Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gregory Weaver v. ASRC Federal Holding Co. and Arctic Slope Regional Corp. (6/5/2020) sp-7454

Gregory Weaver v. ASRC Federal Holding Co. and Arctic Slope Regional Corp. (6/5/2020) sp-7454

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

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

                                                                                                                        

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

                                                                                                                           

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



GREGORY  WEAVER,                                                 )  

                                                                 )     Supreme Court No. S-17406  

                                                                                       

                                                                                                        

                                Appellant,                       )  

                                                                 )    Alaska  Workers'  Compensation  

           v.                                                    )    Appeals  Commission  No.   17-025  

                                                                 )  

                                

ASRC FEDERAL HOLDING                                                                       

                                                                 )    O P I N I O N  

                                             

COMPANY and ARCTIC SLOPE                                         )
  

                                                                                                       

                       

REGIONAL CORPORATION,                                            )    No. 7454 - June 5, 2020
  

                                                                 )  

                                Appellees.                       )  

                                                                 )  



                                                                                                         

                                             

                      Appeal from the Alaska Workers' Compensation Appeals  

                      Commission.  



                                                                                                                

                      Appearances:  Michael J. Jensen and Lee D. Goodman, Law  

                                                                                                                        

                      Offices  of  Michael  J.  Jensen,  Anchorage,  for  Appellant.  

                                                                                                           

                      Matthew T. Findley and Laura C. Dulic, Ashburn & Mason,  

                                                         

                      P.C., Anchorage, for Appellees.  



                                                                                                        

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

                                           

                      and Carney, Justices.  



                                                   

                      BOLGER, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                                   

                      A   laborer   began   receiving   workers'   compensation   benefits   after  



                                                                                                                                        

experiencing severe low back pain at a remote job site.   About six months later his  



                                                                                                                                      

employer controverted all benefits based on a medical opinion that the work caused only  


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

                                                                                                                     

a temporary aggravation of a preexisting condition.  The laborer underwent extensive  



                                                                                                                             

medical care for his back pain, with doctors trying multiple different treatments.  The  



                                                                                                                     

worker sought workers' compensation for the back pain and asked the Alaska Workers'  



                                                                                                                                    

Compensation  Board  to  join  a  prior  back  injury  claim against  the  same  employer.  



                                                                                                                      

Following a lengthy and complex administrative process, the Board denied the worker's  



                                                                                                                     

claim  for  additional  benefits,  and  the  Alaska  Workers'  Compensation  Appeals  



                                                     

Commission affirmed the Board's decision.  



                                                                                                                  

                    The laborer contends that the Board made both procedural and substantive  



                                                                                                                     

errors.  He argues the Board violated his right to due process by relying on evidence  



                                                                                                                       

from an employer's medical evaluation (EME) and the second independent medical  



                                                                                                                  

evaluation (SIME) ordered by the Board. The doctors who performed those evaluations  



                                                                                                                      

reviewed reports from two other doctors who were not called to testify at the hearing,  



                                                                                                                              

even though the laborer had requested cross-examination of them. We conclude that the  



                                                                                                                            

Board adequately protected the laborer's rights by excluding the reports from its own  



                                                                                                                              

consideration and by providing a full opportunity for cross-examination of the EME and  



                                                                                                                             

SIME physicians.  We also conclude that the opinions from the EME, the SIME, and  



                                                                                                            

other medical evidence were sufficient both to rebut the presumption of compensability  



                                                                                                                           

and to support the Board's decision that the continuing need for treatment was not work  



                                                                                                                           

related.  We also find no error in the Board's decision to address the previous work  



                                                                                    

injury in a separate case.  We affirm the Commission's decision.  



                                                               -2-                                                        7454
  


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

II.          FACTS AND PROCEEDINGS
        



             A.           Work Injury   

                                                                                                                                                   1  off and on  

                          Gregory Weaver worked at remote sites for ARCTEC Alaska                                                                                    



for several years as a relief station mechanic.  His job involved heavy labor, and he filed  

                                                                                                                                                                 



several reports of injury during the times he worked for ARCTEC.   He reported in  

                                                                                                                                                                     



December 2010 that he had "pulled something in the lower spinal area" while adjusting  

                                                                                                                                                        



tire chains on a dump truck.  He filed another injury report related to his back in early  

                                



2012, after he experienced back pain while installing garage door panels. Weaver passed  

                                                                                                                                                             



"fit for duty" physical examinations after both of these injuries.  

                                                                                                                              



                          Weaver worked at Indian Mountain and Barter Island in 2013.   In July  

                                                                                                                                                                 



while Weaver was at Barter Island, he woke up one morning with back pain that made  

                                                                                                                                                               



it hard for him to walk. He said his back pain "had been building up for several months,"  

                                                                                                                                                        



but he could not identify a specific task related to the onset of pain.   He said "the  

                                                                                                                                                                 



majority of the heavy lifting" he did that summer had been at Indian Mountain, but he  

                                                                                                                                        



described  work  at  Barter  Island  as  including  significant  shoveling  and  pushing  

                                                                                                                                                         



wheelbarrows of rocks over difficult surfaces.   He thought  the camp bed provided  

                                                                                                                                                        



inadequate back support.  He asked to be flown out because of his back pain and has not  

                                                                                                                                                                    



worked since.  

                 



             B.           Weaver's Medical History  

                                                                  



                          Many years before Weaver began to work for ARCTEC he was in a serious  

                                                                                                                                                           



motor vehicle collision and suffered a traumatic brain injury, which caused continuing  

                                                                                                                                                     



memory problems.  Weaver was evidently involved in a second accident in about 2003,  

                                                                                                                                                               



             1            The parties generally referred to Weaver's employer as ARCTEC Alaska,                                                            



but   the   opening   notice   in   the   Board   file   referred   to   it   as   ASRC   Federal   Holding  

Company.   Arctic Slope Regional Corporation is the insurer for ARCTEC Alaska.                                                                                    We  

refer to the employer and its insurer as "ARCTEC Alaska" or "ARCTEC."                                                     



                                                                                  -3-                                                                           7454
  


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

but the record in this case has little information about that accident.                                                                                                       Weaver had a                     



history of mood disorders, which a brain injury specialist said was likely related to the                                                                                                                  



traumatic brain injury.                                  



                                 The   parties   to   this   litigation   disputed   the   existence   and   relevance   of  



Weaver's substance abuse.                                              Weaver was given an administrative discharge from the                                                                               



military related to alcohol abuse and "rehabilitation failure." Weaver has been convicted                                                                                                   



twice of driving under the influence, once in the 1990s and once in 2014.                                                                                                                     In 2014   

                                                                                                            2  in-patient treatment program in Georgia,  

Weaver voluntarily entered a dual-diagnosis                                                                                                                                                   



but the program is only mentioned in other providers' records. In February 2017, a short  

                                                                                                                                                                                                     



time before the Board hearing, he was again arrested and charged with driving under the  

                                                                                                                                                                                                            



influence  but  was  convicted  only  of  reckless  driving.                                                                                 The  pain  clinic  that  treated  

                                                                                                                                                                                                 



Weaver's  back  pain  tested  him periodically  for  alcohol;  more  than  once  he  tested  

                                                                                                                                                                                                    



positive.  

                       



                                Weaver'smedical recordsshowsporadicbackpaintreatment during theten  

                                                                                                                                                                                                            



years before his pain became debilitating.   Most treatment was chiropractic care or  

                                                                                                                                                                                                             



osteopathic manipulation, and some of the treatment was for work-related complaints.  

                                                                                                                                                                                                                     



                C.               Medical Treatment And Evaluation Following The 2013 Injury  

                                                                                                                                                                                    



                                Weaver began treatment with Dr. Joyce Restad when he returned from  

                                                                                                                                                                                                      



Barter Island in late July 2013.  He had not previously seen Dr. Restad and chose her  

                                                                                                                                                                                                           



because  she  was  the  only  Mat-Su  Valley  osteopathic  physician  he  found  offering  

                                                                                                                                                                                              



osteopathic  manipulation.                                            At  his  first  appointment  with  Dr.  Restad  his  pain  was  

                                                                                                                                                                                                        



                2                The term "dual diagnosis" refers to the co-occurrence of a substance abuse                                                                                          



disorder and a mental disorder in an individual.                                                                    Nat'l Insts. of Health,                               Dual Diagnosis                         ,  

      EDLINEPLUS, https://medlineplus.gov/dualdiagnosis.html (last visited May 18, 2020).  

M                                                                                                                                                                                                  



                                                                                                      -4-                                                                                             7454
  


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

                                                                                   3                                              4 

"a '9'/10."  She diagnosed him with lumbago  and somatic dysfunction  in the lumbar  



region and treated him with osteopathic manipulation and medication.  An MRI from  

                                                                                                                                                    



early August showed disc bulging in the lumbar spine with "moderate bilateral neural  

                                                                                                                                                  



foraminal stenosis" at L5-S1.  

