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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bockus v. First Student Services (12/2/2016) sp-7137

Bockus v. First Student Services (12/2/2016) sp-7137, 384 P3d 801

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  


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                      THE SUPREME COURT OF THE STATE OF ALASKA                                      

JONATHAN  BOCKUS,                                               )  

                                                                )         Supreme  Court  No.  S-15784  

                        Appellant,                              )  

                                                                )         Alaska  Workers'  Compensation  

                                                                )         Appeals  Commission  No.   14-008  

           v.                                                   )  


                                                                )         O P I N I O N  


FIRST STUDENT SERVICES and                                      )  


SEDGWICK CMS, INC.,                                             )         No. 7137 - December 2, 2016  


                        Appellees.                              )  



                        ppeal from the Alaska Workers' Compensation Appeals  



                     Appearances:   J. John Franich, Franich Law Office, LLC,  


                     Fairbanks, for Appellant.  Krista M. Schwarting, Griffin &  


                     Smith, Anchorage, for Appellees.  


                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                     and Carney, Justices.  


                     BOLGER, Justice.  



                     A school bus driver injured his back moving a gate.  He had two spinal  


surgeries, and his surgeon ultimately recommended a third.  About the same time, the  


driver's employer scheduled a medical examination, which delayed the planned surgery:  


the driver's surgeon would  not schedule the surgery while the employer's medical  


evaluation was pending. So the driver filed a workers' compensation claim for the third  

----------------------- Page 2-----------------------


surgery, and the employer's doctor ultimately agreed another surgery was appropriate.  


The Alaska Workers' Compensation Board awarded the driver his attorney's fees under  


AS  23.30.145(b),  finding  the  employer  had  resisted  these  benefits,  but  the  Alaska  


Workers' Compensation Appeals Commission reversed the fee award.  We conclude  


there was substantial evidence supporting the Board's finding and therefore reinstate the  





                    Jonathan  Bockus  worked  as  a  substitute  bus  driver  for  First  Student  


Services in Fairbanks. In March 2013 he injured his back pulling open a chain-link gate;  


he felt a pop in his back and had severe pain radiating into his legs shortly afterwards.  


He was taken by ambulance to the emergency room at Fairbanks Memorial Hospital,  


where an MRI showed a large disc herniation at T10-T11 and resulting spinal cord  


impingement.            Because  no  neurosurgeon  was  available  in  Fairbanks,  Bockus  was  


medivaced to Anchorage. In Anchorage a repeat MRI showed the same problem as well  


as cord edema. Dr. Kim Wright, a neurosurgeon, recommended surgical decompression  


of the spinal cord.  


                    Dr. Wright attempted to performa right T10-T11 laminectomy on March 8,  


but during surgery he was not able to locate the correct level of the spine due to Bockus's  


"body habitus."  After making an incision and beginning the surgery at what he thought  


was the correct level, Dr. Wright did not find the expected amount of disc material.  He  


nonetheless removed a calcified ligament and a synovial cyst. He thought he might have  


been off one level, but he decided it would be better to end the surgery, have a repeat  


MRI, and decide what to do next rather than continue to try to locate the correct level.  


                    Another MRI done later that day showed a continuing disc herniation and  


"cord distortion"  at T10-T11  as well as surgical changes at T11-T12.                                           Dr.  Wright  


performedanother surgerythefollowing day, thistimeat thecorrect level; decompressed  

                                                               -2-                                                        7137

----------------------- Page 3-----------------------


the spinal cord; and removed a calcified ligament and "a sizeable free fragment disc  


herniation." Bockus reported feeling better the following day. The imaging studies done  


after the second surgery showed some residual problems at the T10-T11 level, but  


Dr. Wright recommended  to  Bockus that he try  conservative management because  


surgical treatment would require fusion.  


                    In correspondencerelated tothesurgery, theworkers'compensationcarrier  


asked Dr. Wright whether Bockus's work-related injury was the substantial cause of the  


first surgery, at the T11-T12 level; Dr. Wright responded that it was, even though the  


cyst was likely a preexisting condition, and explained that the work-related ruptured disc  


caused the need for any surgery at all.  The carrier then sent Bockus's medical records  


to its doctor, Dr. Paul Williams, also a neurosurgeon, for review.  Dr. Williams agreed  


both surgeries were reasonable and necessary and additionally gave the opinion that the  


work-related accident was the substantial cause of Bockus's thoracic back condition.  


