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Alcan Electric and Royal Ins. Co. v. Bringmann (4/10/92), 829 P 2d 1187
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NOTICE: This opinion 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 C0URT OF THE STATE OF ALASKA
ALCAN ELECTRIC and ROYAL INSURANCE )
COMPANY, )
)
Appellants and )
Cross-Appellees, ) Supreme Court Nos.
) S-4104/S-4143
v. )
) Superior Court No.
SKIPP A. BRINGMANN, ) 3AN-89-2196 Civil
)
Appellee and ) O P I N I O N
Cross-Appellant. )
) [No. 3829 - April 10,
1992]
___________________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Roy H. Madsen, Judge.
Appearances: Meredith A. Ahearn,
Hagans, Brown, Gibbs & Moran, Anchorage, for
Appellants. Chancy Croft, Chancy Croft Law
Office, Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
RABINOWITZ, Chief Justice.
I. INTRODUCTION
This is an appeal from the superior court's reversal of
a decision by the Alaska Workers' Compensation Board which denied
Skipp Bringmann reimbursement for transportation expenses
incurred in obtaining medical treatment in California.
Bringmann's cross-appeal concerns the superior court's affirmance
of the Board's choice of date for retroactive application of
temporary total disability compensation based on Bringmann's
status as a journeyman electrician.
II. FACTS AND PROCEEDINGS
While working as an apprentice electrician for Alcan
Electrical & Engineering Co. (Alcan) in November 1987, Skipp
Bringmann fell approximately twenty-five feet from a ladder and
sustained serious injury to his feet. Bringmann applied for
workers' compensation benefits and was awarded temporary total
disability benefits. The compensation amount was based on his
status as an apprentice electrician at the time of his accident.
Initially, Bringmann was treated by Dr. Declan Nolan,
an Anchorage orthopedic surgeon. Dr. Nolan's prescribed course
of treatment for Bringmann was to wait about a year and if the
bones had not naturally fused, he would then perform a "triple
arthrodesis."1 While the triple arthrodesis would reduce
Bringmann's pain, it would also eliminate most of the motion in
his lower ankle.
Unsatisfied with Dr. Nolan's proposed course of
treatment, Bringmann consulted doctors in Hawaii and Washington,
who agreed with Dr. Nolan's recommendations. Finally, Bringmann
consulted Dr. Bryan Kerns, a licensed podiatrist in Huntington
Beach, California, who recommended an operation involving a
combination of several procedures which would alleviate the pain
and allow a greater range of motion.
On April 26, 1988, Dr. Kerns, employing six different
procedures, operated on Bringmann's left foot for approximately
five hours. Bringmann testified that the surgery was very
successful in reducing his pain and increasing his mobility.
While some of the procedures performed by Dr. Kerns were normally
simple when performed individually, Dr. Kerns testified that,
under the circumstances, the procedures performed upon Bringmann
were "extremely complicated." Although there is no evidence that
Dr. Nolan considered performing such combination of procedures on
Bringmann, he testified that he could have performed each of the
procedures individually.
In March 1988, Bringmann was found to have worked the
requisite 8,000 hours as an apprentice electrician and was
certified to take the journeyman electrician's licensing
examination. Although Bringmann could have taken the examination
earlier, he did not take the examination until September 1, 1988.
Despite the delay in taking the journeyman examination, Bringmann
claimed that he was entitled to an increased rate of compensation
based on a journeyman electrician's status as of March 16, 1988,
the date on which he was eligible to take the examination.
The Workers' Compensation Board (Board) held a hearing
on the issues of the compensability of transportation costs to
California and the rate of compensation. The Board denied
Bringmann's request for reimbursement of his transportation costs
associated with the medical treatment he received in California
finding that "there were adequate medical treatment facilities
available in Anchorage to treat Employee's medical problems."
The Board also concluded that the increased compensation rate was
retroactive to September 1, 1988, the date Bringmann passed his
journeyman electrician's licensing examination.
