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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rivera v. Wal-Mart Stores, Inc. (2/11/2011) sp-6537

Rivera v. Wal-Mart Stores, Inc. (2/11/2011) sp-6537, 247 P3d 957

        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,   e-mail 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

EVELYN Q. RIVERA,                               ) 
                                                )       Supreme Court No. S-13747 
                  Appellant,                    ) 
                                                )      Alaska Workers' Compensation 
        v.                                      )      Appeals Commission No. 09-005 
                                                ) 
WAL-MART STORES, INC.,                          )       O P I N I O N 
Employer, and AMERICAN HOME                     )
ASSURANCE CO., Insurer,                         )      No. 6537 - February 11, 2011
                                                ) 
                  Appellees.                    ) 
                                                ) 

                Appeal   from   the   Alaska   Workers'   Compensation   Appeals 
                Commission, Kristin Knudsen, Commission Chair. 

                Appearances:       Phillip J. Eide, Eide, Gingras & Pate, P.C., 
                Anchorage,   for   Appellant.     Michelle   M.   Meshke,   Russell, 
                Wagg, Gabbert & Budzinski, Anchorage, for Appellees. 

                Before:      Carpeneti,     Chief   Justice,   Fabe,   Winfree,     and 
                Stowers, Justices.   [Christen, Justice, not participating.] 

                FABE, Justice. 

I.      INTRODUCTION 

                Evelyn Rivera twice injured her back while working at Wal-Mart.                   After 

initially paying workers' compensation benefits to her, Wal-Mart filed a controversion 

because its physician thought that she had suffered only a temporary aggravation of a 

preexisting low back condition that should have healed by the date of controversion. 

----------------------- Page 2-----------------------

After a hearing, the Alaska Workers' Compensation Board denied Rivera's claim.  She 

appealed to the Alaska Workers' Compensation Appeals Commission, arguing that the 

Board failed to make findings on material issues and did not evaluate the lay testimony 

she presented.    The Commission affirmed the Board's decision.          Because we find no 

error in the Commission's decision, we affirm. 

II.    FACTS AND PROCEEDINGS 

               Evelyn Rivera worked at Wal-Mart in Anchorage beginning in 2002.  She 

had at least one episode of back pain that prompted her to seek medical attention before 

she began working at Wal-Mart, but she worked there without significant back pain for 

about three years.   Rivera's first position at Wal-Mart was a stocker on night shift.    She 

later transferred to a day-time position in the baby department, where she broke down 

pallets of merchandise, including cribs and baby furniture.  She again changed duties in 

late 2005, moving to a processing position, which entailed breaking down pallets of 

merchandise, checking prices, hanging clothes, and moving racks of clothing onto the 

floor.  She worked other positions, such as cashier, on an as-needed basis. 

               On September 3, 2005, Rivera was assigned to work at a store baby shower 

promotional event. She moved tables and chairs to set up for the event and also retrieved 

a crib.   She experienced some pain while setting up.  She had more pain as she bent over 

to cut a cake and asked a coworker to finish cutting the cake.  When she later bent over 

to serve a soda to a child, she felt pain in her back and right leg all the way down to her 

ankle; for a short period of time she was unable to stand up.  She took over-the-counter 

pain medication that night for the injury, but it did not relieve her pain.  She went to the 

Elmendorf emergency room on September 6. The doctor there gave her prescription pain 

medication and told her to see her family physician.  Rivera saw Dr. Carol Grobner later 

that   month;   Dr.  Grobner    referred  her  to  physical   therapy   and  prescribed   anti- 

inflammatory medications.      Rivera was initially restricted to light-duty work, but she 

                                              -2-                                        6537
 

----------------------- Page 3-----------------------

asked   to   go   back   to   regular-duty   work   in  October   2005.   On   October   30,   2005,   a 

physician's assistant released her to work without limitations. 

                Rivera had an episode of back pain in January 2006 that prompted her to 

go to the emergency room again; according to the medical record from her visit, she was 

"unsure" of what occurred to cause the pain.             In May 2006 Rivera reported a second 

work-related injury.   She was working in the garden department and performed a series 

of tasks that injured her back.  First, she and another employee moved racks of plants to 

the floor.  She then assisted a customer by getting a pet carrier from an overhead shelf. 

Finally, she was cashiering and had to scan a bag of rocks.  She felt extreme pain in her 

back and sought medical care for it. 

                Rivera was treated with a combination of medication and physical therapy. 

