The Board also awarded interest on the late-paid temporary total disability.
Gillion v Berkshire Hathaway (Gillion I)
AWCB Decision No. 17--0089
7/31/17
The Alaska Workers Compensation Board issued a Final Decision and Order of Gillion v The Northwest Co/Berkshire Hathaway Homestate Insurance Co. 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 physician 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:
- The Employee was entitled medical benefits for treatment of his back injury;
- The Employee was entitled to an increase in compensation rate and the insurance company owed him back pay;
- 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.
Lena v Fred Meyers (Lena II)
AWCB Decision No. 17-0072
6/26/17
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.
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 defenses raised by Fred Meyers was found to be “incorrect”. 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. It also 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.
Lena v Fred Meyers (Lena I)
AWCB Decision No. 16-0135
12/30/2016
Fred Meyers then claimed that the employee’s foot pain, an aggravation of foot condition that required surgery, was not work-related. It relied upon the opinion of a doctor it hired, Dr. Scot Youngblood, an "independent medical examiner”. The Board discounted his opinion because he didn't understand Alaska’s legal standard.
Under the Alaska Workers Compensation Act, if a work event aggravates, accelerates or combined with a pre-existing condition to create a disability or need for medical treatment, then it is workers compensation injury.
Most importantly, the Board held that there is no distinction between aggravation of symptoms and aggravation of an underlying condition. If a work event, including chronic overuse, aggravates symptoms creating a disability or creating a need for treatment, then the injury is workers compensation. The Employee is entitled to have her medical treatment paid by the Employer and to be compensated for her lost wages.
Williams v Umiliak Ins Co
AWCB Decision No. 16-0095
10/26/16
On 9/17/15, the Employee won his case. Williams v Arctic Terra/Umiliak Insurance Co., AWCB Decision No 15-0116. Because of the decision, he was able to get the surgery he needed. However Umiliak was consistently late with his disability checks, which were supposed to be issued every 14 days.
A new claim was filed against Umialik for penalties. The case went to hearing on 9/28/16 and the Umialik adjuster, Robbie Sullivan, testified. Although Robbie Sullivan testified she followed the statute in issuing TTD checks and replacement checks, the Board found she had not. Once she learned a check was missing, she had 14 days to investigate and issue a replacement check. “The adjuster inexplicably waited until August 12, 2016, to stop payment and to issue the second replacement check…well beyond the 14 day period and the seven day grace period following notice on June 8, 2016 and July 15, 2016 (that the first replacement check had not been received).
“Furthermore, Employer had an obligation to either pay or controvert the penalty and interest claims….It did neither.” Because of Umialik and Robbie Sullivan’s failure to issue the second replacement check on time and failure to pay penalties and interest, it was ordered by the Board to pay penalties and costs and fees associated with bringing the claim.
Gerlach vs Liberty Mutual
AWCB Decision No 16-0003
01/05/2016
The Employee was injured while working at a fishing lodge in Yakutat. When he reported the injury, the Employer claimed he was not an employee but an independent contractor instead and therefore not entitled to Workers Compensation benefits. In analyzing the “relative nature of the work test”, the Alaska Workers Compensation Board ruled that the claimant was an employee therefore he was entitled to workers compensation benefits for his work-related injuries.
Williams vs McDonalds
AWCB Decision No 15-0116
09/17/2015
In Williams v McDonalds the Board made several rulings, the most important is that the old "pre-existing condition" defense used by the Employer to refuse benefits was invalid. The Board ordered the Employer to pay all back temporary total disability benefits plus penalties and to immediately start paying medical benefits, including a needed back surgery. In this case, the Employee had an injury and back surgery in 1987. For the following 27 years, he worked hard and had absolutely no back pain other than normal strains. In 2014, he slipped on ice and fell, injuring his back again. The 2014 employer claimed that his injury was "preexisting" because of the 1987 injury. The Board ruled the 2014 injury was not preexisting because the Employee had no pain complaints in the 27 years before the 2014 injury and he had not seen a doctor from the time he recovered from the 1987 surgery until the 2014 fall.
Marquez v. Sunset Haven
AWCB Decision No 15-0086
07/22/2015
On July 22, 2015, the Alaska Workers Compensation Board issued a decision in Marquez v Sunset Haven, AWCB Decision No. 15-0086 awarding the Employee all of the benefits she requested! The decision can be found at the Board's site: Alaska Workers Comp Case 15-0086
Marquez was working as a personal care attendant for Sunset Haven. She was paid a salary plus room and board plus cash under the table for working overtime. She fell in November of 2014 fracturing to vertebrae. On account of her injuries, she was unable to work as an attendant and was forced to move from the home. The Employer, whose workers compensation insurance had lapsed, disputed that the Ms. Marquez had been injured while working for him. The Board found that Ms. Marquez was injured while she was working, that she had reported her injury to him timely, that she was entitled to back benefits which compensated her for her lost wages plus room and board, medical benefits, plus 25% penalties for the Employer’s failure to pay her disability timely, plus interest, plus fees and costs. The Board ordered the Employer to pay Ms. Marquez what he owes her and if the does not pay within 30 days, the Alaska Workers Compensation Guaranty Fund will pay the judgment.
