Alaska Workers Compensation: Business Almost As Usual
Despite the pandemic, some people worked and got injured. Insurance companies denied benefits. So, claims are being filed. Below is an update on the current status of workers compensation procedures. The big change is in Second Independent Medical Evaluations. The Board is now scheduling them as of May 26, 2021. See Bulletin 21-03: Workers' Compensation Bulletins (alaska.gov)
As of this writing, the Alaska Workers Compensation Board is “open” but the buildings are locked and most employees are working from home.
Workers Compensation Hearings
Most hearings are being conducted telephonically so there is no need to go the Board's office.
Depositions
Most depositions are being taken on Zoom so you can do the deposition from the comfort of your home or car.
Mediations
Most mediations are being done on Zoom so you don'thave to leave home.
“Independent” Medical Evaluations
When travel was shut down, the insurance companies stopped scheduling “independent” medical evaluations. (Ain’t nothing independent about them.) That changed last summer because they began bringing doctors up to Alaska and also started telemed evaluations. They are also now scheduling these examinations Outside as well.
Second Independent Medical Evaluations
When the insurance doctor disagrees with your treating physician, you can request the Board to appoint its expert to examine your case. This is a “Second Independent Medical Evaluation.” As of May 26, 2021, the Board is now scheduling these examinations.
All the rules regarding deadlines are still in place so don't delay. If you have delayed, don't drop your case. The time limitation rules are complicated so you may still have a valid claim.
Controversions
If the insurance company refuses to pay benefits, it must issue a controversion notice within a certain period of time. If it doesn’t issue a controversion notice, then its refusal is deemed a “controversion-in-fact.” If you disability benefits are not arriving on time or if the insurer is refusing to pay your medical benefits, whether you have received a controversion notice or not, you have been controverted.
Request a Hearing from Alaska Workers Compensation Board
The pandemic crisis does not excuse injured workers from requesting hearings. The rules for this are complicated. Don’t delay in pursuing your claim
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.
I’m getting a lot of calls lately. Injured workers are worried. They have been sent to an"independent" medical evaluations. And, they have every reason to be concerned. If your insurance company is sending you to one of these doctors, then you should be worried too. The insurance company wants to cut off your benefits. And it hired Dr. Bauer or Dr. Youngblood to give them a reason. They don't care if you aren't finished treating. They don't care if you can't go back to work. They want to stop paying your disability and medical benefits.
Ain't Nothing "Independent" About Them.
Dr. David Bauer and Dr. Scot Youngblood are two insurance company darlings. They have been traveling up to Alaska frequently as of late. And they have been producing reports for years. But there ain’t nothing independent about them! These doctors are paid thousands of dollars for every report they write. And they keep writing these reports no matter how often the Alaska Workers Compensation Board shoots them down which is over and over again.
Once the insurance company receives the “independent” medical evaluation report, they will cut off your benefits immediately. They should send you a Controversion Notice. But they don’t always. Not to worry, you don’t need a formal notice to start the claims process.
If you want to see what the notice should look like, the forms are available on the Alaska Workers Compensation Board's website: Workers' Compensation Forms (alaska.gov).
Short story: if your insurance company is sending you to see one of these doctors, its because they intend to cut off your benefits, you're in for a fight.
What to do? Start collecting all your medical records from your treating physicians and call an attorney.
Contact an Experience Workers Compensation Attorney
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 insurance companies are bringing up Dr. Scot Youngblood for “independent” medical evaluations again.
How “Independent” is Dr. Youngblood?
