Bockus v. First Student Services, et al., No. S-15784, 7137 (Alaska 12/02/16)
Ruling: The Alaska Supreme Court held that a driver was entitled to attorney’s fees because the employer resisted furnishing medical care by unreasonably delaying his third surgery.
What it means: In Alaska, an employer’s acquiescence to a claim before a hearing does not prevent a finding that the employer resisted providing the benefit.
Summary: A school bus driver injured his back while pulling open a chain-link gate. He felt a pop in his back and severe pain radiating into his legs. He had two spinal surgeries, and his surgeon recommended a third. At about the same time, the employer scheduled an independent medical examination. This delayed the surgery because the surgeon would not schedule the surgery while the IME was pending.
The driver filed a workers’ compensation claim for the third surgery, and the employer’s doctor ultimately agreed that a third surgery was appropriate. The Alaska Supreme Court held that the driver was entitled to attorney’s fees because the employer resisted furnishing medical care by unreasonably delaying the third surgery.
The driver asserted that the employer delayed his surgery because it “had ample information” about the compensability of the surgery before the IME. The employer argued that it was merely exercising a statutory right to an IME and it rescheduled the IME at the driver’s request.
The court pointed out that the employer authorized the third surgery when it was required to answer the driver’s claim. The court pointed out that an employer’s acquiescence to a claim before a hearing does not prevent a finding that the employer resisted providing the benefit.
The court explained that the IME was not directed at an opinion about the surgery itself. Instead, the adjustor listed nine treatment options and asked for an opinion about the reasonable necessity of all treatments.
The court found that this broad request was not reasonable because the driver and his surgeon, after trying conservative care, had decided that surgical treatment was the best option for addressing his condition.
The court pointed out that the employer had adequate information about the reasonable necessity of the surgery well before the surgery was authorized. The information the employer sought from the IME was not reasonably related to the narrow question of the compensability of and the need for the requested surgery.
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