BOARD HOLDS ADJUSTERS HAVE A DUTY TO EXPLICITLY REQUEST WAGE INFORMATION FROM AN EMPLOYEE

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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