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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

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 



        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



ANA F. SOSA DE ROSARIO,                        ) 

                                               )       Supreme Court No. S-14661 

                        Appellant,             ) 

                                               )       Alaska Workers’ 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 – March 22, 2013 

                                               ) 

                        Appellees.             ) 

                                               ) 



                Appeal   from   the   Alaska   Workers’   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 accident’s occurrence and said any work injury was not the substantial cause 



of the worker’s continuing need for medical care.  The Alaska Workers’ Compensation 


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Board decided that the fall was the substantial cause of the worker’s disability, finding 



the worker’s testimony about the injury credible and the employer’s doctor’s 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 Workers’ Compensation Appeals Commission reversed the Board’s decision 



because, in the Commission’s view, substantial evidence did not support the decision. 



Because   the   Commission   incorrectly   decided   the   substantial   evidence   question,   we 



reverse the Commission’s 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 



“r[ight] hip pain, no injury” and was “in pain.”          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 “feeling better.” 



                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 



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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 hotel’s 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. Schwartz’s chart notes from November 28, Sosa de Rosario was “afraid 



that if she return[ed] to full duty her symptoms [would] regress back to the more severe 



state of a few months ago.” 



                Dr. Schwartz next referred Sosa de Rosario to Dr. James Eule for treatment. 



Sosa   de   Rosario   saw   Jane   Sonnenburg,   a   physician’s   assistant   in   Dr.   Eule’s   office. 



Based on Sonnenburg’s examination and the MRI, Dr. Eule scheduled Sosa de Rosario 



for an epidural injection on December 18.            According to Sonnenburg, Sosa de Rosario 



“had some improvement with the epidural.”              Sonnenburg increased Sosa de Rosario’s 



lifting limit to 20-25 pounds frequently, said that Sosa de Rosario had “met her maximal 



medical benefit,” and noted that she would have “some element of chronicity.” 



                Chenega      Lodging     arranged    for   an  employer’s     independent      medical 



evaluation     (EIME)     in  December      2007   with   Dr.   Charles    Brooks,    an  orthopedist. 



Dr. Brooks was skeptical of Sosa de Rosario’s 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 Rosario’s account of the accident, 



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noting:   “Given 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.”           Dr. Brooks’s opinion with respect to causation 



was   that   Sosa   de   Rosario’s   “low   back   pain   and   right   sciatica   .   .   .   may   have   been 



precipitated     or  worsened     by   her  occupational     duties,   avocational    activities,  or  an 



unreported injury,” but because he did not “believe there was an occupational back 



injury on June 28, 2007,” he could not “conclude the claimant’s work was the substantial 



cause of her current low back pain and right sciatica.” 



                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 “not make an accurate determination as to work injury” because he 



had not yet seen Sosa de Rosario.  Sonnenburg concurred with the report.  Sonnenburg’s 



chart notes indicated she “tend[ed] to agree with the medical examiner’s report” and that 



Sosa de Rosario “tend[ed] to have some inconsistency to her complaints.”  On January 9, 



2008, Sosa de Rosario saw Dr. Schwartz again; he “recommended that she continue with 



light duty work indefinitely.” 



                Chenega      Lodging     controverted     all  benefits   on  January    31,   based   on 



Dr. Brooks’s report and on Sonnenburg’s having released Sosa de Rosario to full-time 



work with a 20-25 pound lifting limit.  Chenega Lodging terminated Sosa de Rosario’s 



employment on March 7.           On April 22 Dr. Schwartz saw Sosa de Rosario and wrote 



Chenega Lodging a letter stating Sosa de Rosario was “not able to work at this time and 



. . . would best be served by surgery.”           Dr. Schwartz related the onset of her “severe 



pain” to a June 28, 2007 “fall she suffered at work.” 