Baker vs Liberty Northwest
AWCB Decision No 15-0069
06/16/2015
Liberty Northwest was represented by Holmes, Weddle & Barcott. The Employee had negotiated a settlement by which Liberty agreed to assume liability for paying medical bills in excess of $100,000 and for holding the Employee harmless on the bills. After the settlement was approved by the Board, Liberty refused to pay the Providence bill, demanding that Providence negotiate the amount. Providence refused and began pursuing the Employee again for payment. Keenan Powell filed a Claim against Liberty. Liberty’s response was that it was only responsible for reimbursing the Employee if he paid the bills. After a hearing, a Decision and Order was entered finding that the Employee was entitled to payment of the bills, the providers were entitled to payment of the bills, that Liberty had acted in bad faith when refusing to pay the bills and mandating Liberty pay the bills with 25% penalties.
King vs Liberty Northwest
AWCB Decision No 13-0010
9/6/2013
Liberty Northwest was represented by Holmes, Weddle & Barcott. The insurance company had provided the Employee with a “prescription card” to use to fill his prescriptions. On at least four occasions, the pharmacy would not fill the prescriptions because it called the insurance company and the insurance company refused to authorize the specific prescription. The insurance company’s position is that it does not have a duty to pre-authorize prescriptions and instead is only obligated to reimburse for prescriptions paid by the Employee. At the hearing, Keenan Powell was successful in obtaining an order from the Board requiring the insurance company to arrange for filling the prescriptions when they are presented, plus a finding that the insurance company had acted in bad faith and would be reported to the Division of Insurance for an investigation, plus fees and costs. The order has subsequently been appealed and the appeal is on-going.
Carter vs Anchorage Daily News
AWCB Decision No 13-0050
5/10/2013
The Employer’s adjuster controverted future benefits on the basis of its doctors opinion that the injury was not work-related. The Employer was represented by Holmes, Weddle and Barcott. Following a hearing, Keenan Powell was successful in obtaining an order for a Second Independent Medical Evaluation (SIME) and fees and costs.
Guinard vs Liberty Mutual/Liberty Northwest
AWCB Decision 13-0017
2/26/2013
Liberty was defended by in-house counsel. Shortly after the Employee herniated a disc in his back at work, the Employer controverted all benefits claiming that surveillance videotapes did not show him being injured. It was proven at the hearing that the Employer had in fact destroyed the videotapes that would have shown the incident. Keenan Powell was successful in obtaining an award from the Board for past temporary total disability (TTD), past temporary partial disability (TPD), past medical bills, past transportation, fees and costs. After the hearing, the Employer subsequently agreed to a SIME and to a reemployment evaluation and paid , “41k” (stipend) payments during the rehabilitation process.
O'Hara vs Zurich American
AWCB Decision 12-0208
12/14/2012
Zurich was defended by Holmes, Weddle and Barcott. The insurance company controverted all benefits based upon the opinion of his doctor that the Employee’s symptoms were not work-related and then refused to agree to a Second Independent Medical Evaluation (SIME). After a hearing before the Board, Keenan Powell was successful in obtaining a SIME on the issues of causation, compensability, medical treatment, disability, medical stability and PPI rating. The SIME took place and the case subsequently settled.
Weese vs Alaska National Insurance Co
AWCB Decision 12-0196
12/13/2012
Alaska National was defended by Farley & Graves. The Employee injured her shoulder while working as a bus attendant for handicapped children. The insurance company sent her to Dr. Marilyn Yodlowski who claimed that her injury was not work-related and based upon Dr. Yodlowski’s opinion, the insurance company controverted all her benefits and additionally refused to agree to a Second Independent Medical Evaluation (SIME) because the Employee was unable to obtain medical opinions after the controversion which would dispute the controversion. Keenan Powell was successful in obtaining a decision from the Board ordering a SIME on the issues of causation, compensability, medical treatment, medical stability and whether there would be a PPI rating. The case settled shortly after the decision with the insurance company agreeing to pay for the surgery, total disability (TTD), PPI and fees and costs.
Torres-Soria vs Seabright Insurance Company
AWCB Decision 11-0008
1/25/2011
Seabright was defended by Kara Heikkila. The Employer controverted all benefits six months after the Employee sustained a herniated disc in a lifting injury on the grounds that its physician stated that the injury was not work-related. During the course of the litigation, the Employer subsequently agreed to pay for medical treatment and temporary total disability (TTD). After several months of litigation, depositions and a hearing, Keenan Powell was successful in obtaining a decision from the Board awarding past medical benefits, interest on late paid TTD, “41k” (stipend) payments during the rehabilitation process, an order for a PPI rating evaluation, transportation benefits, fees and costs.
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