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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska, Department of Health & Social Services v. Jennifer D. White and John P. Shannon, D.C. (5/19/2023) sp-7656
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, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, ) Supreme Court No. S-18209
)
Appellant, ) Alaska Workers' Compensation
) Appeals Commission No. 20-022
v. )
) O P I N I O N
JENNIFER D. WHITE and JOHN P. )
SHANNON, D.C., ) No. 7656 - May 19, 2023
)
Appellees. )
Appeal from the Alaska Workers' Compensation Appeals
Commission.
Appearances: Robert Kutchin, Assistant Attorney General,
Anchorage, and Treg R. Taylor, Attorney General, Juneau,
for Appellant. John P. Shannon, D.C., pro se, Anchorage,
Appellee. No appearance by Jennifer D. White, Appellee.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
WINFREE, Chief Justice.
INTRODUCTION
Can one adjudicative agency refuse on jurisdictional grounds to consider
a contested legal question ancillary to an issue arising within that agency's jurisdiction
because the legislature gave a different agency authority over the contested legal issue?
An employer disputed its liability under the Alaska Workers' Compensation Act for an
injured employee's chiropractic care, alleging that the care provided was not
----------------------- Page 2-----------------------
compensable because it was outside the scope of the chiropractor's license. The Alaska
Workers' Compensation Board decided it did not have jurisdiction to determine the
chiropractor's scope of practice because the legislature had granted that authority to the
Alaska Board of Chiropractic Examiners (Chiropractic Board) and the relevant scope
of practice statute was ambiguous. The Workers' Compensation Board determined that
the care was reasonable and necessary, that the Chiropractic Board appeared to have
approved the chiropractic care in dispute, and that payment should be made. The
Alaska Workers' Compensation Appeals Commission affirmed the Board's decision.
The employer appeals, but we affirm the Commission's decision.
FACTS AND PROCEEDINGS
A. Facts
Jennifer White was injured while working for Alaska Psychiatric Institute
(API) in late 2018. Dr. John P. Shannon, Jr., a chiropractor, treated White for shoulder
pain. His treatment included four injections into a shoulder muscle in December 2018
and January 2019, using a plant-based substance called Sarapin. Dr. Shannon submitted
bills for the injections to API; it denied payment with an explanation of benefits form
saying the injections were "outside the . . . scope of" Dr. Shannon's practice.
B. Proceedings
Dr. Shannon filed a workers' compensation claim seeking payment for the
injections. API, represented by the Department of Law, responded by denying that
"procedures performed beyond the scope of Dr. Shannon's chiropractic license are
reasonable, necessary, or within the standard of care for chiropractic care as defined by
Alaska [S]tatute[s]." API's assertion about the scope of chiropractic care was based in
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part on arguments that statutes governing chiropractic practice did not permit
1
chiropractors to use prescription drugs and that Sarapin was a prescription drug.
Dr. Shannon requested a hearing and submitted several documents
supporting his use of in jectable Sarapin. He included a draft of a January 2017 position
statement from the Chiropractic Board that was intended to "support" qualified
chiropractic physicians' "use of injectable nutrients." The position statement suggested
that "injectable nutr ients" included "vitamins, minerals and homeopathic solutions" and
relied on a provision in the chiropractic statute allowing chiropractors to use
2
"chiropractic core methodology or . . . ancillary methodology" when treating a patient.
The position statem ent mentioned a disagreement between the Chiropractic Board and
the Department of Law about chiropractic practice, describing 2013 testimony before
the Chiropractic Board from an assistant attorney general "urg[ing] the Board to
condemn the use of injectab le nutrients because it was not part of Chiropractic 'core
curriculum.' " The Chiropractic Board had disagreed, "maintain[ing] that the science
of nutrition is part of the core curriculum training of Chiropractic Physicians, and the
method of application [whether] oral, parenteral or injectable, is something a
Chiropractic Physician may study and learn to provide safely to patients." The record
indicates that the position statement about injectable nutrients was posted on the
Chiropractic Board's website during the time Dr. Shannon treated White. The
disagreement identified in the Position Statement continued during the litigation of
Dr. Shannon's claim.
1
See AS 08.20.100(b)(1) (authorizing treatment "by chiropractic core
methodology or by ancillary methodology"); AS 08.20.900(3), (6) (defining
"chiropractic" and "chiropractic core methodology").
2
AS 08.20.100(b)(1); see also AS 08.20.900(1), (12) (defining "ancillary
methodology" and "physiological therapeutics").
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----------------------- Page 4-----------------------
Another of Dr. Shannon's supporting documents, a 2018 letter, contained
the Chiropractic Board chai r's opinion that "[c]hiropractic has long held the value of
vitamins, minerals, herbs, homeopathics and other naturally occurring extracts and
substances that do not require a [Drug Enforcement Agency] license are within the
scope of chiropractic license." The letter stated that, in the Chiropractic Board's
opinion, using injectable Sarapin was consistent with the governing statutes and within
the scope of chiropractic practice when a chiropractor had "appropriate training." The
Board chair also wrote tha t he found Dr. Shannon to be "exquisitely trained" in the
relevant areas after reviewing Dr. Shannon's curriculum vitae. Finally, Dr. Shannon
submitted a 2006 letter to a workers' compensation adjuster in which the Chiropractic
Board's Secretary informed the adjuster that "during the April 14, 2006 meeting" the
Chiropractic Board found no statutes or regulations that "would prohibit utilizing
3
injectable nutriceuticals in chiropractic practice."
