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Bloom v. Tekton, Inc. (7/7/2000) sp-5298

     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

ALLEN BLOOM, JR.,             )
                              )    Supreme Court No. S-9019
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-98-4760 CI
                              )
TEKTON, INC., and STATE       )
FARM FIRE & CASUALTY CO.,     )    [No. 5298 - July 7, 2000]
                              )
               Appellees.     )   
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                 Sigurd E. Murphy, Judge pro tem.


          Appearances: Michael J. Patterson, Law Office
of Michael J. Patterson, Anchorage, for Appellant.  Trena L.
Heikes, Law Office of Trena L. Heikes, Anchorage, for Appellees.


          Before:   Eastaugh, Fabe, Bryner, and
Carpeneti, Justices.  [Matthews, Chief Justice, not participating.]


          BRYNER, Justice.


I.   INTRODUCTION
          Allen Bloom appeals the Alaska Workers' Compensation
Board's denial of his request to replace his attending physician
without the consent of his employer, Tekton, Inc.  Bloom maintains
that the board's decision contradicts its longstanding policy of
permitting injured workers to substitute new attending physicians
when the worker's current physician is unable or unwilling to
treat.  Because the record indicates that Bloom's attending
physician refused to treat Bloom, we conclude that the board erred
in denying Bloom's request to substitute a new physician. 
Accordingly, we reverse.  
II.  FACTS AND PROCEEDINGS
          On February 14, 1994, Allen Bloom injured his back while
working as a carpenter for Tekton, Inc.  Bloom felt pain in his
lower back and left leg, and he sought treatment from Christopher
Horton, an orthopedic surgeon.  Dr. Horton told Bloom that he did
not "do backs," and he referred Bloom to William Reinbold.  Dr.
Reinbold performed an unsuccessful back surgery on Bloom in May
1994.  Bloom then changed doctors, seeking treatment from Louis
Kralick.  Dr. Kralick performed a second surgery on Bloom in
October 1995.  This surgery was more successful than the first, and
Bloom initially reported feeling much better. 
          After the second surgery, Bloom underwent several months
of physical therapy.  After the physical therapy, Dr. Kralick
reported that he had no further treatment recommendations for
Bloom, and the doctor instructed that Bloom could be evaluated for
impairment.  Tekton's insurance adjuster referred Bloom to Dr.
Larry Levine, who requested some additional tests and eventually
concluded that Bloom had a "10% whole-person impairment." 
          Bloom was then evaluated for job retraining, and was
retrained as a truck driver.  About nineteen months after his
second surgery, Bloom began to feel back pain again.  Bloom
reported that in May 1997, "he was standing up and leaning back,
and noted recurrent low-back pain.  His knee collapsed, and he
almost fell down."  Bloom telephoned Dr. Kralick's office to
schedule an appointment, but Dr. Kralick's receptionist instructed
Bloom that the doctor's policy was only to see patients, even
former patients, who were referred to him for surgery by another
doctor.  The receptionist gave Bloom the name of another doctor,
Michael Gevaert, and Bloom scheduled an appointment with him.
          Dr. Gevaert examined Bloom on June 5, 1997.  Dr. Gevaert
noted "[l]ow back pain and left sciatica, status post two back
surgeries.  Examination reveals decreased ankle reflex and
inconsistent motor and sensory loss.  There are four positive
Waddell signs." [Fn. 1]  He recommended "a conservative approach
for the radicular pain," prescribed Percocet and Cataflam, and sent
Bloom to physical therapy for two weeks. 
          On June 23 Bloom returned for another examination.  Dr.
Gevaert described his impression of Bloom: "Chronic low-back pain
and radicular symptoms, with five positive Waddell signs."  He
concluded that there were not "enough objective findings to
continue any further treatment.  Clinical examination does not
substantiate [Bloom's] subjective symptoms.  In my opinion, he
should be able to drive a truck."  Dr. Gevaert released Bloom from
the clinic and instructed him to finish his current physical
therapy program.
          Bloom returned to Dr. Gevaert on July 9, 1997, for a
"followup visit" and expressed that he was "extremely dissatisfied"
with the doctor's latest assessment of his condition.  Bloom asked
for a referral to Dr. Glenn Ferris so he could get a second
opinion.  Dr. Gevaert refused to give Bloom a referral, but noted
in his report that Bloom would contact Tekton's insurance adjuster
to obtain a second opinion.
          Tekton refused Bloom's request to change his attending
physician to Dr. Ferris.  Bloom then sought an order from the
Alaska Workers' Compensation Board for substitution or change of
his attending physician without the employer's consent.
          Bloom also tried to return to Dr. Gevaert for additional
treatment.  When Bloom contacted Dr. Gevaert's office, he was told
that the doctor had left his practice in Anchorage and moved to
Wasilla, where he worked three days per week for the Veterans
Administration, and one day per week in private practice.
          On September 2, 1997, Tekton filed a motion with the
board to controvert all of Bloom's claims, because Dr. Gevaert had
determined that no further treatment was necessary.  But, for
reasons not apparent in the record, Tekton then reversed its
position and authorized Bloom to treat with another physician. 
Tekton wrote Bloom a letter indicating that because Dr. Kralick
would not see Bloom without a referral, and because Dr. Gevaert was
"no longer available," it would authorize a change of physician for
any physician but Dr. Ferris, the doctor Bloom wished to see.
Tekton also authorized an MRI exam, but required that Bloom first
select a physician acceptable to Tekton.
          At the board hearing on December 17, 1997, Bloom argued
that he should be allowed to substitute a new doctor because both 
Dr. Kralick and Dr. Gevaert were unwilling or unavailable to treat
him.  The board denied Bloom's request, and he appealed to the
superior court.  The superior court upheld the board's decision,
and Bloom now appeals to this court.
III. DISCUSSION
     A.   Standard of Review
          This court does not defer to the superior court when it
acts as an intermediate court of appeal; instead, we review
independently the decisions of administrative agencies. [Fn. 2]  We
review agency findings under a "substantial evidence" standard,
asking whether those findings are supported by "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion." [Fn. 3]  We review questions of law under the
independent judgment standard,     adopting "the rule of law that
is most persuasive in light of precedent, reason, and policy." [Fn.
4]
     B.   Did the Board Err in Refusing to Allow Bloom to Change
Treating Physicians Without Tekton's Approval?

