In Harris v. M-K Rivers, slip op. 6876 (March 14, 2014), the Alaska Supreme Court held that the Workers’ Compensation Act permits "imposition of a penalty on a medical benefit that has been prescribed but not yet paid" where a bad faith denial delayed receipt of prescribed medical treatment. To reach that decision, the Court held that "medical benefits become due for purposes of controversion and penalties when the employer has notice they have been prescribed by a doctor." The Court specified that "payments ‘due’ under the [Workers’ Compensation] Act are . . . payable immediately or on demand . . ." The penalty would be 25% of the value of the medica...

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 p...

IMPORTANT NOTE:  The public comment period regarding the proposed mandatory insurer reporting requirements ends September 30, 2008.  If you are a workers’ compensation carrier, self-insured employer, or TPA, you will want to review the “non-GHP” requirements of the proposed rules.

The Centers for Medicare & Medicaid Services (CMS) has published its preliminary mandatory insurer reporting requirements under the Medicare, Medicaid and SCHIP Act of 2007 at: http://www.cms.hhs.gov/MandatoryInsRep.

As background, the Medicare, Medicaid, and SCHIP Extension Act of 2007 implements mandatory reporting requirements under the Medicare Secondary Payer sta...

In its recent decision in VECO Alaska, Inc. v. State of Alaska, Department of Labor, Opinion No.  6291 (July 25, 2008), the Alaska Supreme Court enunciated a standard that appears to make it easier for employers to fulfill the written record requirement for Second Injury Fund (SIF) reimbursement.   The SIF statute at AS 23.30.205(c) provides that employers must establish by written records that the employer had knowledge of a permanent physical impairment before a work  injury and that the employee was retained in employment after the employer had that knowledge. Partial reimbursement of benefits may occur if the work injury combined with the pre-exist...

On June 27, 2008, the Alaska Supreme Court issued a potentially far-reaching decision, Carter v. B&B Construction, Inc., Slip No. 6277, which addresses the two-year limit on payment of stipend benefits under AS 23.30.041(k). As we previously understood that limit based upon Board decisions, stipend benefits were typically payable from the time PPI benefits were exhausted (if the employee was in the “reemployment process”) until completion of a reemployment plan, with the two-year limit only starting upon commencement of an approved plan. Under that scenario, liability for stipend benefits could extend for many months and maybe years before the two-year...

The Alaska Workers' Compensation Board issued a decision in Lawhorne v. Alaska Garden & Pet Supply, Inc., AWCB Decision No. 06-0213 (July 28, 2006), that reestablished an employer's right to controvert AS 23.30.041(k) reemployment stipend benefits during a reemployment eligibility evaluation.

The Supreme Court had long ago held that the presumption of compensability applies to reemployment benefits.  Earlier Board panels complied and found that the presumption attached by virtue of a referral for an eligibility evaluation, allowing an employer to controvert with substantial evidence negating an element of a claim for reemployment benefits.  In this ca...

The Board recently found that a post-settlement controversion of future medical benefits that relied on a pre-settlement medical opinion was invalid and in bad faith. Sanders v. Northstar Sand & Gravel, AWCB Decision No. 06-0206 (July 26, 2006). The employee in this case, Marty Sanders, incurred injuries to his low back. An Independent Medical Examination (IME) was performed. The IME physicians opined that Mr. Sander's low back condition was medically stable in early 2003 and required no additional treatment. The parties subsequently entered into a compromise and release agreement ("C&R") whereby the employee agreed to waive all benefits, with an excep...

The Supreme Court has upheld a determination of the Alaska Workers' Compensation Board that an employee was not medically stable, despite the express opinions of both a treating physician and an employer's physician to the contrary, and has also ruled that an employee who has received unemployment benefits can elect to receive disability benefits instead by paying back the unemployment benefits.  Alyeska Pipeline Service Co. v. DeShong, ___ P.3d ___ (Alaska 2003).

Mabel DeShong filed a report of injury when she experienced the onset of elbow pain while working for Alyeska Pipeline Service.  Her physician, Dr. Dingeman, diagnosed medial epicondylitis a...

In March, the Alaska Workers' Compensation Board held that, once an employee has been found eligible for reemployment benefits, those benefits may not be controverted solely because the employer disputes the determination of the Reemployment Benefits Administrator (RBA), even if the dispute is due to new medical information that would render the employee ineligible for such benefits. Seamon v. Matanuska Susitna Borough School District, AWCB Decision No. 02-0045 (March 8, 2002).

Under AS 23.30.041(d), the eligibility determination of the RBA may be appealed within 10 days of the decision.  In Seamon, the employee was found eligible for reemployment bene...