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Chiropractors for Justice v. Worker's Comp. Bd. (5/12/95), 895 P 2d 962
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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, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
CHIROPRACTORS FOR JUSTICE, )
DR. ADRIAN BARBER, DR. EDWARD ) Supreme Court No. S-5648
BARRINGTON, DR. TOM )
GUNDELFINGER, DR. LOU ANN ) Superior Court No.
HEDDEN, DR. TREVOR IRELAND, ) 3AN-90-2198 CI
DR. KENNETH KETZ, DR. EUGENE )
KREMER, DR. CHARLES )
KRICHBAUM, DR. BOBBY LUCAS, ) O P I N I O N
DR. DAVID MULLHOLLAND, )
DR. LELAND OLKJER, and ) [No. 4198 - May 12, 1995]
DR. MYRON SCHWEIGERT, )
)
Appellants, )
)
v. )
)
STATE OF ALASKA and the )
WORKERS' COMPENSATION BOARD )
OF THE STATE OF ALASKA, )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Peter A. Michalski,
Judge.
Appearances: Paul L. Davis, Law Offices
of Paul L. Davis and Associates, Anchorage,
for Appellants. Robert A. Royce, Assistant
Attorney General, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for
Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Members of an organization called Chiropractors
for Justice (CFJ) assert that the Alaska Workers' Compensation
Act frequency-of-treatment statute and the corresponding
regulation violate their federal and state guarantees of due
process, equal protection and privacy. The superior court
rejected CFJ's claims. We affirm.
II. FACTS AND PROCEEDINGS
In 1988, as part of a comprehensive revision of the
Alaska Workers' Compensation Act (Act), the Alaska Legislature
adopted new procedures for payment of workers' compensation
benefits for "continuing and multiple treatments of a similar
nature." AS 23.30.095(c).1 If the course of treatment requires
continuing and multiple treatments of a similar nature, and will
require more frequent outpatient visits than provided for by
frequency standards specified by the Alaska Workers' Compensation
Board (Board), the amended statute requires that the physician or
health care provider submit a written treatment plan to the
employer and employee within fourteen days after treatment
begins. Id. The employer and employee are excused from paying
for treatments exceeding the frequency standards if the physician
or health care provider fails to furnish the treatment plan
within fourteen days. Id.
The 1988 amendments also required the Board to adopt
regulations establishing standards for frequency of treatment.
Id. In response, the Board promulgated 8 Alaska Administrative
Code (AAC) 45.082(f), which sets the standard for the maximum
number of compensable treatments permitted without Board
approval, and 8 AAC 45.082(g), which sets the procedure for Board
approval of treatments exceeding the frequency standards.2
In 1990 CFJ filed suit against the State of Alaska
(State), challenging AS 23.30.095(c) and 8 AAC 45.082(f) and (g).
CFJ claimed the statute and the regulation violated its members'
rights to equal protection of law, due process of law, and
privacy, and the Act's presumption of compensability. CFJ and
the State cross-moved for summary judgment. The superior court
rejected CFJ's challenges, granted summary judgment to the State
on all counts, and entered final judgment for the State. CFJ's
appeal raises the same arguments rejected by the superior court.
III. DISCUSSION
A. Standard of Review
In reviewing a grant of summary judgment, we
determine whether a genuine issue of material fact exists and, if
not, whether the moving party is entitled to judgment as a matter
of law. Gilbert v. State, Dep't of Fish and Game, 803 P.2d 391,
394 (Alaska 1990). We consider matters of law de novo and adopt
the rule of law which is most persuasive in light of precedent,
reason and policy. Id. Constitutional questions are also
questions of law to which we apply our independent judgment.
Municipality of Anchorage v. Leigh, 823 P.2d 1241, 1243 n.5
(Alaska 1992).
B. Substantive Due Process
CFJ argues that AS 23.30.095(c) and 8 AAC 045.082(f)
and (g) violate substantive due process because the frequency
standard in 8 AAC 45.082(f) is arbitrary, bearing no fair and
substantial relationship to a legitimate government purpose.
