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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sosa de Rosario v. Chenega Lodging (3/22/2013) sp-6763
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 email@example.com. THE SUPREME COURT OF THE STATE OF ALASKA ANA F. SOSA DE ROSARIO, ) ) Supreme Court No. S-14661 Appellant, ) ) Alaska Workersâ Compensation v. ) Appeals Commission No. 11-003 ) CHENEGA LODGING, d/b/a HOTEL ) O P I N I O N CLARION, and NOVAPRO RISK ) SOLUTIONS, ) No. 6763 â March 22, 2013 ) Appellees. ) ) Appeal from the Alaska Workersâ Compensation Appeals Commission, Laurence Keyes, Commission Chair. Appearances: Ana F. Sosa de Rosario, pro se, Anchorage, Appellant. Colby J. Smith and Aaron M. Sandone, Griffin & Smith, Anchorage, for Appellees. Before: Fabe, Chief Justice, Carpeneti, Winfree, Stowers, and Maassen, Justices. WINFREE, Justice. I. INTRODUCTION A hotel worker fell and injured her back while cleaning a room. Her employer initially paid benefits, but it filed a controversion of benefits after its doctor doubted the accidentâs occurrence and said any work injury was not the substantial cause of the workerâs continuing need for medical care. The Alaska Workersâ Compensation ----------------------- Page 2----------------------- Board decided that the fall was the substantial cause of the workerâs disability, finding the workerâs testimony about the injury credible and the employerâs doctorâs testimony not credible. Based on the testimony of the worker and her treating physician, as well as an MRI showing a herniated disc, the Board decided that the injury was compensable. The Alaska Workersâ Compensation Appeals Commission reversed the Boardâs decision because, in the Commissionâs view, substantial evidence did not support the decision. Because the Commission incorrectly decided the substantial evidence question, we reverse the Commissionâs decision. II. FACTS AND PROCEEDINGS Ana Sosa de Rosario is a native of the Dominican Republic who came to Alaska in 1999. Beginning in February 2000, Sosa de Rosario worked as a housekeeper for Chenega Lodging. On June 28, 2007, she fell while making a bed and subsequently had low back pain. Sosa de Rosario told her supervisor she was in pain, and the supervisor advised her to take over-the-counter medication; when that did not control the pain, Sosa de Rosario went to the emergency room. The emergency room record indicates Sosa de Rosario complained of âr[ight] hip pain, no injuryâ and was âin pain.â She received a morphine injection and a prescription for pain medication; her diagnosis was low back pain and possible sciatica. The emergency room doctor noted that Sosa de Rosario could return to work on July 2 if she was âfeeling better.â Sosa de Rosario received treatment at Providence Family Practice Center several times that summer. On July 6 she consulted with Dr. John Schwartz, who had treated her in the past, and Dr. Bret Thompson, a resident, for leg pain; they excused her from work for a week. When Sosa de Rosario returned to the clinic on July 12 Dr. Thompson said she could resume modified work on July 23 but restricted her to lifting 15 pounds. On August 8 Sosa de Rosario again saw Dr. Thompson; he authorized -2- 6763 ----------------------- Page 3----------------------- her return to modified work that day, with restrictions that she not lift more than 15 pounds and that she not bend or twist more than six times an hour. Sosa de Rosario then began working in the hotelâs laundry. Chenega Lodging paid Sosa de Rosario three weeks of temporary total disability (TTD); the compensation report filed on July 31 said Sosa de Rosario had been released to regular work. On August 21, Sosa de Rosario underwent an MRI showing she had a herniated disc at L5-S1, and a physician at Providence Family Practice Center referred her to an orthopedic surgeon. Sosa de Rosario asked to be referred to physical therapy first. She attended physical therapy for about two months, noting some improvement but telling her doctor that she still had pain. On November 11, Dr. Schwartz released Sosa de Rosario for sedentary work, with restrictions on walking, sitting, and standing. According to Dr. Schwartzâs chart notes from November 28, Sosa de Rosario was âafraid that if she return[ed] to full duty her symptoms [would] regress back to the more severe state of a few months ago.â Dr. Schwartz next referred Sosa de Rosario to Dr. James Eule for treatment. Sosa de Rosario saw Jane Sonnenburg, a physicianâs assistant in Dr. Euleâs office. Based on Sonnenburgâs examination and the MRI, Dr. Eule scheduled Sosa de Rosario for an epidural injection on December 18. According to Sonnenburg, Sosa de Rosario âhad some improvement with the epidural.â Sonnenburg increased Sosa de Rosarioâs lifting limit to 20-25 pounds frequently, said that Sosa de Rosario had âmet her maximal medical benefit,â and noted that she would have âsome element of chronicity.