                In   July   2008   an   attorney   entered   an   appearance   and   filed   a   workers’ 



compensation claim on Sosa de Rosario’s behalf seeking: TTD from April 22, 2008, and 



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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 attorney’s 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 Rosario’s 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 “a combination of genetics, aging, and progressive degenerative changes.” 



He   also   diagnosed   “[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.” 



He noted “inconsistencies in Ms. Sosa De Rosario’s history of the cause and onset of her 



lower back and right leg pain”; he could not “state 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.” 



                Dr. Lipon thought Sosa de Rosario was magnifying her symptoms and 



stated    that  there   was   “no   consistent    measurable     abnormal     objective    evidence     of 



radiculopathy”   in   his   examination.       In   Dr.   Lipon’s   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 “related to her industrial claim of 



[June 28, 2007].”      He testified that degenerative disc disease can cause a disc extrusion 



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and that Sosa de Rosario’s herniated disc was “most probably” caused by degenerative 



disc disease, but he acknowledged that she could have “had some type of injury that was 



never documented.”        He agreed with Dr. Brooks’s report and “refer[red] the accident 

reconstruction part” to Dr. Brooks.1        Dr. Lipon noted “magnification of pain behavior” 



in his examination of Sosa de Rosario and inconsistencies between his examination 



results and other doctors’ 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 “a significant nerve root problem that requires any treatment.”  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 “[t]he employee must occasionally lift and/or move 



        1       According       to   Dr.   Lipon,    Dr.   Brooks     “had    training    in  accident 



reconstruction.” Dr. Lipon acknowledged that there was nothing in the record to indicate 

this was the case, but he said he had “personal information” 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, 

“Sedentary work involves lifting no more than 10 pounds at a time and occasionally 

lifting   or   carrying   articles   like   docket   files,   ledgers,   and   small   tools.” 20   C.F.R.   § 

404.1567(a) (2012).  This definition is similar to the one Dr. Schwartz used to evaluate 

Sosa de Rosario. 



                                                  -6-                                            6763
 


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up to 25 pounds.”3     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 son’s girlfriend to translate for her.           The Board chair relied on translation from 



Chenega Lodging’s 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 Lodging’s 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 



“seen a lot of back pain patients and dis[c] problem patients.”  Dr. Schwartz testified that 



since the accident Sosa de Rosario had had weakness and pain in her right leg.                    In his 



opinion,   Sosa   de   Rosario’s   pain   was   probably   not   caused   by   degenerative   changes 



because it “came on quickly.”          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 Lodging’s housekeeper job description differed from the description Chenega 

Lodging’s vocational expert provided, which appears to be based on the United States 

Department   of   Labor’s   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 “heavy,” requiring lifting of up to 100 pounds, while 

Chenega       Lodging’s     job   description    required    moving     or  lifting  only    25  pounds 

occasionally. 



        4       Sosa de Rosario’s attorney withdrew in June 2010, with her consent. 



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degenerative changes had a “totally different presentation.”                He further testified that he 



referred Sosa de Rosario to an orthopedic specialist for treatment, not for diagnosis.  He 



thought Sosa de Rosario’s diagnosis was “pretty clear, she had an acute dis[c] herniation 



that was symptomatic.” 



                 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   Rosario’s   and   Dr. 



Schwartz’s       testimony;     it  further   found    that  Chenega      Lodging     had    rebutted    the 



presumption with Dr. Brooks’s and Dr. Lipon’s 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. Schwartz’s 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    Workers’ 



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 

employee’s claim by a preponderance of the evidence.                    Bradbury v. Chugach Elec. 

Ass’n ,   71   P.3d   901,   905-06   (Alaska   2003).     The   Commission   mentioned   the   2005 

amendments in its discussion of the presumption analysis in this case. “Whether or how 

the 2005 amendments to the Act modified the existing three-step presumption analysis 

is an open question.”        Runstrom v. Alaska Native Med. Ctr. , 280 P.3d 567, 574 n.16 

(Alaska 2012). 



