Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

JONATHAN BOCKUS, 

 Appellant, 

v. 

FIRST STUDENT SERVICES and 

SEDGWICK CMS, INC., 

 Appellees. 

) 

) Supreme Court No. S-15784 

Alaska Workers’ Compensation 

Appeals Commission No. 14-008 

O P I N I O N 

No. 7137 – December 2, 2016 

) 

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) 

) 

) 

) 

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Appeal from the Alaska Workers’ Compensation Appeals 

Commission. 

Appearances: J. John Franich, Franich Law Office, LLC, 

Fairbanks, for Appellant. Krista M. Schwarting, Griffin & 

Smith, Anchorage, for Appellees. 

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, 

and Carney, Justices. 

BOLGER, Justice. 

I. INTRODUCTION 

A school bus driver injured his back moving a gate. He had two spinal 

surgeries, and his surgeon ultimately recommended a third. About the same time, the 

driver’s employer scheduled a medical examination, which delayed the planned surgery: 

the driver’s surgeon would not schedule the surgery while the employer’s medical 

evaluation was pending. So the driver filed a workers’ compensation claim for the third 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

surgery, and the employer’s doctor ultimately agreed another surgery was appropriate. 

The Alaska Workers’ Compensation Board awarded the driver his attorney’s fees under 

AS 23.30.145(b), finding the employer had resisted these benefits, but the Alaska 

Workers’ Compensation Appeals Commission reversed the fee award. We conclude 

there was substantial evidence supporting the Board’s finding and therefore reinstate the 

award. 

II. FACTS AND PROCEEDINGS 

Jonathan Bockus worked as a substitute bus driver for First Student 

Services in Fairbanks. In March 2013 he injured his back pulling open a chain-link gate; 

he felt a pop in his back and had severe pain radiating into his legs shortly afterwards. 

He was taken by ambulance to the emergency room at Fairbanks Memorial Hospital, 

where an MRI showed a large disc herniation at T10-T11 and resulting spinal cord 

impingement. Because no neurosurgeon was available in Fairbanks, Bockus was 

medivaced to Anchorage. In Anchorage a repeat MRI showed the same problem as well 

as cord edema. Dr. Kim Wright, a neurosurgeon, recommended surgical decompression 

of the spinal cord. 

Dr. Wright attempted to performa right T10-T11 laminectomy on March 8, 

but during surgery he was not able to locate the correct level of the spine due to Bockus’s 

“body habitus.” After making an incision and beginning the surgery at what he thought 

was the correct level, Dr. Wright did not find the expected amount of disc material. He 

nonetheless removed a calcified ligament and a synovial cyst. He thought he might have 

been off one level, but he decided it would be better to end the surgery, have a repeat 

MRI, and decide what to do next rather than continue to try to locate the correct level. 

Another MRI done later that day showed a continuing disc herniation and 

“cord distortion” at T10-T11 as well as surgical changes at T11-T12. Dr. Wright 

performedanother surgerythefollowing day, thistimeat thecorrect level; decompressed 

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the spinal cord; and removed a calcified ligament and “a sizeable free fragment disc 

herniation.” Bockus reported feeling better the following day. The imaging studies done 

after the second surgery showed some residual problems at the T10-T11 level, but 

Dr. Wright recommended to Bockus that he try conservative management because 

surgical treatment would require fusion. 

In correspondencerelated tothesurgery, theworkers’compensationcarrier 

asked Dr. Wright whether Bockus’s work-related injury was the substantial cause of the 

first surgery, at the T11-T12 level; Dr. Wright responded that it was, even though the 

cyst was likely a preexisting condition, and explained that the work-related ruptured disc 

caused the need for any surgery at all. The carrier then sent Bockus’s medical records 

to its doctor, Dr. Paul Williams, also a neurosurgeon, for review. Dr. Williams agreed 

both surgeries were reasonable and necessary and additionally gave the opinion that the 

work-related accident was the substantial cause of Bockus’s thoracic back condition. 

Bockus had several post-surgery visits with Dr. Wright and his staff, for 

which First Student paid. Bockus reported recurring pain in his mid-back, and 

Dr. Wright initially suggested continuing conservative care. An MRI from June showed 

residual disc material at T10-T11 as well as cord impingement and “severe right neural 

foraminal stenosis.” Over the next few weeks Bockus’s pain increased, Dr. Wright 

recommended a third surgery, and the carrier decided to have Bockus undergo an 

employer’s independent medical evaluation (EIME) in Anchorage with Dr. Williams. 