On June 28, 1990, the superior court affirmed the
Board's conclusion that the increased compensation rate was
retroactive to September 1, 1988, and reversed the Board's denial
of transportation costs associated with the medical treatment
Bringmann received in California. Both Alcan and Bringmann
appeal.
III. DISCUSSION
A. Transportation Costs
Alcan argues that the superior court erred when it
reversed the Board and ordered reimbursement for the
transportation costs that Bringmann incurred in obtaining medical
treatment in California.2 Alaska Statute 23.30.095(a) requires
employers to furnish medical and surgical treatment to an
employee injured on the job for two years after injury. Relying
on the language of AS 23.30.265(20), which provides that
"'medical and related benefits' includes . . . transportation
charges to the nearest point where adequate medical facilities
are available," Alcan asserts that Bringmann failed to
demonstrate that adequate treatment was not available in Alaska.
Bringmann responds that only Dr. Kerns considered and recommended
the surgery that he successfully performed. He also argues that
the Board failed to apply the presumption of compensability under
AS 23.30.120(a)(1).
The Board placed the burden of proof on Bringmann to
show that the location of the medical facility he chose was the
nearest adequate medical facility. The Board further stated that
"[e]ven if the statutory presumption found [in] AS 23.30.120 was
stretched beyond logic and reason to include an issue such as
this, Defendants have produced substantial evidence (via Dr.
Nolan) to rebut the presumption." The Board found that Dr. Nolan
or other skilled orthopedic surgeons could have performed the
surgery and therefore adequate medical facilities were available
in Anchorage. The superior court reversed the Board,
reasoning:
the board did not find that Dr. Nolan
gave consideration to this particular
combination of surgical procedures as an
alternative to fusion, and the Board did not
find that Dr. Nolan provided Bringmann with
this option . . . .
. . . What is crucial is that Dr.
Kerns' [sic] proposed a new standard for what
is "adequate" in treating a crushed foot
which Bringmann could not find in Anchorage,
Honolulu or Seattle.
The legislature amended Alaska
Statutes 23.30.095(a) in 1988, deleting the
requirement that the injured employee first
designate a licensed physician "in the
state." This amendment shows that the
legislature intended to drop the parochial
view that adequate treatment is always
available in this state.
At oral argument, Bringmann correctly relied on Olsen
v. AIC/Martin J.V., 818 P.2d 669, 675 (Alaska 1991), for the
proposition that "the presumption of compensability applies to
continuing medical care." Bringmann's transportation expenses to
California for treatment were clearly part of his ongoing medical
care. Thus we hold that the Board erred in failing to apply the
presumption of compensability to Bringmann's transportation
costs.
Alcan concedes that an employee is entitled to out of
state medical treatment when equally beneficial treatment is not
available in the employee's home state. See 2 A. Larson, The Law
of Workmen's Compensation 61.13(b)(2) (1989). Alcan relies on
Braewood Convalescent Hospital v. Worker's Compensation Appeals
Board, 666 P.2d 14 (Cal. 1983), which held that "the employer
must present evidence demonstrating the availability of a
similar, or equally effective program in a more limited
geographic area closer to [the injured worker's] domicile." Id.
at 20. Alcan argues that it demonstrated the availability of a
similar, or equally effective program in Alaska. Bringmann
responds that although Dr. Nolan was capable of performing the
individual procedures, Dr. Nolan did not actually consider and
recommend to him the combination of procedures required to treat
his injury.
We agree with Bringmann that the combination of
procedures performed by Dr. Kerns was not available in Alaska.3
Dr. Nolan did not provide Bringmann with an alternative to a
triple arthrodesis. There is no evidence to suggest that Dr.
Nolan considered the combination of the six procedures that Dr.
