MUNICIPALITY OF ANCHORAGE and NovaPro Risk Solutions, Adjuster, Petitioners, v. John E. ADAMSON, Respondent. Calli E. Olsen, Petitioner, v. City & Borough of Juneau, Respondent.
Nos. S-14621, S-14622.
Supreme Court of Alaska.
May 3, 2013.
301 P.3d 569
Eric Croft, The Croft Law Office, Anchorage, for Respondent Adamson.
Joseph A. Kalamarides, Kalamarides & Lambert, Anchorage, for Petitioner Olsen.
Richard L. Wagg, Russell, Wagg, Gabbert & Budzinski, P.C., Anchorage, for Respondent City and Borough of Juneau.
Before: FABE, Chief Justice, CARPENETI, WINFREE, and STOWERS, Justices.
OPINION
CARPENETI, Justice.
What standard should apply to stays on appeal of future medical benefits when the Alaska Workers’ Compensation Board has ordered an employer to pay for medical treatment or benefits? In these two cases the Alaska Workers’ Compensation Appeals Commission applied different standards to evaluate motions to stay future medical benefits, and the losing party in each case petitioned for review of the Commission‘s stay decision. We granted review to decide what standard applies to stays of future medical benefits. We hold that to stay future medical benefits, the employer must show the existence of the probability that the appeal will be decided adversely to the compensation recipient.
II. FACTS AND PROCEEDINGS
A. Municipality of Anchorage v. Adamson
John Adamson worked as a firefighter for the Municipality of Anchorage for more than 20 years, retiring in 2011. He was diagnosed with prostate cancer on August 7, 2008, and applied for workers’ compensation benefits for the cancer. Adamson‘s application was based on
After a hearing the Alaska Workers’ Compensation Board decided that Adamson‘s cancer was compensable and ordered the Municipality to pay past and future medical benefits, some past temporary total disability (TTD) benefits, and costs and attorney‘s fees. The Board did not consider whether Adamson was eligible for permanent partial impairment (PPI) at that time because Adamson had neither been evaluated nor included a claim for it.1 One Board member dissented and would have found the claim not compensable.
The Municipality appealed the decision to the Alaska Workers’ Compensation Appeals Commission and asked for a stay of the Board‘s decision. The Municipality explained that “future periodic medical expenses [might] be incurred” while the appeal was pending, and argued that these benefits
The Commission refused to stay future benefits. It found that the Municipality would suffer “irreparable harm” because it would have no way to recoup benefits paid if it prevailed on appeal. And the Commission further decided that the Municipality had raised serious and substantial questions going to the merits of the case. But the Commission refused to stay future benefits because the Municipality had not shown that “it [was] more likely than not that the [Municipality would] prevail on the merits.” The Commission cited
B. Olsen v. City & Borough of Juneau
Calli Olsen worked as a wastewater utility operator for the City and Borough of Juneau (CBJ). According to the Board‘s decision in her case, she filed reports of injury for two different injuries, one to her right knee in May 2009 and one to her lower back and right leg in September 2009. After a hearing the Board found that her knee injury, but not her back and leg injury, was compensable, and it ordered CBJ to pay for completion of a specific medical treatment (autologous chondrocyte implantation) as well as past medical care related to the right knee.2 The Board denied other claims she made and deferred ruling on PPI because she was not yet medically stable.
CBJ appealed to the Commission and asked for a stay of future medical benefits. CBJ‘s motion for stay argued that it was probable that the merits of the appeal would be decided adversely to Olsen. CBJ contended that because Olsen‘s claim was an aggravation claim and because the statutory standard had changed from “a substantial factor” to “the substantial cause,” the Board had evaluated the claim using the incorrect standard. Olsen countered that the Board had properly evaluated the claim. In an affidavit filed with her opposition, Olsen stated that she had undergone the first part of the implantation procedure in June 2010 and had no funds to pay for the second surgery; she further stated that she was “not able to find suitable work in [her] field due to [her] injury.”3
At the hearing on the stay, the Commission directed the parties to address which regulatory standard for a stay applied. At the time of the hearing, the Commission‘s regulation about stays on appeal contained two standards depending on the type of benefit at issue. To stay “continuing future periodic compensation payments” the appellant was required to demonstrate irreparable damage and “the existence of the probability that the merits of the appeal [would] be decided adversely to the compensation recipient“; for “lump-sum payments” the appellant had to show irreparable damage and “the existence of serious and substantial questions going to the merits of the case.”4
CBJ said it would suffer irreparable damage without the stay because it would have no way to recoup the payments if it were to win on appeal. CBJ argued that the benefits at issue were not continuing future periodic compensation payments, so the serious and
The Commission granted the stay, using the serious and substantial question test to evaluate the request. The Commission found that CBJ had no way of recovering payment for the medical treatment if CBJ won the appeal, and it decided that CBJ had raised a serious and substantial question, specifically how “the statutory standard for compensability ... requiring that employment be the substantial cause of the need for medical treatment ... appl[ied] in the context of [Olsen‘s] case.” The Commission did not consider whether CBJ had shown the existence of the probability the merits of the appeal would be decided adversely to Olsen.