We have previously held:
Substantive due process is denied
when a legislative enactment has no
reasonable relationship to a legitimate
governmental purpose. It is not a court's
role to decide whether a particular statute
or ordinance is a wise one; the choice
between competing notions of public policy is
to be made by elected representatives of the
people. The constitutional guarantee of
substantive due process assures only that a
legislative body's decision is not arbitrary
but instead based upon some rational policy.
A court's inquiry into
arbitrariness begins with the presumption
that the action of the legislature is proper.
The party claiming a denial of substantive
due process has the burden of demonstrating
that no rational basis for the challenged
legislation exists. This burden is a heavy
one, for if any conceivable legitimate public
policy for the enactment is apparent on its
face or is offered by those defending the
enactment, the opponents of the measure must
disprove the factual basis for such a
justification.
Municipality of Anchorage v. Leigh, 823 P.2d at 1244 (quoting
Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula
Borough, 527 P.2d 447, 452 (Alaska 1974)). See also Alaska Int'l
Indus., Inc. v. Musarra, 602 P.2d 1240, 1245 n.9 (Alaska 1979)
("It is established that, in refusing to substitute its judgment
for that of the administrative agency as to the efficacy of the
regulation, this court will decline to review the 'wisdom' of a
particular regulation.").
As the State argues, it had a legitimate interest in
curbing abuse by health providers and claimants, discouraging
needless or fruitless treatments, saving jobs by reducing
workers' compensation premiums and, in general, ensuring the
delivery of reasonable and necessary medical benefits to injured
workers. Reducing amounts spent needlessly on health care also
potentially translated to increased disability benefits for
injured workers. Legitimate public purposes thus justified
action by the legislative and executive branches of government.
Further, the State's action bears a reasonable
relationship to those legitimate governmental purposes. There is
a logical connection between limiting the process by which
physicians and health care providers receive payment for
repetitive, similar and frequent treatments and the legitimate
governmental purposes noted above. A substantial relationship
exists between the frequency standards and the State's objective
of "ensur[ing] the quick, efficient, fair, and predictable
delivery of indemnity and medical benefits to injured workers at
a reasonable cost to the employers." Ch. 79, 1, SLA 1988.
Moreover, information in the record supports adoption
of frequency of treatment standards of the sort promulgated in
8 AAC 45.082(f). Supporting sources include workers'
compensation standards employed by Florida, New York, and
Washington, and medical and workers' compensation publications,
one of which was published by the California Workers'
Compensation Institute. Although CFJ argues that the Alaska
standards do not precisely mirror those of Florida, New York, or
Washington, CFJ does not dispute that certain aspects of the
Alaska standards are similar to the standards of those states.
Thus, factual support exists for the Board's selection of the
specific standards in question, and therefore, the Board did not
adopt the provision arbitrarily or capriciously.3
CFJ also cites a House Labor and Commerce Committee
memorandum and affidavits by two members of the Governor's
Oversight Group, criticizing a proposed bill which had included a
frequency standard of twenty visits in the first sixty days--the
exact number to be set by the Board in 8 AAC 45.082(f)--because
"the provision impose[d] maximum limits arbitrarily." That
history, however, cannot establish whether the legislature as a
body considered such frequency limits to be arbitrary. See 2A
Norman J. Singer, Sutherland Statutory Construction 48.13, at
356 (5th ed. 1992 rev.) ("[I]t is impossible to determine with
certainty what construction was put upon an act by the members of
the legislative body that passed it by resorting to the speeches
of individual members thereof. Those who did not speak may not
have agreed with those who did; and those who spoke might differ
from each other.") (quoting Peckham, J., in United States v.
Trans-Missouri Freight Ass'n, 166 U.S. 290, 318 (1897)).4
Furthermore, the challenged regulation does not
prohibit compensation for treatments whose frequency exceeds the
standard; it merely requires the treating health care provider to
meet the procedural prerequisites to receive payment for those
treatments.5 At least one other state has upheld frequency
standards on this basis. See Kemp v. Workers' Compensation
Dep't, 672 P.2d 1343 (Or. App. 1983), modified on other grounds,
677 P.2d 725 (Or. App. 1984). In Kemp, the court held valid a
frequency standard which provided for twenty-four office visits
within the first sixty days and four visits per month thereafter,
and which required that, upon request, physicians requesting
reimbursements for visits in excess of that standard submit a
plan of treatment containing objectives, measurement indicators,
modalities, and frequency of treatments. Id. at 1344-45 & n.1.
