SHERRY L. MCGINNIS,		)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No. 8800511
				)	AWCB Decision No. 90-0118
v.				)
				)	Filed with AWCB Anchorage
ANCHORAGE SCHOOL DISTRICT,	)	June 5, 1990
(self-insured),			)
				)
Employer,			)
Defendant.			)
				)

We heard this claim for reimbursement of medical costs and interest on April 6, 1990 at Anchorage. Employee was present and represented by attorney Chancy Croft. Employer was represented by attorney Allan Tesche. Because the parties were unable to agree on the types and amounts of medical costs in dispute, we ordered written closing arguments. We also granted reply briefs, which were due on April 23, 1990. We closed the record on May 2, 1990 when we next met.

1. What, if any, of the various items and amounts submitted by Employee are reasonable and necessary medical costs under AS 23.30.095?

2. Should we award interest?

This dispute centers on various costs incurred by Employee, a school teacher, as a result of a slip and fall on refuse in the hallway of her school on January 7, 1988. For most periods of time since then, Defendant has paid Employee temporary total disability (TTD) benefits at the weekly rate of $445.06.

Although Employer initially controverted payment of approximately $115,000.00 in medical and transportation costs, it has now paid more than $97,000.00 of this amount. Employee has requested reimbursement for additional amounts totaling $12,622.98. Employer claims it has paid some of the items included in this remaining amount, and it asserts that under AS 23.30.095 and our regulations, it is not liable for most of the remaining items.

Prior to her slip and fall, Employee had scoliosis. Several months after she fell, her treating physician, Edward Voke, M.D. determined that she needed to be examined by a specialist in scoliotic surgery.

Consequently, Employee and her husband took a "consultation" trip from May 18, 1988 through June 1, 1988. This journey included stops in Chicago to see David Spencer, M.D., Kansas City to see her in-laws, and then to Phoenix for examination by Jack Mayfield, M.D. Dr. Mayfield eventually performed surgery on Employee in Phoenix. The first stage surgery was performed on November 7, 1988 and the second stage surgery was done on November 17, 1988. Employee was discharged from the hospital on November 28, 1988. She continued to stay in Phoenix for recovery and post-operative follow-up by Dr. Mayfield.

On January 23, 1989 Dr. Mayfield wrote, in pertinent part, the following chart note regarding Employee's condition and her ability to return to Alaska:

(Mayfield January 23, 1989 chart note).

Employee continued to stay in Phoenix until May 21, 1989 when she returned to Anchorage. As noted, Employer has now paid most of the initially disputed items.

Those costs still in dispute comprise a wide variety of items, including costs for her husband to accompany her on the consultation trip, living expenses in Phoenix after Dr. Mayfield released her to return home to Anchorage, certain travel expenses for her return to Anchorage in May 1989, and numerous miscellaneous costs incurred during her post-surgery recovery.

To support her claim, Employee has submitted several hundred pages of exhibits, including a multitude of computer printouts, and receipts for a far-reaching array of items. In addition, she also provided a written summary and oral testimony explaining why she believes these items are payable under AS 23.30.095.

Claims examiner Katie Matson, David Sperbeck, Ph D., and Kay Musselman, subrogation investigator for Blue Cross all testified for Employer.¹

I. Medical Costs

AS 23.30.095(a) requires employers to pay for the treatment necessitated by the nature of 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. 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 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. 86-0009 at 5 (January 14, 1986); Keyes v. Reeve Aleutian Airways, AWCB No. 85-0312 at 12-13 and n.5 (November 8, 1985).

In addition, our regulation 8 AAC 45.082 states in pertinent part:

Employee first argues that the statutory presumption contained in AS 23.30.120(a) applies to her claim for payment of medical Costs. For legal support, she cites to Carter v. Municipality of Anchorage, 3AN 88-4680 Civil (April 25, 1989). In that case, superior court Judge Hornaday ruled that the board improperly failed to apply the presumption to a claim for continuing chiropractic care and payment of a hot tub.

We note that Carter has been appealed to the Alaska Supreme Court and is yet to be decided there. In addition, we find no Alaska Supreme Court case holding that the presumption applies to every type of claim or petition made by employees or employers.

We do not find the superior court decision to be precedent-setting for our decision-making purposes. Moreover, we further note that superior court Judge Fabe has indicated that the statutory presumption may apply only to disputes over the work-connection of an injury. Kirby v. Alaska Treatment Center, 3AN-89-1008 Civil pp. 4-6 (April 12, 1990). We agree with Judge Fabe.

