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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ge Vue v. Walmart Associates, INC., and New Hampshire Insurance Company (11/6/2020) sp-7490

Ge Vue v. Walmart Associates, INC., and New Hampshire Insurance Company (11/6/2020) sp-7490

           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                                      



GE  VUE,                                                        )  

                                                                )     Supreme  Court  No.  S-17469  

                                Appellant,                      )  

                                                                                                   

                                                                )    Alaska Workers' Compensation  

                                                                                                                

           v.                                                   )    Appeals Commission No.  18-006  

                                                                )  

                                                          

WALMART ASSOCIATES, INC. and  )                                                           

                                                                     O P I N I O N  

                                   

NEW HAMPSHIRE INSURANCE                                         )  

COMPANY,                                                                                                       

                                                                )    No. 7490 - November 6, 2020  

                                                                )  

                                Appellees.                      )  

                                                                )  



                                                                                                        

                                            

                     Appeal from the Alaska Workers' Compensation Appeals  

                     Commission.  



                                                                                                             

                     Appearances: James C. Croft, The Croft Law Office, LLC,  

                                                                                                        

                     Anchorage, for Appellant. Vicki Paddock, Meshke Paddock  

                                                                               

                     & Budzinski, P.C., Anchorage, for Appellees.  



                                                                                                                       

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

                                           

                     and Carney, Justices.  



                                           

                      STOWERS, Justice.  



I.         INTRODUCTION  



                                                                                                                                  

                     An asset-protection worker was shot in the face with a pellet gun while  



                                                                                                                             

working at a retail establishment.  A pellet lodged near the optic nerve of his right eye  



                                                                                                                                  

and could not be surgically removed.   The worker also received treatment for post- 



                                                                                                                                      

traumatic stress disorder (PTSD) and pain.  The employer contended that he was not  


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

disabled   by   the   psychological   injury   and,   after   an   ophthalmologist   retained   by  the  



employer questioned specific pain-related medical care, the employer controverted that                                                                                                                                                                                                                             



treatment.   The Alaska Workers' Compensation Board granted the worker's claim for                                                                                                                                                                                                                                    



medical care, found the employer had not unfairly or frivolously controverted benefits,                                                                                                                                                                                                          



and denied the worker's request for disability during periods of time when his eye                                                                                                                                                                                                                                



doctors said he had the physical capacity to perform asset-protection work.                                                                                                                                                                                                         The Alaska   



Workers'   Compensation   Appeals   Commission   affirmed the Board's decision.                                                                                                                                                                                                                                The  



worker appeals, making arguments related to disability and the standard for finding an                                                                                                                                                                                                                                 



unfair or frivolous controversion.  We reverse the Commission's decision and remand   



with instructions to remand to the Board for calculation of benefits and penalty owed to                                                                                                                                                                                                                                 



the worker.   



II.                      FACTS AND PROCEEDINGS                                  



                                                  Ge Vue was an asset-protection worker at the Walmart in Eagle River in                                                                                                                                                                                                 



2016.  On February 3, he was shot in the back and face with a pellet gun when he and   



another asset-protection worker tried to stop three juveniles from taking a cart full of                                                                                                                                                                                                                                



merchandise they                                                     had   not paid                                      for.    No pellets penetrated                                                                              his back,                             but one pellet                   

penetrated the skin near his right eye and came to rest in his right orbit, or eye socket,                                                                                                                                                                                                                                    1  



near his optic nerve.  

                                                    



                                                  Vue went to the emergency room that night and saw Dr. Carl Rosen, an  

                                                                                                                                                                                                                                                                                                                       



Anchorage ophthalmologist, the next day.  Dr. Rosen recommended surgery as soon as  

                                                                                                                                                                                                                                                                                                                         



possible, and Vue underwent surgery on February 5. Doctors were unable to remove the  

                                                                                                                                                                                                                                                                                                                      



pellet  because  of                                                            the  risk  of  "jeopardizing  the  patient's  vision."                                                                                                                                                   Dr.  Rosen  

                                                                                                                                                                                                                                                                                                      



recommended that Vue wait to see if the pellet would migrate to a position that would  

                                                       



allow for easier removal.  

                                                                                               



                         1  

                                                                                TEDMAN'S  MEDICAL  DICTIONARY  (28th  ed.  2006).  

                                                  Orbit, S 



                                                                                                                                                     -2-                                                                                                                                                                      7490  


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

                               Walmart terminated Vue's employment on February 19.  A later medical                                                       



report indicates Vuewas                                 fired"becausehe made the apprehension ofthesuspects outside                                                                    



in the parking lot."                         Walmart paid Vue temporary total disability (TTD) benefits after it                                                                                    



fired him.   



                               Vue told Dr. Rosen in March that he was "having a hard time managing the                                                                                         



pain in his head," which was waking him up at night.  The injury affected Vue's sight       

                                                                                               2  decreased visual acuity, "trouble with color  

in his right eye:                     he had a small scotoma,                                                                                                                              

perception,"  and  binocular  diplopia3                                                     "in  extreme  gazes."                                 Dr.  Rosen  prescribed  

                                                                                                                                                                             



eyeglasses  -  Vue  had  not  worn  them  before  -  and  told  Vue  the  pellet  might  

                                                                                                                                                                                        



"eventually cause compression on the optic nerve."  At that time Vue indicated he was  

                                                                                                                                                                                              



"considering therapy for mental distress" and would ask his primary doctor for a referral.  

                                                                                                                                                                                                         



                               In April a physician assistant at another clinic diagnosed Vue with "[p]ost- 

                                                                                                                                                                                      



traumatic stress disorder, acute," noting that Vue had been "dealing with PTSD like  

                                                                                                                                                                                              



symptoms since the assault," and began a referral for counseling.  Vue asked about a  

                                                                                                                                                                                                    



pain-management doctor because Dr. Rosen did not "want to maintain any kind of pain  

                                                                                                                                                                                             



management."  



                               Vue began to see a counselor, Darcy Logan.  Logan's notes indicate that  

                                                                                                                                                                           



Vue's "[d]isturbance cause[d] clinically significant distress/impairment in social and  

                                                                                                                                                                                              



occupations functioning," with an onset within a week of the assault.  The notes reflect  

                                                                                                                                                                                         



difficulties Vue was having in terms of pain, fear, and depression.  

                                                                                                                              



               2  

                               A   scotoma   is  an  area   in   the   visual   field   where   "vision   is   absent   or  

depressed."   Scotoma, S                                TEDMAN'S  MEDICAL  DICTIONARY  (28th ed. 2006).                                                      



               3  

                                                                                                                                                                          

                               Binocular diplopia is a type of double vision that "suggests disconjugate  

                                                               HE   MERCK   MANUAL OF                                   DIAGNOSIS AND                          THERAPY   550-51  

alignment of the eyes."   T 

(Robert S. Porter, ed., 19th ed. 2011).                                                   



                                                                                            -3-                                                                                            7490
  


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

                                                Vue went to the emergency room because of his pain on April 14 and had                                                                                                                                                                                  



another CT scan.                                               Dr. Rosen thought this scan showed the pellet had "slightly migrated                                                                                                                                                   



up" and referred Vue to Dr. Shu-Hong Chang in Seattle.                                                                                                                                                        On April 20, Dr. Rosen told   



Walmart that Vue had the physical capacities to return to his job in asset protection.                                                                                                                                                                                                                                   



Walmart stopped paying TTD as of that date, but did not formally controvert TTD at that                                                                                                                                                                                                                 



time.  



                                                Vue saw Dr. Chang in May; she reviewed the imaging studies, said the                                                                                                                                      



April scan showed"moreimpingement                                                                                                         on [the]opticnerve,"and                                                                   recommended that Vue                                               



consult a pain specialist because she thought there was "a neuropathic component" to                                                                                                                                                                                                                          



Vue's pain. Dr. Chang advised there was a 50% risk of blindness from a second surgery                                                                                                                                                                                                      



as well as a 50% chance of persistent pain even if the pellet were removed.                                                                                                                                                                                                    After Vue   



returned   to   Alaska,   Dr.   Rosen   referred   him   to   Dr.   Heath   McAnally   of   Northern  



Anesthesia & Pain Medicine for pain management.                                                                                        



                                                Vue continued to see Logan for mental health counseling and went to                                                                                                                                                                                          



Northern Anesthesia for pain treatment.  A physician assistant at Northern Anesthesia                                                                        

                                                                                                                                                               4        Vue returned to see Dr. Rosen in June,  

prescribed gabapentin for neuropathic pain.                                                                                                                                                                                                                                                       



telling  Dr.  Rosen  he  was  not  able  to  work;  "[a]fter  a  lengthy  discussion  and  

                                                                                                                                                                                                                                                                                                      



consideration" Vue decided to try another surgery to remove the pellet and Dr. Rosen  

                                                                                                                                                                                                                                                                 



agreed.  Dr. Rosen sent another referral to Dr. Chang.  

                                                                                                                                                                       



                                                In August Walmart scheduled an employer's medical evaluation (EME)  

                                                                                                                                                                                                                                                                                            



with an ophthalmologist, Dr. William Baer, and a psychologist, Dr. Donna Wicher.  Dr.  

                                                                                                                                                                                                                                                                                                         



Baer identified "pain and diminished visual acuity in [Vue's] right eye, as well as his  

                                                                                                                                                                                                                                                                                                           



binocular diplopia" as causes of his disability.  Dr. Baer wrote, "There also appear to be  

                                                                                                                                                                                                                                                                                                              



                        4  

                                                According to medical testimony, neuropathic pain, or neuralgia, results                                                                                                                                                                      

when a nerve is injured; the nerve sends pain signals in                                                                                                                                                             the absence of "a defined                                           

 stimulus."  



                                                                                                                                               -4-                                                                                                                                                  7490
  


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

                                                                                                                              

psychological issues, which are beyond the scope of ophthalmologic review."  In Dr.  



                                                                                                                          

Baer's opinion, the shooting "and its sequelae are the substantial cause of Mr. Vue's  



                                                                                                               

disability  and  need  for  treatment."                   Dr.  Wicher  diagnosed  Vue  with  "Adjustment  



                                                                                                                             

Disorder with Mixed Anxiety and Depressed Mood" and said Vue's employment had  



                                                                                                                       

been the substantial cause of his "current and ongoing disability and need for medical  



                                               

treatment since the time of the injury."  



                                                                                                                      

                    Vue had a second surgery to remove the pellet in late August; Walmart  



                                                                                 

began to pay TTD again as of the surgery date.  The second surgery was unsuccessful  



                                                                                                       

because the pellet was "intimately attached" to surrounding tissue.  Vue continued his  



                                                                                                                              

treatment with Northern Anesthesia, but he changed counselors after Logan and Dr.  



