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Bockness v. Brown Jug, Inc., Alaska National Insurance Company and Alaska Workers' Compensation Board (5/28/99), 980 P 2d 462
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.
THE SUPREME COURT OF THE STATE OF ALASKA
RAY BOCKNESS, )
) Supreme Court No. S-8550
) Superior Court No.
v. ) 3AN-96-7520 CI
BROWN JUG, INC., ALASKA ) O P I N I O N
NATIONAL INSURANCE COMPANY, )
and THE ALASKA WORKERS' ) [No. 5122 - May 28, 1999]
COMPENSATION BOARD, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: William J. Soule, Law Office of
William J. Soule, Anchorage, for Appellant. Theresa Hennemann,
Holmes, Weddle & Barcott, Anchorage, for Appellees Brown Jug, Inc.
and Alaska National Insurance Company.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
Ray Bockness appeals the partial denial of workers'
compensation benefits for a work-related back injury. The Alaska
Workers' Compensation Board found that Bockness's employer, Brown
Jug, Inc., did not need to pay for chiropractic treatments beyond
those authorized by 5 AAC 45.082 or for more than six weeks of
injection therapy. The superior court affirmed. Because the Board
correctly applied the law to Bockness's claim and because
substantial evidence exists to support the Board's decision, we
II. FACTS AND PROCEEDINGS
Ray Bockness, an employee of Brown Jug, Inc., was injured
in a work-related accident on March 23, 1993. [Fn. 1] As Bockness
was unloading beverages from a truck, the ramp on which he was
standing collapsed, leaving Bockness hanging from the truck with
one hand and holding onto a loaded hand truck with the other.
Bockness suffered a back injury in the accident. He returned to
part-time work on April 7, 1993, but his doctor restricted him to
light duty work (lifting only up to twenty-five pounds). Bockness
slowly returned to full-time work but continued to take time off
due to back pain.
Bockness first visited Dr. Loren Morgan, a chiropractor,
the day following the accident. Dr. Morgan diagnosed Bockness with
a "strain/sprain complex involving both the muscle and the
ligament"and started a regimen of chiropractic adjustments. Dr.
Morgan's original treatment plan called for two weeks of daily
treatment, three weekly appointments for the following four to
eight weeks, and then two weekly treatments for the following two
to four weeks. Dr. Morgan repeatedly submitted this treatment plan
to Brown Jug in accordance with AS 23.30.095(c). [Fn. 2]
On April 9, 1993, Brown Jug controverted Dr. Morgan's
treatments to the extent that they exceeded the frequency standards
set out in 8 AAC 45.082(f). [Fn. 3] In December 1993 Brown Jug
arranged for Drs. Charles D. Potter and Richard L. Peterson to
perform an independent medical evaluation (IME) for Bockness. Dr.
Shawn Hadley performed a second IME in March 1994. All three
physicians recommended that Dr. Morgan's chiropractic adjustments
Bockness continued to experience pain, at times severe.
He also suffered from periods of incontinence. Thus, despite the
recommendations of the IME panel and of Dr. Hadley, Bockness
continued his chiropractic care with Dr. Morgan. Along with his
own treatment, Dr. Morgan also made several referrals for Bockness,
including a referral to Dr. Glenn Ferris, a physician specializing
in physical medicine and pain management. Dr. Ferris first saw
Bockness on May 11, 1994 and began a treatment protocol of physical
therapy, pain medication, and a series of trigger point and
epidural injections. These treatments are considered by the
medical community to be controversial. Dr. Morgan also referred
Bockness to Health Beat of Alaska for active physical therapy, but
the treatments were discontinued at Dr. Morgan's request when
Bockness's pain increased. Dr. Morgan told Health Beat that he
felt the injection therapy would provide greater benefit to
Bockness than would continued physical therapy; accordingly,
Bockness continued with chiropractic care from Dr. Morgan combined
with Dr. Ferris's injection protocol.