                                                       



                        Dr. Restad referred Weaver to Algone Pain Center, where he saw several  

                                                                                                                                                



providers and continued to receive care through 2017.   Algone initially suggested a  

                                                                                                                                                           



series  of  three  epidural  steroid  injections.                                     Dr.  Restad's  chart  notes  reflect  that  

                                                                                                                                                     

ARCTEC's nurse case manager5  considered the proposed treatment "aggressive" and  

                                                                                                                                                      



wanted  a  second  opinion  and  that  Weaver  "seem[ed]  to  be  neutral  about  this."  

                                                                                                                                                               



Dr. Restad referred Weaver to Dr. Shawn Johnston at Alaska Spine Institute as suggested  

                                                                                                                                            



by the case manager.  

                                        



                        The underlying question about the epidural steroid injections, beside cost,  

                                                                                                                                                     



appears to have been whether Weaver had radiculopathy, or "irritation of or injury to a  

                                                                                                                                                           

                                                                          6   Radiculopathy occurs in a pattern related to  

nerve root (as from being compressed)."                                                                                                     



a specific nerve root, which in Weaver's case would have resulted in pain extending into  

                                                                                                                                                      



the  leg.           Weaver's  medical  records  did  not  consistently  show  pain  in  the  leg.  

                                                                                                                                                               



Dr. Restad's chart notes described the pain as "radiating into his [left] buttock."  

                                                                                                                                                   



            3           Lumbago is lower                    back   pain.     Lumbago, M                    ERRIAM-WEBSTER   ONLINE  



DICTIONARY, https://www.merriam-webster.com/dictionary/lumbago.   



            4           Onedoctor testified that "somaticdysfunction"is"not                                             aspecificdiagnosis"     



but indicates that the spine is "not working properly."                                           Dr. Restad testified she uses this                   

diagnosis when she does an adjustment.  

                                                                          



            5           ARCTEChired anursecasemanagerinWeaver's case; shemonitored care,  

                                                                                                                                                     

including scheduling at least one appointment, and went to several appointments with  

                                                                                                                                                     

Weaver.  

                 



            6           Radiculopathy ,                       MERRIAM -WEBSTER                              ONLINE               DICTIONARY ,  

                                                          

https://www.merriam-webster.com/dictionary/radiculopathy.  



                                                                            -5-                                                                    7454
  


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

                                                                                                                                                                                                                                                                                                                                                                                                                                   7  

                                                                              Dr. Johnston thought Weaver's pain was "facet-mediated"                                                                                                                                                                                                                                                                                                   and restricted   



him to light duty work.                                                                                                                              After   noting   Weaver's "occasional radicular                                                                                                                                                                                                                                        complaints,"  



Dr. Johnston referred Weaver for physical therapy and prescribed other medication.                                                                                                                                                                                                                                                                                                                                                                                                                                          



Weaver attended physical therapy but showed little improvement.                                                                                                                                                                                                                                                                                                                                          Dr. Johnston later                                                                   



prescribed   lumbar   traction,   which   was   unhelpful,   and   continued   work   restrictions.   



Weaver attended physical therapy regularly but showed no significant improvement; a                                                                                                                                                                                                                                                                                                                                                                                                                               



work-hardening program intended to gradually prepare Weaver for a return to work was                                                                                                                                                                                                                                                                                                                                                                                                              



 also unsuccessful. In November 2013 Dr. Johnston considered releasing Weaver to full                                                                                                                                                                                                                                                                                                                                                                                                               



time work but did not do so.                                                                                                                                            



                                                                              Dr. Johnston suggested medial branch blocks, a diagnostic procedure to                                                                                                                                                                                                                                                                                                                                                        



identify which facets cause pain, as an option if Weaver did not improve with physical                                                                                                                                                                                                                                                                                                                                                                                 



therapy, but he did not specifically order them.                                                                                                                                                                                                                                 In a medial branch block nerves related                                                                                                                                                         



to facets at a specific level of the spine are temporarily numbed; if pain is reduced or                                                                                                                                                                                                                                                                                                                                                                                                                   



relieved, doctors conclude that facets at the corresponding level are the pain source. The                                                                                                                                                                                                                                                                                                                                                                                                       



nerve can then be treated with radiofrequency ablation (RFA) for more permanent pain                                                                                                                                                                                                                                                                                                                                                                                                           



relief.   Algone later performed medial branch blocks on Weaver.                                                                                                                                                                                                                                                                                                                              



                                                                              In January 2014 ARCTEC arranged an employer's medical evaluation                                                                                                                                                                                                                                                                                                           



 (EME)    with    Dr.    Stephen    Marble.      Dr.   Marble    diagnosed    "[m]ultilevel    lumbar  



 degenerative disc disease, greatest at L5-S1."                                                                                                                                                                                                                            Dr. Marble said there was "potential for                                                                                                                                                                                    



work factors (as described) causing symptomatic exacerbation" and thought Weaver                                                                                                                                                                                                                                                                                                                                                                                         



 "had evolving degenerative disc disease symptoms over the course of approximately                                                                                                                                                                                                                                                                                                                                                



three years."                                                               Dr. Marble did not think the July 2013 injury was the substantial cause of                                                                                                                                                                                                                                                                                                                                                      



Weaver's disability and need for medical treatment, but he did say the work activities                                                                                                                                                                                                                                                                                                                                                                             



                                       7  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

                                                                              Facet-mediated pain is pain related to the facets, the spinal joints that  

                                                                                                                                                                           

 connect the vertebral bodies.  



                                                                                                                                                                                                                                                     -6-                                                                                                                                                                                                                                     7454  


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

"resulted in a temporary aggravation/exacerbation of Mr. Weaver's preexisting lumbar                                                                                                                                                                                                                                                                                                                                            



condition."  Dr. Marble thought Weaver was medically stable but said Weaver should  



be limited to work in the "light-medium" physical demands category and should not                                                                                                                                                                                                                                                                                                                                                                  



return to work as a station mechanic. ARCTEC controverted all benefits in late January                                                                                                                                                                                                                                                                                                                                      



2014 based on Dr. Marble's report. After the controversion the nurse case manager met                                                                                                                                                                                                                                                                                                                                                             



with Dr. Johnston, without Weaver in attendance, to "fill out paperwork."                                                                                                                                                                                                                                                                                                                       Dr. Johnston   



 signed a "check the box" form letter, written by the nurse case manager, indicating his                                                                                                                                                                                                                                                                                                                                                             



 agreement with Dr. Marble's report.                                                                                                                                                            



                                                                      Dr. Restad wrote a letter supporting Weaver, and Weaver filed a written                                                                                                                                                                                                                                                                           



workers' compensation claim in February 2014.                                                                                                                                                                                                                 ARCTEC denied that further benefits                                                                                                                           



were   due   but   agreed   that   a   second   independent   medical   evaluation   (SIME)   was  



 appropriate.    



                                                                      Weaver  continued   to   see   Dr.   Restad   until   February   2015.     After   the  



controversion he sought medical care referrals from the Veterans Administration (VA).                                                                                                                                                                                                                                                                                                                                                                                      



A   VA physician                                                                            assistant   noted   "moderate"   radiculopathy   on   the   right   and   "mild"  



radiculopathy   on   the   left   when   examining   Weaver.     The   VA   authorized   care   with  



Dr. Samuel Inouye, a family practice doctor.                                                                                                                                                                                                Dr. Inouye ordered an MRI in July 2014                                                                                                                                                        



 at the VA's request; the MRI showed that Weaver's spine was essentially unchanged                                                                                                                                                                                                                                                                                                                         



 since August 2013.  Shortly after seeing Dr. Inouye, Weaver saw Dr. Andrea Trescot,                                                                                                                                                                                                                                                                       



 a pain physician, on referral from Dr. Restad.                                                                                                                                                                                                Dr. Trescot thought Weaver's back pain                                                                                                                                                         

                                                                                                                                                                                                                                                                                                                                                                                                                                           8  and  

was work related; she recommended a transforaminal epidural steroid injection                                                                                                                                                                                                                                                                                                                                                                   



wrote that Weaver had "never received adequate treatment" for his low back pain and  

                                                                                                                                                                                                                                                                                                                                                 



was therefore not medically stable.  

                                                                                                                                                                                         



                                   8                                  Dr. Trescot later explainedthat a transforaminalepidural injection involves                                                                                                                                                                                                                                                                        



injecting an "individual nerve root as it's coming out of [the] foramen," which is "the                                                                                                                                                                                                                                                                                                                                                        

opening where the nerve root exits" the spine.                                                                                                                                                                                                      



                                                                                                                                                                                                                            -7-                                                                                                                                                                                                             7454
  


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

                                                                                                                                

                    Weaver consulted Dr. Louis Kralick, a neurosurgeon, in October 2014 on  



                                                                                                                        

referral from the VA.  Dr. Kralick did not discern any radicular symptoms but ordered  



                                                                                                                        

further testing. Algone performed a second epidural steroid injection that month because  



                                                                                                                

Weaver had "2 days of excellent relief" after the epidural steroid injection administered  



                         

by Dr. Trescot.  