API opposed setting a hearing on Dr. Shannon's claim becaus e it wanted
more time to obtain information for its defense. API sought discovery from
Dr. Shannon, and API's Department of Law attorney filed a complaint with the
Department of Commerce's investigation unit alleging that Dr. Shannon did not have a
license "to obtain, prescribe, or administer prescription medications" and that Sarapin
was "a prescription -only substance." At about this time Dr. Shannon filed a second
claim, asking the Workers' Compensation Board to decide whether it had the "authorit y
to determine 'scope of practice' of Chiropractic Physicians." Dr. Shannon also objected
to some of API's discovery requests, and API sought to compel responses.
3
According to a medical dictionary, a "nutriceutical" is "[o]ne of a class of
agents advertised as having nutritional value as well as having an effect on biologic
functions." Nutriceutical , STEDMAN 'S MEDICAL DICTIONARY, Westlaw (database
updated Nov. 2014).
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----------------------- Page 5-----------------------
During the course of the litigation API submitted multiple documents to
support its positi on about the scope of chiropractic practice, including copies of some
Chiropractic Board meeting minutes that postdated White's treatment. API's
documentary evidence, like Dr. Shannon's, suggested the Chiropractic Board and the
Department of Law, which wa s providing legal advice to the Chiropractic Board, had
different opinions about the statutory scope of chiropractic practice. Draft minutes from
a 2019 meeting reflected that the Chiropractic Board voted "to remove the board's
position statement on injec table nutrients, citing advice from the Department of Law ."
In contrast , the Chiropractic Board took no action when staff from the Department of
Commerce "reminded the board" that its chair "had written a letter . . . in support of a
chiropractor who had been using billing codes for injectable nutrients, and that they
may want to write a retraction." Minutes of other meetings documented that the
Chiropractic Board, with some assistance from Department of Commerce staff,
engaged in a regulations-revision process that would have modified the regulatory
4
definition of "prescription drug." But a Department of Law regulations attorney
thought the revised definition was not authorized by the chiropractic statute and did not
forward the regulation to the Lieutenant Governor for inclusion in the Alaska
5
Administrative Code.
After the Workers' Compensation Board set a hearing date on
Dr. Shannon's claims, API asked to delay proceedings "until organizations with more
expertise in chiropractic medicine, the Alaska fee schedule, and the practice of medicine
in Alaska provide additional guidance," which API suggested would be available after
4
Alaska Statute 08.20.900 does not define "prescription drug." API relies
on a regulatory definition. 12 Alaska Administrative Code (AAC) 16.990(b)(1) (2023).
5
See AS 44.62.125 (setting out role of regulations attorney);
AS 44.62.060(c) (requiring Department of Law approval before lieutenant governor
may accept regulation for filing).
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a few months' delay. API told the Board that the "precise issue" presented in White's
case was "currently under review by the A laska Board of Chiropractic Examiners, the
Alaska Workers' Compensation Medical Services Rule Committee . . . , and the Alaska
State Medical Board." API also submitted a copy of the complaint against Dr. Shannon
that its Department of Law attorney had filed with the Department of Commerce's
licensing investigation unit.
Dr. Shannon asked the Workers' Compensation Board to "dismiss" API's
scope of practice defense after the Workers' Compensation Board decided in another
case involving Dr. Shannon's use o f Sarapin injections that it did " not have jurisdiction
to determine issues regarding the scope of chiropractic care" because the legislature had
6
delegated jurisdiction over the issue to the Chiropractic Board. The Workers'
Compensation Board later relie d on this decision when refusing to compel Dr. Shannon
to respond to API's discovery requests.
In October 2020 the Board held a hearing on Dr. Shannon's claims.
Dr. Shannon again asked the Board to summarily reject API's defense , arguing that
only the C hiropractic Board had jurisdiction to determine the scope of his practice. The
Workers' Compensation Board told Dr. Shannon it would address jurisdiction in its
decision.
API did not call or cross-examine any witnesses. It argued that the
legislature alone determines the scope of chiropractic practice, so the question whether
the Sarapin injections were within the scope of Dr. Shannon's practice should be
determined by reference to the chiropractic statutes. API agreed that it would be
"perfectly appropriate" for the Workers' Compensation Board to "consider[] the Board
of Chiropractic Examiners' opinions, their minutes, [and] whatever statements they've
made" when considering the statute's meaning . But API nonetheless contended that
6
Sereyko v. Mun. of Anchorage, AWCB Dec. No. 19-0084, 2019 WL
3814471, at *1, *7 (Aug. 8, 2019).
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the Workers' Compensation Board should not limit itself to the Chiropractic Board's
opinions because the Workers' Compensation Board was "responsible for making its
own independent judgment [when] making a determination of compensability." API
contended that the chiropractic statutes prohibited chiropractors from using any
7
prescription drug, and it referred to the 2020 workers' compensation fee schedule,
"which expressly provided that providers can only be paid for service rendered within
the scope of their license," to support its argument. API asserted that earlier fee
8
schedules had similar principles.
API argued that all injectable drugs are prescription drugs under federal
law and thus the relevant Alaska Statutes prohibited Sarapin's us e by chiropractors.
Relying on a footnote in one of our decisions , API maintained that injections themselves
were not within the scope of chiropractors' licenses because this footnote contained "a
9
very flat statement . . . that injections require a prescr iption." API concluded that our
7
Workers' compensation medical fees are governed by a fee schedule.
