July 25, 2018
I. RESEARCH MATERIALS.
Before beginning the practice of workers' compensation law, you should be aware of various research materials which are necessary. Every practitioner should have Title 23 of the Alaska Statutes. This is available in the Alaska Statutes or can be obtained from Michie (Lexis Law Publishing) in a separate volume.1 This volume also includes the regulations governing the statutes. It is easy to carry. It is also very easy to reference the particular statutory or regulatory provisions.
Professor Larson has published his treatise on workers' compensation law. It is available in three forms. There is the full length version, the desk version. The entire treatise, Larson on Workers' Compensation Law, is expensive. The law library has at least one copy of the full-length version. The treatise is also can be ordered on line through Lexis. The Alaska Reporter system contains the Supreme Court opinions on workers' compensation appeals.2
On the internet, the Department of Labor publishes Alaska Workers' Compensation decisions by date.3 . However, it is a good tool for getting the latest cases. The Alaska Court System also publishes the Alaska Supreme Court cases.4
II. TAKING CASES.
A. Evaluation of Prospective Clients.
In determining whether to take a case, you should interview the claimant very carefully. Have the person fill out a questionnaire sheet. Make sure he brings in medical reports and any paperwork concerning his case. Do not make any decisions until you have an opportunity to review as much of the case as you can.
If necessary, have the claimant sign a release and review his file at the Alaska Workers' Compensation Board. More information about a person's case can be obtained by reading the paperwork then by spending 30 minutes with the person.
Why is this important? Because claimant’s lawyers do not get paid for handling a case where there are no issues in dispute. 5 If there is nothing disputed or in error, then you should not take the case.
If you find an error or if the case is controverted, then attorney fees are paid based upon the benefits obtained for the client. Attorney fees will be discussed later; however, you need to know that unless you obtain a benefit for the client, you get nothing and end up accruing time and incurring expenses on a case that is uncontested.
If the case is controverted or there if there is an error in the payment of benefits, then you must determine if you can get benefits for the client. This requires research of the law and a review of the materials mentioned above.
B. Things to Look For.
1. Is There a Time Problem?
a. Report of Occupational Injury:
1. Must be filed with the employer and the Board within 30 days. AS 23.30.100(a).
2. If the employer is aware of the injury, then the employer must report it within 10 days. AS 23.30.070(a).
3. The 30-day period has an exception.
a. If the employer is aware of the injury and is not prejudiced by the delay. AS 23.30.070(a).
b. The notice of injury may be filed within 30 days after the first compensable event, such as initial medical treatment for an injury.
c. Thirty days after the employee is injured and has reason to believe that it is job related.6
b. Time for Filing a Claim.
1. Two years from the date of the injury, or last payment of compensation, or from the date of disability.
2. Latency exception: If claimant was not aware of the injury and relationship to employment, then the time is two years from the date he became aware of work relatedness.
3. Medical benefits don't have a statute of limitations. After two years, the Board maintains jurisdiction to order additional benefits.7
4. If employer has failed to file the report of injury, time is tolled until it is filed.8
Often, there are no problems with these time periods. Once in a while, an employee will have some problems. The most common is the report of occupational injury not being filed timely. The common situation occurs where the employee thought he had a minor injury and it would go away. When the injury does not resolve, he then reports it to his employer. This situation is not really a problem anymore. The Alaska Supreme Court has indicated that the 30-day reporting period starts from the first compensable event.9 This is usually when the employee visits the doctor.
2. If the Employee Has Filed a Claim, Is There a Time Problem?
If a claim has been controverted by the employer, then the employee has two years in which to file an affidavit of readiness for a hearing.10 If he doesn't, then the claim can be dismissed. Check to see if the employee on his own has filed a claim. If so, the adjustor has probably filed a controversion commencing the two years. If you are near the two year period post controversion after a claim has been filed, the claimant can request an extension of the deadline. The extension is up to the Board. 11
3. Does the Employee Have Previous Injuries?
Nothing affects a case more than to hear that the employee had a previous injury to the same part of the body. Causation is now more of an issue with the passage of the 2005 amendments to the statute. 12 Therefore, it is necessary to obtain a complete medical history. Previous non-work injuries should be considered both in the sense of the effect of the work-related injury and also for overall disability.13
a. Medical History.
