JAMES G. LUHRS, JR.,		)
				)
Employee,			)	DECISION AND ORDER
 Applicant,			)
				)	AWCB Case Nos.	8311472
v.				)		8328309
				)
ALASKA INTERNATIONAL AIR, INC.,	)	AWCB Decision No. 90-0029
				)
Employer,			)	Filed with AWCB Anchorage
				)	February 26, 1990
and				)
				)
ALASKA NATIONAL INSURANCE CO.,	)
				)
Insurer,			)
 Defendants.			)
				)

This claim was heard at Anchorage, Alaska on February 9, 1990. Employee was present and represented by attorney Michael Jensen. Defendants were represented by attorney Susan Daniels. The hearing was continued for Employee to provide the cite to a superior court decision about assessing a penalty on medical benefits and an affidavit of attorney's fees and costs. These items were received February 14, 1990. Defendants response was received February 21, 1990, and the record closed on February 22, 1990, when we next met after receiving Defendants' response.

1. Is Employee's claim for medical care barred by AS 23.30.105?

2. Is Employee entitled to chiropractic care under AS 23.30.095(d)?

3. Is Employee entitled to actual attorney's fees and costs?

It is undisputed that Employee suffered a low back injury in the course and scope of his employment as a loadmaster on June 8, 1983. He was unloading a washing machine that was stacked upon a dryer. It was too heavy for him, he lost his balance, and twisted his back when he f ell. He sought care from Adrian Barber, D.C., who continues to treat him at this time. Dr. Barber diagnosed his condition as a lumbosacral sprain with vertebral subluxation. (Barber Physician's Report June 31, 1983). Employee had never been treated for back problems before this injury. (Luhrs Dec. 11, 1984, Dep. at 45 - 46).

In September 1983 Dr. Barber released Employee to return to work on a trial basis performing light-duty work. Employee continued to experience symptoms, and in December 1983 he aggravated his back condition. (Barber January 6, 1984, letter).

On February 6, 1984, Richard McEvoy, M.D., examined Employee at Defendants' request. Dr. McEvoy noted that Employee's complaints of persistent leg pain could be associated with a nerve root impingement, but he believed Employee had a lumbosacral sprain, with or without a degenerated or herniated intervertebral disc. Dr. McEvoy suggested a CT scan. He rated Employee's permanent impairment at two percent.

In October 1985 Employee was examined by Morris Horning, M.D., at Defendants' request. His impression was that Employee suffered low back pain of unknown etiology. Dr. Horning believed Employee might have a nerve root injury, though it might also he resolved at that time. Dr. Horning suggested further testing, physical therapy, and that Employee might attend a pain clinic. (Horning October 10, 1985 report).

Apparently a CT scan was performed, but our records do not reflect the outcome. Also, it appears none of Dr. Horning's suggestions were implemented. Employee testified at the hearing that he tried some pain medication prescribed by Dr. Horning, but he could not work while he was under the influence of the medication so he quit taking it.

Instead, Employee continued to be treated by Dr. Barber. In the past six and one-half years, Dr. Barber has treated Employee a total of 218 times. In the past two years Employee has averaged 22 treatments per year.

On December 13, 1989, Employee was examined by J. Michael James, M.D., at Defendants’ request. The length of examination was disputed; Dr. James testified it lasted one hour while Employee testified it lasted 10 to 20 minutes. In his report, Dr. James noted that Employee's CT scan in November 1984 was interpreted by Dr. McEvoy as showing bulges at L3-4, L4-5, and a more significant bulge at L5-S1. Dr. James noted mechanical low back pain with impairment of range of motion, but no evidence of radiculopathy of either lower extremity. (James December 13, 1989 report).

Dr. James testified at the hearing. He testified he compared Employee's 1982 x-rays with his present x-rays, and found no changes except for signs of the aging process. Dr. James testified that chiropractic care is palliative; it provides temporary abatement of Employee's symptoms but does not substantively make a difference in his condition. Dr. James testified that chiropractic care will not prevent deterioration of Employee's condition, though he admitted it would relieve facet pain. Dr. James testified Employee needs a program of exercise to improve the mobility of his joints and stabilize this condition through muscle strengthening. The exercises will help prevent recurrences or exacerbations of his back problems.

