ROBERT CHRISTINE,		)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No. 8722537
				)	AWCB Decision No. 90-0100
v.				)
				)	Filed with AWCB Fairbanks
KEYSTONE SERVICES, INC.,	)	May 10, 1990
				)
Employer,			)
				)
and				)
				)
ALASKA INSURANCE GUARANTY	)
ASSOCIATION,			)
				)
Insurer,			)
Defendants.			)
				)

This claim for medical expenses, transportation costs and attorney fees was heard at Fairbanks, Alaska an April 10, 1990. The employee was represented by attorney Chancy Croft; attorney Clay Young represented the defendants. The record closed at the end of the hearing.

It is undisputed the employee was injured on October 19, 1987 while working in the course and scope of his employment. He has been treated by physician's assistant Glenn Brown of Peters Creek who, purportedly, is supervised by Samuel Shurig, D.O. The threshold issue we must decide is whether the medical costs billed by Mr. Brown, which total over $5,400, should be paid by the defendants.

Dr. Shurig has never examined the employee for his work-related problems. Meanwhile, between December 1988 and the hearing date, Mr. Brown prescribed codine derivative drugs 129 times. This rate of prescription averaged approximately one prescription every three days.

The defendants argue they should not be required to pay the prescription costs because the prescriptions were issued without proper supervision in violation of AS 8.64.170 and 12 AAC 40.400. Moreover, the employee has been consistently provided addictive drugs as his only method of treatment. Finally, Mr. Brown's medical bills have not been submitted with medical reports in a timely manner as required by AS 23.30.095(c).

Upon referral from Mr. Brown in late 1987, orthopedist Michael Eaton, M.D., identified a bulging disc at L5-Sl and suggested surgery. The employee has refused to consider surgery. He has continued to work with the help of pain medication.

AS 23.30.095(a) requires employers to pay for the treatment necessitated by the nature of the injury or the process of recovery up to two years after the injury date. After the two years we may authorize treatment necessary for the process of recovery. "If the treatment is necessary to prevent the deterioration of the patient's condition and allow his continuing employment, it is compensable within the meaning of the statute." Wild v. Cook Inlet Pipeline, No. 3AN-80-8083 (Alaska Super. Ct. Jan. 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. 810201 (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 judgment, Op. No. 7033 (Alaska June 1, 1983). 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 No. 860009 at 5 (January 14, 1986); Keyes v. Reeve Aleutian Airways, AWCB No. 850312 at 12-13 and n.5 (November 8, 1985).

At the time of the employee's injury, AS 23.30.095(c) provided as follows:

The last report of medical treatment received from Mr. Brown on a form prescribed by the Board was dated March 1, 1988. Prior to the hearing, the last medical report in our file was dated February 3, 1989. Nevertheless, all medical reports from Mr. Brown dated between March 1, 1988 and February 3, 1989 were first received in our Juneau office on March 6, 1990. Apparently, the employer and its insurer similarly had sporadic receipt of medical reports from Mr. Brown and the employee.

Mr. Brown stated he failed to regularly report the medical treatments because the defendants controverted the employee's claim following a February 23, 1988 automobile accident involving the employee, Recently, the parties agreed the auto accident was work-related and compensable.

In any event, the employee and his physician did not timely file medical reports as required by AS 23.30.095(e). The defendants argue they have been prejudiced by this delay since they did not know the volume of narcotic drugs the employee was taking and were unable to help avoid his alleged addiction to these medications.

We agree the defendants have been prejudiced by the delay in reporting. We also believe that the interest of justice requires excusing the delay in filing notice of the medical treatment. The employee has continued working, apparently with the help of the prescribed pain medications, Additionally, the defendants regularly were provided copies of medical reports until they controverted the employee's claim for reasons they later withdrew.

We find the volume of medications prescribed appears excessive. Mr. Brown agrees the employee may be addicted to the narcotics he prescribed. Mr. Brown also operates the pharmacy. Nevertheless, we have excused the physician's delay in reporting. The only evidence in the record indicating a reasonable award for medical services provided, is in the prescriptions billing themselves. Accordingly, we find these amounts are reasonable and shall be paid.

We are disturbed by the apparent lack of supervision Mr. Brown is receiving. We find that without additional supervision by a licensed physician, the defendants shall not be required to pay any future pharmacy bills.

The employee seeks reimbursement of his airfare to come to Fairbanks from Anchorage for the hearing. Venue for a hearing has been in Fairbanks. 8 AAC 45.072. In his affidavit of readiness for a hearing Mr. Croft requested a hearing in Anchorage. The file was sent to Fairbanks and a notice of hearing was sent to the parties stating a hearing would be held in Fairbanks. The notice was sent to the parties nineteen days before the hearing. Five days before the hearing Mr. Young filed a petition to change the venue to Anchorage. We indicated we likely would grant the request if Mr. Croft so stipulated. This stipulation was never received and the hearing went forward as scheduled.

In any case, since the venue was properly in Fairbanks, we find the defendants are not required to pay the employee's travel costs from Anchorage to Fairbanks. If the employee desired to change venue to Anchorage to avoid this transportation cost, he should have petitioned the Board for a change of venue or so stipulated with the defendants. 8 AAC 45.072 requires the Board to determine whether a change of venue would be convenient for the parties. No timely request was received.* Accordingly, we deny this request for transportation costs.

The employee seeks an award of attorney fees based at the statutory minimum rate on the medical benefits awarded. We have consistently held that medical benefits are not compensation for purposes of calculating attorney fees under AS 23.30.145(a). Rather, reasonable attorney fees are payable under section 145(b). Accordingly, the employee shall supply an accounting of the actual work performed as required by 8 AAC 45.180(d). The defendants shall pay a reasonable attorney fee. We retain jurisdiction to resolve disputes.

1. The defendants shall pay one-half the employee's outstanding pharmacy bills. The defendants are not required to pay future bills unless Mr. Brown is placed under appropriate supervision by a licensed physician.

2. The employee's request for reimbursement of his transportation cost is denied and dismissed.

3. The defendants shall pay the employee reasonable attorney fees pursuant to AS 23.30.145(b) and 8 AAC 45.180.

DATED at Fairbanks, Alaska, this 10th day of May, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Fred G. Brown
Fred G. Brown, Designated Chairman

/s/ Joe J. Thomas
Joe J. Thomas, Member

/s/ Steve M. Thompson
Steve M. Thompson, Member

FGB/ml

If compensation is payable under 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 interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in the Superior Court brought by a party 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 Robert Christine, employee/applicant; v. Keystone Services, Inc. , employer; and Alaska Insurance Guaranty Assoc., insurer/defendants; Case No. 8722537; dated and filed in the office of the Alaska Workers' Compensation Board at Fairbanks, Alaska this 10th day of May, 1990.

Clerk