Dr. Scot Youngblood has become one of the new go-to doctors so called "independent" medical evaluations. There is a reason for that. He can be relied upon to issue an opinion that there was no work injury, or work injury is not the cause of the ongoing need for treatment or disability, or that any problems are caused by “age and genetics.” As of 2017, Also, Dr. Youngblood was performing 15 to 20 "independent" medical evaluations per month which would earn him approximately $85,000 per month. Because of his incentive to curry his opinion to please his insurance employers, his opinion was given less weight. Piasini-Branchflower v Anchorage School District, AWCB Dec. No. 17-0041 (April 11, 2017)
Dr. Youngblood: Pain behavior and symptom magnification
Tobar v Liberty Insurance Co, 447 P 3rd 747 (Alaska 2019). In July 2013, a hotel housekeeper injured her back while lifting a pile of linens. She was taken by ambulance from her workplace to the hospital because she had difficulty walking. An MRI showed a bulging disc in her lumbar spine. She was given an epidural and prescribed physical therapy. In March of 2014, the insurer sent her to see Dr. Scot Youngblood for an "independent" medical evaluation who opined that she had a low back strain in July 2013, had “pain behavior and symptom magnification” and that the work injury was not the substantial cause of her degenerative disc disease. The case went to hearing before the Board in June 2017 where the claimant was not represented by counsel. She lost. She lost again in front of the Commission. The Employee Won.
Dr. Youngblood: Pre-existing degenerative disc disease
Reuer v New Hampshire Ins Co., AWCB Dec. 16-0033 (April 22, 2016). On October 26, 2010, the Employee was injured in a motor vehicle accident as a school bus driver. He reported injury to the neck, back, shoulders, and arms. On July 1, 2015, the Employer sent him to Dr. Scot Youngblood for an an "independent" medical evaluation who opined that he had suffered cervical sprain/strain in the work injury, now resolved and medically stable, and that he had “multilevel degenerative disc disease, pre-existing, age and genetics related” and not caused by the industrial injury. The Board ordered a Second Independent Medical Evaluation (SIME).
Dr. Youngblood: Age, genetics, gender, and obesity
Corona v State of Alaska, AWCB Dec. 20-0032 (May 21, 2020). On June 30, 2017, the Employee reported carpal tunnel syndrome symptoms in both wrists. She was seen by a number of doctors who were uncertain about the diagnosis and treatment. On September 15, 2017, the State sent her to Dr. Scot Youngblood for an an "independent" medical evaluation who opined that her carpal tunnel syndrome symptoms were related to her “age, genetics, gender, and obesity” and not substantially caused by industrial activities on June 3, 2017. In its decision, the Board pointed out that there was no family history of carpal tunnel syndrome and that Dr. Youngblood’s risk-factors did not conform to the statute and case law. The Employee won.
Dr. Youngblood: Age and genetics
Campoamor v Berkshire Hathaway, AWCB Dec. 19-0014 (November 8, 2019). The Employee slipped on melted ice on stairs at work and stopped his fall by grabbing a handrail. He ended up having five shoulder surgeries. His treating physicians also believed that he had injured his neck. The insurer sent him to Dr. Youngblood for an "independent" medical evaluation who opined that “age and genetics” were the cause of cervical disc disease and that there was no further need for shoulder treatment. He also opined that there was no explanation for the continued pain symptoms. The SIME doctor diagnoses a brachial plexus injury. Th Board found that Dr. Youngblood’s opinions were not supported by the evidence and that it did not conform to legal requirements. The Employee won.
Dr. Youngblood: Cannot explain her pain
Longway-Marotta v Liberty Insurance Co., AWCB Dec. No. 17-0137 (December 8, 2017). On August 18, 2016, the Employee was working as a flagger when a bus drove through a construction zone striking her sign paddle, causing right arm and shoulder to hyperextend. She was diagnosed with shoulder impingement and rotator cuff tendinopathy. On November 16, 2016, she was sent to Dr. Youngblood for an an "independent" medical evaluation who opined that she had suffered a sprain which was resolved and required no further treatment. At his deposition, he testified that her subjective complaints of pain were in excess of objective findings (i.e. she is lying) and that her shoulder was not injured at all. He also testified that she had age-related arthritis in her neck and mild rotator cuff tendinopathy “which just means that, you know, like the rest of us, she’s getting older.” He could not explain her pain so the Board gave his opinion less weight and was against the weight of the evidence. The Employee won.
