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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Municipality of Anchorage v. Adamson (5/3/2013) sp-6780

Municipality of Anchorage v. Adamson (5/3/2013) sp-6780

        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,  email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



MUNICIPALITY OF ANCHORAGE                       ) 

and NOVAPRO RISK SOLUTIONS,                     )       Supreme Court Nos. S-14621/14622 

Adjuster,                                       )       (Consolidated) 

                                                ) 

                   Petitioners,                 )       Alaska Workers' Compensation 

                                                )       Appeals Commission No. 11-017 

        v.                                      ) 

                                                )       O P I N I O N 

JOHN E. ADAMSON,                                ) 

                                                )       No. 6780 - May 3, 2013 

                  Respondent.                   ) 

                                                ) 

                                                ) 

CALLI E. OLSEN,                                 ) 

                                                )       Alaska Workers' Compensation 

                   Petitioner,                  )       Appeals Commission No. 12-001 

                                                ) 

        v.                                      ) 

                                                ) 

CITY & BOROUGH OF                               ) 

JUNEAU,                                         ) 

                                                ) 

                  Respondent.                   ) 

                                                ) 



                Petition   for   Review   in   File   No.   S-14621   from   the   Alaska 

                Workers' Compensation Appeals Commission, Rebecca C. 

                Pauli, Chair pro tem. Petition for Review in File No. S-14622 

                from      the    Alaska     Workers'       Compensation        Appeals 

                Commission, Laurence Keyes, Chair. 


----------------------- Page 2-----------------------

               Appearances:         Trena    L.   Heikes,   Assistant    Municipal 

               Attorney,     and   Denise   A.   Wheeler,    Municipal    Attorney, 

               Anchorage, for Petitioners Municipality of Anchorage and 

               NovaPro Risk Solutions.       Eric Croft, The Croft Law Office, 

               Anchorage,       for   Respondent       Adamson.        Joseph     A. 

               Kalamarides,      Kalamarides      &   Lambert,    Anchorage,      for 

               Petitioner Olsen.   Richard L. Wagg, Russell, Wagg, Gabbert 

               &    Budzinski,   P.C.,   Anchorage,   for   Respondent   City   and 

               Borough of Juneau. 



               Before:      Fabe,    Chief   Justice,  Carpeneti,    Winfree,    and 

               Stowers, Justices.    [Maassen, Justice, not participating.] 



               CARPENETI, Justice. 



I.      INTRODUCTION 



               What standard should apply to stays on appeal of future medical benefits 



when the Alaska Workers' Compensation Board has ordered an employer to pay for 



medical treatment or benefits?       In these two cases the Alaska Workers' Compensation 



Appeals   Commission   applied   different   standards   to   evaluate   motions   to   stay   future 



medical     benefits,  and  the  losing   party  in  each  case   petitioned   for  review   of  the 



Commission's stay decision. We granted review to decide what standard applies to stays 



of future medical benefits.     We hold that to stay future medical benefits, the employer 



must show the existence of the probability that the appeal will be decided adversely to 



the compensation recipient. 



II.     FACTS AND PROCEEDINGS 



        A.     Municipality of Anchorage v. Adamson 



               John Adamson worked as a firefighter for the Municipality of Anchorage 



for more than 20 years, retiring in 2011.         He was diagnosed with prostate cancer on 



August     7,  2008,  and   applied   for  workers'   compensation      benefits  for  the  cancer. 



Adamson's       application   was   based   on  AS   23.30.121,    which    establishes  a  special 



                                                -2-                                           6780
 


----------------------- Page 3-----------------------

presumption analysis in workers' compensation cases for firefighters who develop certain 



cancers; the statute became effective on August 19, 2008.                The Municipality raised a 



number of procedural defenses to Adamson's claim as well as a constitutional challenge 



to the firefighter presumption statute. 



                After a hearing the Alaska Workers' Compensation Board decided that 



Adamson's cancer was compensable and ordered the Municipality to pay past and future 



medical benefits, some past temporary total disability (TTD) benefits, and costs and 



attorney's     fees.  The    Board    did   not  consider    whether    Adamson      was   eligible   for 



permanent partial   impairment (PPI) at   that time because   Adamson had   neither been 

evaluated nor included a claim for it.1         One Board member dissented and would have 



found the claim not compensable. 



                The     Municipality      appealed     the  decision     to  the   Alaska     Workers' 



Compensation Appeals Commission and asked for a stay of the Board's decision.  The 



Municipality explained that "future periodic medical expenses [might] be incurred" while 



the   appeal   was   pending,   and   argued   that   these   benefits   should   be   stayed   under   the 



probability of success on the merits standard.  Adamson agreed to stay past benefits, but 



he did not want to stay future medical benefits, including a biannual examination.  He 



argued that he, not the Municipality, would likely prevail on the merits. 



