Amos v Tidwell, Alaska Supreme Court Op. 7709 (7/26/24)
The Alaska Supreme Court recently issued a seminal decision in the case of Amos v Tidwell and State of Alaska, Workers’ Compensation Benefits Guaranty Fund, Op No. 7709 (7/26/24).
In 2019, David Tidwell, an unlicensed and uninsured contractor, was hired to construct a shed for a homeowner. In turn, he hired Samuel Amos and others to provide labor. He promised to pay Mr. Amos from the proceeds.
A few days into the project, Mr. Amos fell from the roof and was injured so severely that Mr. Tidwell called an ambulance to have him transported to the hospital. A claim was filed on his behalf against Mr. Tidwell. Because Mr. Tidwell did not have workers compensation insurance, a claim was filed against the Guaranty Fund, which is set up to reimburse injured workers when their Employers were not insured.
At the hearing, Mr. Tidwell claimed that he did not “hire” Mr. Amos as an Employee, that instead he hired him because they were buddies. He claimed he did not promise to pay Mr. Amos for his labor. Instead, he claimed that Mr. Amos agreed to “help” him with the construction in exchange for which Mr. Tidwell would “help” Mr. Amos with money.
The Alaska Workers Compensation Board adopted Mr. Tidwell’s reasoning, holding that there was a “buddy” exception to an Employer-Employee relationship so that when one hired a friend, the Employer is not required to provide insurance coverage.
The Board’s decision was appealed to the Alaska Workers Compensation Appeals Commission which likened Mr. Amos to a farm laborer and, as such, ruled that he was not eligible for workers’ compensation benefits.
The Alaska Supreme Court reversed both the Commission and the Board. In a lengthy opinion, it held, amongst other things, the following:
1. There is no such thing as a “buddy” exception to the requirement of an Employer to provide an Employee with workers compensation coverage.
2. An Employer must carry workers compensation insurance. It does not matter if:
a. The Employer is only making little income,
b. The Employer is unlicensed,
c. The Employer has another full-time job,
d. The Employer pays wages in cash.
The Employee won!
Geerhart v Yukon Health Corp, AWCB Dec. 23-0020 (4/4/23)
the Alaska Workers Compensation Board issued a decision in the case of Geerhart v Yukon Kuskokwim Health Corp, Dec. 23-0020 (April 4, 2023). The employee was a nurse who was injured while lifting a patient. She had just completed nursing training the year before. While she was in school, she didn’t work one year, and worked as a flagger one summer, earning significantly less than she earned as a nurse.
Alaska National Insurance Company used her flagging income to calculate her disability benefits. As a result, it paid her $308 per week, far less than she lost when she was off work recovering from her injuries.
After a claim was filed, the insurance company, represented by Jeffrey Holloway, voluntarily raised the compensation rate to $1,1125.25 per week, which still did not reflect her loss of income.
The Board ruled that both the $308 rate and $1,1125.25 rate were irrational. It increased the compensation rate to the legal maximum, $1298 per week.
The Board ruled:
There is no better evidence of what Employee lost than actual wages she was making when she became disabled and continues to make, as she still works for the Employer.
The Employee won!
Kvernik v The Ohio Casualty Insurance Co., AWCB Dec. No 22-0001 (1/3/22)
The Employee injured his calf muscle and Achilles’ tendon while pushing a heavy pallet up a ramp at work. He had surgery to repair the tendon.
The insurance company underpaid temporary total disability (TTD) when it did pay, paid some TTD late, and failed to pay TTD for 12 weeks. It also failed to reimburse for travel expenses incurred to visit his doctor and medical costs the employee was required to pay out-of-pocket.
A claim was filed for an increased compensation rate, payment of unpaid TTD, payment of medical and transportation costs, interest, penalties, and unfair/frivolous controversion.
The Board held that the insurance company’s failure to pay TTD, failure to reimburse for medical and transporation costs, and failure to pay penalties and interest when it late-paid certain benefits was an unfair or frivolous controversion. It ordered that a referral would be made to the Division of Insurance for investigation. Additionally, the Employee won all the benefits he sought.
Employee won!