Imaging studies showed disc dessication; some annular tears; and facet hypertrophy, an 

arthritis-type condition, at many levels in her lower back.              In October 2006 Rivera's 

treating   doctors   referred   her   to   a   pain   clinic,   where   she   saw   Susan   Klimow,   M.D. 

Dr. Klimow tried treating her with facet blocks to relieve her pain, but Rivera did not 

respond to the injections. Dr. Klimow restricted Rivera's work activities to the sedentary 

level because of Rivera's symptoms and prescribed aquatic physical therapy because 

Rivera had not shown improvement with regular physical therapy.                     Dr. Klimow also 

performed an electrodiagnostic study of Rivera's right lumbosacral paraspinal muscles; 

the study results were normal.        Dr. Klimow referred Rivera to a neurosurgeon to see if 

Rivera might benefit from surgery because her pain was not responding to the different 

treatments Dr. Klimow had tried.  The neurosurgeon concluded that Rivera's back pain 

"seem[ed] most consistent with muscle strain."               He did not recommend surgery but 

thought she should continue with conservative treatment. 

                Rivera was fired from her job at Wal-Mart in January 2007 for taking too 

long on her breaks. Rivera said that she took longer breaks than permitted because of her 

                                                  -3-                                             6537
 

----------------------- Page 4-----------------------

back pain, but her account was disputed at the workers' compensation hearing.                 Wal- 

Mart continued to pay for medical care related to Rivera's back after she was fired, but 

it did not pay any type of disability benefits to her at that time. 

               Wal-Mart arranged an employer's independent medical evaluation (EIME) 

with    Marilyn     Yodlowski,     M.D.,    an  orthopedic     surgeon,    on   April   18,   2007. 

Dr.   Yodlowski's   report   concluded   that   Rivera   had   "[d]egenerative   disease   of   the 
lumbosacral      spine   including    degenerative    disc   disease   and   facet  arthropathy."1 

Dr. Yodlowski agreed that Rivera had suffered a work-related injury but thought that the 

injury was a strain or sprain that had resolved no later than three months from the date 

of the last injury. Dr. Yodlowski stated that the earlier injury was not a substantial factor 

in Rivera's ongoing pain complaints and that the later injury was not the substantial 
cause of her disability.2   Dr. Yodlowski also thought that both injuries had resolved by 

the time of the examination, that Rivera was medically stable for the conditions related 

to the work injuries, and that she needed no further medical treatment for the work- 

related injuries.    Dr. Klimow reviewed Dr. Yodlowski's report in February 2008 and 

agreed with its conclusions. 

               Based on Dr. Yodlowski's report, Wal-Mart filed a notice of controversion. 

In response, Rivera filed a workers' compensation claim for temporary total disability 

(TTD) benefits from the date of her second injury and for medical costs.                Wal-Mart 

        1      According to Dr. Klimow, facet arthropathy and facet hypertrophy are the 

same condition. 

        2      One of Rivera's injuries happened before November 7, 2005, the effective 

date of the amendments to the workers' compensation act that changed the causation 
standard from "a substantial factor" to "the substantial cause."  See Pietro v. UNOCAL 
Corp., 233 P.3d 604, 616 n.31 (Alaska 2010) (citing ch. 10,  9, FSSLA 2005 and 
describing change in legal standard of causation).          The second injury happened after 
November 7, 2005. 

                                                -4-                                           6537
 

----------------------- Page 5-----------------------

admitted short periods of TTD and some medical costs but denied the claims for other 

periods of TTD and for medical benefits after April 18, 2007. 

               After the controversion, Rivera resumed treatment at the Elmendorf clinic. 

She reported continuing back pain, and in May 2008 she was again placed in physical 
therapy.     Elmendorf   medical   providers   prescribed   a   TENS   unit   for   her,3  and   one 

physician predicted that Rivera would not have the permanent physical capacities to 

perform her previous work.       But that physician did not think that Rivera would have a 

permanent impairment from the work-related injury. 

               The Board held a hearing on Rivera's claim on June 25, 2008.                Rivera 

testified on her own behalf and also presented medical testimony from Dr. Grobner and 

lay testimony from her husband, Roy Johnson, as well as her former coworker, Brigitta 

Castillo.   Wal-Mart presented testimony from Tracy Wagoner, a personnel manager at 

Wal-Mart.   Deposition testimony of Dr. Klimow and Dr. Yodlowski was also presented. 

               Rivera described the work activities that caused her back pain and gave her 

version of the events that led to her being fired. She reported that she had been compliant 

with the treatments doctors prescribed but continued to have pain, although there had 

been a slight improvement in her condition. Her husband's testimony supported her own. 

