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Hale v. Anchorage School District (8/16/96), 922 P 2d 268
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) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
PIER HALE, )
) Supreme Court No. S-6180
) Superior Court No.
v. ) 3AN-91-6659 Civil
ANCHORAGE SCHOOL DISTRICT, ) O P I N I O N
Appellee. ) [No. 4389 - August 16, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Milton Souter, Judge.
Appearances: Michael J. Jensen, Chancy Croft
Law Office, Anchorage, for Appellant.
James M. Bendell, Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh and Fabe, Justices.
COMPTON, Chief Justice.
Pier Hale appeals the superior court's affirmance of a
Workers' Compensation Board decision denying her claim for certain
medical expenses. The Board held that the Anchorage School
District was not required to pay Hale's physical therapist for
treatments in excess of the Board's standard treatment frequency
because the physical therapist failed to submit a conforming
treatment plan within the statutory period. The Board also held
that the School District was required to pay Hale's chiropractor
for ten treatments. We affirm the former holding and reverse the
II. FACTS AND PROCEEDINGS
The following facts are taken from Anchorage Sch. Dist.
v. Hale, 857 P.2d 1186 (Alaska 1993) (Hale I), the first appeal of
On September 26, 1988, Pier Hale suffered
injuries to her back and right shoulder while
working as a teachers' assistant for the
Anchorage School District. She received
medical attention for these injuries at the
Providence Hospital Emergency Room on October
2nd. Three days later her doctor recommended
that she undergo daily therapy for these
injuries for two weeks. This therapy began on
October 7, 1988, at Anchorage Physical
Therapists. Since daily therapy would exceed
the number of compensable treatments allowed
under the Alaska Workers' Compensation Board's
(Board) continuing treatment guidelines, 8
Alaska Administrative Code (AAC) 45.082(f)
(1992), Hale was required to gain Board
approval for the excess treatments if she
wanted her employer to pay for them. The
Board can give such approval only if the
employee's doctor furnishes the employer with
a detailed treatment plan within fourteen days
after starting the treatments. AS
On October 7, Physical Therapists
prepared a treatment plan, but failed to
include the statutorily required information
regarding the "objectives, modalities,
frequency of treatments, and reasons for the
frequency of treatments." AS 23.30.095(c).
Physical Therapists did not prepare a full
treatment plan until November 1, 1988, after
the statutory period for filing the plan had
expired. The School District issued a
controversion notice for Hale's physical
therapy, arguing that it had not received the
treatment plan within the statutory period and
thus was not required to compensate Hale for
continuing treatments in excess of the
regulation's frequency standards. The School
District subsequently paid for some but not
all of Hale's treatments.
Hale filed an application for adjustment
of claim with the Board seeking payment for
her treatments in excess of the Board's
frequency standards. The Board denied this
request, limiting Hale to compensation for the
number of treatments allowed under the Board's
guidelines. The Board based its decision
solely upon Physical Therapists' failure to
file a timely, conforming treatment plan.
Hale appealed the Board's decision to the
superior court on the ground that the Board's
standards and procedures for compensation for
continuing similar treatments are invalid.
The superior court held that 8 AAC 45.082(f)
is invalid, reversed the Board's decision, and
remanded the case to the Board for further
consideration. The School District then filed
this petition for review.
Id. at 1187-88 (footnotes omitted). In Hale I we held that 8 AAC
45.082(f) was a valid exercise of the Board's rulemaking authority.
Id. at 1188-91. We reversed and remanded for further proceedings.
Id. at 1191.
On remand, the superior court affirmed the Board on the
medical expenses issue, holding that the School District was not
required to pay Physical Therapists for treatments in excess of the
Board's frequency standards, based on Physical Therapists' failure
to file a timely treatment plan. The superior court also affirmed
the Board's order requiring the School District to pay for ten
chiropractic treatments Hale received from Dr. Kenneth Ketz. Hale
A. Standard of Review
When the superior court acts as an intermediate appellate
court, we review the merits of the underlying administrative
decision, giving no deference to the superior court's
determination. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co.,
746 P.2d 896, 903 (Alaska 1987). We review the Board's denial of
Hale's medical expenses claim under the independent judgment test,
since whether Physical Therapists failed to file a treatment plan
in accordance with AS 23.30.095(c) is a question of law involving
no agency expertise. See Handley v. State, Dep't of Revenue, 838
P.2d 1231, 1233 (Alaska 1992). We review the Board's factual
finding that Dr. Ketz was entitled to reimbursement for ten
chiropractic treatments under the substantial evidence test. Id.
