Insurance companies routinely set the compensation rate (the amount you are paid) for an injured worker by relying upon the workers’ income records from two years prior to the injury. It’s legal, but is it fair?
The answer is: it may not be fair to you. And you may be entitled to seek an increase in your benefits.
But Is It Fair?
When is it not fair to look at past income? When the injured worker’s current income or future income is greater.
That’s because the purpose of disability benefits is to compensate the injured worker for the wages he is losing while he is disabled, which can be more than he was making in the past two years.
A Recent Case: Injured Worker Received an Increase in Compensation Rate
Recently, 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 Workers Compensation Case, Guerrissi v State Dec. No 22-0020
On February 13, 2019, the Employee injured his neck and left shoulder at work. He say his physician the next day because of his neck pain and numbness in his shoulder radiating into his hand. After evaluations by a number of doctors, he had neck surgery, a discectomy and fusion, for a herniated disc. He then had surgery on his shoulder.
Enter The Hitman: Dr. David Glassman
On September 7, 2019, the Employer sent him to Dr. David Glassman, an orthopedic surgeon for an employer’s medical evaluation (EME). (Employers wrongly refer to these as “independent” medical evaluations.) Dr. Glassman works at the Navy hospital along side a long-time insurance defense expert, Dr. Scot Youngblood. For more on Dr. Youngblood, see: "Independent" Evaluations: Scot Youngblood, MD - Keenan Powell, Attorney at Law.
Not surprisingly, Dr. Glassman issued a report that stated all of the Employee’s problems were pre-existing, that he had a temporary aggravation of neck pain because of the work injury which had resolved, and that neither surgery was the result of the neck injury. As a result of the report, the Employer controverted all benefits including medical.
The Employer opposed a SIME evaluation. So the case went to hearing the first time. The Alaska Workers Compensation Board ordered a SIME over the Employer’s objection. Guerissi v State, Dec. No 20-0013 (3/16/20): D&O 20-0013.pdf (alaska.gov)
The Employee was seen by Dr. Bruce McCormack for his neck issues and Dr. John Lane for his shoulder issues. Both doctors agreed this his injuries were work-related and his surgeries were reasonable and necessary.
The Board's Decision: Employee Wins!
The case went to hearing on November 4, 2021. The Board ruled in favor of the Employee, specifically finding:
1. The February 13, 2019, work injury is the substantial cause of the Employee’s need for medical treatment for his cervical spine and left shoulder,
2. The Employee is entitled to medical and transportation benefits including all his out-of-pocket expenses, plus interest,
3. The Employee is entitled to PPI benefits,
4. The Employee is entitled to interest and penalty,
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
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.
Don't you just love a good spy movie? James Bond maybe? Maxwell Smart? I like Tinker, Tailor, Soldier, Spy. Tales of loyalty, betrayal, truth, and lies are all great fun - when it isn't your life.
Who Can You Trust?
There are two types of spies in Workers Compensation cases. The first is the Mata Hari. She pretends to be your friend. She makes life easier for you. But all the while, she's telling your deepest secrets to those who wish you harm, the insurance company. She is the nurse case manager, that nice person the insurance company sent to sit with you at your doctor visits and help move things along. Only she isn't moving things along for you. She's moving things allow for her boss, the insurance company. And that insurance company has only one goal: closing out your file. So beware of the Mata Hari!
By the way, you don't have to allow Mata Hari into your visits. You can just say no and there is nothing the insurance company can do to retaliate.
There's a new spy in town: the double agent. He's the guy who is loyal to no one. He's acts like he's going to fix your problems. But he's on both sides. While he's treating your injuries, he takes money from insurance companies by performing "independent" medical evaluations, trashing the claims of other injured workers. When it comes time that the insurance company wants to close out your file, he's their go-to guy. The horrible thing is that they've trained him to say the magic words that will kill your claim. Want to learn more about double agents practicing medicine in Alaska?
Stay tuned.
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.
Do not assume that you have blown the statute of limitations in your workers compensation case! The statute is complicated. So, before you give up, talk to an experienced workers compensation attorney and find out what can be done.
But beware! If you are not vigilant in pursuing your rights under the Alaska Workers Compensation Act, your case – no matter how valid it is – can be dismissed. Here are two recent examples:
Vanderpool v State of Alaska, AWCB Dec. No. 21-0123 (12/28/21)
The Employee’s claim was dismissed because his attorney failed to ask for a hearing before the deadline.
On January 1, 2017, the Employee reported a traumatic injury to multiple parts caused by ice or snow. Two years and one month later, on January 31, 2019, an attorney entered file a claim on his behalf for temporary total disability (TTD), permanent partial impairment (PPI), unfair/frivolous controversion, penalty for late paid benefits, and interest.
On February 28, 2019, the State’s attorney filed a controversion notice denying all benefits. It relied on its “independent” medical evaluation report which stated that he was medically stable and did not sustain a permanent injury.
On June 11, 2021, over two years after the Employee’s attorney filed the claim, he sent a letter to the State’s attorney asking the State to agree to a SIME. Note: you don’t need the Employer’s agreement to go forward on a SIME.