Kerns performed on Bringmann, although he testified he could have
performed each of the procedures individually. Furthermore,
Alcan presented no evidence that any other doctor in Alaska
considered or recommended that combination of surgical
procedures. Similarly, the doctors Bringmann consulted in Hawaii
and Washington did not consider or recommend that combination of
surgical procedures. If a doctor does not provide an option to
the patient, regardless of the doctor's skill level, the option
is unavailable to that patient. Alcan has failed to demonstrate
that "adequate medical facilities"were available within the
state. Bringmann's evidence, together with the unrebutted
presumption, satisfied his burden of proof that adequate medical
treatment was unavailable in Alaska. Therefore, we affirm the
superior court's decision requiring reimbursement by Alcan of
Bringmann's transportation expenses incurred in obtaining medical
treatment in Huntington Beach, California.
B. Retroactive Compensation
Bringmann contends that the Board erred by refusing to
retroactively apply the journeyman electrician's compensation as
of March 16, 1988, the date he became eligible to take the
journeyman electrician's examination. He relies on AS
23.30.220(a)(3) for the proposition that the Board may consider
the fact that an apprentice electrician would have received a
wage increase absent an injury.4 According to Bringmann, the
Board erroneously relied "on actual post injury occurrences
rather than a determination of what would have been likely absent
an injury." Alcan responds that there is substantial evidence to
support the Board's finding that "Bringmann's injury did not
prevent him from qualifying as a journeyman before September 1,
1988,"the date he passed the examination.
We will affirm the Board's decision if it is based on
substantial evidence. Black v. Universal Servs., Inc., 627 P.2d
1073, 1075 (Alaska 1981). Finding that the increased rate of
compensation was effective on September 1, 1988, the Board
stated,
[t]here are two requirements to become a
journeyman wireman, and Employee did not
complete both requirements until September 1,
1988 when he passed the written test. We are
not persuaded by Employee's excuses for not
taking the test sooner than he did. Besides,
Employee admitted he could have studied two
or three hours per day despite his initial
dim employment outlook and the medications he
was taking. . . . We find no persuasive
evidence that this status would have been
attained sooner.
(Footnote omitted).
Affirming the board, the superior court summarized the
evidence as follows:
Bringmann himself testified that the
examination required 40 hours of study and
that he was capable of two to three hours of
study per day in spite of his injury. Tr. at
34. Bringmann also testified that he
vacationed on the Island of Maui for the
month of January. Tr. at 45 Had Bringmann
chosen, he could have studied two to three
hours a day while he was on vacation and
adequately prepared to take the examination
in March.
(Citations in original).5 Since there is substantial evidence in
the record to support the Board's decision to retroactively grant
the agreed compensation rate increase only to September 1, 1988,
we affirm this portion of the superior court's decision affirming
the Board's disposition of this issue.
The decision of the superior court is AFFIRMED.
_______________________________
1. A triple arthrodesis is a surgical procedure whereby two
major joints, the calcaneal joint and the midtarsal joint, of the
foot are fused.
2. The standard of review for questions of statutory
interpretation that do not involve board expertise is the
substitution of judgment standard. Phillips v. Houston
Contracting, Inc., 732 P.2d 544, 547 (Alaska 1987).
3. Dr. Kerns recommended and performed the following six
procedures:
1. Radical decompression of
posterior tibial nerve, left foot.
2. Tendo-Achilles lengthening,
left foot.
3. Release and reconstruction of
the peroneal tendon and sheath with
decompression sural nerve, left foot.
4. Decompression osteotomy of the
calcaneus with internal screw fixation,
left foot.
5. Insertion of Jackson Pratt
closed suction drainage system, left
foot.
6. Application of posterior
splint, left leg.
4. AS 23.30.220(a)(3) provides:
if an employee when injured is a minor,
an apprentice, or a trainee in a formal
training program, as determined by the board,
whose wages under normal conditions would
increase during the period of disability, the
projected increase may be considered by the
board in computing the gross weekly earnings
of the employee[.]
5. Bringmann stated, "[the examination] requires a
considerable amount of study. . . . I probably put in . . . 40
quality hours of studying. At the time . . . I first was
accredited the hours I don't think I could have got in maybe --
maybe two or three hours of quality studying . . . a day."
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