Dr. Youngblood: Age and genetics, psychological issues
Piasini-Branchflower v Anchorage School District, AWCB Dec. No. 17-0041 (April 11, 2017). The Employee, a teacher, slipped on the ice and fell twisting her back neck to hips, also injuring her right knee and right hand on January 2, 2009. The Employer sent her to Dr. Scot Youngblood for an an "independent" medical evaluation who opined that her right knee meniscus tear was preexisting, related to age and genetics, and not related to the fall. He stated that she had multilevel degenerative disc disease, not caused or aggravated by work, and that her ankle sprain and thumb injury were not related. He also found significant psychological issues and there were no objective findings to support her ongoing pain complaints. The Board found that her hand injury and right knee injuries were work-related and specifically discounted Dr. Youngblood’s “age and genetics” causation opinion because it was conclusory, he didn’t understand the mechanics of the fall, and he behaved more like an advocate for the Employer than as an objective medical evaluator. The Employee won.
Dr. Youngblood: Strain resolved, no need for further medical treatment
Contreras-Mendoza v Alaska National Insurance Co, AWCB Dec. No. 18-0023 (March 6, 2018). On January 21, 2016, the Employee twisted her left ankle during a work basketball game. She was diagnosed with a peroneus brevis tear and surgery was recommended. On October 21, 2016, the Employee sent her to see Dr. Scot Youngblood for an an "independent" medical evaluation who opined that her ankle strain was resolved and medically stable, that her subjective complaints were in excess of objective findings, and she did not need treatment. The Board ordered a Second Independent Medical Evaluation (SIME).
Dr. Youngblood: Pre-existing knee problems
Blakeslee-Edwards v State of Alaska, AWCB Dec. No 16-0097 (October 27, 2016). The Employee, who suffered from cerebral palsy, tripped at work on April 28, 2008, December 14, 2011, and February 10, 2012. On March 20, 2014, her Employer sent her to see Dr. Eugene Wong and Dr. Scot Youngblood for an an "independent" medical evaluation. They concluded her knee problems were pre-existing. The Board ordered a Second Independent Medical Evaluation (SIME).
Dr. Youngblood: Age, genetics, and inherent foot anatomy
In Lena v Fred Meyer Stores, AWCB Dec. No 16-0135 (December 30, 2016), Dr. Younblood's an "independent" medical evaluation report stated that the Employee’s shoes could not have caused her condition (without examining the shoes) and the potential causes were “age, genetics, and inherent foot anatomy”. He opined she was medically stable, and needed no further treatment. His opinion was given less weight because of the inadequate basis.
Moral of the Story
There are two morals of this story:
Dr. Youngblood’s opinion will be used against Employees,
The Alaska Workers Compensation Board, more often than not, does not agree with his opinions.
If the insurance company in your case is sending you to see Dr. Youngblood for an an "independent" medical evaluation, it is because it plans to controvert your benefits. You should collect all your medical records and find an attorney now.
Keenan Powell has practiced Workers Compensation law in the State of Alaska for nearly 40 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. http://www.keenanpowell.com/past-verdicts-settlements
At the Law Office of Keenan Powell, we received several favorable decisions from the Alaska Workers Compensation Board and the Alaska Workers Compensation Commission during 2019-2020 in addition to settling a number of cases.
Whisamore v Tekmate and Alaska National Insurance, LLC, Dec. No. 19-0128 (12/6/19). In this case, Employee’s counsel requested a copy of the insurance adjuster’s file. When it was finally delivered, it was heavily redacted. The Employee filed a petition to compel the records and the insurance company was ordered to produce unredacted notes to Board in camera. After review, the Board ordered the release of certain records to the Employee’s counsel.