                The    Commission       refused    to  stay  future   benefits.   It   found   that  the 



Municipality would suffer "irreparable harm" because it would have no way to recoup 



benefits paid if it prevailed on appeal.          And the Commission further decided that the 



Municipality had raised serious and substantial questions going to the merits of the case. 



But the Commission refused to stay future benefits because the Municipality had not 



        1       At oral argument before us, the Municipality said that Adamson has since 



received an award of PPI.         The Municipality did not say whether it had appealed this 

decision or asked the Commission for a stay of PPI awarded by the Board. 



                                                  -3-                                               6780 


----------------------- Page 4-----------------------

shown that "it [was] more likely than not that the [Municipality would] prevail on the 



merits."    The   Commission   cited   AS   23.30.125(c)   as   the   source   of   law   for   the   stay 



standard.    The Municipality petitioned for review of the denial of the stay. 



        B.      Olsen v. City & Borough of Juneau 



                Calli   Olsen   worked   as   a   wastewater   utility   operator   for   the   City   and 



Borough of Juneau (CBJ).            According to the Board's decision in her case, she filed 



reports of injury for two different injuries, one to her right knee in May 2009 and one to 



her lower back and right leg in September 2009. After a hearing the Board found that her 



knee injury, but not her back and leg injury, was compensable, and it ordered CBJ to pay 



for completion of a specific medical treatment (autologous chondrocyte implantation) as 

well as past medical care related to the right knee.2          The Board denied other claims she 



made and deferred ruling on PPI because she was not yet medically stable. 



                CBJ appealed to the Commission and asked for a stay of future medical 



benefits.  CBJ's motion for stay argued that it was probable that the merits of the appeal 



would be decided adversely to Olsen.  CBJ contended that because Olsen's claim was an 



aggravation claim and because the statutory standard had changed from "a substantial 



factor" to "the substantial cause," the Board had evaluated the claim using the incorrect 



standard.     Olsen   countered   that   the   Board   had   properly   evaluated   the   claim.   In   an 



affidavit filed with her opposition, Olsen stated that she had undergone the first part of 



        2       Autologous chondrocyte implantation is a two-part medical procedure in 



which a small amount of cartilage is first removed from the knee in an arthroscopic 

procedure.  The tissue is sent to a lab, which grows more of the patient's cells.  The lab 

initially freezes the tissue and does not begin the culturing process until after "all the 

paperwork for insurance has been done."  After growing a sufficient number of cells, the 

lab ships them back for implantation in the patient.               The second surgery is an open 

procedure in which the cells are placed under a membrane patch.  According to Olsen's 

surgeon, the procedure is generally successful and avoids the need for knee replacement 

surgery.     Olsen had completed the first part of the procedure before the Board hearing. 



                                                   -4-                                             6780
 


----------------------- Page 5-----------------------

the implantation procedure in June 2010 and had no funds to pay for the second surgery; 



she further stated that she was "not able to find suitable work in [her] field due to [her] 

injury."3 



                At the hearing on the stay, the Commission directed the parties to address 



which     regulatory    standard    for  a  stay  applied.    At    the  time   of  the   hearing,   the 



Commission's regulation about stays on appeal contained two standards depending on 



the type of benefit at issue. To stay "continuing future periodic compensation payments" 



the appellant was required to demonstrate irreparable damage and "the existence of the 



probability     that  the   merits   of  the   appeal    [would]    be   decided    adversely    to  the 



compensation recipient"; for "lump-sum payments" the appellant had to show irreparable 



damage and "the existence of serious and substantial questions going to the merits of the 

case."4 



                CBJ said it would suffer irreparable damage without the stay because it 



would have no way to recoup the payments if it were to win on appeal.  CBJ argued that 



the benefits at issue were not continuing future periodic compensation payments, so the 



serious   and   substantial   question   standard   should   apply.   Olsen   argued   that   CBJ   was 



required to show a probability of success on the merits; she told the Commission that no 



case had expressly decided whether future medical benefits were "continuing future 



periodic compensation payments." 



                The Commission granted the stay, using the serious and substantial question 



test to evaluate the request.   The Commission found that CBJ had no way of recovering 



payment for the medical treatment if CBJ won the appeal, and it decided that CBJ had 



        3       Olsen was still working for CBJ at the time of the first surgery, but the 



workers' compensation carrier did not pay for it.           Her employment with CBJ ended in 

July 2010. 



        4       8 Alaska Administrative Code (AAC) 57.100(d)-(e) (am. 3/24/12). 