Try to get a thorough medical background. Go back to the employee's birth. Often, an old football injury or childhood injury will play an important role in the case. If there is a prior history of injury to the same part of the body, then efforts should be made to get the treating physician to determine whether the current injury aggravated, accelerated, or combined with the previous condition to make it worse, thus causing the claimant's disability.
A medical history is important in assessing the employee's potential to return to work. If the current injury, combined with other medical conditions, prevents the employee's return to his job at the time of the injury, then the employee may require reemployment benefits.
b. Education History.
A complete educational history must be obtained. Vocational, formal, or on-the-job training must be identified. This information is important for both reemployment issues and determination of permanent total disability benefits.
c. Work History.
Work history is necessary for reemployment benefits, to determine gross weekly wage issues, and for determination of the issue of permanent total disability.
If the employee is a union member, the union has a copy of the work history. The Department of Labor may have a copy of the quarterly filings by employers. Another source of this information is the Social Security Administration. All this information is important in evaluating the case.
4. Are There Subsequent Injuries with Other Employers?
If there are subsequent injuries with other employers, then those employers may need to be joined as parties to the claim. Usually, with successive employers, the second employer must bear the responsibility for worker’s compensation benefits when the successive employment contributes to the worker’s disability.14
5. Should You Take the Case?
This is usually your call. Some clients will demand so much of your time that the case is not worth taking. Try to find out if the person will follow your direction or if he will try to manipulate you . If the claimant is angry, consider that. The claimant may not want to listen and follow directions, he may question filling out releases or going to EIMEs. The one rule that I have is called "gut reaction." If it feels wrong, do not take the case. If you can hardly wait to get the person out the door, then you do not want that person as a client. Finally, if you feel yourself backing up when talking with the prospective client, this is a strong indication something is wrong.
Finally, if you want to take the case, then file the claim. Trying to work with the adjustors to informally resolve the claim doesn't usually work and sometimes it even slows down the process. File the claim, and then deal with the adjustor.
III. PREPARING THE CASE.15
The first step in preparing the case is to understand the issues. Be sure you have examined both the legal and factual issues before plowing into the case. A thorough review of the law regarding the issues is vital. It is important that you only go forward on the issues that are in dispute. It is not wise to list benefits which are not patent or at issue.
A. Obtaining Medical Evidence.
1. Medical Records.
There are several sources for obtaining the medical records. Get a copy of the Board file. Often, there are numerous medical records in the file. Doctors are required to file their reports with the Board.16 Obtain a copy of the adjustor's file. This should be as complete as possible, including notes and computer logs. This file should have a complete set of medical records. Finally, get a list of the employee's doctors and send releases to the doctors for records.
2. Medical Opinions.
If there are medical issues, such as what medical conditions are related to employment, then it is necessary to obtain that opinion. A well written letter to the doctor will usually get an answer. Sometimes it is easier to provide "yes" or "no" check boxes for the doctor. The easier it is for the doctor to answer the question, the more likely you will receive a quick reply.
If the medical issue is tricky, it may be wise to have a chat with the doctor. The best investment is the fee paid for the conference. You get to size up the doctor and also explain legal theories of causation to him. Remember, many doctors do not wish to decide whether employment caused the condition, they are only interested in healing the patient.
3. Independent Medical Examinations.
The employer and its carrier have the right to send the employee to a doctor of their choice for an independent medical examination. This is also referred to as employer's medical examination.
