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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Weidner v. Hibdon (10/8/99) sp-5189

Weidner v. Hibdon (10/8/99) sp-5189

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


PHILLIP WEIDNER & ASSOCIATES, )
INC., and ALASKA NATIONAL     )
INSURANCE COMPANY,            )
                              )    Supreme Court No. S-8350
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3AN-96-3866 CI
                              )
STACEY HIBDON,                )    O P I N I O N
                              )
             Appellee.        )    [No. 5189 - October 8, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Joan M. Woodward, Judge.


          Appearances: Richard L. Wagg and Patricia K.
Shake, Russell, Tesche, Wagg, Cooper & Gabbert, Anchorage, for
Appellants.  Phillip J. Eide, Eide & Miller, Anchorage, for
Appellee.


          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.   INTRODUCTION

          Phillip Weidner & Associates, Inc. and Alaska National
Insurance Company appeal the superior court's decision remanding a
decision of the Alaska Workers' Compensation Board with
instructions to authorize Stacey Hibdon's medical claim for future
back surgery if a new examination determines the procedure is still
medically warranted.  Because Hibdon presented substantial evidence
that the treatment she sought was reasonable and medically
necessary, we affirm.  
II.  FACTS & PROCEEDINGS
     A.   Factual History
     
          Stacey Hibdon suffered an on-the-job-injury to her back
on June 24, 1993.  She was moving files and file cabinets for her
employer, Phillip Weidner & Associates, when a file cabinet fell on
her. [Fn. 1]  Following this injury, Hibdon experienced acute back
pain and went to see a chiropractor; he referred her to Dr. Garner,
an orthopedic surgeon.  During an evaluation on July 15, 1993, Dr.
Garner assessed an acute left L4 Pars defect [Fn. 2] and possible
lumbar disc herniation.  While the condition appeared to be pre-
existing and asymptomatic, the injury at work aggravated the defect
and resulted in symptomatic lower back pain which radiated into her
extremities. [Fn. 3]  Dr. Garner then referred Hibdon to Dr.
Peterson, another orthopedic surgeon, for a second opinion; he
confirmed Dr. Garner's diagnosis and determined that Hibdon was a
reasonable surgical candidate for a Pars repair.  Dr. Peterson also
recommended a molded body jacket to see if this would alleviate her
pain and help stabilize her back. 
          In August 1993 a bone scan and MRI ordered by Dr. Garner
indicated that the Pars defect had failed to heal and that Hibdon
suffered from a degenerative and herniated disc.  Dr. Garner felt
that the defect's failure to heal indicated it would not heal on
its own, and recommended that Hibdon undergo a L4-5 fusion and
decompression, or "floating fusion." 
          As a result of that recommendation, the employer's
insurance carrier, Alaska National, sent Hibdon to California for
another opinion.  Drs. Gerald Keane and Arthur White, specialists,
respectively, in physiatry and orthopedics, evaluated Hibdon in
late September and stated that she should not have surgery at that
time because she had not had sufficient conservative treatment nor
had diagnostic tests isolated the pain generators. 
          Dr. Keane again evaluated Hibdon in December 1993 and
noted that since her last visit she had undergone his recommended
course of physical therapy in Anchorage, but that her progress
seemed limited and bilateral pain persisted in her lower back. 
Nevertheless, he recommended against surgical intervention because
he did not "believe that the potential risk of surgery in her case
justifie[d] the limited chance of potential benefit." Moreover, he
did not feel further diagnostic testing would be beneficial.  He
recommended Hibdon continue physical therapy over the ensuing three
to four weeks and then begin an independent exercise program. 
          Hibdon then went back to see Dr. Garner.  He noted that
although she had been wearing her back brace and had undergone six
to eight weeks of hands-on therapy, she was not relieved of pain.
[Fn. 4]  X-rays showed that she actually had more gap in the Pars
defect.  Dr. Garner's assessment was that Hibdon had "had a
reasonable trial of conservative care"and continued to be a
"reasonable candidate for a one level decompression fusion." Dr.
Garner then consulted with Dr. Benson of the University of
California at Davis, a spine specialist.  After reviewing Hibdon's
medical records, Dr. Benson agreed that if conservative treatment
had failed, a decompression and fusion would be a reasonable
surgical option. 
          As of March 17, 1994, Hibdon was "not anxiously pursuing
surgery"so Dr. Garner felt it appropriate "to rate her for
permanent partial impairment." However, he indicated she may yet
decide to pursue surgery and that her chances "for a reasonable
surgical outcome"were not seriously hindered by a delay of up to
six to twelve months.  If she went beyond an additional six months,
however, he indicated he would want to repeat the MRI to ensure
that the operation need only deal with the L4-5 disc lesion. 
          Hibdon's back pain persisted, and she again saw Dr.
Garner in January 1995.  His assessment indicated that, despite
exercising with rubber bands and ankle weights, her back pain was
not alleviated; worsened the longer she stood and prevented her
from sitting in many types of chairs; and radiated into her calf
and toes, causing intermittent numbness.  X-rays and an MRI scan
showed there had not been any healing of the Pars defect.  Dr.
Garner reiterated his assessment that conservative long-term care
would not be adequate for Hibdon, and indicated that she would be
well served by a "floating fusion"at L4-5 if a new MRI indicated
the disc pathology had not spread.  He again referred her to Dr.
Peterson for a second opinion, who concurred with Dr. Garner's
assessment and stated that "she should strongly be considered"for
surgery.  As of February 24, 1995, Dr. Garner was prepared to
proceed with surgery.  However, Alaska National would not authorize
surgery, so he declined to schedule it.  
          In May 1995 Hibdon was again evaluated by Drs. Keane and
