On 9/17/15, the Employee won his case. Williams v Arctic Terra/Umiliak Insurance Co., 
AWCB Decision No 15-0116 after a year of litigation during which time he was required to attend another “independent” medical evaluation plus testify at his deposition plus fly to San Diego for the Board-ordered second independent medical evaluation and a full day of trial. The Board ordered Umialik Insurance Company to pay his temporary total disability (TTD) back to January 24, 2014, to pay his past and future medical costs for his work injury and to pay his fees and costs. Umialik was also ordered to pay penalties because it had obtained an “independent” medical evaluation from Dr. Yodlowski in which she rated the Employee with a PPI rating but Umialik never paid it.
Because of the decision, he was able to get the surgery he needed. However Umiliak was consistently late with his 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. Williams v Arctic Terra/Umiliak Insurance Co., AWCB Decision No 16-0095 (10/26/16).
She testified that she had timely mailed a 5/16/16 TTD check to the Employee. By 5/19/16, his attorney had contacted her attorney who told her the check had not been received. She stopped payment on it on 5/27/16 and mailed the first replacement check on 6/1/16, a period of 13 days.
On 6/8/16, she was informed by her attorney that neither the 5/19/16 check nor the first replacement check had been received. On 6/27/16, she mailed an unrelated, routine TTD check but still had not made good on the missing 5/19/16 check. By 7/15/16, she has learned that neither the 5/19/16 check nor the first replacement check had been received. On 8/12/16, she stopped payment on the 6/1/16 first replacement check and mailed a second replacement check. She had no explanation for why she waited from 6/8/16 to 8/12/16, a period of two months and 6 days to issue the second replacement check.
The second replacement check was received by the employee on 8/13/16, the day after she mailed it.
Umialik said it mailed the 5/16/16 check on time, however it claimed that it did not owe penalties because the check had been lost in the mail. However it was the Employee’s position that once Umialik learned the check had been lost, it needed to issue a new check and the 14-day payment period began to run with that notice. The Board agreed, holding the event which trigged the 14-day payment period is when the Employer learns that the check had not been received, cashed or returned.
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.
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.
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