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Anchorage School District v. Hale (8/13/93), 857 P 2d 1186
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
ANCHORAGE SCHOOL DISTRICT, )
) Supreme Court No. S-5239
Petitioner, )
) Trial Court No.
v. ) 3AN-91-6659 Civil
)
PIER A. HALE, ) O P I N I O N
)
Respondent. ) [No. 3995 - August 13, 1993]
______________________________)
Petition for Review from the Superior
Court of the State of Alaska, Third Judicial
District, Anchorage, Milton Souter, Judge.
Appearances: James M. Bendell, Terry A.
Venneberg, Bendell & Venneberg, Anchorage,
for Petitioner. Debra Fitzgerald, Michael J.
Jensen, Chancy Croft Law Office, Anchorage,
for Respondent. Robert A. Royce, Assistant
Attorney General, Anchorage, Charles E. Cole,
Attorney General, Juneau, for Alaska Workers'
Compensation Board.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
MATTHEWS, Justice.
On September 26, 1988, Pier Hale suffered injuries to
her back and right shoulder while working as a teachers'
assistant for the Anchorage School District. She received
medical attention for these injuries at the Providence Hospital
Emergency Room on October 2nd. Three days later her doctor
recommended that she undergo daily therapy for these injuries for
two weeks. This therapy began on October 7, 1988, at Anchorage
Physical Therapists. Since daily therapy would exceed the number
of compensable treatments allowed under the Alaska Workers'
Compensation Board's (Board) continuing treatment guidelines, 8
Alaska Administrative Code (AAC) 45.082(f) (1992),1 Hale was
required to gain Board approval for the excess treatments if she
wanted her employer to pay for them. The Board can give such
approval only if the employee's doctor furnishes the employer
with a detailed treatment plan within fourteen days after
starting the treatments. AS 23.30.095(c).
On October 7, Physical Therapists prepared a treatment
plan, but failed to include the statutorily required information
regarding the "objectives, modalities, frequency of treatments,
and reasons for the frequency of treatments." AS 23.30.095(c).2
Physical Therapists did not prepare a full treatment plan until
November 1, 1988, after the statutory period for filing the plan
had expired. The School District issued a controversion notice
for Hale's physical therapy, arguing that it had not received the
treatment plan within the statutory period and thus was not
required to compensate Hale for continuing treatments in excess
of the regulation's frequency standards. The School District
subsequently paid for some but not all of Hale's treatments.
Hale filed an application for adjustment of claim with
the Board seeking payment for her treatments in excess of the
Board's frequency standards. The Board denied this request,
limiting Hale to compensation for the number of treatments
allowed under the Board's guidelines. The Board based its
decision solely upon Physical Therapists' failure to file a
timely, conforming treatment plan.
Hale appealed the Board's decision to the superior
court on the ground that the Board's standards and procedures for
compensation for continuing similar treatments are invalid. The
superior court held that 8 AAC 45.082(f) is invalid, reversed the
Board's decision, and remanded the case to the Board for further
consideration. The School District then filed this petition for
review.
CONSISTENCY BETWEEN REGULATION AND STATUTE
In 1988 the Alaska Legislature amended AS 23.30.095(c)
to address compensation for employees whose injuries require a
continuing course of similar treatments. Ch. 79, 14, SLA 1988.
Among other things, this amendment added the following sentence:
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.
AS 23.30.095(c). The amended provision also required the Board
to "adopt regulations establishing standards for frequency of
treatment." Id. The Board promulgated 8 AAC 45.082(f), which
sets forth a single standard for the maximum number of treatments
allowed without Board approval:
[P]ayment for a course of treatment for
the injury 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. Upon
request, and in accordance with AS
23.30.095(c), the board will, in its dis
cretion, approve payment for more frequent
treatments.
8 AAC 45.082(f). This single standard applies regardless of the
nature and degree of the employee's injury. Hale argues that
this conflicts with the mandate of the authorizing statute which
contemplates multiple standards.
