from the Alaska Workers' Compensation Appeals Commission.
John Franich, Franich Law Office, LLC, Fairbanks, for
M. Schwarting, Griffin & Smith, Anchorage, for Appellees.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
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.
FACTS AND PROCEEDINGS
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
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.
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.
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
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.
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. 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.
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."
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" for treating Bockus's condition.
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.
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."
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.
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
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.
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.
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"
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