Dr. Hadley examined Bockness again at Brown Jug's request
in May 1994. She concluded that further chiropractic care and
injection therapy were not medically indicated. Based on the
opinions of Drs. Potter, Peterson, and Hadley, Brown Jug filed
another controversion notice, this time challenging all further
chiropractic treatment, prescription medications, and epidural and
trigger point injections. Dr. Morris R. Horning performed an IME
following this notice, and concluded that no further chiropractic
care was necessary and that injection therapy should be limited to
six weeks in duration.
The Alaska Workers' Compensation Board held a hearing on
July 10, 1996. The Board found that Bockness became medically
stable by December 4, 1993, but suffered a setback and reverted to
medical instability between May 25, 1994 and August 2, 1994.
Accordingly, the Board awarded Bockness temporary total disability
benefits for the time periods in which he was medically unstable.
The Board also determined that Brown Jug was responsible for Dr.
Morgan's chiropractic adjustments only to the extent they did not
exceed the statutory frequency standards. The Board additionally
limited Brown Jug's responsibility to six weeks of Dr. Ferris's
treatments. The Board assigned Bockness a partial permanent
impairment (PPI) rating and awarded him attorney's fees and costs.
Bockness appealed this decision and appeared before the
Board once more on March 27, 1997. The second Board decision
corrected a typographical error, adjusted Bockness's PPI rating,
and addressed issues of offset, overpayment, and attorney's fees
but did not make any adjustments to the original determinations of
Bockness appeals the partial denial of his medical
benefit claims in the Board's first decision.
III. STANDARD OF REVIEW
We do not defer to the superior court when it acts as an
intermediate court of appeal; instead, we review independently the
decisions of administrative agencies. [Fn. 4] We review agency
findings under a substantial evidence standard, asking whether
those findings are supported by "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
[Fn. 5] We review questions of law under the independent judgment
standard, adopting the rule of law most persuasive in light of
reason, precedent, and policy. [Fn. 6]
A. The Workers' Compensation Act Requires Reimbursement Only
for Reasonable and Necessary Medical Expenses.
Bockness's primary argument is that Brown Jug must pay
for all of Bockness's treatments because they helped him move from
a medically unstable condition to a medically stable one. Relying
on AS 23.30.395's definition of medical stability as "the date
after which further objectively measurable improvement from the
effects of the compensable injury is not reasonably expected to
result from additional medical care or treatment,"[Fn. 7] Bockness
claims that "[s]ome kind of medical treatment is necessary, as a
matter of law, to achieve medical stability." Bockness reasons
that the treatments administered by Dr. Ferris and Dr. Morgan
during the period of medical instability -- May 25, 1994 to August
2, 1994 -- actually helped him move to a medically stable condition
and therefore are compensable. He argues that it was irrational
for the Board to determine that he would not recover from his
injury without medical care and then to refuse to pay for "the only
medical care he actually received . . . from 6/22/94 through
8/2/94." He argues that affirming the Board's decision would be
tantamount to a total denial of medical care during that time
Brown Jug responds to this argument by asserting that
Bockness's rights under the Workers' Compensation Act do not
include the right to receive unlimited medical benefits of the
employee's choosing but rather only to receive medical care that is
"reasonable and necessary"as determined by the Board. Brown Jug
argues that the Board's decision was not a blanket denial of
medical care; instead, the Board simply authorized Brown Jug to
refuse to pay for medical care that the Board found to be not
medically reasonable or necessary past June 22, 1994. We agree.
The Board did not deny coverage for any and all medical
care to Bockness during his period of medical instability. Rather,
it determined that Bockness's chosen course of treatment --
chiropractic care that exceeded statutory frequency standards,
together with Dr. Ferris's controversial injection therapy -- was
neither reasonable nor necessary. In fact, the Board found some of
the medical care obtained during his period of medical instability
-- May 25, 1994 through August 2, 1994 -- to be medically
indicated. It only found that a portion of these treatments --
those occurring after June 22 -- were unnecessary. This first
month's worth of treatments could have been the crucial factor in
Bockness's move toward medical stability.
While the Workers' Compensation Act may require employers
to authorize some medical care during periods of medical
instability as Bockness claims, the Act does not require employers
to pay for any and all treatments chosen by the injured employee.