                    Bockus had several post-surgery visits with Dr. Wright and his staff, for  


which  First  Student  paid.                 Bockus  reported  recurring  pain  in  his  mid-back,  and  


Dr. Wright initially suggested continuing conservative care. An MRI from June showed  


residual disc material at T10-T11 as well as cord impingement and "severe right neural  


foraminal stenosis."   Over the next few weeks Bockus's pain increased, Dr. Wright  


recommended  a  third  surgery,  and  the  carrier  decided  to  have  Bockus  undergo  an  


employer's independent medical evaluation (EIME) in Anchorage with Dr. Williams.  


                    Bockusand Dr. Wright discussed further surgeryinmid-July,when Bockus  


"report[ed]  significant  pain"  with  numbness;  after  considering  his  options  Bockus  


decided to have a fusion surgery.  At about the same time, the adjuster scheduled the  


EIME, initially for Saturday, July 27.  Bockus had already spent a significant amount in  


non-refundable fees to attend a family reunion that day, so the EIME was rescheduled  


for  September  27,  Dr.  Williams's  next  available  in-person  appointment.                                            When  

                                                               -3-                                                         7137

----------------------- Page 4-----------------------

Dr. Wright's scheduling assistant called the workers' compensation carrier to verify                                                                                                                                                                

coverage for the surgery, the carrier told her that the claim was open and billable but that                                                                                                                                                                

an EIME was scheduled.                                                          The assistant did not schedule the surgery then because of                                                                                                                      

office policy not to schedule surgery in the face of a pending EIME; according to the                                                                                                                                                                        

assistant this policy is meant to protect patients from being stuck "with a huge bill that                                                                                                                                                                 

                                                                                                                                                                                                                         1  The assistant  

they can't pay," presumably in case the EIME leads to a controversion.                                                                                                                                                                       

would have gone ahead and scheduled the surgery, even with a pending EIME, if the  


carrier had "authorized it," but the carrier did not do so in July.  


                                        After the adjuster found out that Dr. Wright had recommended another  


surgery, she asked Dr. Williams to perform a records review in lieu of having an in- 


person appointment; she testified that Dr. Williams "was not able to opine on any of the  


issues  because  he  wanted   to  do  a  physical  evaluation  of  Mr.  Bockus  first."  


Dr. Williams's second records examination, dated July 29, indicated that he reviewed the  


June MRI and gave the opinion that the March work-related injury was the substantial  


cause of Bockus's current condition and that the preexisting conditions Dr. Williams  


identified in the report were not the substantial cause of Bockus's condition.  He also  


wrote that he was "unaware of an alternate explanation" that might exclude the work- 


related injury as the substantial cause of Bockus's "medical complaints."  


                                         Dr. Williams declined to answeranumber ofother questions, including one  


about the reasonableness or necessity of a list of nine treatment options, without first  


examining Bockus.  None of the questions informed Dr. Williams that Dr. Wright had  


                     1                   Because   an  employer   is   subject   to   a   penalty   if   it   controverts   benefits  

without a factual basis for the controversion,                                                                                          see Harp v. ARCO Alaska, Inc.                                                                   , 831 P.2d       

352, 358 (Alaska 1992), an EIME may be a prerequisite to a controversion of medical                                                                                                       

care.    As First Student acknowledged at oral argument before us, adjusters may tell                                                                                                                                                                       

doctors about EIMEs so they know there is a possibility the carrier will deny the claim                                                                                                                                                               

if the carrier decides the treatment is not compensable.                                                                                                                

                                                                                                                               -4-                                                                                                                      7137

----------------------- Page 5-----------------------

recommended a third surgery and thus did not ask Dr. Williams to give an opinion about                                                                                              

whether a third surgery was necessary and "within the realm of medically accepted                                                                                           



options"              for treating Bockus's condition.  


                              Bockus saw Dr. Wright again in early August and reported increased pain.  


He said he could no longer stand completely upright because of the pain; the chart notes  


reflect that Bockus was "ready to proceed with surgery but his workers['] compensation  


company will not approve it until the [E]IME is completed."  The care plan section of  


the chart notes says, "We are simply awaiting his new [E]IME and approval for surgery."  


The care plan also indicates that Bockus asked to see a pain management doctor "to be  


able to get through" until the EIME.  


