Board Holds Adjusters Have a Duty to Explicitly Request Wage Information

      In its recent decision in George F. Westdahl v. CE2 Engineers, Inc.,
AWCB Decision No. 08-0153 (August 26, 2008), the Fairbanks Board
found that adjusters are required to explicitly request earnings information
from an employee to comply with the wage rate calculation requirements of
AS 23.30.220(a)(4). Accordingly, employers and carriers are encouraged to
request relevant wage information from employee's in cases where weekly
compensation benefits are payable.

      The actual issue at hearing was whether or not an employee's attorney
was entitled to attorney fees for obtaining a compensation rate adjustment
for the employee. The employee was initially paid weekly compensation
benefits based on the available wage information, which consisted of his
earnings from 2005 (the year before the injury). The employee later filed a
workers' compensation claim requesting a compensation rate increase
based on his higher earnings in 2004, and attorney fees. The employee
subsequently submitted earnings information for 2004, and the employer
increased the employee's weekly compensation rate based on the
additional wage information.

      The employee filed an Affidavit of Attorney Fees and Costs claiming
attorney fees were owed based on the compensation rate adjustment he
obtained with the assistance of his counsel. He asserted that the employer
had a duty to properly calculate and pay compensation and that the
employer's use of only his earnings from 2005 resulted in an arbitrarily low
compensation rate which would have persisted unless the employee's
counsel had filed the claim. The employer disputed the employee's request
for attorney fees and costs arguing that no attorney fees were due because
it had voluntarily adjusted the employee's compensation rate upon receipt
of additional wage information from the employee. The employer further
argued that the burden was on the employee to produce proof of earnings
and that the employer voluntarily and timely increased the employee's
compensation rate once wage documentation was submitted.

      After a hearing on the record, the Board awarded attorney fees finding
that the employer should have requested the employee's earnings
information for the two years prior to his injury and that by not requesting
that information, the employer resisted the payment of benefits. In
analyzing the issue, the Board, in reliance on the Alaska Supreme Court's
decision in Seybert v. Cominco Alaska Exploration, found that it had to
evaluate an insurer's action in light of the insurer's legal duty to provide an
unrepresented injured worker reasonable assistance in complying with the
requirements of the Alaska Workers' Compensation Act. Based on the
Court's rationale in Seybert, the Board found that "the plain statutory
language of AS 23.30.220(a)(4) required the employer's workers'
compensation adjuster to explicitly request earnings information from the
employee."

      Given the Board's holding in this case, we recommend that employers
and carriers advise employees to provide relevant wage information at the
earliest opportunity in cases where weekly compensation benefits are
payable. Requests to the employee for wage information should be made
in writing.

AMA Issues Corrections and Clarifications to Sixth Edition

      The American Medical Association has issued Guides to the
Evaluation of Permanent Impairment, Sixth Edition, Corrections and
Clarifications. A copy of Corrections and Clarifications can be obtained by
going to http://www.ama-assn.org/ama/pub/category/18343.html and
downloading the PDF file.

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      We are pleased to offer this information to help keep you informed.
But since we are lawyers, we include the following caveat: the information
contained herein is not intended as legal advice. Independent research and
analysis may be required in order to determine what effect recent decisions
or changes may have on your unique situation.

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Copyright © 2003 Russell, Wagg, Gabbert & Budzinski, P.C.
All rights reserved.

Board Holds Adjusters Have a Duty to Explicitly Request
Wage Information From an Employee

RUSSELL, WAGG, GABBERT & BUDZINSKI