AS 23.30.097. The 2020 fee schedule, effective January 2020, included the following:
"Fees for services performed outside a licensed medical provider's scope of practice as
defined by Alaska's p rofessional licensing laws and associated regulatory boards will
not be reimbursable." ALASKA WORKERS' COMP. DIV., OFFICIAL ALASKA WORKERS'
COMPENSATION MEDICAL FEE SCHEDULE 1 (2020). The 2018 and 2019 fee schedules
had no similar provision. Both define d a "professional service" as "one that must be
rendered by a physician or other certified or licensed provider as defined by the State
of Alaska working within the scope of their licensure," but they did not link
reimbursement to scope of practice questions. ALASKA WORKERS' COMP. DIV.,
OFFICIAL ALASKA WORKERS' COMPENSATION MEDICAL FEE SCHEDULE 2 (2019);
ALASKA WORKERS' COMP. DIV., OFFICIAL ALASKA WORKERS' COMPENSATION
MEDICAL FEE SCHEDULE 2 (2018).
8
Cf. supra note 7.
9
See Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Com.,
Cmty. & Econ. Dev., 414 P.3d 630, 632 n.9 (Alaska 2018) (commenting in case
involving validity of naturopath regulation that "[a]pparently injectable vitamins and
minerals require a prescription").
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decision "prohibits chiropractors from performing injections because they're prohibited
from prescribing any drugs." API said the Chiropractic Board had "finally recognized"
that using injections and prescription drugs we re "well outside the scope of practice"
because the Chiropractic Board had removed from its website the position paper
supporting qualified chiropractic physicians' "use of injectable nutrients." According
to API, there had been "no change of law," just the Chiropractic Board's
acknowledgement that "these injections are outside the scope of practice." API asked
the Workers' Compensation Board to consider the opinions of the Division of
Corporations, Business & Professional Licensing, as well as the Depart ment of Law,
when interpreting the chiropractic statute.
Dr. Shannon testified that Sarapin was not a controlled substance and that
he did not prescribe drugs. Instead, he said, he administered medications in his office.
He testified that Sarapin was an all-natural substance and argued that its use was
allowed because chiropractors can use nutritional substances. Dr. Shannon pointed out
that the legislature granted authority to the Chiropractic Board to promulgate
regulations, contending that this auth ority allowed the Chiropractic Board "to further
define" the chiropractic statutes. He maintained that the Chiropractic Board had
allowed the treatment he provided to White and that he had administered injections for
15 years without complaints. He contended that API's argument about office use of
prescription medication was unduly narrow, giving examples of healthcare products he
contended would be considered prescription medication under API's theory but were
used by other healthcare professionals without prescribing authority, such as massage
therapists and physical therapists. He asserted that states, not the federal government,
regulate what healthcare providers can do within the scope of their licenses.
Dr. Shannon maintained that the Chiropractic Board was the only agency that could
decide whether he was operating outside the scope of his license. Dr. Shannon called
White as a witness; she testified that she benefitted from Dr. Shannon's treatment.
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The Workers' Compensation Board decided it did not have jurisdiction to
determine the scope of practice issue because the chiropractic statute "specifically
delegates issues regarding the scope of chiropractic care to the Chiropra ctic Board."
The Workers' Compensation Board acknowledged that it "has some expertise [in] the
provision of medical care to injured workers when the scope of a provider's practice is
clear." But it found that the chiropractic statutes are "ambiguous," ob serving that the
record reflected disputes as early as 2006 about "whether chiropractors can perform
injections, and of what substances." The Workers' Compensation Board found that,
during the time Dr. Shannon treated White, "the Alaska Division of Corporations,
Business and Professional Licensing took the position that the injection of Sarapin was
within the scope of chiropractic care" so that Dr. Shannon "had every reason to believe
he was acting within a chiropractor's scope of practice" when he treated White. The
Workers' Compensation Board did not consider the Alaska Medical Fee Schedule
helpful "in determining a provider's scope of practice" because the applicable schedules
merely stated "that the professional component of some services must be rende red by a
provider working within the scope of their licensure." The Workers' Compensation
Board thought API "could pursue a declaratory judgment action in superior court to
construe the chiropractic statutes" if it wanted a legal ruling on the scope of pr actice
question.
The Workers' Compensation Board then considered whether the
treatments were reasonable and necessary, concluding that they were. Its decision was
based on White's testimony; Dr. Shannon's testimony that Sarapin was "a natural,
plant-based medication that avoids the potential problems of opioids"; and the 2018
letter from the Chiropractic Board chair to the effect that the treatment was within the
scope of chiropractic practice and that Dr. Shannon was "well trained on the use of
natural substances." After making its findings and conclusions, the Workers'
Compensation Board granted Dr. Shannon's claims and ordered API to pay him for the
injections in accordance with the fee schedule.
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API appealed to the Commission, raising points related to both the
Board's earlier discovery decision and its decision on the merits of Dr. Shannon's
claims. The Commission affirmed both decisions. The Commission discussed two of
10
our precedents related to medical licensure in addition to the chiropractic statutes
when deciding that the Workers' Compensation Board had appropriately declined to
determine a chiropractor's scope of practice. The Commission observed that the
legislature had "granted statutory authority to license chiropractors and to define th e
limits of chiropractic practice" within the statutory definitions to the Chiropractic
Board. The Commission decided the Workers' Compensation Board had appropriately
refused to determine the limits of chiropractic practice because that issue was "a
question to be addressed by the [Chiropractic Board]." The Commission emphasized
the impact that such determinations could have on healthcare providers: "If
Dr. Shannon [were] operating outside the scope of his license, his license would be in
jeopardy."
