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Bauder v. Alaska Airlines8/2/2002
ore the Board. He argued that the administrator relied on the wrong workers' compensation provision to calculate his total temporary benefits and that the administrator improperly terminated these benefits before he was medically stable. He argued that he was entitled to benefits based on a permanent partial impairment rating of 25% rather than the 10% rating the claims adjuster was offering. And he argued that the administrator's controversion of his claims was frivolous and that he should be awarded penalties, interest and attorney fees. The administrator contested all these issues and argued that Mr. Bauder was paid total temporary disability benefits when he should not have received these payments.
After hearing testimony from Mr. Bauder, an Alaska Airlines employee who handles workers' compensation issues for the airline and from Ms. Noel, the claims adjuster, and after considering the record, the Board issued a written decision. In that decision, the Board concluded that the claims adjuster had relied on the correct statutory provision to calculate Mr. Bauder's temporary benefits, but did not decide any of the other issues.
The delay in resolving the other issues had to do with the Board's decision to request a second medical exam before deciding what Mr. Bauder's permanent partial impairment rating should be. The Board noted the dispute between Dr. Hadley's 10% rating and Dr. Boettcher's 25% rating. And even though there were procedural problems with Dr. Boettcher's 25% rating, the Board still placed sufficient weight on his opinion to ask for another opinion.
After the Board's December decision, Mr. Bauder filed an appeal to the superior court. He also saw Dr. Douglas Smith for the Board's requested medical examination. Dr. Smith rated Mr. Bauder's permanent impairment at 15%.
In July of 1999, the Board issued a second written decision. The Board found that Dr. Boettcher's opinion was sufficient to raise the presumption that Mr. Bauder suffered a 25% permanent impairment rating, but that Dr. Hadley's 10% rating was substantial evidence rebutting the higher rating. After considering the entire medical record, the Board concluded that Dr. Smith's rating of 15% properly took into account Mr. Bauder's prior high school injury and, based on a preponderance of the evidence, that was the appropriate rating.
The Board also addressed most of the issues left unresolved in its December decision. Mr. Bauder sought temporary total benefits between March 17, 1994 through May 31, 1994 and from December 27, 1995 through November 6, 1996. But the Board concluded that Mr. Bauder was employed during these periods and therefore found that Mr. Bauder was not due temporary benefits. The Board also found that the adjuster's controversions were not frivolous or unfair. In addition, the Board dismissed Mr. Bauder's claim for penalties because it concluded that the controversion of Dr. Boettcher's impairment rating was timely and that the administrator timely paid the permanent impairment benefits due Mr. Bauder. The Board dismissed and denied Mr. Bauder's claim for interest as there was no evidence that the benefits were not timely paid. Finally, the Board awarded Mr. Bauder $3,125 in attorney's fees and $1,168.92 in costs.
One issue was left unresolved by the Board. The Board did not resolve the adjuster's claim that it had overpaid temporary benefits to Mr. Bauder. The Board elected not to address this issue because the amount of temporary benefits was on appeal.
Mr. Bauder appealed the Board's July decision, and eventually the appeals over the first decision and the second decision were consolidated.
III. ISSUES ON A
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