                                                                                                                   

McAnally recommended that he try a different therapy for his PTSD - eye movement  



                                                                                                                     

desensitization and reprocessing therapy (EMDR).  Vue began mental health treatment  



                                                                                                             

at Providence Alaska Mat-Su Behavioral Health, where his counselor recommended  



                                                                                                                             

medication  as  well  as  counseling.                      Dr.  McAnally  suggested  Vue  try  Lyrica  for  



                                                                       

neuropathic pain because of gabapentin's side effects.  



                                                                                                                               

                    In January 2017 Vue returned to Seattle for follow-up.  Dr. Chang said on  



                                                                                                                    

January 5 that Vue was medically stable from a "surgical aspect" but he "need[ed]  



                                                                                                                   

assistance [with] vision management."  Dr. Courtney Francis tested Vue and prescribed  



                                                                                                                           

glasses; she found no evidence of optic neuropathy. Dr. Francis signed a return to work  



                                                                                                                              

form  on  January  5,  saying  that  Vue  could  return  to  work  with  no  restrictions  the  



                                                                                                                           

following day even though the form had several restrictions checked.  Walmart again  



                       

ceased paying TTD.  



                                                                                                                             

                    Vue  continued  with  mental  health  counseling  and  pain  treatment,  and  



                                                                                                                            

Walmart arranged another EME with Dr. Baer and Dr. Wicher.  In February Dr. Baer  



                                                                                                                          

said that Vue was medically stable with respect to his eye but any opinion about Vue's  



                                                                                                                         

mental health status was "beyond the scope of ophthalmologic examination."  When  



                                                            -5-                                                           7490
  


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

asked   about   Vue's   prescriptions   for   three   medications,   Dr.   Baer   wrote,   "These  



medications and their use fall outside the scope of ophthalmologic practice. I do not feel                                                                                                              



competent to remark on their utility or appropriate use . . . ."                                                                           



                                Dr. Wicher again diagnosed Vue with adjustment disorder; she added a                                                                                                          

                                                                                                                                                                                                   5   She  

chronic pain diagnosis and suggested the possibility of somatic symptom disorder.                                                                                                                       



did not think Vue was medically stable "with regards to his Adjustment Disorder."  Dr.  

                                                                                                                                                                                                         



Wicher said the mental health treatment Vue had received was reasonable and necessary  

                                                                                                                                                                                          



and endorsed further psychological treatment.  Walmart asked Dr. Wicher whether she  

                                                                                                                                                                                                         



would impose physical restrictions on Vue "due to his diagnosed conditions," and Dr.  



Wicher replied, "Physical restrictions are beyond the scope of this examination.  Please  

                                                                                                                                                                                                 



refer to Dr. Baer's report for any recommendations of a physical nature." Walmart also  

                                                                                                                                                                                                       



asked Dr. Wicher about Vue's future physical capacities, and she responded that Vue's  

                                                                                                                                                                                                  



"physical capacities would need to be addressed by a physician."  Walmart did not ask  

                                                                                                                                                                                                         



Dr. Wicher whether Vue could return to work or if he was disabled by his psychological  

                                                                                                                                                                               



condition.  Dr. Wicher refused to comment on Vue's prescription medications.  

                                                                                                                                                                



                                Vue  continued  to  receive  mental  health  counseling  and  medication  

                                                                                                                                                                                    



management.  Vue began to plan to move out of state in part because he reported that  

                                                                                                                                                                                                        



seeing former coworkers and one of the assailants triggered his PTSD symptoms.  Vue  

                                                                                                                                                                                                      



stated that he continued to have difficulty going into stores and moving about in public.  

                                                                                                                                                                                                                   



                                Walmart sent follow-up questions to Dr. Baer regarding the medications he  

                                                                                                                                                                                                            



considered  outside  the  scope  of  his  practice.                                                                        It  also  asked  Dr.  Baer  about  the  

                                                                                                                                                                                                        



                5               Somatic   symptom   disorders   are   characterized   by   "the   prominence   of  



somatic [i.e. physical] symptoms associated with significant distress and impairment."                                                                                                                             

AM.           PSYCHIATRIC    ASS'N,                                   DIAGNOSTIC                        AND           STATISTICAL                       MANUAL    OF    MENTAL  

DISORDERS  309 (5th ed. 2013) [hereinafter DSM-5]. The disorder Dr. Wicher indicated                                                                                                       

should be ruled out, which has DSM code 300.82, is used when the patient's symptoms                                                                                                     

"do not meet the full criteria" for other disorders in this category.                                                                                          Id.  at 327.   



                                                                                                 -6-                                                                                                 7490
  


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

                                                                                                              

reasonableness of "pulsed neuromodulation," a treatment Dr. McAnally recommended  



                                                                                                         

for pain.   According to an attachment to Dr. Baer's report, pulsed neuromodulation  



                                                                                                                           

directs short bursts, rather than a continuous flow, of radiofrequency energy to nerve  



                                                                                                                           

tissue, thus reducing the risk of other tissue damage.  Walmart asked Dr. Baer about  



                                                                                                                    

three medications; only Lyrica, which Dr. McAnally prescribed for pain, is at issue on  



appeal.  



                                                                                                                               

                    Dr. Baer was skeptical about the amount of pain Vue experienced.  In Dr.  



                                                                                                                               

Baer's opinion, the pellet should not continue to cause pain, so he concluded that the  



                                                                                                                        

Lyrica  prescription  was  not  reasonable  or  necessary.                                   With  respect  to  pulsed  



                                                                                                                               

neuromodulation, Dr. Baer said it was "not widely accepted as a treatment modality" and  



                                                                                                                             

suggested  the  question  "also  could  be  referred  to  a  physician  experienced  in  pain  



                                                                                                                         

management" because "[m]edical literature suggests that it may be useful in certain  



                                                                                                                             

cases."  Dr. Baer observed that Dr. McAnally "performed a temporary nerve block with  



                                                                                                                     

reported relief of symptoms"; Dr. Baer noted the availability of "accepted treatment  



                                                                                                                         

modalities for longer term or permanent block."   Dr. Baer did "not support" pulsed  



                                                                                                                           

neuromodulation.  Because the need for the treatment depended on Vue's pain level,  



                                                                                                                               

which Dr. Baer questioned, Dr. Baer opined that the work-related injury was not the  



                                                                                                                               

substantial cause of any need for pulsed neuromodulation.   Dr. Baer attached to his  



                                                                                                                             

report a printout from an insurance website and an article from a medical journal, both  



                                                                                                                                     

aboutpulsedradiofrequency. Walmartcontroverted Lyricaandpulsed neuromodulation.  



                                                                                                                   

                    Dr. McAnally responded to Dr. Baer's report.  Dr. McAnally considered  



                                                                                                                        

the source of Vue's pain to be the infraorbital nerve, a "branch of the maxillary division  



                                                                                                                           

of the trigeminal nerve" near the eyelid, not the pellet.  Dr. McAnally wrote that Vue's  



                                                                                                                     

"response to infraorbital nerve block [was] sufficient corroboration" for this diagnosis,  



                                                                                                                   

calling  a  nerve  block  "the  gold  standard  in  terms  of  diagnosing  these  peripheral  



                                                             -7-                                                           7490
  


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

                                                                                                                             

neuralgias."  After pointing out that Dr. Baer had no expertise in "interventional pain  



                                                                                                                                     

management,"Dr.McAnally declared that thecontroversion ofLyrica"unconscionable."  



                                                                                                                                

                    Vue, through an attorney, filed a written workers' compensation claim for  



                                                                                                                              

several benefits, including TTD from April 2016 until medical stability, "medical and  



                                                                                                                       

psychological  treatment,"  and  penalty.                       Walmart  answered,  admitting  two  discrete  



periods of TTD and some medical benefits.  Walmart filed another controversion, this  



                                                                                                                                  

one controverting TTD from April 20 to August 24, 2016, and after January 7, 2017; it  



                                                                                                                         

also  controverted  medical  benefits  "which  are  unnecessary,  unreasonable  and/or  



                                      

unrelated to employee's injury."  



                                                                                                                                 

                    In June Vue moved with his family to Wisconsin, where he found a job at  



                                                                                                                           

an auto parts store the following month.  Vue testified at his deposition about his salary  



                                                                                                                                     

there and described how his employer accommodated his continuing PTSD symptoms.  



                                                                                                                              

Vue said "mov[ing] away from triggers" had improved his psychological status but that  



                                                                                                                                 

he still used EMDR at times to calm himself.  Vue testified about difficulties he had in  



                                

getting prescription refills.  



                                                                                                                         

                    Dr.  Baer  discussed  his  opinions  about  the  use  of  Lyrica  and  pulsed  



                                                                                                                              

neuromodulation at his deposition.  Dr. Baer testified that in his judgment Lyrica was  



                                                                                                                               

unnecessary because he did not think the pellet should cause constant pain; he ended his  



                                                                                                                    

explanation  by  saying,  "It's  a  judgment  call."                         Dr.  Baer  indicated  that  long-term  



                                                                                                                    

treatment of pain was "outside [his] experience"  and that use of Lyrica for "constant,  



                                                                                                                    

unremitting pain" was "beyond [his] knowledge."  He testified he had never prescribed  



                                                                             

any of the medications Walmart asked him about.  



                                                                                                                                 

                    With respect to pulsed neuromodulation, Dr. Baer said that he "[h]ad to  



                                                                                                                         

look it up" when Walmart first inquired.  When asked whether he had found any studies  



                                                                                                                      

about treating infraorbital neuralgias with pulsed neuromodulation, Dr. Baer indicated  



                                                                                                                             

he did not pursue the issue "that much."  He testified he had called two colleagues who  



                                                             -8-                                                           7490
  


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

specialized in "oculoplastic surgery" to discuss the treatment. Dr. Baer stated he did not                                                                                         



have enough experience to comment on Dr. McAnally's opinion about the cause of                                                                                                       



Vue's neuropathic pain.                   



                             The Board held a hearing on Vue's claim in March 2018.                                                                    Vue argued that            



the presumption analysis applied to his claim related to his psychological condition                                                                                 

                                                                                                  6      He  contended  he  had  attached  the  

because   it   arose   from   his   physical   injury.                                                                                                       



presumption of compensability and that Walmart had not rebutted it. He also argued that  

                                                                                                                                                                                  



both controversions were frivolous and unfair.  Vue's attorney acknowledged that Vue  

                                                                                                                                                                                 



was working and thus was no longer totally disabled. Walmart argued that Vue was not  

                                                                                                                                                                                   



disabled by his psychological condition, saying that none of Vue's healthcare providers  

                                                                                                                                                                      



had imposed mental-health-related work restrictions during the periods it had not paid  

                                                                                                                                                                                 



TTD.  Walmart maintained the controversions were supported by substantial evidence  

                                                                                                                                                                       



so that no penalty was due.  