On June 16, 20201, the Employer filed a petition to dismiss the Employee’s claim because had failed to request a hearing within two years of the February 28, 2019, post-claim controversion.
On August 17, 2021, the Employee’s attorney filed an ARH (Affidavit of Readiness for Hearing), the document that must be filed no later than two years following the post-claim controversion. It was due on March 3, 2021, so it was five months and 26 days late.
The Board dismissed the Employee’s case, finding:
1. The Employee’s attorney could have filed an ARH on time or a request for additional time to prepare for one – on time. He did not.
2. A SIME is one reason to excuse filing an ARH within two years, but the Employee’s attorney never filed a petition seeking a SIME.
3. The Employee’s attorney’s neglect in failing to file the ARH on time was not excusable.
4. The Employee’s attorney’s claim that he was confused about the deadlines was not reasonable when he had been served with a notice about the deadlines twice.
5. The Employee’s attorney’s failure to calendar his deadlines was not good cause to excuse his failure to request a hearing.
6. The COVID epidemic was not an excuse for meeting the deadline.
Moral of the story: An attorney who isn’t familiar with workers compensation law or procedure, or who isn’t vigilant in pursuing your rights, can destroy your case.
Ducasse v Making Employment Connections, AWCB Dec. No 22-0002 (1/5/2022)
The Employee’s claim was dismissed because her claim was filed late.
On December 19, 2017, the Employee injured her back when wheeling a Hoyer lift with a patient in it around a door. The Employer accepted the work injury and began paying TTD and medical costs.
On December 11, 2018, the Employee received her final TTD payment. On February 14, 2019, the Employee received her final PPI payment. Also on February 14, 2019, the Employer controverted all benefits based on an “independent” medical evaluation.
On August 10, 2021, the Employee’s attorney filed a new claim for TTD, PPI, medical and transportation benefits, fees, costs, and reemployment benefits.
On August 30, 2021, the Employer filed a petition to dismiss the Employee’s TTD claim as it was time-barred, i.e. the statute of limitations had run.
In dismissing the Employee’s case, the Board held:
1. The statute of limitations applies to PPI as well as TTD claims. The Employee could file a claim for additional TTD or PPI no later than two years after the last payment of either benefit.
2. The August 10, 2021, claim had missed both deadlines.
Moral of the story: You need to be vigilant in pursuing your workers compensation rights.
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 a number of favorable decisions from the Alaska Workers Compensation Board in 2021. Below are two significant wins:
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.
Nelson v State of Alaska, AWCB Dec. No 21-0092 (9/27/21)
This case has a long and storied past.
The Employee injured his neck at work in 2015. In early 2016, the Employer controverted benefits relying up a report by its “independent” medical evaluator, Dr. Craven. A claim was filed together with a petition for second independent medical evaluation. In late 2016, the Employee was seen by Dr. Scarpino in Hawaii who reported that the neck pain was caused by the work event. After that report, the Employer withdrew its controversion and the Employee had neck surgery.
In 2019, the Employer obtained another “independent” medical evaluator, this one from Dr. David Bauer. Dr. Bauer reported that the ongoing neck pain was not work-related. The Employer did not controvert at the time of the report.
In late 2020, the Employee’s doctor said he needed another neck surgery. The Employer refused to authorize the surgery. In early 2021, the undersigned filed a claim on the Employee’s behalf.
The Employer had a third “independent” medical evaluation, this one by Dr. Bauer, performed in April of 2021. He again stated that the need for treatment was not work-related.
A petition for second independent medical evaluation (SIME) was filed by the undersigned in May of 2021. The Employer objected to a SIME so the petition went to hearing.
The Board granted the Employee’s petition for SIME and ordered that it would be performed by Dr. Scarpino, who had performed the first SIME.
What Are Your Rights? Find Out Now
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
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 adjuster doesn’t respond to your calls or emails.
Sign No 2: No Reimbursements.
The insurance company didn't reimburse you for travel and out-of-pocket medical expenses.
Sign No 3: The “Independent” Medical Evaluation
The insurance company scheduled an “independent” medical evaluation. Ain’t nothing independent about them. The only one reason the insurance company sends you to its doctor is to cut off your benefits. It wants their hired guy to say you don’t need the treatment your doctor recommended, or you can work. Or both.
Your medical treatment is delayed because the insurance company refuses to authorize it. This usually happens when surgery is recommended. The problem is, the longer your surgery is delayed, the longer it is before you can go back to work.
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
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.
If you have looked for a workers compensation attorney, you may have called a few offices and learned that the attorneys ask you to collect your medical records. Most attorneys require prospective clients to provide them with a complete set of medical records relating to the injury. Often we will ask for records in the two years prior to the injury as well.
Reasons Why You Need to Collect the Medical Records
1. The injured worker knows who he or she treated with.
2. The injured worker is entitled to a copy of his or her medical records.
3. If attorneys took on the responsibility of collecting medical records, it invokes an ethical responsibility to collect all of them before reviewing the file. If the injured worker didn’t give us all the names of the all the treaters, its impossible. We are set up to fail.