Bockusand Dr. Wright discussed further surgeryinmid-July,when Bockus 

“report[ed] significant pain” with numbness; after considering his options Bockus 

decided to have a fusion surgery. At about the same time, the adjuster scheduled the 

EIME, initially for Saturday, July 27. Bockus had already spent a significant amount in 

non-refundable fees to attend a family reunion that day, so the EIME was rescheduled 

for September 27, Dr. Williams’s next available in-person appointment. When 

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Dr. Wright’s scheduling assistant called the workers’ compensation carrier to verify 

coverage for the surgery, the carrier told her that the claim was open and billable but that 

an EIME was scheduled. The assistant did not schedule the surgery then because of 

office policy not to schedule surgery in the face of a pending EIME; according to the 

assistant this policy is meant to protect patients from being stuck “with a huge bill that 

they can’t pay,” presumably in case the EIME leads to a controversion.1 The assistant 

would have gone ahead and scheduled the surgery, even with a pending EIME, if the 

carrier had “authorized it,” but the carrier did not do so in July. 

After the adjuster found out that Dr. Wright had recommended another 

surgery, she asked Dr. Williams to perform a records review in lieu of having an inperson appointment; she testified that Dr. Williams “was not able to opine on any of the 

issues because he wanted to do a physical evaluation of Mr. Bockus first.” 

Dr. Williams’s second records examination, dated July 29, indicated that he reviewed the 

June MRI and gave the opinion that the March work-related injury was the substantial 

cause of Bockus’s current condition and that the preexisting conditions Dr. Williams 

identified in the report were not the substantial cause of Bockus’s condition. He also 

wrote that he was “unaware of an alternate explanation” that might exclude the workrelated injury as the substantial cause of Bockus’s “medical complaints.” 

Dr. Williams declined to answeranumber ofother questions, including one 

about the reasonableness or necessity of a list of nine treatment options, without first 

examining Bockus. None of the questions informed Dr. Williams that Dr. Wright had 

1 Because an employer is subject to a penalty if it controverts benefits 

without a factual basis for the controversion, see Harp v. ARCO Alaska, Inc., 831 P.2d 

352, 358 (Alaska 1992), an EIME may be a prerequisite to a controversion of medical 

care. As First Student acknowledged at oral argument before us, adjusters may tell 

doctors about EIMEs so they know there is a possibility the carrier will deny the claim 

if the carrier decides the treatment is not compensable. 

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recommended a third surgery and thus did not ask Dr. Williams to give an opinion about 

whether a third surgery was necessary and “within the realm of medically accepted 

options”2 for treating Bockus’s condition. 

Bockus saw Dr. Wright again in early August and reported increased pain. 

He said he could no longer stand completely upright because of the pain; the chart notes 

reflect that Bockus was “ready to proceed with surgery but his workers[’] compensation 

company will not approve it until the [E]IME is completed.” The care plan section of 

the chart notes says, “We are simply awaiting his new [E]IME and approval for surgery.” 

The care plan also indicates that Bockus asked to see a pain management doctor “to be 

able to get through” until the EIME. 

After contacting Dr. Wright’s office and the compensation carrier several 

times about the surgery, Bockus sought the assistance of an attorney. The attorney wrote 

to the adjuster “informing [her] that the treating physician had recommended a third 

surgery, and that [she] was not approving the surgery unless and until it was 

recommended by [the carrier’s] physician.” The attorney then filed a written workers’ 

compensation claim for Bockus. The claim cited Summers v. Korobkin Construction, 

3 

and alleged the carrier had controverted in fact medical care in that it had “resisted 

payment of medical benefits by not approving surgery that ha[d] been recommended by 

[the] treating physician until after an EIME.” 

2 Phillip Weidner &Assocs. v. Hibdon, 989 P.2d 727, 732-33 (Alaska 1999) 

(holding that if the employee’s physician recommends a course of treatment within the 

first two years following injury, the employer, to demonstrate that the treatment is not 

compensable, must prove “that the treatment is neither reasonable and necessary, nor 

within the realm of acceptable medical options under the particular facts”). 

3 814 P.2d 1369 (Alaska 1991). 

