Municipality of Anchorage v. Carter

818 P.2d 661, 1991 Alas. LEXIS 119, 1991 WL 208251

• Court: Alaska Supreme Court
• Decided: October 17, 1991
• Docket: S-3350
• Status: Published

Opinions

OPINION

RABINOWITZ, Justice.

In this case we must decide whether the presumption of compensability applicable in workers’ compensation cases pursuant to AS 23.30.120(a) of the Alaska Workers’ Compensation Act¹ applies to a claim for continuing care under AS 23.30.-095(a).² In addition, the circumstances of this case require us to pass on the availability of palliative care under the latter statute, which authorizes the Board to award continuing care beyond two years after the date of injury as is “necessary for the process of recovery.” Id.

FACTS AND PROCEEDINGS.³

The medical experts agree that Carter suffers from a form of degenerative disc disease. It is also undisputed that this condition is work-related. After a period of treatment by various chiropractors, Carter sought to obtain at his employer’s expense as-needed chiropractic care and a hot tub.⁴ Carter’s employer controverted the claim for as-needed chiropractic care on the ground that it was no longer medically indicated. The employer’s adjuster also refused to authorize the hot tub, which would cost, according to Carter’s estimate, $4,595.

Carter sought the Board’s review of these determinations. Under AS 23.30.-095(a), the Board has authority to require that an employer pay for continuing care⁵ for a work-related injury as the employee’s “process of recovery may require.” ⁶ Carter presented medical and other evidence at the hearing tending to demonstrate the potential benefits to him of limited hot tub treatments and as-needed chiropractic care.⁷ The Board held that there was “no objective evidence” that either as-needed chiropractic care or a hot tub could help Carter recover from his chronic condition, and therefore denied Carter’s request for both, pursuant to AS 23.30.095(a).

Carter appealed, and the superior court reversed the Board’s decision. The sole ground for the superior court’s reversal was that the Board had not applied the presumption established by AS 23.30.-120(a)⁸ to Carter’s claim for continuing care. The court found Carter’s medical evidence sufficient to raise the presumption, thus shifting the burden of production to Carter’s employer to produce substantial evidence that Carter’s requested and prescribed treatment was not required for his recovery. See, e.g., Miller v. ITT Arctic Services Corp., 577 P.2d 1044, 1046 (Alaska 1978). Only upon adequate rebuttal by his employer would "Carter’s burden of proof require that he persuade the Board by a preponderance of the evidence, as the Board here required from the outset. See, e.g., Veco, Inc. v. Wolfer, 693 P.2d 865, 869-70 & n. 6 (Alaska 1985).

The Municipality of Anchorage petitioned this court for review of the superior court’s decision. We granted the petition.

DISCUSSION.

A. Whether the Presumption of Com-pensability Applies to Claims for Continuing Care Under AR 23.30.-095(a).

Whether the presumption of com-pensability of AS 23.30.120(a) applies to shift the burden of production to the employer in proceedings to determine the com-pensability of continuing care under AS 23.30.095(a) is a legal question subject to de novo review by this court. See, e.g., Miller, 577 P.2d at 1046.

Alaska Statute 23.30.095(a) does not require the Board to provide continuing rehabilitative or palliative care in every instance. Rather, the statute grants the Board discretion to award such “indicated” care “as the process of recovery may require.” Id. (see supra note 2). While we have not previously addressed whether the presumption provided for in AS 23.30.120(a) may be raised by an injured employee claiming a continuing, medically indicated need for care and treatment under AS 23.-30.095(a),⁹ we have in the past applied the presumption of AS 23.30.120(a) to non-causation issues.¹⁰ Moreover, the text of AS 23.30.120(a) indicates that the presumption of compensability is applicable to any claim for compensation under the workers’ compensation statute. We therefore hold, consistent with AS 23.30.120(a) and cases construing its language, that an injured employee may raise the presumption that a claim for continuing treatment or care comes within the provisions of AS 23.30.-095(a), and that in the absence of substantial evidence to the contrary this presumption will satisfy the employee’s burden of proof as to whether continued treatment or care is medically indicated.