With respect to the Board's discovery order, the Commission set out
alternative ways the Board could have dealt with the issue but concluded that the
information API sought was relevant only to its theory about the scope of chiropractic
practice. Because the Commission agreed with the Workers' Compensation Board's
jurisdictional decision, it concluded the information API sought would not be relevant
and affirmed the discovery decision. The Commission also affirmed the Board's
decision that the treatments w ere compensable. It considered the evidence in the record
suggesting that at the time Dr. Shannon treated White "it was the position of the
[Chiropractic Board] that [the] injections were within the scope of chiropractic
10
Taylor v. Johnston , 985 P.2d 460 (Alaska 1999); Storrs v. State Med. Bd. ,
664 P.2d 547 (Alaska 1983).
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practice." The Commission cited both the 2017 position statement about injectable
nutrients and the Chiropractic Board chair's 2018 letter to support its conclusion.
API appeals.
STANDARD OF REVIEW
"In an appeal from the Commission, we review the Commission's
11
decision and not the Board's." "We apply our independent judgment to questions of
12
law that do not involve agency expertise, including issues of statutory interpretation."
"When we review the Commission's legal conclusions about the Board's exercise of
discretion . . . , we . . . independently assess the Board's rulings and in so doing apply
13
the appropriate standard of review." "We will find an abuse of discretion when the
14
decision on review is 'arbitrary, capricious, or manifestly unreasonable.' "
DISCUSSION
A. The Commission Correctly Decided That The Workers'
Compensation Agencies Lacked Jurisdiction To Determine The
Scope Of Practice Issue In This Case.
1. The parties' arguments
API argues that the Commission erred in its jurisdictional determination
because the workers' compensation agencies "have authority to apply statutes other
than the Workers' Compensation Act" and have done so in the past. API maintains it
11
Mitchell v. United Parcel Serv. , 498 P.3d 1029, 1039 (Alaska 2021)
(quoting Alaska Airlines, Inc. v. Darrow , 403 P.3d 1116, 1121 (Alaska 2017)).
12
Vandenberg v. State, Dep' t of Health & Soc. Servs. , 371 P.3d 602, 606
(Alaska 2016) (quoting Monzulla v. Voorhees Concrete Cutting , 254 P.3d 341, 343-44
(Alaska 2011)).
13
Mitchell, 498 P.3d at 1039 (alterations in original) (quoting Smith v. CSK
Auto, Inc. , 204 P.3d 1001, 1007 (Al aska 2009)).
14
Id. (quoting Alaska State Comm'n for Hum. Rts. v. United Physical
Therapy, 484 P.3d 599, 605 (Alaska 2021)).
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is simply asking the agencies to "apply a statute to decide whether someone was entitled
to benefits," asserting that the chiropractic statute is so clear that the issue presented to
the Workers' Compensation Board did not involve policy questions within the
Chiropractic Board's expertise. As a result, it concludes, the workers' compensation
agencies had jurisdiction to decide whether Dr. Shannon's treatment exceeded the
scope of chiropractic practice and the agencies erred in deciding otherwise. API claims
that any workers' compensation agency decision about the scope of chiropractic
practice "would not be binding" on the Chiropractic Board and therefore would not
interfere with the Chiropractic Board's regulation of chiropractic practice.
Dr. Shannon responds that the Commission's decision was correct
because the scope of any healthcare provider's practice is an issue for that profession's
licensing board. He argues that the Department of Law, through its representation of
API, is attempting to use an "impr oper forum" to get a decision about the meaning of
the chiropractic statute because it "does not like the Alaska Board of Chiropractic
Examiners['] position/opinion on this matter." Dr. Shannon also maintains that API
omitted key parts of the statutes gov erning chiropractors when making its argument
about the statute's clarity and meaning.
2. Ambiguous chiropractic statutes
API's legal arguments ultimately depend on its assertions that relevant
provisions of AS 08.20, the chapter of the Alaska Statutes gov erning chiropractors, are
clear and unambiguous. While it contends the Workers' Compensation Board has broad
authority to interpret all statutes, not just the Workers' Compensation Act, it describes
the chiropractic statutes as "clear, leaving no room for policy judgments." We disagree
with API's characterization of this statute. A statute is ambiguous when it "is
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15
susceptible of two or more conflicting but reasonable meanings." The statutory
16
provisions underlying the dispute over White's treatment meet this standard.
The record shows a longstanding dispute between the Chiropractic Board
and the Department of Law about the scope of chiropractic practice. From the record
we surmise that the disagreement arises from competing interpretations of the
interaction between AS 08.20.100 and AS 08.20.900. The Chiropractic Board has
interpreted a provision allowing chiropractors to "treat the chiropractic condition of a
17
patient by chiropractic core methodology or by ancillary methodology" to mean that
chiropractors who receive training in specific techniques beyond chiropractic core
methodology may use those techniques as "ancillary methodology" because the statute
lists "chiropractic core methodology" and "ancillary methodology" as alternative ways
to treat a patient. The Chiropractic Board also has relied on the statutory definition of
"ancillary methodology," which allows "employing within the scope of chiropractic
practice . . . those methods, procedures, modalities, . . . and measures commonly used
by tra ined and licensed health care providers" when a chiropractor has "appropriate
18
training and education ." "Ancillary methodology" is further defined as "includ[ing]
19
. . . physiological therapeutics," which is in turn defined as "the therapeutic
application of forces that induce a physiologic response and use or allow the natural
processes of the body to return to a more normal state of health; physiological
15
State v. Andrews , 707 P.2d 900, 908 (Alaska App. 1985), aff'd 723 P.2d
85 (Alaska 1986) (per curiam).
16
Ours is a legal determination, but we agree with the Workers'
Compensation Board that the record supports the conclusion as well.
17
AS 08.20.100(b)(1).
18
AS 08.20.900(1).
19
AS 08.20.900(1)(A).
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therapeutics encompasses the . . . treatment of disorders of the body, utilizing . . . trigger
20
point therapy, and other forms of therapy."