Dr. James testified that chronic reliance on health care providers leads to depression and dependence on medication. He testified that if he were Employee's physician, he would place him in a graduated exercise program while decreasing chiropractic care. If exercises did not decrease Employee's pain complaints, he might recommend biofeedback or analgesics.

On cross-examination Dr. James acknowledged that Employee shows no signs of depression, he takes only Excedrin and no prescription medication for his pain, and he is doing well vocationally. Dr. James, while testifying that Employee's spinal x-rays "looked good," also emphasized that a lumbosacral sprain can be quite painful and long lasting; it can be a serious condition producing chronic pain.

Dr. Barber also testified at the hearing. He agreed with Dr. James that exercise is a very important component for maintaining the body. He testified that he placed Employee on a home exercise program which he told Employee to do every day. He testified he has given Employee instructions on how to sit, stand, and walk to minimize his discomfort. Dr. Barber agrees with Dr. James that a patient needs to take responsibility for his or her own health care.

Dr. Barber testified that chiropractic manipulations mobilizes the joints and reduces degeneration. Dr. Barber testified that Employee is not in a structured treatment program, instead, Employee seeks treatment as needed. Dr. Barber does not expect Employee's condition to improve, he expects Employee's condition will degenerate as the aging process occurs, and he expects Employee to continue with chiropractic treatment for the rest of his life. Dr. Barber testified that Employee had a disc injury, and that tends to accelerate the degenerative process. He said chiropractic manipulations mobilize the joints and delays degeneration, but manipulations will not strengthen muscles and ligaments.

Employee testified that he has fairly constant back pain. He testified that he usually seeks chiropractic care because it alleviates headaches brought on by the back pain. He testified that he believes if he did not get chiropractic treatment, he would not be able to work.

After his injury when he could no longer physically work as a loadmaster he tried other jobs, such as truck driving, but could not do that work. After sitting or standing for extended periods, pain begins to radiate down his leg. Employee is now working for CTI, Inc., doing vehicle maintenance. He sometimes works 12 to 13 hours a day. Presently he works about 60 hours a week.¹ His employer has allowed him to modify the job and add items to the worksite to increase his comfort, such as a floor mat so he delays the onset of back pain that arises from extended periods of standing on concrete floors.

Employee testified in his deposition that her did do exercises in the past for about a year, but does not currently do exercises on a regular basis. He testified that no one taught him the exercises to do. (Luhrs December 7, 1989, Dep. at 28).

At the hearing Employee testified that at the time of his deposition he had forgotten that Dr. Barber had told him to do exercises. He testified that he had been given a book of exercises by Dr. Barber. He also testified that after he had been examined by Dr. James on December 13, 1989, he picked up an exercise tape from Dr. James' office and did the exercises suggested on the tape for awhile. He testified he would be willing to do an exercise program, but that the amount of time spent at work and his work travel schedule make exercising difficult.

Defendants paid Employee time loss benefits while he was disabled. Eventually, his time loss benefits were settled by an agreed settlement which we approved on March 11, 1987. Under the agreed settlement, medical care as provided by the Alaska Workers' Compensation Act remained available to Employee. On May 24, 1989, Defendants filed a notice controverting "medical treatment" because "the statute of limitations has run." (May 24, 1989 Controversion Notice).

Employee argues he is entitled to payment of charges he has incurred for treatments by Dr. Barber since May 24, 1989, as well as an order that Defendants provide continuing medical care. Employee contends Defendants improperly controverted medical care and therefore he is entitled to a penalty. He also seeks his actual attorney's fees of $2,035.00 and legal costs of $452.50.

I. IS EMPLOYEE'S CLAIM BARRED BY THE STATUTE OF LIMITATIONS?

At the time of Employee's injury, AS 23.30.105(a) provided in part:

At the time of Employee's injury AS 23.30.095(a), relating to medical benefits, stated in part:

We have long held that AS 23.30.105(a) and AS 23.30.095 provide two different statutes of limitations -- one for time loss benefits and one for medical benefits. Thus, even though a claim for time loss benefits may be barred, we can still authorize continued medical care. Durgeloh v. Wien Consolidated Airlines, Inc., AWCB Decision No. 81-0178 (June 29, 1981); Stepovich v. H & S Earthmovers, AWCB Decision No. 85-0229 (August 1, 1985); James v. City of Fairbanks, AWCB No. 85-0357 (December 13, 1985).