We do not view this construction of the presumption as inconsistent with the discretion accorded the Board under AS 23.30.095(a). The presumption shifts only the burden of going forward, not the burden of proof. See, e.g., Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145, 1150 (Alaska 1989). The presumption will drop out if an employer adduces “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” that continued care is either not indicated, or not indicated as the employee contends. Id. at 1150 (citing Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978)). The employee then must meet her burden of proof by carrying a burden of persuasion without aid of any presumption or construction in favor of recovery. See 1988 SLA ch. 79 § 1(b). Finally, the Board retains discretion not to award continued care or treatment or to authorize care or treatment different from that specifically requested based on the requirements demonstrated either by the employee’s raised and unrebutted presumption, or by the preponderance of the evidence, as further informed in each ease by the “Board’s experience, judgment, observations, unique or peculiar facts of the case, and inferences drawn from all of the above.” Kodiak Oilfield Haulers, 777 P.2d at 1151.

B. Whether AS 23.30.095(a) Precludes an Award for Purely Palliative Care.

The Board held that AS 23.30.095(a) prohibits requiring the employer to pay for Carter’s chiropractic care and hot tub because these measures are purely “palliative,” not “necessary to- the process of recovery,” and thus not within the scope of AS 25.30.095(a). Specifically, the Board stated that “ ‘process of recovery’ signifies long term improvement.” Because thére was no proof that Carter’s degenerative disc disease could be cured by chiropractic care or use of a hot tub, the Board held that the statute prohibited it from requiring the employer to pay for such care, even though there was evidence before the Board tending to show that the proposed treatments alleviated Carter’s condition.

We decline to read the “process of recovery” language so narrowly. A substantial number of jurisdictions provide compensation for purely palliative measures offering no hope of a permanent cure.¹¹ Moreover, courts have construed statutes phrased in terms similar to the “process of recovery” language of AS 23.30.095(a) as consistent with the Board’s power to require the employer to pay for beneficial palliative care which offers no hope of a cure. See, e.g., Talas v. Correct Piping Co., 435 N.E.2d 22 (Ind.1982) (nursing care for quadriplegic under statute permitting care “necessary to limit or reduce ... impairment”); DiGiorgio Fruit Corp. v. Pittman, 49 So.2d 600, 603 (Fla.1950) (medication and care for chronic thrombophlebitis to relieve “flareup[s]”).¹²

In DiGiorgio, the Florida Supreme Court reasoned that the recurrent effect of certain injuries warrants a construction of the “process of recovery” language to mean “a recovery from the [recurring] attacks.” Id. at 603. We find this reasoning persuasive, and hold that the “process of recovery” language of AS 23.-30.095(a) does not preclude an award for purely palliative care where the evidence establishes that such care promotes the employee’s recovery from individual attacks caused by a chronic condition.¹³

AFFIRMED as MODIFIED with instructions to REMAND to the Board for further proceedings consistent with this opinion.¹⁴

COMPTON, J., dissents in part.

MOORE, J., dissents.

1 . That statute provides in part:

In a proceeding for the enforcement of a claim for compensation under this chapter, it is presumed in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter....

²

Medical Examinations. The employer shall furnish medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus for the period which the nature of the injury or the process of recovery requires, not exceeding two years from and after the date of injury to the employee_ It shall be additionally provided that, if continued treatment or care or both beyond the two-year period is indicated, the injured employee has the right of review by the board. The board may authorize continued treatment or care or both as the process of recovery may require.

3 . Where, as here, the superior court functions as an intermediate court of appeal, we independently review the Board's findings of fact. See Burgess Construction Co. v. Smallwood (Smallwood III), 698 P.2d 1206, 1210 (Alaska 1985). We review the Board’s factual findings to determine whether they are supported by "substantial evidence.” In making this determination, it is not our function to reweigh conflicting evidence. Fairbanks North Star Borough School Dist. v. Crider, 736 P.2d 770, 773 (Alaska 1987) ("The court need find only ‘such relevant evidence as a reasonable mind might accept to support a conclusion.’ ”) (citation omitted).