The court stated:
We find nothing in this or any other
statute that authorizes any limitations on
the number of treatments that a claimant can
receive. If this administrative rule
actually permits a limitation of the
treatment which a claimant can receive, it is
not authorized by the statute. We agree
however with the Director's argument that the
rule does not limit treatment but merely
requires that, if the treatment exceeds the
prescribed number of visits, the physician
must submit a report justifying further
treatment. That is consistent with the
legislative policy of requiring medical
service to be provided only for the period of
time necessary for recovery.
Id. at 1345-46. Thus, the court concluded that the rule was
valid insofar as it only required submission of a report
justifying treatments in excess of the frequency standard.6 Id.
Although Alaska's frequency standards may be slightly more
confining than those of Oregon,7 the procedural safeguards for
receiving payment for treatment in excess of the frequency
standards are essentially the same as those upheld in Kemp.
We conclude that the statute and the regulation bear a
reasonable relationship to a legitimate governmental purpose. We
also note that there was factual support for the statute and
regulation. We consequently reject CFJ's substantive due process
challenge to the statute and the regulation.
C. Equal Protection
1. Sliding scale of review
CFJ argues that AS 23.30.095(c) and 8 AAC 45.082(f) and
(g) violate Article I, section 1 of the Alaska Constitution
because they unlawfully discriminate against chiropractors.8
Because Alaska's equal protection clause may be more protective
of individual rights than the federal equal protection clause,
the analysis here will focus on the state constitution. See
State v. Anthony, 810 P.2d 155, 157 (Alaska 1991); Sonneman v.
Knight, 790 P.2d 702, 706 (Alaska 1990).
In analyzing equal protection issues, we employ a
"sliding scale of review ranging from relaxed scrutiny to strict
scrutiny." State v. Ostrosky, 667 P.2d 1184, 1192-93 (Alaska
1983). In applying the sliding scale analysis, this court
proceeds through three distinct analytic stages:
First, it must be determined at the
outset what weight should be afforded the
constitutional interest impaired by the
challenged enactment. The nature of this
interest is the most important variable in
fixing the appropriate level of review. . . .
Depending upon the primacy of the interest
involved, the state will have a greater or
lesser burden in justifying its legislation.
Second, an examination must be
undertaken of the purposes served by a
challenged statute. Depending on the level
of review determined, the state may be
required to show only that its objectives
were legitimate, at the low end of the
continuum, or, at the high end of the scale,
that the legislation was motivated by a
compelling state interest.
Third, an evaluation of the state's
interest in the particular means employed to
further its goals must be undertaken. Once
again, the state's burden will differ in
accordance with the determination of the
level of scrutiny under the first stage of
analysis. At the low end of the sliding
scale, we have held that a substantial
relationship between the means and the ends
is constitutionally adequate. At the higher
end of the scale, the fit between means and
ends must be much closer.
Alaska Pacific Assur. Co. v. Brown, 687 P.2d 264, 269-70 (Alaska
1984) (citations omitted).
2. Applying the sliding scale analysis
a. Constitutional interest/level of scrutiny
CFJ argues that the statute and regulation infringe on
a fundamental interest, the physician-patient relationship, and
consequently require a "very high level of justification." See
Falcon v. Alaska Public Offices Comm'n, 570 P.2d 469, 476 (Alaska
1977). The State responds that they affect only an economic or
commercial interest, and are therefore only subject to the lowest
level of scrutiny. See Herrik's Aero-Auto-Aqua Repair v. Dep't
of Transp., 754 P.2d 1111, 1114 (Alaska 1988) (citing Isakson v.
Rickey, 550 P.2d 359, 363 (Alaska 1976) (noting that legislation
of economic and commercial interest is traditionally subject to
the lowest level of scrutiny)).
As the State correctly notes in its brief, the most
precise description of the constitutional interest implicated
here is "the right of a health care provider to receive payment
under the Workers' Compensation Act for continuing multiple
treatments in excess of the frequency standards without
administrative review." The regulation does not interfere with
the doctor-patient relationship. It merely prescribes the
procedures under which a physician may seek payment under the
Act. Thus, the interest at issue is merely an economic one,
entitled to the minimum level of judicial scrutiny.