                                                                                                                               

                    On October 30, 2014, Weaver saw Dr. Amy Murphy for the first time for  



                                                                                                                               

treatment related to cognition and his old brain injury; this care was authorized by the  



                                                             

VA.  Dr. Murphy did not treat Weaver for pain but prescribed an antidepressant and a  



                                                                                                                              

muscle relaxant.  Dr. Murphy noted in October that Weaver "[was] having a great deal  



                                                                                                                     

of  psychosocial  stressors"  including  his  wife  filing  for  divorce,  the  workers'  



                                                                                                                              

compensation controversion, a need for financial assistance from his parents, and a lack  



                                                                                                                                  

of income "for months."  In addition, he had been unable to visit his children and had a  



                                                                                                                                 

heart attack.  The VA medical records from earlier in 2014 indicate that Weaver was at  



                                                                                                                                 

one point "overwhelmed with stress" including a divorce, "severe debt," inability to  



                                                                                                                    

work, his workers' compensation "appeal," and "chronic pain issues."  In November  



                                                                                                                               

2014 Dr. Murphy noted that "[t]herapy is not helping a great deal but then again his  



                                                                                                              

stressors continue to be high and this is definitely not helping his care."  



                                                                                                                           

                    Algone continued  to  provide treatment for  Weaver's back  pain,  using  



                                                                                                                             

different  medications  for  pain  relief.                   An  MRI  from  December  2014  showed  that  



                                                                                                                            

Weaver's lumbar condition was stable. In early January 2015 Algone performed a third  



                                                                                                                     

epidural steroid injection.  At about this time Dr. Kralick recommended facet injections  



                                                    

at two levels in the lumbar spine.  



                                                                                                                            

                    In  late  January  2015  Algone  recommended  "diagnostic  lumbar  facet  



                                                                                                                          

blocks" for "mechanical low back pain," and Weaver underwent medial branch blocks  



                                                                                                                          

at several levels, reporting "80% relief" that "lasted for 5 hours."  The branch blocks  



                                                                                                                                

were repeated, but Weaver experienced less pain relief after the second procedure.  At  



                                                               -8-                                                         7454
  


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

                                                                                                                        

about this time Weaver's urinalysis (UA) at Algoneshowed that hewas drinkingalcohol,  



                                                                                              

and Weaver told the doctor he drank "to help with the pain."  



                                                                                                                                     

                    In  March  2015  Dr.  Patrick  Radecki  did  his  first  EME  for  ARCTEC.  



                                                                                                                              

Dr. Radecki did not think Weaver had suffered any injury at work; he said Weaver had  



                                                                                                                        

degenerative disc disease related to age and weight.  Dr. Radecki reported that Weaver  



                                                                                                                                     

had  "nonphysiologic"  responses  to  touch  and  certain  maneuvers  on  examination.  



                                                                                                                               

Dr. Radecki thought Weaver's pain was mainly caused by psychosocial factors but did  



                                                                                                                              

not  think  a  psychological  evaluation  was  necessary  "to  determine  if  there  are  any  



                                                                                                                                  

psychological factors at play because [he and ARCTEC] already kn[e]w that from a  



                                                                                                                                  

comprehensive physical exam, such as [he had] performed."  Dr. Radecki thought a  



                                                                                                                            

psychological  evaluation  might  bolster  the  evidence  ARCTEC  could  present,  even  



                                                                                                                  

though  he  felt  psychological  factors  were  "the  only  explanation  for  [Weaver's]  



                                                                                                                     

presentation." Dr. Radecki noted that a brain MRI showed changes related to Weaver's  



                                                                                                                           

old head injury, which would cause "poor recall."  He suggested that Weaver might  



                                                                                                                             

"have some atypical response to the normal aches and pains of daily living or may have  



                                                                                                                              

a tendency to develop a perseveration of complaints that are nonphysiologic, in part  



                                                            

because of his pathology in his brain."  



                                                                                                                          

                    In  spring  2015 Algone  recommended RFA therapy  at the facet levels  



                                                                                                                           

corresponding to the medial branch blocks.  Algone continued to be concerned about  



                                                                                                                                 

Weaver's use of alcohol, warning that the clinic would not prescribe pain medication if  



                                                                                                                               

Weaver "continue[d] to drink at this level."  Weaver underwent RFA therapy, but it did  



                                                                                                                                     

not bring the expected relief.  Algone treated Weaver's pain with multiple medications.  



                                                                                                                         

In August Algone referred Weaver back to Dr. Kralick for surgical evaluation.  



                                                                                                                                

                    Weaver  underwent  a  SIME  examination  with  Dr.  James  Scoggin  in  



                                                                                                                            

December 2015.  Dr. Scoggin diagnosed degenerative disc disease, chronic low back  



                                                                                                                              

pain, and an "industrial" soft tissue injury in July 2013.  Dr. Scoggin said there was "no  



                                                               -9-                                                         7454
  


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

objective evidence of a permanent aggravation" of Weaver's degenerative disc disease                                                                                                                                                                                                                  



or his chronic low back pain, and he thought Weaver was medically stable from the                                                                                                                                                                                                                                    



effects of the July 2013 injury by the date of Dr. Marble's January 2014 EME.                                                                                                                                                                                                                                         In  



explaining his opinion about medical stability, Dr. Scoggin first noted Dr. Marble's                                                                                                                                                                                                          



opinion that Weaver was medically stable and then noted that Dr. Johnston "concurred                                                                                                                                                                                                    



with" Dr. Marble's conclusions.                                                                                               Dr. Scoggin observed that the pain levels Weaver                                                                                                                     



reported  at   the   SIME   examination   were   similar   to   those   in   Dr.   Marble's   report.   



Dr. Scoggin summarized the treatments Weaver had undergone in the intervening time                                                                                                                                                                                                                               



and noted the lack of improvement in Weaver's pain levels.                                                                                                                                                                                  Dr. Scoggin gave the                                                     



opinion   that   Weaver   would   likely   not   be   able   to   return   to   the   heavy   labor   he   had  



performed   in   the   past   because   of   both   his   lumbar   spine   condition   and   his   cardiac  



problems.    Dr. Scoggin issued several supplemental reports but did not change his                                                                                                                                                                                                                                  



opinion.    

                                                                                                                                                                                                                                            9 which Dr. Kralick had  

                                                  In early April 2016 Algone performed a discogram,                                                                                                                                                                                                                 



recommended, and Weaver reported an immediate reduction in pain. The pain relief was  

                                                                                                                                                                                                                                                                                                                   



short-lived, however, and Algone continued the pain regimen it had established for  

                                                                                                                                                                                                                                                                                                                     



Weaver.  A June 2016 UA tested positive for alcohol.  

                                                                                                                                                                                                          



                                                  In May Dr. Kralick discussed spinal fusion surgery with Weaver because  

                                                                                                                                                                                                                                                                                                    



of his lack of improvement after other treatment. An early July assessment note recorded  

                                                                                                                                                                                                                                                                                                 



"bilateral L5/S1 radiculopathies."  Weaver opted to have surgery, and in mid-July 2016  

                                                                                                                                                                                                                                                                                                               



Dr. Kralick performed an "L4-S1 laminectomy with spinal canal and neural foraminal  

              



decompression" and  "disc excision of left L4-L5."                                                                                                                                                          The operative report  indicated  

                                                                                                                                                                                                                                                                   



                         9                        A discogram injects fluid with dye into a disc to increase pressure and                                                                                                                                                                                          



attempt to reproduce the patient's pain.                                                                                                           The dye allows a physician to see if the disc is                                                                                                                        

leaking and may help determine whether the disc is causing the pain.  Algone injected                                                                                   

an anesthetic with dye into the discs.                                                                                                     



                                                                                                                                                         -10-                                                                                                                                                  7454
  


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

Weaver had "[s]ignificant canal compromise of the thecal sac . . . at both the L4-5 and                                                                



                          10  

L5-S1 levels."                                                                                                                     

                              Dr. Kralick's "BriefOperativeNote"gaveadiagnosisof"[s]pondylosis  



                                                                                                        

of lumbar region without myelopathy or radiculopathy."  



                                                                                                                                                          

                        Weaver followed up with Dr. Kralick's office and continued treatment at  



                                                                                          

Algone for chronic pain.  He reported to Algone that he had decreased pain following  



                                                                                                                                                         

surgery:           in  January  2017  he  reported  "an  average  pain  level  of  3-5/10,"  and  in  



                                                                                                                                                         

March 2017 he rated his pain at three out of ten at the time of the appointment, with an  



                                                                                                                                                     

average  of  three  to  four  when  using  medication.                                            Weaver's  pain  medication  was  



                                                                                                                                                     

decreased by half at that time. In May 2017 he reported that the decreased dosages were  



                                                                                                                               

adequate for his pain, and gave an average pain level of three to five.  