                              After contacting Dr. Wright's office and the compensation carrier several  


times about the surgery, Bockus sought the assistance of an attorney. The attorney wrote  


to the adjuster "informing [her] that the treating physician had recommended a third  


surgery,  and  that  [she]  was  not  approving  the  surgery  unless  and  until  it  was  


recommended by [the carrier's] physician."  The attorney then filed a written workers'  



compensation claim for Bockus.  The claim cited Summers v. Korobkin Construction,  


and alleged the carrier had controverted in fact medical care in that it had "resisted  


payment of medical benefits by not approving surgery that ha[d] been recommended by  


[the] treating physician until after an EIME."  

               2             Phillip Weidner &Assocs. v. Hibdon                                               , 989 P.2d 727, 732-33 (Alaska 1999)                                  

(holding that if the employee's physician recommends a course of treatment within the                                                                                                     

first two years following injury, the employer, to demonstrate that the treatment is not                 

compensable, must prove "that the treatment is neither reasonable and necessary, nor                                                                                                     

within the realm of acceptable medical options under the particular facts").                                                                          

               3              814 P.2d 1369 (Alaska 1991).  


                                                                                             -5-                                                                                     7137

----------------------- Page 6-----------------------


                    BockusattendedtheEIMEin lateSeptember. Dr. Williams didnotperform  


a range of motion examination on Bockus's thoracic spine "for fear of causing further  


herniation of Mr. Bockus'[s] recurrent disc at T10-T11."   Dr. Williams diagnosed a  


"recurrent disc herniation on the right at T10-T11"; he thought the work-related injury  


was still the substantial cause of Bockus's condition and thought a "[r]epeat discectomy  


at T10-T11" would likely bring objectively measurable improvement.  He also said the  


"work injury remains the substantial cause of the need for treatment" because Bockus  


was "asymptomatic" before the injury.  


                    Dr. Williams wrote an October 10 addendum to the report, responding to  


First Student's questions about the likely length of time Bockus would need physical  


therapy  after  surgery;  none  of  the  supplemental  questions  was  related  to  the  


reasonableness or necessity of the surgery itself.  The carrier approved the surgery on  


October 16 or 17, after Dr. Wright's office contacted the adjuster to find out why the  


surgery had not yet been preauthorized.  First Student then filed its answer to Bockus's  


compensation  claim  on  October  17,  denying  it  had  controverted  medical  care  and  


asserting there was no basis for an attorney's fees award.  


                    Bockus had the surgery in early November.   First Student paid for the  


surgery, so by the time of the Board hearing the only unresolved issue was attorney's  


fees. Bockus sought attorney's fees under AS 23.30.145(a) (for a controversion in fact)  


or (b) (for resistance to a claim).  First Student argued it had neither controverted in fact  


nor resisted the claim for benefits.  


                    Bockus and the insurance adjuster testified in person at the Board hearing,  


and the doctor's scheduling assistant testified by deposition.  Bockus testified he had  


made "numerous" calls to Dr. Wright's office to ask about the surgery and about three  


calls to the adjuster about it.  He said the adjuster would tell him his claim was open but  


would "never say yes or no" about the surgery.  He agreed the adjuster had not told him  

                                                               -6-                                                         7137

----------------------- Page 7-----------------------


the surgery had been denied; instead, according to Bockus, she told him she was not  


saying he could not have the surgery, she was "just saying that [she couldn't] tell [him]  


at this time."  His impression was that Dr. Wright's office had contacted the adjuster to  


get authorization for the surgery.  


                     The  adjuster,  Kymberly  LaRose,  testified  that  she  initiated  the  EIME  


process a few days before Bockus told her he might need a third surgery.  Bockus told  


her of the potential for an additional surgery when she called to "do a regular check-in";  


she told him at that time that she had scheduled him for an EIME. She also said she tried  


to speed things up by asking the doctor to do another records review, but the doctor "was  


not able to opine on any of the issues because he wanted to do a physical evaluation"  




                     LaRose indicated that she is "obligated" to tell a doctor's office that an  


EIME is scheduled, although she did not say why she has this obligation. She explained  


that providers call her "asking if the claim is open and billable and if there are any  


pending issues like an [E]IME," and "if there are no pending [E]IMEs or anything . . .  


[the] standard issue answer [is] that there are no issues with the claim." LaRose said she  


told Bockus that some providers would not proceed with surgery if they know there is  


a pending EIME but that she was "not able to tell him one way or another what kind of  


treatment they're able to perform"; she said she never told Bockus the surgery would be  


denied if he went ahead and had the surgery before the EIME.  