CFJ argues that, at the very least, the interest
implicated here should be characterized as "important" because
the care providers' right to engage in an economic endeavor in a
particular industry is threatened. In State v. Enserch Alaska
Constr., Inc., 787 P.2d 624, 633 (Alaska 1989), we held that
although a statute providing that a hiring preference be given to
residents of economically distressed zones for contracts
involving public works projects did not result in a total
deprivation of employment, it nevertheless impaired "the
important right to engage in economic endeavor," thereby
requiring us to "closely scrutinize the law." Id. The interest
asserted in Enserch, however, is different from the one asserted
here.
The statute in Enserch completely foreclosed some
members of a class of persons from participating in an economic
endeavor. In contrast, the statute and regulation challenged
here do not prohibit chiropractors from treating or contracting
with any patient. The only interest implicated here is economic,
and does not rise to the level of the interest asserted in
Enserch. We consequently apply the minimum level of judicial
scrutiny to the statute and regulation.9
b. Purposes furthered by the statute and
regulation
Because CFJ's interest is entitled only to a minimal
level of constitutional protection, in the second stage of the
equal protection analysis the State must show only that its
objectives were legitimate. Brown, 687 P.2d at 269. We consider
the challenged provisions in light of the purposes of the entire
Act and the 1988 amendments. Taylor v. Southeast-Harrison
Western Corp., 694 P.2d 1160, 1162 (Alaska 1985).
The State asserts that the legislature's intent in
enacting AS 23.30.095(c) is clear. In Leigh we concluded that
the legislature's intent in enacting AS 23.30.265(21) was clear.
Leigh, 823 P.2d at 1244. In support, we quoted from the 1988 act
amending chapter 30:
Section 1 of the 1988 amendments to the
Act provides: "(a) It is the intent of the
legislature that AS 23.30 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 the
provisions of AS 23.30."[10]
Leigh, 823 P.2d at 1244-45 (citing Ch. 79, 1, SLA 1988 and
adding emphasis). See also Rydwell v. Anchorage School Dist.,
864 P.2d 526, 530 (Alaska 1993). This purpose comports with the
overall purpose of the Act, "the provision of financial and
medical benefits for victims of work-connected injuries in the
most efficient, most dignified, and most certain form." Arctic
Structures, Inc. v. Wedmore, 605 P.2d 426, 437 (Alaska 1979).
The State maintains that ample evidence in the record
supports the premise that the legislature's intent in enacting
the frequency standards was to further the overall legislative
policy of providing medical benefits to injured workers at a
reasonable cost to employers.11 The State cites legislative
testimony given by John Lewis, a nationally recognized expert in
workers' compensation legislation, who stated that the
legislature could control rising workers' compensation costs was
by regulating "the amount of medical care that's provided, the
frequency, the duration." The State also quotes Dick Cattanach,
a member of the Workers' Compensation Committee, who testified:
[C]ontinuing multiple treatments is an
area that caused a lot of trouble because
when we looked at medical costs, the medical
costs went from about 25 percent of the
premium dollar in 1983 to 37« percent of the
premium dollar in 1986. . . . We tried to
pose controls in two manners: One is the
cost of the actual service, the second is the
frequency of visits.
The State maintains that in an attempt to meet the concerns
regarding rising workers' compensation costs, the legislature
enacted AS 23.30.095(c) and the Board subsequently promulgated
8 AAC 45.082(f) and (g), establishing additional standards and
procedures to eliminate unnecessary treatment.
CFJ argues that there is no need for new legislation
because there is no evidence that a problem existed with the
medical costs portion of the workers' compensation system, and no
evidence that the new legislation requiring frequency standards
would be more effective in curbing abuse than the standard--that
the treatment be medically reasonable and necessary--already
offered by the system. CFJ alleges that the testimony given by
Cattanach was false, and thus, should not have been relied upon
by the legislature.12 CFJ further argues that because "no
statistics [were] kept of abuses in general or abuses of the type
of treatment sought to be regulated by the frequency of treatment
provisions,"the new statute and regulation could not have been
intended to reduce costs by curbing abuse. CFJ cites McLean v.