                                                  -5-                                               6780 


----------------------- Page 6-----------------------

raised a serious and substantial question, specifically how "the statutory standard for 



compensability . . . requiring that employment be the substantial cause of the need for 



medical treatment . . . appl[ied] in the context of [Olsen's] case."          The Commission did 



not consider whether CBJ had shown the existence of the probability the merits of the 



appeal would be decided adversely to Olsen. 



                Olsen   then   moved   for   reconsideration,   arguing   that   the   probability   of 



success on the merits was the appropriate standard.  She further contended that medical 



benefits could not be stayed at all if the Commission interpreted "compensation" as 



excluding medical benefits. The Commission responded to Olsen's motion by explaining 



that it interpreted AS 23.30.125(c) as "restating the criterion in Olsen [Logging Co. v. 

Lawson5] for stays of ongoing periodic disability payments on which an employee relies 



as   a   salary   substitute." The   Commission   also   quoted   the   standard   for   lump   sum 



payments from Olsen Logging and said that whether Olsen's implantation procedure 



                would be paid incrementally or [as] a lump sum was not the 

                critical consideration . . . . The compensation is clearly not 

                ongoing periodic disability payments on which Olsen would 

                rely as a salary substitute. . . . [T]he compensation, in terms 

                of the language in AS 23.30.125(c), is not continuing future 

                periodic compensation payments. 



Olsen petitioned for review of the stay decision. 



                We granted review of both petitions and consolidated the cases for oral 



argument and decision. 



III.    STANDARD OF REVIEW 



                We interpret statutes "according to reason, practicality, and common sense, 



considering      the  meaning    of  the  statute's   language,    its  legislative  history,  and   its 



        5       832 P.2d 174 (Alaska 1992). 



                                                  -6-                                              6780 


----------------------- Page 7-----------------------

purpose."6   When interpreting a statute, "we adopt 'the rule of law that is most persuasive 



in light of precedent, reason, and policy.' "7         We apply our independent judgment to 



questions of law that do not involve agency expertise.8             If the issue involves agency 



expertise or fundamental policy questions, we apply the reasonable basis standard of 

review and "defer to the agency if its interpretation is reasonable."9          But when the issue 



is one of "statutory interpretation requiring the application and analysis of various canons 

of statutory construction," as it is here, we apply our independent judgment.10 



IV.	    DISCUSSION 



        Future Periodic Compensation Payments Can Include Medical Benefits. 



                A.	     The Language Of AS 23.30.125(c) 



                These   two   petitions   require   us   to   construe   AS   23.30.125(c),   which   the 



legislature    repealed   and   reenacted    in  2005   as  part  of  the  legislation   creating   the 



        6       Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp. , 189 P.3d 1032, 



1036 (Alaska 2008) (citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)). 



        7       Lewis-Walunga v. Municipality of Anchorage , 249 P.3d 1063, 1067 (Alaska 



2011) (quoting L.D.G., Inc. v. Brown , 211 P.3d 1110, 1133 (Alaska 2009)). 



        8       Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d 1078, 1082 



(Alaska 2011) (quoting Matanuska-Susitna Borough v. Hammond , 726 P.2d 166, 175 

(Alaska 1986)). 



        9       DeNuptiis     v.  Unocal    Corp. ,  63  P.3d   272,   277   (Alaska   2003)    (citing 



O'Callaghan v. Rue, 996 P.2d 88, 94 (Alaska 2000); Lakosh v. Alaska Dep't of Envtl. 

Conservation, 49 P.3d 1111 (Alaska 2002)). 



        10      Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903-04 



(Alaska 1987); see also Alaska Pub. Offices Comm'n v. Stevens, 205 P.3d 321, 324 

(Alaska 2009) ("When reviewing an agency decision involving statutory interpretation 

and determination of legislative intent, we apply the substitution of judgment standard."). 



                                                 -7-	                                           6780
 


----------------------- Page 8-----------------------

Commission.11      The statute currently provides, in pertinent part: 



                The payment of the amounts required by an award may not be 

                stayed pending a final decision in the proceeding unless, upon 

                application for a stay, the commission, on hearing, after not 

                less than three days' notice to the parties in interest, allows 

                the stay of payment, in whole or in part, where the party filing 

                the application would otherwise suffer irreparable damage. 

                Continuing future periodic compensation payments may not 

                be stayed without a showing by the appellant of irreparable 

                damage and the existence of the probability of the merits of 

                the   appeal   being   decided   adversely   to   the   recipient   of   the 

                compensation        payments.     The     order   of  the  commission 

                allowing a stay must contain a specific finding, based upon 

                evidence      submitted    to  the  commission      and   identified   by 

                reference   to   the   evidence,   that   irreparable   damage   would 

                result   to   the   party   applying   for   a   stay   and   specifying   the 

                nature of the damage. 