          The Alaska Workers' Compensation Act gives each injured
worker the right to choose an attending physician. [Fn. 5]  But in
order to curb potential abuse -- especially doctor shopping -- the
Act allows an injured worker to change attending physicians only
once without the consent of the employer. [Fn. 6]   
          In order to protect the injured worker's right to choose
his attending physician, the Alaska Workers' Compensation Board has
consistently interpreted the statute to allow an employee to
"substitute" a new physician in circumstances where the current
attending physician is either unwilling [Fn. 7] or unable to
continue providing care. [Fn. 8]  These "substitutions" do not
count as changes in attending physicians: even a worker who has
already changed doctors may choose a new attending physician
without the employer's consent if the current physician becomes
unwilling or unavailable to treat. [Fn. 9]  Moreover, when an
attending physician refers a worker to a specialist, the worker may
see the referral physician without running afoul of the statute's
one-change rule. [Fn. 10]
          Allowing an employee to substitute attending physicians
when the employee's current physician becomes unwilling or
unavailable to treat is consistent with the well-settled rule that
under AS 23.30.095(a) an injured worker is presumed entitled to
continuing medical treatment. [Fn. 11]  The substitution policy
ensures that the employee's right to continuing care by a physician
of his choice will not be impeded by circumstances beyond the
employee's control.  
          Turning to the case at hand, the record shows that Bloom
exercised his option to change attending physicians when he
switched from Dr. Horton to Dr. Kralick after his first back
surgery failed.  The uncontroverted evidence shows that Dr. Kralick
was Bloom's last attending physician.  The record also shows that
Dr. Kralick's office policy was to see patients, even former
patients, only if they were referred for surgery by another doctor. 
          By instructing Bloom that he could not schedule an
appointment without a new referral, Dr. Kralick was refusing to
treat.  Consequently, when Bloom learned that Dr. Kralick would not
see him without a new referral, Bloom could have simply notified
Tekton that he intended to select a new attending physician.  There
can be no dispute that, under the board's longstanding policy, Dr.
Kralick's refusal to treat gave Bloom the right to select a new
attending physician of his choice without Tekton's consent. [Fn.
12]  
          But instead of choosing a new attending physician, Bloom
followed Dr. Kralick's referral and saw Dr. Gevaert.  The board
specifically acknowledged that "[b]ecause of [Dr. Kralick's]
referral, . . . Dr. Gevaert was not an attending physician." [Fn.
13]  Yet despite this finding the board accepted as binding Dr.
Gevaert's conclusion that Bloom did not need further treatment:
"[T]he employee asked for a profession[al] medical opinion from Dr.
Gevaert and he got it.  Because of this, we find the employee was
not affected by outside events which would raise any fairness
questions."  The board thus ruled that mere dissatisfaction with
Dr. Gevaert's treatment did not entitle Bloom to choose a new
attending physician without Tekton's consent.  
          But because Dr. Gevaert was not Bloom's attending
physician, his conclusions do not determine Bloom's right to name
a new attending physician.  Notably, Tekton does not now contend,
nor did it contend below, that Bloom requires no further treatment. 
To the contrary, Tekton acknowledged that Bloom required continuing
care, and authorized him to see another physician acceptable to
Tekton.  Yet Bloom had no attending physician who was willing to
treat him.  
          Under these circumstances, AS 23.30.095(a) gave Bloom the
right to name a new attending physician.  Because he had seen Dr.
Gevaert by referral rather than as an attending physician, Bloom's
reasons for wanting a different physician are immaterial.   When a
worker's attending physician becomes unwilling or unable to
continue care, concerns over the possibility of doctor shopping
assume secondary importance and cannot override the statute's
primary purpose of allowing injured workers to choose their
attending physicians -- a purpose best served by allowing the
worker to freely substitute a new attending physician. 
IV.  CONCLUSION
          Because Bloom was improperly denied his right to choose
a new attending physician, we REVERSE the board's decision and
REMAND for further proceedings consistent with this opinion.