Arkansas Bd. of Educ., 529 F. Supp. 1255, 1263-64 (E.D. Ark.
1982), for the proposition that this court is not bound by the
legislature's express statement of purpose where, after reviewing
the circumstances surrounding the enactment of a law, it is
obvious that the legislature's statement of purpose "has little,
if any, support in fact." CFJ also argues that some of the
statements made by Bob Anders13 suggest a personal prejudice
against chiropractors. The record as a whole nonetheless
supports the legislative statement of purpose. The record
contains evidence supporting the State's contention that the
legislature's main purpose in enacting the frequency standards
was to ensure the delivery of medical services at "a reasonable
cost to the employers," and not to discriminate against
chiropractors. John Lewis' testimony, although questioned to
some extent by CFJ,14 indicated that one method of controlling
workers' compensation costs was to regulate the frequency and
duration of treatment. Thus, the legislative intent expressed in
section 1 of the 1988 amendments and quoted above is supported by
the record. Ch. 79, 1, SLA 1988.
CFJ relies on Brown, 687 P.2d 264, to argue that the
State's interest in reducing costs is invalid. In Brown, we held
that a statute adjusting benefits of workers' compensation
recipients who move out of state was unconstitutional. In
particular, we held that,
the asserted goal of lowering insurance
premiums can have no independent force in the
state's attempt to meet its burden under the
equal protection clause. Although reducing
costs to taxpayers or consumers is a
legitimate government goal in one sense,
savings will always be achieved by excluding
a class of persons from benefits they would
otherwise receive. Such economizing is
justifiable only when effected through
independently legitimate distinctions.
Brown, 687 P.2d at 272 (footnote omitted).
CFJ's reliance on Brown is misplaced. Unlike the
situation in Brown, the statute and regulation here are not
designed to reduce costs by depriving a certain class of persons,
e.g., chiropractors, of benefits they would otherwise receive.
Rather, they are designed to reduce costs by curbing perceived
abuses through procedural safeguards. Chiropractors may be paid
for frequent treatments by adhering to the regulation and
demonstrating that the treatments are reasonable and necessary.
The purpose here was to ensure that employers are liable only for
reasonable and necessary medical costs. See ch. 79, 1, SLA
1988 and AS 23.30.265(20).
c. Nexus between the means and the ends
When the interest affected is
entitled to only minimal judicial protection, the State need only
show that the distinction15 drawn bears a fair and substantial
relationship to the Act's objective. Brown, 687 P.2d at 269-70;
Sonneman, 790 P.2d at 705. In State v. Anthony, 810 P.2d 155, we
stated that "[d]espite the language in Isakson v. Rickey, 550
P.2d [at 362], indicating this court's lower level of scrutiny
will be more rigorous and less deferential than the federal
rational basis test, we have invalidated only two legislative
enactments under the fair and substantial relationship test since
Isakson."16 State v. Anthony, 810 P.2d at 159.17
CFJ's arguments regarding the third step in the
equal protection analysis overlap its substantive due process
claims. See Leigh, 823 P.2d at 1247 n.15. For the same reasons
discussed above in rejecting CFJ's substantive due process claim,
we conclude that the provisions do not violate the constitutional
guarantee of equal protection. The challenged provisions bear a
fair and substantial relationship to the State's objective of
"ensur[ing] the quick, efficient, fair and predictable delivery
of indemnity and medical benefits to injured workers at a
reasonable cost to the employers." Ch. 79, 1, SLA 1988
(emphasis added).
D. Privacy
CFJ next argues that the provisions violate privacy
rights on the theory they unconstitutionally infringe upon the
physician-patient relationship. CFJ relies primarily on Falcon
v. Alaska Public Offices Comm'n, 570 P.2d 469, 480 (Alaska 1977),
where we held unconstitutional a statute requiring physicians
running for public office to disclose the names of their patients
for the purpose of discovering conflicts of interest.
