12-0004. KATHERINE S. STRONG Employee DAL ENTERPRISES LLC Claimant v. FAIRBANKS MEMORIAL HOSPITAL Employer and SENTRY INSURANCE MUTUAL CO Insurer, Defendant(s).
Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0004. KATHERINE S. STRONG Employee DAL ENTERPRISES LLC Claimant v. FAIRBANKS MEMORIAL HOSPITAL Employer and SENTRY INSURANCE MUTUAL CO Insurer, Defendant(s) Alaska Workers' Compensation Appeals Commission KATHERINE S. STRONG, Employee, DAL ENTERPRISES, LLC Claimant, v. FAIRBANKS MEMORIAL HOSPITAL, Employer and SENTRY INSURANCE MUTUAL CO, Insurer, Defendant(s).AWCB Decision No. 12-0004Filed with AWCB Fairbanks, Alaskaon January 6, 2012AWCB Case No. 200919170FINAL DECISION AND ORDERDAL Enterprises' February 8, 2011 claim was heard in Fairbanks, Alaska on September 15, 2011. Attorney Michael Wenstrup appeared on behalf of Dan LaBrosse d/b/a DAL Enterprises (DAL). Attorney John Franich appeared on behalf of Katherine Strong (Employee). Attorney Dennis Cook appeared on behalf of Fairbanks Memorial Hospital (Employer). Tommie Hutto, of Hutto Consulting Services, and Dan LaBrosse, appeared in person and testified on behalf of DAL Enterprises. Adjuster Molly Friess, of Harbor Adjustment Services, appeared by telephone and testified on Employer's behalf. The record was held open following the hearing to allow DAL to submit additional exhibits, including the Rehabilitation Counselors' Code of Ethics and the Reemployment Benefits Administrator's (RBA) billing guidelines for rehabilitation specialists. The record closed after deliberations on December 1, 2011. ISSUES DAL contends Employer unlawfully demanded Employee's rehabilitation specialist to disclose proprietary and confidential information as a precondition to payment for his services on behalf of Employee. Specifically, it contends Employer's demands for the rehabilitation specialist's telephone records and email messages is contrary to the Code of Professional Ethics for Rehabilitation Counselors, and if he released this information to Employer, he would be in violation of his professional code of ethics. DAL contends the information the rehabilitation specialist provided on his invoices met the minimum requirements of 8 AAC 45.500, and Employer should have paid him on time or, in the alternative, should have at least paid the undisputed portion of his invoices. DAL requests a finding of unfair and frivolous controversion, and contends penalty and interest are due, as well as reasonable attorney fees under AS 23.30.145(b). Employee agrees and contends the rehabilitation specialist's invoice met the minimum requirements of the regulation, and Employer should have, at least, paid the undisputed portion of his bill. Employer contends it cannot supervise the work performed by rehabilitation specialists because it occurs off-site. It contends, therefore, in the world of professional services, it is reasonable to inquire about billing details. Employer contends the rehabilitation specialist's invoices are vague and ambiguous, and do not contain the level of detail customarily provided by other service providers within the profession. It specifically cites numerous line item entries on the rehabilitation specialist's invoices, such as fifteen minute and thirty minute entries to read or send individual emails, and entries simply stating "administrative activities," without providing any additional detail of what these activities were. Employer questions why the rehabilitation specialist invoiced for "vocational research" after Employee's reemployment plan had already been approved by the RBA. Employer also questions why it was billed for time spent telephoning or emailing an attorney when Employee was unrepresented at the time. Finally, Employer opposes an award of reasonable attorney fees on the basis DAL did not file its attorney fee affidavit until the day before hearing, and contends DAL should be limited to statutory minimum attorney fees. 1) Was Employer's controversion of DAL's invoice invalid? 2) Is DAL entitled to an award of interest? 3) Has Employer unfairly or frivolously controverted DAL's fees? 4) Is DAL entitled to an award of penalty? 5) Is DAL entitled to an award of reasonable attorney fees and costs? FINDINGS OF FACT 1) On December 31, 2009, while Employee worked for Employer as a nurse, she injured her left and right neck, right arm and throat when a patient became combative, grabbed her hair and pulled her head down. The patient also wrapped a cord around Employee's neck and tightened it. (Report of Occupational Injury, January 20, 2010). 2) Employer accepted Employee's injuries as compensable, and began paying benefits. (Compensation Report, May 10, 2010). 3) On May 21, 2010, the RBA's Designee found Employee eligible for reemployment benefits. (Torgerson letter, May, 21, 2010). 