Opinion
Supreme Court No. S-11588.
December 14, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Stephanie E. Joannides, Judge, Superior Court No. 3AN-02-12727 Civil.
Mark L. Figura, Rose Figura, Anchorage, for Appellants.
Andrew J. Lambert, Kalamarides Lambert, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
The Alaska Workers' Compensation Board ruled that Liya Adams's claim for surgery preauthorization was neither medically reasonable nor necessary. This ruling was reversed by the superior court. Tanana Valley Clinic challenges the superior court's order in this appeal.
We agree with the superior court for the reasons it stated on the issue of the reasonableness of the surgery sought by Adams. We set out here the opinion of the court pertinent to this issue.
The superior court opinion has been edited to conform with the technical standards of this court.
ORDER
Appellant, employee Liya Adams, appeals the decision of the Alaska Workers' Compensation Board in favor of Appellee, Tanana Valley Clinic, and the Board. In its October 31, 2002 decision, the Board determined that Adams's claim for surgery was not reasonable or necessary. The Board's decision is REVERSED.
Background
Prior to her February 2000 workers' compensation claim, the employee had a history of lower back problems dating back to the early 1990's. Various doctors in Fairbanks treated her and at one point she received traction therapy in China. She injured her lower back on February 25, 2000, lifting heavy items at work while employed as a Nursing Aide with Tanana Valley Clinic. Her claim was initially accepted as compensable and benefits were paid accordingly.
On April 24, 2000, Dr. Richard Cobden evaluated the employee. He recommended a conservative form of treatment during the six months following her injury, consisting of physical therapy, lumbar traction, ultrasound and soft tissue massage, myofascial release, and soft tissue mobilization techniques. On August 17, 2000, the physical therapist noted that the employee's complaints had improved, and she requested discharge from further physical therapy. She was discharged from physical therapy in the fall of 2000 and released to a home exercise program. Dr. Cobden noted on September 18, 2000, that there had been "no real change" in Adams's back, neck, and sciatica conditions "over the last six or seven years," and that, "she did have a flare-up in February, but it has settled down now." Dr. Cobden concluded that the flare-up was "now back down to its pre-existing status."
The employee was reexamined by Dr. Cobden on January 3, 2001. Dr. Cobden agreed to refer the employee to Dr. Jens Chapman in Seattle, Washington for surgical evaluation. Dr. Chapman evaluated the employee on April 17, 2001. He felt that the employee would benefit from a decompressive surgery together with posterior interbody fusion and posterolateral fusion and instrumentation.
On May 19, 2001, at the request of the employer, Dr. Thad Stanford examined the employee. Dr. Stanford reviewed the 1994 and 2000 MRI films and stated that he did not see a disc herniation. He recommended against surgery, and suggested an exercise program combined with anti-inflammatories. He opined that "the proposed surgery is not reasonable and necessary" and believed that Adams had unrealistic expectations about the surgery.
On May 30, 2001, the employer controverted the employee's claim because of Dr. Stanford's May 19, 2001 report. That resulted in the denial of benefits for an L5-S1 posterior lumbar interbody fusion surgery and related treatment from such surgery.
On June 5, 2001, Dr. Chapman reviewed Dr. Stanford's report at the employer's request. Dr. Chapman again recommended surgery and noted that the employee's current condition was the result of the lifting incident at her job that exacerbated a preexisting condition. He also stated that it was his professional opinion that the employee had already exhausted most, if not all, non-operative treatment measures, that surgery was still recommended, and the outcome, based upon his experience, was very favorable.
On June 5, 2001, the employee filed a claim for temporary total disability compensation, permanent partial impairment compensation, and medical benefits. The employer answered Adams's claim on June 26, 2001, and denied owing the benefits requested by the employee.
On July 23, 2001, Dr. Cobden reevaluated the employee and again expressed concerns about proceeding with surgery. He referred the employee to Dr. Witham, who worked at the same clinic, for a second opinion on the need for surgery.
