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Bockus v. First Student Services

Supreme Court of Alaska

December 2, 2016


         Appeal from the Alaska Workers' Compensation Appeals Commission. No. 14-008

          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 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 award.


         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 perform a 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 performed another surgery the following day, this time at the correct level; decompressed 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 correspondence related to the surgery, the workers' compensation carrier asked Dr. Wright whether Bockus's work-related injury was the substantial cause of the first surgery, at the Tl 1-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.

         Bockus and Dr. Wright discussed further surgery in mid-July, when Bockus "reported] 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 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 they can't pay, " presumably in case the EIME leads to a controversion.[1] The assistant 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 answer a number of other 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 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"[2] 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, [3]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."

         Bockus attended the EIME in late September. Dr. Williams did not perform 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 T 10-TH"; 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 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" first.

         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 ...

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