He described in greater detail some of the restrictions the back pain caused in her daily 

activities.  Castillo testified that she sometimes had to help Rivera get up after sitting 

during breaks at Wal-Mart because of Rivera's back pain; she also testified that she had 

observed Rivera in pain at work.         Castillo indicated that she also had been fired from 

Wal-Mart for taking too long on her breaks. 

        3      TENS stands for transcutaneous electrical nerve stimulation.  DORLAND'S 

ILLUSTRATED MEDICAL DICTIONARY 1668 (28th ed. 1994).   A TENS unit is a treatment 
for pain. 

                                                -5-                                            6537 

----------------------- Page 6-----------------------

                Dr. Grobner testified that she was a family practice physician and was not 

certified in either orthopedics or rehabilitative medicine.            She testified about Rivera's 

medical treatment at Elmendorf.  She acknowledged that she personally had seen Rivera 

only a few times and that Rivera had also been treated by a physician's assistant and a 

physical   therapist.      Dr.   Grobner   stated   that   she   had   gone   into   private   practice   in 

May 2007 and had seen Rivera only once, the day before the hearing, since May 2007. 

The day before the hearing, Dr. Grobner diagnosed Rivera with somatic dysfunction, 

meaning that her spine was not aligned properly.  Dr. Grobner proposed treating it with 

osteopathic manipulation. Dr. Grobner also summarized the MRI findings and noted that 

any of the conditions shown on the MRI could cause lower back pain.                       Dr. Grobner 

described   the   restrictions   medical   providers   had   placed   on   Rivera's   activities   and 

indicated that those restrictions continued.  She thought Rivera's back problems could 

take about two years to resolve. Dr. Grobner agreed that Rivera's injuries were likely not 

the cause of the multi-level annular tears shown on the MRI and that her work-related 

injuries could be considered "strains." 

                Tracy Wagoner, a personnel manager at Wal-Mart, testified about Rivera's 

work history and the circumstances that led to her firing.  Wagoner testified that Rivera 

initially   worked   full   time   at   Wal-Mart   but   asked   to   work   only   part   time   in   2003. 

Wagoner said that Rivera was fired for taking too long on breaks; she denied that Rivera 

was fired for reasons related to her injuries.          Wagoner indicated that Rivera had been 

temporarily assigned to such jobs as "greeter" in order to accommodate her injury-related 

restrictions.    According to Wagoner, Wal-Mart only gave Rivera duties that complied 

with Rivera's medical restrictions.          Rivera's final job at Wal-Mart was a fitting room 

attendant. 

                Dr. Yodlowski testified consistently with her report. She agreed that Rivera 

was in pain but thought that Rivera's reactions during the physical exam she performed 

                                                   -6-                                             6537
 

----------------------- Page 7-----------------------

were not consistent with objective medical evidence. Specifically, Dr. Yodlowski noted 

that Rivera "reported sensation in a nonnerve root pattern" and had a pattern of weakness 

that did not correspond to a nerve root injury.       Dr. Yodlowski testified that the annular 

tears   on  Rivera's    MRI   were   related   to degenerative     changes   rather  than   trauma. 

According   to   Dr.   Yodlowski,   Rivera's   work-related   injuries   "would   have   caused   a 

transient temporary strain [or] sprain but not the underlying pathological conditions." 

Dr. Yodlowski thought that Rivera could do the work described in the job descriptions 

provided by Wal-Mart. She indicated that Rivera did not have "lifting restrictions due to 

her work-related injury" although she might "have a limited tolerance" for lifting because 

of the degenerative changes in her back.        Dr. Yodlowski also testified that Rivera "has 

every reason to have back pain in terms of the degenerative findings, and it's the kind of 

back pain that could potentially wax and wane" but that Rivera's "subjective responses 

regarding her numbness, her [diffuse] motor weakness, are not explained by any medical 

pathology or medical reason."       Dr. Yodlowski indicated that people with degenerative 

back changes can develop "the onset of symptoms with or without trauma" and that "it's 

just a matter of time when their symptoms come on."            Dr. Yodlowski testified that she 

had no reason to doubt Rivera's account of the onset of her back pain. 