White, and once again they expressed the opinion that she did not
need surgery. 
          Hibdon has since moved from Anchorage to Florida because
her husband, who is on active duty with the Air Force, has been
transferred.  
     B.   Procedural History
          Hibdon filed a report of injury for the June 24, 1993
incident on July 1, 1993.  She filed an application for adjustment
of her claim with the Workers' Compensation Board on April 18,
1995, after her employer controverted her medical benefits claim
for surgery.  She sought, among other things, preapproval to visit
a qualified physician in Florida and, if surgery were again
recommended, preapproval for such treatment.  Drs. Garner, Keane,
and White were deposed in December 1995 and January 1996.  
          A hearing was held in March 1996, and the Board issued a
Decision and Order in May denying Hibdon's claim for future back
surgery, and her claim for attorney's fees and costs.  Discounting
Dr. Garner's testimony and finding that she lacked a current
medical recommendation for surgery, the Board held that Hibdon had
failed to prove her claim by a preponderance of the evidence. 
Accordingly, it denied her claim for future back surgery and
further stated it would not order surgery if a physician of her
choice provided her with a current medical recommendation for such
treatment.   
          Hibdon appealed this decision to the superior court.  The
court held that the Board's decision was not supported by the
record, and remanded the case back to the Board with instructions
to authorize both payment for Hibdon to see an orthopedic surgeon
in her present locale and payment for surgery if the new surgeon
found it medically warranted.  In its order, the court further
stated that the Board should not have overriden "a consensus
reached in the physician-patient decision-making process."
Finally, the court awarded Hibdon attorney's fees and costs. 
          This appeal followed.
III. STANDARD OF REVIEW
          We do not defer to the superior court when it acts as an
intermediate court of appeal; rather, we independently review the
decisions of administrative agencies. [Fn. 5]  We review agency
findings under the substantial evidence standard, asking whether
those findings are supported by "such relevant evidence as a
reasonable mind might accept to support a conclusion."[Fn. 6]  We
review questions of law under the independent judgment standard,
adopting the rule of law most persuasive in light of reason,
precedent, and policy. [Fn. 7]
IV.  DISCUSSION
          Weidner and Alaska National argue that the superior court
erred in ruling that the Board's decision denying surgery was not
supported by substantial evidence.  They do not deny that Hibdon is
entitled to medical benefits as a result of her work-related
injury, only that the Board did not abuse its discretion in
determining that surgery was not appropriate for her based upon the
evidence before the Board at that time. 
          Hibdon responds that she presented ample evidence that
the surgery she sought was a reasonable medical option, and that
the Board wrongfully interfered with a reasonable treatment
decision made by her and her physician, without a basis in the
record.  We agree with her, and therefore affirm the superior
court. 
     A.   Hibdon's Claim Was Made Within Two Years of Her Injury;
Therefore, the Board's Review Was Limited to Whether Her Requested
Treatment Was Reasonable and Necessary. 
          Under Alaska's Workers' Compensation Act, an employer
shall furnish an employee injured at work any medical treatment
"which the nature of the injury or process of recovery requires"
within the first two years of the injury. [Fn. 8]  The medical
treatment must be reasonable and necessitated by the work-related
injury. [Fn. 9]  Thus, when the Board reviews an injured employee's
claim for medical treatment made within two years of an injury that
is undisputably work-related, its review is limited to whether the
treatment sought is reasonable and necessary. [Fn. 10]  
          On the other hand, when the Board reviews a claim for
continued treatment beyond two years from the date of injury, it
has discretion to authorize "indicated"medical treatment "as the
process of recovery may require."[Fn. 11]  Given this discretion,
the Board is not limited to reviewing the reasonableness and
necessity of the particular treatment sought, but has some latitude
to choose among reasonable alternatives. [Fn. 12]
          In the present case, Hibdon filed an injury report for
the June 24, 1993 incident on July 1, 1993.  Weidner and Alaska
National conceded the injury was work-related, but controverted 
Hibdon's claim for back surgery.  She then filed an application in
April 1995 for an adjustment of her claim.  This was within two
years of the date of the injury.  Therefore, her claim may be
reviewed only to determine whether the treatment she sought in her
claim was reasonable and necessary.
          Weidner and Alaska National mistakenly argue that because
Hibdon is seeking medical treatment beyond two years from the date
of injury, the Board has greater latitude in its determination. 
This confusion is understandable as the treatment sought, if
approved, would have occurred outside the initial two-year period
due to the time required for the Board's adjudicative process to
run its course.  However, Hibdon sought and was ready to undergo
this treatment by April 1995 at the latest -- well within two years
of the date of injury.  She did not go forward because Weidner and
Alaska National controverted her claim.  It would be unjust to
allow an employer to avoid the more stringent benefit requirements
owed to injured employees in the first two years following an
injury by simply controverting a claim and delaying the employee's
medical treatment beyond the two years.  Accordingly, we hold that
a claim for medical treatment is to be reviewed according to the
date the treatment was sought and the claim was filed with the
Board.  Because Hibdon's claim was filed within two years of the
date of injury, we must determine whether the treatment she sought
was reasonable and necessary. 
     B.   The Board Erred in Finding that Hibdon Did Not Prove Her
Claim by a Preponderance of the Evidence. [Fn. 13]

