Alcan Electric v. Bringmann

829 P.2d 1187, 1992 Alas. LEXIS 39
CourtAlaska Supreme Court
DecidedApril 10, 1992
Docket3829
StatusPublished
Cited by2 cases

This text of 829 P.2d 1187 (Alcan Electric v. Bringmann) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alcan Electric v. Bringmann, 829 P.2d 1187, 1992 Alas. LEXIS 39 (Ala. 1992).

Opinion

OPINION

RABINOWITZ, Chief Justice.

I. INTRODUCTION

This is an appeal from the superior court’s reversal of a decision by the Alaska Workers’ Compensation Board which denied Skipp Bringmann reimbursement for transportation expenses incurred in obtaining medical treatment in California. Bring-mann’s cross-appeal concerns the superior court’s affirmance of the Board’s choice of date for retroactive application of temporary total disability compensation based on Bringmann’s status as a journeyman electrician.

II. FACTS AND PROCEEDINGS

While working as an apprentice electrician for Alcan Electrical & Engineering Co. (Alcan) in November 1987, Skipp Bring-mann fell approximately twenty-five feet from a ladder and sustained serious injury to his feet. Bringmann applied for workers’ compensation benefits and was awarded temporary total disability benefits. The compensation amount was based on his status as an apprentice electrician at the time of his accident.

Initially, Bringmann was treated by Dr. Declan Nolan, an Anchorage orthopedic surgeon. Dr. Nolan’s prescribed course of treatment for Bringmann was to wait about a year and if the bones had not naturally fused, he would then perform a “triple arthrodesis.” 1 While the triple ar-throdesis would reduce Bringmann’s pain, it would also eliminate most of the motion in his lower ankle.

Unsatisfied with Dr. Nolan’s proposed course of treatment, Bringmann consulted doctors in Hawaii and Washington, who agreed with Dr. Nolan’s recommendations. Finally, Bringmann consulted Dr. Bryan Kerns, a licensed podiatrist in Huntington Beach, California, who recommended an operation involving a combination of several procedures which would alleviate the pain and allow a greater range of motion.

On April 26, 1988, Dr. Kerns, employing six different procedures, operated on Bringmann’s left foot for approximately five hours. Bringmann testified that the surgery was very successful in reducing his pain and increasing his mobility. While some of the procedures performed by Dr. Kerns were normally simple when performed individually, Dr. Kerns testified that, under the circumstances, the procedures performed upon Bringmann were “extremely complicated.” Although there is no evidence that Dr. Nolan considered performing such combination of procedures on Bringmann, he testified that he could have performed each of the procedures individually.

In March 1988, Bringmann was found to have worked the requisite 8,000 hours as an apprentice electrician and was certified to take the journeyman electrician’s licensing examination. Although Bringmann could have taken the examination earlier, he did not take the examination until September 1, 1988. Despite the delay in taking the journeyman examination, Bring-mann claimed that he was entitled to an increased rate of compensation based on a journeyman electrician’s status as of March 16, 1988, the date on which he was eligible to take the examination.

The Workers’ Compensation Board (Board) held a hearing on the issues of the compensability of transportation costs to California and the rate of compensation. The Board denied Bringmann’s request for reimbursement of his transportation costs associated with the medical treatment he received in California finding that “there were adequate medical treatment facilities available in Anchorage to treat Employee’s medical problems.” The Board also concluded that the increased compensation rate was retroactive to September 1, 1988, *1189 the date Bringmann passed his journeyman electrician’s licensing examination.

On June 28, 1990, the superior court affirmed the Board’s conclusion that the increased compensation rate was retroactive to September 1, 1988, and reversed the Board’s denial of transportation costs associated with the medical treatment Bring-mann received in California. Both Alcan and Bringmann appeal.

III. DISCUSSION

A. Transportation Costs

Alcan argues that the superior court erred when it reversed the Board and ordered reimbursement for the transportation costs that Bringmann incurred in obtaining medical treatment in California. 2 Alaska Statute 23.30.095(a) requires employers to furnish medical and surgical treatment to an employee injured on the job for two years after injury. Relying on the language of AS 23.30.265(20), which provides that “ ‘medical and related benefits’ includes ... transportation charges to the nearest point where adequate medical facilities are available,” Alcan asserts that Bringmann failed to demonstrate that adequate treatment was not available in Alaska. Bringmann responds that only Dr. Kerns considered and recommended the surgery that he successfully performed. He also argues that the Board failed to apply the presumption of compensability under AS 23.30.120(a)(1).

The Board placed the burden of proof on Bringmann to show that the location of the medical facility he chose was the nearest adequate medical facility. The Board further stated that “[e]ven if the statutory presumption found [in] AS 23.30.120 was stretched beyond logic and reason to include an issue such as this, Defendants have produced substantial evidence (via Dr. Nolan) to rebut the presumption.” The Board found that Dr. Nolan or other skilled orthopedic surgeons could have performed the surgery and therefore adequate medical facilities were available in Anchorage.

The superior court reversed the Board, reasoning:

the board did not find that Dr. Nolan gave consideration to this particular combination of surgical procedures as an alternative to fusion, and the Board did not find that Dr. Nolan provided Bringmann with this option....
... What is crucial is that Dr. Kerns’ [sic] proposed a new standard for what is “adequate” in treating a crushed foot which Bringmann could not find in Anchorage, Honolulu or Seattle.
The legislature amended Alaska Statutes 23.30.095(a) in 1988, deleting the requirement that the injured employee first designate a licensed physician “in the state.” This amendment shows that the legislature intended to drop the parochial view that adequate treatment is always available in this state.

At oral argument, Bringmann correctly relied on Olson v. AIC/Martin J. V., 818 P.2d 669, 675 (Alaska 1991), for the proposition that “the presumption of com-pensability applies to continuing medical care.” Bringmann’s transportation expenses to California for treatment were clearly part of his ongoing medical care. Thus we hold that the Board erred in failing to apply the presumption of compensa-bility to Bringmann’s transportation costs.

Alcan concedes that an employee is entitled to out of state medical treatment when equally beneficial treatment is not available in the employee’s home state. See 2 A. Larson, The Law of Workmen’s Compensation § 61.13(b)(2) (1989). Alcan relies on Braewood Convalescent Hospital v. Worker’s Compensation Appeals Board, 34 Cal.3d 159, 193 Cal.Rptr.

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Bluebook (online)
829 P.2d 1187, 1992 Alas. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alcan-electric-v-bringmann-alaska-1992.