                Among the changes the legislature made to AS 23.30.125(c) in 2005 was 



the addition of the second sentence in the text quoted above: "Continuing future periodic 



compensation   payments   may   not   be   stayed   without   a   showing   by   the   appellant   of 



irreparable damage and the existence of the probability of the merits of the appeal being 

decided adversely to the recipient of the compensation payments."12                   This sentence is 



        11      Ch. 10,  40, FSSLA 2005. 



        12      Former AS 23.30.125(c) (1990) provided: 



                The payment of the amounts required by an award may not be 

                stayed pending final decision in the proceeding unless upon 

                application     for   an  interlocutory     injunction    the  court   on 

                hearing, after not less than three days' notice to the parties in 

                interest and the board, allows the stay of payment, in whole 

                on in part, where irreparable damage would otherwise ensue 

                to the employer.  The order of the court allowing a stay shall 

                contain a specific finding, based upon evidence submitted to 

                                                                                         (continued...) 



                                                   -8-                                             6780
 


----------------------- Page 9-----------------------

similar,   but   not   identical,   to   language   in  Olsen   Logging   Co.   v.   Lawson,   where   we 



interpreted former AS 23.30.125(c) as incorporating the balance of hardships standard 

used   in   preliminary    injunctions.13      In  Olsen   Logging   we   looked   at   the   balance   of 



hardships to employers and employees in stays of disability benefits and decided that the 



balance of hardships "would almost invariably result in application of the 'probability 



of success on the merits' standard when the award consists of ongoing periodic disability 

payments on which an employee relies as a salary substitute."14                 In contrast, we decided 



that "the lesser 'serious and substantial questions' standard [should] be used where a 



lump sum award is sought to be stayed" because an  employer will often have limited or 



nonexistent means to recover the money paid if it wins the appeal and the employee is 

"usually   not   dependent   on   lump   sum   awards   for   his   daily   living   expenses."15       Our 



decision in Olsen Logging established a two-tier system for evaluating stays of disability 



benefits in workers' compensation cases, but it did not consider medical benefits. Before 



the legislature amended AS 23.30.125, we had not been presented with the question of 



which standard applied to stays of awards of future medical benefits. 



         12	     (...continued) 



                 the court   and   identified by reference to   it, that irreparable 

                 damage   would   result   to   the   employer,   and   specifying   the 

                 nature of the damage. 



         13      832 P.2d 174, 175-76 (Alaska 1992). 



         14      Id. at 176. 



         15	     Id. 



                                                     -9-	                                              6780
 


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                B.      The Commission's Interpretation Of AS 23.30.125(c) 



                In   the   time   since   AS   23.30.125(c)   was   amended,   the   Commission   has 

interpreted the statute in a number of ways.16        For purposes of evaluating stays of future 



medical benefits, the Commission has at times engaged in a detailed weighing of the 



balance of hardships to the parties, looking at a number of factors before deciding the 

issue.17  In Adamson's case, there was apparently no dispute before the Commission that 



the probability of success on the merits was the applicable standard.  In Olsen's case, the 



Commission interpreted the legislature's addition of the sentence about continuing future 



periodic compensation payments as signaling a legislative intent to apply the probability 



of success on the merits only to ongoing disability payments that the employee used as 



a salary substitute.     In arriving at this decision, the Commission did not examine the 



meaning of the words contained in the phrase "continuing future periodic compensation 



payments" and did not discuss the legislative history or purpose of the statute.  Instead, 



it interpreted the phrase "as restating the criterion in Olsen [Logging ] for stays of ongoing 



periodic    disability  payments     on  which    an  employee     relies   as   a  salary  substitute." 



Because the   Commission did not   consider   medical   benefits to   be "ongoing   periodic 



disability payments on which Olsen would rely as a salary substitute," it decided that the 



medical benefits, "in terms of the language in AS 23.30.125(c), [were] not continuing 



future periodic compensation payments." 



        16      In addition to the decisions it has made about stays, it has promulgated a 



regulation about stays, which it has modified several times.           The most recent change in 

the regulation became effective in March 2012, after these cases were decided.  8 AAC 

57.100, am. 3/24/12, Register 201. 



        17      See Anchorage Sch. Dist. v. Delkettie, AWCAC Dec. No. 022 at 9 (Oct. 19, 



2006) (refusing to stay payment of future medication copayments because employer 

could recover money); S&W Radiator Shop v. Flynn, AWCAC Decision No. 005 at 5 

(Feb.   24,   2006)   (evaluating   balance    of   hardships   using   factors   including   delay   in 

treatment and ability of employer to recover payment). 