          Weidner and Alaska National argue that the Board's denial
of Hibdon's claim for future back surgery was supported by
substantial evidence in the form of testimony from Drs. Keane and
White.  They further contend that because the superior court
impermissibly reweighed the evidence, and no medical provider was
currently recommending surgery for her, the superior court should
be reversed and the Board's decision affirmed.  We disagree, and
hold that Hibdon proved her claim by a preponderance of the
evidence.  Further, we find that the Board exceeded its authority
when it overrode the consensus reached between Hibdon and her
doctors about what treatment was appropriate.
          According to Professor Larson's treatise on workers'
compensation, where a claimant receives conflicting medical advice,
the claimant may choose to follow his or her own doctor's advice,
so long as the choice of treatment is reasonable. [Fn. 14]  The
question of reasonableness is "a complex fact judgment involving a
multitude of variables."[Fn. 15]  However, where the claimant
presents credible, competent evidence from his or her treating
physician that the treatment undergone or sought is reasonably
effective and necessary for the process of recovery, and the
evidence is corroborated by other medical experts, and the
treatment falls within the realm of medically accepted options, it
is generally considered reasonable.  If the employee makes this
showing, the employer is faced with a heavy burden -- the employer
must demonstrate to the Board that the treatment is neither
reasonable and necessary, nor within the realm of acceptable
medical options under the particular facts.  It is not the Board's
function to choose between reasonable, yet competing, medically
acceptable treatments.  Rather, the Board must determine whether
the actual treatment sought by the injured employee is reasonable. 