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expressly discounted Dr. Lipon’s 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 “translators of varying degrees of competency.”                 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 “from April 22, 2008 to 



the date of medical stability” and reserved jurisdiction over the PTD claim. 



                Chenega      Lodging     appealed     to  the  Commission.        The    Commission 



concluded the Board’s findings were not supported by substantial evidence in light of the 



whole record.  The Commission focused on the Board’s concern about communication 



difficulties due to Sosa de Rosario’s limited English.  It decided Drs. Brooks and Lipon 



were   more   “qualified   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 Rosario’s low back condition.”            The Commission did not mention the 



Board’s finding that Dr. Brooks was not credible.            The Commission thought the Board 



“may have misapplied certain legal standards in the process of analyzing the evidence” 



because of its discussion of Dr. Brooks’s report.   Ultimately, the Commission decided: 



                [T]he   quantum   of   evidence   was   not   substantial   enough   to 

                support the [B]oard’s conclusion that employment was the 

                substantial cause of Sosa de Rosario’s 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
 


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                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 Rosario’s 



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  workers’    compensation      appeal    “we   review    the  [C]ommission’s 



decision and apply our independent judgment when there is a question of law that does 

not   involve   agency   expertise.”6    We   independently   review   the   Commission’s   legal 



conclusion that the Board’s factual findings are supported by substantial evidence in the 



record, which “requires us to independently review the record and the Board’s factual 

findings.”7    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 statute’s language, its legislative history, 

and its purpose.8 



IV.     DISCUSSION 



        A.      It Was Error To Disregard The Board’s Credibility Determinations. 



        6       Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (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). 



        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
 


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                The Board’s credibility determinations are a central issue in this case.  The 



Board found Dr. Brooks’s testimony not credible and discounted Dr. Lipon’s testimony 



because it relied on Dr. Brooks’s report.  The Board found Sosa de Rosario’s testimony 



about the accident credible and also found Dr. Schwartz’s testimony about her condition 



credible.  Although the Commission noted the credibility finding about Sosa de Rosario, 



it did not discuss the impact of the Board’s 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 “the more specific, the more probative, 



and the more persuasive[] evidence” of causation. The Commission essentially reversed 



the Board’s credibility findings, dismissing the Board’s concern about communication 



difficulties and pointing to Dr. Brooks’s and Dr. Lipon’s training as orthopedists to give 



their opinions more weight. 



                Chenega   Lodging   argues   the   Board’s   finding   that   Dr.   Brooks   was   not 



credible did not “allow the Board to simply ignore his testimony or prevent evaluation 



of his opinion in relation to the necessary quantum of evidence while evaluating the 



Board’s   decision.”     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 — in 



response to the employee’s argument that the Board found a doctor not credible, the 

Commission said the Board had not discussed the doctor’s 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 “not assume that lack of credibility was 



relevant to the [B]oard’s decision without a specific finding that the [B]oard disbelieved 

a witness”). 



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                The Board’s 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  witness’s    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 “to restore to the Board 



the   decision   making   power   granted   by   the   Legislature   when   it   enacted   the   Alaska 

Workers’ Compensation Act.”11           The “section clarifies and emphasizes the role of the 



Board in determining the credibility of witnesses and the weight to be accorded medical 

testimony and reports.”12      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 Board’s credibility 



findings.    Alaska   Statute   23.30.128(b)   provides   in   part:      “The   [B]oard’s   findings 



regarding the credibility of testimony of a witness before the [B]oard are binding on the 



[C]ommission.”        We   construe   AS   23.30.128(b)   to   mean   that   the   Commission   must 



follow the Board’s credibility determination.           “Bind” means “[t]o impose one or more 



legal duties on (a person or institution)  .”14       Binding precedent is “[a] precedent that a court must follow.”15 



        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 § 29, Senate Bill (S.B.) 130, 24th Leg., 1st Sess. (Mar. 3, 2005), 



with ch. 10, FSSLA 2005. 