Harrison v Ice Services and Liberty Northwest Insurance, Dec. No. 20-0008 (2/26/20). A grizzly bear broke into the kitchen at Little Red Camp in Deadhorse. The Employee, a kitchen helper, ran away, slipped and fell, breaking his foot. The fracture took an unusually long time to heal which made the insurance company suspicious. They hired two different private investigators to follow the Employee around, getting very little video as he couldn’t walk and stayed at home mostly. Eventually the doctors diagnosed complex regional pain syndrome (CRPS), a chronic painful debilitating condition. The claim was controverted. The insurance company’s expert, Dr. Dennis Chong, was deposed. A SIME was ordered. After hearing, the Board found that Dr. Chong’s report and testimony was inadequate to rebut the presumption of compensability and it awarded the Employee temporary total disability, medical and transportation benefits, and a permanent partial impairment rating.
Meili v Sterling Assisted Living and Liberty Northwest Insurance, Dec. No 20-0010 (2/28/20). This case went to hearing in late 2019 and the Board awarded the Employee benefits including a recommended back surgery. After the Board’s decision, Liberty Mutual hired Dr. Todd Fellars as an “independent” medical expert to dispute the treating physician’s recommendations upon which the Board had relied. Not surprisingly, Dr. Fellar disagreed with the recommendations. Liberty filed a motion to modify Meili I, holding that the insurance company was not entitled to a “second bite” at fighting the case. It should have brought all its evidence to the first hearing but had chosen not to hire an “independent” medical examiner because it thought it was going to win.
Cavitt v D&D Services and Ohio Casualty Insurance Co, Dec. No 20-0012 (3/6/20). The insurance company paid eight weeks of TTD late in 2018 and failed to include penalties, as it is required to do under the statute, with the check. The amount involved was $575.84. A claim was filed for penalties. It went to hearing in 2018. The Board believed that it did not have jurisdiction to decide the issue because of another pending appeal in the case and refused to award penalties. That decision was appealed. The Commission held that the Board was wrong. It did have jurisdiction and ordered the Board to consider the claim. Note that only $575.84 was at issue. The insurance company could have paid it at any time but it didn’t. The claim went to hearing again and, after two hearings and an appeal, the Board awarded the penalties.
Guerrissi v State of Alaska, Dec. No 20-0013 (3/16/20). After his claim was controverted, the Employee filed a claim and a petition for second independent medical evaluation. His former employer, the State of Alaska, opposed the SIME arguing that it was premature. The Employee argued that if the State had enough information to controvert the benefits, it had enough information to proceed to SIME. The petition went to hearing and the Employee won. A SIME was ordered.
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. Email keenan@keenanpowell.com or call 907 258 7663
Despite the pandemic, some people are working, getting injured at work, and their employers are obliged to provide benefits for work-related injuries. The Alaska Workers Compensation Board is “open” but the buildings are locked and most employees are working from home. The system for litigating claims has made adjustments.
Hearings – Most hearings are being conducted telephonically.
Depositions – Most depositions are being taken on Zoom.
Mediations – Most mediations are being done on Zoom.
“Independent” Medical Evaluations – When travel was shut down, the insurance companies stopped scheduling “independent” medical evaluations. (Ain’t nothing independent about them.) That changed mid-summer when they began bringing doctors up to Alaska and also started scheduling telemed evaluations. They are also now scheduling these examinations Outside.
Second Independent Medical Evaluations – When the insurance doctor disagrees with your treating physician, you can request the Alaska Workers Compensation Board to appoint its expert to examine you and review your file. This is a “Second Independent Medical Evaluation.” The Board is not scheduling these examinations unless the injured worker is not high risk for COVID and both parties agree to send the employee out of state for the examination.
Statutes of Limitations – All the rules regarding deadlines are still in place.
Controversions - If the insurance company refuses to pay benefits, it must issue a controversion notice within a certain period of time. If it doesn’t issue a controversion notice, then its refusal is deemed a “controversion-in-fact.” If you disability benefits are not arriving on time or if the insurer is refusing to pay your medical benefits, whether you have received a controversion notice or not, you have been controverted. Call an experienced workers compensation attorney.