The physician-patient relationship is invaded by these
provisions only to the extent necessary to administer the
workers' compensation program. The right to privacy is not
absolute. Rather, "it is part of the judicial function to ensure
that governmental infringements of this right are supported by
sufficient justification." Id. at 477. The State must be able
to investigate the validity of a health care provider's claim for
payment under the Act if the State is to administer effectively
the benefits program. As this court has previously held, "there
must be . . . a balancing of conflicting rights and interests."
Messerli v. State, 626 P.2d 81, 83 (Alaska 1980). Here, the
balance clearly weighs in favor of the State's interest in
preventing fraud and abuse in the worker's compensation system.
It is also difficult to comprehend any limit to CFJ's
privacy argument. There is no privilege or right of privacy with
respect to the substance and cost of medical services for which
an employer is assertedly liable under the Act. AS 23.30.095(h).
See Arthur Larson, The Law of Worker's Compensation 79.83(c),
at 15-508 (1993) ("[t]he physician-patient privilege not only is
of doubtful utility, but because of the high proportion of cases
in which declarations to physicians are indispensable links in
the testimony, it is capable of working severe injustice.")
(footnotes and citations omitted). To accept CFJ's argument
would make it impossible to controvert and decide any claim for
medical services under the Act, and would be fundamentally
contrary to Alaska's statutory scheme for indemnifying employees
injured in the course of their employment.
E. Presumption of Compensability
Finally, CFJ argues that 8 AAC 45.082(g) violates the
"presumption of compensability"contained in AS 23.30.095(a).
CFJ asserts that by requiring the employee to prove that "the
treatments improved or are likely to improve the employee's
conditions," 8 AAC 45.082(g)(2) nullifies the presumption by
shifting responsibility to the employee to establish
justification for payment.
CFJ's argument is without merit. AS 23.30.095(a) does
not guarantee unlimited medical benefits regardless of whether
the treatments are beneficial. The Act is intended to provide
medical and related benefits "as may reasonably be required which
[arise] out of or [are] necessitated by an injury." AS
23.30.265(20). The statute containing the "presumption"cited by
CFJ only requires the employer to furnish "treatment . . . for
the period which the nature of the injury or the process of
recovery requires . . . ." AS 23.30.095(a). An employer is not
required to furnish treatments which are unreasonable or
unnecessary. The provisions under attack do not limit
compensability; they merely establish a mechanism by which the
Board may monitor the reasonableness of the treatments.
In any event, having enacted AS 23.30.095(a) in the
first place, the legislature had the power to narrow any
presumption found in that subsection when it enacted AS
23.30.095(c) in 1988 and required the Board to adopt frequency of
treatment standards. Leigh, 823 P.2d at 1246-47.
IV. CONCLUSION
For these reasons, we conclude that the superior
court correctly denied summary judgment to CFJ and correctly
granted summary judgment to the State upholding AS 23.30.095(c)
and 8 AAC 45.082(f) and (g). We therefore AFFIRM the judgment of
the superior court.
_______________________________
1 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.
AS 23.30.095(c) (emphasis added to indicate 1988 amendments).
2 8 AAC 45.082(f) provides, in part:
[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
discretion, approve payment for more frequent
treatments.
8 AAC 45.082(g) provides:
The board will, in its discretion,
require the employer to pay for treatments
that exceed the frequency standards in (f) of
this section only if the board finds that
(1) the written treatment plan was
given to the employer and employee within 14
days after treatments began;
(2) the treatments improved or are
likely to improve the employee's conditions;
and
(3) a preponderance of the medical
evidence supports a conclusion that the
board's frequency standards are unreasonable
considering the nature of the employee's
injury.
In Anchorage Sch. Dist. v. Hale, 857 P.2d 1186 (Alaska
1993), we held that 8 AAC 45.082(f) was consistent with and thus
authorized by AS 23.30.095(c).
3 CFJ focuses its argument on two sources cited by the
Board: (1) testimony of Scott Haldeman, M.D., Ph.D., whose
alleged opinions were conveyed to the Board by another person;
and (2) Richard Olson, D.C., PROCEDURAL/UTILIZATION FACTS:
Chiropractic/Physical Treatment Standards (2d ed.).
Because the substance of neither source is contained in
the record, we cannot conclude that the Board's reliance on
either was unwarranted. However, CFJ's brief sets out Dr.