â Chenega Lodging arranged for an employerâs independent medical evaluation (EIME) in December 2007 with Dr. Charles Brooks, an orthopedist. Dr. Brooks was skeptical of Sosa de Rosarioâs account of the injury and concluded that her disc problems were due to age-related degenerative changes. Dr. Brooks focused on inconsistencies between medical records and Sosa de Rosarioâs account of the accident, -3- 6763 ----------------------- Page 4----------------------- noting: âGiven the inconsistency between her recent histories and that reported in the emergency room (ER) at Providence on June 28, 2007, I would not conclude, on a more- probable-than-not basis or reasonable degree of medical probability, there was an occupational back injury on that date.â Dr. Brooksâs opinion with respect to causation was that Sosa de Rosarioâs âlow back pain and right sciatica . . . may have been precipitated or worsened by her occupational duties, avocational activities, or an unreported injury,â but because he did not âbelieve there was an occupational back injury on June 28, 2007,â he could not âconclude the claimantâs work was the substantial cause of her current low back pain and right sciatica.â In late December, Chenega Lodging sent Dr. Eule and Sonnenburg a copy of the EIME, asking if they agreed with it. Dr. Eule did not agree with the report, although he could ânot make an accurate determination as to work injuryâ because he had not yet seen Sosa de Rosario. Sonnenburg concurred with the report. Sonnenburgâs chart notes indicated she âtend[ed] to agree with the medical examinerâs reportâ and that Sosa de Rosario âtend[ed] to have some inconsistency to her complaints.â On January 9, 2008, Sosa de Rosario saw Dr. Schwartz again; he ârecommended that she continue with light duty work indefinitely.â Chenega Lodging controverted all benefits on January 31, based on Dr. Brooksâs report and on Sonnenburgâs having released Sosa de Rosario to full-time work with a 20-25 pound lifting limit. Chenega Lodging terminated Sosa de Rosarioâs employment on March 7. On April 22 Dr. Schwartz saw Sosa de Rosario and wrote Chenega Lodging a letter stating Sosa de Rosario was ânot able to work at this time and . . . would best be served by surgery.â Dr. Schwartz related the onset of her âsevere painâ to a June 28, 2007 âfall she suffered at work.â In July 2008 an attorney entered an appearance and filed a workersâ compensation claim on Sosa de Rosarioâs behalf seeking: TTD from April 22, 2008, and -4- 6763 ----------------------- Page 5----------------------- continuing; temporary partial disability (TPD) from the injury date to April 21, 2008; permanent total disability (PTD) from April 22, 2008, and continuing; medical costs; interest; and attorneyâs fees and costs. Chenega Lodging denied all claims. The parties stipulated to a second independent medical evaluation (SIME) by an orthopedist. The Board arranged an SIME with Dr. John Lipon, who evaluated Sosa de Rosario on July 18, 2009. Also present at the evaluation were a translator and Sosa de Rosarioâs daughter-in-law, Suhail Echavarria. Dr. Lipon examined Sosa de Rosario and reviewed her medical records. He diagnosed degenerative disc disease, facet hypertrophy at L5-S1, and disc bulges at two other levels in her lumbar region, all caused by âa combination of genetics, aging, and progressive degenerative changes.â He also diagnosed â[r]ight posterolateral disc extrusion at L5-S1, probably due to degenerative disc disease and possibly to occupational and/or non-work-related activities, which could include a prior lower back injury which has not been reported.â He noted âinconsistencies in Ms. Sosa De Rosarioâs history of the cause and onset of her lower back and right leg painâ; he could not âstate on a more probable than not basis that this condition [was] related to the industrial claim date of June 28, 2007, or her occupational duties as a housekeeper.â Dr. Lipon thought Sosa de Rosario was magnifying her symptoms and stated that there was âno consistent measurable abnormal objective evidence of radiculopathyâ in his examination. In Dr. Liponâs opinion there was no injury on June 28, 2007, and because he determined there was no injury he did not give an opinion about medical stability, permanent impairment, or other issues. At his deposition, Dr. Lipon generally testified consistently with his report. He agreed that Sosa de Rosario had a herniated disc at L5-S1 with an impingement of the nerve root, but he did not think her condition was ârelated to her industrial claim of [June 28, 2007].â He testified that degenerative disc disease can cause a disc extrusion -5- 6763 ----------------------- Page 6----------------------- and that Sosa de Rosarioâs herniated disc was âmost probablyâ caused by degenerative disc disease, but he acknowledged that she could have âhad some type of injury that was never documented.â He agreed with Dr. Brooksâs report and ârefer[red] the accident reconstruction partâ to Dr. Brooks.1 Dr. Lipon noted âmagnification of pain behaviorâ in his examination of Sosa de Rosario and inconsistencies between his examination results and other doctorsâ examinations, but because he thought she might be afraid of getting hurt he could not say that she was purposely affecting the results. Dr. Lipon thought these inconsistencies were more important for determining whether Sosa de Rosario had âa significant nerve root problem that requires any treatment.