Although no single provision states that all medical treatments
must be reasonable and necessary, at several points in the Alaska
Workers' Compensation Act the statutes make reference to that
concept. Alaska Statute 23.30.395 defines "medical and related
benefits"as those "physicians' fees, nurses' charges, hospital
services, hospital supplies, medicine and prosthetic devices,
physical rehabilitation, and treatment for the fitting and training
for use of such devices as may reasonably be required which arises
out of or is necessitated by an injury."[Fn. 8] Furthermore, the
Act itself states that employers are responsible only for providing
that medical care and those services "which the nature of the
injury or the process of recovery requires."[Fn. 9] Moreover, in
its provisions for independent medical examinations by the Board,
the Act lists "the amount and efficacy of the continuance of or
necessity of treatment"as a proper subject for Board inquiry and
evaluation. [Fn. 10] This provision indicates that the Board's
proper function includes determining whether the care paid for by
employers under the Act is reasonable and necessary.
Decisions of this court further support the view that
considerations of reasonableness and necessity may limit the
compensation due to an employee under the Act. We have stated that
the state's interests in passing the Act and associated regulations
include the "legitimate interest in curbing abuse by health
providers and claimants, discouraging needless or fruitless
treatments . . . and, in general, ensuring the delivery of
reasonable and necessary medical benefits to injured workers."[Fn.
11] The text of the Act itself, along with this judicial
interpretation, indicates that Alaska's statutory scheme limits an
employer's responsibility to medical care that is reasonable and
Wholesale adoption of Bockness's theory is also troubling
on policy grounds. Under his theory, employers would be obliged to
pay for any and all treatment chosen by the employee, no matter how
experimental, medically questionable, or expensive it might be, as
long as it was obtained during a period of medical instability
after which the claimant eventually showed improvement. Such a
result would be inconsistent with the Act's goal of keeping medical
costs stable and reasonable. [Fn. 12] Accordingly, we reject
Bockness's argument that employers must pay for any treatment
obtained during a temporary period of medical instability.
Of course, an employer cannot arbitrarily deny payment
for benefits or refuse compensation without notifying the employee
in advance that it is contesting certain medical care. Here, Brown
Jug repeatedly notified Bockness that it would refuse to pay for
these benefits; Brown Jug filed a series of controversion notices,
the first in April 1993. Thus, we are not presented with a
situation in which an employee suddenly is left to pay for medical
expenses without adequate notice that the employer did not consider
them reasonable and necessary. And, as we discuss below, Brown Jug
presented ample medical evidence to meet its burden of showing that
the treatments Bockness chose were not in fact reasonable or
B. The Board's Decision Was Supported by Substantial
Bockness challenges the Board's findings that the
treatments he received from Drs. Morgan and Ferris between June 22,
1994, and August 2, 1994 were not reasonable and necessary. First,
the Board found that Dr. Morgan's chiropractic treatments over and
above the treatment frequencies in 8 AAC 45.082(f) [Fn. 13] were
not justified. Second, the Board found that the injection therapy
provided by Dr. Ferris, along with some diagnostic testing he
referred Bockness to, should have been limited in duration to six
rather than nine weeks. Accordingly, the Board found the last
three weeks of injections not compensable.
1. The Board appropriately limited chiropractic
care to the treatment frequencies in 8 AAC 45.082(f).
Bockness argues with respect to Dr. Morgan's continuing
chiropractic adjustments that the Board committed reversible error
"by limiting Dr. Morgan's treatments to the rigid limits set forth
in"8 AAC 45.082(f) given that "[n]ot every one heals at the same
speed"and that Bockness had several serious exacerbations of his
back injury. Bockness believes that the Board "took the 'frequency
of treatments standards,' apparently meant to be an 'average'
treatment standard, and turned them into the absolute maximum
limit." These claims are without merit.
8 AAC 45.082(g) states:
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.
This provision is an essential part of the frequency standards
regulation. [Fn. 14] This court recently addressed the purposes
and design of the statutory frequency guidelines in Chiropractors
for Justice v. State. [Fn. 15] We explained that the frequency
standards 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."[Fn. 16] Indeed, this
feature of the standards -- that they are not an absolute maximum
-- was a crucial factor in this court's holding that the standards
did not violate substantive due process. [Fn. 17]
Thus, Bockness might have a sustainable claim of
reversible error if the Board had treated the standards as an
inflexible upper limit of the treatment Bockness could receive.