According to Chiropractic Board minutes, the Department of Law has
taken the position that the phrase "within the scope of chiropractic practice" in the
definition of "ancillary methodology" restricted the permissible methods to treatment
of the subluxatio n complex and employment of "physiological therapeutic procedures."
Its position was based in part on the following statutory definition of "chiropractic":
the clinical science of human health and disease that focuses
on the detection, correction, and prevention of the
subluxation complex and the employment of physiological
therapeutic procedures preparatory to and complementary
with the correction of the subluxation complex for the
purpose of enhancing the body's inherent recuperative
powers, without t he use of surgery or prescription drugs; the
primary therapeutic vehicle of chiropractic is chiropractic
[21]
adjustment.
API's argument on appeal is limited to the contention that the definitions
22
of "chiropractic" and "chiropractic core methodology" do not allow use of
23
prescription drugs. API recognizes that "ancillary methodology" is ambiguous, but it
echoes the Department of Law's position that "all limits on the scope of chiropractic
necessarily limit ancillary methodology." Despite its agreement about some statutory
ambiguity, API asks us "to save time and expense" and determine as a matter of law
that the Sarapin injections were "illegal" and thus not compensable. We decline to do
20
AS 08.20.900(12).
21
AS 08.20.900(3).
22
AS 08.20.900(6) defines "chiropractic core methodology" as "the
treatment and prevention of subluxation complex by chiropractic adjustment . . . ;
chiropractic core methodology does not incorporate the use of prescription drugs."
23
Before the Workers' Compensation Board, API also took the position that
the chiropractic statute prohibited any procedure that pierced a patient's skin. API does
not make this assertion to us.
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----------------------- Page 15-----------------------
so because that would require us to construe an ambiguous statute i n the context of a
workers' compensation appeal, to which the Chiropractic Board is not a party, after the
Commission refused on jurisdictional grounds to interpret the statute. The issue before
us is that of agency jurisdiction, not the scope of chiropr actic practice.
3. Competing agency jurisdiction
We have held that agency jurisdiction is derived from statutes and that
agencies "must find within the statute the authority for the exercise of any power they
24
claim." While we agree with API that the Workers' Compensation Board is not
limited to applying solely the Workers' Compensation Act when adjudicating workers'
compensation claims, we disagree with API's assertion that we have recognized the
Workers' Compensation Board's "broad power to interpret statutes" other than the
Workers' Compensation Act regardless of context. The decisions API cites are not at
all similar to this case, which involves interpretation of an ambiguous statute within
another administrative agency's explicit jurisdiction without that agency's
participation, coupled with evidence in the record showing disagreement between
25
government agencies about the statute's meaning. Applying a clear statute is different
24
McDaniel v. Cory , 631 P.2d 82, 88 (Alaska 1981); see also Far N.
Sanitation, Inc. v. Alaska Pub. Utils. Comm'n , 825 P.2d 867, 871 n.4 (Alaska 1992)
(summarizing and applying factors from administrative law treatise to determine
agency jurisdiction).
25
Cf. Harris v. Millennium Hotel , AWCB Dec. No. 13-0028, 2013 WL
3367315, at *2 (June 28, 2013) (applying statutory definition to deny death benefits),
overruled by Harris v. Millennium Hotel , 330 P.3d 330 (Alaska 2014); In re Sherman ,
AWCB Dec. No. 13-0009, 2013 WL 226972, at *8-10 (Jan. 18, 2013) (applying
AS 32.06.306 to conclude that business was partnership and partners were liable);
Elkins v. Alaska Div. of Workers' Comp. , AWCB Dec. No. 11 -0024, 2011 WL 943716,
at *42 (Mar. 15, 2011) (considering whether agency interpretation of Board's regulation
was separate regulation under Administrati ve Procedure Act); In re Johnson , AWCB
Dec. No. 10-0056, 2010 WL 1186498, at *7 (Mar. 25, 2010) (applying AS 32.06.306
to impose liability on partners); Althouse v. Holland Am. Line/Westours , AWCB Dec.
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----------------------- Page 16-----------------------
26
from interpreting the meaning of an ambiguous statute, but API does no t distinguish
them.
One cited case, Henry v. Engle , required the Workers' Compensation
Board to construe AS 33.30.191, about prisoner employment, when an uninsured
employer of an inmate on work release contended this statute deprived the Workers'
Compensation Board of jurisdiction over the inmate's claim against the uninsured
27
employer. In contrast to the case before us, the Department of Corrections was a party
in Henry, was represented in the proceedings, and participated in the jurisdictional
hearing; moreover, nothing in the Henry decision suggests there was any disagreement
28
among State agencies about the statute's meaning.
Because API's defense to compensability was related to the provider's
scope of practice, it raised a question that touched the jurisdiction of distinct
No. 02 -0134, 2002 WL 1738882, at *3, *5 (July 22, 2002 ) (deciding based on statutory
language that UIM coverage is supplemental and therefore not "compensation" under
AS 23.30.105); Undt v. Matanuska -Susitna Borough , AWCB Dec. No. 94 -0207, 1994
WL 757844, at *3 (Aug. 24, 1994) (using definition of "municipality" in
AS 29.71.800(13) to interpret AS 23.30.243(b)); Stark v. Stark Lewis Co. , AWCB Dec.
No. 93-0111, 1993 WL 361423, at *5 (May 6, 1993) (deciding second independent
medical evaluation fees not subject to competitive procurement law); Nelson v. B & B
Foodland, AWCB Dec. No. 89 -0163, 1989 WL 236331, at *2 (June 28, 1989) (applying
AS 25.20.010 to determine that claimant was a minor).