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BockusattendedtheEIMEin lateSeptember. Dr. Williams didnotperform 

a range of motion examination on Bockus’s thoracic spine “for fear of causing further 

herniation of Mr. Bockus’[s] recurrent disc at T10-T11.” Dr. Williams diagnosed a 

“recurrent disc herniation on the right at T10-T11”; he thought the work-related injury 

was still the substantial cause of Bockus’s condition and thought a “[r]epeat discectomy 

at T10-T11” would likely bring objectively measurable improvement. He also said the 

“work injury remains the substantial cause of the need for treatment” because Bockus 

was “asymptomatic” before the injury. 

Dr. Williams wrote an October 10 addendum to the report, responding to 

First Student’s questions about the likely length of time Bockus would need physical 

therapy after surgery; none of the supplemental questions was related to the 

reasonableness or necessity of the surgery itself. The carrier approved the surgery on 

October 16 or 17, after Dr. Wright’s office contacted the adjuster to find out why the 

surgery had not yet been preauthorized. First Student then filed its answer to Bockus’s 

compensation claim on October 17, denying it had controverted medical care and 

asserting there was no basis for an attorney’s fees award. 

Bockus had the surgery in early November. First Student paid for the 

surgery, so by the time of the Board hearing the only unresolved issue was attorney’s 

fees. Bockus sought attorney’s fees under AS 23.30.145(a) (for a controversion in fact) 

or (b) (for resistance to a claim). First Student argued it had neither controverted in fact 

nor resisted the claim for benefits. 

Bockus and the insurance adjuster testified in person at the Board hearing, 

and the doctor’s scheduling assistant testified by deposition. Bockus testified he had 

made “numerous” calls to Dr. Wright’s office to ask about the surgery and about three 

calls to the adjuster about it. He said the adjuster would tell him his claim was open but 

would “never say yes or no” about the surgery. He agreed the adjuster had not told him 

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the surgery had been denied; instead, according to Bockus, she told him she was not 

saying he could not have the surgery, she was “just saying that [she couldn’t] tell [him] 

at this time.” His impression was that Dr. Wright’s office had contacted the adjuster to 

get authorization for the surgery. 

The adjuster, Kymberly LaRose, testified that she initiated the EIME 

process a few days before Bockus told her he might need a third surgery. Bockus told 

her of the potential for an additional surgery when she called to “do a regular check-in”; 

she told him at that time that she had scheduled him for an EIME. She also said she tried 

to speed things up by asking the doctor to do another records review, but the doctor “was 

not able to opine on any of the issues because he wanted to do a physical evaluation” 

first. 

LaRose indicated that she is “obligated” to tell a doctor’s office that an 

EIME is scheduled, although she did not say why she has this obligation. She explained 

that providers call her “asking if the claim is open and billable and if there are any 

pending issues like an [E]IME,” and “if there are no pending [E]IMEs or anything . . . 

[the] standard issue answer [is] that there are no issues with the claim.” LaRose said she 

told Bockus that some providers would not proceed with surgery if they know there is 

a pending EIME but that she was “not able to tell him one way or another what kind of 

treatment they’re able to perform”; she said she never told Bockus the surgery would be 

denied if he went ahead and had the surgery before the EIME. 

LaRose testified that her office does “not preauthorize any medical 

treatment because [they are] unable to direct” medical treatment. She could not explain 

why Dr. Wright’s office had sent a written request for preauthorization if her office never 

preauthorized surgery. She also testified that in mid-October she returned a call from 

Dr. Wright’s office and told them “there [were] no issues with surgery being scheduled.” 

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Nancy Nashlund, Dr. Wright’s scheduling assistant, testified that when she 

contacted the adjuster’s office about the surgery in July, a person named Adela told her 

the claim was “open and billable” but that an EIME was scheduled. Nashlund indicated 

that she did not schedule Bockus’s surgery at that time because if an adjuster tells her an 

EIME is scheduled, “Dr. Wright has asked that [she] wait to schedule [surgery] until after 

the [E]IME is finished.” She later agreed that she “wait[s] for the insurance company to 

make a decision whether they are going to pay for the surgery” before scheduling it. In 

response to questions from Bockus’s attorney, she agreed that when she called the 

insurer on July 22, she “had called them to authorize” the surgery, that the carrier had not 

authorized it, and that if the insurer had authorized it, she would have scheduled the 

surgery at that time. She estimated that she would have been able to schedule the surgery 

within two weeks of approval, as long as Dr. Wright was in the office, and she testified 

that Dr. Wright was only out of the office for one week in August 2013. 