But nothing in the Board's decision supports Bockness's claim that
it viewed the frequency limits as absolute maximums. Indeed, the
Board declined to require Brown Jug to fund treatments above the
statutory standards. But the Board based its decision on its
finding that, while Dr. Morgan submitted a treatment plan pursuant
to 8 AAC 45.082(g), he failed to comply with that plan and exceeded
the limits set out in it. Moreover, the Board accepted the medical
evidence presented by Drs. Horning, Hadley, and the IME panel that
"chiropractic treatments, of such a passive nature, were not
necessary for such a long and extensive duration." In short, the
Board did not authorize treatments above the frequency limits
because Bockness's case did not satisfy the prerequisites of 8 AAC
45.082(g)(3) -- the Board, exercising its discretion, found that
"the employee has failed to prove his claim by a preponderance of
the evidence that the board's frequency standards are unreasonable
considering the nature of the employee's injury."[Fn. 18]
This finding by the Board -- that no special
circumstances justified chiropractic treatment above the frequency
limits -- was supported by substantial evidence. As Bockness
notes, Dr. Morgan testified as to his reasons for treating Bockness
more frequently than the statutory standards, explaining that
Bockness healed more slowly than was typical and suffered numerous
exacerbations of his condition. Dr. Morgan also stated his belief
that the frequency of treatments he provided to Bockness was
medically reasonable and necessary. Bockness testified that Dr.
Morgan's care eased his pain somewhat. The Board accepted this
testimony as credible.
But the Board also heard the opinions of the IME panel
and Drs. Hadley and Horning, all of whom disagreed with Dr. Morgan.
As early as December 1993, the IME panel stated that "[w]e do not
feel further chiropractic treatment is recommended"because "it
probably is not beneficial." Dr. Hadley similarly recommended in
March 1994 and again in May 1994 that chiropractic adjustments be
discontinued because they were passive treatments that would not
"help [Bockness] functionally progress." Dr. Horning concurred,
voicing his opinion that the chiropractic adjustments should have
been discontinued after four to six weeks when they did not produce
significant gains. The Board accepted the medical evidence
presented by the IME panel and Drs. Hadley and Horning as
convincing. Given that this court "will not disturb the Board's
decision to choose to rely on one medical opinion rather than
another,"[Fn. 19] the Board's decision to refuse to authorize
additional treatments above the frequency standards was supported
by substantial evidence. [Fn. 20]
Thus, we affirm the Board's refusal to require Brown Jug
to pay for Dr. Morgan's treatments to the extent they exceed the
treatment frequency standards set out in 8 AAC 45.082(f).
2. The Board appropriately limited Dr. Ferris's
treatment of Bockness.
Bockness also challenges the Board's finding that the
epidural and trigger point injections provided by Dr. Ferris, along
with some referrals made by Dr. Ferris, were not reasonable or
necessary. We reject these claims as well.
Bockness first saw Dr. Ferris in May 1994. Dr. Ferris
diagnosed him with myofacial pain with trigger points and a sleep
disturbance. Dr. Ferris began administering a regimen of physical
therapy together with trigger point and epidural injections and
medications. Ultimately, Bockness had three trigger point
injections and three epidural injections over a two-month period.
[Fn. 21] Dr. Ferris testified that his treatment of Bockness was
reasonable and necessary and that he followed accepted protocols in
administering the injections. While conceding that his treatment
methods were controversial, Dr. Ferris maintained that they were
medically indicated and helpful to Bockness. The Board found that
this testimony established the presumption of compensability and
stated: "Dr. Ferris's treatment, although controversial, is
recognized by the medical community. Therefore, we find his
treatment, if applied properly, to be reasonable and necessary, and
But the Board also had before it the medical opinion of
two other physicians who disagreed with Dr. Ferris's assessment and
treatment of Bockness. With reference to trigger point injections,
Dr. Horning, citing medical authority, expressed his belief that
such injections have not satisfactorily been proven effective. Dr.