Guerrissi v State of Alaska , AWCB Dec. No 22-0020, (3/23/22)
The Employee injured his neck and left shoulder while standing on a ladder, working with his arms overhead, when he turned his head. The doctors diagnosed a rotator cuff tear, SLAP tear, and a cervical disc herniation.
He had neck surgery to repair the herniation. He then had another surgery to repair the shoulder injuries.
After his surgeries, the State sent him to Dr. David Glassman for a “independent” medical evaluation. Dr. Glassman’s opinion was that neck was not injured at work and the shoulder injury was due to degenerative changes.
The State controverted all benefits, relying on Dr. Glassman’s report. The Employee filed a claim.
After two SIME (second independent medical evaluations) – one with a neck specialist and one with a shoulder specialist, the case went to hearing.
The Board ruled:
1. The need for medical treatment for the cervical spine was work-related.
2. The need for medical treatment for the shoulder was work-related.
3. The State was required to reimburse him for medical treatment and transportation costs.
4. The State was required to pay the Employee PPI ratings.
5. The Employee was entitled to penalties and interest for unpaid benefits.
Employee won!
Torres v Zurich American Insurance Co., AWCB Dec. No 22-0021 (3/24/22)
The Employee, a roofer, injured both shoulders when he was tearing off a roof. He experienced pain and weakness in both shoulders immediately. He tried physical therapy and when that didn’t improve his condition, he decided to go forward with recommended surgeries. He has not been able to work since the injuries.
The insurance company sent him to Dr. Scot Youngblood for an “independent” medical evaluation. As Dr. Youngblood so often opines, he stated that the Employee’s shoulder injuries were degenerative.
The insurance company controverted benefits, cutting of his medical and disability benefits.
The Employee filed a claim. After a SIME(second independent medical evaluation), the case went to hearing.
The Board ruled:
1. The need for shoulder surgeries was work-related and it ordered the insurance company to pay for both of them,
2. The Employee’s disability was work-related. The Board ordered the insurance company to pay for TTD benefits from the time it was cut off until he recovered from his surgeries.
3. The Employee was entitled to transportation costs for visiting his providers,
Employee won!
Brown v Titan Medical Holdings , AWCB Dec. No. 21-0081, (9/8/21)
The Employee fell on icy stairs at her employer-provided housing while she was on her way to work, injuring her back, right hip, right knee, and right shoulder. Most of her injuries resolved within a few months, but surgery on her right shoulder was recommended on October 14, 2020.
On January 20, 2021, the Employer controverted her benefits relying upon an opinion from Dr. Pino, its “independent” medical evaluator, having failed to read or understand his report. Dr. Pino had performed an evaluation the prior summer and found that the right shoulder condition was caused by the work injury and that recommended treatment was reasonable and necessary. The insurance company failed to attach a copy of Dr. Pino’s report to the controversion.
A claim was filed on her behalf by this office for unfair controversion and for a compensation rate adjustment as the adjuster had purposefully selected a year when the Employee made the least amount of money to calculate her benefits. Dr. Pino’s report was demanded. When it came in, the undersigned emailed opposing counsel, pointing out to him that his expert had agreed with the treating physicians. The insurance company immediately lifted the controversion of right shoulder benefits.
The case went to hearing on July 15, 2021. The Alaska Workers Compensation Board held:
1. Work was the substantial cause of the Employee’s disability and need for medical treatment,
2. The Employee was entitled to medical benefits and transportation costs,
3. The Employee was entitled to a compensation rate adjustment.
4. The insurance company had committed unfair or frivolous controversion and was referred to the Division of Insurance.
The Employee won!
Harrison v Liberty Northwest, AWCB Dec. 20-0008, (2/26/20)
Mr. Harrison was working at a camp when a bear broke into 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!
Meili v Liberty Northwest, AWCB Dec. 20-0010, (2/28/20)
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).
The Employee won!
Cavitt v Liberty Mutual, 445 P 3rd 165 (Alaska Supreme Court 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, (7/8/19)
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, (3/19/19)
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, (9/9/19)
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.
Campoamor v Berkshire Hathaway, AWCB Decision 19-0114, (11/8/19)
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.
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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