In responseto questionsfromFirstStudent’sattorney, Nashlund agreed that 

she did not “specifically ask [the insurer] to authorize surgery” when she called in July 

and said, “My understanding is that workers’ comp companies don’t authorize surgeries, 

per se . . . .” Nashlund did not recall getting a copy of the EIME after it was completed; 

she learned that the carrier had approved the surgery by talking to the adjuster. Nashlund 

agreed that the insurer had not told her to delay the surgery and had not told her the 

surgery was denied. She also agreed that “the surgery was authorized on October 17th.” 

The Board decided that attorney’s fees could not be awarded under 

AS 23.30.145(a) because in its view any employer actions that resisted payment of 

medical benefits happened before the written claim was filed. The Board interpreted 

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Harnish Group, Inc. v. Moore4 as requiring the actions constituting a controversion in 

fact to happen after a written claim is filed rather than before; it decided that none of the 

actions showing resistance to payment happened after the claim was filed. But the Board 

agreedthat FirstStudent had resisted furnishing medical caresuch that Bockus’s attorney 

was entitled to fees under AS 23.30.145(b). 

The Board spent some time discussing the testimony of both LaRose and 

Nashlund, noting that Nashlund’s testimony was confusing because she provided 

different answers depending on who asked her questions. For example, she said she 

sought authorization for the surgery when she first called the adjuster, but also testified 

that she understood that workers’ compensation insurers did not preauthorize surgery. 

The Board found some of the testimony of these two witnesses not credible because of 

the internal inconsistencies; it found that Dr. Wright “was not really concerned with an 

E[I]ME itself, but payment for [his] services.” It ultimately found that neither Nashlund 

nor LaRose was credible “in [her] denial[] [Bockus’s] provider was calling for 

preauthorization.” 

After considering several statutory provisions and Richard v. Fireman’s 

Fund Insurance Co., 

5 the Board said an employer’s duty to furnish medical care “could 

conceivably include a duty to address other payment issues, such as providing payment 

assurances, or at least accurately portraying the uncontroverted status of an injured 

worker with a compensable injury to the employee’s selected provider to facilitate 

treatment.” The Board construed Summers v. Korobkin Construction, 

6 as providing 

Bockus with a remedy “[e]ven if the [Alaska Workers’ Compensation] Act does not 

4 160 P.3d 146 (Alaska 2007). 

5 384 P.2d 445 (Alaska 1963). 

6 814 P.2d 1369 (Alaska 1991). 

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require [First Student] to preauthorize treatment.” TheBoard said that, even though First 

Student “did not have unilateral authority to terminate [Bockus’s] benefits,” its “refusal 

to preauthorize [the] surgery effectively did just that.” In the Board’s view, this 

amounted to resistance, making Bockus eligible for a fee award under AS 23.30.145(b). 

The Board found that Bockus’s attorney had “successfully obtained a valuable benefit” 

for him and awarded reasonable fees and costs of approximately $3,500 for about ten 

hours of work. 

First Student appealed to the Commission. The Commission analyzed the 

issues differently from the Board, considering the question presented a purely legal one; 

it examined whether an employer was required to preauthorize care under the Alaska 

Workers’ Compensation Act (Act) rather than determining whether substantial evidence 

in the record supported the Board’s finding that First Student had resisted the medical 

benefits at issue. It decided that one statutory subsection the Board had not considered, 

AS23.30.097(d), “address[ed]paying for medical treatment in amoredetailedway”than 

the parts of the statute the Board used.7

 The Commission next looked at case law and 

decided that nothing in those decisions required an employer to preauthorize surgery. 

The Commission decided that the only way an employee can find out “in advance 

whether his . . . employer must pay for certain medical treatment” is to file a claim under 

Summers so the Board can determine compensability. The Commission interpreted 

AS 23.30.095(a)’s requirement that the employer “furnish” medical treatment as 

applying only when treatment is “compensable”; here, according to the Commission, 

“the compensability of Bockus’s third surgery was not determined until the [B]oard 

issued its decision to that effect.” 

7 AS 23.30.097(d) requires an employer to pay medical bills within 30 days. 

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The Commission disagreed with the Board that Summers had any bearing 

on Bockus’s case except to provide him with the opportunity for a Board determination 

of the compensability ofthe surgery. Because the Commission decided that First Student 

had no duty to preauthorize surgery, it decided the award of fees was unjustified because 

Bockus had “not employed an attorney in the successful prosecution of his claim” 

(emphasis in original) and reversed the award. Bockus appeals. 