                                                 -10-                                           6780
 


----------------------- Page 11-----------------------

                C.       "Continuing Future Periodic Compensation Payments" 



                Central to resolution of these   cases, then,   is the meaning of the   phrase 

"continuing future periodic compensation payments."18  "We interpret statutes according 



to   reason,   practicality,   and   common   sense,   considering   the   meaning   of   the   statute's 

language, its legislative history, and its purpose."19  Words in statutes are construed using 



their common meanings unless they have "acquired a peculiar meaning, by virtue of 

statutory definition or judicial construction."20 



                Of   the   words   in   the   phrase   "continuing   future   periodic   compensation 

payments," only "compensation" is defined in the workers' compensation act.21  We have 



also interpreted the term "compensation" to include medical benefits in most instances; 



as   we   stated   in Childs     v.  Copper    Valley    Electric   Ass'n,   we   "generally     construe 



'compensation' to include medical benefits, [but] we occasionally will reach the opposite 

result if statutory language strongly suggests a narrower reading."22                The Commission 



acknowledged   that   medical   benefits   are   compensation   when   it   said   that   the   Board 



"awarded Olsen compensation in the form of future medical benefits." No party disputes 



that the medical benefits awarded in these cases are "compensation" for purposes of a 



        18      The     parties  raised   and   discussed    the  additional    issue   of  whether    the 



legislature   intended   to   alter   the   two-tier   analysis   in  Olsen   Logging,   particularly   the 

standard for stays of lump-sum awards, through the addition of the sentence about stays 

of continuing future periodic compensation payments.  Because Olsen Logging did not 

address medical benefits, we do not need to decide this issue. 



        19      Pestrikoff v. Hoff , 278 P.3d 281, 283 (Alaska 2012) (citing In re Estate of 



Maldonado , 117 P.3d 720, 725 (Alaska 2005)). 



        20      State v. Jeffery, 170 P.3d 226, 232 (Alaska 2007) (quoting Div. of Elections 



v. Johnstone , 669 P.2d 537, 539 (Alaska 1983)) (internal quotation marks omitted). 



        21      AS 23.30.395(12). 



        22       860 P.2d 1184, 1192 (Alaska 1993) (citations omitted). 



                                                   -11-                                               6780 


----------------------- Page 12-----------------------

stay, and nothing in the statutory language suggests that the legislature intended to treat 

medical   benefits   differently   from   other   compensation   in   this   statutory   subsection.23 



Subsection .125(c) permits the Commission to set aside a "compensation order," which 

is a Board order deciding a workers' compensation claim.24              Because a claim can include 



a request for medical benefits, a compensation order can also include medical benefits, 



as these two cases illustrate.  As a result "compensation" in "continuing future periodic 

compensation payments" includes medical benefits.25 



                The parties here dispute the meaning of "continuing" and "periodic."  The 



Municipality   argues   that   medical   benefits   do   not   fit   the   definition   of   "continuing." 



Adamson responds that payments for his examinations are unquestionably continuing. 



The Municipality's argument that medical benefits are not continuing is based on the idea 



that each separate doctor visit or procedure is a discrete event that renews the employer's 



obligation; it does not consider a course of medical treatment that may extend over a long 



period of time and encompass a number of visits. 



                "Continue" has several meanings: 



                 1.   To   go   on  with   a  particular   action   or  in  a  particular 

                condition:  PERSIST .   2.     To exist   over   an extended   period: 



        23      The legislature used the phrase "continuing future periodic compensation 



payments"   rather   than   "ongoing   periodic   disability   payments,"   as   we   did   in     Olsen 

Logging Co. v. Lawson , 832 P.2d 174, 176 (Alaska 1992). 



        24      AS 23.30.110(e). 



        25      See Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121, 1123 (Alaska 1995) 



("There is a presumption that the same words used twice in the same act have the same 

meaning."      (quoting Kulawik   v.   ERA   Jet   Alaska ,   820   P.2d   627,   634   (Alaska   1991)) 

(internal quotation marks omitted)). 

                                                   -12-                                               6780 


----------------------- Page 13-----------------------

                LAST .  3.  To remain in the same state, capacity, or place.  4. 

                To go on after an interruption: RESUME .[26] 



Black's Law Dictionary has two definitions of "continuing," both of which are similar 



to general usage: "1. Uninterrupted; persisting .   2. Not requiring 

renewal; enduring  ."27  The medical 



benefits at issue in both of these cases fall within a definition of "continuing."                  The 



treatment the Board ordered for Olsen would have completed (or gone on with) the first 



procedure.     Adamson's   medical   care   will   persist   over   an   extended   period   of   time. 