        14      BLACK ’S LAW  DICTIONARY          178 (8th ed. 2004).       “Binding” is defined as 



                                                                                        (continued...) 



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The Commission was thus required to accept the Board’s 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 “we defer 

to the Board’s determination of witness credibility.”16          Here, the Board found Dr. Brooks 



not credible and discounted Dr. Lipon’s testimony; their opinions therefore were entitled 



to little weight in assessing the substantiality of the evidence.           The Commission could 



not permissibly find their testimony “more probative” and “more persuasive” 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) 



“that binds” or “that requires obedience.”  Id. 



        15      BLACK ’S 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.  “A 



finding   by   the   board   concerning   the   weight   to   be   accorded   a   witness’s   testimony, 

including medical testimony and reports, is conclusive even if the evidence is conflicting 

or susceptible to contrary conclusions.”          AS 23.30.122 (emphasis added).           Also, “[t]he 

board favors the production of medical evidence in the form of written reports . . . .”                 8 

Alaska Administrative Code (AAC) 45.120(k) (2012). 



        18      We   recently   decided   in   a   personal   injury   case   that   an   injured   party’s 



treating physician could offer an experience-based opinion about causation.  Thompson 

v. Cooper, 290 P.3d 393, 400 (Alaska 2012).  Dr. Schwartz’s opinion was similar — 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 Lodging’s 

interpretation of the testimony it cites.       Dr. Schwartz testified that he would defer to an 

orthopedist’s opinion about the need for and type of surgery but qualified this statement 

by saying “someone that . . . I was familiar with.”           Any deference Dr. Schwartz might 

                                                                                         (continued...) 

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                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, “[w]hen medical 

experts     provide     contradictory     testimony,     the   [B]oard     determines     credibility.”19 



Additionally, “if the Board is faced with two or more conflicting medical opinions — 



each of which constitutes substantial evidence — and elects to rely upon one opinion 

rather than the other, we will affirm the Board’s decision.”20  The Board can also choose 



not to believe its own expert.21 



                Chenega Lodging contends the Board’s analysis of Dr. Brooks’s 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 Board’s 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 Board’s other credibility finding was that 



Sosa de Rosario was “credible and consistent in her description of the mechanism of her 



injury.”  The Commission did not consider this finding “particularly helpful” 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. Ass’n, 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). 

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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 doctors’ opinions, weakening their evidentiary value.22             In considering 



whether     substantial   evidence    supported     the  Board’s    decision,   Dr.  Brooks’s     and 



Dr. Lipon’s opinions were entitled to little, not great, weight. 



        B.	     It Was Error To Conclude That Substantial Evidence Did Not Support 

                The Board’s Decision. 



                Sosa de Rosario argues that the Board correctly credited Dr. Schwartz’s and 

her own testimony in finding that her injury was compensable.23                 Chenega Lodging 



argues that several of the Board’s findings were not supported by substantial evidence. 



Assessing the Commission’s decision requires review of the evidence presented to the 



Board in light of the Board’s credibility determinations. 



                The    Board   and   Commission      both  applied   the  three-step   presumption 

analysis used in workers’ compensation cases to determine the claim’s 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.   Schwartz’s    testimony    credible   and   “discounted” 



Dr.   Lipon’s   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 “could undermine” employer’s 

doctor’s analysis of the course of the employee’s 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. 



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reversed the Board’s analysis at the third stage — when the Board weighs the evidence 



— because it did not think the quantum of evidence was “substantial enough to support 



the [B]oard’s conclusion.” 



                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. Schwartz’s 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 “low back 



pain that pre-existed the work incident,” citing medical records from 2004, 2006, and 

early 2007.26 



                Our review of the record does not support the Commission’s 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   deRosario’s   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. 

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it as “incomplete and inconsistent with the complaints in the accompanying chart note.” 