Once that examination is done, you may wish to obtain the opinion as soon as possible. Sometimes, the independent physician agrees with the treating doctor. If he doesn't, then it is may be necessary to "Smallwood"17 (object to) the opinion. This must be done within 10 days of filing the medical report with the Board or at the time the affidavit of readiness is filed by either party.
Whether to "Smallwood" the report is your decision. If you do, then the employer must present the doctor's testimony. You may not want to do this for several reasons. First, written medical reports are not as strong as testimony. Secondly, there may be mistakes in the report that you do not want corrected. Finally, you need to decide if it is wise to have the opposing doctor before the Board testifying against your client. This may not be wise. Your decision often depends upon the identity of the physician.
However, if you feel that by correcting an error the doctor may change his opinion, then by all means objects to the report.
4. Second Independent Medical Examinations.18
If the employee's doctor and the employer's doctor disagree, then you may want to request a third doctor to evaluate the medical issues. This procedure is called a second independent medical evaluation (SIME) and must be requested within 60 days of receipt of the medical report which raises the dispute. Recently the Board has been ordering SIME examinations when the request was beyond the 60 days.19 Sometimes, you may not want a third doctor involved. The SIME process takes time, and you may feel that your doctor's opinion is sufficient to carry the day before the Board.
If you know who will be the Board's doctor, then you may be able to use the SIME to your advantage. The SIME doctor could be stronger than your own doctor.
5. Taking Doctor's Depositions. Employer's doctors usually are very experienced in litigation. Their depositions have been taken several times. Therefore, it may be wise to run the report by the claimant's doctor for his evaluation before the deposition of the employer's physician. The treating physician may be able to give you some pointers on the deposition questions.
At the deposition, do not try to be a doctor. Try to pin the doctor down on his opinions, and then ask him hypotheticals which may lead him to change his mind. Your client may fit within one of these hypotheticals.
Once I had the opportunity to depose a psychiatrist on "post traumatic stress disorder." The doctor did not have an understanding of legal causation. He also disbelieved much of the history given to him by the employee based on a summary of medical histories in other medical reports. I managed to get some concessions by providing the correct history and giving him the correct definition of legal causation. By using a hypothetical, which included my understanding of the history, I was able to get him to agree that his opinion would be different. This left it up to the Board to determine which history was correct.
B. Lay Testimony.
Lay testimony may be needed in establishing the facts of the injury. An employer may question whether the injury occurred on the job.20 In one case, the employer indicated that the employee complained of hurting his back skiing before the injury. Lay witnesses were used to rebut that contention.
Depositions of lay witnesses are usually short. Sometimes, it is best to interview them immediately, obtain a statement, and then take the deposition later with the use of the statement. Often, the adjustor has already interviewed these witnesses. It is necessary to obtain copies of the statements, any recordings, and any notes of interviews.
Employers often have their own in-house investigation. Request that information. This information is usually helpful because the statements were obtained immediately after the accident.
Prehearings consist of scheduled meetings of counsel, parties, and a Board representative to list the issues, amend the pleadings, establish deadlines, exchanged discovery, and set the hearing date. These meetings are informal, but a very important part of the process of a case. Often, issues can be resolved at these proceedings. The prehearings help keep the case on track.
IV. RESOLUTION OF CLAIMS.
The most fun part in a workers’ compensation case is going to a hearing. After handling the case, it is necessary to get the issues decided.
A. Should You Settle the Case?
Most cases are settled. Therefore, you need to carefully examine whether settlement is in your client's best interest. Often, the client is exhausted and just wants to get the case completed or the evidence against you could be overwhelming.
Insurance companies like to close cases. They want as many of the benefits waived as possible. In liability cases, this is the rule; but in worker's compensation cases, waiver of benefits must be viewed very carefully. Medical benefits are never waived unless the issue before the Board is course and scope of employment or whether the condition is related to the injury. In those scenarios, medical benefits can be waived. Easy issues to settle are:
1. Amount of Permanent Partial Impairment When the Doctors Are in Dispute.
A partial C&R can solve the problem. Caution--do not compromise more than the issue of PPI. Some adjustors love to throw in reemployment benefit rights, as well as waiver of all future compensation, for agreeing to settle the issue of PPI.