On August 27, 2001, the employer controverted the employee's claim again and denied owing the employee's travel expenses relating to an evaluation by Dr. Chapman in Seattle.
On September 4, 2001, Dr. Witham, the doctor who worked in the same clinic as Dr. Cobden, evaluated the employee. Dr. Witham concluded that Dr. Chapman's recommendation for surgery was reasonable if the employee accepts the risks of surgery. On September 5, 2001, Dr. Witham reviewed Adams's past and present MRIs, and again agreed with Dr. Chapman's recommendation for surgery.
On September 17, 2001, Dr. Cobden then referred Adams back to Dr. Chapman for reevaluation and recommended that she follow his treatment recommendations. Dr. Cobden stated that he did not believe that the contemplated surgery could be performed in Alaska.
On September 18, 2001, Dr. Chapman reevaluated the employee and, in a follow-up letter to Dr. Cobden, concluded that the employee's May 10, 2000 MRI clearly showed changes in her condition when compared to the pre-injury June 20, 1994 films. As a result, he felt that the employee's lumbar condition was substantially worsened by her work-related injury. Dr. Chapman again recommended surgery for her work-related injuries.
The employee retained Andrew Lambert of the Law Office of Kalamarides and Lambert to pursue her claim. The employee's attorney filed an amended claim for benefits on September 19, 2001, to include transportation benefits, a board-ordered second independent medical evaluation, an eligibility evaluation for reemployment benefits, and attorney fees and costs.
The employer answered the employee's amended claim on October 2, 2001, and denied medical and transportation benefits to the employee.
The parties attended a prehearing with the Fairbanks Board on October 25, 2001, and the deadlines were scheduled for a Board-ordered second independent medical evaluation.
On December 10, 2001, Dr. Cobden was deposed. He testified that the employee's lifting incident could have caused her current condition, that he would defer to Dr. Chapman regarding the employee's need for surgery, that Dr. Chapman would be the best surgeon to perform such a procedure if it were to be undertaken, and that he believed that the employee should first be evaluated by a pain clinic before any surgery contemplation.
On December 20, 2001, Dr. Alan Greenwald performed a Second Independent Medical Report (SIME). Dr. Greenwald recommended conservative treatment consisting of a series of epidural steroid injections, stabilization therapy training, and anti-inflammatories. Dr. Greenwald stated that Adams was not a candidate for an IDET, and that it might even be reasonable to only do a discectomy on the left at the L5 level. He was not in favor of the employee having spinal surgery, but did not rule it out as reasonable and necessary to treat her work-related injuries after she had tried additional conservative treatment.
Dr. Lawrence Stinson, a pain clinic physician, evaluated the employee at Dr. Cobden's request. This evaluation was set so the employee could try the more conservative treatment options recommended before the SIME doctor would agree to recommend surgery. On May 4, 2002, the employee was administered the epidural injections. On May 11, 2002, Dr. Stinson reevaluated her and noted that subjectively the employee had some temporary relief following the procedure but that all of her symptoms had since recurred. As a result, Dr. Stinson decided that the employee would not benefit any longer from conservative therapy. He also stated that the imaging studies as well as the x-rays taken of her injuries supported invasive care amounting to an interbody fusion and stabilization which would most likely be performed by Dr. Chapman in Seattle.
A hearing was conducted on September 12, 2002. The Board issued a decision on October 31, 2002, denying the employee's claim for benefits except for reimbursement of her transportation costs to Seattle, Washington to be evaluated by Dr. Chapman.
Standard of Review
The task of the appellate court is to determine whether the decision of the Board was contrary to law or unsupported by substantial evidence. Grainger v. Alaska Workers' Comp. Bd., 805 P.2d 976, 977 (Alaska 1991). In determining whether the Board was correct in its decision, the Alaska Supreme Court has adopted the substantial evidence rule. Miller v. ITT Arctic Servs., 577 P.2d 1044, 1049 (Alaska 1978). If there is such relevant evidence as a reasonable mind would accept as adequate to support a given conclusion, then the order of the Workers' Compensation Board must be upheld. Id.