                In   her   deposition,    Dr.    Klimow     reaffirmed     her   agreement     with 

Dr. Yodlowski's report and her opinion that Rivera was medically stable.  Dr. Klimow 

testified that Rivera had disc desiccation from L3 to S1 and had facet hypertrophy at 

several levels as well.      Dr. Klimow stated that she did not "relate desiccation of disc 

material or facet hypertrophy to one specific activity or even recurring activity"; instead, 

she considered them to be "routine degenerative changes." According to Dr. Klimow, the 

degenerative changes in Rivera's spine were "common findings" that did not produce 

pain in all people, but she also "had no reason to dispute that [Rivera] had lower back 

pain."   She observed that "[f]acet syndrome [could] lead to radiating discomfort into the 

                                                -7-                                           6537
 

----------------------- Page 8-----------------------

legs" and that disc protrusions as well as muscle strain could contribute to lower back 

pain.    Dr. Klimow said that annular tears usually caused "localized discomfort to the 

lower back" rather than radiating pain. Her initial impression was that Rivera's pain was 

related   to   her   facet   hypertrophy,   but   Rivera   got   no   relief   from   treatment   for   this 

condition.     Dr. Klimow testified that she limited Rivera's activities to sedentary based 

on her symptoms and that she had not, during the course of her treatment of Rivera, 

changed that restriction. Dr. Klimow stated that she planned to move Rivera to light duty 

at about the time her treatment of Rivera ended. 

                In December 2008 the Board denied Rivera's workers' compensation claim, 

finding that she had not proven by a preponderance of the evidence that she suffered 

more   than   temporary   aggravations   of   her   back   condition   in   2005   and   2006.     After 
summarizing the testimony, the Board applied its three-step analysis.4   It did not use a 

different legal standard to evaluate the second injury, even though it acknowledged that 

the workers' compensation statute had changed between the two injuries.  It determined 

that   Rivera   had   attached   the   presumption   of   compensability   through   Dr.   Grobner's 

testimony.     It then decided that Wal-Mart had rebutted the presumption through the 

testimony of Dr. Klimow and Dr. Yodlowski.  Finally, it weighed the evidence, giving 

the most weight to Dr. Klimow's opinion that Rivera's "pre-existing degenerative disc 

disease [was] the true underlying cause of [Rivera's] current need for treatment." It gave 

less weight to Dr. Grobner's opinion, which it characterized as "inconclusive, and based 

on 'possibilities' that [Rivera's] low back condition [was] related to her work strains." 

It   concluded   that   Rivera   "suffered   temporary   aggravations   of   a   long   pre-existing 

condition in 2005 and 2006" and "any aggravation to her low back . . . condition would 

have resolved shortly after each minor strain [or] sprain." 

        4       See Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788 (Alaska 2007) 

(summarizing the three-step analysis). 

                                                   -8-                                                6537 

----------------------- Page 9-----------------------

                Rivera     appealed     to  the   Alaska     Workers'     Compensation        Appeals 

Commission, arguing that the Board failed to make adequate findings about the lay 

testimony, failed to give "adequate weight" to Dr. Grobner's testimony, and ignored 

contradictions in Dr. Klimow's and Dr. Yodlowski's testimony. 

                The Commission affirmed the Board's decision. The Commission decided 

that   the   Board   did   not   need   to   make   findings   about   the   lay   testimony   because   the 

testimony was not material to Rivera's case.           It also concluded that the Board did not 

improperly weigh Dr. Grobner's testimony and distinguished Rivera's case from Smith 
v. University of Alaska, Fairbanks5 on the basis that "the board did not require Rivera to 

produce an opinion in a particular probability formula to have sufficient evidence to 

support an award."   The Commission found no material contradictions in the opinion of 

Dr. Yodlowski or Dr. Klimow and wrote that "[t]he board's decision to give greater 

weight   to   some   medical   evidence   over   competing   evidence   is   conclusive."     Rivera 

appeals. 

III.    STANDARD OF REVIEW 

                In    an   appeal    from    the  Alaska     Workers'     Compensation        Appeals 
Commission, we review the Commission's decision.6                  We independently review the 

Commission's legal conclusions about whether substantial evidence supports the Board's 

factual findings, which requires us to independently review the record and the Board's 
factual findings.7    "Substantial evidence to support factual findings is 'such relevant 

        5       Id. 

        6       Kelly v. State, Dep't of Corrections, 218 P.3d 291, 297 (Alaska 2009) 

(citing Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska 
2008)). 

        7       Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009). 