Medical benefits generally meet the definition of "continuing":                An employer may be 



required to provide medical benefits over an extended period of time to ensure that the 

worker completes the process of recovery.28 



                We   turn   now   to   the   meaning   of   "periodic   payment."   The   Municipality 



contends that the definition of the term "periodic payment" shows that medical benefits 



are not "periodic compensation payments."            "Periodic payment" is defined as "[o]ne of 



a series of payments made over time instead of a one-time payment for the full amount"; 



it is contrasted with "lump-sum payment," which is defined as "[a] payment of a large 

amount   all   at   once,   as   opposed   to   a   series   of   smaller   payments   over   time."29 The 



Municipality asserts that "medical benefits are paid as a 'one time payment for the full 



amount' due and are incurred on an intermittent, irregular basis."              But this depends on 



how one views medical benefits. Each doctor visit or procedure may be paid in full when 



the bill is presented, but an employer is responsible, at least initially, for the full course 



        26      WEBSTER 'S II NEW  COLLEGE DICTIONARY 250 (3d ed. 2005).
 



        27      BLACK 'S LAW DICTIONARY 363-64 (9th ed. 2009).
 



        28      See AS 23.30.095(a) (requiring employer to provide medical treatment for
 



up to two years depending on nature of injury). 



        29      BLACK 'S LAW DICTIONARY 1244 (9th ed. 2009). 



                                                  -13-                                              6780 


----------------------- Page 14-----------------------

of medical treatment the worker needs to recover from injury.30              Payment for the course 



of treatment is not usually made as a lump sum, particularly when a worker must see 



specialists on referral to receive appropriate treatment. 



                The parties here focus their arguments on the meaning of "periodic."  CBJ 



and the Municipality rely on a definition of "periodic" that is limited to regular intervals. 



Adamson counters that "periodic" can also mean "recurring intermittently."  "Periodic" 



has several dictionary meanings, two of which are relevant here: "Occurring or appearing 



at regular intervals" and "[t]aking place now and then: INTERMITTENT  ."31      Because      either   meaning    is   plausible,   we   conclude   that   the   statute   is 



ambiguous. 



                D.      Legislative Purpose And History 



                When   statutory   language   is   ambiguous,   we   look   to   the   purpose   of   the 

legislation and the legislative history for indications of legislative intent.32            Legislative 



intent    does   not  clarify   how   the   phrase   "continuing     future   periodic   compensation 



payments"       should    be   interpreted.     The     legislature   intended     that   the  workers' 



compensation   statute   "be   interpreted   so   as   to   ensure   the   quick,   efficient,   fair,   and 



predictable delivery of indemnity and medical benefits to injured workers at a reasonable 

cost to the employers who are subject to [it]."33        Interpreting "continuing future periodic 



compensation payments" to include future medical benefits is consistent with ensuring 



        30      AS 23.30.095(a).
 



        31      WEBSTER 'S II NEW  COLLEGE DICTIONARY 838 (3d ed. 2005).
 



        32      Alyeska Pipeline Serv. Co. v. DeShong , 77 P.3d 1227, 1234 (Alaska 2003).
 



        33      AS 23.30.001(1).
 



                                                  -14-                                               6780 


----------------------- Page 15-----------------------

the quick and predictable delivery of benefits to injured workers, but it could be costly 

to employers because of their limited means to recover payments if they win on appeal.34 



                There is very little legislative history specifically about the stay standard. 



As Adamson points out, the amendment to AS 23.30.125(c) was part of a package of 



amendments related to creation of the Commission.               The only versions of the bill that 



amended      AS   23.30.125(c)   were     those   versions    that   included  establishment     of   the 

Commission.35      The governor, who sponsored the legislation, indicated in his transmittal 



letter that one reason he proposed the bill was to "address medical costs" in the workers' 

compensation system by reviewing the system and proposing solutions.36                  But the letter 



did not suggest a desire to change the process for appealing a Board decision beyond 

creating a commission whose decisions would be precedential and speedy.37 



                The parties only mention one specific reference to the stay standard in the 



legislative history: The Department of Law, comparing versions of the bill for the Free 



Conference       Committee,      said   the  amendment       to  AS    23.30.125     "[p]ermits    [the] 



commission to issue a stay, but continuing future payments may not be stayed without 



a showing by the appellant of irreparable harm and the existence of the probability of the 



merits    being   decided    adversely    to  the   compensation      recipient.   (current   case  law 



standard)."     This   small   piece   of   legislative   history   does   not   illuminate   whether   the 



        34      See Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066-67 (Alaska 



1991) (holding that AS 23.30.155(j) is exclusive means to recover overpayments of 

compensation). 