Discussion
In workers' compensation cases, there is a presumption of compensability once the worker establishes a "preliminary link" between their employment and their disability. Wade v. Anchorage Sch. Dist., 741 P.2d 634, 637-38 n. 4 (Alaska 1987). The employer may rebut this presumption by introducing substantial evidence that the injury is not compensable. Id. If the presumption is rebutted, the worker must then prove each element of [her] claim by a preponderance of the evidence. Id.
In its October 31, 2002 decision, the Board found that the employee established a preliminary link between her claim for surgery and her work-related injuries and that this was sufficient to establish the presumption of compensability. The Board found that the employee presented medical evidence which, in claims based on highly technical medical consideration, is required to establish this connection. The Board then found that the employer had overcome the presumption of compensability by presenting substantial evidence that the employee's request for surgery was not medically indicated. The Board then reviewed the employee's claim under a preponderance of the evidence test and ruled that Adams's request for surgery was not reasonable or necessary at that time. The employee maintains that the Board erred when they determined that she had not proven her claim by a preponderance of the evidence.
When determining that surgery was not reasonable and necessary, the Board appeared to rely mainly on the opinions of Dr. Cobden, Appellant's treating physician, Dr. Stanford, the employer's physician, and Dr. Greenwald, the Board's physician. The Board also reviewed reports generated by Drs. Chapman, Witham, and Stinson, all of whom recommended surgery.
Determination on whether or not to order payment for medical treatment is governed by AS 23.30.095(a). The Alaska Supreme Court has interpreted this statutory language as requiring that the Board determine whether the care in question is medically "reasonable and necessary." Bockness v. Brown Jug, Inc., 980 P.2d 462, 466 (Alaska 1999). The employee argues that she presented sufficient evidence from three physicians that all conservative treatment had failed, and that surgery is reasonable and necessary. The employee claims that she met her burden of proof by a preponderance of the evidence. I agree.
In their October 31, 2002 decision, the Board determined that the employee's claim for surgery was not reasonable or necessary. The Board cited the medical opinions and testimony of Drs. Cobden, Stanford and Greenwald in reaching its decision. Dr. Stanford recommended more conservative treatment. Employee tried it and it was not successful. Dr. Greenwald did not rule out surgery as long as the employee tried additional conservative treatments. She did so with Dr. Stinson. And Dr. Cobden, while not agreeing with the surgery recommendation, referred her to doctors he trusted, one a doctor in his office and the other a well respected spine surgeon at the University of Washington. They both recommended surgery.
In Phillip Weidner Assocs. v. Hibdon, 989 P.2d 727 (Alaska 1999), the supreme court set forth standards for the board when determining whether or not to order medical treatment recommended within two years from an employee's date of injury. In Hibdon, several physicians opined that the employee required surgery to treat her work-related injuries, while two other physicians opined that surgery was not medically indicated. The supreme court held that where a consensus is reached between the injured worker and her physicians regarding surgery, the employer bears a heavy burden to show that treatment is neither reasonable nor necessary. Id. at 732. The role of the Board in such cases is not to select between reasonable, but competing, medically acceptable treatments. Rather, the Board must "determine whether the actual treatment sought by the injured worker is reasonable." Id.
The employer believes that Hibdon is not applicable because the employee's treating physician, Dr. Cobden, did not reach a consensus with the other doctors regarding surgery. It is true that Dr. Cobden, the employee's treating physician, believes that the employee may not be a surgical candidate. Nonetheless, this is not determinative given his repeated referrals to Dr. Chapman, and his referral to Drs. Witham and Stinson, all of whom recommended surgery for the employee.