                                                  -9-                                           6537
 

----------------------- Page 10-----------------------

evidence as a reasonable mind might accept as adequate to support a conclusion.' "8 

Whether the Board made adequate findings is a question of law that we review de novo.9 

The Board is required to make findings only about questions that are both contested and 
material.10 

IV.	    DISCUSSION 

        A.	     The   Commission   Correctly   Determined   That   The   Board   Did   Not 
                Improperly Evaluate The Medical Testimony. 

                Rivera   raises   two   issues   about   the   Board's   treatment   of   the   medical 

evidence.      She   contends   that   the   Board   applied   an   incorrect   legal   standard   to   Dr. 

Grobner's testimony because it said that the testimony was based on "possibilities."  She 

also argues that the Board improperly relied on Dr. Yodlowski's opinion, which she 

characterizes as legally irrelevant or immaterial evidence. 

                Rivera asks us to find that she is eligible for temporary total disability and 

medical     benefits,   asserting   that  the  Board    improperly     relied  on   Dr.  Yodlowski's 

testimony in rejecting her claim.        Rivera focuses on Dr. Yodlowski's opinion that her 

work injury would not have worsened Rivera's underlying degenerative condition even 

though   the   injury   "may   have   resulted   in   a   temporary   exacerbation   of   symptoms." 

According to Rivera, the Board's acceptance of Dr. Yodlowski's opinion ran afoul of our 

opinion in DeYonge v. NANA/Marriott, where we held that a work-related aggravation 

of symptoms can be compensable even when there has been no permanent change in an 

        8       Id. (quoting DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000)). 

        9       Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006) (citing Bolieu v. 

Our Lady of Compassion Care Ctr., 983 P.2d 1270, 1276 (Alaska 1999)). 

        10      Bolieu, 983 P.2d at 1275 (citingStephens v. ITT/Felec Servs., 915 P.2d 620, 

627 (Alaska 1996)). 

                                                 -10-	                                           6537
 

----------------------- Page 11-----------------------

employee's underlying condition.11  Wal-Mart maintains that the Board properly applied 

the rule in DeYonge and merely weighed the evidence, as it was required to do.                      The 

Board acknowledged our holding in DeYonge, but found that "any aggravation of the 

employee's symptoms was temporary and transient" because Rivera "missed little time 
from work associated with her injuries."12 

                The Board properly applied DeYonge to Rivera's case.                   In DeYonge, a 

worker was unable to continue performing her job duties because of ongoing arthritis 
pain.13  All of the doctors who examined the worker, including an orthopedic specialist 

the worker saw at her employer's request, agreed that her job duties would cause an 

increase   in   arthritic   symptoms,   even   if   those   duties   did   not   worsen   her   underlying 
condition.14  Because the worker sought temporary total disability payments, we held that 

the Board impermissibly relied on opinions that the worker's duties did not permanently 
worsen her arthritic condition to rebut the presumption of compensability.15 

                Unlike the employee in DeYonge, Rivera was able to return to work shortly 

after sustaining her injuries.      Substantial evidence in the record supports the Board's 

finding that she "missed little time from work associated with her injuries."                  No one 

contested that Rivera worked part-time prior to the 2005 injury, that she missed at most 

two days of work after this injury, or that she was released to work without limitations 

        11      1 P.3d at 96. 

        12      The     Commission      did   not  discuss  DeYonge       in   its  decision.    Rivera 

mentioned DeYonge in her arguments before the Commission, but she did not rely on 
DeYonge in her points on appeal to the Commission or in her opening brief. 

        13      1 P.3d at 92. 

        14      Id. at 92-93. 

        15      Id. at 97. 

                                                  -11-                                            6537
 

----------------------- Page 12-----------------------

by   November   1,   2005.      At   the   Board   hearing,   Rivera   agreed   that   by   the   end   of 

October 2005, she was "feeling fine" and "having no problems." 

                After the May 2006 injury, Rivera initially missed less than one week of 
work and returned to lighter duty work.16  Rivera continued to work at Wal-Mart until 

she was fired in January 2007.         Her doctors never stated that she was totally disabled 

from   work;   they   released   her   to   work   with   restrictions   and   said   only   that   she   was 

"partially    disabled    to  work."      Rivera    testified  that  during    December      2006    and 

January 2007, she did not tell her doctors that she was unable to work and did not ask 

them to release her from work.          Because disability compensation is based on loss of 
earning capacity due to medical impairment and not on impairment alone,17 Rivera's 

continued ability to work at Wal-Mart after sustaining her injuries showed that she was 
not totally disabled from work.18 

                There was also conflicting testimony about Rivera's ability to perform her 

regular work at Wal-Mart. Dr. Yodlowski said that Rivera might have lifting restrictions 

of no more than 35 pounds because of her degenerative conditions and could otherwise 

        16      Wal-Mart paid Rivera TTD for approximately two weeks in October 2006 

because of her medical treatment. 