          In the present case, Hibdon presented ample evidence that
the surgery she sought was a reasonable medical procedure necessary
for her recovery process.  Her treating physician, Dr. Garner, came
to his recommendation to perform surgery after extensive testing,
including bone scans, two MRI's, and x-rays.  Hibdon was also seen
twice by Dr. Peterson, an orthopedic surgeon and colleague of Dr.
Garner's.  Finally, Dr. Garner sought the advice of Dr. Benson, a
spine specialist from the University of California at Davis.  All
three of these doctors came to the conclusion that the persistent
and debilitating pain experienced by Hibdon could be alleviated by
a surgical procedure involving a fusion to the L-4 vertebral
segment of her spine.  Moreover, Drs. Keane and White both admitted
under cross examination that fusion surgery often makes sense for
patients with a Pars defect, that surgery could potentially benefit
Hibdon, and that Dr. Garner's recommended course of treatment was
"within the realm of medically accepted options." 
          Nevertheless, the Board found, and Weidner and Alaska
National argue on appeal, that Hibdon lacked a current medical
recommendation to go forward with surgery.  Dr. Garner did admit
that he would want to run additional diagnostic tests before
renewing his recommendation for surgery.  However, he also stated
that if Hibdon's pain persisted, and diagnostic tests indicated her
condition was the same and additional degeneration had not occurred
requiring more extensive surgery, he would continue to recommend
the same procedure.  Hibdon's pain was increasing despite the
conservative treatment she underwent and was undergoing, and the
pain was radiating into her calf and toes, causing intermittent
numbness.  The fact is Drs. Garner, Keane, and White all agreed
that she would need to undergo additional tests before surgery
should be performed.  But this is only because of the delay
inherent in the Board's adjudication of her claim.  The passage of
time rendered what was a current recommendation dated, and 
necessitated the need for more tests to ensure the procedure was
still appropriate.  In such situations, a claimant is faced with a
potential catch-22:  by the time claims are adjudicated treatment
recommendations are old, and the Board would be precluded from
ordering the claim compensable without more current information. 
The superior court's approach correctly avoids this potential
dilemma by pre-approving the recommended surgery contingent upon a
new examination indicating the procedure is still medically
warranted. 
          In sum, we conclude that the testimonial evidence
presented by Dr. Garner, which was corroborated by Drs. Peterson
and Benson, in addition to the admissions of Drs. Keane and White,
were sufficient to establish that the treatment Hibdon sought was
reasonable and necessary for her process of recovery.  Neither Drs.
Keane nor White disputed Hibdon's diagnosis, nor the efficacy of
the surgical procedure generally in treating such defects.  Rather,
they argued that additional tests needed to be performed to isolate
the pain generators, [Fn. 16] that Hibdon was unfit for the
procedure, that if surgery was performed a more extensive procedure
would be required, and that in light of the risks a conservative
treatment regimen was the best option.  Such evidence is
insufficient to support a conclusion that Hibdon was not entitled
to the surgery.  Choices between reasonable medical options and the
risks entailed should be left to the patient and his or her
physician. [Fn. 17]  The superior court correctly stated that the
Board should not have overriden the consensus reached in the
physician-patient decision-making process.  We therefore hold that
Hibdon proved her claim by a preponderance of the evidence.
V.   CONCLUSION
          Because Hibdon presented credible, corroborated evidence
from her treating physician that the treatment she sought was
reasonable and necessary for her recovery, and the treatment fell
within the realm of medically accepted options, she proved her
claim by a preponderance of the evidence.  The Board's decision
denying her claim is not supported by substantial evidence in the
record.  Therefore, we AFFIRM the superior court's remand of this
case to the Board, and order the Board to implement the superior
court's instructions.


                            FOOTNOTES


Footnote 1:

          Hibdon asserts that two additional work-related injuries
further aggravated her condition.  She contends that she was in a
head-on motor vehicle accident on December 17, 1993, while making
an office delivery, and that she was knocked down, jumped on, and
dragged across Weidner's yard by his dog on January 2, 1995.