4) On September 15, 2010, Mr. LaBrosse prepared a Reemployment Benefits Plan, the objective of which was to retrain Employee to perform the work of a Nurse Consultant. (Reemployment Benefits Plan, September 15, 1010). 5) On September 16, 2010, Mr. LaBrosse prepared an invoice, totaling $5,682.35, for his services to Employee. The invoice has line item entries in four columns. The first column is titled "Serviced," and contains date entries. The second column is titled "Description," and has activity entries, such as "E-mail from. . .", "E-mail to. . .", "Phone call from. . .", "Phone call to. . .," etc. The third column is titled "Qty," and contains time entries. The fourth column is titled "Amount," and contains dollar entries. The invoice bears the name and address for DAL, and displays a single hourly rate of $170.00, but does not otherwise specify the name of the person who performed each line item activity. (Invoice No. 20309, September 16, 2010). 6) Adjuster received Mr. LaBrosse's invoice on September 20, 2010. (Id.) 7) Subsequent to receiving the original invoice, Ms. Friess informed Mr. LaBrosse the original invoice had been lost, so Mr. LaBrosse faxed another invoice to her. (LaBrosse). 8) In December of 2010, Mr. LaBrosse contacted Ms. Friess to inquire why his invoice had not been paid. Ms. Friess replied, requesting Mr. LaBrosse's emails and telephone bills for his work for Employee. Mr. LaBrosse contacted Ms. Friess in an effort to settle the invoice. After not hearing back from Ms. Friess for four days, Mr. LaBrosse retained an attorney. (LaBrosse). 9) On December 16, 2010, Mr. LaBrosse prepared another invoice totaling $1,068.08. The format of this invoice is identical to that prepared on September 16, 2010, and contains similar line item entries. (Invoice No. 20349, December 16, 2010). 10) On February 8, 2011, DAL filed its workers' compensation claim based on the denial of payment on DAL's invoice, No. 20309, for $5,682.35, and also claimed penalty, interest, unfair or frivolous controversion, and attorney's fees and costs. (Workers' Compensation Claim, February 8, 2011). 11) On February 11, 2011, Employer controverted DAL's bills. The controversion form was signed by Molly Friess and stated the benefits controverted were: "[b]ills from DAL Enterprises in which copies of emails and phone bills are not included," and states the reason for the controversion was: "[i]n order to verify DAL Enterprise's charges on their bills, we require copies of emails and telephone bills." (Employer Controversion Notice, February 11, 2011). 12) On February 11, 2011, Mr. LaBrosse prepared another invoice totaling $1,263.58. This invoice's format is identical to the September 16, 2010 invoice, and contains similar line item entries. (Invoice No. 20372, February 11, 2011). 13) On April 29, 2011, Mr. LaBrosse prepared another invoice totaling is $1,061.77. This invoice's format is identical to the September 16, 2010 invoice, and contains similar line item entries, including three line item entries for "E-mail from attorney," "E-mail to attorney," and "Phone call from attorney." Each of the three line item entries is for a quarter of an hour, and the invoice does not specify the attorney by name or party. (Invoice No. 20402, April 29, 2011). 14) Mr. LaBrosse has worked with Ms. Friess before, and their dealings usually go "ok," but he feels Ms. Friess's request for the emails and telephone bills was an effort to delay payment to him. He acknowledged his invoice could contain more detail, but is similar to invoices he has submitted in the past. (LaBrosse). 15) Mr. Hutto has found Ms. Friess is very difficult to work with, and believes she withholds payment as leverage to pressure him to reduce his bill. (Hutto). 16) Mr. LaBrosse's invoices are similar Mr. Hutto's. (Hutto). 17) Ms. Friess sent DAL's invoice to the Insurer for payment, but the Insurer sent it back because it had some concerns, and wanted additional details about activities listed on the invoice. (Friess). 18) Ms. Friess interpreted the Insurer's request for additional information to mean she should obtain Mr. LaBrosse's emails and telephone bills. (Friess). 19) Ms. Friess thinks the undisputed portions of the invoice should be paid. (Friess). 20) Ms. Friess testified she was just trying to get additional information on the insurer's behalf, and denied her request was an effort to reduce DAL's bill. (Friess). 21) Ms. Friess is not credible. (Experience, judgment, observations and inferences drawn on all the above). 22) Ms. Friess testified the additional details the insurer was seeking could not be provided some other way, short of production of the actual email communications themselves, and further testified that nothing else would be acceptable to her at this point...
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