III. STANDARD OF REVIEW 

In an appeal from the Alaska Workers’ Compensation Appeals 

Commission, we review the Commission’s decision rather than the Board’s.8 We apply 

our independent judgment to questions of law that do not involve agency expertise.9 We 

apply our independent judgment to questions of “statutory interpretation requiring the 

application and analysis of various canons of statutory construction,”10 interpreting a 

statute “according to reason, practicality, and common sense, considering the meaning 

of the statute’s language, its legislative history, and its purpose.”11 We independently 

8 Humphrey v. Lowe’s Home Improvement Warehouse, Inc., 337 P.3d 1174, 

1178 (Alaska 2014) (citing Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 

2010)). 

9 Id. 

10 ARCTEC Servs. v. Cummings, 295 P.3d 916, 920 (Alaska 2013) (quoting 

Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903-04 (Alaska 

1987)). 

11 Louie v. BP Exploration (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014) 

(citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)). 

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review a Commission decision that substantial evidence supports the Board’s findings 

of fact “by independently reviewing the record and the Board’s findings.”12 

IV. DISCUSSION 

Although the Board considered whether First Student had an obligation to 

“authorize” or “preauthorize” surgery here, the Board also stated that, even if the statute 

did not require preauthorization, Bockus had a remedy under Summers v. Korobkin 

Construction13 and that Bockus had availed himself of this remedy by filing his claim in 

September. The Board cited Underwater Construction, Inc. v. Shirley14 for the 

proposition that the adjuster’s approval of the surgery before the hearing on Bockus’s 

written workers’ compensation claim did not matter for purposes of resistance to the 

claim. The Board’s award of attorney’s fees is based on a finding that First Student 

resisted furnishing medical care to Bockus because of the long delay engendered by its 

insistence on an in-person EIME. The Commission reframed the issue before it as a 

question ofstatutory interpretationaloneand didnot discuss theBoard’s factual findings. 

Because we review de novo the Commission’s decisions about substantial evidence,15 

we consider whether the Board’s findings here are supported by substantial evidence. 

Bockus argues that First Student delayed his surgery through its actions 

both before and after he filed his written claim, contending that First Student “had ample 

information” about the compensability of the third surgery before the in-person EIME. 

He asserts the Board’s decision to award fees was proper. First Student argues that much 

of the delay cannot be attributed to it because it was merely exercising a statutory right 

12 Humphrey, 337 P.3d at 1178 (citing Shehata, 225 P.3d at 1113). 

13 814 P.2d 1369 (Alaska 1991). 

14 884 P.2d 156 (Alaska 1994). 

15 Humphrey, 337 P.3d at 1178 (citing Shehata, 225 P.3d at 1113). 

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to an EIME and it rescheduled the EIME at Bockus’s request. It contends that it 

unqualifiedly accepted Bockus’s claim because it continued to pay benefits throughout 

the case and ultimately accepted the compensability of the surgery. It maintains it had 

no duty to preauthorize care and did not resist paying for the surgery. First Student also 

argues that Bockus’s attorney did not secure any benefit for Bockus. 

We see no need in this case to determine whether an employer’s statutory 

duty to furnish medical care16 includes a general duty to preauthorize treatment. On the 

other hand, we do not suggest that the carrier’s only obligation is to reimburse medical 

providers or injured workers for care already provided and billed or paid. In this case, 

as in others, a worker may be unable to get needed treatment without some assurance, 

implicit or otherwise, that the carrier will pay for the recommended procedure. Both 

parties acknowledge that an injured worker may be in a difficult position when his doctor 

requires assurance of payment, particularly in light of the statutory prohibition on 

requiring an injured worker to pay for compensable medical care.17 

As the Board found here, First Student in fact authorized Bockus’s surgery 

in October, “when it was required to answer [Bockus’s] claim.” Substantial evidence 

supports this finding. In mid-October LaRose told Dr. Wright’s office, after the office 

again called for preauthorization, that “there [were] no issues with surgery being 

scheduled.” This conversation happened at about the time First Student filed its answer. 