â Near the end of the deposition, Chenega Lodging provided its job description for the housekeeping position Sosa de Rosario had held; Dr. Lipon thought Sosa de Rosario could perform sedentary work and could return to the housekeeping position.2 The job description Dr. Lipon was provided stated that â[t]he employee must occasionally lift and/or move 1 According to Dr. Lipon, Dr. Brooks âhad training in accident reconstruction.â Dr. Lipon acknowledged that there was nothing in the record to indicate this was the case, but he said he had âpersonal informationâ about it because he had known Dr. Brooks for 25 years and saw him at professional meetings. 2 Chenega Lodging did not ask Dr. Lipon to define or describe sedentary work, nor did it provide a definition. Social Security disability regulations provide, âSedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.â 20 C.F.R. Â§ 404.1567(a) (2012). This definition is similar to the one Dr. Schwartz used to evaluate Sosa de Rosario. -6- 6763 ----------------------- Page 7----------------------- up to 25 pounds.â3 Dr. Lipon also thought Sosa de Rosario could work at a dry cleaners, although he was not given a job description for that position. The Board held a hearing on June 9, 2010, with Sosa de Rosario representing herself.4 Chenega Lodging brought an interpreter; Sosa de Rosario brought her sonâs girlfriend to translate for her. The Board chair relied on translation from Chenega Lodgingâs interpreter. Sosa de Rosario was the only witness who testified at the hearing because translation problems arose and Sosa de Rosario asked for a continuance. The Board continued the hearing, over Chenega Lodgingâs objection, to give Sosa de Rosario an opportunity to find another attorney. The hearing resumed on September 30, 2010. Sosa de Rosario and Dr. Schwartz testified. Dr. Schwartz testified that he was an internist practicing in Anchorage for 30 years, and even though he was not an orthopedic surgeon, he had âseen a lot of back pain patients and dis[c] problem patients.â Dr. Schwartz testified that since the accident Sosa de Rosario had had weakness and pain in her right leg. In his opinion, Sosa de Rosarioâs pain was probably not caused by degenerative changes because it âcame on quickly.â He testified that in his experience, back pain caused by 3 Occasionally lifting 25 pounds exceeded the light duty classification as defined on the form Dr. Schwartz used. Unlike Dr. Lipon, Dr. Brooks did not think Sosa de Rosario should resume work as a housekeeper. The physical requirements of Chenega Lodgingâs housekeeper job description differed from the description Chenega Lodgingâs vocational expert provided, which appears to be based on the United States Department of Laborâs job descriptions. See U.S. Dept. of Labor, Dictionary of Occupational Titles (4th ed. Rev. 1991), available at http://www.oalj.dol.gov /PUBLIC/DOT/REFERENCES/DOT03A.HTM. The description the vocational expert provided classified housekeeper as âheavy,â requiring lifting of up to 100 pounds, while Chenega Lodgingâs job description required moving or lifting only 25 pounds occasionally. 4 Sosa de Rosarioâs attorney withdrew in June 2010, with her consent. -7- 6763 ----------------------- Page 8----------------------- degenerative changes had a âtotally different presentation.â He further testified that he referred Sosa de Rosario to an orthopedic specialist for treatment, not for diagnosis. He thought Sosa de Rosarioâs diagnosis was âpretty clear, she had an acute dis[c] herniation that was symptomatic.â The Board decided Sosa de Rosario had suffered a compensable back injury on June 28, 2007, and she was entitled to further medical care. In making its decision, the Board found that Sosa de Rosario testified credibly about the work-related injury. The Board applied its three-step presumption analysis to the claim.5 The Board decided the presumption of compensability had attached through Sosa de Rosarioâs and Dr. Schwartzâs testimony; it further found that Chenega Lodging had rebutted the presumption with Dr. Brooksâs and Dr. Liponâs testimony. In concluding that Sosa de Rosario had proved her case by a preponderance of the evidence, the Board relied on the following facts: (1) the absence of treatment for low back pain before June 2007; (2) a credible or convincing mechanism of injury; (3) Dr. Schwartzâs testimony; and (4) the MRI showing a herniated disc. The Board expressly found Dr. Brooks not credible and 5 As developed before the 2005 amendments to the Alaska Workersâ Compensation Act, the three-step presumption analysis first required an injured worker to produce some evidence that the injury and disability were work related. If the worker did so, the employer was then required to produce substantial evidence that either (1) provided an alternative explanation which would exclude work-related factors as a substantial cause of the disability, or (2) directly eliminated any reasonable possibility that employment was a factor in causing the disability. If the employer met this requirement, the burden shifted back to the employee to prove all elements of the employeeâs claim by a preponderance of the evidence. Bradbury v. Chugach Elec. Assân , 71 P.3d 901, 905-06 (Alaska 2003). The Commission mentioned the 2005 amendments in its discussion of the presumption analysis in this case. âWhether or how the 2005 amendments to the Act modified the existing three-step presumption analysis is an open question.