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Grove v. Alaska Construction and Erectors (11/14/97), 948 P 2d 454
Notice: This opinion is subject to formal 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.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID L. GROVE, )
) Supreme Court No. S-7324
) Superior Court No.
v. ) 3AN-94-05117 CI
ALASKA CONSTRUCTION AND ) O P I N I O N
ERECTORS and CIGNA/ALPAC/INA, )
Appellees. ) [No. 4905 - November 14, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Donald D. Hopwood, Judge.
Appearances: Charles W. Coe, Anchorage, for
Appellant. Constance E. Livsey and Elizabeth D. Goudreau,
Faulkner, Banfield, Doogan & Holmes, Anchorage, for Appellees.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
COMPTON, Chief Justice.
The Alaska Workers' Compensation Board (Board) awarded
benefits to David Grove because of a back injury he sustained while
working for Alaska Construction & Erectors. The Board denied Grove
any medical costs exceeding the statutory standards established in
AS 23.30.095(c), or after November 10, 1993, whichever came first.
The Board also denied him temporary total disability benefits
between November 1992 and January 1993, and after April 1993. The
superior court affirmed the Board. Grove appeals. We affirm the
II. FACTS AND PROCEEDINGS
Grove was employed on a short-term basis with Alaska
Construction & Erectors (ACE) in Prudhoe Bay. The job lasted
approximately two weeks. Early in the job, Grove was injured
lifting steel purlins, which weigh approximately 100 to 200 pounds
each. Grove continued on the job after the injury, doing lighter
work. The Board concluded that Grove was injured on the job, and
that ACE had knowledge of the injury. ACE does not challenge these
In September 1992, after returning from Prudhoe Bay,
Grove visited his regular chiropractor, Dr. Jack Moran, three
times. The frequency of treatment increased in the following
months. In December Dr. Moran referred Grove to physical therapy.
Grove received physical therapy from H & W Physical Therapy (H & W)
from that December until January 1994.
In December 1992 Dr. Douglas G. Smith, ACE's doctor,
evaluated Grove. He determined that Grove's injuries were not
related to Grove's employment with ACE. Based on this evaluation,
ACE filed a Controversion Notice, disputing that Grove's back
injury was work related.
Once the Board determined that ACE disputed Grove's
condition, it ordered an independent medical exam (IME). Dr.
J. Michael James performed this exam in November 1993. Dr. James
concluded that Grove had reached medical stability as of
April 1993, and that his employment at ACE had caused, at most, a
temporary aggravation of pre-existing back pain. Dr. James also
concluded that no further treatment was necessary for this injury.
The Board determined that Grove was entitled to
compensation. Since Dr. Moran had restricted Grove from any work
involving heavy lifting or repeated bending, the Board awarded
Grove temporary total disability (TTD) benefits beginning on
October 7, 1992, the first day listed for treatment.
Dr. Moran released Grove for work from November 25, 1992,
to January 6, 1993. Grove testified that although the work
restrictions had been lifted, he was unable to work a full day
during that time because of his back pain. Dr. Moran reimposed the
work restrictions on January 6.
The Board reinstated TTD benefits from January 1993 until
the date when, according to Dr. James, Grove had reached medical
stability; i.e., April 1993. The Board also awarded Dr. Moran's
and H & W's charges, either according to the statutory frequency
standards or as of November 10, 1993, whichever occurred first.
The superior court affirmed the Board. Grove appeals.
Grove challenges ACE's ability to invoke the statutory
treatment limits, the denial of TTD benefits between November 25,
1992 and January 6, 1993, and the denial of TTD and medical
benefits after November 10, 1993.
A. Standard of Review
When the superior court acts as an intermediate court of
appeal under Alaska Appellate Rule 601, we review independently the
merits of an administrative determination. Handley v. State, Dep't
of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).
We review the findings of an administrative agency to
determine whether they are supported by substantial evidence.
Substantial evidence is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Miller v.
ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978).
The Board's interpretation of the statutes regarding
frequency standards is a question of law which does not require
administrative expertise. In reviewing this issue, we exercise our
independent judgment. On questions of law, our duty is to adopt
the rule of law which is most persuasive in light of precedent,
reason, and policy. Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
B. Frequency of Treatment
Alaska law requires a doctor to submit a treatment plan
to the employer if treatment exceeds the statutorily-mandated
treatment frequencies. Alaska Statute 23.30.095(c) provides in
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 [Fn. 1] 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.
The Board has also adopted exceptions to the standard
treatment frequency. These are found in 8 Alaska Administrative
Code (AAC) 45.082(g):
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 the treatments
(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.