We believe this interpretation is justified by the wording of AS 23.30.105 which uses the phrase "right to compensation for disability. . . ." versus the language of section 95 which permits us to authorize medical care beyond two years after the date of injury. We believe this distinction is further justified by the separate definitions at AS 23.30.265(8) and (20) of the terms "compensation" and "medical and related benefits."

Of course, we have held that if an employee fails to pursue a claim for medical benefits, the doctrine of laches may bar the claim. McFadden v. National Mechanical, AWCB Decision No. 85 0266 (September 18, 1985); Vickers v. Ron the Wood Butcher, AWCB Decision No. 85-0239 (August 16, 1985); Reel v. New England Fish Company, AWCB Decision No. 84-005 (January 11, 1984). A claim for medical benefits could also be barred by AS 23-30-110(c).

Because subsection 95(a) provides a separate statute of limitations, and because we can extend benefits beyond two years from the date of injury, we conclude Employee's claim is not barred by the statute of limitations.

II. IS EMPLOYEE ENTITLED TO CHIROPRACTIC CARE?

A. SHOULD WE AUTHORIZE FUTURE CARE AT DEFENDANTS' EXPENSE?

As quoted above, subsection 95(a) permits us to "authorize continued treatment or care or both as the process of recovery may require." The phrase "process of recovery" has been interpreted to mean that [i]f the treatment is necessary to prevent the deterioration of the patient's condition and allow his continuing employment, it is compensable with the meaning of the statute." Wild v. Cook Inlet Pipeline, No. 3AN-80-8083 (Alaska Super. Ct., January 17, 1983); See accord Dorman v. State, No. 3AN-83-551 at 9 (Alaska Super. Ct. February 22, 1984).

We have also concluded that treatment must be reasonable and necessary to be payable under subsection 95(a). See Weinberger v. Matanuska - Susitna School District, AWCB No. 81-0201 (July 15, 1981), aff'd 3AN 81-5623 (Alaska Super. Ct. June 30, 1982), aff'd Ireland Chiropractic Clinic v. Matanuska - Susitna School District, memorandum opinion and judgement, Op. No 7033 (Alaska June 1, 1983). If the course of medical treatment exceeds the first two years after injury, we have held that the employee has the burden of proving the need for the treatment by a preponderance of the evidence. See Tamagni v. Alaska National Bank of the North, AWCB Decision No. 86-0009 at 5 (January 14, 1986); Keyes v. Reeve Aleutian Airways, AWCB Decision No. 85-0312 at 12-13 and n.5 (November 8, 1985).

Defendants argue that based on Dr. James' testimony and the Board's interpretation in Carter v. Municipality of Anchorage, AWCB Decision No. 88-0067 (March 31, 1988), chiropractic is no longer reasonable and necessary for the process of recovery. In Carter we had stated that the "process of recovery. . . signifies a long term improvement." 88-9967 at 11. Although Superior Court Judge Hornaday reversed our decision because we did not apply the presumption in AS 23.30.130(a) and did not specifically address the "process of recovery," he did state that "without ruling, the court does note that no one would seriously recommend cutting off insulin to a diabetic just because it will not cure him." Carter v. municipality of Anchorage, 3AN 88-4680 (Alaska Super Ct. April 25, 1989).

Defendants do not dispute that Employee's back condition is related to his injury. Therefore, we do not need to consider the presumption in AS 23.30.120. Instead, we consider whether additional treatment would be for the "process of recovery." If we relied upon Dr. Barber's testimony, we would find that Employee cannot recover or improve his condition. Dr. Barber made it clear that he expects Employee's condition will worsen with time, and he is only hoping to delay the process.