The employee's primary treating physician, Dr. Cobden, does not perform surgery. Rather, he assists during surgical operations. Therefore, he referred the employee to Dr. Chapman, a highly respected spine physician at the University of Washington Medical Center in Seattle, Washington. Dr. Cobden testified that Dr. Chapman is a doctor he trusts and believes is reliable. Dr. Chapman evaluated the employee on May 19, 2001. At that time, he felt that the employee had failed reasonable non-operative care and recommended surgery. He also felt that the prognosis after the surgery was good. That was the first of a number of times that Dr. Chapman considered other doctors opinions when reevaluating the employee. Dr. Cobden also referred the employee to another doctor in the same clinic, with the same result: a recommendation for surgery. And when Dr. Cobden referred the employee to yet another doctor, there was recommendation for surgery by that doctor at the pain clinic.
The employer's physician, Dr. Stanford, evaluated the employee on May 19, 2001. It was his opinion that the employee may respond to a rehabilitative exercise program and did not recommend surgery. He was the only doctor who did not recommend surgery or make a referral to someone with more experience.
Dr. Greenwald, the Board's physician, evaluated the employee on January 2, 2002, and, similarly to Dr. Stanford, initially recommended conservative treatment. He recommended treatment consisting of epidural steroid injections, stabilization therapy, and anti-inflammatories. When responding to the Board's inquiry regarding surgery, Dr. Greenwald opined that he was not generally in favor of spinal surgery, but did not rule out spinal surgery as reasonable and necessary to treat Appellant's work-related injuries. The employee followed through and went for steroid injections they were not successful. The pain management doctor recommended surgery.
In its opinion, the Board noted that functionally the employee continues to work as a phlebotomist, to the satisfaction of her employer. In addition, she is pursuing education as an x-ray technician and remains able to travel as well. The Board and the employee's treating physician are concerned that the proposed surgery may make the employee disabled from doing the job that she is currently able to do, at least for a period of time while she recuperates, and may preclude her from performing the x-ray technician job for which she is currently receiving training. Such is a risk with all surgery. Therefore, this does not appear to be an appropriate basis for decision.
. . . .
For the above stated reasons, the decision of the Alaska Workers' Compensation Board is REVERSED.
Tanana raises two additional points on appeal. First, it claims that the superior court erred in failing to consider its argument that Adams's current condition is not causally related to her workplace injury. Tanana notes that the Board found it unnecessary to address this argument. Tanana asked the superior court to affirm the decision of the Board on this alternative basis. The court held that Tanana had not raised this issue before the Board and therefore declined to consider it. Our review of the briefing before the Board has convinced us that the issue was raised and therefore the waiver rationale of the superior court was inappropriate. Nonetheless, the superior court correctly declined to resolve the issue. Doing so would involve fact finding that is the province of the Board. Since the rationale on which the Board made its decision has been reversed, Tanana is entitled to a determination from the Board on the work-relatedness issue.
The Board may, in its discretion, conduct supplemental evidentiary proceedings before making this determination.
Tanana's other point is that the superior court should have addressed the question of whether Tanana should be liable for transportation expenses for the prospective surgery. There was evidence at the hearing that the surgery could be performed in Alaska. On the other hand, the Board awarded Adams reimbursement for her past travel costs to consult with the Seattle physician, Dr. Chapman, and observed that "all doctors agree . . . that the surgery proposed in this case is difficult and that Dr. Chapman is among the most qualified to perform the surgery." This might imply that transportation costs to and from Seattle for the actual surgery should also be paid by Tanana. Alaska Statute 23.30.395(20) provides that "medical and related benefits" includes "transportation charges to the nearest point where adequate medical facilities are available." This statute obviously requires some interpretation if it is to be applied to the present situation. We believe that this interpretation is best left to the Board, at least initially. On remand, the Board should determine whether transportation costs to and from Seattle should be assessed against Tanana for Adams's surgical procedure.
The judgment of the superior court is AFFIRMED. This case is REMANDED to the Alaska Workers' Compensation Board for further proceedings in accordance with this opinion.