26
Black's Law Dictionary distinguishes between "application" of a statute,
which involves "categoriz[ing] the legal facts at issue," Application , BLACK 'S LAW
DICTIONARY (11th ed. 2019), and "interpretation" of a statute, "[t]he ascertainment of
a text's meaning." Interpretation , BLACK 'S LAW DICTIONARY (11th ed. 2019).
27
AWCB Dec. No. 13 -0051, 2013 WL 2144973, at *3 (May 13, 2 013).
28
Id. at *1, *3.
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29
administrative agencies, each of which has limited jurisdiction. Two workers'
30
compensation agencies administer the Alaska Workers' Compensation Act; their
31
jurisdiction includes resolving disputes about the compensability of medical care. The
legislature empowered the Chiropractic Board to regulate Alaska chiropractors'
32 33
practice. All three agencies have the power to promulgate regulations and to
34
adjudicate certain types of claims. The Workers' Compensation Board and the
Chiropractic Board are both subject to the administrative adjudication provisions of the
35
Alaska Administrative Procedure Act. And each agency's jurisdiction is limited by
36
the statutes establishing them because an agency's jurisdiction is derived from statute.
The Workers' Compensation Act requires the Workers' Compensation
Board to determine the compensability of medical care when there is a dispute about
29
See Alaska Pub. Int. Rsch. Grp. v. State , 167 P.3d 27, 36 (Alaska 2007)
(identifying limited jurisdiction as factor in determining whether agency exercises
quasi-judicial rather than judicial authority).
30
AS 23.30.005, .008(a), .110; see also Alaska Pub. Int. Rsch. Grp. , 167
P.3d at 36 (describing limited jurisdiction of workers' compensation agencies).
31
AS 23.30.095.
32
AS 08.20.010-.020 (establishing Chiropractic Board and its membership);
AS 08.20.055 (authorizing Chiropractic Board to "adopt regulations necessary to
effect" statutes related to chiropractors); AS 08.20.170 (authorizing Chiropractic Board
discipline when licensee fails to comply with chiropractic statutes and regulations).
33
AS 23.30.005, .098 (Workers' Compensation Board); AS 23.30.008(c)
(Commission); AS 08.20.055 (Chiropractic Board).
34
AS 23.30.110 (outlining procedure on workers' compensation claims);
AS 23.30.008(a) (limiting Commission's jurisdiction); AS 08.20.170 (authorizing
Chiropractic Board to discipline licensee and requiring application of Alaska
Administrative Procedure Act to disciplinary proceedings).
35
AS 44.62.330(a)(1), (12).
36
McDaniel v. Cory , 631 P.2d 82, 88 (Alaska 1981).
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37
the reasonableness or necessity of the specific care an injured employee receives. This
inquiry is usually resolved through consideration of medical opinions about the
38
necessity or efficacy of the treatment. For example, the Workers' Compensation
Board may consider the acts of other agencies when making compensability
determinations: we recently held that the Workers' Compensation Board could
permissibly consider a federal Food and Drug Administration warning about the way a
medical device was used when denying the compens ability of surgery to implant that
39
device.
In contrast, the chiropractic statutes give the Chiropractic Board exclusive
40
jurisdiction over chiropractic licensing. As part of the Chiropractic Board's authority,
it has promulgated regulations that more s pecifically delineate the chiropractic statutes,
including acts that violate the statutory requirement that chiropractors meet "minimum
41
professional standards" when caring for patients. Among the acts listed in the
regulations about professional standards is one related to "engaging in patient care
37
See AS 23.30.095(a) (requiring employer to provide medical care); cf.
Phillip Weidner & Assocs., Inc. v. Hibdon , 989 P.2d 727, 731 (Alaska 1999) (discussing
standards for evaluating compensability of medical care).
38
See Hibdon, 989 P.2d at 732 (setting out reasonableness standard and
requiring medical opinions).
39
Mitchell v. United Parcel Serv. , 498 P.3d 1029, 1045 (Alaska 2021).
Similarly, the Workers' Compensation Board 's 2020 medical fee schedule, which
disallowed fees for services outside a provider's scope of practice, included
consideration of regulatory boards' definitions related to scope of practice. See supra
note 7.
40
AS 08.20.100-.170; see Taylor v. Johnston , 985 P.2d 460, 465 (Alaska
1999) (recognizing exclusive jurisdiction of Medical Board over medical licenses).
41
AS 08.20.170(a)(5); 12 AAC 16.920 (2019).
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42
outside the scope of chiropractic practice," which is the very issue API brought before
the Workers' Compensation Board.
API asked the Workers' Compensation Board to interpret the chiropractic
statute in a w ay that was contrary to the Chiropractic Board's interpretation of that
statute at the time Dr. Shannon treated White, informal as that interpretation may have
been. It was undisputed that in December 2018 and January 2019 the Chiropractic
Board's website had a position statement supporting properly trained chiropractic
physicians' "use of injectable nutrients." In addition, Dr. Shannon provided the
Workers' Compensation Board with a copy of a December 2018 letter from the
Chiropractic Board chair explici tly stating the opinion that, with appropriate training,
use of injectable Sarapin was "within the scope of chiropractic practice." On the other
hand, API supplied the Workers' Compensation Board with copies of Chiropractic
Board minutes documenting the d isagreement between the Chiropractic Board and the
Department of Law about the chiropractic statute's meaning. The workers'
compensation agencies thus were presented with a question of statutory interpretation
that could be relevant to an issue within their jurisdiction but touched the central
authority of a different quasi -judicial agency. In light of the record in this case, the
workers' compensation agencies appropriately recognized their limited jurisdiction and
deferred to the Chiropractic Board.