                                                  



                             Vue testified about continuing problems he had with PTSD symptoms and  

                                                                                                                                                                                  



explained how his employer accommodated them.  He continued to practice EMDR on  

                                                                                                                                                                                     



his own and found it helpful.  He had restarted mental health treatment in Wisconsin  

                                                                                                                                                                   



shortly before the hearing and testified the provider there had prescribed some of the  

                                                                                                                                                                                   



medications he used in Alaska.  He said he had been able to get prescriptions filled after  

                                                                                                                                                                                



his deposition but had problems refilling the prescriptions before the deposition.  

                                                                                                                                                     



                             Dr. McAnally testified about his treatment of Vue and discussed the uses  

                                                                                                                                                                                



of Lyrica and pulsed neuromodulation.  Dr. McAnally thought Vue's chronic pain was  

                                                                                                                                                                                 



"probably attributable primarily to the initial insult of the projectile," not the retained  

                                                                                                                                                                        



pellet, and described how Lyrica helps control neuropathic pain.  He testified that there  

                                                                                                                                                                               



              6  

                                                                                                                                                                            

                             See  Kelly  v.  State,  Dep't  of  Corr.,  218  P.3d  291,  298  (Alaska  2009)  

                                                                                                                        

(describing classifications of mental injury in workers' compensation).  



                                                                                      -9-                                                                                             7490  


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

 is a strong association ("not causality, of course") between PTSD and chronic pain,                                                                                                                                                                                              



 calling them "intertwined."                                                                      As he put it, "People who suffer from [PTSD] are, by                                                                                                                                    



 definition, hypervigilant.  They pay more attention to pain signals and messages."  He                                                                                                                                                        



 said PTSD and chronic pain needed to be addressed together to "make any headway."                                                                                                                                                                                                                     



 Dr. McAnally discussed pulsed neuromodulation and affirmed that he had administered                                                                                                                                                                    



 the treatment to Vue at no charge.                                                       



                                              The Board decided Vue was entitled to Lyrica                                                                                                          and pulsed neuromodulation            



 but not to additional TTD or a penalty.  It also found that Walmart had not frivolously                                                                                                                                           



 or unfairly controverted benefits.                                                                                   As to the TTD, the Board decided that Vue had                                                                                                                   



 attached the presumption with a letter from Dr. McAnally stating Vue's eye pain limited                                                                                                                                                                                    



 his   ability   to   perform   some   job  duties.     The   Board   said   Vue   also   "raise[d]   the  



                                                                                                                                                                                                                                  7  

 presumption with his testimony" related to "anxiety and paranoia."                                                                                                                                                                   



                                              Considering evidence to rebut the presumption, the Board said that in 2016  

                                                                                                                                                                                                                                                                                   



 Dr. Rosen indicated Vue "had the physical capacities to return to work" at his Walmart  

                                                                                                                                                                                                                                                                      



job.  The Board noted that Walmart had resumed TTD at the time of the second eye  

                                                                                                                                                                                                                                                                                       



 surgery and paid it through the date Dr. Francis released Vue to work.   The Board  

                                                                                                                                                                                                                                                                             



 observed that Dr. Wicher said Vue was not medically stable with respect to his mental  

                                                                                                                                                                                                                                                                            



 injury, although she did not say whether he could return to work. The Board decided Dr.  

                                                                                                                                                                                                                                                                                        



 Baer's and Dr. Francis's  ophthalmologic opinions in 2017 about Vue's eye condition  

                                                                                      



 were "substantial evidence adequate to support the conclusion [Vue] could return to  

                                                                                                                                                                                                                                                                                            



 work without restrictions," even though it acknowledged that "Dr. Baer stated it was not  

                                                                                                                                                                                                                                                                                         



 appropriate for him to consider the stability of [Vue's] mental condition."  

                                                                                                                                                                                                                                                           



                       7                     Vue  used  the  term  "paranoia"  in  his  testimony;  medical  reports  used  

                                                                                                                                                                                                                                                                                  

 "hypervigilance."  



                                                                                                                                       -10-                                                                                                                                                      7490  


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

                                                                                                                              

                    After weighing the evidence, the Board decided Vue had not carried his  



                                                        

burden of proof.  It denied the TTD claim because Vue had returned to work full time  



                                                                                                

and because he had not produced "reliable evidence of loss of earning capacity."  The  



                                                                                                                                    

Board did not separately discuss the two time periods when Walmart did not pay TTD.  



                                                                                                                          

                    The  Board  decided  that  Lyrica  and  pulsed  neuromodulation  were  



                                                                                                                     

reasonable and necessary medical treatments.  It determined Walmart had not produced  



                                                                                               

adequate evidence to rebut the presumption related to Lyrica.  The Board decided that  



                                                                                                                             

Walmart had rebutted the presumption with respect to pulsed neuromodulation and  



                                                      

decided Vue had proved his claim.  



                                                                                                                      

                    Turning to the controversion issue, the Board found Dr. Baer's opinions  



                                                                                                                             

about Lyrica and pulsed neuromodulation were adequate evidence to support the first  



                                                                                                                             

controversion. It thought that the second controversion was sufficiently specific and that  



                                                                                                                                

the evidence related to medical stability was adequate to support the controversion of  



TTD.  



                                                                                                                     

                    Vue appealed to the Commission, which affirmed the Board's decision;  



                                                                                                                       

Walmart did not file a cross-appeal.  On appeal, Walmart argued that expert medical  



                                                                                                               

testimony is always needed to attach the presumption in a case with a "psychiatric"  



                                                                                                               

diagnosis.          The  Commission  did  not  address  this  argument.                                The  Commission  



                                                                                                                           

summarized medical evidence related to Vue's mental health treatment and wrote, "The  



                                                                                                                               

Board found Mr. Vue's own testimony about his fear of returning to work, supported by  



                                                                                                                             

Dr. McAnally's testimony, was sufficient to raise the presumption that his disability was  



                                                                                                                             

due  to  work  injury  and  he  was  entitled  to  TTD."                         While  the  Commission  did  not  



                                                                                                                              

explicitly affirm the Board's decision about attaching the presumption, it implicitly did  



                                                  

so when it analyzed the rebuttal stage.  



                                                                                                                                

                    The Commission said that to rebut the presumption Walmart "needed to  



                                                                                                                   

produce medical evidence demonstrating that the work injury was not the substantial  



                                                            -11-                                                          7490
  


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

cause of his inability to work."                                                                              Walmart had argued that it rebutted the presumption                                                                                            



through "the complete absence of professional opinion that Mr. Vue was totally disabled                                                                                                                                                                                      



from a psychological condition." The Commission, however, wrote that Walmart relied                                                                                                                                                                                                   



on Dr. Baer's and Dr. Wicher's reports to rebut the presumption.                                                                                                                                                                          The Commission   



summarized   Dr.   Baer's   opinion   from   his   2017   reports  about   medical   stability   and  



medical treatment. It then said, "Dr. Wicher deferred to Dr. Baer on the question of Mr.                                                                                                                                                                                                     



Vue's ability to return to work even though he was not medically stable mentally."                                                                                                                                                                                                        The  



Commission decided Walmart had rebutted the presumption, and like the Board, the                                                                                                                                                                                                              



Commission did not break the TTD into separate time periods.                                                                                                                                                             



                                              Reviewing the Board's evaluation of the evidence, the Commission said                                                                                                                                                                        



medical reports could permit an inference that Vue was unable to work because of his                                                                                                              



mental problems, but "none of the doctors stated he was unable to work or to work only                                                                                                                                                                                                    



with   restrictions,   due   to   his   mental   condition."     The   Commission   noted  that   the  



ophthalmologists "did                                                           not address the mental issues                                                                                 arising   from this tragedy" but                                                               



inferred that Dr. Wicher indicated that Vue "was not sufficiently debilitated that he could                                                                                                                                                                                           



not return to work."                                                  The Commission affirmed the Board's TTD decision.                                                                                                           

                                                                                                                                                                                                                                                        8  and one of its  

                                              The Commission relied only on                                                                               Harp v. ARCO Alaska, Inc.                                                                                                              



own  decisions  when  considering  the  controversion  issue.                                                                                                                                                                 It  decided  the  April  

                                                                                                                                                                                                                                                                                    



controversion was in good faith because Walmart relied on Dr. Baer's opinion. Turning  

                                                                                                                                                                                                                                                                             



to the second controversion, the Commission said this controversion was based on Dr.  

                                                                                                                                                                                                                                                                                              



Chang's and Dr. Vincent's medical reports.   The Commission said that Dr. Wicher  

                                                                                                                                                                                                                                                                              



"deferred to the ophthalmologists the question of [Vue's] ability to return to work" and  

                                                                                                                                                                                                                                                                                             



that the ophthalmologists had released himto work without restriction. The Commission  

                                                                                                                                                                                                                                                              



concluded this controversion was also in good faith.  

                                                                                                                                                                 



                       8                      831  P.2d  352  (Alaska   1992).  



                                                                                                                                          -12-                                                                                                                                                         7490  


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

                   Vue  appeals.  



III.     STANDARD  OF  REVIEW   



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

and  not  the  Board's.9  

                                                                                                                       

                               "We apply our independent judgment to questions of law that do  



                                                                                                              

not involve agency expertise, including issues of statutory interpretation," and "interpret  



                                                                                                               

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



                                                                                           10  

                                                                                               We  review  de  novo  

of the statute's language, its legislative history, and its purpose.' " 



the Commission's legal  conclusion  that  substantial evidence supports the Board's  factual  



                                                                                                                        11  

findings   by    "independently    reviewing    the    record    and    the    Board's    findings."                        



"Substantial  evidence  is  such  relevant  evidence  as  a  reasonable  mind  might  accept as  

adequate to support  a conclusion."12  "Whether the quantum of evidence  is substantial  



is  a  question  of  law."13  



IV.      DISCUSSION  



                   To frame the  discussion that follows,  we  identify certain  legal issues that  



underlie   the   administrative   decisions,   even   though   the   agencies   did   not   explicitly  



mention  them.  



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



          10       Vandenberg v.  State,  Dep't   of  Health   &  Soc.  Servs.,   371  P.3d   602,   606  



(Alaska  2016)   (quoting  Louie   v. BP  Expl.   (Alaska),  Inc.,   327  P.3d  204,  206   (Alaska  

2014)).  



          11  

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

                                                                                                                   

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

                                                                                                                

2010)).  

            



          12       Id.  at  1179 (quoting DeYonge v. NANA/Marriott,  1 P.3d 90, 94 (Alaska  

                                                                                                           

2000)).  



          13       Id.  

                         



                                                        -13-                                                       7490
  


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

                          Vue asserts, and Walmart does not contest, that his claim for PTSD-related                                             



disability is a physical-mental claim. We have previously discussed the classification of                                                                               

                                                                                                                                14 in aphysical-mental  

workers' compensation claims                                relatedtopsychologicalconditions;                                               



claim a psychological condition arises from a physical injury, and the claim is analyzed  

                                                                                                                                                          

using the same presumption analysis used for physical claims15  rather than the higher  

                                                                                                                                                               

standard the legislature imposed on mental claims arising from mental stress.16                                                                                      Dr.  