        35      Compare S.B. 130, C.S.S.B. 130(FIN) am, C.C.S. S.B. 130, C.C.S. S.B. 130 



(fld H), F.C.C.S. S.B. 130, and F.C.C.S. S.B. 130 (efd pfld H), with C.S.S.B. 130(L&C), 

C.S.S.B.  130(JUD), C.S.S.B. 130(FIN), H.C.S. C.S.S.B. 130(L&C),                     H.C.S. C.S.S.B. 

130(JUD) and H.C.S. C.S.S.B. 130(JUD) am H. 



        36      2005 Senate Journal 466. 



        37      Id. at 465-68. 



                                                 -15-                                               6780 


----------------------- Page 16-----------------------

legislature   intended   "continuing   future   periodic   compensation   payments"   to   include 



future   medical   benefits   because   there   was   no   case   law   standard   for   future   medical 



benefits. 



                E.       Precedent, Reason, And Policy 



                Because   AS   23.30.125(c)   is   ambiguous   and   because   of   the   paucity   of 



legislative history, we construe "continuing future periodic compensation payments" "so 



as to adopt [the] rule of law that is most persuasive in light of precedent, reason, and 

policy."38   Although we agree with the Municipality that "pertinent court decisions may 



be consulted in the interpretation of statutes which restate decisional law," we disagree 



with the Municipality's analysis of how the legislation should be interpreted in light of 



our prior decisions.  The Municipality, like the Commission, interprets the legislature's 



use of language similar to Olsen Logging as limiting the probability of success on the 



merits standard to stays of disability benefits on which the employee relies as a salary 



substitute.  But the legislature did not restrict this standard to disability payments when 



it rewrote AS 23.30.125(c). 



                Our decision in Childs v. Copper Valley Electric Ass'n supports interpreting 



"continuing future periodic compensation payments" to include future medical benefits 

that the Board has awarded.39        In Childs we construed a part of the statute that refers to 



"installment[s] of compensation" as including medical benefits.40                  We held there that 



"compensation" in AS 23.30.155(e) included medical benefits; at the time subsection 



.155(e) provided that "[i]f any installment of compensation payable without an award is 



        38      State v. Pub. Safety Emps. Ass'n, 93 P.3d 409, 416 (Alaska 2004) (quoting 



Pub. Safety Emps. Ass'n v. State , 799 P.2d 315, 319 (Alaska 1990)) (internal quotation 

marks omitted). 



        39       860 P.2d 1184 (Alaska 1993). 



        40      Id. at 1192. 



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----------------------- Page 17-----------------------

not paid within seven days after it becomes due, . . . there shall be added to the unpaid 

installment an amount equal to 20 percent of it."41                We rejected the view from states 



"exclud[ing] medical benefits from 'compensation,' on the grounds that medical benefits 

are   not   typically   paid   by   means   of   installments."42   "Installment"   is   defined   as   "[a] 



periodic partial payment of a debt."43           In addition, AS 23.30.155(a) also uses the word 



"periodic," providing that "[c]ompensation under this chapter shall be paid periodically, 



promptly,   and   directly   to   the   person   entitled   to   it,   without   an   award,   except   where 



liability to pay compensation is controverted by the employer." 



                 Other states consider future medical compensation payments to be like other 



ongoing compensation payments.              In construing its workers' compensation statute, the 



Maine   Supreme   Judicial   Court   held   that   an   employer   was   required   to   pay   ongoing 



medical   benefits   while   an   appeal   was   pending   even   if   the   employer   had   no   way   to 

recover the benefits if it were successful on appeal.44              The Maryland Court of Special 



Appeals, in a case concerning payment of past medical benefits, indicated that ongoing 



medical   benefits   should   be   treated   like   other   ongoing   benefits:       The   court   said   the 



purpose of the anti-stay provision of its workers' compensation statute was "to prevent 



a   cessation   of   the   weekly   compensation   benefits   and   ongoing   medical   care   that   are 

necessary for a claimant's survival and well-being while an appeal is pending."45 



        41       Id.  The legislature amended subsection (e) in 1988 to increase the penalty 



award to 25 percent.  Id. at 1192 n.8. 



        42       Id. at 1192 (citing Int'l Paper Co. v. Kelley , 562 So. 2d 1298, 1302 (Miss. 



1990)). 



        43       BLACK 'S LAW DICTIONARY 868 (9th ed. 2009). 



        44       Ryerson v. Pratt & Whitney Aircraft , 495 A.2d 808, 811-12 (Me. 1985). 



        45       Univ. of Maryland Med. Sys. Corp. v. Erie Ins. Exch., 597 A.2d 1036, 1041 



(Md. App. 1991). 