Olsen then moved for reconsideration, arguing that the probability of success on the merits was the appropriate standard. She further contended that medical benefits could not be stayed at all if the Commission interpreted “compensation” as excluding medical benefits. The Commission responded to Olsen‘s motion by explaining that it interpreted
Olsen petitioned for review of the stay decision. We granted review of both petitions and consolidated the cases for oral argument and decision.
III. STANDARD OF REVIEW
We interpret statutes “according to reason, practicality, and common sense, considering the meaning of the statute‘s language, its legislative history, and its purpose.”6 When interpreting a statute, “we adopt ‘the rule of law that is most persuasive in light of precedent, reason, and policy.‘”7 We apply our independent judgment to questions of law that do not involve agency expertise.8 If the issue involves agency expertise or fundamental policy questions, we apply the reasonable basis standard of review and “defer to the agency if its interpretation is reasonable.”9 But when the issue is one of “statutory interpretation requiring the application and analysis of various canons of statutory construction,” as it is here, we apply our independent judgment.10
IV. DISCUSSION
Future Periodic Compensation Payments Can Include Medical Benefits.
A. The Language Of AS 23.30.125(c)
These two petitions require us to construe
The payment of the amounts required by an award may not be stayed pending a final decision in the proceeding unless, upon application for a stay, the commission, on hearing, after not less than three days’ notice to the parties in interest, allows the stay of payment, in whole or in part, where the party filing the application would otherwise suffer irreparable damage. Continuing future periodic compensation payments may not be stayed without a showing by the appellant of irreparable damage and the existence of the probability of the merits of the appeal being decided adversely to the recipient of the compensation payments. The order of the commission allowing a stay must contain a specific finding, based upon evidence submitted to the commission and identified by reference to the evidence, that irreparable damage would result to the party applying for a stay and specifying the nature of the damage.
Among the changes the legislature made to
B. The Commission‘s Interpretation Of AS 23.30.125(c)
In the time since
C. “Continuing Future Periodic Compensation Payments”
Central to resolution of these cases, then, is the meaning of the phrase “continuing future periodic compensation payments.”18 “We interpret statutes according to reason, practicality, and common sense, considering the meaning of the statute‘s language, its legislative history, and its purpose.”19 Words in statutes are construed using their common meanings unless they have “acquired a peculiar meaning, by virtue of statutory definition or judicial construction.”20
Of the words in the phrase “continuing future periodic compensation payments,” only “compensation” is defined in the workers’ compensation act.21 We have also interpreted the term “compensation” to include medical benefits in most instances; as we stated in Childs v. Copper Valley Electric Ass‘n, we “generally construe ‘compensation’ to include medical benefits, [but] we occasionally will reach the opposite result if statutory language strongly suggests a narrower reading.”22 The Commission acknowledged that medical benefits are compensation when it said that the Board “awarded Olsen compensation in the form of future medical benefits.” No party disputes that the medical benefits awarded in these cases are “compensation” for purposes of a stay, and nothing in the statutory language suggests that the legislature intended to treat medical benefits differently from other compensation in this statutory subsection.23 Subsection .125(c) permits the Commission to set aside a “compensation order,” which is a Board order deciding a workers’ compensation claim.24 Because a claim can include a request for medical benefits, a compensation order can
The parties here dispute the meaning of “continuing” and “periodic.” The Municipality argues that medical benefits do not fit the definition of “continuing.” Adamson responds that payments for his examinations are unquestionably continuing. The Municipality‘s argument that medical benefits are not continuing is based on the idea that each separate doctor visit or procedure is a discrete event that renews the employer‘s obligation; it does not consider a course of medical treatment that may extend over a long period of time and encompass a number of visits.
“Continue” has several meanings: 1. To go on with a particular action or in a particular condition: PERSIST. 2. To exist over an extended period: LAST. 3. To remain in the same state, capacity, or place. 4. To go on after an interruption: RESUME.26
Black‘s Law Dictionary has two definitions of “continuing,” both of which are similar to general usage: “1. Uninterrupted; persisting <a continuing offense>. 2. Not requiring renewal; enduring <continuing stockholders> <continuing jurisdiction>.”27 The medical benefits at issue in both of these cases fall within a definition of “continuing.” The treatment the Board ordered for Olsen would have completed (or gone on with) the first procedure. Adamson‘s medical care will persist over an extended period of time. Medical benefits generally meet the definition of “continuing“: An employer may be required to provide medical benefits over an extended period of time to ensure that the worker completes the process of recovery.28
We turn now to the meaning of “periodic payment.” The Municipality contends that the definition of the term “periodic payment” shows that medical benefits are not “periodic compensation payments.” “Periodic payment” is defined as “[o]ne of a series of payments made over time instead of a one-time payment for the full amount“; it is contrasted with “lump-sum payment,” which is defined as “[a] payment of a large amount all at once, as opposed to a series of smaller payments over time.”29 The Municipality asserts that “medical benefits are paid as a ‘one time payment for the full amount’ due and are incurred on an intermittent, irregular basis.” But this depends on how one views medical benefits. Each doctor visit or procedure may be paid in full when the bill is presented, but an employer is responsible, at least initially, for the full course of medical treatment the worker needs to recover from injury.30 Payment for the course of treatment is not usually made as a lump sum, particularly when a worker must see specialists on referral to receive appropriate treatment.