                                                                                                                                                                    



Wicher's report amply supports the classification Vue advocates:  she attributed Vue's  

                                                                                                                                                                



mental health condition to the disability and pain he has undergone as a result of the  

                                                                                                                                                                      



assault.  Both the Board and the Commission used the standard presumption analysis,  

                                                                                                                                                          



even if they did not identify the type of claim Vue had.  We agree that Vue's claim is  

                                                                                                                                                                        



appropriately categorized as a physical-mental claim to which the presumption analysis  

                                                                                                                                                            



applies.  



                          As set out above, Walmart did not contest that Vue suffered a work-related  

                                                                                                                                                  



injury to his eye. Vue argues here, as he did before both the Board and the Commission,  

                                                                                                                                                  



that he was disabled not only by the eye condition but also by PTSD and that the PTSD- 

                                                                                                                                                              



related disability began shortly after the shooting and continues. Walmart contends that  

                                                                                                                                                                     



Vue was never totally disabled by his mental health condition, but it has not disputed its  

                                                                                                                                                                       



liability for discrete periods of TTD due to Vue's eye condition and the surgeries related  

                                                                                                                                                               



to it. Walmart also does not contest that Vue has a work-related psychological condition;  

                                                                                                                                                        



Dr. Wicher's reports confirm that he does.  The TTD dispute between the parties is thus  

                                                                                                                                                                    



whether Vue's psychological condition made him disabled as that term is used in the  

                                                                                                                                                                      



Alaska Workers Compensation Act (Act).  

                                                                        



             14  

                          See Kelly v. State, Dep't of Corr.                                , 218 P.3d 291, 298 (Alaska 2009).                       



             15           Runstrom v. Alaska Native Med. Ctr., 280 P.3d 567, 572-73 (Alaska 2012).  

                                                                                                                                                               



             16           See  AS 23.30.010(b).   



                                                                               -14-                                                                              7490
  


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

                   A  worker  is  eligible  for  TTD  for  "disability  total  in  character  but  temporary  



                                                                 17  

in  quality"  until  he  reaches  medical  stability.                Disability  under  the  Act  is  not  a  purely  



medical   concept:    "disability"   is   defined   as   "incapacity  because   of   injury to earn  the  



wages  which  the  employee  was  receiving  at  the  time  of  injury  in  the  same  or  any  other  

employment."18  

                         We  have  held  in  this  regard  that  "[t]he  primary  consideration  is  not  the  



degree   of   the   worker's   physical   impairment,   but   rather   the   loss of   earning   capacity  



                                        19  

related  to  that  impairment."             "Once  an  employee  is  disabled,  the  law  presumes  that  the  



employee's  disability  continues  until  the  employer  produces  substantial  evidence  to  the  

contrary."20  



                   "Medical  stability"  is  "the  date  after  which  further  objectively  measurable  



improvement from the effects of the compensable injury is not reasonably expected to  

                                                                       21  Because medical stability is tied to  

result  from  additional  medical  care  or  treatment."                                                                   



the effects of the injury, not to a single condition, when a worker has more than one  

                                                                                                                        

disabling work-related injury or condition, medical stability must encompass both.22  

                                                                                                                 



          17  

                   AS  23.30.185.  



          18       AS  23.30.395(16).  



          19       Ketchikan  Gateway  Borough  v.  Saling,  604  P.2d  590,  594  (Alaska  1979),  



superseded in part   on   other  grounds   by  statute  as  recognized   in  Morrison  v.  Alaska  

Interstate Constr. Inc., 440 P.3d 224, 235-36 (Alaska 2019);  see also Vetter v. Alaska  

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



          20        Grove v. Alaska  Constr. & Erectors, 948 P.2d 454, 458 (Alaska 1997).  

                                                                                                                  



          21  

                   AS 23.30.395(28).  

                          



          22  

                   See Burke  v. Houston NANA, L.L.C., 222 P.3d  851, 863 (Alaska 2010)  

                                                                                                                     

(holding that medical report that addressed only one of two disabling conditions did "not  

                                                                                                                        

constitute  substantial  evidence  to  rebut  the  presumption"  that  other  condition  was  

                                                                                                                        

medically stable); cf. Unisea, Inc. v. Morales de Lopez, 435 P.3d 961, 965, 971 (Alaska  

                                                                                                                   

                                                                                                          (continued...)  



                                                          -15-                                                        7490
  


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

                        Neither   the   Board   nor   the   Commission   considered   separately  the   two  



discrete time periods for which Walmart contested Vue's eligibility for TTD - one in                                                                      



2016 and one in 2017 - even though both agencies determined that Vue had attached                                                             



the   presumption   that   he   was   disabled   by   his   psychological  condition.     We   have  

                                                                                                                                                 23   We  

considered evidence related to discrete periods of time in reviewing TTD claims.                                                                       



consider the evidence in detail below, but if Vue attached the presumption that he was  

                                                                             



disabled by his psychological condition shortly after the 2016 shooting, then the Board  

                                                                                                                                                  



and the Commission first needed to consider whether Walmart provided substantial  

                                                                                                                       



evidence  to  rebut  the  presumption  in  2016,  when  it  first  stopped  paying  TTD.  

                                                                                                                                                               

Substantial evidence to rebut the presumption must be relevant evidence.24  If no relevant  

                                                                                                                                               



evidence rebutted the presumption as to the 2016 time period, then Vue is entitled to  

                                                                                                                                      



TTD for that time period notwithstanding the possibility that Walmart offered sufficient  

                                                                                                                                            



evidence to rebut the presumption in 2017.  

                                                                    



            A.	         The  Commission  Correctly  Concluded  That  Vue  Attached  The  

                                                                                                                                                    

                        Presumption Of Compensability.  

                                                         



                        Walmart challenges the Board's and the Commission's decisions that Vue  

                                                                                                                                                      



attached the presumption of compensability.  It argues that he was required to provide  

                                                                                   



a medical opinion that his psychological condition was totally disabling, evidently from  

                                                                                                                                                     



            22  

                        (...continued)  

                                                                                                                                              

2019) (discussing difference in concepts of medical stability and maximum medical  

                                                                                     

improvement when worker has more than one condition).  



            23          See Burke, 222 P.3d at 862-63 (analyzing evidence related to eight-month  

                                                                                                                                       

period of TTD); Thoeni v. Consumer Elec. Serv., 151 P.3d 1249, 1255-56 (Alaska 2007)  

                                                                                                                                                   

(examining evidence related to approximately three-month period of TTD).  

                                                                                                                              



            24  

                         Thoeni, 151 P.3d at 1253 ("Substantial evidence is 'such relevant evidence  

                                                                                                                                             

as a reasonable mind might accept as adequate to support a conclusion.' " (quoting Circle  

                                                                                                                                                  

De Lumber Co. v. Humphrey, 130 P.3d 941, 946 (Alaska 2006))).  

                                                                                                         



                                                                        -16-	                                                                      7490
  


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

                                                                                                                                                                                                                                                                                                        25  

 a healthcare provider with psychological or psychiatric training.                                                                                                                                                                                                                                               In its brief before us,                                                             



Walmart contends "apsychosocial                                                                                                                                condition"isacomplexmedicalcondition, apparently                                                                                                                                                   



 as   a   matter   of   law,   such   that   medical   evidence   is   always   needed   to   attach   the  



presumption.  



                                                              Vue responds that his mental health condition - PTSD from being shot in                                                                                                                                                                                                                                                                     



the face - is not a complex medical condition.                                                                                                                                                                                     He maintains that his testimony was                                                                                                                         



 sufficient to attach the presumption because to attach the presumption he only needed                                                                                                                                                                                                                                                                                           



 some evidence establishing                                                                                                          a link                           between   his disability and                                                                                                        his  employment.     He  



 contends that the record has sufficient medical evidence, including Dr. Wicher's 2016                                                                                                                                      



report, to attach the presumption that he was disabled by his psychological condition and                                                                                                                                                                                                                                                                                                         



 also points to notes from his own providers detailing the severity of his symptoms.                                                                                                                                                                                                                                                          



                                                              After   amendment   in   2005,   AS   23.30.010(a)   requires  an   employee   to  



 "establish a causal link between the employment and the disability or death or the need                                                                                                                                                                                                                                                                                                    



 for medical treatment."                                                                                          The legislative sponsor of this provision indicated that the                                                                                                                                                                                                                     



 statutory language "about attaching and rebutting the presumption was derived from . . .                                                                                                                                                                                                                                                                                                                 



 case law, and comments of some committee members indicate they understood the                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                                                                                                                                                            26  

 amendment as codifying the standards for attaching and rebutting the presumption."                                                                                                                                                                                                                                                                                                                                    



We thus apply our prior cases in evaluating whether the presumption attached.  

                                                                                                                                                                                                                                                                                                                                    



                               25                              Because   Walmart  did   not   cross-appeal   this   issue,   we   consider   it   only  



because it could provide an alternative reason to affirm the Commission's decision.                                                                                                                                                                                                                                                                                                             See  

Peterson v. Ek                                                       , 93 P.3d 458, 467 (Alaska 2004) (holding that appellee waived several   

 claims by failing to cross-appeal);                                                                                                                           Far N. Sanitation, Inc. v. Alaska Pub. Util. Comm'n                                                                                                                                                                                               ,  

 825 P.2d 867, 869 n.2 (Alaska 1992) (rejecting argument that appellee needed to raise                                                                                                                                                                                                                                                                                                      

 issue in cross-appeal because we can affirm on any basis appearing in the record).                                                                                                                                                                                                                                                                      



                               26                             Huit v. Ashwater Burns, Inc., 372 P.3d 904, 918 (Alaska 2016) (citing  

                                                                                                                                                                                                                                                                                                                                                                                  

Minutes, H. Free Conference Comm. Hearing on S.B. 130, 24th Leg., 1st Spec. Sess.  

                                                                                                                                                                                                                                                                                                                                                                                          

  1:35-1:50 (May 21, 2005) (statements of Sen. Gene Therriault, Sen. Hollis French, and  

                                                                                                                                                                                                                                                                                                                                                                                                  

Rep. Eric Croft, and testimony of Kristin Knudson, Assistant Att'y Gen.).  