                                                                                                                                        

                        In mid-February 2017 ARCTEC scheduled another EME.  At ARCTEC's  



                                                                                                                                                               

request,  Dr.  Radecki  referred  Weaver  to  Dr.  Ronald  Teed,  an  orthopedic  surgeon.  



                                                                                                                                                      

Dr. Teed thought Weaver's back pain was degenerative in nature, specifically that it was  



                                                                                                                                                     

the result of arthritic changes. He did not think any of Weaver's medical problems were  



                                                                                                                                                    

work related.  ARCTEC asked Dr. Teed questions related to both the 2010 and the 2013  



                                                                                                                                                     

injury reports; Dr. Teed thought Weaver was medically stable as of the date of both  



                 

injuries.  



                                                                                                    

            D.          Board Proceedings, Including Medical Depositions  



                                                                                                                                                       

                        This  was  a  very  contentious  case  with  considerable  litigation,  so  we  



                                                                                                                                             

summarize only the proceedings relevant to this appeal. Weaver filed a written workers'  



                                                                                                                                                          

compensation claim after the January 2014 controversion; he filed an amended claim in  



                                                                                                                                                     

June 2014 related to the July 2013 injury, seeking temporary total disability (TTD) from  



            10          The thecal sac is "the membranous sac of dura mater covering the spinal                                                   



                                                                                                                                             ERRIAM- 

cord and cauda equina and containing cerebrospinal fluid."                                                        Thecal sac          , M 

W       E     B     S     T     E     R            O      N      L    I    N      E            D      I    C     T     I    O     N      A     R     Y      ,  

https://www.merriam-webster.com/medical/thecal%20sac.  



                                                                           -11-                                                                    7454
  


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

 the date of the controversion, medical costs, permanent partial impairment (PPI), and                                                                                                                                                              



 reemployment benefits.                                                 His injury theory was in the alternative:                                                                                      there was either a                                  



 "traumatic incident" or a "cumulative trauma" or both.                                                                                                           Weaver also filed a Request for                                                     



 Cross-Examination, seeking to cross-examine Dr. Marble about his EME report and                                                                                                                                                                   



 Dr. Johnston about his February "check the box" letter.                                                                                                             



                                        In October 2014 Weaver filed a petition to join an additional employer,                                                                                                                  

                                                                                                                                                                                                                              11  He listed  

 asking the Board to join his earlier injuries with ARCTEC to the 2013 injury.                                                                                                                                                                 



 two additional reported injuries, one from December 2010 and one from June 2011, both  

                                                                                                                                                                                                                                                  



 against ARCTEC Alaska and both to his low back. ARCTEC did not oppose the petition  

                                                                                                                                                                                                                                         

 to join and objected to a hearing when Weaver asked for one.12                                                                                                                                        A later prehearing  

                                                                                                                                                                                                              



 conference summary shows that the 2010 case, related to adjusting tire chains, was  

                                                                                                                                                                                                                                                  



joined with the 2013 case, and the Board assigned the 2013 number as the master case  

                                                                                                                                                                                                                                                  

 number.13  

                               



                                        The parties deposed Dr. Scoggin in August 2016, about six weeks after the  

                                                                                                                                                                                                                                                      



 back  surgery.                                 He  reiterated  his  opinions  about  the  2013  injury  and  its  effects  on  

                                                                                                                                                                                                                                                      



 Weaver's degenerative disc disease. Dr. Scoggin called Weaver's pain "multifactorial,"  

                                                                                                                                                                                                               



                    11                  See  8 Alaska Administrative Code (AAC) 45.040 (2011) (allowing joinder                                                                                                                           



 of parties).                     Weaver did not explain why he petitioned to join an additional employer to                                                                                                                                             

 the 2013                    injury claim,                             but it appears he was                                                using a process like that used                                                                 in   last  

 injurious exposure rule cases.                                                          See Morrison v. Alaska Interstate Constr., Inc.                                                                                          , 440 P.3d      

 224, 228 (Alaska 2019) (summarizing process used tojoinfirst                                                                                                                        employer in last injurious                      

 exposure rule case).                      



                    12                  See 8 AAC 45.040(h)(2) (providing that a party "is joined without further  

                                                                                                                                                                                                                                           

 [B]oard action" when no timely objection is filed).  

                                                                                                                                    



                    13                  See  8  AAC  45.040(k)  ("If  claims  are  joined  together,  the  [B]oard  or  

                                                                                                                                                                                                                                                       

 designee will notify the parties which case number is the master case number."). Weaver  

                                                                                                                                                                                                                                        

 raised an issue only about the 2010 injury, not the 2011 injury, in his appeal to this court.  

                                                                                                                                                                                                                                                                  



                                                                                                                          -12-                                                                                                                  7454
  


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

                                                                                                                     

saying "he's got facet, he's got disc, he's got now spinal stenosis."  In Dr. Scoggin's  



                                                                                                                      

opinion the multifactorial aspect of Weaver's pain made it more likely that the condition  



                                                                                                                               

was degenerative.  Dr. Scoggin explained that as people age their discs deteriorate, and  



                                                                                                                              

that the process can be accelerated by a number of factors, "including obesity, age,  



                                                                                                                             

genetic factors," trauma (including disc herniation), and "any sort of injury to the spine  



                                                       

that's disruptive of the anatomy or structure."  



                                                                                      

                    Responding to ARCTEC's questions, Dr. Scoggin testified that based on  



                                                                                                     

the information he had reviewed, he thought the 2010 injury was the substantial cause  



                                                                                                                                

of Weaver's disability and need for medical treatment after January 2014, which was the  



                                                                                                                                      

month he had estimated Weaver became medically stable as a result of the 2013 injury.  



                                                                                                                         

To support this opinion Dr. Scoggin pointed out that Weaver had reported a specific  



                                                                                                                               

activity in 2010 - putting heavy chains on a road grader and tightening them - and that  



                                                                                                                                      

from that time forward Weaver's pain complaints may not have completely resolved.  



                                                                                                                                 

Dr. Scoggin did not consider Weaver's surgery reasonable or necessary and said he  



                                                                                                  

would not attribute any need for the surgery to the 2010 injury.  



                                                                                                                                   

                    The parties deposed Dr. Trescot and Dr. Teed.  Dr. Trescot stated that a  



                                                                                                                                

pain physician needs to assess a patient's mental health when considering treatment for  



                                                                                                                                  

pain.  Dr. Trescot agreed (as a hypothetical) that she would "be concerned that there is  



                                                                                                                        

an underlying issue that isn't being addressed" if a patient did not get relief frommultiple  



                                                                                                                            

types of treatment such as narcotics, anti-inflammatories, medial branch blocks, RFA,  



                                                                                                                              

and surgery.  And Dr. Trescot agreed that when a pain patient does not improve in spite  



                                                                                                                     

of multiple treatments, it may be related to "untreated depression or anxiety," "substance  



                                                                                                                         

abuse," or potential secondary benefits of a lack of improvement; she said that "[t]hose  



                                                                                                                                   

are usually things you would start looking for when patients don't get better with a  



                                                        

treatment that you have identified."  



                                                               -13-                                                         7454
  


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

                                                                                                                            

                    Dr. Teed testified that when a patient does not improve after multiple types  



                                                                                                                             

of treatment, "that's a red flag for functional overlay" and that treating physicians need  



                                                                                                                                     

to  have information  about substance abuse and  the patient's mental  health history.  



                                                                                                                                

Dr. Teed would not give an opinion when asked whether psychosocial issues were "a  



                                                                                                                        

large part of [Weaver's] ongoing pain complaints" because this asked for an opinion  



                                                                                                                              

outside his specialty; he said he would "call for a consultation and psychologic and  



                                                                                

psychiatric and multidisciplinary evaluation on this claimant."  



                                                                                                                              

                    The Board held a two-part hearing on the merits of Weaver's claim.  The  



                                                                                                                      

first took place in March 2017 and featured four witnesses:  Dr. Restad, Dr. Radecki,  



                                                                                                                                     

Weaver, and Weaver's father.  The second was in July and had one rebuttal witness.  



                                                                                                                   

Prior to hearing testimony in March the Board heard arguments related to procedural  



                                                                                                                               

disputes but did not make oral rulings on the issues that are on appeal to us.  Instead, the  



                                                                                                                               

Board held a prehearing conference about three weeks after the hearing and ordered the  



                                                                                                             

parties to file short briefs about Weaver's request to cross-examine Dr. Johnston.  



