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Crawford & Co. v. Baker-Withrow (7/18/2003) sp-5710
Crawford & Co. v. Baker-Withrow (7/18/2003) sp-5710
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CRAWFORD & COMPANY and )
NATIONAL UNION FIRE INS. ) Supreme Court No. S-10540
CO. OF PITTSBURGH, )
)
Appellant, ) Superior Court No.
) 4FA-01-114 CI
v. )
)
PENNY T.R. BAKER-WITHROW, ) O P I N I O N
)
Appellee. ) [No. 5710 - July 18, 2003]
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Ralph R. Beistline, Judge.
Appearances: Zane D. Wilson, Cook, Schuhmann
& Groseclose, Inc., Fairbanks, for Appellant.
James M. Hackett, Law Office of James M.
Hackett, Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
In 1990 Penny Baker-Withrow suffered an on-the-job
injury that left her with post-traumatic stress disorder. Nine
years later she began receiving Eye Movement Desensitization and
Reprocessing therapy. Her former employer refused her claim for
payment on the grounds that her medical provider failed to submit
a timely treatment plan. We conclude that her employer is
responsible for all treatments rendered after a treatment plan
was submitted, plus any treatments rendered not more than
fourteen days before submission of the treatment plan.
I.
While working for Crawford & Company, Penny Baker-
Withrow was injured when an irate client hit her in the face with
a coffee cup. From 1992 until 2000, Baker-Withrow was under the
care of Dr. Robert Schultz for post-traumatic stress disorder
(PTSD).
In June 1999 Dr. Schultz referred Baker-Withrow to Tima
Priess for psychotherapy and Eye Movement Desensitization and
Reprocessing (EMDR) therapy. Baker-Withrow saw Priess for an
initial evaluation on August 8, 1999, and began treatment on
September 21, 1999. She received six weekly EMDR treatments
between September and early December 1999.1
In February 2000 Crawford & Co. declined to pay for
these treatments; it claimed that a timely treatment plan had not
been submitted as required by AS 23.30.095(c) and that the
treatments violated the Alaska Workers Compensation Boards
frequency standards. The dispute was brought before the board.
The board found that Priess failed to timely submit a
treatment plan. However, the board noted that the record suggests
that as soon as Priess learned the process and associated
requirements, she complied. In the interest of justice the board
found that Priesss failure to timely provide a written treatment
plan should be excused, citing the authority of 8 Alaska
Administrative Code (AAC) 45.195. The board found that EMDR is
becoming an accepted form of treatment and it can be effective
and the employee is making progress that had not been achieved
with the former treatments.
The board then awarded payment of past EMDR treatments
plus an additional 20 treatments at a frequency to be approved by
[Baker-Withrows physician]. The superior court affirmed this
award. Crawford & Co. appeals, arguing that the board cannot
approve treatments in excess of the frequency standards when the
medical provider fails to submit a timely treatment plan.
II.
The statutory section concerning treatment plans is AS
23.30.095(c).2 The first sentence of subsection .095(c) requires
a health care provider who furnishes continuing or multiple
treatments of a similar nature to give notice of such treatment
to the employer and the board within fourteen days following
treatment. If notice is not given, the employees claim for the
treatments is not valid and enforceable against the employer.
But, according to the second sentence, the board may excuse the
failure to furnish notice in the interest of justice. The third
sentence of subsection .095(c) introduces the concept of a
treatment plan. In addition to the notice of treatment called
for by the first sentence, the third sentence requires that the
health care provider furnish a written treatment plan if the
course of treatment will require more frequent outpatient visits
than the standard treatment frequency for the nature and degree
of the injury and the type of treatments. According to the
fourth sentence, the treatment plan must be furnished within 14
days after treatment begins to the employee and the employer.
The fifth sentence describes the contents of a treatment plan.
The sixth sentence describes the consequences of not furnishing a
treatment plan. In such case, neither the employer nor the
employee may be required to pay for treatments that exceed the
frequency standard. The seventh, and last, sentence of
subsection (c) provides that the board shall adopt regulations
establishing standards for frequency of treatment.3
Based on the structure of the statute it seems apparent
that while notice of treatment within fourteen days following
treatment is waivable in the interest of justice, because the
second sentence of the subsection so provides, failure to furnish
a treatment plan within the same period is not waivable because
there is no similar grant of authority to waive the furnishing of
a treatment plan. We so concluded in Grove v. Alaska
Construction & Erectors.4
In excusing Priesss failure to timely furnish a written
treatment plan the board relied on 8 AAC 45.195, which states
that [a] procedural requirement in this chapter may be waived or
modified by order of the board if manifest injustice to a party
would result from a strict application of the regulation. But
this regulation only authorizes the board to waive the
requirements of other regulations, not statutory requirements.5
As furnishing the plan within fourteen days is a statutory
requirement, the board had no authority to waive it.