                                                                                                                                                                                                                                                                                                                          



                                                                                                                                                                                           -17-                                                                                                                                                                                             7490
  


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

                          As set out in           Gillispie v. B &B Foodland                         , the "threshold showing [to attach                   



the presumption] is minimal and requires only that the employee offer 'some evidence'                                                              

                                                                                                     27     "For purposes of determining  

that the claim arose out of his or her employment."                                                                                            



whether the claimant has established the preliminary link, only evidence that tends to  

                                                                                                                                                                  

establish the link is considered - competing evidence is disregarded."28                                                                    The claimant  

                                                                                                                                                      



does   not   need   to   present   substantial   evidence   to   attach   the   presumption   of  

                                                                                                                                                                

compensability.29  

                                   



                          Whether  an  employee  has  provided  sufficient  evidence  to  attach  the  

                                                                                                                                                               

presumption is a question of law that we independently review.30  While we have held  

                                                                                                            



that medical testimony may be needed in some cases to establish a preliminary link for  

                                                                                                                                                                 

causation,31   we have never  held that a specific type of condition or injury requires  

                                                                                                                                                      



             27           881 P.2d 1106, 1109 (Alaska 1994) (quoting                                             Robinett v. Enserch Alaska  



 Constr., 804 P.2d 725, 728 (Alaska 1990)).                           



             28          McGahuey v. Whitestone Logging, Inc., 262 P.3d 613, 620 (Alaska 2011)  

                                                                                                                                                           

(quoting Tolbert v. Alascom, Inc., 973 P.2d 603, 610 (Alaska 1999)).  

                                                                                                                       



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

                                                                                                                             



             30           Tinker v. Veco, Inc., 913 P.2d 488, 493 (Alaska 1996); see also Robinett,  

                                                                                                                                                     

 804 P.2d at 728 (holding that worker provided sufficient evidence to attach presumption  

                                                                                                                                              

through testimony of coworkers and their observations of his condition).  

                                                                                                                       



             31           See, e.g.,  Commercial Union Cos. v. Smallwood, 550 P.2d 1261, 1267  

                                                                                                                                               

(Alaska 1976); see also Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316 (Alaska  

                                                                                                                                                       

 1981) (clarifying need for medical evidence). The cases the parties discuss that required  

                                                                                                                                                      

medical testimony to attachthepresumptioninvolvedpreexistingconditions. SeeTinker,  

                                                                                                                                                         

913 P.2d at 490 (noting preexisting diabetes and Charcot osteoarthropathy); Delaney v.  

                                                                                                                                                                   

Alaska Airlines, Inc. , 693 P.2d 859, 861 (Alaska 1985) (describing claim involving  

                                                                                                                                                   

Crohn's disease); Commercial Union Cos., 550 P.2d at 1262-63 (summarizing claim  

                                                                                                                                                           

involving preexisting hypertension and diabetes).  No doctor identified a preexisting  

                                                                                                                                                

condition  that was aggravated  by  the shooting,  although  Dr.  Wicher's 2017  report  

                                                                                                                                                          

                                                                                                                                            (continued...)  



                                                                             -18-                                                                           7490
  


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

medical   evidence   as   a   matter   of   law   to   meet  the   minimal  burden   to   establish   the  



presumption. The Commission asked Walmart at oral argument for a citation to support                                                                       



its assertion that "a disability related to a psychological condition requires a medical                                                                 



opinion to establish that it exists"; Walmart was unable to provide one.                                                                       Nor have we          

                                                                                                                                                             32   We  

required medical evidence to establish a presumption that a claimant is disabled.                                                                                  



have listed a claimant's ability to perform his job duties as a fact that may be established  

                                                                                                                                                    

through lay testimony.33   And in Smith v. University of Alaska, Fairbanks, we labeled as  

                                                                                                                                                                      



"incorrect" a legal rule "that lay testimony should be disregarded in complex medical  

                                                                                                                                                          

cases."34   The Board could thus not disregard Vue's testimony about his ability to work.  

                                                                                                                                                               



                          Walmart argues that a "psychosocial condition" is as a matter of law "a  

                                                                                                                                                                     

complex medical condition that requires expertise in identifying."35                                                                  Walmart does not  

                                                                                                                                                                   



define what it means by a "psychosocial condition," nor does it provide a medical or  

                                                                                                                                                                      



legal rationale for such a rule.  It summarizes some of our cases about medical evidence  

                                                                                                                                                         



             31           (...continued)  



                                                                                                                                                    

speculated that Vue "may have pre-existing psychological issues" without identifying  

them.  



             32           See Resler v. Universal Servs., Inc., 778 P.2d 1146, 1148-49 (Alaska 1989)  

                                                                                                                                                               

(holding that Board erred in finding that claimant had not attached presumption); cf.  

                                                                                                                                                                     

Carlson  v.  Doyon  Universal-Ogden  Servs.,  995  P.2d  224,  227-28  (Alaska  2000)  

                                                                                                                                                             

(deciding Board erred in finding that claimant did not attach presumption that she was  

                                                                                                   

permanently disabled  when Board relied  on  medical testimony  that claimant could  

                                                                                                                                                              

perform some work).  

                             



             33            Veco, Inc. v. Wolfer, 693 P.2d 865, 870 (Alaska 1985) (listing ability to do  

                                                                                                                                                                     

one's job as fact that can be established through lay testimony).  

                                                                                                       



             34            172 P.3d 782, 790 (Alaska 2007).  

                                                                                



             35           At oralargumentbeforeus Walmartreferred to a"psychological condition"  

                                                                                                                                                      

but  did  not  say  whether  or  how  a  "psychological  condition"  is  different  from  a  

                                                                                                                                                                       

"psychosocial condition."  

                              



                                                                              -19-                                                                              7490
  


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

but does not explain how those cases would lead to the legal conclusion it advocates, nor                                                                                                           



does it explain how expertise in identifying a "psychosocial condition" would be related                                                                                                    



to establishing a worker's inability to "earn the wages which the employee was receiving                                                                                              

                                                   36     Walmart has not been consistent in its terminology, using the  

at the time of injury."                                                                                                                                                                              



term "psychiatric  condition"  - which  it  also  did  not  define  - when  making  this  

                                                                                                                                                                                                  



argument to the Commission.  Psychosocial and psychiatric conditions do not appear to  

                                                                                                                                                                                                        



be  coextensive:                           the  most  recent  version  of  the  Diagnostic  and  Statistical  Manual  

                                                                                                                                                               

suggests  these  two  terms  identify  different  conditions.37                                                                               The  Commission  did  not  

                                                                                                                                                                                                    



address Walmart's argument. We need not decide the legal issue Walmart raises because  

                                                                                                                                                                                          

we determine that Vue provided the evidence Walmart says is lacking.38  

                                                                                                                                                    



                36             AS 23.30.395(16).   



                37  

                                                                                                                                                                                      

                                "DSM-5 has moved to a nonaxial assessment documentation of diagnosis  

(formerly Axes I, II, and III), with separate notations for important psychosocial and                                                                                                             

                                                                                                                                                                                               

contextual factors (formerly Axis IV) and disability (formerly Axis V)." DSM-5, supra  

                                                                                                                                                                                         

note 5, at 16.  "[T]he DSM-5 Task Force recommended that DSM-5 should not develop  

its own classification of psychosocial and environmental problems, but rather use a                                                                                                                      

                                                                                                                                                                                                     

selected set of . . . codes" from the relevant International Classification of Diseases. Id.  

                                                                                                                                                                                              

at 16, 21.  Psychosocial problems have V or Z codes, id. at 16, and they include things  

                                                                                                                                                                                      

like  "[i]nsufficient  social  insurance  or  welfare  support"  or  low  income  (V60.2),  

                                                                                                                                                                                           

"[p]ersonal  history  of  military  deployment"  (V62.22),  and  being  a  crime  victim  

(V62.89).   Id.  at 848, 856, 862.                              



                38             Even though we do not decide the issue, we have grave concerns about  

                                                                                                                                                                                              

medical testimony related to all "psychosocial conditions" in a causation analysis, even  

                                                                                                                                                                                                 

if  they  are  relevant  to  treatment.                                                    Psychosocial  conditions  include  non-medical  

                                                                                                                                                                             

considerations that may be problematic in the legal context, like poverty, id. at 16, 848.  

                                                                                                                                                                                                              

Here,  for  example,  Dr.  Wicher  noted  in  2017  that  "cultural  standards"  or  "prior,  

                                                                                                                                                                                           

unresolved traumas" could be factors in Vue's case.   And Walmart points to Vue's  

                                                                                                                                                                                             

financial situation as a stressor in arguing that factors other than the shooting contributed  

                                                                                                                                                                                  

to  Vue's  psychological  condition.                                                    Could  consideration  of  psychosocial  factors  in  

                                                                                                                                                                                                      

determining causation include an employee's history as a child abuse victim? Could the  

                                                                                                                                                                                                     

                                                                                                                                                                            (continued...)  



                                                                                              -20-                                                                                              7490
  


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

                             Walmart claimed Vue was no longer eligible for TTD as of April 20, 2016,                                                                            



less than three months after he was shot.                                                Vue's claim sought TTD from April 2016 and                                                   



continuing. TheBoarddecided                                         Vueattachedthepresumptionwith                                              Dr. McAnally's letter  



indicating Vue still had work-related limitations and with Vue's testimony that he could                                                                                         



not work because of his psychological condition.                                                              The Commission repeated what the                                        



Board   said,   and  also   summarized   medical   evidence   related   to   Vue's   mental   health  



treatment.  



                             We agree with the Commission's implicit conclusion that Vue attached the                                                                                  



                                                                                                                                                                                         39  

presumption that his psychological condition disabled him shortly after the shooting.                                                                                                          



Not only did Vue testify that he was unable to work because of "constant fear and . . .  

                                                                                                                                             



paranoia," but he also described a continuing need to "shelter" himself.  His testimony  

                                                                                                                                                                        



was corroborated by counseling records the Board had before it, which documented that  

                                                                                                                                                                                      



               38            (...continued)  



                                                                                                                                                                               

Board consider the culture in which the employee was raised to evaluate the work- 

                                   

relatedness of a disability?  



                                                                                                                                                                                    

                             We  also  note  that  we  recently  rejected  an  employee's  argument  that  

                                                                                                                                              

psychological  expertise  was  needed  to  rebut  the  presumption  when  an  employer's  

                                                                                                                                                                                               

physician identified psychosocial factors as the main cause of the employee's back pain.  

                                                                                                                                                                           

 Weaver v. ASRC Fed. Holding Co., 464 P.3d 1242, 1253 (Alaska 2020).   Because  

                                                                                                                                                                                      

attaching the presumption requires less evidence than rebutting the presumption, see  

                                                                                                                                                                                      

AS  23.30.010(a)  (requiring  "a  demonstration  of  substantial  evidence"  to  rebut  the  

                                                                                                                                                                                    

presumption  and  a  "causal link" to  attach  it),  our  holding  in  Weaver suggests that  

                                                                                                                

psychological expertise is not needed to attach the presumption.  



               39            WeacknowledgeWalmart's argument madeatoral argument beforeus that  

                                                                                                                                                                                      

many people are not totally disabled by a psychological condition, as Vue's current  

                                                                                                                                                                             

employment status demonstrates.  But this does not persuade us that all psychological  

                                                                                                                                                        

conditions are per se complex medical conditions requiring an expert opinion about  

                                                                                                                                                                                 

disability to attach the presumption.  Vue's medical records and Dr. Wicher's reports  

                                                                                                                                                                              

both suggest that trauma-related conditions can be more problematic closer to the time  

                                                                                                                                                                                    

of the traumatic event.  