        17      Vetter v. Alaska Workmen's Comp. Bd., 524 P.2d 264, 266 (Alaska 1974). 

        18      At   oral   argument   before   us,   Wal-Mart   contended   that  DeYonge   only 

permitted attaching the presumption of compensability because of increased symptoms 
and that any analysis based onDeYonge would be different because of the 2005 workers' 
compensation amendments. InDeYonge, we held that an increase in symptoms could be 
the basis of an award of disability benefits, not just a means to attach the presumption of 
compensability.  1 P.3d at 98.   Wal-Mart did not ask either the Commission or this court 
to consider whether Rivera's second injury should be analyzed differently from her first 
injury, so we accept the Board's use of its three-step analysis in this case.  We observe 
nonetheless that the 2005 amendments did not prohibit an award of benefits based on 
increased symptoms.  See ch. 10,  9, FSSLA 2005. 

                                                  -12-                                            6537
 

----------------------- Page 13-----------------------

perform her previous work at Wal-Mart.19              Dr. Klimow testified that she had restricted 

Rivera to sedentary work because of her symptoms but also indicated that she would 

have   recommended   that   Rivera   move   to  light   duty   after   completion   of   a   two-week 
aquatic   physical   therapy  program.20         Dr.   Grobner   testified   that   if   Rivera   "were   to 

repeatedly lift over 15 pounds, . . . she would be at risk for aggravating her back."  The 

Board   gave   more   weight   to   Dr.   Klimow's   and   Dr.   Yodlowski's   opinions   than   to 

Dr. Grobner's.   The Board has the authority to weigh the medical evidence, and it chose 
to give the most weight to Dr. Klimow's opinion.21 

                 The fact that Rivera could and did work at Wal-Mart following her injuries 
distinguishes   her   case   from Leigh   v.   Seekins   Ford,22     which   she   cites   to   support   her 

argument.     In Leigh, we vacated a Board decision denying disability benefits when the 

Board failed to make findings about whether the claimant was unable to work because 
of chronic pain and the medication used to control it.23  We noted in Leigh that the Board 

should make findings that address whether pain makes a claimant disabled when "the 
claimant introduces evidence that chronic pain prevents him or her from working."24                      In 

Rivera's case, everyone agreed that she experienced pain and that it restricted her work 

        19       Rivera's job as a stocker required lifting greater than 50 pounds. 

        20       Rivera's processing position was light-duty work. 

        21       AS   23.30.122   ("A   finding   by   the   board   concerning   the   weight   to   be 

accorded a witness's testimony, including medical testimony and reports, is conclusive 
. . . .").  See also Bouse v. Fireman's Fund Ins. Co., 932 P.2d 222, 240 (Alaska 1997) 
(noting that the Board could choose the views of some doctors over others). 

        22       136 P.3d 214 (Alaska 2006). 

        23      Id. at 218-19, 222. 

        24      Id. at 218. 

                                                   -13-                                              6537
 

----------------------- Page 14-----------------------

activities.   But the evidence showed that she worked her regular hours at Wal-Mart, in 

positions with lighter duties accommodating her injuries, after her on-the-job injuries. 

Rivera also testified that she did not tell her doctors that she was unable to perform the 

lighter duty work and did not ask them to release her from work. 

                The disputed medical question was the cause of Rivera's chronic pain, not 

its duration.    Dr. Klimow and Dr. Yodlowski identified her degenerative conditions as 

the cause of her chronic pain, and the Board explicitly stated that it gave the most weight 

to Dr. Klimow's opinion, which was "joined" by Dr. Yodlowski's. The Board's findings 
about the weight given to medical testimony are conclusive.25               We find no error in the 

Board's reliance on Dr. Klimow's and Dr. Yodlowski's opinions. 

                Rivera also contends that the Board applied an incorrect legal standard to 

Dr.   Grobner's   testimony.     Wal-Mart   responds   that   the   Board   properly   weighed   the 

medical evidence.  The Board gave less weight to Dr. Grobner's testimony, finding her 

opinions "inconclusive" and "based on 'possibilities' that [Rivera's] low back condition 

[was] related to her work strains."        The Commission concluded that the Board had not 

required     Rivera   to  "produce    an   opinion    in  a  particular  probability    formula"    and 

permissibly gave less weight to Dr. Grobner's testimony. 
                Rivera relies on our opinion in Smith v. University of Alaska, Fairbanks26 

to argue that the Board improperly "diminish[ed] the importance of [Dr. Grobner's] 

testimony   because   she   expressed   her   opinion   in   terms   of   possibilities   rather   than 

probabilities." But in Smith the Board made no explicit findings about the weight it gave 

        25      AS 23.30.122. 

        26      172 P.3d 782 (Alaska 2007). 