                            FOOTNOTES


Footnote 1:

     Waddell signs derive from a study done by Dr. Waddell, a
Scottish physician who examined the relationship between patients'
subjective complaints and objective findings.  See Pierce v.
Louisiana Maintenance Serv., Inc., 668 So. 2d 1232, 1236 n.1 (La.
App. 1996). The presence of positive "Waddell signs" may be
"indicative of nonorganic pain or symptom magnification."  Id. 


Footnote 2:

     See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).


Footnote 3:

     Bockness v. Brown Jug, Inc., 980 P.2d 462, 465 (Alaska 1999)
(quoting Grove v. Alaska Constr. and Erectors, 948 P.2d 454, 456
(Alaska 1997)).


Footnote 4:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 5:

     AS 23.30.095(a) provides, in pertinent part:

          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.


Footnote 6:

     See id.; see generally Liberty Northwest Ins. Corp. v.
Vasquez, 938 P.2d 237, 238-39 (Or. App. 1997) (holding "that the
specific purpose of the [Oregon workers' compensation statute's
limit] on changing physicians was to prevent doctor shopping").


Footnote 7:

     See Clymer v. Wilton Adjustment Servs., AWCB Decision No. 95-
0068 (March 10, 1995) (Attending physician felt patient was not
good candidate for surgery, and did not want to undertake new
course of treatment recommended by another doctor.  The board held
that patient could substitute new doctor after attending physician
"refused to treat.").


Footnote 8:

     See Stempniak v. Pioneer Alaskan Fisheries, Inc., AWCB
Decision No. 95-0012 (Feb. 7, 1995) (holding that patient could
substitute doctor in Homer, where he lived, for his doctor in
Anchorage without this amounting to "change" in attending
physicians for purposes of AS 23.30.095).  

          The board recently promulgated a regulation, 8 Alaska
Administrative Code (AAC) 45.082 (1999), providing that if the
attending physician dies, moves the physician's practice 50 miles
or more from the employee, or refuses to treat the employee, the
employee may substitute a physician and it will not be considered
a change of attending physicians.  See 8 AAC 45.082(c)(4)(B). 
While this regulation does not apply to the case at hand because it
was promulgated after the board rendered the decision now under
review, it is persuasive to the degree that it embodies the board's
established policy of allowing employees to freely substitute
attending physicians in circumstances where it is clear that
employees are not engaged in doctor shopping, and where factors
outside of the employees' control have rendered it impossible for
them to receive care from their chosen physicians.


Footnote 9:

     Other states have adopted similar approaches.  See Baker v.
Davison Transp., 643 So. 2d 278, 282 (La. App. 1994) (holding that
employee was free to choose another doctor when he was not given
opportunity to treat with his first choice); Morgan v. New Orleans
Cold Storage, 603 So. 2d 190, 192 (La. App. 1992) (holding that
employee was free to select new doctor where doctor first chosen by
the employee "refused to treat him"); see also TEC v. Underwood,
802 S.W.2d 481, 484 (Ark. App. 1991) (overruled on other grounds by
Metro Temporaries v. Boyd, 863 S.W.2d 316 (Ark. 1993) (holding that
employee was permitted to change doctors without the Arkansas
Workers' Compensation Commission's approval when she moved to a new
town, even though the statute required approval for all changes).


Footnote 10:

     See AS 23.30.095(a).


Footnote 11:

     See Municipality of Anchorage v. Carter, 818 P.2d 661, 665
(Alaska 1991).


Footnote 12:

     See Clymer v. Wilton Adjustment Servs., AWCB Decision No. 95-
0068 (March 10, 1995); see also Paluck v. Wise Enters., AWCB
Decision No. 89-0341 (December 28, 1989); 8 AAC 45.082(c)(4)(B)
(1999).


Footnote 13:

     See AS 23.30.095(a).