Bockus v. First Student Services
384 P.3d 801
| Alaska | 2016Background
- Jonathan Bockus, a school bus driver, suffered a thoracic disc herniation at work in March 2013 and underwent two surgeries; his treating neurosurgeon (Dr. Wright) later recommended a third (fusion) after conservative care failed.
- The employer/carrier (First Student/Sedgwick) scheduled an employer independent medical examination (EIME) with Dr. Williams; Dr. Wright’s office would not schedule the third surgery while an EIME was pending and sought preauthorization.
- Dr. Williams’ July records review indicated the work injury was the substantial cause of Bockus’s condition but declined to opine on the necessity of specific treatments without an in-person exam; an in-person EIME was set for September and Dr. Williams later supported a repeat discectomy.
- Bockus’s surgery was not authorized until mid-October; he filed a written workers’ compensation claim in September alleging the carrier had resisted payment by withholding approval pending the EIME.
- The Workers’ Compensation Board awarded attorney’s fees under AS 23.30.145(b) for the carrier’s resistance; the Appeals Commission reversed, holding no duty to preauthorize and that the filing had not produced a benefit warranting fees.
- The Alaska Supreme Court reviewed whether substantial evidence supported the Board’s finding that the carrier unreasonably delayed and resisted furnishing medical care and reinstated the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether carrier’s insistence on an EIME and failure to authorize surgery before the EIME constituted resistance to furnishing medical care warranting attorney’s fees under AS 23.30.145(b) | Bockus: carrier unreasonably delayed authorization despite having sufficient information that surgery was compensable; the delay forced him to file a claim and obtain authorization. | First Student: exercising statutory right to an EIME; had not controverted claim; no duty to preauthorize; continued paying benefits and ultimately approved surgery. | Court: Substantial evidence supported Board’s finding that carrier unreasonably delayed and resisted furnishing care; award of attorney’s fees reinstated. |
| Whether an employer has a statutory duty to preauthorize or otherwise assure payment before an EIME | Bockus: carrier should accurately convey claim status and facilitate care, including payment assurances when requested. | First Student: no statutory duty to preauthorize; EIME is a permissible investigation tool. | Court: declined to decide a broad preauthorization duty; held employer’s duty to furnish care can include facilitating payment/accurate communication where delay unreasonably impedes care. |
| Whether pre-EIME conduct (before written claim filed) forecloses a fee award under AS 23.30.145(a) or (b) | Bockus: both pre- and post-claim conduct delayed treatment; filing forced decision and secured authorization. | First Student: pre-claim conduct cannot constitute a post-claim controversion; thus no fees. | Court: Board correctly denied (a) claim but properly awarded under (b); fees may be awarded when employer resists furnishing benefits even if some conduct preceded the written claim. |
| Whether the attorney obtained a compensable benefit justifying fees | Bockus: filing produced surgery authorization and therefore a valuable benefit. | First Student: ultimately authorized surgery without litigation; no benefit from counsel. | Court: substantial evidence showed the written claim forced carrier’s authorization; counsel secured a benefit—fees appropriate. |
Key Cases Cited
- Summers v. Korobkin Construction, 814 P.2d 1369 (Alaska 1991) (employee may file claim to obtain Board determination of compensability when employer delays or resists treatment)
- Underwater Construction, Inc. v. Shirley, 884 P.2d 156 (Alaska 1994) (employer’s delay or apparent acquiescence can nonetheless support a finding of controversion/resistance and fee awards)
- Harnish Group, Inc. v. Moore, 160 P.3d 146 (Alaska 2007) (fees may be awarded where employer’s actions effectively resist payment despite apparent admission)
- Phillip Weidner & Assocs. v. Hibdon, 989 P.2d 727 (Alaska 1999) (within first two years post-injury, Board’s review is limited to whether treatment is reasonable and necessary; treatment choices generally left to patient and treating physician)
- Harp v. ARCO Alaska, Inc., 831 P.2d 352 (Alaska 1992) (discusses standards for controversion and penalties when employer lacks factual basis to controvert)