On the other hand, if we relied on Dr. James' testimony we would find that Employee condition can improve and he can avoid recurrences or aggravations of his back injury by a program of regular exercise. Our experience causes us to choose to rely upon Dr. James' testimony and to give more weight to his testimony because we have seen other cases in which lumbosacral sprains are improved and recurrences lessened by muscle strengthening exercises. Clearly, nothing can be done to change the physical structure of the spine which may be the cause of Employee's symptoms. However, we find that improving the strength of the back muscles is something that is objective, measurable, and can lead to long-term improvement. Therefore, it would be for the process of recovery.

In the past when we have focused only on the "process of recovery" the reviewing courts have disagreed with our analysis; the reviewing courts appear to disregard the "process of recovery," and instead focus on what is reasonable and necessary treatment for the particular injury² Therefore, we will review the facts of this case to determine what is reasonable and necessary in this particular case.

We find that Dr. James believes that people need to take responsibility for their own health care, and avoid dependence on health care providers. According to Dr. James reliance on health care providers leads to depression, medication dependence, and a dysfunctional lifestyle. However, none of the ills of chronic health care reliance have occurred in this case. Employee has avoided dependence on medication, he is not depressed, and he is doing well vocationally.

Dr. James also testified that if he were treating Employee he would place him on a graduated exercise program with decreasing chiropractic care. Therefore, we find continued chiropractic care is reasonable and necessary at least for a period of time.

Dr. Barber also testified about the importance of regular exercise. Employee has not been involved in a regular exercise program. Of course, Employee's present work schedule of 10 to 12 hours a day, six and seven days a week coupled with work travel leaves little time for exercise. We find it would not be reasonable to expect him to do one-half hour or one hour of exercises each day when an average of two chiropractic treatments per month has kept him working in excess of 40 hours per week.

However, an exercise program is necessary and, if Employee is working 45 hours or less a week, it is reasonable. Therefore, we find Employee should begin a regular exercise program as soon as his work permits. Because we lack evidence about Employee's ability to begin an exercise program in the near future, we authorize continued chiropractic treatments of no more than one treatment every fourteen days for a period not to exceed 16 weeks. In accordance with the exception discussed below, Defendants shall pay for these treatments.

We note that we are troubled about having Dr. Barber direct Employee's exercise program because of the previous communication failure between Employee and Dr. Barber. Furthermore, merely providing a booklet with instructions on exercises does not appear to be an effective means to instruct Employee. We believe it would be reasonable to have a licensed physical therapist initially instruct and supervise Employee's exercises. We hope that Dr. Barber will make a referral or suggest to Employee a licensed physical therapist with whom he should work. If this is not satisfactory to Employee and he wants to have a hearing on this particular issue rather than follow this suggestion, he must file a claim within 30 days after the date of this decision. Because this claim was not presented as a request under subsection 95(a) to seek a change in physicians, we believe we cannot order this change in this decision. Simon v. Alaska Wood Products, 633 P.2d 252 (Alaska 1981). Therefore, we merely make this suggestion.

Of course, there is still the problem of working the exercise program into Employee's busy work schedule. If upon receipt of this decision Employee's work schedule and the physical therapist's schedule permits him to begin a supervised exercise program, he should do so. If that is not possible, upon receipt of this decision Employee is to keep a log in which he daily enters the hours that he is at work and his work schedule. Until Employee is able to begin working with a physical therapist to establish an exercise program, Employee is to serve upon Defendants an affidavit of the hours worked each day of the week beginning on a Monday and ending on Sunday. The affidavit must be served by Wednesday of every other week and cover the preceding two weeks from Monday through Sunday. Even if Employee elects not to follow our suggestion to consult a licensed physical therapist, he must file the affidavit of hours worked to be eligible for the chiropractic care we have authorized.

If after reviewing the affidavit Defendants believe Employee's work schedule would permit him to arrange an appointment with a physical therapist but he has failed to do so, or if they believe his work schedule does not justify the chiropractic care provided, they can petition for our review. If Employee fails to timely serve an affidavit, Defendants are not liable for chiropractic charges incurred in the two-week period for which the affidavit was due but was not timely served.

If Employee believes continued chiropractic care beyond that awarded in this decision is necessary, he must file a claim and submit copies of the affidavits with the claim.