We reviewed and upheld these regulations in
Chiropractors for Justice v. State, 895 P.2d 962, 965 (Alaska
It is undisputed that ACE was not provided with a
treatment plan within fourteen days of the treatment. The Board
found it did not have the discretion to allow more frequent
treatments, because Grove's medical providers had not complied with
the statute. Grove argues, however, that ACE may not invoke the
statutory treatment limits because it initially denied that Grove
was entitled to benefits. [Fn. 2]
The superior court concluded that Grove's argument was
unsupported by the statutory scheme and that he had offered no
evidence of contrary legislative intent. The superior court was
correct. Nothing in the statute or the regulations promulgated by
the Board supports the contention that frequency standards may be
waived when the employer initially disputes benefits. The Board
has defined the circumstances under which the frequency standards
may be waived. Grove's treatments are not within these
Grove relies on Romualdo Velonza v. Caterair
International, Alaska Workers' Compensation Board Case No. 9218565
(June 9, 1994) to support his argument. The case does not support
Grove's argument. In Caterair, the Board excused failure to give
notice of treatment because of the controversion. However, the
Board awarded compensation only for those treatments which fell
within the standards established in 8 AAC 45.082(f). [Fn. 3]
The Board cannot allow more frequent treatment without
the submission of a treatment plan following the procedure provided
for in 8 AAC 45.082(g). The employer's original decision to
controvert the claim is not relevant to the application of the
frequency standards. Grove's position, if adopted, would put the
burden on the employer to object to the frequency of an employee's
medical treatments, if they exceed the statutory standard. The
statute is clear that it is the employee's health care provider who
must take steps if the statutory frequency of that treatment is
Grove argues that the Board erred by failing to find that
Dr. Moran and H & W submitted the equivalent of a treatment plan to
ACE and its insurers. Dr. Moran submitted "Physician's Reports,"
which are billing forms prepared by the Department of Labor. H & W
also prepared progress reports for Dr. Moran, which were submitted
to ACE's insurance carrier. The statute requires that the
treatment plan include "objectives, modalities, frequency of
treatments, and reasons for the frequency of treatments."
AS 23.30.095(c). The Board did not err in determining that the
reports do not meet the definition of a treatment plan required by
C. TTD Benefits between November 25, 1992 and January 6,
The Board limited Grove's TTD benefits to the period
between October 7, 1992, and November 25, 1992, and from January 6,
1993, to April 1, 1993. Temporary total disability benefits are
provided for an employee who is totally disabled for a temporary
period. AS 23.30.185. Disability is "incapacity because of injury
to earn the wages which the employee was receiving at the time of
injury in the same or any other employment." AS 23.30.395(10).
The statute creates a presumption of compensability.
Earning capacity is the "defining characteristic of a
compensable disability." Wien Air Alaska v. Kramer, 807 P.2d 471,
474 (Alaska 1991). Once an employee is disabled, the law presumes
that the employee's disability continues until the employer
produces substantial evidence to the contrary. Bailey v. Litwin
Corp., 713 P.2d 249, 254 (Alaska 1986). The presumption shifts
only the burden of production. Wien Air Alaska, 807 P.2d at 474
n.4. "[O]nce [an] employer rebuts the presumption with substantial
evidence, the presumption drops out and the employee must establish
each element of [the] claim by a preponderance of the evidence."
The Board relied exclusively on Dr. Moran's testimony for
suspending TTD benefits from the period from November 25 through
January 6. Grove argues that the Board erred in not considering
Grove's inability to work during that period, and that ACE must
rebut the presumption of a loss of earning capacity by showing
Grove could actually work.
Grove cites Bailey v. Litwin Corp., 713 P.2d 249, to
support his argument. In that case Bailey returned to work. He
later claimed TTD benefits because he was not "medically stable"
when he returned to work. The Board denied TTD benefits, based on
two doctors' findings that Bailey was able to work. This court
found that "medical stability is not necessarily the point at which
temporary disability ceases." Id. at 253. We determined it was
not error for the Board to focus on Bailey's employment, rather
than on his medical stability. The Board was able to rely on
Bailey's actual return to work, although the doctors later
restricted him from work. Id. at 254. This return to work was
sufficient evidence to rebut the presumption of continuing
compensability for TTD benefits. Id.
In this case, the questions are whether Dr. Moran's
testimony was substantial evidence and, if it was, whether Grove
established he was unable to work by a preponderance of the
evidence. The Board relied on Dr. Moran's determination that Grove
was fit to return to work. Bailey does not undermine the Board's
discretion to rely on this evidence. The only issue is whether Dr.
Moran's report is substantial evidence which would shift the burden
of production back to Grove to establish, by a preponderance of the
evidence, that he could not work during the time his doctor
released him for work.
Dr. Moran treated Grove on September 9, 16, and 18.
Grove was next treated on October 7. Dr. Moran restricted Grove
from heavy lifting on October 13. On November 25 Dr. Moran lifted
the restriction. Based on this evidence, the Board determined that
Grove was disabled from October 7 through November 24.
Dr. Moran's testimony was that he released Grove to work
because Grove wanted to work. He did not specifically indicate
that Grove could work or what type of work he might have been able
We conclude that Dr. Moran's reports and testimony were
substantial evidence. A claimant's own doctor's conclusion that he
is medically able to work is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Miller, 577 P.2d at 1046. It is unlikely that Grove's own doctor
would release him for work if he was too severely injured to work,
even though Grove wanted to do so.