                     LaRose  testified  that  her  office  does  "not  preauthorize  any  medical  


treatment because [they are] unable to direct" medical treatment.  She could not explain  


why Dr. Wright's office had sent a written request for preauthorization if her office never  


preauthorized surgery.  She also testified that in mid-October she returned a call from  


Dr. Wright's office and told them "there [were] no issues with surgery being scheduled."  

                                                                -7-                                                          7137

----------------------- Page 8-----------------------


                    Nancy Nashlund, Dr. Wright's scheduling assistant, testified that when she  


contacted the adjuster's office about the surgery in July, a person named Adela told her  


the claim was "open and billable" but that an EIME was scheduled. Nashlund indicated  


that she did not schedule Bockus's surgery at that time because if an adjuster tells her an  


EIME is scheduled, "Dr. Wright has asked that [she] wait to schedule [surgery] until after  


the [E]IME is finished." She later agreed that she "wait[s] for the insurance company to  


make a decision whether they are going to pay for the surgery" before scheduling it.  In  


response to questions from Bockus's attorney, she agreed that when she called the  


insurer on July 22, she "had called them to authorize" the surgery, that the carrier had not  


authorized it, and that if the insurer had authorized it, she would have scheduled the  


surgery at that time. She estimated that she would have been able to schedule the surgery  


within two weeks of approval, as long as Dr. Wright was in the office, and she testified  


that Dr. Wright was only out of the office for one week in August 2013.  


                    In responseto questionsfromFirstStudent'sattorney, Nashlund agreed that  


she did not "specifically ask [the insurer] to authorize surgery" when she called in July  


and said, "My understanding is that workers' comp companies don't authorize surgeries,  


per se . . . ."  Nashlund did not recall getting a copy of the EIME after it was completed;  


she learned that the carrier had approved the surgery by talking to the adjuster. Nashlund  


agreed that the insurer had not told her to delay the surgery and had not told her the  


surgery was denied. She also agreed that "the surgery was authorized on October 17th."  


                    The  Board  decided  that  attorney's  fees  could  not  be  awarded  under  


AS 23.30.145(a) because in its view any employer actions that resisted payment of  


medical benefits happened before the written claim was filed.  The Board interpreted  

                                                                -8-                                                         7137

----------------------- Page 9-----------------------

Harnish Group, Inc. v. Moore                                                                                   4 as requiring the actions constituting a controversion in   

 fact to happen after a written claim is filed rather than before; it decided that none of the                                                                                                                                                                                                                  

 actions showing resistance to payment happened after the claim was filed. But the Board                                                                                                                                                                                                             

 agreedthat                             FirstStudent had                                              resisted furnishing medical caresuch that Bockus's                                                                                                                                    attorney  

was entitled to fees under AS 23.30.145(b).                                                                                                                      

                                                 The Board spent some time discussing the testimony of both LaRose and                                                                                                                                                                                       

Nashlund,   noting   that   Nashlund's   testimony  was   confusing   because   she   provided  

 different answers depending on who asked her questions.                                                                                                                                                               For example, she said she                                                              

 sought authorization for the surgery when she first called the adjuster, but also testified                                                                                                                                                                                                 

that she understood that workers' compensation insurers did not preauthorize surgery.   

 The Board found some of the testimony of these two witnesses not credible because of                                                                                                                                                                                                                              

the internal inconsistencies; it found that Dr. Wright "was not really concerned with an                                                                                                                                                                                                                          

E[I]ME itself, but payment for [his] services." It ultimately found that neither Nashlund                                                                                                                                                                                               

nor   LaRose   was   credible   "in   [her]   denial[]   [Bockus's]   provider   was   calling   for  


                                                 After considering several statutory provisions and                                                                                                                                       Richard v. Fireman's                      

                                                                           5  the Board said an employer's duty to furnish medical care "could  

Fund Insurance Co.                                                       ,                                                                                                                                                                                                                        

 conceivably include a duty to address other payment issues, such as providing payment  


 assurances, or at least accurately portraying the uncontroverted status of an injured  


worker with a  compensable injury to the employee's selected provider to facilitate  


                                                                                                                                                                                                                                                                       6  as providing  

treatment."   The Board construed  Summers v. Korobkin Construction,  


Bockus with a remedy "[e]ven if the [Alaska Workers' Compensation] Act does not  


                         4                        160 P.3d 146 (Alaska 2007).                                                     

                         5                       384 P.2d 445 (Alaska 1963).                                                      