API accepts that a licensing board has "exclusive authority to regulate"
professionals within that licensing board's jurisdiction. It disavows asking the
Workers' Compensation Board "to regulate chiropractors," but it acknowledges that
any Commission decis ion about the scope of chiropractic practice would be precedent
42
12 AAC 16.920(a)(3).
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43
for the workers' compensation agencies. The precedential nature of a Commission
decision about the scope of chiropractic practice could result in the indirect regulation
of that practice bec ause any chiropractor treating injured workers would be affected by
such a decision . Under API's jurisdictional theory , chiropractors could have a different
lawful scope of practice in workers' compensation cases than in their general practice ,
which would indirectly regulate chiropractic practice and influence the type of
treatment chiropractors offered and provided to injured workers without regard to
whether the treatment was reasonably necessary and beneficial.
Moreover, API does not discuss how o ther administrative agencies might
interpret or apply Commission decisions about the scope of a provider's practice. For
example, the Alaska State Medical Board notified Dr. Shannon that it had received a
complaint alleging he might be practicing medicine without a license due to the Sarapin
injections; it sought a response from him about the complaint. The Medical Board
recognized that as long as Dr. Shannon was practicing within the scope of his
44
chiropractic license he would not be practicing medicine w ithout a license, but the
letter did not explain how the Medical Board would determine the scope of chiropractic
practice.
We strongly disagree with API's assertion that the scope of practice
question here did not implicate the Chiropractic Board's "te chnical expertise." We have
43
AS 23.30.008(a) ("Unless reversed by the Alaska Supreme Court,
decisions of the [C]ommission have the force of legal precedent."); Alaska Pub. Int.
Rsch. Grp. v. State , 167 P.3d 27, 42, 45 (Alaska 2007) ( construing AS 23.30.008(a) as
meaning Commission decisions are precedential for the workers' compensation
agencies).
44
See AS 08.64.170(a)(2) (excepting from unauthorized practice of
medicine someone licensed "under another law of the state" who engages in a practice
"authorized under that law").
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previously recognized the exclusive authority healthcare licensing agencies have over
their licensees; we also have recognized that this authority is tied to the expertise of the
45
licensing board. Four of the five Chiropractic Board members must be "licensed
46
chiropractic physicians who have practiced chiropractic in this state." The
47
Chiropractic Board's composition is similar to the Medical Board's, suggesting that
the Chiropractic Board, like the Medical Board , is "equipped with the necessary . . .
48
knowledge" to regulate chiropractic licensees. Because a provider's scope of practice
is inextricably intertwined with licensing, the workers' compensation agencies
appropriately refused to construe the chiropractic statute here .
API's argument that the workers' compensation agencies can
independently interpret any statute that might arise in a workers' compensation case
opens a range of questions when applied to disputes about the scope of a healthcare
provider's practice. Could the Workers' Compensation Board decide that care allowed
under a licensing board regulation is not compensable if the Board interprets the
licensing statute differently than the licensing board? Would the Workers'
Compensation Board need to amend its regulations about parties to a workers'
compensation case to ensure that a licensing board can participate in a workers'
compensation claim when a party disputes whether a treatment is within a provider's
45
Taylor v. Johnston, 985 P.2d 460, 465-66 (Alaska 1999).
46
AS 08.20.020. The fifth member "shall be a person with no direct
financial interest in the health care industry." Id.
47
The Medical Board is currently composed of five physicians licensed in
Alaska, "one physician assistant licensed under AS 08.64.107, and two persons with no
direct financial interest in the health care industry." AS 08.64.010.
48
Taylor, 985 P.2d at 465 (quoting Storrs v. State Med. Bd., 664 P.2d 547,
554 (Alaska 1983)).
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scope of practice, so that the licensing board can explain its interpretation of its own
49
governing statute to the Workers' Compensation Board?
We also share the Commission's concern that healthcare providers'
licenses might be affected if the Workers' Compensation Board assumed jurisdiction
over contested scope of practice issues. API's Department of Law attorney made a
complaint to the Department of Commerce licensing investigation unit about the
injections. Dr. Shannon was subsequently required to respond to two "informal
50
investigation" inquiries, one related to the Chiropractic Board and one to the Medical
51
Board. The record does not show any action beyond these informal investigations,
but the Commission rightly noted the risk of discipline or license revocation if a
healthcare provider were found by the workers' compensation agencies to be practicing
outside the scope of the provider's license. Indeed, licensing boards' expertise and the
exclusivity of their jurisdiction were reasons we refused to allow litigation about a
52
medical license's validity in a tort case.
API asserts that it "was left with no meaningful remedy" as a result of the
Commission's decision "because the Commission did not explain how API could get
49
See 8 AAC 45.040(c)-(d) (2021) (allowing joinder of those who have a
"right to relief" or "against whom a right to relief may exist").
50
Alaska Statute 08.20.170(a)(5) permits the Chiropractic Board to
discipline a chiropractor who engages in care not in conformity with minimum
professional standards. Chiropractic Board regulations include "engaging in patient
care outside the scope of chiropractic practice" in "[c]onduct that does not conform to
minimum professional standards." 12 AAC 16.920(a)(3) (2019).
51
See AS 08.64.170 (prohibiting practice of medicine without a license
except that a person licensed under a different chapter of AS 08 "may engage in a
practice that is authorized under that law"); AS 08.64.360 (making practicing medicine
without a license misdemeanor).
52
Taylor, 985 P.2d at 465-66 (observing that legislature gave Medical Board
"exclusive authority to grant or revoke [medical] licenses").