2. Past Temporary Disability Benefits Can Be Compromised.
Consider the current condition of the client and whether he has returned to work or will return to work when determining whether to compromise past TTD compensation.
3. Compensation Rate.
This can be resolved as long as the agreed amount is for a specific benefit . If it is TTD, then agree to it as the temporary total disability compensation rate. When dealing with the temporary total disability rate, be aware that the weekly amount also affects the stipend rate paid during a reemployment plan. If the rate is for permanent total disability, then designate it for that form of compensation.
4. Past Medical Bills Can Be Settled as Long as Future Medical Treatment Is Not Waived.
Difficult issues to settle are:
i. The Whole Case When There Is an Issue over Course and Scope.
This is extremely difficult and requires a thorough evaluation of your client's situation. Can the client work? Will the client ever work? These issues are paramount. Finally, are there other benefits involved, such as social security disability, Medicare, and Medicaid?22 (These issues will be examined later.) If you settle the case, will the client be back trying to set aside the C&R because he is out of money?
ii. Retraining Is a Difficult Issue to Settle.
The reemployment act, AS 23.30.041, prohibits settling costs of retraining. However, the more important question involves the ability of your client to work in the future. Does he have a plan? Does he have a vocation which renders retraining moot? Will he go to the State Division of Vocational Rehabilitation for help? In essence, is this cost being transferred to the State? Also there are consequences for waiving re employment benefits in regards to future work related injuries. 23
Mediation is a consideration when the parties can't settle and the hearing process may be extensive and expensive. In the past, mediation in workers' compensation cases has not been utilized. Lately, more people are relying on this method. Mediation can settle all the issues and handle problems such as Medicare, and Medicaid liens. The employee also has the chance to participate in the process.
B. The Hearing Process.
If the case cannot be settled in the best interests of your client, then proceed to hearing.
The Alaska Workers' Compensation Board is a "blue ribbon panel." By that I mean these members have seen hundreds of the same kinds of cases and have heard the same arguments. They know the doctors and are usually very familiar with the issues. The Board takes a very active role in evaluating the evidence. It is the job of the claimant's and the insurer's representatives to present the evidence.
Use deposition testimony whenever possible. This allows the Board to review the case prior to the hearing and also afterward. Bring only witnesses that are crucial to the issues before the Board.
Often the Board will want to hear from your client. Prepare him for that hearing. Go over the procedures and the issues with him. Let him know how the process works.
Write a hearing brief. It is necessary to present the issues to the Board. Let them know your position as early as possible. Set out a short statement of the facts, the issues in dispute, and the evidence regarding the case. If necessary, attach the pertinent reports for the Board's ready reference.
The law regarding these issues should be spelled out. Attach any applicable case law or sections from Larson. Previous Board decisions should be cited and attached, if important. The briefing process will help prepare you for the hearing. At the hearing itself, be prepared to state you case succinctly. You have only 20 minutes for an opening and closing statement. Therefore, be ready to summarize your case quickly. If more time is needed for an opening and closing, be sure to request it at a prehearing. Otherwise, you waive it.
A suggestion is to make your case through the witnesses. Have the witnesses testify as to the important facts supporting the issues. Use your client to go through the history of the case and the issues. This fortifies the opening statement. Apply the law through expert witnesses. Quote the law on causation, and then ask them their opinions. There is a time limit for the opening and closing; there usually isn't one applicable to the testimony of witnesses.
Do not be afraid to use charts, especially in medical cases. Bring in a diagram of the heart, the back, the shoulder, or whatever part of the body is at issue. Use maps and outlines of the work place if this is at issue. Finally, consider using charts in opening and closing. List the issues, use time lines. Let the Board see the math for compensation rates. Visual as well as verbal communication helps nail down your position.