â Runstrom v. Alaska Native Med. Ctr. , 280 P.3d 567, 574 n.16 (Alaska 2012). -8- 6763 ----------------------- Page 9----------------------- expressly discounted Dr. Liponâs opinions because of his deference to Dr. Brooks; it considered Dr. Schwartz more credible, in part because he spoke Spanish and was able to communicate directly with Sosa de Rosario. The Board also noted that neither Dr. Brooks nor Dr. Lipon could rule out the possibility that work activities had caused the herniated disc. The Board ascribed the inconsistent medical records to language difficulties and âtranslators of varying degrees of competency.â The Board ordered Chenega Lodging to pay for an evaluation with a spine surgeon, preferably Spanish speaking, and deferred a permanent partial impairment (PPI) order until Sosa de Rosario had been evaluated and treated. The Board also awarded TTD âfrom April 22, 2008 to the date of medical stabilityâ and reserved jurisdiction over the PTD claim. Chenega Lodging appealed to the Commission. The Commission concluded the Boardâs findings were not supported by substantial evidence in light of the whole record. The Commission focused on the Boardâs concern about communication difficulties due to Sosa de Rosarioâs limited English. It decided Drs. Brooks and Lipon were more âqualified than Dr. Schwartz, an internist, to render orthopedic medical opinions. . . . Their reports constituted the more specific, the more probative, and the more persuasive evidence on the issue of whether employment was the substantial cause of Sosa de Rosarioâs low back condition.â The Commission did not mention the Boardâs finding that Dr. Brooks was not credible. The Commission thought the Board âmay have misapplied certain legal standards in the process of analyzing the evidenceâ because of its discussion of Dr. Brooksâs report. Ultimately, the Commission decided: [T]he quantum of evidence was not substantial enough to support the [B]oardâs conclusion that employment was the substantial cause of Sosa de Rosarioâs disability and need for medical treatment. The record as a whole, in particular the expert medical opinions provided by Drs. Brooks and Lipon, supports the opposite conclusion. Based on the same evidence and analysis, we conclude that Sosa de Rosario -9- 6763 ----------------------- Page 10----------------------- failed to satisfy her burden of proof by a preponderance of the evidence. After deciding that Sosa de Rosario had not met her burden of proof and that her claim should have been denied, the Commission then decided whether the Board erred in permitting Sosa de Rosario to get a PPI rating at a later date. According to the Commission, neither Dr. Lipon nor Dr. Brooks considered Sosa de Rosario to be permanently impaired, and the Board should have denied her claim; Sosa de Rosarioâs remedy then would have been to seek modification of the Board order under AS 23.30.130(a). Sosa de Rosario appeals. III. STANDARD OF REVIEW In a workersâ compensation appeal âwe review the [C]ommissionâs decision and apply our independent judgment when there is a question of law that does not involve agency expertise.â6 We independently review the Commissionâs legal conclusion that the Boardâs factual findings are supported by substantial evidence in the record, which ârequires us to independently review the record and the Boardâs factual findings.â7 Interpretation of a statute is a question of law to which we apply our independent judgment, interpreting the statute according to reason, practicality, and common sense, considering the meaning of the statuteâs language, its legislative history, and its purpose.8 IV. DISCUSSION A. It Was Error To Disregard The Boardâs Credibility Determinations. 6 Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing Barrington v. Alaska Commcâns Sys. Grp., Inc. , 198 P.3d 1122, 1125 (Alaska 2008)). 7 Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009). 