Olson's "typical chiropractic treatment pattern." That pattern
is remarkably similar to the frequency standards adopted by the
Board, and thus clearly supports the regulation. See 8 AAC
45.082(f). Dr. Olson subsequently objected to the Board's use of
his book for purposes of adopting the regulation, but his
objection post-dated adoption of the regulation. Even if the
Board had known of Dr. Olson's objections, it could have
concluded that Dr. Olson's treatment pattern was relevant to the
question of appropriate frequency standards.
4 See Dep't of Community and Regional Affairs v. Sisters
of Providence in Washington, 752 P.2d 1012, 1015 n.7 (Alaska
1988) ("[S]ubsequent testimony of even the prime sponsor of a
bill as to either his own understanding or the legislature's
understanding of the meaning of the bill should not be considered
by a court in construing legislative intent. We do not wish to
transform statutory construction into a parade of legislators'
affidavits containing their perceptions of the meaning of a
bill."(quoting Alaska Public Employees' Ass'n v. State, 525 P.2d
12, 16 (Alaska 1974))); Lynden Transport, Inc. v. State, 532 P.2d
700, 716 (Alaska 1975) ("When a law has been enacted, the
legislature has spoken as a whole, and the recollections of an
individual legislator as to what was intended are irrelevant to a
determination of a legislative intent.").
5 If the frequency standard set forth in 8 AAC 45.082(f)
is exceeded, physicians or health care providers must meet the
prerequisites listed in 8 AAC 45.082(g) to receive payment for
their services under the Act. See supra n.2 for text of 8 AAC
45.082(g).
6 Subsequent to Kemp, the Oregon Court of Appeals
addressed the applicability of the standards to particular cases,
and reversed the Oregon Workers' Compensation Board's decisions
to limit compensation for "reasonable and necessary"treatments
which exceeded the frequency standard. See, e.g., West v. SAIF
Corp., 702 P.2d 1148, 1149 (Or. App. 1985) (reversing Board's
decision denying compensation for chiropractic visits exceeding
the frequency standards because "claimant has established that
his chiropractic treatments are reasonable and necessary to
relieve him of severe pain and to permit him to work").
7 Under 8 AAC 45.082(f), the frequency standard is as
follows: "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;"
whereas, the Oregon standard provided for twenty-four office
visits in the first sixty days from the first day of treatment
and four visits per month thereafter. Kemp, 677 P.2d at 1344-45.
8 Article I, section 1 of the Alaska Constitution
provides in part: "all persons are equal and entitled to equal
rights, opportunities, and protection under the law." Alaska
Const., art. I, 1.
9 See, e.g., Anthony, 810 P.2d at 158 (holding right to
receive permanent fund dividend is economic interest entitled to
minimum protection under state equal protection analysis);
Sonneman, 790 P.2d at 705 (holding right to receive unemployment
benefits entitled to review at low end of scale); Herrik's Aero-
Auto-Aqua Repair, 754 P.2d at 1114 (holding requirement airplane
mechanics have insurance and permit implicated purely economic
interests subject to lowest level of scrutiny); Wilson v.
Municipality of Anchorage, 669 P.2d 569, 572 (Alaska 1983)
(holding interest in suing the government is not fundamental, and
afforded only minimal protection under equal protection
analysis); Isakson v. Rickey, 550 P.2d at 363 (holding the right
to a limited entry fishing permit is subject to lowest level of
scrutiny).
10 In Leigh this court noted that the asserted legislative
intent is bolstered by a letter of intent contained in the Senate
Journal which provides:
With an actuarial analysis concluding
that this bill will provide a two percent
savings in hard costs and an unquantifiable
amount of soft dollar savings, it is the
intent of the Alaska State Senate that, upon
passage of this bill, the Division of
Insurance request a new rate filing
reflecting a reduction in workers'
compensation premiums.
823 P.2d 1241, 1244 n.8 (citing 1988 Senate Journal 2420). This
court further noted that "[a] report of the Workers's
Compensation Labor-Management Task Force also chronicled the
increase in workers' compensation insurance costs" and that
"[t]his task force was resurrected in 1986, following a rate
increase by the Department of Workers' Compensation Insurance
'with the purpose of reducing rates paid by employers through
legislative changes to the Statute.'" Id. (quoting Workers'
Compensation Labor-Management Task Force, Synopsis of Proposed
Legislative Changes to Chapter 30 of Title 23, at 1).
