At the Law Office of Keenan Powell, we received several favorable decisions from the Alaska Workers Compensation Board during 2017 in addition to a settling a number of cases. If you take a 
look at the decisions, you’ll notice a few trends:
1. Fred Meyers cases were defended by Russell, Wagg, Meschke & Budzinski. They took those cases to hearing even though they should have known they were going to lose. Long before the hearing, both attorneys have all the evidence available to them. An experienced attorney would be able to anticipate how the Board would rule.
2. All the other cases were defended by Holmes, Weddle & Barcott which represents Liberty Mutual and Berkshire Hathaway. In those cases, the defense showed up at the hearing conceding that they would lose most of the issues in the case.
3. A fair conclusion from these cases would be that the insurance company will controvert and defend cases to the very end.In other words, employees must fight for their rights to be treated fairly under the law.
For more detail regarding each decision, visit Verdicts & Settlements.
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.
Lena v Fred Meyers (Lena II), AWCB Decision No. 17-0072, 6/26/17
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, 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.
Second, 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.
Gillion v Berkshire Hathaway (Gillion I), AWCB Decision No. 17--0089, 7/31/17
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.
At the hearing, the Employer represented by Holmes, Weddle & Barcott, withdrew its controversion and represented that the only issue was a compensation rate adjustment.
In the Final Decision, the Board held:
1. The Employee was entitled medical benefits for treatment of his back injury;
2. The Employee was entitled to an increase in compensation rate and the insurance company owed him back pay;
3. 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.
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 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.
For a free consultation, call Keenan Powell: 258-7663.
This is one of the most common dirty tricks by employers. I've seen cases where people who were climbing and should have had a spotter, but did not. So when they fell, are knocked unconscious, and found laying on the floor, the employer says no one saw the fall, so they don't know why the employee is injured. (Not a defense.)