V. THE DECISION PROCESS.
The Board will issue a decision within 30 days after the hearing. The Board follows a three-step procedure. The first is whether the claimant has raised the presumption of compensability.
AS 23.30.120(a) provides in part:
In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that
(1) the claim comes within the provisions of this chapter. The Alaska Supreme Court has held that the presumption applies to any claim for compensation under the Alaska Workers' Compensation Act. An employee's disability is presumed to be compensable when he or she demonstrates a preliminary link between the disability and his or her employment. All that the employee needs to produce is some evidence that the claim arose out of and in the course of employment. Cheeks v. Wismer & Becker, 742 P.2d 239, 243-44 (Alaska 1987).
The second step is to determine whether the employer can rebut the presumption. Once the preliminary link has been established, it is the employer's burden to overcome the presumption by coming forward with substantial evidence. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 1046. If the employer has rebutted the presumption with substantial evidence, then the Board weighs all the evidence to determine if the employee has proven his case. If the employer produces substantial evidence, the presumption drops out and the employee must then prove all the elements of his claim by a preponderance of the evidence. Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).
For injuries occurring after the 2005 amends to the Act, if the employee establishes the link as set forth above, the presumption may be overcome at the second sage when the employer present substantial evidence, which demonstrates a cause other than employment played a greater role in causing the disability or need for medical treatment.24 If the board finds that the presumption has been rebutted , then the presumption of compensability drops out, the employee must prove his case by a preponderance of the evidence, and must prove in relation to other causes, employment was the substantial cause of the disability or the need for medical treatment. 25
VI. APPEALS AND POST-DECISION PLEADINGS.
The decision is filed and your client loses on one or more issues. It is, therefore, important to consider additional relief.
A. Petition to Reconsider.
A petition to reconsider can only be filed within 15 days after the decision. The Board then either grants, denies, or does nothing (and the petition is considered denied) by 30 days after the decision.26
This is a limited remedy and should only be used for correcting the record. If the Board failed to consider an issue or overlooked an important fact, reconsideration would be an appropriate way to notify the Board.
The second benefit of a petition to reconsider is that the time for filing an appeal does not begin until the petition is decided or until the 30th day if there is no decision by the Board.27
If the Board ruled against your client and you are convinced they are wrong, an appeal to the Appeals Commission is appropriate. The standard for an appeal breaks down to two areas: errors of law and errors of facts. Beachamp v. Employers Liab. Assurance Corp., 477 P.2d 993 (Alaska 1970). If the Board erred as a matter of law, then the court can review the factual record to determine whether the Board incorrectly applied the law. Hewing v. Alaska Workmen's Comp. Bd., 512 P.2d 896 (Alaska 1973). Usually, the facts are not in dispute when the legal issue is involved.
When there is a factual error alleged, the court is bound by the findings of the Board.28 The question is whether the findings are supported by "substantial evidence." It is not the function of the Supreme Court to re-weigh the evidence other than to determine whether or not such evidence exists. Wilson v. Erickson, 477 P.2d 998 (Alaska 1970). The court cannot choose between competing inferences. Id. If the findings of the Board are supported by substantial evidence, then the court will not disturb them. Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Black v. Universal Servs., Inc., 627 P.2d 1073 (Alaska 1981).
Suppose there are two opposing medical opinions regarding an issue. The Board adopts one opinion but not the other. The court will not disturb that opinion. It is rare that the court will overturn a factual decision. It is the legal decisions which are subject to intense scrutiny. The superior court will also look at new legal issues not previously decided by the Supreme Court.
An appeal must be filed with the Alaska Workers’ Compensation Appeals Commission within 30 days after the decision or after denial of the petition to reconsider. If the Alaska Workers’ Compensation Appeals Commission affirms the decision of the Board, the employee can appeal to the Supreme Court. This must be done within 30 days of the decision of the Alaska Workers’ Compensation Appeals Commission.