8 Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003) (quoting Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)). -10- 6763 ----------------------- Page 11----------------------- The Boardâs credibility determinations are a central issue in this case. The Board found Dr. Brooksâs testimony not credible and discounted Dr. Liponâs testimony because it relied on Dr. Brooksâs report. The Board found Sosa de Rosarioâs testimony about the accident credible and also found Dr. Schwartzâs testimony about her condition credible. Although the Commission noted the credibility finding about Sosa de Rosario, it did not discuss the impact of the Boardâs other credibility findings. The Commission did not explain how an opinion the Board expressly found not credible together with an opinion the Board expressly discounted could be âthe more specific, the more probative, and the more persuasive evidenceâ of causation. The Commission essentially reversed the Boardâs credibility findings, dismissing the Boardâs concern about communication difficulties and pointing to Dr. Brooksâs and Dr. Liponâs training as orthopedists to give their opinions more weight. Chenega Lodging argues the Boardâs finding that Dr. Brooks was not credible did not âallow the Board to simply ignore his testimony or prevent evaluation of his opinion in relation to the necessary quantum of evidence while evaluating the Boardâs decision.â The only authority Chenega Lodging relies on to support this argument is an earlier Commission decision, Uresco Construction Materials, Inc. v. Porteleki .9 But in Uresco the Board did not make a credibility determination â in response to the employeeâs argument that the Board found a doctor not credible, the Commission said the Board had not discussed the doctorâs testimony or report.10 Here the Board specifically found Dr. Brooks not credible. 9 AWCAC Dec. No. 152 (May 11, 2011), available at http://labor.alaska.gov /wccomm/memos-finals/D_152.pdf. 10 Id. at 14 (the Commission will ânot assume that lack of credibility was relevant to the [B]oardâs decision without a specific finding that the [B]oard disbelieved a witnessâ). -11- 6763 ----------------------- Page 12----------------------- The Boardâs responsibility as fact finder is set out in AS 23.30.122, which provides in relevant part: The board has the sole power to determine the credibility of a witness. A finding by the board concerning the weight to be accorded a witnessâs testimony, including medical testimony and reports, is conclusive even if the evidence is conflicting or susceptible to contrary conclusions. The legislative history of this section states that the intent was âto restore to the Board the decision making power granted by the Legislature when it enacted the Alaska Workersâ Compensation Act.â11 The âsection clarifies and emphasizes the role of the Board in determining the credibility of witnesses and the weight to be accorded medical testimony and reports.â12 The legislature considered rewriting this section in 2005 when it created the Commission but ultimately elected not to do so.13 The legislature requires the Commission to defer to the Boardâs credibility findings. Alaska Statute 23.30.128(b) provides in part: âThe [B]oardâs findings regarding the credibility of testimony of a witness before the [B]oard are binding on the [C]ommission.â We construe AS 23.30.128(b) to mean that the Commission must follow the Boardâs credibility determination. âBindâ means â[t]o impose one or more legal duties on (a person or institution)
.â14 Binding precedent is â[a] precedent that a court must follow.â15 11 H. Finance Comm., Section by Section Analysis HB 159, 12th Leg., 2d Sess. at 2 (1982), available at Alaska Finance Comm. Bill File Microfiche No. 1468. 12 Id. 13 Compare Â§ 29, Senate Bill (S.B.) 130, 24th Leg., 1st Sess. (Mar. 3, 2005), with ch. 10, FSSLA 2005. 14 BLACK âS LAW DICTIONARY 178 (8th ed. 2004). âBindingâ is defined as (continued...) -12- 6763 ----------------------- Page 13----------------------- The Commission was thus required to accept the Boardâs credibility determinations, including its decision that Dr. Brooks was not credible. We have given little weight to testimony the Board found not credible when evaluating whether substantial evidence supported a Board decision, because âwe defer to the Boardâs determination of witness credibility.â16 Here, the Board found Dr. Brooks not credible and discounted Dr. Liponâs testimony; their opinions therefore were entitled to little weight in assessing the substantiality of the evidence. The Commission could not permissibly find their testimony âmore probativeâ and âmore persuasiveâ than expert testimony the Board found credible.17 The Board found Dr. Schwartz credible; the Commission could not dismiss his opinion simply because he was not an orthopedist.18 14 (...continued) âthat bindsâ or âthat requires obedience.â Id. 15 BLACK âS LAW DICTIONARY 1215 (8th ed. 2004). 16 Steffey v. Municipality of Anchorage, 1 P.3d 685, 691-92 (Alaska 2000). 17 The fact that Dr. Brooks did not testify orally is not determinative. âA finding by the board concerning the weight to be accorded a witnessâs testimony, including medical testimony and reports, is conclusive even if the evidence is conflicting or susceptible to contrary conclusions.â AS 23.30.122 (emphasis added). Also, â[t]he board favors the production of medical evidence in the form of written reports . . . .â 8 Alaska Administrative Code (AAC) 45.120(k) (2012). 