The parties here focus their arguments on the meaning of “periodic.” CBJ and the Municipality rely on a definition of “periodic” that is limited to regular intervals. Adamson counters that “periodic” can also mean “recurring intermittently.” “Periodic” has several dictionary meanings, two of which are relevant here: “Occurring or appearing at regular intervals” and “[t]aking place now and then: INTERMITTENT <periodic mood swings>.”31 Because either meaning is plausible, we conclude that the statute is ambiguous.
D. Legislative Purpose And History
When statutory language is ambiguous, we look to the purpose of the leg-
There is very little legislative history specifically about the stay standard. As Adamson points out, the amendment to
The parties only mention one specific reference to the stay standard in the legislative history: The Department of Law, comparing versions of the bill for the Free Conference Committee, said the amendment to
E. Precedent, Reason, And Policy
Because
Our decision in Childs v. Copper Valley Electric Ass‘n supports interpreting “continuing future periodic compensation payments” to include future medical benefits
Other states consider future medical compensation payments to be like other ongoing compensation payments. In construing its workers’ compensation statute, the Maine Supreme Judicial Court held that an employer was required to pay ongoing medical benefits while an appeal was pending even if the employer had no way to recover the benefits if it were successful on appeal.44 The Maryland Court of Special Appeals, in a case concerning payment of past medical benefits, indicated that ongoing medical benefits should be treated like other ongoing benefits: The court said the purpose of the anti-stay provision of its workers’ compensation statute was “to prevent a cessation of the weekly compensation benefits and ongoing medical care that are necessary for a claimant‘s survival and well-being while an appeal is pending.”45
There are policy arguments on both sides of this issue. Medical treatments can be expensive, and the Municipality points to a report by the Division of Workers’ Compensation showing that medical costs account for about three-fourths of workers’ compensation costs in Alaska.46 Because the probability of success on the merits is a high threshold, and because the employer cannot recover overpaid benefits in all cases, there are reasons to be cautious about construing “continuing future periodic compensation payments” to include all medical benefits. On the other hand there are also good reasons to treat medical care, especially medical care sought in the first two years following an injury,47 as similar to “periodic disability payments on which an employee relies as a salary substitute.”48 Both Adamson and Olsen discuss the necessity of medical care to an injured worker, and Olsen‘s case illustrates the difficulty an employee can face if she has no other health insurance and cannot otherwise pay for a needed procedure.49 In addition, when an employee cannot get medical treatment, she can face a prolonged period of unemployment or underemployment, and her condition may worsen while she waits for the
In discussing the balance of hardships approach in Olsen Logging, we said that “[w]here the injury which will result from the preliminary injunction is not inconsiderable and may not be adequately indemnified by a bond, a showing of probable success on the merits is required.”52 In many cases involving medical care, that standard is met. A bond may ensure payment of the cost of treatment at a later date, but an injured worker who has to delay treatment while an appeal is pending is not able to recover anything for continuing pain and may have a reduced income for a considerable period of time while waiting for medical care. Moreover, when the Commission is considering a request to stay future medical benefits, the Board has already conducted a hearing, evaluated the evidence, and determined compensability. In other words, when an employer seeks a stay of future medical benefits, “the employer has just lost on the merits in a competent forum.”53
Olsen Logging essentially set up a system in which the balance of hardships was determined in advance. If the stay involved ongoing benefits that an injured worker would use as a salary substitute, then the balance of hardships tipped in favor of the injured worker; on the other hand, when the issue involved a lump sum, the balance of hardships favored the employer. We recognize that medical benefits are different from disability payments in that they are not fixed—there is substantial variation in the type of treatment an employee seeks as well as the cost and effectiveness of treatment. But they are more like disability payments that an employee relies on as a salary substitute than lump sums; like benefits an employee needs as a salary substitute, the hope of future medical treatment “is a meager substitute” for needed care.54
V. CONCLUSION
For the foregoing reasons, we AFFIRM the Commission‘s order in Municipality of Anchorage v. Adamson. We VACATE the Commission‘s order in Olsen v. City & Borough of Juneau and REMAND to the Commission for further proceedings consistent with this opinion.
MAASSEN, Justice, not participating.
Notes
The payment of the amounts required by an award may not be stayed pending final decision in the proceeding unless upon application for an interlocutory injunction the court on hearing, after not less than three days’ notice to the parties in interest and the board, allows the stay of payment, in whole or in part, where irreparable damage would otherwise ensue to the employer. The order of the court allowing a stay shall contain a specific finding, based upon evidence submitted to the court and identified by reference to it, that irreparable damage would result to the employer, and specifying the nature of the damage.