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----------------------- Page 18-----------------------

               There are  policy arguments on both sides of this issue.  Medical treatments 



can be expensive, and the Municipality points to a report by the Division of Workers' 



Compensation showing that medical costs account for about three-fourths of workers' 

compensation costs in Alaska.46      Because the probability of success on the merits is a 



high threshold, and because the employer cannot recover overpaid benefits in all cases, 



there   are  reasons   to  be   cautious   about   construing   "continuing    future  periodic 



compensation payments" to include all medical benefits. On the other hand there are also 



good reasons to treat medical care, especially medical care sought in the first two years 

following an injury,47 as similar to "periodic disability payments on which an employee 



relies as a salary substitute."48 Both Adamson and Olsen discuss the necessity of medical 



care to an injured worker, and Olsen's case illustrates the difficulty an employee can face 

if she has no other health insurance and cannot otherwise pay for a needed procedure.49 



In addition, when an employee cannot get medical treatment, she can face a prolonged 



period of unemployment or underemployment, and her condition may worsen while she 



       46      It is not clear from the report whether the medical costs include evaluations 



like second independent medical evaluations as well as direct care for injured workers. 



       47      See AS 23.30.095(a) (requiring the employer to provide medical care as 



needed for recovery for time period not to exceed two years). 



       48      Olsen Logging Co. v. Lawson, 832 P.2d 174, 176 (Alaska 1992). 



       49      The    difficulty  she   faces  in  completing     treatment   undermines     the 



Municipality's     assertion  that  injured  workers   still  have  access  to  reasonable  and 

necessary medical treatment, even when their Board-ordered treatment has been stayed. 

Olsen's doctor testified that the lab does not begin to grow cells for future implantation 

until "all the paperwork for insurance is done." 



                                             -18-                                         6780
 


----------------------- Page 19-----------------------

waits for the appeal.    Delaying treatment can also delay the date of medical stability,50 



which delays an assessment of any permanent impairment.51 



               In discussing the balance of hardships approach in Olsen Logging, we said 



that "[w]here the injury which will result from . . . the preliminary injunction is not 



inconsiderable and may not be adequately indemnified by a bond, a showing of probable 

success on the merits is required."52    In many cases involving medical care, that standard 



is met.  A bond may ensure payment of the cost of treatment at a later date, but an injured 



worker who has to delay treatment while an appeal is pending is not able to recover 



anything for continuing pain and may have a reduced income for a considerable period 



of time while waiting for medical care.   Moreover, when the Commission is considering 



a request to stay future medical benefits, the Board has already conducted a hearing, 



evaluated   the   evidence,   and   determined   compensability.      In   other   words,   when   an 



employer seeks a stay of future medical benefits, "the employer has just lost on the merits 

in a competent forum."53 



               Olsen Logging essentially set up a system in which the balance of hardships 



was determined in advance.  If the stay involved ongoing benefits that an injured worker 



would use as a salary substitute, then the balance of hardships tipped in favor of the 



injured worker; on the other hand, when the issue involved a lump sum, the balance of 



        50     See AS 23.30.395(27) (defining medical stability). 



        51     See   AS    23.30.185   (providing   that   TTD   cannot   be   paid  after   medical 



stability). 



        52     832 P.2d at 176 (quoting State v. United Cook Inlet Drift Ass'n, 815 P.2d 



378, 379 (Alaska 1991)). 



        53     See    8  ARTHUR     LARSON     &   LEX   K.  LARSON ,    LARSON 'S     WORKERS ' 



COMPENSATION LAW  130.08[4] (2012) (discussing legal standards for stays on appeal 

of workers' compensation benefits). 



                                               -19-                                           6780
 


----------------------- Page 20-----------------------

hardships favored the employer.  We recognize that medical benefits are different from 



disability payments in that they are not fixed - there is substantial variation in the type 



of treatment an employee seeks as well as the cost and effectiveness of treatment.  But 



they are more like disability payments that an employee relies on as a salary substitute 



than lump sums; like benefits an employee needs as a salary substitute, the hope of future 

medical treatment "is a meager substitute" for needed care.54 



V.      CONCLUSION 



                For   the  foregoing    reasons,   we   AFFIRM      the   Commission's      order   in 



Municipality   of   Anchorage   v.   Adamson .      We   VACATE   the   Commission's   order   in 



Olsen   v.   City   &   Borough   of   Juneau   and   REMAND   to   the   Commission   for   further 



proceedings consistent with this opinion. 



        54      Olsen Logging Co., 832 P.2d at 176. 



                                                -20-                                             6780 

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