                                                                                                                     

                    We summarize only that hearing testimony directly relevant to the issues  



                                                                                                                              

on appeal. Dr. Radecki's testimony was generally consistent with his reports, and he was  



                                                                                                                              

highly critical of Weaver's healthcare providers.  Dr. Radecki's chief opinion was that  



                                                                                                                                

Weaver's pain was mainly psychological in origin and not in his back, although he  



                                                                                           

thought the pain might be related to Weaver's head injury.  He testified that Weaver's  



case was "a very complex situation" because of the "known psychosocial problem[s]"  



                                                                                                                     

documented in the medical records, including drug and alcohol use, monetary problems,  



                                                                                                                             

a  divorce,  and  a  history  of  depression  and  anxiety.                           Dr.  Radecki  considered  that  



                                                                                                                                 

Weaver's old head injury could affect his judgment or could make him more likely to  



                                                                                                             

have total body pain.  Dr. Radecki considered Weaver's pain to be a "psychological  



                                                                                                                       

condition" involving "the mind-brain interface with the rest of the body."  Dr. Radecki  



                                                                                                                                

did not feel it was inappropriate for him to testify about psychological issues because he  



                                                              -14-                                                         7454
  


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

                                                                                                                        

had some related training during his residency and because he could "give any opinion  



                                                                           

[he] want[ed]" as long as it was "substantiated."  



                                                                                                                        

                    The Board issued a decision in late October 2017 and decided that Weaver  



                                                                                                                                  

had not carried his burden of proof.  The Board first considered the procedural issues it  



                                                                                                                              

had not addressed at the hearing and decided that both Dr. Marble's EME report and  



                                                                                                                                 

Dr. Johnston's concurrences should be excluded from consideration by the Board.  It  



                                                                                                                               

then decided that no claim for benefits related to the 2010 injury was at issue at the  



                                                                                                                 

hearing because Weaver had not filed a written claim specifically for that injury.  



                                                                                                                              

                    Turning  to  the  merits,  the  Board  decided  Weaver  had  attached  the  



                                                                                                                             

presumption of compensability and that ARCTEC had rebutted it.   The Board said  



                                                                                                                  

ARCTEC  "rebut[ted]  the  presumption  with  Dr.  Radecki's  opinion  that  [Weaver's]  



                                                                                                                              

continuing need for medical treatment was caused by factors other than work, and  



                                                                                                                               

Dr. Scoggin's opinion that [Weaver] suffered a soft tissue injury that had resolved by the  



                                                                                                                               

time of Dr. Marble's . . . evaluation."  The Board did not use Dr. Teed's opinions at the  



                       

rebuttal stage.  



                                                                                                                                 

                    Considering the third stage of the analysis, the Board gave little weight to  



                                                                                                                              

Dr. Restad's opinions because in its view her "hearing testimony was contradictory and  



                                                                                                                           

problematic."   It also gave little weight to Dr. Kralick's opinions because he never  



                                                                                                                        

testified.  It gave little weight to Dr. Trescot's opinions because she only saw Weaver  



                                                                                       

twice and her "opinions faltered on cross-examination."  



                                                                                                                           

                    In discussing Dr. Radecki's opinions, the Board said those opinions "were  



                                                                                                                              

initially viewed with some skepticism," in part because Weaver's pain responses that  



                                                                                                                 

Dr. Radecki noted "were not previously noted by other providers."  It then summarized  



                                                                                                                          

Dr. Radecki's opinions as well as those of Dr. Scoggin and Dr. Teed.   The Board  



                                                              -15-                                                         7454
  


----------------------- Page 16-----------------------

                                                                                                                               

afforded  little  weight  to  Dr.  Teed's  opinions,  and  gave  "substantial  weight"  to  



                                                                   

Dr. Scoggin's and Dr. Radecki's opinions.  



                                                                                                                                

                    The Board thought Weaver's "alcohol abuse" was "a compelling aspect in  



                                                                                                                                

this case," but it cited other psychosocial factors mentioned by Dr. Radecki that it  



                                                                                                                            

considered relevant.  The Board was troubled by Weaver's "lack of response to very  



                                                                                                                     

extensive and prolonged treatment," listing the numerous treatments he had received,  



                                                                                                                              

including the pain management regimen and numerous drugs.   The Board noted the  



                                                                                                                             

agreement between Drs. Radecki, Trescot, and Teed that when a claimant does not  



                                                                                                                          

respond to multiple treatments, psychosocial factors need to be considered.  The Board  



                                                                                                                          

decided that the evidence showed Weaver's non-work-related factors were a more likely  



                                                                                                             

cause of his continuing pain and decided he had not proved his claim by a preponderance  



                          

of the evidence.  



                                                                                                                            

                    Weaver appealed to theCommission, and the Commission first agreed with  



                                                                                                                    

the Board's decision.  The Commission affirmed the Board's decision that ARCTEC  



                                                                                                                      

rebutted the presumption.   The Commission also affirmed the merits of the Board's  



                                                                                                                    

decision because in its view substantial evidence in the record, specifically Dr. Radecki's  



                                                                                                                              

and Dr. Scoggin's opinions, supported that decision.   The Commission decided the  



                                                                                                                                    

Board had made adequate findings, discussing issues related to Dr. Radecki's credibility.  



                                                                                                                          

                    Turning to the procedural issues, the Commission decided that the Board  



                                                                                                                              

had appropriately handled the exclusion of Dr. Johnston's and Dr. Marble's reports. The  



                                                                                                                       

Commission decided that Drs. Radecki and Scoggin "based their findings of medical  



                                                                                                                    

stability not only on [Dr. Marble's] date for medical stability, but also on Mr. Weaver's  



                                                                                                                              

lack of improvement for more than 45 days in 2014."  The Commission considered the  



                                                                                                                

Board's "references to Dr. Marble's report" to be "incidental factors." The Commission  



                                                                                                                            

wrote that "Weaver's right to cross-examine Dr. Marble and Dr. Johnston was also  



                                                              -16-                                                        7454
  


----------------------- Page 17-----------------------

properly protected by the Board's exclusion of those two items from the Board's own                                                                                                                                             



deliberations and conclusions."                                                         



                                     Finally,   the   Commission   agreed   with   the   Board's   interpretation   of   its  



regulation   about   joining   claims.     Relying   on   one   of   its   own   prior  decisions,   the  



Commission decided that the lack of a specific reference to the 2010 injury on the written                                                                                                                               



claim from June 2014, together with the prehearing conference summary that identified                                                                                                                             



the June 2014 written claim as the subject of the hearing, supported the Board's decision                                                                                                                             



to limit the issues to the 2013 injury.                                                                     According to the Commission ARCTEC was                                                                               



"never put on notice that benefits were sought arising out of the 2010 injury, nor what                                                                                                         



those benefits might be."                                             Weaver appeals.   



III.               STANDARD OF REVIEW                                 



                                     In an appeal from the Commission, we review the Commission's decision                                                                                                            



                                                       14  

and not the Board's.                                                                                                                                                                                           

                                                             We independently review a Commission decision that substantial  



                                                                                                                                                                                                                           

evidence supports the Board's findings of fact by independently reviewing the record  



                                                                          15  

                                                                                                                                                                                                                                        

and  the  Board's  findings.                                                        "Substantial  evidence  is  such  relevant  evidence  as  a  

                                                                                                                                                                                              16       "Whether the  

                                                                                                                                                                                                                                   

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

quantum of evidence is substantial is a question of law."17                                                                                                      "Whether the [B]oard made  

                                                                                                                                                                                                                              



                   14               Alaska  Airlines,  Inc.  v.  Darrow,  403  P.3d  1116,  1121  (Alaska  2017)  (citing  



Humphrey  v.  Lowe's  Home  Improvement  Warehouse,  Inc.,  337  P.3d  1174,  1178  (Alaska  

2014)).   



                   15               Humphrey, 337 P.3d at 1178 (citing Shehata v. Salvation Army , 225 P.3d  

                                                                                                                                                                                                                                

 1106, 1113 (Alaska 2010)).  

                                                        



                   16               Id.  at  1179 (quoting DeYonge v. NANA/Marriott,  1 P.3d 90, 92 (Alaska  

                                                                                                                                                                                                             

2000)).  



                   17               Id. (citing Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d  

                                                                                                                                                                                                                                

624, 630 (Alaska 2011)).  

                                                                       



                                                                                                                 -17-                                                                                                          7454
  


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

                                                                                                                 18  

sufficient   findings is             a question         of law that we review de novo."                                We review an        



                                                                                                                                            19  

agency's interpretation of its own regulation under the reasonable basis standard.                                                               



"When we review the Commission's legal conclusions about the Board's exercise of  

                                                                                                                                            



discretion or legal rulings, we also independently assess the Board's rulings and in so  

                                                                                                                                

doing apply the appropriate standard of review."20  

                                                                                     



IV.	       DISCUSSION  



                                                                                                                                         

           A.	        The Commission Correctly Concluded That ARCTEC Rebutted The  

                                                    

                      Presumption Of Compensability.  



                                                                                                                                  

                      WeaverarguestheCommission erred in concluding that ARCTECrebutted  



                                                                                                                                            21  

                                                                                                                                       

the presumption of compensability.  He points out that in Huit v. Ashwater Burns, Inc. 



                                                                                                                                      

we did not decide how the presumption analysis applies when another possible cause  



                                                                                                                                        

contributes  to  the  disability  or  need  for  medical  treatment.                                            He  contends  that  



                                                                                                                                                 

Dr. Radecki's opinion was not substantial evidence that could rebut the presumption.  