Horning testified that, while trigger point and epidural injections
might be reasonable to try briefly, such injections should not
extend beyond a six-week period and that nothing in the medical
literature supported continuing beyond that period without
tremendous improvement by the patient. He concluded that only the
first two injections received by Bockness were medically indicated.
Dr. Hadley also concluded that neither epidural injections, trigger
point injections, nor the medications prescribed by Dr. Ferris were
medically indicated for Bockness. Both Dr. Horner and Dr. Hadley
found that the referral tests recommended by Dr. Ferris were not
medically indicated. The Board relied on these two opinions to
conclude that only six weeks of Dr. Ferris's treatments, and not
his referrals, were compensable. Thus, the Board had substantial
evidence to support its finding.
Because the Board correctly applied the law to Bockness's
claim and because substantial evidence exists to support the
Board's decision, we AFFIRM.
The parties agree that the injury was work related.
Alaska Statute 23.30.095(c) states in part:
When a claim is made for a course of treatment
requiring continuing and multiple treatments of a similar nature,
. . . 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.
8 Alaska Administrative Code (AAC) 45.082(f) (1998) reads as
If an injury occurs on or after July 1, 1988,
and requires continuing and multiple treatments of a similar
nature, the standards for payment for frequency of outpatient
treatment for the injury will be as follows. Except as provided in
(h) of this section, payment 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, . . . the board will, in its discretion, approve payment
for more frequent treatments.
See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456 (Alaska
1997) (quoting Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046
See Grove, 948 P.2d at 456 (citing Guin v. Ha, 591 P.2d 1281,
1284 n.6 (Alaska 1979)).
AS 23.30.395(20) (emphasis added).
AS 23.30.095(a). Bockness, without explanation, asserts that
adoption of his position "will support and sustain"several
provisions of the Act, including this section. But since this
section by its terms refers to necessary medical care, it is
unclear how this section supports Bockness's position. Bockness
also cites to AS 23.30.095(c) (requiring submission of treatment
plans to the Board for continuing and multiple treatments), AS
23.30.120 (presumption of compensability), and AS 23.30.395(21)
(definition of medical stability), but does not explain how
requiring employers to fund all medical care -- even if not
reasonable or necessary -- will further the statutory intent of
Chiropractors for Justice v. State, 895 P.2d 962, 966 (Alaska
1995) (emphasis added).
The text of this regulation appears supra note 3.
The existence of this regulation makes clear that Bockness is
incorrect in his speculation that "one would think that recurrent
disability is sufficient in and of itself to justify a departure
from the normal frequency of treatment standards." Contrary to
this surmise, the regulation articulates a very clear policy of the
situations in which it is appropriate for the Board to authorize
treatments exceeding the standards. The Board found that Bockness
simply did not meet those standards.
895 P.2d 962 (Alaska 1995).
Id. at 967.
See id. at 966-68.
Cf. Hale v. Anchorage Sch. Dist., 922 P.2d 268, 270-71 (Alaska
1996) (employer became liable for treatment in excess of frequency
standards only after board found that conforming treatment plan was
timely filed and that treatments were likely to improve employee's
Brown v. State, 931 P.2d 421, 425 (Alaska 1997) (citing Miller
v. ITT Arctic Servs., 577 P.2d 1044, 1049 (Alaska 1978)).
Bockness also reiterates his substantial evidence arguments,
reframed as a contention that Brown Jug did not rebut the statutory
presumption of compensability in AS 23.30.120. An employer can
overcome this presumption by producing rebuttal evidence that,
viewed by itself, is substantial evidence that the medical
treatment is not compensable. See Bouse v. Fireman's Fund Ins.
Co., 932 P.2d 222, 231-22 (Alaska 1997). Here, the same
affirmative evidence upon which the Board relied in determining
that the care Bockness received was not reasonable or necessary
also is sufficient to rebut the presumption of compensability.
These treatments do not fall under the treatment frequency
standards in 8 AAC 23.30.095(c). The Board determined that a
series of three injections did not constitute continuing and
multiple treatment, and the parties have not challenged this