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 Rosario’s limited English and her reliance on translators 

influenced the accuracy of some medical records.27             The record shows translation errors 



at the Board’s hearing as well as at Sosa de Rosario’s 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 Rosario’s 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 



Board’s finding that Dr. Lipon deferred to Dr. Brooks “on the mechanism of injury 



issue.”     Dr.   Lipon   said   at   his   deposition   that   he   “would   have   to   refer   the   accident 



reconstruction   part”   to   Dr.   Brooks.    Dr.   Lipon   also   agreed   that   he   would   “defer   to 



[Dr. Brooks] whenever the reference was made to the reconstruction of events.”  These 



comments fully support the Board’s finding. 



        27      To the extent the medical records conflict, it is the Board’s 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 Board’s 

functions is weighing conflicting evidence). 

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

                Chenega Lodging argues that the Board should have given Dr. Brooks’s 



report and Dr. Lipon’s 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   Board’s   credibility   determinations,   the   opinions   of   Dr.   Brooks   and 



Dr. Lipon are entitled to little weight in assessing the evidence supporting the Board’s 



findings, and Dr. Schwartz’s opinion is entitled to greater weight. 



                The   Commission   thought   Dr.   Schwartz’s   opinions   “[fell]   short   of   the 



statutory standard that employment must be the substantial cause” of the injury and 



disability.    According to the Commission, “to 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.” (Emphasis in original.) We have cautioned 



against considering the workers’ compensation process “a game of ‘say the magic word,’ 



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.”28   We have not required a 



physician’s statement to include a specific term to prove an injured worker’s claim,29 and 



we have “upheld compensation awards in the face of inconclusive medical testimony.”30 



                We hold that Dr. Schwartz’s opinion together with other evidence provides 



adequate support for the Board’s decision.  Dr. Schwartz rejected the opinion that Sosa 



de   Rosario’s   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 ’S WORKERS ’ COMPENSATION 

LAW § 130.06[2][e] (2006)) (internal quotation marks omitted). 



        29      See id. (“A statement by a physician using a probability formula is not 



required to establish employer liability in workers’ compensation.”). 



        30      Id. (citing  Emp’rs Commercial Union Co. v. Libor , 536 P.2d 129, 132 



(Alaska 1975); Beauchamp v. Emp’rs Liab. Assurance Corp. , 477 P.2d 993, 996-97 

(Alaska 1970)). 

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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 Rosario’s 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 Board’s use of the phrase “substantial evidence” to describe 



some   of   the   evidence.    But   the   Board   first   made   a   series   of   factual   findings   “by   a 



preponderance        of  the  evidence.”     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 “ha[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.”  We conclude the Board 

applied the correct legal standard.31 



                Our     examination     of  the   record   and   the  Board’s    findings    leads  us   to 



conclude   that   the   Commission   erred   in   reversing   the   Board’s   decision   that   Sosa   de 



Rosario’s injury was work related and compensable — we hold that substantial evidence 

in the record supports the Board’s decision.32 



        31      We disagree with Chenega Lodging’s contention that the Board required 



it to “prov[e] the non-compensability of the employee’s claim.”  The Board’s comment 

that Dr. Brooks did not exclude occupational activities as a possible cause of Sosa de 

Rosario’s 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...) 

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----------------------- Page 20-----------------------

        C.      It Was Error To Reverse The Board’s PPI Decision. 



                The Board decided that Sosa de Rosario was “entitled to PPI [permanent 



partial   impairment]   when   rated.”     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. Andy’s Body & Frame, Inc.,33 



the   Commission   said   that   “[t]he   appropriate   remedy”   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 Rosario’s PPI claim was not yet 



ripe.  In Griffiths, in contrast, everyone agreed the claimant was medically stable — 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 Board’s 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  “the   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.”  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 Board’s 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. 



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----------------------- Page 21-----------------------

V.    CONCLUSION 



             For the foregoing reasons, we REVERSE the Commission’s decision and 



REMAND to the Commission with instructions to reinstate the Board’s order. 



                                       -21-                                  6763
 

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