Filing a Claim – The deadlines for filing a claim are complicated. Best practice is to file as soon as you realize the insurance company is not treating you fairly such as not paying your disability on time, not paying you the correct amount, or not pre-approving medical benefits preventing you from getting treatment. If any of these things have happened to you, call an experienced workers compensation attorney.
Requesting a Hearing – The pandemic crisis does not excuse injured workers from requesting hearings. The rules for this are complicated. Don’t delay in pursuing your claim.
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.
How do you know if your employer or its insurer is treating you fairly? Here are the top seven signs when they aren’t and it’s time to find a lawyer.
1. Your employer doesn’t report the injury to the Alaska Workers Compensation Board. The report of injury is due within 10 days. This report triggers payment of your medical bills and time loss. In other words, if your employer doesn’t report the injury, your case didn’t get opened.
2. Your employer offers to pay your medical bills if you don’t report the injury. He won’t.
3. Your temporary total disability check is late. The first check is due 14 days after your turn in the doctor’s work release to your employer.
4. Your doctors are calling you about paying the bills. The insurance company is supposed to pay them. It’s against the law for the doctors to demand money from an injured worker.
5. The insurance company sends you to an “independent” medical evaluation. There’s nothing independent about them. The insurance company picks the doctor, controls what medical records he sees, and asks only the questions it wants answered.
6. The insurance company makes an offer to settle your case.
7. The insurance company controverts your benefits. You should receive a form called “Controversion Notice” stating what benefits are controverted and why.
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.
Dr. Scot Youngblood has become one of the new go-to doctors for insurance defense. There is a reason for that. He can be relied upon to issue an opinion that there was no work injury, or work injury is not the cause of the ongoing need for treatment or disability, or that any problems are caused by “age and genetics.” As evidence, I hereby provide you with quotes from a number of reported cases in which he gave this opinion:
Shutterstock Image of Actor Playing Doctor
Tobar v Liberty Insurance Co, 447 P 3rd 747 (Alaska 2019). In July 2013, a hotel housekeeper injured her back while lifting a pile of linens. She was taken by ambulance from her workplace to the hospital because she had difficulty walking. An MRI showed a bulging disc in her lumbar spine. She was given an epidural and prescribed physical therapy. In March of 2014, the insurer sent her to see Dr. Scot Youngblood who opined that she had a low back strain in July 2013, had “pain behavior and symptom magnification” and that the work injury was not the substantial cause of her degenerative disc disease. The case went to hearing before the Board in June 2017 where the claimant was not represented by counsel. She lost. She lost again in front of the Commission. Then Employee Won.
Reuer v New Hampshire Ins Co., AWCB Dec. 16-0033 (April 22, 2016). On October 26, 2010, the Employee was injured in a motor vehicle accident as a school bus driver. He reported injury to the neck, back, shoulders, and arms. On July 1, 2015, the Employer sent him to Dr. Scot Youngblood who opined that he had suffered cervical sprain/strain in the work injury, now resolved and medically stable, and that he had “multilevel degenerative disc disease, pre-existing, age and genetics related” and not caused by the industrial injury. The Board ordered a Second Independent Medical Evaluation (SIME).
Corona v State of Alaska, AWCB Dec. 20-0032 (May 21, 2020). On June 30, 2017, the Employee reported carpal tunnel syndrome symptoms in both wrists. She was seen by a number of doctors who were uncertain about the diagnosis and treatment. On September 15, 2017, the State sent her to Dr. Scot Youngblood who opined that her carpal tunnel syndrome symptoms were related to her “age, genetics, gender, and obesity” and not substantially caused by industrial activities on June 3, 2017. In its decision, the Board pointed out that there was no family history of carpal tunnel syndrome and that Dr. Youngblood’s risk-factors did not conform to the statute and case law. The Employee won.