4 . Dr. Barrington, a chiropractor, had recommended home hot bath treatments for Carter in response to Carter's observation that they made him feel significantly better. Carter first experienced hot-tubbing at a local spa. However, Carter subsequently established a homestead in Willow, Alaska, a remote locale not proximate to any spa. There is no bathtub in his house on the homestead.

5 . Continuing care under the statute is care sought more than two years after the injury occurred.

6 . See infra note 2.

7 .At the hearing Carter presented his own and his wife’s testimony, and the testimony of two chiropractors who had treated him, Barrington and Larson. The employer relied on the testimony of Dr. James, who had examined Carter for an hour at the employer’s request.

Barrington stated that he did not usually recommend heat for the treatment of a spinal condition, but that hot baths would likely reduce Carter’s pain, and could be “possibly helpful” to his recovery, although too much warm water bathing could worsen Carter's spinal condition by inflaming his sciatic nerve. Barrington also noted that a hot tub was not strictly necessary for Carter, and would primarily soothe leg cramps Carter was experiencing, apparently unrelated to his back injury.

Larson testified that Carter would probably suffer more without the continued as-needed chiropractic care he seeks. He .further testified that the absence of changes in Carter's spinal condition during the period of Larson’s chiropractic treatment of Carter suggested that the treatment may have halted Carter’s degenerative disc disease, and that hot baths ("hydrotherapy”) should be continued since they seemed to relieve Carter’s pain.

Dr. James testified that continued chiropractic care was not medically indicated for Carter; he recommended instead that Carter “begin a regular exercise program ... to enhance neck as well as back mobility, strength, and endurance.” He concluded that "a hot shower would be adequate for delivery of heat and probably the safest mechanism to do so.”

8 . See infra n. 1.

9 . The most typical application of the presumption of compensability established by AS 23.30.-120(a) is in proving work-relatedness. See, e.g., Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 211 (Alaska 1966) (presuming that an employee's heart attack suffered after climbing a tower in the course of employment was work-related rather than causally independent, of the employment). But see infra note 12; see also Larson & Lewis, The Alaska Workers' Compensation Law: Fact-Finding, Appellate Review, and the Presumption of Com-pensability, 2 Alaska L.Rev. 1, 12 (1985) (presaging a broader construction of the presumption of compensability). We note that there is no relevant legislative history on the point in question.

10 . In Bailey v. Litwin Corp., 713 P.2d 249, 254 (Alaska 1986) we held that an employee presumptively remains temporarily totally disabled unless and until the employer introduces substantial evidence to the contrary.

11 . See 2 A. Larson, Workmen's Compensation Law § 61:14 at. 10-901 — 10-911 (1971).

12 . See also id. .at 10-907 — 10-909.

13 . Respondent's contention that the Board erred in considering a report not properly before it (discussing Carter’s prior experience with hot tubs) is without merit. In general, ex parte communications do not void an agency decision but instead render the decision voidable. Absent any indication that "the agency's decision making process was irrevocably tainted,” Southwest Sunsites, Inc. v. FTC, 785 F.2d 1431, 1436 (9th Cir.1986) (quoting PATCO v. FLRA, 685 F.2d 547 (D.C.Cir.1982)), we conclude that any error was harmless.

14 . In the circumstances of this case we do not reach the question whether the Board’s failure to apply the presumption of AS 23.30.120(a) is harmless error, but remand so that the Board may redetermine the merit of Carter’s claims in accordance with the applicability of the presumption and the recoverability of the costs of palliative care and treatment, as indicated in this opinion. Cf. Burgess Const. Co. v. Smallwood, (Smallwood II), 623 P.2d 312, 317 (Alaska 1981) (not applying substantial evidence test where Board had not applied “the proper legal test”).