                                     



                                                                                       -21-                                                                                       7490
  


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

 in May 2016 he experienced "clinically significant distress/impairment in social and                                                                                                                                                                                                                   



 occupations functioning." The chart notes from 2016 recorded problems Vue had going                                                                                                                                                                                                             



 out in public, sleeping, and having flashbacks, any of which could affect an employee's                                                                                                                                                                                    



 ability to work.                                        Additionally, Vue's inability to work and his ongoing pain complaints                                                                                                                                                



 appear to have prompted Dr. Rosen's endorsement of Vue's decision to have a second                                                                                                                                                                                                      



 surgery.   Dr. Rosen's notes document Vue's "pain, stress, and anxiety" and                                                                                                                                                                                                        "lengthy  



 discussion and consideration" of the risky surgery.                                                                                                     



                                                Finally, we agree with Vue's argument, made before both administrative                                                                                                



 agencies,   that   Dr.   Wicher's   August   2016   report   contained   evidence   to   attach   the  

                                               40         Walmart asked Dr. Wicher in 2016: "If Mr. Vue's employment is not  

presumption.                                                                                                                                                                                                                                                                                              



 'the substantial cause' of his current and ongoing disability or need for treatment, was  

                                                                                                                                                                                                                                                                 



there any time following the work injury when the employment was 'the substantial  

                                                                                                                                                                                                                                                                              



 cause' of any disability or need for treatment?"   Dr. Wicher responded, "Mr. Vue's  

                                                                                                                                                                                                                                                                                               



 employment has been the substantial cause of his current and ongoing disability and  

                                                                                                                                                                                                                                                                                                        



need for treatment since the time of the injury."  (Emphasis added.)  At oral argument  

                                                                                                                                                                                                                                                                                    



before  us  Walmart  contended  that  this  was  insufficient  evidence  to  attach  the  

                                                                                                                                                                                                                                                                                                        



presumption because Dr. Wicher talked about Vue's disability but never talked about his  

                                                                                                                                                                                                                                                                                                            



 ability  to  return  to  work.                                                                          Because  the  Act  defines  "disability"  in  relation  to  an  

                                                                                                                                                                                                                                                                                                           



                        40                      Walmart discusses Dr. Wicher's 2017 report, not her 2016 report, in its                                                                                                                                                                                     



 argument about attaching the presumption.                                                                                                                   We need not consider Dr. Wicher's 2017                                                                                                

report in determining whether Vue attached the presumption in 2016.                                                                                                                                                                                     "For purposes of                                      

 determining whether theclaimant has establishedthepreliminary                                                                                                                                                                      link, only evidencethat                                              

tends   to   establish  the   link   is   considered   -   competing   evidence   is   disregarded."   

McGahuey v. Whitestone Logging, Inc.                                                                                                             , 262 P.3d 613, 620 (Alaska 2011) (quoting                                                                  

 Tolbert v. Alascom, Inc.                                                             , 973 P.2d 603, 610 (Alaska 1999)).                                                                                              And at the first two stages                                              

 of the presumption analysis, evidence is considered in isolation and is not weighed.                                                                                                                                                                                                                     Id.  



                                                                                                                                                -22-                                                                                                                                                7490
  


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

                                                       41  

employee's ability to work,                                 we cannot see how this distinction undermines Vue's                                            



argument.   An employee does not have to provide enough evidence to prove his claim           

                                                                                                                                                     42   As we  

in order to attach the presumption; he only needs to provide "some evidence."                                                                                    



have previously stated, "The purpose of the preliminary link requirement is 'to rule out  

                                                                                                                                                                 



cases in which [the] claimant can show neither that the injury occurred in the course of  

                                                                                                                                                                   

employment nor that it arose out of [it].' "43                                        Vue provided more than enough evidence  

                                                                                                                                                      



through the medical records and his own testimony to attach the presumption that his  

                                                                                                                                                                 



work-related psychological condition was disabling in 2016, shortly after he was shot.  

                                                                                                                                                              



             B.	          The Commission Erred In Concluding That Walmart Rebutted The  

                                                                                                                                                               

                          Presumption That Vue Was Disabled.  

                                                                                     



                          After Vue attached the presumption, Walmart was required to provide  

                                                                                                                                                        



substantial evidence to rebut it.  In Huit v. Ashwater Burns, Inc. we considered whether  

                                                                                                                                                       



the legislature modified the second stage of the presumption analysis from our case law  

                                                                                                                                                                



when it enacted AS 23.30.010(a), but we limited our consideration to claims in which  

                                                                                                                                                           

"there was no competing cause" that might have contributed to the disability.44                                                                                We  

                                                                                                                                                               



decided  in  Huit  that  in  cases  without  a  competing  cause  the  second  stage  of  the  

                                                                                                                                                                

presumption analysis remained unchanged and was governed by our prior cases.45                                                                                One  

                                                                                                                                                               



             41	  

                          AS 23.30.395(16).   



             42  

                                                                                                                                                           

                         Robinett v. Enserch Alaska Constr., 804 P.2d 725, 728 (Alaska 1990)  

                                                                                                                                                        

(quoting Cheeks v. Wismer & Becker/G.S. Atkinson, J.V., 742 P.2d 239, 244 (Alaska  

 1987)).  



             43          Resler  v.  Universal  Servs.,  Inc.,  778  P.2d  1146,  1148  (Alaska  1989)  

                                                                                                                                                           

(alterations in original) (quoting Cheeks, 742 P.2d at 244).  

                                                                                                       



             44           372 P.3d 904, 916-19 (Alaska 2016).  

                                                                                      



             45          Id. at 918-19.  

                                     



                                                                             -23-	                                                                           7490
  


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

aspect of the rebuttal stage is that it shifts the burden of producing evidence to the                                                    

employer.46  



                      Vuecontendsno preexisting condition contributed tohisdisability, making  

                                                                                                                                    



Huit  applicable.   Walmart does not directly respond to Vue's argument about Huit,  

                                                                                                                                       



although its argument about attaching the presumption asserts that Vue in fact had a  

                                                                                                                                             



preexisting psychological condition.  It highlighted Dr. Wicher's statement in her 2017  

                                                                                                                                       



report   that   "Vue   may   have   pre-existing   psychological   issues"   related   to   his  

                                                                                                                                         



rebelliousness as a teenager or "possible . . . prior, unresolved traumas."  Dr. Wicher's  

                                                                                                                                



speculation does show a competing cause of Vue's disability, so we apply the pre-2005  

                                                                                                                                 



second-stage presumption analysis because, as in Huit, there is no competing cause that  

                                                                                                                                          



might impact the analysis.  

                                             



                      Vue argues that Walmart did not rebut the presumption because it did not  

                                                                                                                                          



producesubstantialevidenceeither that his psychologicalcondition was medically stable  

                                                                                                                                      



or that he was no longer disabled by his mental injury. He maintains that the Board erred  

                                                                                                                                       



by  using  opinions  about  his  eye  condition  when  it  found  Walmart  rebutted  the  

                                                                                                                          



presumption  because  he  was  also  disabled  by  his  PTSD.                                             He  contends  that  the  

                                                                                                                                          



Commission's  conclusion  that  Walmart  rebutted  the  presumption  is  based  on  an  

                                                                                                                                           



inaccurate interpretation of evidence the Board did not rely on to rebut the presumption.  

                                                                                                                                                 



                      Walmartarguesitrebuttedthepresumption through the2017 opinions from  

                                                                                                                                        



two ophthalmologists, as the Board decided, or through Dr. Wicher's report, as the  

                                                                                                                                          



Commission determined.  Walmart suggests Vue was required to present "verification  

                                                                                                         



of a disability from a provider in the form of restrictions" at the rebuttal stage, echoing  

                                                                                                                                  



its  argument  before  the  Commission  that  it  rebutted  the  presumption  through  "the  

                                                                                                                                        



complete absence of professional opinion that Mr. Vue was totally disabled from a  

                                                                                                                                             



           46  

                                                                                                       

                       Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985).  



                                                                  -24-                                                                     7490  


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

psychological condition."                               But at the rebuttal stage, after the presumption has attached,                                            



                                                                                                                                                             47  

the employer - not the employee - has the burden of producing evidence.                                                                                                     

                                                                                                                                                                   We thus  



                      

reject this argument.  



                                                                                                        

                            Walmart sought to contest that Vue was eligible for TTD, so it needed to  



                                                                                                                                                                                 

present substantial evidence that Vue had reached medical stability with respect to all of  

                                                          48 or that he was capable of earning "the wages which [he]  

                                                                                                                                                                            

his work-related conditions 

was receiving at the time of injury in the same or any other employment."49                                                                                       We have  

                                                                                                                                                                           



said, "Once an employee is disabled, the law presumes that the employee's disability  

                                                                                                                                                                 

continues  until  the  employer  produces  substantial  evidence  to  the  contrary."50  

                                                                                                                                                                                      



"Substantial evidence is 'such relevant evidence as a reasonable mind might accept as  

                                               

adequate to support a conclusion.' "51  

                                                                          



                            Walmart denied that Vue was totally disabled for two discrete periods of  

                                                                                                                                                                



time:  from April 20 though August 24, 2016 and after January 7, 2017.  Vue began to  

                                                                                                                                                                                 



work again on July 17, 2017, so at the hearing, he told the Board he was no longer totally  

                                                                                                                                                                        



              47            AS 23.30.010(a) (requiring a "demonstration of substantial evidence");                                                          



Huit, 372 P.3d at 906-07 (setting out affirmative and negative evidence tests, which                                                                                   

require employer to offer evidence that meets tests).                                            



              48            See AS23.30.185, .395(28); Burkev.Houston NANA, L.L.C., 222 P.3d851,  

                                                                                                                                                                            

862-63 (Alaska 2010); see also Unisea, Inc. v. Morales de Lopez, 435 P.3d 961, 965,  

                                                                                                                                                                

971 (Alaska 2019) (discussing difference in concepts of medical stability and maximum  

                                                                                                                                                                

medical improvement when worker has more than one condition).  

                                                                                                                    



              49            AS          23.30.185,                  .395(16);               Burke,              222          P.3d           at       863          (quoting  

                                                                                                                                                               

AS 23.30.395(16)).  

         



              50            Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 458 (Alaska 1997)  

                                                                                                                                                                        

(citing Bailey v. Litwin Corp., 713 P.2d 249, 254 (Alaska 1986)).  

                                                                                                                         



              51            Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1253 (Alaska 2007)  

                                                                                                                                                                        

(quoting Circle De Lumber Co. v. Humphrey, 130 P.3d 941, 946 (Alaska 2006)).  