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----------------------- Page 23-----------------------
the Chiropractic Board to resolve this case." The Commission decision relied in part
on Taylor v. Johnston , when we declined in tort litigation to "look behind" the Medical
Board's decision to license a doctor, noting the tort litigant could have sought a stay in
court so he could "apply to the licensing board for an action on [the doctor's] license or
53
a declaration that [his] license was void." Just as the Alaska Statutes grant the Medical
Board exclusive jurisdiction over medical doctors' licensing, they give the Chiropractic
Board exclusive jurisdiction over chiropractic licensing decisions. API could have
asked the Workers' Compensation Board for a stay while it pursued a declaratory
judgment action if it wanted a clear ruling about Dr. Shannon's scope of practice; API
conceded at oral argument that a declaratory judgment action could be "a conceivable
route" to resolution of the scope of practice issue.
API also does not explain what action it anticipated the Chiropractic Board
would take "to resolve this case." All of the Chiropractic Board's act ions both before
this litigation and afterward suggest that the Chiropractic Board thought Dr. Shannon's
treatments were within the scope of his license: in addition to the documents showing
the Chiropractic Board's interpretation of the chiropractic statute, the Chiropractic
Board took no action against Dr. Shannon's license after receiving API's complaint and
did nothing when a Department of Commerce employee suggested writing a retraction
to a letter "in support of a chiropractor who had been using bill ing codes for injectable
nutrients."
In light of the legislature's explicit delegation of regulatory and
adjudicatory authority over chiropractors to the Chiropractic Board and the uncontested
evidence in the record that the Chiropractic Board had at lea st informally endorsed the
treatment Dr. Shannon provided to White, we agree with the workers' compensation
53
Id.
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agencies that they lacked jurisdiction to interpret the chiropractic statute to decide that
the injections exceeded the scope of chiropractic licensure.
B. The Commission Correctly Concluded That The Board Did Not
Abuse Its Discretion By Refusing To Compel Discovery And That
Substantial Evidence In The Record Supported The Compensability
Of The Medical Treatment.
API argues that the Commission erred in affirming the Board's discovery
order. It asserts that the Commission's conclusion "was based solely on a fundamental
misunderstanding of the [Workers' Compensation] Board's authority to apply statutes
outside the Workers' Compensation Act." Dr. Shannon asks us to affirm the
Commission's decision because the discovery at issue was irrelevant to the issues over
which the Workers' Compensation Board had jurisdiction.
The contested discovery was related to information about Sarapin.
Dr. Shannon objected to API's question asking him whether the substance he used in
the injections was "prescription medicine" or a "prescription drug" and its request that
he "provide a copy of the purchase invoice" for the substance or a photograph of the
substance's label. Dr. Shannon argued the information was not relevant to
compensability. The Commission decided the Board had not abused its discretion when
it declined to compel discovery because the information API sought was related only to
the legal question API raise d about the scope of chiropractic practice, which was not
within the Workers' Compensation Board's jurisdiction.
Because we agree with the Commission that the workers' compensation
agencies lacked jurisdiction to determine the boundaries of chiropractic practice in the
context of this case, we also agree with the Commission's discovery decision. The
54
Workers' Compensation Board is generally not bound by technical discovery rules,
54
AS 23.30.135(a) (providing that Board "is not bound by common law or
statutory rules of evidence or by technical or formal rules of procedure");
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----------------------- Page 25-----------------------
55
but it does consider them. We have said that "relevance for purposes of d iscovery is
56
broader than for purposes of trial," but discovery must always be "relevant to the
57
subject matter involved in the pending action." API's discovery requests about
Sarapin's status were relevant only if the Workers' Compensation Board decided to
assume jurisdiction over API's statutory interpretation question: API's theory is that
all "ancillary methodology" is restricted by the statutory definition of "chiropractic,"
58
which it contends prohibits any use of prescription drugs. The Workers'
Compensation Board did not have jurisdiction to decide this question, so the discovery
was not relevant to issues within the Board's jurisdiction.
Similarly, API's only argument on appeal regarding compensability is
related to its theory of the chiropractic statute's meaning. Because API did not
otherwise challenge the Commission's conclusion that the treatments were
8 AAC 45.054(b) (2021) (allowing Board to order discovery upon petition). But see
AS 23.30.115(a) (allowing witness testimony to "be taken by deposition or
interrogatories according to the Rules of Civi l Procedure); 8 AAC 45.054(a) (applying
Alaska Rules of Civil Procedure to oral or written deposition testimony).
55
E.g., Adams v. O&M Enters. , AWCB Dec. No. 14-0136, 2014 WL
5148610, at *5 (Oct. 9, 2014) (observing that Board relies on civil rules for gui dance
including discovery rules); cf. Leigh v. Alaska Child.'s Servs., 467 P.3d 222, 229
(Alaska 2020) (construing "relative" in AS 23.30.107(a) as consistent with "relevant"
in Rule 26(b)(1)).
56
Lee v. State , 141 P.3d 342, 347 (Alaska 2006) (quoting Hazen v. Mun. of
Anchorage , 718 P.2d 456, 461 (Alaska 1986)).
57
Alaska R. Civ. P. 26(b)(1).
58
In AS 08.20.900(3), "chiropractic" is defined as "the clinical science of
human health and disease that focuses on the detection, correction, and prevention of
the subluxation complex and the employment of physiological therapeutic procedures
preparatory to and complementary with the correction of the subluxation complex for
the purpose of enhancing the body's inherent recuperative powers, without the use of
surgery or prescription drugs; the primary therapeutic vehicle of chiropractic is
chiropractic adjustment."
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----------------------- Page 26-----------------------
compensable, we affirm the Commission's decision that substantial evidence in the
record supports the Workers' Compensation Board's decision about the compensability
of the care Dr. Shannon provided to White.
CONCLUSION
We AFFIRM the Commission's decision.
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