We find it would improperly change the standard of proof indicated in AS 23.30.095 were we to apply the presumption. When medical costs are the sole issue in a case before us, there is normally no dispute that an employee sustained a work-related injury. The issue in these cases normally is 1) whether the treatment or costs incurred are reasonable, necessary and required by the nature of the injury or the process of recovery, and 2) whether the costs expended are within the limits indicated in AS 23.30.095 and our regulations.

If we applied the presumption to medical costs, the employer would be required to presume that every cost or treatment incurred and submitted by the injured employee was reasonable aided necessary for the nature of the injury or the process of recovery. The employer would then have the burden of rebutting this presumption by producing substantial evidence that these costs were unreasonable. We find such a burden unreasonable and not indicated by either AS 23.30.095 or AS 23.30.120. Accordingly, we disagree with Employee's legal assertion, and we reiterate that Employee has the burden of proving by a preponderance of the evidence of record that the costs and treatment she has presented come within the limits of AS 23.30.095 and our regulations.

We now determine whether Employee has proven that any of the disputed expenses are reasonable, necessary and are required by the nature of the injury or the process of recovery. We address these costs by referring to the five general categories listed by Employee on the printouts she filed. These categories include "consultation trip"; "living expenses"; "other Phoenix trips"; "return to Alaska"; and "medical expenses".

A. Consultation Trip

These requested expenses were incurred during Employee's travel to Chicago, Kansas City and Phoenix. Katie Matson testified that Employer paid Employee's per diem for the entire 18-day trip, including Employee's three-day visit with her in-laws in Kansas city. In addition, Employer paid Employee's airfare, baggage handling, and transportation to and from the airport. As noted in Employee's April 18, 1990 brief, this "dispute centers around payment of airfare for her husband, food and lodging for him and payment of telephone and housesitter expenses." The housesitting includes care for the McGinnis's wolfdog. The telephone charges were for calls made by Mr. McGinnis to his Anchorage employer's office during this 18-day journey. Employee testified she made the appointments with Dr. Spencer and Dr. Mayfield as close together in time as possible.

Employee contends her husband was necessary for this consultation trip to help with lifting and to basically get around during the trip. For further support, Employee provided a January 17, 1990 letter from Nell Loftin, M.D., Employee's internist since July 29, 1988. Employer objected to this letter because 1) it was not served pursuant to our regulations; and 2) because it is a hearsay document which is in any event a self-serving post-surgery recommendation.

We find Employee's testimony and this hearsay document insufficient to support Employee's request for reimbursement of her husband's costs. Neither Dr. Voke nor Dr. Mayfield, her orthopedic doctors, stated her husband's attendance was necessary for her consultation trip. We would have given more weight to their opinions than that of Dr. Loftin. Further, Employer paid for all luggage handling and transportation, including wheelchairs in airports. It appears Employee would not need to lift anything anyway. Moreover, we agree with Employer that the hearsay letter is somewhat self-serving. Although Employee's husband may have provided moral support during the trip, such a reason by itself does not justify payment by Employer at his transportation and per diem costs. For these reasons, we conclude Employee's husband's attendance were not required by the nature of the injury.

In addition, even if we had approved Mr. McGinnis's travel costs, we would still not approve Employee's request for payment of her husband's telephone calls back to his Anchorage office or for house and dog sitting. Employer should not be held responsible for such extraneous costs. Depending upon the spouse's particular job and the number of domestic pets (e.g., a horse or llama ranch), these costs could become significant. At any rate, we conclude they are unreasonable and are not required by the nature of the injury. Accordingly, Employee's request for reimbursement of unpaid consultation trip costs (as listed in the Exhibit B computer printout) is denied and dismissed.

B. Living Expenses

This category includes expenses during the period following Employee's surgery in Phoenix. As noted, Employee was discharged from the hospital in Phoenix on November 28, 1988. She stayed in Phoenix until May 17, 1989 although her physician released her to return to Alaska on January 23, 1989.

A January 5, 1989 letter from attorney Karen Russell to attorney Chancy Croft details the payments made by Employer for this period. It indicates Employer paid round-trip airfare between Anchorage and Phoenix for Employee and her husband in November 1988 ($1,395.00); per diem for Mr. McGinnis for 24 days while Employee was hospitalized ($1,920.00); food expenses for Mr. McGinnis for the 14 days after Employee was discharged ($420.00); rental car expense ($210.00); house sitter costs during Mr. McGinnis's stay in Phoenix ($200.00); per diem for Employee from November 29, 1988 through January 23, 1989 ($2,986.00); phone calls in December 1988 and January 1989 ($227.77); mileage November 1988 to May 1989 ($303.45); and round-trip airfare and two days per diem for Employee for May 1989 followup in Phoenix ($827.50) These payments total $8,318.89.