Campoamor v Berkshire Hathaway, AWCB Dec. 19-0014 (November 8, 2019). The Employee slipped on melted ice on stairs at work and stopped his fall by grabbing a handrail. He ended up having five shoulder surgeries. His treating physicians also believed that he had injured his neck. He opined that “age and genetics” were the cause of cervical disc disease and that there was no further need for shoulder treatment. He also opined that there was no explanation for the continued pain symptoms. The SIME doctor diagnoses a brachial plexus injury. The Board found that Dr. Youngblood’s opinions were not supported by the evidence and that it did not conform to legal requirements. The Employee won.
Longway-Marotta v Liberty Insurance Co., AWCB Dec. No. 17-0137 (December 8, 2017). On August 18, 2016, the Employee was working as a flagger when a bus drove through a construction zone striking her sign paddle, causing right arm and shoulder to hyperextend. She was diagnosed with shoulder impingement and rotator cuff tendinopathy. On November 16, 2016, she was sent to Dr. Youngblood who opined that she had suffered a sprain which was resolved and required no further treatment. Amber Creeger, a Liberty adjuster, testified that Dr. Youngblood is “very fair” and “a lot of times” he opines in the injured worker’s favor. At his deposition, he testified that her subjective complaints of pain were in excess of objective findings (i.e. she is lying) and that her shoulder was not injured at all. He also testified that she had age-related arthritis in her neck and mild rotator cuff tendinopathy “which just means that, you know, like the rest of us, she’s getting older.” He could not explain her pain so the Board gave his opinion less weight and was against the weight of the evidence. The Employee won.
Piasini-Branchflower v Anchorage School District, AWCB Dec. No. 17-0041 (April 11, 2017). The Employee, a teacher, slipped on the ice and fell twisting her back neck to hips, also injuring her right knee and right hand on January 2, 2009. The Employer sent her to Dr. Scot Youngblood who opined that her right knee meniscus tear was preexisting, related to age and genetics, and not related to the fall. He stated that she had multilevel degenerative disc disease, not caused or aggravated by work, and that her ankle sprain and thumb injury were not related. He also found significant psychological issues and there were no objective findings to support her ongoing pain complaints. The Board found that her hand injury and right knee injuries were work-related and specifically discounted Dr. Youngblood’s “age and genetics” causation opinion because it was conclusory, he didn’t understand the mechanics of the fall, and he behaved more like an advocate for the Employer than as an objective medical evaluator. The Employee won.
Contreras-Mendoza v Alaska National Insurance Co, AWCB Dec. No. 18-0023 (March 6, 2018). On January 21, 2016, the Employee twisted her left ankle during a work basketball game. She was diagnosed with a peroneus brevis tear and surgery was recommended. On October 21, 2016, the Employee sent her to see Dr. Scot Youngblood who opined that her ankle strain was resolved and medically stable, that her subjective complaints were in excess of objective findings, and she did not need treatment. The Board ordered a Second Independent Medical Evaluation (SIME).
Blakeslee-Edwards v State of Alaska, AWCB Dec. No 16-0097 (October 27, 2016). The Employee, who suffered from cerebral palsy, tripped at work on April 28, 2008, December 14, 2011, and February 10, 2012. On March 20, 2014, her Employer sent her to see Dr. Eugene Wong and Dr. Scot Youngblood. They concluded her knee problems were pre-existing. The Board ordered a Second Independent Medical Evaluation (SIME).
There are two morals of this story:
Dr. Youngblood’s opinion will be used against Employees,
The Alaska Workers Compensation Board, more often than not, does not agree with his opinions.
If the insurance company in your case is sending you to see Dr. Youngblood, it is because it plans to controvert your benefits. You should collect all your medical records and find an attorney now.
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, use the contact form on this website or call: 907 258 7663.