18 We recently decided in a personal injury case that an injured partyâs treating physician could offer an experience-based opinion about causation. Thompson v. Cooper, 290 P.3d 393, 400 (Alaska 2012). Dr. Schwartzâs opinion was similar â he testified to his experience treating patients with back problems, and he based his opinion about causation on that experience. Chenega Lodging claims that Dr. Schwartz testified he would defer to the opinions of an orthopedist. We disagree with Chenega Lodgingâs interpretation of the testimony it cites. Dr. Schwartz testified that he would defer to an orthopedistâs opinion about the need for and type of surgery but qualified this statement by saying âsomeone that . . . I was familiar with.â Any deference Dr. Schwartz might (continued...) -13- 6763 ----------------------- Page 14----------------------- We have never held that the opinion of one type of medical specialist is, as a matter of law, entitled to greater weight than that of another. Rather, â[w]hen medical experts provide contradictory testimony, the [B]oard determines credibility.â19 Additionally, âif the Board is faced with two or more conflicting medical opinions â each of which constitutes substantial evidence â and elects to rely upon one opinion rather than the other, we will affirm the Boardâs decision.â20 The Board can also choose not to believe its own expert.21 Chenega Lodging contends the Boardâs analysis of Dr. Brooksâs report was inadequate and the Board did not make adequate findings about issues that were material and contested, but it does not identify those issues. The Board was concerned that Dr. Brooks was basing his opinion on what the Board considered minor inconsistencies in the medical records, even though Dr. Brooks knew Sosa de Rosario did not speak English and was dependent on others to translate for her. The Boardâs decision shows that it carefully examined the medical records and based its decision on its own evaluation of those records. Finally, it is noteworthy that the Boardâs other credibility finding was that Sosa de Rosario was âcredible and consistent in her description of the mechanism of her injury.â The Commission did not consider this finding âparticularly helpfulâ in making 18 (...continued) give to an opinion about treatment is unrelated to causation. 19 Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004) (citing Childs v. Copper Valley Elec. Assân, 860 P.2d 1184, 1189 (Alaska 1993)). 20 Id. (quoting Doyon Universal Servs. v. Allen , 999 P.2d 764, 767-68 (Alaska 2000)) (alteration omitted) (internal quotation marks omitted). 21 See, e.g., AT & T Alascom v. Orchitt , 161 P.3d 1232, 1238, 1240-42 (Alaska 2007) (affirming Board when it rejected testimony of its own engineering expert). -14- 6763 ----------------------- Page 15----------------------- a causation determination, but both Dr. Brooks and Dr. Lipon specifically said they did not think there was an accident on June 28, 2007. This discrepancy further undermined both orthopedic doctorsâ opinions, weakening their evidentiary value.22 In considering whether substantial evidence supported the Boardâs decision, Dr. Brooksâs and Dr. Liponâs opinions were entitled to little, not great, weight. B. It Was Error To Conclude That Substantial Evidence Did Not Support The Boardâs Decision. Sosa de Rosario argues that the Board correctly credited Dr. Schwartzâs and her own testimony in finding that her injury was compensable.23 Chenega Lodging argues that several of the Boardâs findings were not supported by substantial evidence. Assessing the Commissionâs decision requires review of the evidence presented to the Board in light of the Boardâs credibility determinations. The Board and Commission both applied the three-step presumption analysis used in workersâ compensation cases to determine the claimâs compensability.24 The Board decided that Sosa de Rosario had attached the presumption of compensability and that Chenega Lodging had rebutted it. The Commission agreed with both of these decisions. As discussed, the Board found Sosa de Rosario was credible and Dr. Brooks was not. The Board found Dr. Schwartzâs testimony credible and âdiscountedâ Dr. Liponâs opinions. The Board decided that Sosa de Rosario had proved by a preponderance of the evidence that her work-related injury was the substantial cause of her disability and need for treatment of her low back pain and sciatica. The Commission 22 Cf. Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 790-91 (Alaska 2007) (requiring Board to evaluate lay testimony that âcould undermineâ employerâs doctorâs analysis of the course of the employeeâs illness). 23 We interpret the pleading of pro se litigants liberally. Khalsa v. Chose , 261 P.3d 367, 372 n.9 (Alaska 2011) (citing Breck v. Ulmer , 745 P.2d 66, 75 (Alaska 1987)). 24 See supra note 5. -15- 6763 ----------------------- Page 16----------------------- reversed the Boardâs analysis at the third stage â when the Board weighs the evidence â because it did not think the quantum of evidence was âsubstantial enough to support the [B]oardâs conclusion.