To be within the administrative agency's grant of rule
making authority, a regulation must be "consistent with and
reasonably necessary to carry out the purpose of the authorizing
statute." Fairbanks N. Star Borough Sch. Dist. v. NEA-Alaska,
Inc., 817 P.2d 923, 925 (Alaska 1991). Further, a regulation
must be "reasonable and not arbitrary." Kelly v. Zamarello, 486
P.2d 906, 911 (Alaska 1971).3 We accord an administrative
regulation a presumption of validity; the party challenging the
regulation bears the burden of demonstrating its invalidity.
Alaska Int'l Indus. v. Musarra, 602 P.2d 1240, 1245 n.9 (Alaska
1979). We will not substitute our judgment for that of the
agency with respect to the efficacy of a regulation nor review
the "wisdom"of a particular regulation. Id.
The following is the statutory language germane to this
case with the clauses numbered for purposes of discussion:
When a claim is made for a course of
treatment requiring continuing and multiple
treatments of a similar nature, in addition
to the notice, [(1)] the physician or health
care provider shall furnish a written
treatment plan [(2)] if the course of
treatment will require more frequent
outpatient visits than the standard treatment
frequency [(3)] for the nature and degree of
the injury and the type of treatments. . . .
[(4)] The board shall adopt regulations
establishing standards for frequency of
treatment.
AS 23.30.095(c). The superior court read clause (3) to modify
clause (2), thus requiring the Board to formulate multiple treat
ment standards addressing the particular "nature and degree of
the injury and the type of treatments." Consequently, the
superior court held that the Board's regulation setting a single
standard for all injuries conflicts with the statute. Hale
contends that the superior court correctly construed AS
23.30.095(c). The Board argues that the superior court's reading
of the statute is strained. Instead, the Board contends that
clause (3) modifies clause (1) and, thus, only the "written
treatment plan" must consider "the nature and degree of the
injury and the type of treatments."
In interpreting a statute, this court's "approach
involves a 'sliding scale,' such that the plainer the language,
the more convincing must be evidence contrary to [the] plain
meaning." In re E.A.O., 816 P.2d 1352, 1357 n.8 (Alaska 1991).
Hale argues that her construction of the statute accords with the
plain meaning of the legislature's chosen language. Hale's point
is a forceful one. The phrase "the standard treatment frequency
for the nature and degree of injury and the type of treatments"
seems to assume multiple standards tailored to specific medical
needs. The prepositional phrase beginning with the word "for"
most logically refers to the immediately preceding term "the
standard treatment frequency." Under this reading, the statute
contemplates the application of "the" specific "standard
treatment frequency"-- one of many -- applicable to the worker's
injury. The implication of this reference to "the standard
treatment frequency" would seem to be that the Board is to
formulate many frequency standards from which "the" specific
standard may be chosen in each case.
Still, this is an implied meaning only. The
legislature may have contemplated different standards for
different injuries, but that is not the same thing as saying that
the legislature required the Board to promulgate different
standards for different injuries. The mandate to the Board is
found in the language following the number (4), supra: "The
board shall adopt regulations establishing the standards for
frequency of treatment." Does this language require different
standards for different injuries? Hale contends that it does
since the term "standards"is plural. This is not conclusive,
however, since the Board's regulation contains various standards
keyed not to the nature of the injury but the duration of
treatment: one standard for the first month, another for the
second month, and so on. The mandating language of the statute
does not speak to the issue of whether multiple standards keyed
to different kinds of injuries are required.
In the absence of clear legislative history to the
contrary, we would hold that the legislature implicitly required
the Board to promulgate multiple standards for different
injuries. We have rarely found dispositive legislative history.
However, it exists in this case.
The original house bill for the 1988 amendment to AS
23.30.059 contained a statutory frequency standard of not more
than twenty visits for the first sixty days following an injury,
regardless of the type of injury. The original bill provided:
Sec. 9. AS 23.30.095(c) is amended to
read:
(c) . . . A claim for a course of
treatment requiring continuing and multiple
treatments of a similar nature is not valid
unless the treatments are carried out under a
written treatment plan prescribed before the
commencement of treatment, completed and
signed by the attending physician, and mailed
to the employer within one week of the
beginning of treatment. The treatment plan
must include objectives, modalities, and
frequency of treatment. The initial
treatment plan may not include more than 20
visits in the first 60 days. If more than 20
visits are required in the first 60 days, or
more than four visits a month after the first
60 days, the physician shall document the
need for services in excess of the guidelines
in the written treatment plan.