We went to hearing again in the Cavitt case recently and won our sixth favorable decision. So far, we have gone to hearing and appeal as follows:
Cavitt I, AWCB Dec. No 17-0109 (September 13, 2017). After fighting the case, the Employer agreed at hearing that the injury was work-related. The Employer agreed to continue medical benefits. The Board ordered payment of TTD. A win.
Cavitt v D&D Services, AWCAC Dec.
No 248 (May 4, 2018). On appeal from Cavitt I, the Commission reversed
the Board’s award of attorney fees as inadequate. In addition, the Commission
awarded fees on appeal. A win.
Cavitt II, AWCB Dec. No 18-0060 (June
25, 2018): The Board awarded continuing TTD and increased the attorney fees
awarded in Cavitt I. The Board refused to order life-time medical
benefits. A win and a loss.
The denial of life-time medical
benefits was appealed leading to the Commission’s Decision No 259 (March 29,
2019) affirming the Board’s denial. That decision has been appealed to the Supreme
Court and is ripe for an opinion.
In Cavitt III, AWCB Dec. No 18-0103 (October 15, 2018), the Board held it did not have jurisdiction to award penalties arising from late-paid TTD because an appeal was pending on a similar issue. The Commission reversed the Board on appeal leading to the hearing and win in 20-0012.
D&D Services v Cavitt, 444 P 3rd 165 (Alaska, 2019). After paying fees ordered in AWCAC Dec. No 248, Liberty appealed the fees award to the Supreme Court. The Court affirmed those fees and further awarded additional fees for the Supreme Court appeal. A double win.
Cavitt v D&D Services, AWCAC Dec.
No. 264 (July 8, 2019): The Commission reversed Cavitt III and ordered
the Board to consider penalties for late-paid TTD. A win.
Cavitt IV, Dec. No 20-0012 (March 6,
2020) awarded penalties and interest for the late-paid TTD which was the Board originally
refused to consider in Cavitt III resulting in the Commission’s reversal in Dec.
No 264. Link: http://appeals.dol.alaska.gov/docs/workerscomp/2020/D&O%2020-0012.pdf
The moral of the story is: If your
claim is insured by Ohio Casualty, Liberty Mutual or Liberty Northwest, you’re
in for a fight. You need to speak with an experienced workers compensation
attorney as soon as possible.
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 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).
Interestingly, this is the same
insurance company and the same defense firm which lost the following cases in
2019: D&D Services and Liberty Mutual vCavitt 444 P 3rd
165 (Alaska 2019), Cavitt v Liberty Mutual, AWCAC No 264 (July 8, 2019),
Bruketta v Liberty Mutual, RBA Dec. No 19-0002 (March 19, 2019) and Bruketta
v Liberty Mutual, Dec. No. 19-0096 (September 23, 2019). See my blog post: https://www.keenanpowell.com/blog/2020/01/06/never-give-up-never-surrender-2019-victories/
Additionally Liberty lost Cavitt
again on March 6, 2020. I’ll blog about that in the near future.
The moral of the story is: If your claim
is insured by Liberty Mutual or Liberty Northwest, you’re in for a fight. You
need to speak with an experienced workers compensation attorney as soon as
possible.
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.
Complex Regional Pain Syndrome (CRPS) is nasty stuff. In every day terms, it happens when the body's nervous system overreacts to an injury. It can happen to an injury as slight as a broken toe.
Since that time, data has been collected and treatments have been developed but there is no known cure. The patient will suffer pain and motor dysfunction for the rest of his or her life.
Not only does the patient suffer extreme pain in a body part, that body part will also change color, swell (edema), have a different temperature, develop a different hair pattern, the nails will grow differently, and there will be weakness and disrupted motor function. These are all objectively measurable changes. In other words, even though there is no x-ray or MRI that can point to what is causing the pain, other physical symptoms support the diagnosis.
Mr. Harrison was working at a camp when a bear broke in to 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.
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!
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.