â The Board based its compensability determination on four factors: the MRI showing a herniated disc, a credible mechanism of injury, the absence of treatment for lumbar spine problems before the June accident, and Dr. Schwartzâs credible testimony. Chenega Lodging first argues that substantial evidence does not support the finding that Sosa de Rosario had not received medical treatment for low back pain and right leg pain before the work-related injury, pointing to medical chart notes supporting its argument.25 The Commission agreed with Chenega Lodging that there was evidence of âlow back pain that pre-existed the work incident,â citing medical records from 2004, 2006, and early 2007.26 Our review of the record does not support the Commissionâs summary of the evidence. The medical records show that Sosa de Rosario was treated for pain in her cervical and thoracic spine before June 2007, but the records do not show treatment for lumbar pain. The only medical record that might suggest prior lumbar pain was a pain diagram from February 2006. According to a medical summary Chenega Lodging submitted to the Board, the pain diagram was from Providence Physical Therapy. Dr. Schwartz referred Sosa de Rosario to physical therapy at that time because of cervical pain after a car accident. Chenega Lodging questioned Dr. Schwartz at the hearing about the pain diagram. The Board considered the pain diagram and described 25 No one contested that Sosa deRosarioâs MRI showed a herniated disc impinging on her nerve. 26 The chart note from 2007 refers to a history of back pain in 2006, but the related medical record from 2006 shows that Sosa de Rosario was treated for cervical pain at the time. -16- 6763 ----------------------- Page 17----------------------- it as âincomplete and inconsistent with the complaints in the accompanying chart note.â This assessment is supported by the record, as the chart notes show that Sosa de Rosario received treatment and was referred to physical therapy for cervical pain complaints. Chenega Lodging next contends that the Board incorrectly assessed the impact the language barrier and translation had in the case. The Board could reasonably have concluded that Sosa de Rosarioâs limited English and her reliance on translators influenced the accuracy of some medical records.27 The record shows translation errors at the Boardâs hearing as well as at Sosa de Rosarioâs deposition. Dr. Thompson wrote in one chart note that Sosa de Rosario should be seen by a Spanish-speaking provider, suggesting that he was concerned about the language barrier. Given the importance Dr. Brooks and, consequently, Dr. Lipon attached to Sosa de Rosarioâs account of the injury in determining causation, the Board acted within its discretion in assessing potential communication problems as it did. The only physician who communicated directly with Sosa de Rosario in Spanish was Dr. Schwartz, and the Board could reasonably conclude that their ability to communicate more effectively made his opinions more accurate. Chenega Lodging maintains substantial evidence does not support the Boardâs finding that Dr. Lipon deferred to Dr. Brooks âon the mechanism of injury issue.â Dr. Lipon said at his deposition that he âwould have to refer the accident reconstruction partâ to Dr. Brooks. Dr. Lipon also agreed that he would âdefer to [Dr. Brooks] whenever the reference was made to the reconstruction of events.â These comments fully support the Boardâs finding. 27 To the extent the medical records conflict, it is the Boardâs responsibility as the finder of fact to resolve evidentiary conflicts, as it did here. See Robinson v. Municipality of Anchorage , 69 P.3d 489, 493 (Alaska 2003) (holding that one of Boardâs functions is weighing conflicting evidence). -17- 6763 ----------------------- Page 18----------------------- Chenega Lodging argues that the Board should have given Dr. Brooksâs report and Dr. Liponâs testimony and report more weight. As we explained above, the Board has authority to determine witness credibility and to weigh conflicting evidence. Because of the Boardâs credibility determinations, the opinions of Dr. Brooks and Dr. Lipon are entitled to little weight in assessing the evidence supporting the Boardâs findings, and Dr. Schwartzâs opinion is entitled to greater weight. The Commission thought Dr. Schwartzâs opinions â[fell] short of the statutory standard that employment must be the substantial causeâ of the injury and disability. According to the Commission, âto say that the injury was work-related, or was in large part responsible for her disability, does not necessarily mean that employment was the substantial cause.â (Emphasis in original.) We have cautioned against considering the workersâ compensation process âa game of âsay the magic word,â in which the rights of injured workers should depend on whether a witness happens to choose a form of words prescribed by a court or legislature.â28 We have not required a physicianâs statement to include a specific term to prove an injured workerâs claim,29 and we have âupheld compensation awards in the face of inconclusive medical testimony.