What remains is a question concerning the consequences
of furnishing a treatment plan more than fourteen days after
treatment begins. Does the fact that a plan is submitted late
mean that all past and future treatments in excess of frequency
standards are barred or are only past treatments those occurring
more than fourteen days before the plan is furnished barred? We
believe that only past treatments should be barred, for the
following reasons.
First, construing the statute to bar only treatments
given before a plan is furnished is consistent with the evident
purposes of the statute. One purpose is to protect both
employers and employees from possibly unscrupulous medical
providers who provide needlessly frequent therapy sessions.6
Relatedly, another purpose of requiring that a plan be furnished
appears to be to give employers an opportunity to object to
overly frequent therapy sessions before a large bill accumulates.
These objectives are fully met by construing the bar on overly
frequent treatments to apply only to pre-plan treatments and they
are not undercut by permitting payment for treatments rendered
after a plan is furnished.
Further, it would be unduly harsh to ban all post-plan
treatments in excess of standards no matter how much the
treatments are needed merely because a treatment plan is provided
late. In addition, the statutory term course of treatment has no
fixed meaning that could support a bar on all future treatments.7
If treatments were to stop for a time and then begin again,
whether recommencement marked the continuation of an old course
of treatment or the beginning of a new one would be debatable and
difficult to resolve. Instead of adopting a construction that
invites controversies of this nature and leads to harsh results
not justified by the purposes of the statute, we conclude that
late submission of a treatment plan should bar only past overly
frequent treatments.
In the present case the board found that Priess failed
to timely submit a treatment plan, but the board implied that
when Priess learned of the need for a treatment plan she
furnished one. But the board did not specify the date on which a
treatment plan, or its equivalent in terms of information, was
furnished. On remand, this date should be determined and those
therapeutic sessions in excess of the frequency standards that
took place more than fourteen days before this date should be
excluded. Sessions after this date were properly ruled to be the
responsibility of the employer.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED for
further proceedings.
_______________________________
1 Through December 28, 2000, when the Alaska Workers
Compensation Board issued its decision in this case, Baker-
Withrow had at least ten more EMDR treatments. She may have had
more; the record is unclear on this point.
2 AS 23.30.095(c) provides:
A claim for medical or surgical
treatment, or treatment requiring continuing
and multiple treatments of a similar nature
is not valid and enforceable against the
employer unless, within 14 days following
treatment, the physician or health care
provider giving the treatment or the employee
receiving it furnishes to the employer and
the board notice of the injury and treatment,
preferably on a form prescribed by the board.
The board shall, however, excuse the failure
to furnish notice within 14 days when it
finds it to be in the interest of justice to
do so, and it may, upon application by a
party in interest, make an award for the
reasonable value of the medical or surgical
treatment so obtained by the employee. When a
claim is made for a course of treatment
requiring continuing and multiple treatments
of a similar nature, in addition to the
notice, the physician or health care provider
shall furnish a written treatment plan if the
course of treatment will require more
frequent outpatient visits than the standard
treatment frequency for the nature and degree
of the injury and the type of treatments. The
treatment plan shall be furnished to the
employee and the employer within 14 days
after treatment begins. The treatment plan
must include objectives, modalities,
frequency of treatments, and reasons for the
frequency of treatments. If the treatment
plan is not furnished as required under this
subsection, neither the employer nor the
employee may be required to pay for
treatments that exceed the frequency
standard. The board shall adopt regulations
establishing standards for frequency of
treatment.
3 The board has frequency standards. Although the third
sentence of AS 23.30.095(c) implies that frequency standards will
differ according to the nature and degree of the injury and the
type of treatment, the boards frequency regulations apply to all
injuries requiring continuing and multiple treatments no matter
what the nature of the injury or the type of treatment. The
standards provide that treatments may not exceed more than three
treatments per week for the first month, two treatments per week
for the second and third months, one treatment per week for the
fourth and fifth months, and one treatment per month for the
sixth through twelfth months. 8 AAC 45.082(f). The regulation
does not specify whether the enumerated months are months
following the injury or months following the commencement of
treatment. If the first month refers to the first month after
the particular treatment begins it may be that few, if any, of
Baker-Withrows treatments furnished before Crawford & Co.s
February 2000 objection actually exceed the frequency standards.
But the parties do not discuss this ambiguity and we make no
ruling concerning it.
4 948 P.2d 454, 457 (Alaska 1997) (The Board cannot allow
more frequent treatment without the submission of a treatment
plan . . . .).
5 A procedural requirement in this chapter may be waived
or modified . . . . 8 AAC 45.195; see also Cole v. Ketchikan
Pulp Co., 850 P.2d 642, 646-47 (Alaska 1993).
6 See Chiropractors for Justice v. State, 895 P.2d 962,
966 (Alaska 1995).
7 See AS 23.30.095.