LaRose explained that providers call her “asking if the claim is open and billable and if 

there are any pending issues like an [E]IME”; “if there are no pending [E]IMEs or 

16 AS 23.30.095(a). 

17 AS 23.30.097(f). 

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anything . . . [the] standard issue answer [is] that there are no issues with the claim.”18 

The Board could reasonably infer from this testimony that the absence of “issues” with 

scheduling surgery signaled to Dr. Wright that First Student would pay for it. 

As demonstrated by our previous case law, an employer’s acquiescence to 

a workers’ compensation claim or provision of the requested benefit before a Board 

hearing does not rule out a finding that the employer resisted providing the benefit. In 

Underwater Construction, Inc. v. Shirley we affirmed the Board’s award of attorney’s 

fees under AS 23.30.145(a) when an employer delayed changing an employee’s 

temporary total disability (TTD) benefits to permanent total disability (PTD) benefits, 

even though the amount of each compensation installment was the same.19 We observed 

that if no amount of compensation had been at stake in the case, as the employer claimed, 

it would have had no reason to controvert the claim.20 More recently, in Harnish Group, 

Inc. v. Moore we held that attorney’s fees could properly be awarded under 

AS 23.30.145(b) when the employer had changed an employee’s status to PTD at about 

the same time the employee filed a claim for those benefits.21 The employer 

subsequently signed a reemployment plan, which was inconsistent with the status 

change; in its answer to the employee’s claim, the employer admitted the employee was 

18 Atoral argument beforeusFirst Student acknowledged that an adjustermay 

tell a surgeon about a scheduled EIME to communicate the possibility of a denial of 

coverage if the EIME says the surgery is not reasonable or necessary or related to the 

claim. 

19 884 P.2d at 158-59. 

20 Id. at 159. 

21 160 P.3d 146, 150, 152-53 (Alaska 2007). 

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PTD but denied it should pay attorney’s fees.22 We held that fees could be awarded for 

resisting payment because of the employer’s action in signing the reemployment plan.23 

In considering the contours of First Student’s obligation to furnish medical 

care under AS 23.30.095(a), the Commission reasoned that AS 23.30.097(d), the 

statutory provision requiring payment of medical bills within 30 days, was more specific 

and thus controlled over AS 23.30.095(a). To the extent the Commission’s decision can 

be read as interpreting “furnish” in AS 23.30.095(a) to mean solely a duty to pay bills in 

accordance with AS 23.30.097(d), we disagree with that analysis.24 But the Board’s 

decision that First Student resisted furnishing the third surgery was not based solely on 

a legal duty to preauthorize care. As the Board observed, First Student had the option 

of “accurately portraying the uncontroverted status of an injured worker with a 

compensable injury to the employee’s selected provider to facilitate treatment.” And 

while First Student argues that authorizing surgery before an EIME would interfere with 

its investigation of the claim, the questions the adjuster asked Dr. Williams in both the 

July records review and the in-person EIME were not directed at an opinion about the 

22 Id. at 148-50. 

23 Id. at 153-54. 

24 The Commission’s analysis failed to explain why AS 23.30.095(a) and 

.097(d) could not be harmonized. See In re Hutchinson’s Estate, 577 P.2d 1074, 1075 

(Alaska 1978) (discussing statutory interpretation principles, including principle that 

“where one section deals with a subject in general terms and another deals with a part of 

the same subject in a more detailed way, the two should be harmonized, if possible”). 

In our view, the subsections can be harmonized because the employer’s obligation in 

AS 23.30.095(a) to furnish medical care can include an obligation to pay medical bills 

promptly as set out in AS 23.30.097(d). At oral argument before us, First Student agreed 

that an employer’s obligation to furnish medical care is broader and includes at a 

minimum an obligation to review medical records to determine what treatment is 

necessary. 

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surgery itself. Instead, the adjuster listed nine treatment options and asked for an opinion 

about the reasonable necessity of all of the treatments. This broad request was 

unreasonable because Bockus and his doctor, after trying a course of conservative care, 

had already decided that surgical treatment was the best option for addressing his disc 

herniation and continuing pain. 

Because Bockus sought surgery within a few months of the work-related 

injury, First Student’s ability to shape a course of treatment was more limited. We faced 

a similar issue more than 15 years ago in Phillip Weidner & Associates v. Hibdon. 