â30 We hold that Dr. Schwartzâs opinion together with other evidence provides adequate support for the Boardâs decision. Dr. Schwartz rejected the opinion that Sosa de Rosarioâs lumbar complaints and sciatica were caused by degenerative changes 28 Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 791 (Alaska 2007) (quoting 8 ARTHUR LARSON & LEX K. LARSON , LARSON âS WORKERS â COMPENSATION LAW Â§ 130.06[e] (2006)) (internal quotation marks omitted). 29 See id. (âA statement by a physician using a probability formula is not required to establish employer liability in workersâ compensation.â). 30 Id. (citing Empârs Commercial Union Co. v. Libor , 536 P.2d 129, 132 (Alaska 1975); Beauchamp v. Empârs Liab. Assurance Corp. , 477 P.2d 993, 996-97 (Alaska 1970)). -18- 6763 ----------------------- Page 19----------------------- because, in his experience, degenerative changes had a different presentation; he linked her pain to the work-related accident. From the absence of credible medical testimony to the contrary, as well as from the MRI and Sosa de Rosarioâs account of the injury, the Board could reasonably conclude that the work injury was the substantial cause of her continuing need for medical care. Chenega Lodging finally argues that the Board applied an incorrect legal standard and did not require Sosa de Rosario to prove her claim by a preponderance of the evidence. It relies on the Boardâs use of the phrase âsubstantial evidenceâ to describe some of the evidence. But the Board first made a series of factual findings âby a preponderance of the evidence.â The Board made detailed factual findings and credibility determinations showing what evidence it considered important in reaching its decision. And it expressly set out the preponderance-of-the-evidence standard to describe the last step of the presumption analysis, stating that Sosa de Rosario âha[d] proven by a preponderance of the evidence her work was the substantial cause in her need for past and continuing medical treatment and disability.â We conclude the Board applied the correct legal standard.31 Our examination of the record and the Boardâs findings leads us to conclude that the Commission erred in reversing the Boardâs decision that Sosa de Rosarioâs injury was work related and compensable â we hold that substantial evidence in the record supports the Boardâs decision.32 31 We disagree with Chenega Lodgingâs contention that the Board required it to âprov[e] the non-compensability of the employeeâs claim.â The Boardâs comment that Dr. Brooks did not exclude occupational activities as a possible cause of Sosa de Rosarioâs disc problem was part of its explanation for why it found the needed medical treatment to be work related. The Board pointed to other evidence as well. 32 With respect to the TTD finding, Chenega Lodging asserts that no medical (continued...) -19- 6763 ----------------------- Page 20----------------------- C. It Was Error To Reverse The Boardâs PPI Decision. The Board decided that Sosa de Rosario was âentitled to PPI [permanent partial impairment] when rated.â The Commission faulted the Board for this order because in its view, only Chenega Lodging presented evidence about whether Sosa de Rosario had a permanent impairment. Citing Griffiths v. Andyâs Body & Frame, Inc.,33 the Commission said that â[t]he appropriate remedyâ would have been for Sosa de Rosario to ask for a modification. Before the Board the parties disagreed about medical stability; the Board decided Sosa de Rosario was not yet medically stable and directed her to get a rating when she reached medical stability. As a result Sosa de Rosarioâs PPI claim was not yet ripe. In Griffiths, in contrast, everyone agreed the claimant was medically stable â he was already engaged in the reemployment process when the employer had him formally rated.34 Although the Board could have said that it was reserving a decision on PPI until Sosa de Rosario was rated rather than that she was entitled to PPI when rated, any error was harmless because if and when she is rated, Chenega Lodging can contest the rating. 32 (...continued) evidence supported the Boardâs award of TTD. We disagree. Dr. Schwartz thought that Sosa de Rosario would benefit from surgery, suggesting that in his opinion she was not medically stable. (Medical stability is âthe date after which further objectively measurable improvement from the effects of the compensable injury is not reasonably expected to result from additional medical care or treatment.â AS 23.30.395(27).) The Board found his testimony credible; it also provided in its order that if surgery were recommended and Sosa de Rosario refused to consider it, the date of medical stability would be the date of the Boardâs decision. 33 165 P.3d 619 (Alaska 2007) (holding that Board abused its discretion in failing to allow worker to file a modification petition about permanent impairment rating). 34 Id. at 621. -20- 6763 ----------------------- Page 21----------------------- V. CONCLUSION For the foregoing reasons, we REVERSE the Commissionâs decision and REMAND to the Commission with instructions to reinstate the Boardâs order. -21- 6763
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