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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 and recommended physical therapy. He also discussed the possibilities of cortisone injections and surgery. DeShong declined the cortisone injections and objected to surgery. In August, 1998, Dr. Dingeman recommended she seek a second opinion within two weeks. A month later, Dr. Dingeman again recommended that she be evaluated by a specialist. Dr. Dingeman did not make a referral himself for that evaluation. In October, 1998, pursuant to an independent medical evaluation (IME), DeShong was diagnosed with chronic medial epicondylitis and declared medically stable considering that she did not want to consider steroid injections. DeShong continued working for the employer until December, 1998, when she was laid off. She subsequently began receiving unemployment benefits. In January, 1999, Dr. Dingeman noted that DeShong had "reached 'statutory stability' [but had] not reached clinical stability in the natural course and progression of her condition.” Such progression, he noted, could last up to eighteen months. At a follow-up IME, DeShong was again found to be medically stable with no work restrictions. Although Dr. Dingeman had recommended that DeShong seek a second opinion, he thought the employer had to make such arrangements, and therefore did not make a referral. When DeShong requested permission from the employer in June 1999 to obtain a second opinion, her request was denied on the basis that the Act did not provide for a 'second opinion', and Dr. Dingeman had not referred her elsewhere for an evaluation. She was informed at a prehearing conference in August 1999 that Dr Dingeman either had to make a referral, or she had to change treating physicians. In July 1999, DeShong filed a claim for TTD benefits from the time of her layoff, later testifying that she wanted to repay her unemployment benefits and receive TTD instead. DeShong decided to change physicians and was seen for an evaluation in August, 1999. She subsequently consented to undergo surgery in September 1999, which was successful. The employer paid TTD from the date of surgery through recovery. MEDICAL STABILITY Despite the opinions of both Dr. Dingeman and the IME physician that DeShong was medically stable as defined by the Act during the time between her layoff and the surgery, the Board found that DeShong had provided clear and convincing evidence that she was not medically stable because Dr. Dingeman had recommended a second evaluation, which was 'delayed' by the employer, and because the surgery was successful. The Board further found that DeShong had been unable to find work that accommodated her restrictions, thus her injury precluded her from finding a job in the real market, and therefore she was disabled during the period she collected unemployment benefits. The fact that a declaration of medical stability by both the treating physician and the IME physician was rejected by the Board in favor of its own determination that DeShong was not medically stable should be viewed in light of three facts that appear to have tipped the Board in favor of the employee. First, the treating physician had recommended another surgical evaluation and believed, as did the claimant, that he could not refer the claimant for such an evaluation. Second, the Board found that the employer knew about and had failed to remedy the misconceptions and therefore had 'caused' the delay in surgery being performed. Finally, the surgery was successful. On appeal, the superior court held that the Board (not the employer) has the duty to fully inform claimants of their rights, but nonetheless upheld the Board's decision because the confusion of DeShong and Dingeman had lead to the delay of surgery, and "a reasonable mind could accept that Ms. DeShong had not during these months reached statutory stability." Citing Alyeska's awareness of the confusion, the Supreme Court emphasized a reluctance to penalize employees who have not been clearly informed of their rights. While it is not clear exactly who - the Board or the employer - has a technical legal duty to inform workers of their rights, it is the employer/carrier who will suffer the consequences of an uninformed worker. It is therefore prudent to make sure an employee is fully informed of his or her rights in seeking treatment if misperception appears to exist. Our recommendation: if there appears to be confusion, promptly direct the worker (in writing) to the Board for direction. If appropriate, arrange a conference with a Board representative and the claimant. If there is misperception on the part of the treating physician, take timely steps to remedy that as well. The potential downside? Any incorrect information given directly to the worker or physician by the employer/carrier could lead to the same result. UNEMPLOYMENT BENEFITS AND TTD Did the Court rewrite AS 23.30.187? AS 23.30.187 does not allow TTD or PTD benefits to be paid to an employee "for a week in which the employee receives unemployment benefits." In a three to two decision, the Court upheld the Board's interpretation of the statute, allowing disability benefits to be paid as long as the employee "paid back" the unemployment benefits. A strong dissent offered a detailed legislative history, concluding that the legislature had rejected numerous schemes for dealing with the "double recovery" AS 23.30.187 was designed to prevent, in favor of the simple but clear wording that precludes disability benefits from being 'payable' during periods in which the employee received unemployment benefits. This decision essentially nullifies AS 23.30.187 as a bar to receiving disability benefits if the employee elects to pay back unemployment benefits received. No guidance as to the necessary proof of repayment of unemployment benefits was given. ======== 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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