                                                 -14-                                               6537 

----------------------- Page 15-----------------------

to the medical testimony.27       We said that a probability formulation was not necessary to 

prove a claim but noted that "[t]he absence of a definitive statement from a physician that 

the industrial accident caused Smith's need for surgery, on a more-probable-than-not 
basis, may be an important factor for the board in making its ultimate decision."28   We 

remanded the case to the Board for further findings so that it could "clarify the weight 
it accorded the lack of a definitive statement."29  Here, the Board explicitly weighed the 

medical testimony and gave less weight to Dr. Grobner's opinions. 

                We   agree   with   the   Commission   that   the   Board   was   permitted   to   treat 

Dr. Grobner's opinion as it did.          Dr. Grobner did not testify that Rivera's on-the-job 

injuries   caused   her   chronic   pain.    She   stated:  "In   [Rivera's]   case,   again,   it   is   very 

difficult to determine specifically because most low back pain is multi-factorial, meaning 

there's more than one cause and usually it's a combination of causes that can cause this." 

Although Dr. Grobner diagnosed Rivera with somatic dysfunction, she did not say that 

the work-related injuries caused or aggravated this condition.                  Because the Board is 
authorized to weigh the medical evidence,30 it could give less weight to Dr. Grobner's 

testimony. 

        B.	     The Commission Correctly Concluded That The Board Did Not Need 
                To Make Findings About The Lay Testimony. 

                Rivera argues that the Board was required to evaluate and make findings 

about the lay testimony she presented. She asserts that the lay testimony undermined the 

opinions of Dr. Klimow and Dr. Yodlowski because the doctors both testified that her 

        27      Id. at 787. 

        28      Id. at 791-92. 

        29      Id. at 792. 

        30      AS 23.30.122. 

                                                  -15-	                                            6537
 

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work-related   injuries   only   caused   temporary        aggravations   of   her   preexisting   back 

condition while the lay witnesses testified that she had continuous pain after her two job- 

related    injuries,   especially    the   May   2006     injury.    Wal-Mart       responds     that  the 

Commission correctly decided that the lay testimony was not material to any contested 

issue at the hearing.      Wal-Mart maintains that the doctors did not question that Rivera 

continued   to   have   pain   but   that   they   provided   a   different   explanation   for   Rivera's 

ongoing pain complaints, namely her degenerative back condition. 

                 The Commission decided that because Rivera did not produce evidence that 

her   injuries   prevented   her   from   working   at   her   last   position   at   Wal-Mart,   the   lay 

testimony concerning her physical limitations was not material to her case.                       Rivera 

asserts that a remand to the Board is still necessary so that the Board "can consider the 

effects   of   the   lay   testimony   [insofar]   as   it   supports   or   detracts   from   the   doctor's 

conclusions and make an appropriate finding." She contends that the Commission should 

not make a determination about the materiality of the evidence when the Board has not 

explicitly done so. 

                 Because the materiality of an issue is determined in relation to substantive 
law,31   and   because   the   Commission   reviews   questions   of   law   using   its   independent 

judgment,32 the Commission could properly decide whether an issue was material even 

though the Board did not make an explicit finding regarding its materiality.                  We agree 

with the Commission that the lay testimony was not material to a contested issue in this 

case. 

                 The contested issue here was not whether Rivera had continuing back pain; 

the contested issue was the cause of the pain. All of the physicians agreed that (1) Rivera 

        31       See 1 KENNETH S.BROUN ET AL.,MCCORMICK ON EVIDENCE  185 (6th ed. 

2006). 

        32       AS 23.30.128(b). 

                                                   -16-                                               6537 

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experienced continuing back pain; (2) her degenerative conditions could cause back pain; 

and (3) her work-related injuries were sprain or strain injuries.              Dr. Klimow and Dr. 
Yodlowski agreed that Rivera was medically stable with respect to her work injuries.33 

The lay testimony described her pain and the limits on her activities.  But these issues 

were   largely   uncontested,  and   Rivera   does   not   explain   how   the   lay   testimony   was 
relevant to the issue of causation.34 

                Dr. Yodlowski, whose opinion the Board accepted, testified that Rivera's 

degenerative conditions could cause back pain that waxed and waned. She also said that 

Rivera's degenerative conditions could become symptomatic with or without trauma. 