4. When attorneys request medical records, they are billed by each office. I’ve seen bills ranging from $20.84 to $100. Most injured workers have seen an emergency room doctor, their family physician, one or two specialists, and one or two physical therapists. The costs of collecting these records mounts up.
5. I take about ten per cent of the prospective clients who call me. If I took on the responsibility of collecting records for all of them, and paying for the records, then I wouldn’t have time to devote to my current clients.
6. It’s a test. A good client will pull together their entire file and provide it. One thing I think about when taking the case is how cooperative my client is going to be.
If the Doctor Refuses to Release Your Records
If the doctor’s office says they will only release the records to your attorney, they are breaking the law. Alaska Statute 18.23.005 states:
Notwithstanding the provisions of AS 18.23.005-18.23.070 or any other law, a patient is entitled to inspect and copy any records developed or maintained by a health care provider or other person pertaining to the health care rendered to the patient.
So if you hear that from your doctor’s office, tell them about the law. If they still refuse, file a complaint with the Medical Board and with Consumer Protection.
For More Information
For more information on medical records, check out these blogposts:
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.
Sometimes a medical care provider will demand an injured worker to pay his or her own medical bills. This is illegal. And it happens all the time.
Alaska Statute 23.30.097(f) bars collection of fees or charges for medical treatment or services provided under the Alaska Workers Compensation Act from the Employee. Efforts to collect such a fee from an employee may also constitute unlawful trade practice under AS 45.50.471(a) and AS 45.50.471(b)(14) by the person referring the alleged debt to a collection service and the collection service attempting collection of the debt.
When The Doctor Can't Get Paid
There are a couple of reasons why a doctor’s office might bill an injured worker:
The billing clerk doesn’t know the law, or
The insurance company didn’t pay the bill.
The doctor’s office can file its own claim before the Alaska Workers Compensation Board to recover unpaid bills. They have filed and they have won.
Provider Filed Claim and Won
In the April 16, 2021, decision in Alaska State Commission for Human Rights vs United PT, the State of Alaska had filed a retroactive controversion of medical benefits – after the treatment had been rendered. United PT filed a claim before the Board. The Board ordered the State of Alaska to pay United PT $510.
The State of Alaska appealed to the Alaska Workers Compensation Appeals Commission. It lost its appeal.
The State of Alaska appealed to the Alaska Supreme Court. It lost again.
The short story is the State of Alaska paid its attorney and ended up having to pay United PT’s attorneys thousands of dollars just so it could avoid a $510 bill.
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.
You got hurt at work. You need medical treatment. Maybe you can’t go back to your job. When do you need a lawyer?
Danger Sign No 1: The “Independent” Medical Evaluation
The insurance company schedules an “independent” medical evaluation. Ain’t nothing independent about them. There is only one reason the insurance company sends you to its doctor. It wants to cut off your benefits. It wants their hired guy to say you don’t need the treatment your doctor is recommending. Or they want the hired gun to say you can work. Or both.
Your medical treatment is being delayed because the insurance company refuses to authorize it. This usually happens when surgery is recommended. The problem is, the longer your surgery is delayed, the longer it is before you can go back to work.
You don’t need to wait until your claim is controverted to speak with an attorney. Find out your rights are and what you should be looking out for.
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.
When you need representation in a workers compensation case, you want to hire an experienced attorney. There are several reasons why it is better to hire a lawyer than a self-employed paralegal or to represent yourself:
1. An attorney cannot charge an injured worker fees.
It is against the law for an attorney to charge an injured worker fees. If the case is successful, the attorney will be paid by the insurance company at the end of it. Either the attorney will be paid when the case settles or when the Board issues a decision. The fees that the attorney earns are in addition to the award made to the employee.
Paralegals charge money up front, win, lose, or draw.
2. An attorney will pursue your case efficiently.
Sometimes a case needs to be litigated with numerous petitions. For instance, if the employer’s attorney asks for a medical or employment release that is improper, a petition for protective order needs to be filed to protect the employee’s rights. An experience attorney will know when a petition is necessary. The attorney won’t waste the Board’s time with frivolous filings.
3. An attorney will be current on the law.
Workers compensation attorneys attend an annual seminar reviewing all the legal developments. They also attend monthly meetings addressing current issues in depth.
4. An attorney’s conduct is governed by ethics.
An Alaska attorney is governed by the Alaska Rules of Professional Conduct. If someone suspects he or she has violated these rules, a complaint can be lodged with the Alaska Bar Association. The Bar will investigate and make a decision on the complaint which can lead to discipline such as suspension or disbarment.
No one oversees paralegals.
5. You can check an attorney’s experience.
If you’re curious as to the cases a specific attorney has won or lost. Go to the Alaska Workers Compensation Board's website: Alaska Workers' Compensation Board
Select "Legal Research" in the right hand menu.
Select Search Alaska Supreme Court Opinions or Search Board Decisions and Orders or Commission Final Decisions and Memorandum Decisions. When you have, plug the name of the attorney you are researching into the window. Every case that attorney is mentioned in will appear with links so you can read the decision.
For more information about some of the cases I have won, check out these posts:
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.