25 

There, as here, the employee’s doctor recommended surgery after conservative care 

failed to improve the employee’s pain, but the doctor would not schedule the surgery 

absent authorization from the compensation carrier.26 We observed that even though the 

employer’s medical experts did not recommend surgery, they could not dispute that it 

was “within the realm of medically accepted options.”27 Consistent with the temporal 

division set out in AS 23.30.095(a), we distinguished the Board’s supervision of medical 

care in the two years immediately following the injury from care subsequent to those two 

years, noting that in the first two years after an “undisputedly work-related” injury, the 

Board’s review is “limited to whether the treatment sought is reasonable and 

necessary.”28 Following that two-year period, the Board “has some latitude to choose 

among reasonable alternatives” in treatment.29 As we said in Hibdon, “Choices between 

25 989 P.2d 727 (Alaska 1999). 

26 Id. at 729-30. 

27 Id. at 732. 

28 Id. at 731. 

29 Id. 

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reasonable medical options and the risks entailed should be left to the patient and his or 

her physician.”30 An employer’s doctor’s opinion about the best course of treatment may 

differ from that of the employee’s treating physician, but the principle in Hibdon still 

applies. 

Further surgery was on the list of treatment options sent to Dr. Williams, 

so presumably it was undisputedly “within the realm of medically accepted options” to 

treat Bockus’s condition. In his July records review, the only preexisting condition 

Dr. Williams identified was “[m]ild, chronic loss of vertebral body height” at levels of 

the thoracic spine higher than the location of the earlier surgeries. Dr. Williams referred 

to the June MRI, which showed disc material and cord impingement, at the time of the 

records review in July. First Student asked Dr. Williams in July if he could “identify an 

alternate explanation” that would exclude the work-related accident as the substantial 

cause of Bockus’s medical complaints; Dr. Williams responded that he was “unaware of 

an alternate explanation.” All of this information supports Bockus’s contention that First 

Studenthadadequateinformation about thereasonablenecessity ofthethird surgery well 

before the surgery was authorized in October. And the information First Student sought 

from the EIME physician was not reasonably related to the narrow question of the 

compensability of and need for the requested surgery. 

Accurate communication to the provider’s office about the purpose of the 

EIME might also have assisted in clarifying the likelihood of payment. Nashlund agreed 

that had First Student authorized the surgery in July, she would have scheduled it 

regardless of the pending EIME. Here, the EIME sought general information about the 

best course of treatment for Bockus; the questions in the July EIME did not communicate 

to Dr. Williams that Dr. Wright was recommending a third surgery or that Bockus and 

Id. at 733. 

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his treating physician had decided to pursue that course of treatment. We recognize that 

an employer has a right “at reasonable times” to require an employee to attend an 

examination by the employer’s physician,31 but when an EIME delays care, as it did here, 

the information sought should be reasonably related to treatment the employer is 

delaying. 

SubstantialevidencesupportstheBoard’sfindingthattheemployer resisted 

furnishing medical care to Bockus by unreasonably delaying the third surgery. As the 

Board correctly observed, First Student “could have pursued its investigation according 

to the methods and timelines afforded it under the Act while simultaneously facilitating 

the quick and efficient delivery of medical benefits to [Bockus].” Its failure to do so led 

Bockus to file a written claim for medical benefits in September, prior to both the inperson EIME and the adjuster’s approval of the surgery. In addition to the delay before 

the September EIME, First Student delayed communicating the September EIME results 

to Dr. Wright’s office for almost three weeks, and did so only after Dr. Wright’s office 

contacted the adjuster to inquire why a written preauthorization form had not been 

returned. First Student sent supplemental questions to Dr. Williams about Bockus’s 

possible course of recovery from a surgery that had not yet happened and got a response 

from him before the adjuster told Dr. Wright’s office there were no longer any “issues” 

with scheduling the surgery.32 There is more than enough evidence to support the 

Board’s finding that First Student’s actions delayed Bockus’s compensable surgery. 

31 AS 23.30.095(e). 

32 First Student also contends that Bockus’s attorney did not secure any 

benefit for him. Substantial evidence supports the Board’s finding that counsel obtained 

the surgery as a result of filing the claim. As the Board said, the written claim, by 

requiring an answer, forced First Student to authorize the surgery. See Harnish Group, 

Inc. v. Moore, 160 P.3d 146, 153-54 (Alaska 2007) (affirming attorney’s fees award 

when claim forced employer to decide whether to admit claim). 

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V. CONCLUSION 

We REVERSE the Commission’s decision and REMAND to the 

Commission with instructions to reinstate the Board’s award. 

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