                                                                                                                                       

Weaver maintains that Dr. Radecki's opinion was "inconsisten[t]" and failed "to name  



                                                                                                                                            

a credible generator of Weaver's pain," which essentially meant Dr. Radecki pointed to  



                                                                                                                                        

an "unknown cause."  He argues that Dr. Radecki's opinion that his continuing pain  



                                                                                                                                  

complaints were due to psychosocial factors was a psychological diagnosis Dr. Radecki  



                                                                                                                          

was not qualified to make.   ARCTEC responds that the Board and the Commission  



                                                                                                                                  

considered both the opinions of Dr. Scoggin and Dr. Radecki in deciding it had rebutted  



                                                                                                                                          

the presumption and that either opinion alone was adequate. In reply Weaver asserts that  



           18         Pietro  v.   Unocal   Corp.,  233  P.3d   604,   611   (Alaska   2010)   (alteration   in  



original)  (quoting  Leigh  v.  Seekins  Ford,   136  P.3d  214,  216  (Alaska  2006)).  



           19         Eder  v.  M-K  Rivers,  382  P.3d   1137,   1140  (Alaska  2016).  



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



           21         372  P.3d  904  (Alaska  2016).  



                                                                    -18-	                                                             7454
  


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

the Board used both opinions to rebut the presumption so that "if one opinion fails they                                                                                                                                                                                                                                                                                    



both fail to overcome the presumption."                                                                                                                                             



                                                           As relevant to this appeal, Weaver sought TTD after January 15, 2014, and                                                                                                                                                                                                                                            



continuing medical benefits in his amended workers' compensation claim.                                                                                                                                                                                                                                                                         ARCTEC  



denied that Weaver was entitled to TTD after January 15, 2014, or to any additional                                                                                                                                                                                                                                                               



medical benefits after January 9, 2014, relying on Dr. Marble's opinions that (1) Weaver                                                                                                                                                                                                                                                                      



 suffered "a temporary aggravation/exacerbation" of his non-work-related preexisting                                                                                                                                                                                                                                                         



degenerative disc                                                            diseasefromhis 2013 work activities;                                                                                                                                 (2) Weaver was medically stable                                                                                      



from the effects of the 2013 injury; and (3) any medical care related to Weaver's back                                                                                                                                                                                                                           



pain after January 9 was necessitated by his non-work-related preexisting degenerative                                                                                                                                                                                                                                                 



disc disease.                                             



                                                           Weaver is correct that we did not decide in                                                                                                                                                         Huit  how the 2005 workers'                                                             



compensation amendments affected the second stage of the presumption analysis when                                                                                                                                                                                                                                                                                      



there is a competing cause.                                                                                              We do not decide that issue here because ARCTEC offered                                                                                                                                                                                



 substantial evidence that rebutted the presumption under pre-2005 case law.                                                                                                                                                                                                                                                                             Because  



ARCTEC's evidence rebutted the presumption that work was a substantial factor in                                                                                                                                                                                                                                                                                                      



causing the disability, it necessarily rebutted a narrower presumption that work was the                                                                                                                                                                                                                                                                                          

 substantial cause.                                                           22  



                                                           At the second stage of the presumption analysis the evidence is viewed in  

                                                                                                                                                                                                                                                                                                                                                                                       

isolation and is not weighed.23  To rebut the presumption under the pre-2005 analysis,  

                                                                                                                                                                                                                                                                                                                                                         



an  employer  needed  sufficient  evidence  "that  either  (1)  provided  an  alternative  

                                                                                                                                                                                                                                                                                                                                             



explanation  that  would  exclude  work-related  factors  as  a  substantial  cause  of  the  

                                                                                                                                                                                                                                                                                                                                                                               



                              22                           See id.                       at 919 ("[S]omething cannot be 'the                                                                                                                         substantial cause' of a disability                                                           



if it is not a cause at all.").                                                            



                              23                           Pietro, 233 P.3d at 611.  

                                                                                                                                                 



                                                                                                                                                                                       -19-                                                                                                                                                                                7454
  


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

disability, or (2) directly eliminated any reasonable possibility that employment was a  

 factor  in  causing  the  disability."24  

                                                                                                                                                                                    Either   Dr.   Radecki's   or   Dr.   Scoggin's   opinion  



provided   an   explanation   that  if   believed   would   exclude   work-related   factors   as   a  



 substantial cause of Weaver's continuing disability and need for medical treatment.                                                                                                                                                                                                                                                                                                                                              



                                                                  Both Drs. Radecki and Scoggin diagnosed Weaver with non-work-related                                                                                                                                                                                                                



degenerative disc disease. Dr. Scoggin diagnosed a soft tissue injury related to Weaver's                                                                                                                                                                                                                                                                                                     



work in July 2013, but he said the soft tissue injury would have resolved within a few   



months, and certainly by January 9, 2014, the date of Dr. Marble's EME.                                                                                                                                                                                                                                                                                                   This opinion   



provided an alternative explanation that excluded work-related factors as a substantial   



cause of Weaver's continuing disability and need for medical care after January 15,                                                                                                                                                                                                                                                                                                                                         



2014.  



                                                                  Dr. Radecki did not think Weaver had suffered any work-related injury in                                                                                                                                                                                                                                                                                         



2013, so any need for medical treatment or disability was not work-related. Dr. Radecki                                                                                                                                                                                                                                                                                                              



 attributed Weaver's pain complaints to psychosocial factors or possibly to the traumatic                                                                                                                                                                                                                                                                                                      



brain injury from years before.                                                                                                                           Weaver contends that Dr. Radecki lacked the expertise                                                                                                                                                                                 



to make a psychological diagnosis, but at oral argument before us, Weaver agreed that                                                                                                                                                                                                                                                                                                                                     



 a physical medicine and rehabilitation specialist like Dr. Radecki can properly consider                                                                                                                                                                                                                                                                                                          



psychosocial factors when diagnosing and treating a patient for pain. Weaver's                                                                                                                                                                                                                                                                                                                   response  



 suggests that his concern is not with Dr. Radecki's expertise but with the purpose of                                                                                                                                                                                                                                                                                                                                           



Dr. Radecki's statement.                                                                                                      We regard Weaver's argument as largely immaterial in any                                                                                                                                                                                                                                    



 event.    Several   of   Weaver's   own   healthcare   providers   noted   the   existence   of   his  



psychosocial stressors, and Dr. Murphy specifically said the stressors were impacting                                                                                                                                                                                                                                                                                                     



Weaver's care.                                                                 Dr. Radecki did not make a psychiatric diagnosis but instead cited                                                                                                                                                                                                                                                                  



 factors that other medical doctors considered when treating Weaver, so we consider                                                                                                                                                                                                                                                                                                              



                                 24  

                                                                                                                                                         

                                                                  Huit, 372 P.3d at 917.  



                                                                                                                                                                                                             -20-                                                                                                                                                                                                     7454  


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

Dr.  Radecki's  expertise  adequate  to  render  an  opinion  about  the  influence  of  

                                                                                                                               



psychosocial factors on Weaver's pain.  

                                                              



                    Dr.  Radecki's  opinion  that Weaver had  degenerative disc disease that  

                                                                                                                              



preexisted the2013 injury report together withhis opinion that Weaver's continuing pain  

                                                                                                                              



couldbeattributed to psychosocialfactors provided anexplanation that ifbelieved would  

                                                                                                                           



exclude work-related factors as a substantial cause of Weaver's continuing disability and  

                                                                                                                               



need for medicaltreatment. Wethereforehold that theCommission correctly determined  

                                                                                                                   



that ARCTEC rebutted the presumption.  

                                          



          B.	       The Commission Correctly Concluded That Substantial Evidence In  

                                                                                                                 

                    The Record Supported The Board's Decision.  

                                                                                



                    Weaver argues that the Board made a legal error when it "determined that  

                                                                                                                              



Weaver's lack of improvement despite treatment undermined his proof of causation."  

                                                                                                                                     



As to the facts, he contends that his symptoms "did improve with appropriate treatment"  

                                                                                                                    



because his pain decreased after the surgery such that he reduced his medication dosage  

                                                                                                                         



by half. He argues that "the Board required [him] to show improvement of his symptoms  

                                                                                                                    



in order to meet his burden regarding causation" and that this is erroneous because some  

                                                                                                                            



work-related  conditions  by  their  nature  will  never  improve,  making  improvement  

                                                                                                               



irrelevant to causation.  