Employee seeks additional payments, including either per diem or actual costs, for the period she stayed in Phoenix after she was given the go-ahead by Dr. Mayfield to return home to Alaska. This period extended from January 24, 1989 to May 17, 1989. In addition, her computer printout indicates she requests reimbursement for an additional $1,200.00 for telephone calls, $20.84 for "medically related photocopy, $764.51 for "mailing costs", and an additional $167.80 for mileage. Moreover, she requests our consideration for payment of furniture and other items purchased to furnish her living quarters in Phoenix.

First, we agree with Employer that there is no medical authorization for Employee's extended stay in Phoenix beyond January 23, 1989. On the contrary, her treating physician saw no reason why she could not return to Alaska at that time. The available evidence indicates Employee and her husband simply decided Employee ought to stay in Phoenix despite the appearance that she was depressed and lonely.

Employee testified it was easier for her to walk in Phoenix than it would have been in Anchorage, between January 24, 1989 and May 17, 1989. During cross-examination, she admitted she could have walked in shopping malls in Anchorage, and she in fact does most of her current walking in the University Center shopping mall in Anchorage.

Admittedly, it may have been a shade more difficult getting from her car to the inside of the mall in Anchorage than to do so in Phoenix during this period. Nonetheless, her treating physician, touted as one of the "finest doctors in America" in the area of scoliotic surgery, did not deem it necessary for Employee to stay in Phoenix for walking or any other purpose during this period.(Mayfield Dep. at 9-10). Therefore, we conclude that Employee has failed to prove by a preponderance of the evidence in the record that her extended stay in Phoenix was reasonable or required by the process of her recovery from surgery. In addition, we find she has failed to prove the other above-mentioned costs (phone calls, mailing, etc.) should be paid under AS 23.30.095. These requests are denied and dismissed.

C. Other Phoenix Trips

This category includes primarily travel expenses for three trips between Anchorage and Phoenix for Mr. McGinnis. The first trip was in December 1988, the second in February 1989 and the third in March and April 1989. Since we have concluded the costs of Employee's extended stay in Phoenix were not necessary or required for the for the process of her recovery, we likewise conclude Mr. McGinnis's second and third trips would have been unnecessary.

Furthermore, we find no medical or legal justification for requiring Employer to pay for any of these trips. While it may be nice for Employee to get visits from her spouse, these periodic trips should not be the responsibility of Employer. We find these are personal in nature and immaterial to the obligatory costs required of Employer under AS 23.30.095. For these reasons, we find Employee has failed to prove that any of these costs are reasonable, necessary or required by the process of recovery. Therefore, her request for reimbursement of these costs is denied and dismissed.

D. Return to Alaska

The fourth category concerns costs for Employee's return to Alaska. This cost ($773.78) is apparently for airfare for Employee's husband to travel to Phoenix and take her home. Again, there is no medical justification or other evidence which persuades us that this cost ought to be payable under AS 23.30.095. We conclude Employee has failed to prove her claim by a preponderance of the evidence in the record. Her request for this cost is denied and dismissed.

E. Medical Expenses

The final category on Employee's computer printouts is titled "medical expenses." She asserts that the balance due on these expenses is $3,115.80.

According to the testimony of Kay Musselman, Blue Cross provides health insurance to school employees. Musselman, Blue Cross's subrogation investigator, explained that Blue Cross pays covered medical costs and then seeks recovery from parties who are ultimately responsible for the medical costs. In this case, the self-insured school district has assumed responsibility. In its April 18, 1990 closing brief, Employer admitted it owed some of the requested costs. First, Employee requests payment of $200.00 for her November 1988 hospitalization in Phoenix. Employer noted that the total bill submitted was $40,422.76.

Regarding this medical bill, Blue Cross paid all but $200.00 of the total bill, and Employer paid the same amount to Blue Cross. Accordingly, Employer admits it owes the $200.00.

Secondly, Employer stated it inadvertently neglected to pay $15.37 for express mail charges to transport blood. (Employer April 18, 1990 brief at 5). Employer indicated it owes this amount.

Moreover, Employer claims two bills were not submitted prior to the April 6, 1990 hearing. One concerned a pre-surgery photograph ($15.10), and the second was a bill for "personal care" for Employee by one Judi Rhodes Davis between December 15, 1988 and February 7, 1989. We will not decide whether Employer owes these two bills until it has time to review them and either pay or controvert them.

A disputed bill in this category is a $210.00 bill to Dr. Spencer during Employee's consultation trip. Employer asserts that not only did it pay this bill directly to Dr. Spencer, but Blue Cross also paid this bill. In her written explanation of this bill, Employee states that this bill "was listed on the 1-5-90 (Karen Russell letter) to be paid, but it was not listed or mentioned with the March 19, 1990 check." (Hearing Exhibit A, number 2). Based on these assertions, we conclude this bill has been paid. Therefore, Employee's request for another payment is denied and dismissed.