11 CFJ devotes a substantial portion of its opening brief
to arguing that some of the parties involved in seeking enactment
of the law and construction of the regulation were personally
biased against chiropractors and set out to create specific
limitations on chiropractic services. The State contends that
"CFJ's attempt to rehash the motives behind the enactments are
improper [because] [i]t is well established that the validity of
a statute or regulation does not depend upon the motivations of
the authors." (citing United States v. O'Brien, 391 U.S. 367
(1968); County of Los Angeles v. Superior Court, 532 P.2d 495,
499 (Cal. 1975) (en banc); Rhode Island Liquor Stores Ass'n v.
Evening Call Pub. Co., 497 A.2d 331, 335 (R.I. 1985) (holding
that even if invalid motives are behind what becomes a valid
enactment, a law will not be invalidated); 2A Norman J. Singer,
Sutherland Statutory Construction 45.11 (5th ed. 1992 rev.)).
Neither CFJ nor the State is entirely correct. CFJ's
allegations regarding a bias against chiropractors are relevant,
but only to the extent that they undermine the State's contention
that the purpose of the amendment and related regulation is
legitimate, i.e., to control costs, and not merely to pursue an
economic assault on chiropractors. In addressing this issue,
this court must bear in mind that "[w]hen a law has been enacted,
the legislature has spoken as a whole." Lynden Transport, Inc.
v. State, 532 P.2d 700, 716 (Alaska 1975). Thus, the general
purpose behind the statute and regulation is at issue, not the
respective motives of individual drafters.
12 In particular, CFJ takes issue with the portion of
Cattanach's testimony in which he stated that the Task Force had
spoken to a chiropractor who had previously testified before the
Board, regarding the proposed frequency standards. CFJ alleges
that the testimony was false and misleading.
13 Anders was a member of the "Labor/Management Ad Hoc
Committee"(also known as the Management/Labor Joint Task Force)
which drafted the initial bill regarding frequency standards.
14 CFJ argues that when Lewis testified that the medical
costs in Alaska represented thirty-eight percent of total
workers' compensation costs in Alaska, he incorrectly included
rehabilitation costs as part of the medical costs. Actually,
Jacqueline McClintock, Director of the Workers' Compensation
Division, stated that the question should be addressed to the
Division of Insurance, but that "it's my understanding that some
of those [medical] costs probably include[d] some rehabilitation
costs." (Emphasis added.) Thus, CFJ's contention is, at best,
questionable.
15 The statute and regulation do not expressly distinguish
between classes of medical professionals. The distinction is
between those health care providers, which may include some
chiropractors, who generally provide continuous, multiple and
relatively frequent treatments, and other health care providers
whose treatments would not normally exceed the frequency standard
guidelines.
16 Those two cases were Gilman v. Martin, 662 P.2d 120
(Alaska 1983), and Turner Constr. Co., Inc. v. Scales, 752 P.2d
467 (Alaska 1988). In Gilman, this court struck down a Kenai
Peninsula Borough ordinance which limited participants in a land
sale lottery to those who had resided in the borough for at least
a year. Id. at 125-26. We concluded that the residency
requirement did not bear a fair and substantial relationship to
the purpose of the lottery--selling "certain parcels of Borough
selected lands . . . to adjoining property owners or to
leaseholders so as to resolve existing controversies regarding
access and title." Id. at 126.
In Turner, we invalidated a statute barring legal
action against design professionals such as architects, engineers
and contractors more than six years after substantial completion
of an improvement to real property. 752 P.2d at 472. We held
that "there is no substantial relationship between exempting
design professionals from liability, shifting liability for
defective design and construction to owners and material
suppliers, and the goal of encouraging construction,"because the
shift in liability actually provides a disincentive to owners to
finance construction as the owners would be subjected to
liability for a product over which they had no control. Id.
17 Nor have we invalidated any cases under the fair and
substantial relationship test since we decided State v. Anthony.
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