                                     



                    Weaver misreads the Board's decision.  The Board's statement in essence  

                                                                                                                        



summarized what several doctors had said.  Weaver underwent multiple treatments for  

                                                                                                                               



his back pain, some of which had a diagnostic function as well. For example Dr. Trescot  

                                                                                                                         



explained how medial branch blocks are used to diagnose facet-related pain.  Weaver's  

                                                                                                                     



responses to the different treatments - first reporting improvement and then reporting  

                                                                                                                      



little or no improvement in his condition - made the pain difficult both to treat and to  

                                                                                                                                 



diagnose.  Without a good idea of what underlying condition caused the pain, it was  

                                                                                                                              



difficult for the doctors or the Board to determine causation.  Weaver's responses to  

                                                                                                                                 



                                                              -21-	                                                        7454
  


----------------------- Page 22-----------------------

                                                                                                                               

different treatments prompted Dr. Scoggin to label Weaver's pain "multifactorial" and  



                                                                                                                                

conclude that the main reason for the pain was Weaver's degenerative changes in his  



                                                                                                                 

spine.  Dr. Scoggin based this opinion on the following factors:  Weaver (1) had some  



                                                                                                                              

response (mostly transitory) to many types of treatment, (2) had no complete relief with  



                                                                                                                         

any one type of treatment (not even the surgery), and (3) was unable to identify a specific  



                                                                                                                                

activity  that  might  have  caused  a  change  in  his  lower  back  (a  disc  herniation,  for  



                                                                                                                             

example) that would explain the increased pain.  Additionally, Weaver reported some  



                                                                                                                      

improvement after the surgery even though his records did not consistently document  



                                                                              

symptoms associated with lumbar spinal stenosis.  



                                                                                                                  

                    Weaver's theory is that spinal stenosis was the real cause of his pain and  



                                                                                                                                      

that  the  heavy  labor  he  did  in  2013  was  the  substantial  cause  of  this  condition.  



                                                                             

Dr. Scoggin agreed that "wear and tear" can be a factor in causing spinal stenosis, but  



                                                                                                                             

he did not think there was "anything that's quantifiable or definable" to determine what  



                                                                                                                             

part of the stenosis was caused by Weaver's job.  Dr. Scoggin listed a number of other  



                                                                                                                               

factors that could contribute to spinal stenosis, including a traumatic event, age, and  



                                                                                                                             

genetics.  He also testified that Weaver's weight was a contributing factor to the back  



                                          

condition, although he did not identify that factor specifically with the spinal stenosis.  



                                                                                                                               

Dr. Scoggin identified the earlier trauma Weaver experienced in "two big accidents" (the  



                                                                                                                               

1993 motor vehicle accident that "tore [Weaver's] aorta" and the later accident that  



                                                                                                                 

resulted in removal of Weaver's spleen) when listing possible causes of the degenerative  



                                             

changes in Weaver's spine.  



                                                                                                                                

                    As  to  Weaver's  contention  that  the  Board  erroneously  determined  his  



                                                                                                                        

condition did not improve with any treatment, substantial evidencein the record supports  



                                                                                                                     

the Board's decision.  Although the medical records indicate that Weaver's prescribed  



                                                                                                                          

doseofnarcotics decreased following surgery, the pain level he reported after thesurgery  



                                                                                                                                 

was similar to or higher than pain levels he had reported earlier in his treatment.  In  



                                                               -22-                                                         7454
  


----------------------- Page 23-----------------------

August 2013 Weaver reported to Dr. Restad pain that was three out of ten.                                                                                                                                                   In late 2014          



Weaver reported to Algone an average pain level of five.                                                                                                                    In May 2017, more than ten                                                  



months after the surgery, Weaver reported an average pain level of three to five, with                                                                                                                                                             



medication.   This is not a dramatic improvement over a reported average of five earlier.                                                                                                                                                                           



And according to Dr. Teed, Weaver reported that the surgery had reduced sharp pains                                                                             



in his back but that ongoing dull pain continued to be disabling.                                                                                                                               



                                        Weaver discusses past Board decisions in which Dr. Radecki's opinions                                                                                                                          



were given little weight, but we agree with ARCTEC that the Board can decide in an                                                                                                                                                               



individual case that Dr. Radecki's opinions are persuasive and entitled to substantial                                                                                                                                          

                       25        As a general matter, if an employer's evidence is sufficient to rebut  the  

weight.                                                                                                                                                                                                                             



presumption and if the Board later decides that evidence is entitled to more weight, then  

                                                                                                                                                                                                                                                    

substantial evidence in the record supports the Board's decision.26  Because the Board  



gave the most weight to Dr. Radecki's and Dr. Scoggin's opinions, those opinions  

                                                                                                                                                                                                                                      

provided substantial evidence to support the Board's decision.27  

                                                                                                                                                               



                    25                  See   AS   23.30.122   ("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.").                                                                                



                    26                  See Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004) ("The evidence  

                                                                                                                                                                                                                                      

that was sufficient to rebut the presumption of compensability was also sufficient to  

                                                                                                                                                                                                                                                          

support   the   [B]oard's   determination   that   [the   claimant]   failed   to   show   by   a  

                                                                                                                                                                                                                                                          

preponderance of the evidence that her injury was work-related.").  

                                                                                                                                                      



                    27                  We  reject Weaver's argument that the Board failed to  make adequate  

                                                                                                                                                                                                                                     

findings about inconsistencies in Dr. Radecki's testimony and about the outcome of  

                                                                                                                                                                                                                                                          

Weaver's surgery.  We also reject his argument that the Board was required to make  

                                                                                                                                                                                                                                                

further findings than it did about the lay testimony.  In our view, the Board's findings  

                                                                                                                                                                                                                                        

were more than adequate to permit our review.  

                                                                                                                     



                                                                                                                          -23-                                                                                                                    7454
  


----------------------- Page 24-----------------------

            C.         The Board Did Not Violate Weaver's Due Process Rights.                                         



                       In   Commercial   Union  Cos.   v.   Smallwood   we   considered   whether   an  



employer had waived its right to cross-examine a claimant's doctors about their medical                                                   



                28  

                                                                                                                                                  

opinions.             The employer had the doctors' written reports at least 30 days before the  



                                                                     29  

                                                                                                                                                  

hearing but had not deposed the doctors.                                 Relying on an earlier case, we held that in the  



                                                                                                                                                     

absence of a Board regulation delineating when a party waived cross-examination of a  



                                                                                                                                                  

medical opinion's author, the employer had not waived his right to cross-examine the  



              30  

                                                                                                                                                    

doctors.           The Board later adopted a regulation about cross-examining the authors of  



                               31  

                                     

medical opinions. 



                                                                                                                                              

                       It is undisputed that Weaver did not waive his right to cross-examine either  



                                                                                                                                                        

Dr. Marble about his EME report or Dr. Johnston about his concurrence in that report.  



                                                                                                                                                

In its written decision, the Board decided it would exclude these reports from its own  



                                                                                             32  

                                                                                                                                

consideration but did not strike them from the record.                                            On appeal to the Commission,  



                                                                                                                                    

Weaver argued that theBoardviolated his due process rights as recognized in Smallwood  



                                                                                                                                              

because the Board's decision relied on the opinions of Drs. Scoggin, Radecki, and Teed,  



                                                                                                                                          

all of whom had in turn relied on the opinions of Drs. Marble and Johnston, the doctors  



                                                                                                                                              

he had not been able to cross-examine.  The Commission decided that "none of these  



            28         550  P.2d   1261,   1264-67  (Alaska   1976).  



            29         Id.  at   1262-63.  



            30         Id.  at  1264-66  (citing  Emp'rs  Commercial  Union  Ins.  Grp.  v.  Schoen,  519  



P.2d  819,  823-24  (Alaska   1974)).  



            31         8  AAC  45.052.  



            32         Because  the  Board   does  not  require  the  parties  to   file  witness   lists  until  



"five  working  days"  before  a  hearing,  the  parties  may  not k                                     now  until  shortly  before  a  

hearing          whether           they       will      have        the      opportunity             to     cross-examine               doctors.   

8  AAC  45.112.  



                                                                        -24-                                                                  7454
  


----------------------- Page 25-----------------------

                                                                                                                                

doctors based their findings of medical stability solely on Dr. Marble's report or on  



                                                                                                                                 

Dr. Johnston's 'check-the-box' form," viewing any reference to Dr. Marble's report as  



                                                                         

"incidental" to the other doctors' conclusions.  



                                                                                                                         

                    Weaver argues that the Commission's decision was erroneous and repeats  



                                                                                                                      

his argument that the Board violated his right to cross-examination. ARCTEC contends  



                                                                                                                                 

that Weaver's due process rights were adequately protected by the Board's exclusion of  



                                                                                                                           

those medical reports from its own decision making and by Weaver's ability to cross- 



                                                                                                                        

examine both Dr. Scoggin and Dr. Radecki. In reply Weaver points out that Dr. Scoggin  



                                                                                                                                

used Dr. Marble's examination date as the date of medical stability; he contends that he  



                                                                                                                           

was unable to ask Dr. Marble the basis for his opinion and cross-examine him about  



                                                                                                                      

continuing pain. Weaver lists the multiple references Dr. Scoggin made to the excluded  



                                                                                                                

reports and notes that Dr. Radecki and Dr. Teed referred to them as well.  