H.B. 352, 15th Legis. 2d Sess., 9 (emphasis added).
The emphasized language was amended in the House
Judiciary Committee on April 25, 1988. The committee discussed
three proposals. The third proposal was accepted. In substance
it is identical to AS 23.30.095(c) as enacted. The discussion
conducted in the committee meeting made it clear that the
committee members believed that the amended language delegated
responsibility to the Board to set treatment standards and the
Board had authority to set the same standard that had previously
appeared in the bill. Representative Cotton asked:
So, basically we've just passed the buck
to the Work Comp Board to set up the
frequency standard rather than do it by
statute. We at one point saw in this bill 20
and 60. Now we're saying the board shall
establish standards for frequency of
treatment. They may say 20 and 60, but we're
just passing the ball to them. Is that we're
doing here?
CHAIRMAN: That would be the impact of
this amendment, yeah. . . .
Representative Navarre spoke, pointing out that the
Board would have discretion to set multiple standards:
The only reason that I would, I guess, feel a
little more comfortable with that [the amended
language] is that I think that different forms of
rehabilitation have different frequencies and this
would allow them the discretion, since they deal
with all the time, to come up with some standards
that would be more appropriate, I think, than just
simply an arbitrary 20/60 number.
. . . .
UNIDENTIFIED VOICE: Well, there's other
proposals. They would prefer having the
20/60 written in the statute. We had a long
discussion on the committee about whether we
should write that in or not. This is kind of
a compromise to come up and say the board
shall adopt some regulations on these, and
put it in regulation rather than in the
statute.
Later on in the committee's deliberations,
Representative Taylor spoke in response to a comment that the
Board would have difficulty in coming up with regulations:
Well, I disagree. I -- unless there's
somebody here from the board (indiscernible)
maybe Jackie (indiscernible) comment on that,
but my thought on it is, the board's got 20
some years now of experience in working with
this, and the main reason that the board
wanted some definitive language in here was
that they had seen problems. And I think the
only way they could see a problem is if they
have seen a lot of cases from which they kind
of got a feel for how many weeks of treatment
it should take and all of a sudden the guy
comes in with very similar symptoms and
problems (indiscernible) just flies off. So
I think the board's in a very good position
and I'm hoping the board will come up with a
whole series of frequencies of treatment
standards for various, maybe, professions and
kinds of injuries, and so on, that will give
a flexible standard that they can change by
regulation frequently if they need to as
opposed to a binding (indiscernible) set in
statute. I think it's more workable,
although it requires the board
(indiscernible) kind of tough decision.
In summary, it seems that while some of the committee
members hoped that the Board would come up with multiple
standards for various injuries, they left the decision as to
whether to promulgate single or multiple standards to the
discretion of the Board. We conclude, therefore, that the single
standard regulation is not inconsistent with the statute.
The superior court's decision that the Board's
continuing treatment standards conflict with AS 23.30.095(c) is
REVERSED and this case is REMANDED to the superior court for
further proceedings.
_______________________________
1 If an injury . . . requires continuing and
multiple treatments of a similar nature,
. . . payment for a course of treatment for
the injury may not exceed more than three
treatments per week for the first month
. . . . Upon request, and in accordance with
AS 23.30.095(c), the board will, in its
discretion, approve payment for more frequent
treatments.
8 AAC 45.082(f) (emphasis added).
2 On appeal to the superior court, Hale argued that the
treatment plan Physical Therapists submitted satisfied the
applicable statutory requirements. The superior court, however,
did not reach this issue since it invalidated the regulation.
3 The validity of an administrative regulation is a question
of "statutory interpretation [for which this court will]
substitute [its] independent judgment for that of the agency."
NEA-Alaska, 817 P.2d at 925.
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