B. IS EMPLOYEE ENTITLED TO AN AWARD FOR PAST CHIROPRACTIC CARE?

We do not know what caused Employee's failure to exercise. Furthermore, this was not at issue when his claim was controverted. At that time Defendants were merely exercising their rights under subsection 95(a) to have Employee seek authorization for his care. We have found that care is needed beyond the two years from the date of injury, and that chiropractic care twice a month is reasonable and necessary when Employee is working over 60 hours per week. Although we do not know what Employee's work schedule was during the period of controversion, we find it would be unreasonable to assess the cost of chiropractic care against Employee when the reason for the controversion had been the statute of limitations and not that Employee was failing to follow his doctor's recommendations. Accordingly, we award Employee the cost of chiropractic care during the period of controversion.

III. IS EMPLOYEE ENTITLED TO A PENALTY FOR THE CHIROPRACTIC CARE WE HAVE AWARDED?

Without ruling on whether the additional compensation (penalty) that can be awarded under AS 23.30.155(e) applies to medical care, we find that even if it applied a penalty is not due in this case. As discussed above subsection 95(a) does contain a statute of limitations. After two years from the date of injury, "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."

It is clearly more than two years from the date of injury. Therefore, we find that Defendants lawfully controverted continued care, and Employee appropriately sought our review and approval. Until we authorize the care, payment is not due and no penalty can be assessed under subsection 155(e).

We find this analysis is consistent with Moretz v. O'Neill Investigation, 3AN 87-11118 (August 24, 1988), which Employee cited in support of his request. In Moretz medical care had been awarded though the adjudication process and a penalty was appropriately awarded by the court under AS 23.30.155(f), not under AS 23.30.155(e). Therefore, we conclude we must deny Employee's claim for a penalty.

IV. IS EMPLOYEE ENTITLED TO ACTUAL ATTORNEY'S FEES AND LEGAL COSTS?

We next consider Employee's request for costs and attorney's fee.

AS 23.30.145 provides in pertinent part:

Defendants contend that given the modest result sought by Employee, the minimal efforts expended by his attorney, and the simplicity of the issues, actual fees would far exceed the benefits sought by Employee. Therefore, they contend that we should award statutory minimum fees. Alternately, they contend that if Employee prevails only in part, the actual fees should be prorated.

We find that Defendants resisted the payment of medical expenses which we have awarded. We conclude a reasonable fee and an award of costs is due under AS 23.30.145(b). Because we are proceeding under subsection 145(b), the statutory minimum provided in subsection 145(a) is inapplicable. Under subsection 145(b), we must award a reasonable fee.

We have awarded Employee's request for payment of chiropractic care received to date and for a short period in the future. We have denied his request for a penalty.

Defendants do not contend any of the legal services provided are unreasonable. They merely contend the fee would exceed the benefit requested. However, the standard by which we must judge the request is reasonableness and there is nothing per se unreasonable about a fee that exceeds the benefit. In addition, it appears the attorney's fee is about equal to the unpaid incurred medical expenses.

We have independently reviewed the itemized billing statement and find the services provided were reasonable. We also find the hourly billing rate to be reasonable. Accordingly, we conclude a fee of $2,035.00 is reasonable.

Defendants did not object to the legal costs of $452.50 requested by Employee. Subsection 145(b) requires Employee to be reimbursed for his legal costs. Accordingly, we also award legal costs of $452.50.

1. Defendants shall provide continuing chiropractic care in accordance with this decision.

2. Defendants shall pay Dr. Barber's charges which Employee has incurred since his claim was controverted.

3. Employee's claim for a penalty is denied and dismissed.

4. Defendants shall pay Employee's attorney a reasonable fee of $2,035.00 and his legal costs of $452.50.

DATED at Anchorage, Alaska this 26th day of February, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rebecca Ostrom
Rebecca Ostrom, Designated Chairman

/s/ RL Whitbeck Sr.
Richard L. Whitbeck, Member

RJO:rjo

If compensation is payable under the terms of this decision, it is due on the date of issue and penalty of 20 percent will accrue if not paid within 14 days of the due date unless an interlocutory injunction staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court brought by a part in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

A compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of James G. Luhrs, Jr., employee/applicant; v. Alaska International Air, Inc., employer; and Alaska National Insurance Company, insurer/defendants; Case Nos. 8311472/8328309; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 26th day of February, 1990.

Clerk