                                                 814 P.2d 1369 (Alaska 1991).  

                                                                                                                                                         -9-                                                                                                                                             7137

----------------------- Page 10-----------------------

require [First Student] to preauthorize treatment." TheBoard                                                                                                                                                             said that, even though First  

 Student "did not have unilateral authority to terminate [Bockus's] benefits," its "refusal                                                                                                                                                                                                

to   preauthorize   [the]   surgery  effectively   did   just   that."     In   the   Board's   view,   this  

amounted to resistance, making Bockus eligible for a fee award under AS 23.30.145(b).                                                                                                                                                                                                                                      

The Board found that Bockus's attorney had "successfully obtained a valuable benefit"                                                                                                                                                                                                      

for him and awarded reasonable fees and costs of approximately $3,500 for about ten                                                                                                                                                                                                                         

hours of work.                                         

                                                First Student appealed to the Commission.                                                                                                                The Commission analyzed the                                                                         

issues differently from the Board, considering the question presented a purely legal one;                                                                                                                                                                                                               

it examined whether an employer was required to preauthorize care under the Alaska                                                                                                                                                                                                            

Workers' Compensation Act (Act) rather than determining whether substantial evidence                                                                                                                                                                                                    

in the record supported the Board's finding that First Student had resisted the medical                                                                                                                                         

benefits at issue.                                           It decided that one statutory subsection the Board had not considered,                                                                                                                                           

AS23.30.097(d), "address[ed]paying                                                                                                      for medical treatment                                                        in amoredetailedway"than                                                            

                                                                                                                                           7  The Commission next looked at case law and  

the parts of the statute the Board used.                                                                                                                                                                                                                                 

decided that nothing in those decisions required an employer to preauthorize surgery.  


The Commission decided that the only way an employee can find out "in advance  


whether his . . . employer must pay for certain medical treatment" is to file a claim under  


Summers  so the Board can determine compensability.   The Commission interpreted  


AS  23.30.095(a)'s  requirement  that  the  employer  "furnish"  medical  treatment  as  


applying only when treatment is "compensable"; here, according to the Commission,  


"the compensability of Bockus's third surgery was not determined until the [B]oard  


issued its decision to that effect."  


                        7                       AS  23.30.097(d)  requires  an  employer  to  pay  medical  bills  within  30  days.  

                                                                                                                                                     -10-                                                                                                                                                            7137  

----------------------- Page 11-----------------------

                               The Commission disagreed with the Board that                                                                    Summers  had any bearing                   

on Bockus's case except to provide him with the opportunity for a Board determination                                                                                      

of the compensability ofthe                                      surgery. Because                         the Commission decided that First Student  

had no duty to preauthorize surgery, it decided the award of fees was unjustified because                                                                                                 

Bockus had "not employed                                             an  attorney in the                           successful   prosecution of his claim"                                   

(emphasis in original) and reversed the award.                                                                 Bockus appeals.   

III.            STANDARD OF REVIEW                          

                               In    an    appeal    from    the    Alaska    Workers'   Compensation    Appeals  


Commission, we review the Commission's decision rather than the Board's.                                                                                                                       

                                                                                                                                                                                     We apply  



our independent judgment to questions of law that do not involve agency expertise. 


apply our independent judgment to questions of "statutory interpretation requiring the  

                                                                                                                                                                      10  interpreting a  



application and analysis of various canons of statutory construction," 

statute "according to reason, practicality, and common sense, considering the meaning  


of the statute's language, its legislative history, and its purpose."11                                                                                         We independently  


                8              Humphrey v. Lowe's Home Improvement Warehouse, Inc.                                                                                    , 337 P.3d 1174,         

 1178 (Alaska 2014) (citing                                       Shehata v. Salvation Army                                       , 225 P.3d 1106, 1113 (Alaska                          


                9              Id.  

                10             ARCTEC Servs. v. Cummings , 295 P.3d 916, 920 (Alaska 2013) (quoting  


Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903-04 (Alaska  



                11             Louie v. BP Exploration (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014)  


(citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)).  


                                                                                                 -11-                                                                                           7137

----------------------- Page 12-----------------------

review a Commission decision that substantial evidence supports the Board's findings     

of fact "by independently reviewing the record and the Board's findings."                                                              12  

IV.         DISCUSSION  


                        Although the Board considered whether First Student had an obligation to  


"authorize" or "preauthorize" surgery here, the Board also stated that, even if the statute  


did not require preauthorization, Bockus had a remedy under Summers v. Korobkin  



                            and that Bockus had availed himself of this remedy by filing his claim in  



September.                The  Board  cited  Underwater  Construction,  Inc.  v.  Shirley                                                       for  the  


proposition that the adjuster's approval of the surgery before the hearing on Bockus's  


written workers' compensation claim did not matter for purposes of resistance to the  


claim.  The Board's award of attorney's fees is based on a finding that First Student  


resisted furnishing medical care to Bockus because of the long delay engendered by its  


insistence on an in-person EIME.  The Commission reframed the issue before it as a  


question ofstatutory interpretationaloneand didnot discuss theBoard's factual findings.  



Because we review de novo the Commission's decisions about substantial evidence, 

we consider whether the Board's findings here are supported by substantial evidence.  


                        Bockus argues that First Student delayed his surgery through its actions  


both before and after he filed his written claim, contending that First Student "had ample  


information" about the compensability of the third surgery before the in-person EIME.  


He asserts the Board's decision to award fees was proper. First Student argues that much  


of the delay cannot be attributed to it because it was merely exercising a statutory right  


            12          Humphrey, 337 P.3d at 1178 (citing                                 Shehata, 225 P.3d at 1113).             

            13           814 P.2d 1369 (Alaska 1991).  


            14           884 P.2d 156 (Alaska 1994).              



                        Humphrey, 337 P.3d at 1178 (citing Shehata, 225 P.3d at 1113).  

                                                                           -12-                                                                     7137

----------------------- Page 13-----------------------

to   an   EIME and                          it rescheduled                        the   EIME at Bockus's request.                                                   It contends that it                       

unqualifiedly accepted Bockus's claim because it continued to pay benefits throughout                                                                                                   

the case and ultimately accepted the compensability of the surgery.                                                                                                  It maintains it had                 

no duty to preauthorize care and did not resist paying for the surgery.                                                                                                First Student also                

argues that Bockus's attorney did not secure any benefit for Bockus.                                                                                                     

                                We see no need in this case to determine whether an employer's statutory                                                                                     

                                                                   16  includes a general duty to preauthorize treatment.  On the  

duty to furnish medical care                                                                                                                                                                               

other hand, we do not suggest that the carrier's only obligation is to reimburse medical  


providers or injured workers for care already provided and billed or paid.  In this case,  


as in others, a worker may be unable to get needed treatment without some assurance,  


implicit or otherwise, that the carrier will pay for the recommended procedure.  Both  


parties acknowledge that an injured worker may be in a difficult position when his doctor  


requires  assurance  of  payment,  particularly  in  light  of  the  statutory  prohibition  on  



requiring an injured worker to pay for compensable medical care.                                                                                                     


                                As the Board found here, First Student in fact authorized Bockus's surgery  


in October, "when it was required to answer [Bockus's] claim."  Substantial evidence  


supports this finding.  In mid-October LaRose told Dr. Wright's office, after the office  


again  called  for  preauthorization,  that  "there  [were]  no  issues  with  surgery  being  


scheduled." This conversation happened at about the time First Student filed its answer.  


LaRose explained that providers call her "asking if the claim is open and billable and if  


there are any pending issues like an [E]IME"; "if there are no pending [E]IMEs or  


                16              AS 23.30.095(a).   



                                AS 23.30.097(f).  

                                                                                                    -13-                                                                                                       7137  

----------------------- Page 14-----------------------


anything . . . [the] standard issue answer [is] that there are no issues with the claim."                                                  


The Board could reasonably infer from this testimony that the absence of "issues" with  


scheduling surgery signaled to Dr. Wright that First Student would pay for it.  


                     As demonstrated by our previous case law, an employer's acquiescence to  


a workers' compensation claim or provision of the requested benefit before a Board  


hearing does not rule out a finding that the employer resisted providing the benefit.  In  


 Underwater Construction, Inc. v. Shirley we affirmed the Board's award of attorney's  


fees  under  AS  23.30.145(a)  when  an  employer  delayed  changing  an  employee's  


temporary total disability (TTD) benefits to permanent total disability (PTD) benefits,  

                                                                                                                19  We observed  


even though the amount of each compensation installment was the same. 

that if no amount of compensation had been at stake in the case, as the employer claimed,  


                                                                                20  More recently, in Harnish Group,  

it would have had no reason to controvert the claim.                                                                          


Inc.  v.  Moore  we  held  that  attorney's  fees  could  properly  be  awarded  under  


AS 23.30.145(b) when the employer had changed an employee's status to PTD at about  


                                                                                                           21    The  employer  

the  same  time  the  employee  filed  a  claim  for  those  benefits.                                                   


subsequently  signed  a  reemployment  plan,  which  was  inconsistent  with  the  status  


change; in its answer to the employee's claim, the employer admitted the employee was  


           18        At oral argument before us First  Student acknowledged that an  adjuster may  

tell   a   surgeon   about   a   scheduled  EIME  to   communicate  the  possibility of   a  denial   of  

coverage  if  the  EIME  says  the  surgery  is n                   ot  reasonable  or  necessary  or  related  to  the  


           19        884 P.2d at 158-59.  


           20        Id. at 159.  


           21         160 P.3d 146, 150, 152-53 (Alaska 2007).  


                                                                 -14-                                                            7137

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PTD but denied it should pay attorney's fees.                                     We held that fees could be awarded for                        

resisting payment because of the employer's action in signing the reemployment plan.                                                              23  

                       In considering the contours of First Student's obligation to furnish medical  


care  under  AS  23.30.095(a),  the  Commission  reasoned  that  AS  23.30.097(d),  the  


statutory provision requiring payment of medical bills within 30 days, was more specific  


and thus controlled over AS 23.30.095(a). To the extent the Commission's decision can  


be read as interpreting "furnish" in AS 23.30.095(a) to mean solely a duty to pay bills in  


accordance with AS 23.30.097(d), we disagree with that analysis.24                                                       But the Board's  


decision that First Student resisted furnishing the third surgery was not based solely on  


a legal duty to preauthorize care.  As the Board observed, First Student had the option  


of  "accurately  portraying  the  uncontroverted  status  of  an  injured  worker  with  a  


compensable injury to the employee's selected provider to facilitate treatment."  And  


while First Student argues that authorizing surgery before an EIME would interfere with  


its investigation of the claim, the questions the adjuster asked Dr. Williams in both the  


July records review and the in-person EIME were not directed at an opinion about the  


           22          Id.  at   148-50.  

           23          Id.  at   153-54.  

           24          The  Commission's  analysis   failed  to  explain  why AS  23.30.095(a)  and  

.097(d)  could  not  be  harmonized.   See  In  re  Hutchinson's  Estate,  577  P.2d   1074,   1075  

(Alaska   1978)   (discussing   statutory   interpretation  principles, including  principle  that  

"where  one  section  deals  with  a  subject  in  general  terms  and  another  deals  with  a  part  of  

the  same  subject  in a  more  detailed  way,  the  two  should be  harmonized,  if  possible").   

In  our  view,  the  subsections  can be  harmonized  because  the  employer's  obligation  in  

AS  23.30.095(a)  to  furnish  medical  care  can  include  an  obligation  to  pay  medical  bills  

promptly  as  set  out  in  AS  23.30.097(d).   At  oral  argument  before  us,  First  Student  agreed  

that   an  employer's   obligation   to   furnish   medical   care   is   broader   and   includes   at   a  

minimum   an   obligation   to   review   medical   records  to   determine   what   treatment   is  


                                                                       -15-                                                                 7137

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surgery itself. Instead, the adjuster listed nine treatment options and asked for an opinion                                                                                                  

about   the   reasonable   necessity   of   all   of   the   treatments.     This   broad  request  was  

unreasonable because Bockus and his doctor, after trying a course of conservative care,                                                                                                              

had already decided that surgical treatment was the best option for addressing his disc   

herniation and continuing pain.                                              

                                Because Bockus sought surgery within a few months of the work-related                                                                            

injury, First Student's ability to shape a course of treatment was more limited. We faced                                                                                                          


a similar issue more than 15 years ago in                                                              Phillip Weidner & Associates v. Hibdon                                                                .    

There, as here, the employee's doctor recommended surgery after conservative care  


failed to improve the employee's pain, but the doctor would not schedule the surgery  


absent authorization from the compensation carrier.26  We observed that even though the  


employer's medical experts did not recommend surgery, they could not dispute that it  


was "within the realm of medically accepted options."27                                                                                   Consistent with the temporal  


division set out in AS 23.30.095(a), we distinguished the Board's supervision of medical  


care in the two years immediately following the injury from care subsequent to those two  


years, noting that in the first two years after an "undisputedly work-related" injury, the  


Board's  review  is  "limited  to  whether  the  treatment  sought  is  reasonable  and  


necessary."28                     Following that two-year period, the Board "has some latitude to choose  


among reasonable alternatives" in treatment.29  As we said in Hibdon, "Choices between  


                25              989 P.2d 727 (Alaska 1999).                           