                                                                                                                                                          



                                                                                   -25-                                                                                   7490
  


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

disabled as of that date.                                   Neither   administrative agency                                        discussed   the time periods                 



separately, although the Board cited medical evidence from both 2016 and 2017 in its                                                                                                        



rebuttal analysis.                      Both agencies cited Dr. Baer's 2017 report as rebuttal evidence but                                                                               



otherwise used different evidence to conclude that Walmart rebutted the presumption.   



We first consider the Commission's decision.                                      



                              Walmart needed substantialevidenceto rebutthepresumptionthat                                                                                    Vuewas   

                                                                                                                                                                       52     Without  

disabled by                 his PTSD in                     April 2016,                  when   it first ceased                          paying   TTD.                        



clarifying which reports it referred to, the Commission wrote that Walmart "relied on the  

                                                                                                                                                                                           



EME  reports  of  Drs.  Baer  and  Wicher"  to  rebut  the  presumption.                                                                                             Because  the  

                                                                                                                                                                                         



Commission cited Dr. Baer's opinion that Vue was medically stable, we conclude it  

                                                                                                                                                                                              



meant the 2017 reports, although neither 2016 EME report had evidence to rebut the  

                                                                                                                                                                                          



presumption in any event.  In their 2016 reports, both doctors said Vue was not then  

                                                                                                                                                                                       



medically stable, and both indicated Vue had an ongoing disability.  In contrast in 2017  

                                                                                                                                                                                      



Dr. Baer said Vue was medically stable with respect to his eye condition at the time of  

                                                                                                                                                                                             



the evaluation, but he explicitly declined to say whether Vue's mental health condition  

                                                                                                                                                                            



was medically stable. Dr. Baer's 2017 report did not set out any physical restrictions on  

                                                                                                                                                                                            



Vue related to his eye condition. The Commission said that Dr. Wicher "deferred to Dr.  

                                                                                                                                                                                          



Baer on the question of . . . Vue's ability to return to work even though he was not  

                                                                                                                                                                               



medically stable mentally."  

                                      



                              Substantial  evidence  does  not  support  the  Commission's  conclusion.  

                                                                                                                                                                                                   



Walmart never asked Dr. Wicher to give an opinion about Vue's disability or his ability  

                                                                                                                                                                                   



to return to work in 2017.  It asked Dr. Wicher whether she would impose "physical  

                                                                                                                                                                            



               52             See id.         1255-56 (discussing evidence related to rebutting presumption for                                                                            



discrete period of disability);  see also Burke, 222 P.3d at 862-63 (discussing evidence   

related to each condition for discrete period of disability when worker disabled by two                                                                                                  

conditions).  



                                                                                         -26-                                                                                         7490
  


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

restrictions" on Vue due to his "diagnosed conditions" and what Vue's future physical                                                                                                      



capacities would be.                              Dr. Wicher's only response that specifically named Dr. Baer said,                                                                                 



"Physical restrictions are beyond the scope of this examination.                                                                                                Please refer to Dr.                    



Baer's   report   for   any   recommendations   of   a   physical   nature."     A   person   can   be  



physically capable of performing all of his job duties and still require work restrictions                                                                                          

                                                                                            53   Dr. Baer's opinion about physical restrictions  

to address his psychological condition.                                                                                                                                              



says nothing about Vue's limitations related to his PTSD or about his wage-earning  

                                                                                                                                                                              



capacity. The rebuttal evidence the Commission cited did not rebut the presumption that  

                                                                                                                                                                                                      



Vue continued to be disabled by his PTSD.  

                                                                                        



                                We next consider the Board's analysis. The Board cited Dr. Rosen's April  

                                                                                                                                                                                                   



2016 statement that Vue had "the physical capabilities to perform his regular job duties"  

                                                                                                                                                                                                                 



and two ophthalmologists' opinions that Vue could return to work in 2017 after the  

                                                                                                                                                                                                       



second surgery.  The Board did not rely on either of Dr. Wicher's reports in its rebuttal  

                                                                                                                                                                                             



analysis, writing that Dr. Wicher's 2017 report "does not state whether [Vue] can return  

                                                                                                                                                                                                 



to work."  None of the opinions the Board relied on said anything about Vue's PTSD- 

                                                                                                                                                                                              



related disability and thus were not substantial evidence to rebut the presumption that  

                                                                                                                                                                                                      

Vue continued to be disabled by his psychological condition.54  

                                                                                                                                                        



                                We are not persuaded by Walmart's argument that it presented adequate  

                                                                                                                                                                                          



rebuttal  evidence  because  Dr.  Wicher's  2016  report  said  the  mental  and  physical  

                                                                                                                                                                                          



conditions were  closely related.                                                   To  the extent Dr.  Wicher directly linked medical  

                                                                                                                                                                                           



stability and psychological stability, the Board knew by the time of the hearing that this  

                                                                                                                                                                                                      



                53              See Runstrom v. Alaska Native Med. Ctr.                                                        , 280 P.3d 567, 570 (Alaska 2012)                                 



(noting restriction on work in patient care when worker suffered anxiety after exposure                                                                                                  

to HIV from patient care).                        



                54              See Burke, 222 P.3d at 863 (deciding that opinions about spinal condition  

                                                                                                                                                                                        

were inadequate to rebut presumption related to carpal tunnel syndrome).  

                                                                                                                                                     



                                                                                                -27-                                                                                               7490
  


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

prediction   was   wrong   and   therefore   could   not   rely   on   that   opinion  to  rebut   the  



                      55  

presumption.                                                                                                                              

                          At the time of the 2017 EME, Dr. Baer thought Vue's eye condition was  



                                                                                                                  

medically stable, but Dr. Wicher said Vue was not medically stable with respect to his  



                         

psychological condition.  



                                                                                                                                          

                      Because  Walmart   did   not   offer   substantial   evidence  to   rebut   the  



                                                                                                                                        

presumption that Vue was disabled by his psychological condition, both agencies erred  



                                                                                                                                            

in so deciding.  Based on this conclusion, we need not address whether Vue proved his  



                                                        

claim by a preponderance of the evidence.  



                                                                                                                                          

           C.	        The Controversions Were Frivolous As A Matter Of Law Under The  

                                                 

                      Commission's Precedent.  



                                                                                                                                     

                      Walmart  filed  two  controversions,  one  related  to  Lyrica  and  pulsed  



                                                                                                                         

neuromodulation and one related to TTD and medical benefits that were "unnecessary,  



                                                                                                                           

unreasonable, and/or unrelated to employee's injury."   The Board and Commission  



                                                                                                                                              

decided the controversions were not unfair or frivolous using the standard from Harp v.  



                                                                                                                                 

ARCO Alaska, Inc. :  "For a controversion notice to be filed in good faith, the employer  



                                                                                                                                         

must possess sufficient evidence in support of the controversion that, if the claimant does  



                                                                                                                                            

not introduce evidence in opposition to the controversion, the Board would find that the  



                                                          56  

                                                                                                                                  

claimant is not entitled to benefits."                         Vue contends both controversions were frivolous  



                                            

or unfair, which Walmart disputes.  



           55          Cf. id.    at 862 (citing        Thoeni, 151 P.3d at 1255-56) (holding that prediction                   



of   medical   stability   that   Board   knew   was   incorrect   at   hearing  was   not   substantial  

evidence that could rebut presumption).         



           56          831 P.2d 352, 358 (Alaska 1992).  

                                                                     



                                                                   -28-	                                                               7490
  


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

                       The Act "sets up a system in which payments are made without need of                                                    



                                                                            57  

Board intervention unless a dispute arises."                                                                                                   

                                                                                 Under AS 23.30.155, an employer is  



                                                                                                                                      

required to file a notice of controversion if it disputes liability for a benefit; it is subject  



                                                                                                                                               58  

                                                                                                                         

to a penalty if it pays a benefit late unless it has filed a timely notice of controversion 

and that controversion was filed in good faith.59                                  The Act requires that a controversion  

                                                                                                                           



notice  state  "the  type  of  compensation  and  all  grounds  on  which  the  right  to  

                                                                                                                                              

compensation is controverted.60                         Controversions thus give notice of disputed issues,61  

                                                                                                                                     

which an employee can use to evaluate whether to pursue a claim.62  

                                                                                                      



                      Vue contends that the Commission's current legal standards related to  

                                                                                                                                               



controversions deviate from our precedent and argues that the controversions were  

                                                                                                                                          



frivolous or unfair such that Walmart's insurer must be referred to the Division of  

                                                                                                                                              



Insurance under AS 23.30.155(o), which requires the Workers' Compensation Division  

                                                                                                                                    



           57         Harris  v.  M-K  Rivers,  325  P.3d  510,  518  (Alaska  2014).  



           58         AS  23.30.155(d)-(e).  



           59         Harp,  831  P.2d  at  358.   



           60         AS  23.30.155(a)(5).  



           61         See   Bockness   v.   Brown   Jug,   Inc.,   980   P.2d   462,  468   (Alaska   1999)  



(observing   that   controversion   notices   of   specific   medical   treatment   gave   employee  

adequate  notice  that  employer  "did  not  consider  them  reasonable  and  necessary");  Univ.  

of  Alaska  Fairbanks v   .  Hogenson,  AWCAC  Dec.  No.  074  at 1                                       2  n.68  (Feb.  28,  2008),  

http://labor.state.ak.us/WCcomm/memos-finals/D_074.pdf                                                 ("[T]he         purpose           of     a  

post-claim   controversion   is   notice   -  to  notify   the   claimant  what   claimed  benefits   are  

contested  and  why."  (emphasis  in  original)  (citing  Groom  v.  State,  Dep't  of  Transp.,  169  

P.3d  626,  635  (Alaska  2007))).  



           62          Cf. Bailey  v.  Tex. Instruments, Inc.,  111 P.3d 321, 325-26 n.10 (Alaska  

                                                                                                                                     

2005) ("Once an employer controverts a claim, the burden shifts to the employee to  

                                                                                                                                               

prosecute the claim promptly.").  

                                   



                                                                   -29-                                                                  7490
  


----------------------- Page 30-----------------------

Director to "promptly notify" the Division of Insurance if the Board "determines that the                                                                      



employer's insurer has frivolously or unfairly controverted compensation due                                                                     under [the   



            63  

                                                                                                                                                        

Act]."          Walmart sets out the Commission's current controversion standards and argues  



                                                                                              

that substantial evidence supported the agencies' decisions.  



                                                

                          1.          Our precedent  



                                                                                                                                                                      

                         The agencies here used the Harp standard to evaluate the controversions.  



                                                                         64  

                                                                                                                                                

That standard is an objective standard.                                       Harp relied on an earlier decision construing  



                                                                                                                                                   

AS 23.30.155, in which we indicated a penalty can be imposed whether the insurer's  



                                                                                                  65  

                                                                                                                                                           

conduct in controverting is negligent or intentional.                                                   In Harp we used the term "bad  



                                                                                                                                                      

faith" to describe controversions that were not filed in good faith; we did not require  



                                                                                                                                          

consideration of the employer's motives when we stated there that "the controversion  



                                                                                              66  

                                                                                                                                                        

                                                                                                  Harp was related to a 1987 injury,  

was made in bad faith and was therefore invalid." 