                                                                                                                     

                    Under the facts of this case, we agree with the Commission that Weaver's  



                                                                                                                        

due process rights as recognized in Smallwood  were adequately protected.   Neither  



                                                                                                                                 

Dr. Radecki nor Dr. Scoggin relied exclusively, or even primarily, on Dr. Johnston's or  



                                                                                                                              

Dr. Marble's excluded opinions. In fact, in his first EME report, Dr. Radecki opined that  



                                                                                                                                

Weaver had reached medical stability from the effects of his July 2013 work injury by  



                                                                                                                    

November  2013,  well  before  Dr.  Marble's  January  9,  2014  EME.                                        Dr.  Radecki's  



                                                                                                                        

identification of November 2013 was influenced by a part of Dr. Johnston's medical  



                                                                                                                            

record that Weaver did not object to, specifically a chart note from early November 2013  



                                                                                                                             

in which Dr. Johnston discussed with Weaver the possibility of returning to full duty  



                                                                                                                             

work if it was available. At the hearing Dr. Radecki indicated his "full agreement" with  



                                                                                                                                

Dr. Scoggin and Dr. Marble that "being generous" Weaver was medically stable by  



                                                                                                                               

January 9, 2014.  Weaver had ample opportunity to cross-examine Dr. Radecki at the  



                                                                                                                           

hearing about this opinion and why his opinion about the date of medical stability might  



         

have changed.  



                                                              -25-                                                         7454
  


----------------------- Page 26-----------------------

                                                                                                                               

                    Dr. Scoggin diagnosed Weaver with degenerative changes in his spine and  



                                                                                                                                 

thought Weaver suffered only a soft tissue injury related to his work for ARCTEC in  



                                                                                                                                  

July 2013.  Dr. Scoggin testified that "soft tissue strains tend to resolve in a period of a  



                                                                                                                          

few months," adding that by January 2014 Weaver had been medically stable for "more  



                                                                                                                          

than a few months."  This testimony implies that Dr. Scoggin, like Dr. Radecki, would  



                                                                                                                                 

have placed the date of medical stability from the July 2013 injury earlier than January 9,  



                                                                                                                                 

2014.  Weaver had ample opportunity to cross-examine Dr. Scoggin about the basis of  



                                                                                                                                

his opinions, and in fact did so.  Dr. Scoggin's report and testimony demonstrate that he  



                                                                                                                        

independently assessed the medical evidence to give an opinion about medical stability  



                                                                                                                                 

and did not simply rely on Dr. Marble's excluded EME report to diagnose Weaver or to  



                                                                                                                 

estimate the date he became medically stable.  We therefore agree with the Commission  



                                                               

that "[w]hile it might have been prudent for ARCTEC" to have presented Drs. Marble  



                                                                                                                   

and Johnston as witnesses, Weaver's due process rights as recognized in Smallwood  



                                                                                                                               

were not violated because the doctors the Board relied on independently assessed the  



                                                                                                        

medical evidence and reached their own conclusions about medical stability.  



                                                                                                            

                    Although we affirm the Commission's decision, we note that the process  



                                                                                                                                 

the Board used here is potentially problematic.  Even though Weaver objected to use of  



                                                                                                                        

Dr. Marble's EME report and Dr. Johnston's form response at the outset of the hearing,  



                                                                                                                               

the Board made no ruling on the objection until it issued its final decision, after the  



                                                                                                                                     

parties  had  completed  both  the  hearing  on  the  claim  and  their  written  arguments.  



                                                                                                                     

Objections to evidence should be decided promptly because admissibility or exclusion  



                                                                                                                               

of evidence can affect litigation strategy, including questioning witnesses.  Here, for  



                                                                                                                                 

example, ARCTEC referred to Dr. Marble's report when questioning Dr. Radecki in  



                                                                                                                        

spite of Weaver's objection. AndDr. Radecki compared his own examination of Weaver  



                                                                                                                    

to Dr. Marble's to illustrate points he was making. The Board should rule on objections  



                                                              -26-                                                         7454
  


----------------------- Page 27-----------------------

like Weaver's promptly so that the parties can make informed decisions about presenting                                                                        



their cases.   



                            Finally, we observe that under Alaska Evidence Rule 703 experts can use                                                                          



inadmissible evidence to form opinions as long as it is the type of evidence experts in the                                                                                   



field reasonably rely on.                            While the Board "is not bound by common law or statutory                                                     

                                      33 we note that Dr. Scoggin and Dr. Radecki could, consistent with this  

rules of evidence,"                                                                                                                                                          



rule, use inadmissible evidence to form an opinion about medical stability.   While  

                                                                                                                                                                      



Evidence Rule 703 "is not intended merely to provide a conduit for the admission of  

                                                                                                                                                                               

otherwise inadmissible evidence,"34  in this case Dr. Radecki and Dr. Scoggin did not  

                                                                                                                                                                             



merely  provide a conduit for  Dr.  Marble's opinion.                                                               Their  testimony  showed  their  

                                                                                                                                                                          



independent assessment of Weaver's condition in rendering their opinions.  

                                                                                                                                         



              D.	           The  Commission  Correctly  Concluded  That  The  Board  Properly  

                                                                                                                                                               

                            Applied Its Regulation About Joinder.  

                                                                                               



                            Weaver maintains that the Board should have considered a claim related to  

                                                                                                                                                                                



his 2010 injury because he filed a petition to join in October 2014, listing his 2010 and  

                                                                                                                                                                            



2011 injuries with ARCTEC; the Board joined the two cases; and the 2014 case number  

                                                                                                                                                                    



was designated the master case number. He points out that ARCTEC clearly anticipated  

                                                                                                                                                              



that the 2010 injury would be considered at the hearing because in 2015 it began asking  

                                                                                                                                                                       



its  doctors  to  evaluate  the  effects  of  the  2010  injury  on  Weaver's  condition.  

                                                                                                                                                                                      



Additionally, ARCTEC asked Dr. Scoggin to give his opinion about the 2010 injury  

                                                                                                                                                           



when it questioned himat deposition, and Dr. Scoggin indicated then that the 2010 injury  

                                                                                                                                                                        



was the substantial cause of Weaver's need for medical treatment.  ARCTEC responds  

                                                                                                                                                                 



that the Board and Commission were correct because Weaver never filed a separate  

                                                                                                                                                                 



              33            AS  23.30.135(a).  



              34           Estate  of  Arrowwood  v.  State,  894  P.2d  642,  647  (Alaska   1995).  



                                                                                      -27-                                                                                      7454  


----------------------- Page 28-----------------------

written claim related to the 2010 injury, asserting that "a claim cannot be joined if it does                                                                  



not exist."           



                          The   Board applied                    its pleading              regulation in              this   case; that regulation     



requires a "separate claim . . . for each injury for which benefits are claimed, regardless                                                         

                                                                                                35   The Board also cited its regulation  

of whether the employer is the same in each case."                                                                                                  



about hearings, which directs that a hearing cannot be scheduled "unless a claim . . . [has  

                                                                                                                                                                

been] filed."36   It is undisputed that Weaver did not file a written workers' compensation  

                                                                                                                                             



claim for the 2010 injury until after the Board's decision in this case, and that claim was  

                                                                                                                                                                 



pending before the Board at the time of oral argument before us.   Weaver used the  

                                                                                                                                     

Board's regulation about joining parties,37 which "does not specify how to join claims  

                                                   

or when joinder of claims is permitted or required."38  

                                                                                                         



                          We  review  an  agency's  interpretation  of  its  own  regulation  using  the  

                                                                                                                                                                 



reasonable basis standard and its application of that regulation to the facts of a case for  

                                                                                                                                                                  

                                     39   Here, the Board interpreted its regulations as requiring a separate  

abuse of discretion.                                                                                                                                    

                  



written claim for each injury, even when the underlying cases had been joined.  This is  

                                                                                                                                                                     



not unreasonable because it gives all parties notice of precisely what is at issue as they  

                                                                                                                                                               



prepare for a hearing.  Likewise, it was within the Board's discretion to refuse to hear  

                                                                                                                                                               



Weaver's claim for compensation related to the 2010 injury and to defer that question  

                                                                                  



until Weaver had filed a written claimdetailing exactly what he sought. Because Weaver  

                                                                                                                                                         



             35           8  AAC  45.050(b)(5).  



             36           8  AAC  45.070(b).  



             37           8  AAC  45.040.  



             38           Barrington  v.  Alaska  Commc'ns  Sys.  Grp.,  Inc.,  198  P.3d  1122,  1129  n.28  



(Alaska  2008).   



             39           Eder  v.  M-K  Rivers,  382  P.3d   1137,   1140  (Alaska  2016).  



                                                                                -28-                                                                          7454
  


----------------------- Page 29-----------------------

has now filed a claim related to the 2010 injury, the parties can litigate that claim before                                                                                                                                                                                                                                                                                  



the Board.                                         



V.                             CONCLUSION  



                                                             We AFFIRM the Commission's decision.                                                                                                                  



                                                                                                                                                                                                           -29-                                                                                                                                                                    7454
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC