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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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
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            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.