Employee also includes in this category a $1,200.00 bill for 16 "psychotherapy" counseling sessions with Martha Houck, M.S.W., a licensed social worker at The Family Center. Houck wrote a letter (dated March 8, 1990) stating she "standardly" does not release copies of "client records as they are intended for my own use and would not provide meaningful information to another person." She went on to assert that "maintenance of confidentiality is essential to the healing process."

Dr. Sperbeck testified at hearing that he was unable to tell if these counseling sessions were beneficial to Employee because of Houck's refusal to provide her notes. Dr. Sperbeck indicated he does not know the nature of the treatment, diagnosis or impression or recommendations. Nonetheless, Dr. Sperbeck asserted these sessions were not necessary.²

We find that Houck is not a "physician" as defined by AS 23.30.265(24). Furthermore, even if we did conclude somehow she was a physician, we would conclude Employee failed to prove by a preponderance of the evidence of record that Houck's sessions were reasonable, necessary or required by the process of recovery. This conclusion would be based primarily on the testimony of Dr. Sperbeck. Employee's request for payment of this bill is denied and dismissed.

In this category, Employee also requests payment for a "daybed", drafting table, vitamins, personal leave days, exercise chairs, additional payments to Dr. Mayfield, and more for mileage reimbursement. We have reviewed her testimony and written explanations of these bills, and we have also reviewed the testimony of Employer's witnesses and Employer's arguments. We conclude Employee has failed to prove any of these amounts should be paid under AS 23.30.095 or 8 AAC 45.084. Because of the unique nature of most of these bills and the complex nature of this injury, Employee's condition and the surgery, we believe it is vital to have a physician's support for these items. We note a physical therapist recommended the drafting table. However, there is no justification for payment of the table under our statutes or regulations. A physical therapist is not a "physician" under AS 23.30.265(24). Accordingly, we deny and dismiss her request for payment of these bills.

However, we do note Employee had an orthotic prescription from Dr. Mayfield for a cane which cost $25.08. We find this item payable under AS 23.30.095. Accordingly, Employer shall pay this amount. On the other hand, there is no prescription for the long-handled shoehorn for which Employee requests a $4.00 reimbursement. This request is denied.

II. Interest

Employee requests interest on all medical bills that were unpaid as of December 6, 1989 pursuant to Moretz v. O'Neill Investigations, 783 P.2d 764 (Alaska 1989). In Moretz, the court held that medical benefits were compensation for purposes of interest.

Employer argues that Moretz is inapplicable here because Blue Cross acts as adjuster for the self-insured Employer and does not "insure" Employer "in a traditional sense and pay employee claims with its own funds; rather Blue Cross simply adjusts employee health claims for the School District utilizing School District funds. Accordingly, Blue Cross would have no claim for or entitlement to Moretz interest in connection with [Employee's] . . . claim as Blue Cross funds are not involved." (Employer April 23, 1990 brief at 8). Employer concludes that this claim for interest "defies common sense as that interest really belongs to the Anchorage School District. Obviously, it makes little sense for the . . . Board to award Blue Cross interest here where Blue Cross makes no claim for such interest and would simply remit the interest back to the Anchorage School District [Employer]." (Id.).

We agree with Employer. We find application of the court's analysis in Moretz would be inappropriate here. In Moretz, the court noted Mr. Moretz was entitled to interest despite the "involvement" of Blue Cross, which was an insurer and not merely adjusting as in this case. Moretz, 783 p.2d at 765. The court further pointed out that the proper action for Industrial Indemnity, the worker's compensation insurer in Moretz, was to issue a check jointly to Moretz and Blue Cross or commence an interpleader action and let the parties apportion the interest. Id. 783 p.2d 765, n.1. It makes little sense here to have Employer take either of the actions suggested in Moretz when it appears Employer would ultimately get the interest. Employee's claim for interest is denied and dismissed.

1. Employer shall pay those medical costs indicated in the body of this decision. Other costs requested are denied and dismissed.

2. Employee's claim for interest is denied and dismissed.

Dated at Anchorage, Alaska, this 5th day of June, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ MR Torgerson
Mark R. Torgerson, Designated Chairman

/s/ Donald R Scott
Donald R. Scott, Member

/s/ HM Lawlor
Harriet Lawlor, Member

MRT/jw

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

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in 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 Sherry L. McGinnis, employee/applicant; v. Anchorage School District (self-insured), employer/defendants; Case No. 8800511; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 5th day of June, 1990.

Jamie Whitt, Clerk