The physical therapy chart notes recorded that Rivera experienced increased back pain 

from cooking and picking up after her children. 

        33      Rivera's case differs from Wollaston v. Schroeder Cutting, Inc., where we 

held that the employer had not rebutted the presumption of compensability through a 
medical opinion, given shortly after the injury happened, that predicted recovery from 
the injury in about ten days.       42 P.3d 1065, 1066, 1068 (Alaska 2002).            The prediction 
proved to be incorrect, and we described the doctor's opinion as "predictive based on a 
fixed past perspective," noting that the doctor's "testimony never progressed . . . to a 
current expression of opinion as to Wollaston's actual condition or its causes."  Id.  The 
same cannot be said of Dr. Yodlowski's or Dr. Klimow's opinion.                     Dr. Klimow saw 
Rivera   a   number   of   times   after   the   second   work-related   injury,   and   Dr.   Yodlowski 
examined   Rivera   almost   a   year   after   the   second   injury   occurred.    They   expressed 
opinions as to the causes of Rivera's pain complaints.  Both doctors acknowledged that 
Rivera had pain but attributed her chronic pain to her degenerative conditions rather than 
her work-related injuries. 

        34      Rivera's argument about causation - that her work injuries were the cause 

of her pain because she had continuing pain after the injuries - resembles thepost hoc 
ergo propter hoc logical fallacy that we have rejected in other workers' compensation 
cases.   See Lindhag v. State, Dep't of Natural Res., 123 P.3d 948, 954 (Alaska 2005) 
(rejecting the argument that a worker's asthma was caused by workplace exposure to 
chemicals when the worker was diagnosed with asthma after the exposure). 

                                                  -17-                                            6537
 

----------------------- Page 18-----------------------

                Although Rivera contends that her case is similar to Smith v. University of 
Alaska,   Fairbanks,35     it   differs   from   that   case   in   significant   ways. Smith   involved 

disputed issues of causation related to the need for back surgery.36               There, a worker 

injured his back at work in early July but did not see a doctor until almost four weeks 
later, after he experienced a sharp increase in pain when he got into his truck.37                The 

worker's treating physician and the employer's physician disagreed sharply about the 

cause of the back pain:        The employer's doctor thought that scar tissue from earlier 

surgeries was the cause of the pain, while the treating physician gave the opinion that the 
worker had a herniated disc.38       The Board did not specify which doctor it relied on in 

making its decision, using testimony from both doctors to support its findings.39  Because 

the doctors testified about specific symptoms related to their diagnoses, and because lay 

witnesses could testify about whether they observed these symptoms in the weeks after 

the work-related injury, the lay testimony there was material to the doctors' opinions 
about causation.40  We noted in Smith that the lay testimony might "have more probative 

value than in other cases with uncertain medical causation" because no doctor examined 
the worker in the weeks between the work-related injury and the back surgery.41 

        35      172 P.3d 782 (Alaska 2007).
 

        36      Id. at 785.
 

        37      Id. at 784-85.
 

        38      Id. at 785-86. 

        39      Id. at 787, 791. 

        40      Id. at 790-91. 

        41      Id. at 790. 

                                                 -18-                                           6537
 

----------------------- Page 19-----------------------

               Here, in contrast, Rivera consulted with medical providers shortly after both 

work-related   injuries   and   saw   Dr.   Klimow   approximately   once   a   month   between 

October 2006 and May 2007.          In addition, Rivera attended physical therapy sessions 

during much of the time she consulted with Dr. Klimow. Dr. Klimow's records indicated 

that she and Rivera discussed Rivera's work duties and the restrictions on her activities. 

In Rivera's case, the lay testimony corroborated facts that the doctors accepted - that 

Rivera suffered back pain that limited her activities.  The lay testimony was not material 
to contested issues here, so the Board was not required to make findings about it.42 

V.     CONCLUSION 

               For the foregoing reasons, we AFFIRM the Commission's decision. 

       42      See Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d 1270, 1275 

(Alaska 1999) (citing Stephens v. ITT/Felec Servs., 915 P.2d 620, 627 (Alaska 1996)) 
(holding that "[t]he Board need only make findings with respect to issues that are both 
material and contested"). 

                                              -19-                                          6537 
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