C. Petition to Modify the Decision of the Board.
Petitions to modify decisions of the Board are governed by AS 23.30.130. There is a one-year limit to file this petition. The one year begins after the date of the last payment of compensation benefits, whether or not a compensation order has been issued, or before one year after a rejection of a claim.29
The only exception is a petition to set aside a C&R on the grounds of fraud. Blanas v. Brower Co., 938 P.2d 1056 (Alaska 1997) . The Board may review a past decision because of a change in condition or mistake in determination of fact. Interior Paint Co. v. Rodgers, 522 P.2d 1087 (Alaska 1974).
The most often cited reason for this petition is a mistake of fact. It is important when using this approach that the petition is not a mere restatement of the case. The decision is final, and the petition cannot be a backdoor procedure to retry a case. Id. The Board need not review all prior evidence. The Board will give due consideration to the argument and any evidence presented with the petition for modification. Id.
5 A.S 23.30.145
6Three cases which discuss these points are Kolkman v. Greens Creek Mining Co., 936 P.2d 150 (Alaska 1997); Cogger v. Anchor House, 936 P.2d 157 (Alaska 1997); and Tinker v. Veco, Inc., 913 P.2d 488 (Alaska 1996).
9See the cases cited in footnote 8.
10AS 23.30.110(c); Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121 (Alaska 1995).
11Kim v. Alyeska Seafood, Inc. 197 P.3d 193 , 199 (Alaska 2008)
12 AS 23.30. 010(a)
13Pre-existing disease or condition does not preclude recovery for the injury if the employment injury aggravated, accelerated, or combined with the disease or pre-existing condition to produce a disability. Thornton v. Alaska Workmen’s Comp. Bd., 411 P.2d 209 (Alaska 1966).
14Ketchikan Gateway Borough v. Saling, 604 P.2d 590 (Alaska 1979). For the rule involving successive insurance carrier, see Parker Drilling Co. v. Wester, 651 P.2d 842 (Alaska 1982). For the rule involving out-of-state employers, see Wolfer v. Veco, Inc., 852 P.2d 1171 (Alaska 1993). See also AS 23.30.155(d).
15There are so many statutory and regulatory deadlines that too much time and space would be required to review all of them. Instead, I have attached a spreadsheet prepared by Christie Niemann of the Law Offices of Bob Griffin which covers all of the deadlines. I thank them for graciously permitting me to use this spreadsheet.
16AS 23.30.095(c); 8AAC 45.086.
17Commercial Union Insurance Companies v. Smallwood, 550 P.2d 1261 (Alaska 1976); 8 AAC 45.052.
18AS 23.30.095(k); 8 AAC 45.090; 8 AAC 45.092.
19Mikhali A. Mazurenko v. Alutiq AWCB Cecision No.: 11-0047 (April 19, 2011)
20Employers are motivated to question injuries because they are afraid that an injury will raise their insurance premiums. Also, they equate filing a workers' compensation injury report with filing a lawsuit.
218 AAC 45.065.
22Both Medicaid and Medicare have liens on workers’ compensation cases by law. 42 USC 1395y(b). Health carriers may also raise issues of liens. If the person is receiving disability social security benefits, then the social security administration may offset a lump sum settlement to the client’s detriment. 42 USC 424a; 20 CFR 404.408. However, 20 CFR 404.408(a) provides for no social security offset if the workers' compensation benefit is reduced by the insurer under AS 23.30.225(b) as a result of the claimant's receipt of social security disability.
23AS 23.30.041 f(2) & (3)
24Runstrom v. Alaska Native Medical Center, Alaska Workers’ Comp. App. Comm’n Dec. No. 150 at 7 ( March 25, 2011
25 Runstrom id at 8.
29 8 AAC 45.150 sets forth the procedure in files for Rehearing and modification of board orders.