                26              Id. at 729-30.  


                27              Id. at 732.  


                28              Id.  at 731.   

                29              Id.  

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----------------------- Page 17-----------------------

reasonable medical options and the risks entailed should be left to the patient and his or                                                  


her physician."                                                                                                                          

                            An employer's doctor's opinion about the best course of treatment may  


differ from that of the employee's treating physician, but the principle in Hibdon  still  



                      Further surgery was on the list of treatment options sent to Dr. Williams,  


so presumably it was undisputedly "within the realm of medically accepted options" to  


treat Bockus's condition.   In his July records review, the only preexisting condition  


Dr. Williams identified was "[m]ild, chronic loss of vertebral body height" at levels of  


the thoracic spine higher than the location of the earlier surgeries. Dr. Williams referred  


to the June MRI, which showed disc material and cord impingement, at the time of the  


records review in July.  First Student asked Dr. Williams in July if he could "identify an  


alternate explanation" that would exclude the work-related accident as the substantial  


cause of Bockus's medical complaints; Dr. Williams responded that he was "unaware of  


an alternate explanation." All of this information supports Bockus's contention that First  


Studenthadadequateinformation about thereasonablenecessity ofthethird surgery well  


before the surgery was authorized in October. And the information First Student sought  


from the EIME physician was not reasonably related to the narrow question of the  


compensability of and need for the requested surgery.  


                      Accurate communication to the provider's office about the purpose of the  


EIME might also have assisted in clarifying the likelihood of payment. Nashlund agreed  


that had  First Student authorized  the surgery  in  July,  she would  have scheduled it  


regardless of the pending EIME.  Here, the EIME sought general information about the  


best course of treatment for Bockus; the questions in the July EIME did not communicate  


to Dr. Williams that Dr. Wright was recommending a third surgery or that Bockus and  



                      Id. at 733.  

                                                                    -17-                                                                   7137  

----------------------- Page 18-----------------------

his treating physician had decided to pursue that course of treatment. We recognize that                                                                                           

an employer has a right "at reasonable times" to                                                                require an employee to attend an                                     

                                                                                        31 but when an EIME delays care, as it did here,  

examination by the employer's physician,                                                                                                                                        

the  information  sought  should  be  reasonably  related  to  treatment  the  employer  is  



                             SubstantialevidencesupportstheBoard'sfindingthattheemployer resisted  


furnishing medical care to Bockus by unreasonably delaying the third surgery.  As the  


Board correctly observed, First Student "could have pursued its investigation according  


to the methods and timelines afforded it under the Act while simultaneously facilitating  


the quick and efficient delivery of medical benefits to [Bockus]."  Its failure to do so led  


Bockus to file a written claim for medical benefits in September, prior to both the in- 


person EIME and the adjuster's approval of the surgery.  In addition to the delay before  


the September EIME, First Student delayed communicating the September EIME results  


to Dr. Wright's office for almost three weeks, and did so only after Dr. Wright's office  


contacted the adjuster to inquire why a written preauthorization form had not been  


returned.   First Student sent supplemental questions to Dr. Williams about Bockus's  


possible course of recovery from a surgery that had not yet happened and got a response  


from him before the adjuster told Dr. Wright's office there were no longer any "issues"  


with scheduling the surgery.32                                         There is more than enough evidence to support the  


Board's finding that First Student's actions delayed Bockus's compensable surgery.  


               31            AS 23.30.095(e).   

               32            First Student also                       contends that Bockus's attorney                                           did   not secure any              

benefit for him. Substantial evidence supports the Board's finding that counsel obtained                                                                                

the surgery as a result of filing the claim.   As the Board said, the written claim, by  


requiring an answer, forced First Student to authorize the surgery.                                                                            See Harnish Group,          

Inc. v. Moore, 160 P.3d 146, 153-54 (Alaska 2007) (affirming attorney's fees award  


when claim forced employer to decide whether to admit claim).  


                                                                                         -18-                                                                                  7137

----------------------- Page 19-----------------------


                 We  REVERSE  the  Commission's  decision  and  REMAND   to  the  


Commission with instructions to reinstate the Board's award.  


                                                       -19-                                                7137

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