B. Physical Therapists' Treatments
Hale argues that Physical Therapists complied with
AS 23.30.095(c) (EN1) by submitting a treatment plan within
fourteen days after it was determined that Hale would need
continuing treatment. Hale misreads AS 23.30.095(c) by assuming
that a health care provider's obligation to file a treatment plan
turns on the indefinite or continuous nature of the recommended
treatment. In fact, the obligation to file a treatment plan is
entirely dependent on the frequency, not the duration, of
treatments. By its plain language, AS 23.30.095(c) requires a
physician or health care provider to submit a conforming treatment
plan "if the course of treatment will require more frequent
outpatient visits than the standard treatment frequency . . . ."
AS 23.30.095(c). If the treatments exceed the standard treatment
frequency, then a plan must be submitted "within 14 days after
treatment begins." Id.
The standard treatment frequency for the first month of
any treatment is three treatments per week. 8 AAC 45.082(f). On
October 7 Hale began receiving daily physical therapy at Physical
Therapists. It was therefore incumbent on Physical Therapists to
submit a conforming treatment plan by October 21, in order to be
paid for treatments in excess of the standard treatment frequency.
AS 23.30.095(c). This was the Board's conclusion. We agree.
Hale argues that the Board's reading of AS 23.30.095(c)
places an unfair burden on the health care provider by requiring it
to anticipate, at the outset, that the prescribed treatment will
continue "for some indefinite period of time." As the statutory
analysis outlined above makes clear, Physical Therapists needed no
"clairvoyance"to comply with AS 23.30.095(c). Once it began a
course of treatment of daily physical therapy, the fourteen-day
notification period of AS 23.30.095(c) commenced. Regardless of
when Hale's treating physician determined that Hale would need
long-term physical therapy, Physical Therapists was required to
submit a conforming treatment plan within fourteen days after
October 7, the date it began physical therapy in excess of the
standard treatment frequency. (EN2)
C. Dr. Ketz's Treatments
On April 24, 1989, Hale began a course of treatment with
Dr. Kenneth Ketz. On April 27 Dr. Ketz filed a treatment plan
calling for chiropractic treatments in excess of the standard
treatment frequency. The Board found that the plan was timely
filed; that it conformed with AS 23.30.095(c); and that the
treatments called for in the plan were likely to improve Hale's
condition. See 8 AAC 45.082(g). The effect of these findings was
to make the School District responsible for all of Dr. Ketz's
treatments, including those in excess of the standard treatment
frequency. After reviewing the payments the School District had
already made to Dr. Ketz, the Board determined that the School
District still owed Dr. Ketz for eleven treatments. Later in the
same decision, the Board held, without explanation, that Dr. Ketz
was entitled to payment for ten treatments.
The Board's initial finding that Dr. Ketz was owed for
eleven treatments was correct. The Board's later conclusion that
Dr. Ketz was owed for ten treatments is not supported by
substantial evidence. We therefore reverse, and direct the Board
on remand to enter an order requiring the School District to pay
Dr. Ketz for eleven treatments.
We AFFIRM the Board's holding that the School District
was not required to pay Physical Therapists for treatments in
excess of the standard treatment frequency. We REVERSE the Board's
holding that the School District must pay Dr. Ketz for ten
chiropractic treatments. The case is REMANDED to the Board for an
order requiring the School District to pay Dr. Ketz for eleven
1. AS 23.30.095(c) provides 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
2. Hale argues in her reply brief that the Board should have
excused Physical Therapists' failure to file a timely treatment
plan. See AS 23.30.095(c) ("The board shall, however, excuse the
failure to furnish notice [of injury and treatment] within 14 days
when it finds it to be in the interest of justice to do so.").
This argument was not made below and is therefore waived. See
Nenana City Sch. Dist. v. Coghill, 898 P.2d 929, 934 (Alaska 1995);
see also Alaska R. App. P. 212(c)(3) (A reply brief "may raise no
contentions not previously raised in either the appellant's or