Footnote 2:

     This is a defect or lesion in the bridge of bone between two
small joints in the vertebrae.   


Footnote 3:

     It is well established in workers' compensation law that when
a work-related injury aggravates a pre-existing condition a
compensable claim arises.  See Burgess Constr. Co. v. Smallwood,
623 P.2d 312, 315 (Alaska 1981) (listing cases). 


Footnote 4:

     Between Dr. Garner's second evaluation in late August and his
third in December, he did not see Hibdon.  However, Dr. Garner made
a note in her file on November 24 that he was told in late October
by an employee at Alaska National that she had informed Alaska
National she no longer wished to see Dr. Garner.  Hibdon denies she
ever expressed this sentiment to Alaska National.  In any event,
Dr. Garner expressed his view in the file on November 24 that
Hibdon was not likely to recover with conservative care because she
had both a Pars defect and a defective disk with herniation all at
the same motion segment. 


Footnote 5:

     See Williams v. State, Dep't of Revenue, 938 P.2d 1065, 1069
(Alaska 1997) (citation omitted).


Footnote 6:

     Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456 (Alaska
1997) (quoting Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046
(Alaska 1978)).


Footnote 7:

     See id. at 456 (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979)).


Footnote 8:

     AS 23.30.095(a).  This provision states:

          The employer shall furnish medical, surgical,
and other attendance or treatment, nurse and hospital service,
medicine, crutches, and apparatus for the period which the nature
of the injury or the process of recovery requires, not exceeding
two years from and after the date of injury to the employee. 
However, if the condition requiring the treatment, apparatus, or
medicine is a latent one, the two-year period runs from the time
the employee has knowledge of the nature of the employee's
disability and its relationship to the employment and after
disablement.  It shall be additionally provided that, if continued
treatment or care or both beyond the two-year period is indicated,
the injured employee has the right of review by the board.  The
board may authorize continued treatment or care or both as the
process of recovery may require.  When medical care is required,
the injured employee may designate a licensed physician to provide
all medical and related benefits.  The employee may not make more
than one change in the employee's choice of attending physician
without the written consent of the employer.  Referral to a
specialist by the employee's attending physician is not considered
a change in physicians.  Upon procuring the services of a
physician, the injured employee shall give proper notification of
the selection to the employer within a reasonable time after first
being treated.  Notice of a change in the attending physician shall
be given before the change.


Footnote 9:

     See Bockness v. Brown Jug, Inc., 980 P.2d 462, 466 (Alaska
1999).


Footnote 10:

     See AS 23.30.095(a)-.395; see also Bockness, 980 P.2d at 466. 


Footnote 11:

     Municipality of Anchorage v. Carter, 818 P.2d 661, 664 (Alaska
1991).


Footnote 12:

     See id. at 665.


Footnote 13:

     The parties do not address the Board's determination that the
presumption of compensability contained in AS 23.30.130(a) attached
to Hibdon's claim, nor that Weidner and Alaska National overcame
the presumption with substantial evidence.  For purposes of this
opinion, we assume, without deciding, that Weidner and Alaska
National rebutted the presumption of compensability with the
testimony of Drs. Keane and White.  After the presumption of
compensability was rebutted, Hibdon's burden was to prove her claim
by a preponderance of the evidence.  See Gillispie v. B & B
Foodland, 881 P.2d 1106, 1111 (Alaska 1994) (citation omitted).


Footnote 14:

     See 1 Arthur Larson & Lex K. Larson, Larson's Workers'
Compensation Law sec. 13.22(e)-(f), at 3-763 to 3-789 (1997).


Footnote 15:

     Fluor Alaska, Inc. v. Mendoza, 616 P.2d 25, 27 (Alaska
1980)(quoting 1 Arthur Larson, The Law of Workmen's Compensationsec.
13.22, at 3-419 (1978)).


Footnote 16:

     Notably, as early as December 1993 Dr. Keane was recommending
against further diagnostic testing. 


Footnote 17:

     Cf. Fluor Alaska, 616 P.2d at 29 (recognizing that the risks
of surgery are personal to the employee).