Because we hold Dr. Moran's reports are substantial
evidence, the burden of production had shifted to Grove. ACE did
not need to provide proof of Grove's earning capacity. Rather,
Grove had to prove by a preponderance of the evidence that he was
not able to work. The only evidence offered by Grove to contradict
Dr. Moran's reports is his own testimony that he was unable to
perform heavy work at the time the work restriction was lifted.
The Board was not required to find that Grove proved by
a preponderance of the evidence that he was not able to work.
Grove was seeing Dr. Moran regularly. The Board was not required
to believe Grove's testimony that he could not actually work, in
light of the fact that Dr. Moran could have reimposed the
restriction at any time.
D. TTD Benefits after April 1993
Grove cannot receive TTD benefits for any period of
disability that occurs after medical stability. AS 23.30.185. The
Board's independent medical examiner, Dr. James, concluded that
Grove was medically stable by April 1993. Grove argues that he is
entitled to TTD benefits from April through June 6, 1993. June 4
is the date Dr. Moran released Grove from the heavy lifting and
repeated bending restriction. Grove argues that Dr. James's
conclusion was speculative, and that the Board did not rely on any
specific evidence demonstrating that Grove did not have a loss of
Dr. James determined that Grove's medical stability
coincided with his decrease in chiropractic treatment in
April 1993. Grove argues that Dr. James's report is not
substantial evidence because it was retrospective. Dr. James did
not examine Grove until November 1993. He then determined, based
on the examination and medical charts, that Grove was medically
stable as of April 1993.
ACE does not respond to Grove's argument that Dr. James's
report was retrospective and therefore not substantial evidence.
However, Dr. James's report was not the only evidence before the
Board which supports its conclusion. Other evidence before the
Board included Grove's own testimony that he worked two carpentry
jobs, one in the spring of 1993 and the other in May and June,
1993, and that he resumed commercial halibut fishing in July 1993.
The Board also considered the report of Dr. Smith, ACE's doctor.
The Board's determination is supported by substantial evidence.
Therefore, the Board did not err in concluding that Grove was
medical stable by April 1993.
E. Medical Benefits after November 10, 1993
The Board determined that Grove was not entitled to
benefits after November 10, 1993, because he had reached pre-injury
status. The Board also determined that Grove did not need any
further treatment as of that date. The Board relied on the report
from Dr. James, the Board-appointed independent medical examiner.
Dr. James examined Grove on November 10, 1993, and determined that
as of April, Grove was medically stable. The Board determined that
Dr. James had not concluded that Grove had reached pre-injury
status by April. The Board determined that Grove had reached pre-
injury status by the time of the examination in November.
Grove objects because the Board relied on Dr. James's
report, instead of that of Grove's treating physician, in making
this determination. Dr. Moran testified that he believed Grove may
not have reached pre-injury status. [Fn. 4] The physical therapist
from H & W testified that as of December 1993, Grove was still
making "objective gains."
"[I]f the Board is faced with two or more conflicting
medical opinions--each of which constitutes substantial evidence--
and elects to rely upon one opinion rather than the other, we will
affirm the Board's decision." Yahara v. Construction & Rigging,
Inc., 851 P.2d 69, 72 (Alaska 1993). Substantial evidence is "such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Miller, 577 P.2d at 1046.
Grove relies on Black v. Universal Services, Inc., 627
P.2d 1073 (Alaska 1981), to argue that Dr. James's report is not
substantial evidence. In Black, this court found a doctor's
testimony was not substantial evidence where the doctor interviewed
the claimant for twenty minutes and arrived at a conclusion
contrary to that of five other doctors. In this case, Dr. James
conducted a more detailed evaluation. The Board also had Dr.
Smith's evaluation, conducted a year before Dr. James's, which
concluded that Grove did not need any chiropractic treatment after
January 2, 1993. We conclude that Dr. James's report is
Grove has not made a persuasive argument that the
frequency standards do not apply where the employer controverts a
workers' compensation claim. The plain language of the statute
indicates that the health care provider must comply with the
treatment frequency standards, absent specific exceptions.
Furthermore, the Board's determination of medical and TTD benefits
was based on substantial evidence. We AFFIRM the superior court
judgment affirming the Board's decision.
8 AAC 45.082(f) defines "standard treatment frequency"as
[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.
Grove also argues that ACE impliedly authorized the treatments
by failing to object to the treatments Dr. Moran was providing.
Grove offers no support for the argument that there is any burden
on ACE to object to the treatments.
Grove's brief states that the Board "excused this failure to
file notice of treatment, and the employer was found liable for
treatments incurred following controversion even though they
exceeded the standards." The Board excused notice in Caterair
because the employer had controverted the claim and noted that the
"employer is liable for those treatments which were within the
frequency of treatments standards in 8 AAC 45.082(f)." Caterair
at 7 (emphasis added). The Board specifically held that "the
employer is not liable for any treatments which exceed the
frequency standards in 8 AAC 45.082(f)." Caterair at 8.
Dr. Moran testified:
I don't know that he reached [pre-injury
status]. He was getting close in approximately a year later, but
with all the hassle he was having with carriers and everything, he
just kind of stayed with the H & W Therapy care and kind of
precluded his adjustments.