                                                                                                                        67  

                                                                                                                                                                

and the disputed controversion was filed before July 1, 1988,                                                               the effective date of  



                                 68  

        

AS 23.30.155(o). 



             63          AS 23.30.155(o), .395(15).         



             64          See Harris v. M-K Rivers                         , 325 P.3d 510, 517 (Alaska 2014) (describing             



Harp standard as "objective").  

                                  



             65          Stafford v. Westchester Fire Ins. Co. of N.Y., 526 P.2d 37, 42 (Alaska 1974)  

                                                                                                                                                         

("AS 23.30.155 does not draw a distinction between wilful and negligent failure to make  

                                                                                                                                                          

compensation payments, and thus either type of failure should come within its ambit."),  

                                                                                                                                                   

overruled on other grounds by Cooper v. Argonaut Ins. Cos., 556 P.2d 525, 525 (Alaska  

                                                                                                                                                      

 1976).  



             66          Harp, 831 P.2d 352, 359 (Alaska 1992); see also Harris, 325 P.3d at 515  

                                                                                                                                                             

(describing Board finding that controversions "were in bad faith").  

                                                                                                                  



             67          Harp, 831 P.2d at 353.  

                                                             



             68          Ch. 79, §§ 29, 52, SLA 1988.  

                                                                       



                                                                            -30-                                                                          7490
  


----------------------- Page 31-----------------------

                         We have not considered whether a controversion that does not meet the                                                     



                                                                                                            69  

Harp   standard is frivolous or unfair as a matter of law;                                                                                                 

                                                                                                                 for the most part we have  

                                                                                                        70  The Board, through decision- 

                                                                                                                                                   

                                                                                           

reviewed controversion controversies as factual matters. 



making, construed "frivolous or unfair" in AS 23.30.155(o) consistently with the Harp  

                                                                                                                                                          

standard.71  Before the Commission was created, we considered whether a Board finding  

                                                                                                                                                       

that a controversion was frivolous or unfair was a final decision for purposes of appeal.72  

                                                                                                                                                                      

At that time the Board applied the Harp standard.73                                               We remarked that "the elements of  

                                                                                                                                                                



a frivolous or unfair controversion under AS 23.30.155(o)" - the Harp  standard -  

                                                                                                                                                               

were "similar to the unfair claim settlement practice defined in AS 21.36.125(a)(6)."74  

                                                                                                                                                                      



We made no other comment about the Board's practice.  

                                                                                                            



                         2.           The Commission's framework  

                                                                             



                         In 2009 the Commission decided the Board's practice of using the Harp  

                                                                                                                                                          



standard to evaluate frivolousness or unfairness was erroneous and began to modify the  

                                                                                                                                                              



             69          See Harris           , 325 P.2d at 519 (declining to decide whether a controversion                              



not made in good faith under                          Harp  is always frivolous or unfair under AS 23.30.155(o)).                        



             70          See, e.g., Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1259 (Alaska  

                                                                                                            

2007).  



             71          See, e.g., Nava-Shepherd v. Fairbanks Mem'l Hosp., AWCB Dec. No. 99- 

                                                                                                                                                              

0108, at 4 (May 12, 1999) ("We have applied the court's reasoning from Harp to our  

                                                                                                                                                              

decisions concerning all sections of AS 23.30.155, and held that a controversion not  

                                                                                                                                                              

made in good faith is frivolous and unfair for purposes of AS 23.30.155(o).").  

                                                                                                                      



             72           Crawford & Co. v. Baker-Withrow, 81 P.3d 982, 985 (Alaska 2003).  

                                                                                                                                               



             73          Baker Withrow v. Crawford & Co., AWCB Dec. No. 00-0131 at 6 (July 3,  

                                                                                                                                                                 

2000) ("We have applied the Court's reasoning from Harp, and held that a controversion  

                                                                                                                                          

not made in good faith is frivolous and unfair for purposes of AS 23.30.155(o).").  

                                                                                                                             



             74           Crawford & Co., 81 P.3d at 985.  

                                                                                



                                                                            -31-                                                                          7490
  


----------------------- Page 32-----------------------

                                           75  

analysis of controversions.                    The Commission currently requires a three-step process to                                 



                                         76  

evaluate a controversion.                                                                                                   

                                             According to Commission decisions, the Board must first  

                                                                                                            77  The Commission  

                                                                                                                        

                                                                                                    

consider whether a controversion was filed in good faith under Harp .  



requires the Board to consider only the evidence in the employer's possession at the time  

                                                                                                                                     

of the controversion.78  And because the Commission considers the evidentiary standard  

                                                                                                                              

for a valid controversion analogous to the standard for rebutting the presumption,79 it has  

                                                                                                                                       



imposedarequirement thattheBoardconsider theevidencesupportingthecontroversion  

                                                                                                                      



"in isolation, without assessing credibility and drawing all reasonable inferences in favor  

                                                                                                                                   

of the controversion."80  

           



                     If the Board determines that a controversion was not in good faith, the  

                                                                                                                                      

Board must then consider whether the controversion was frivolous or unfair.81                                                       The  

                                                                                                                                     



Commission has defined these terms, without explanation or citation to authority, as  

                                                                                                                                        



           75        See   Kinley's   Rest.   &   Bar   v.   Gurnett,   AWCAC   Dec.   No.   121   at   12-16  



(Nov. 24, 2009), http://labor.state.ak.us/WCcomm/memos-finals/D_121.pdf (questioning  

Board's   "logic"   and   summarizing   Commission   decisions   about  bad   faith   in   different  

contexts).  



           76        State,  Dep't  of  Educ.  v.  Ford,  AWCAC  Dec.  No.  133  at  21  (Apr.  9,  2010),  



http://labor.state.ak.us/WCcomm/memos-finals/D_133.pdf;  see  also  Gurnett,  AWCAC  

Dec.  No.   121  at   16.  



           77        Ford, AWCAC Dec. No.  133 at 21.  

                                                                           



           78  

                      Gurnett, AWCAC Dec. No.  121 at 17.  

                                                                               



           79        Municipality  of Anchorage  v.  Monfore,  AWCAC  Dec.  No.  081  at  19  

                                                                                                                                       

(June  18, 2008), http://labor.state.ak.us/WCcomm/memos-finals/D_081.pdf (deciding  

                                                                                                                            

that  doctor's  opinion  to  support  a  controversion  "must  be  sufficient  to  rebut  a  

                                                                                                                                         

presumption of compensability" of disputed issue).  

                                                                         



           80        Ford, AWCAC Dec. No.  133 at 21.  

                                                                           



           81        Id.  



                                                                -32-                                                               7490
  


----------------------- Page 33-----------------------

follows: a    "frivolous" controversion is one "completely lacking a plausiblelegal                                                                                       defense  



or evidence to support a fact-based controversion" and an "unfair" controversion is                                                                                                   

                                                                                                                        82   Finally, if the Board decides  

"dishonest, fraudulent, the product of bias or prejudice."                                                                                                                



that  a  controversion  is  frivolous  or  unfair,  it  must  examine  the  motives  of  the  

                                                                                                                                                                                  

controversion author to determine whether the controversion was made in bad faith83  

                                                                                                                                                                             



because "[a] frivolous controversion is not necessarily the product of bad faith conduct  

                                                                                                                                                                         

by the author, as it may be based on an honest, mistaken understanding of fact or law."84  

                                                                                                                                                                                            

The Commission decided that AS 23.30.155(o) requires a separate finding of bad faith,85  

                                                                                                                                                                            



even though the statute requires notice to the Division of Insurance "if the [B]oard  

                                                                                                                                                                         



determines  that  the  employer's  insurer  has  frivolously  or  unfairly                                                                                     controverted  

                                                                                                                                                             

compensation due under [the Act]."86  

                                                                



                             Vue challenges only two aspects of the Commission's legal framework,  

                                                                                                                                                                 



which we consider in turn. Because of the limited challenge here, we apply other aspects  

                                                                                                                                                                           



of the Commission's analysis to the facts of this case, but we do not adopt the analysis.  

                                                                                                                                                                                            



For example,weapply the Commission's definitions of"frivolous"and "unfair"because  

                                                                                                                                                                          



the legislature did not define them and the parties did not ask us to review their meaning,  

                                                                                                                                                                       



providing no briefing on this issue.  The Commission did not explain the basis for its  

                                                                                                                                                                                     



definitions, but the Commission's definition of "frivolous" appears similar to the Harp  

                                                                                                                                                                               



standard. And because Vue's arguments are principally related to the evidence Walmart  

                                                                                                                                                                        



              82  

                             Gurnett, AWCAC Dec. No. 121 at 16.                                          



              83            Id. ;  see also Ford                   , AWCAC Dec. No. 133 at 21.                                 



              84             Ford, AWCAC Dec. No. 133 at 21 n.99.                                         



              85            Id. at 18; see also Gurnett, AWCAC Dec. No. 121 at 12-13.  

                                                                                                                                                 



              86             AS 23.30.155(o) (emphasis added).                            



                                                                                      -33-                                                                                     7490
  


----------------------- Page 34-----------------------

had to support the controversions, our analysis of the controversions in this case will                                                                                                                                                                                              



 focus on whether they were frivolous.                                                         



                                             We   now   consider   the   specific   legal   challenges   Vue   has   made   to   the  



 Commission's three-step framework.                                                   



                                             3.	                   An   employer's   insurer   has   a   continuing   duty   to   modify   or  

                                                                   withdraw  a   controversion   when   it   receives   evidence   that  

                                                                    undermines the controversion's basis.                                                                              



                                             Vue contends that the Board is not limited to the evidence in the employer's                                                                                                                                     



possession at the time of controversion in assessing whether the controversion meets the                                                                                                                                                                                                 



Harp  standard because such a rule allows an employer to escape a penalty when it later                                                                                                                                                                                          



 obtains evidence that undermines the controversion's factual basis.                                                                                                                                                                 He argues that an                                     



 employer has a continuing obligation to withdraw a controversion, so that a penalty may                                                                                                                                                                                             



be   imposed   if   an   employer   later   acquires   evidence   that   removes   the   basis   for   the  



 controversion but does not withdraw the controversion. Walmart asserts that substantial                                                                                                                                                                       



 evidence supports the agency decisions.                                                                                                 At oral argument before us Walmart insisted                                                                                     



that it had no obligation to withdraw the controversions here, but it did acknowledge that                                                                                                                                                                                             



hypothetically if a doctor, provided with more information, changed his opinion when                                                       



 an    employer    asked,    the    employer    would    have    an    obligation    to    withdraw    the  



 controversion.  



                                             In  Harp  we considered the evidence the employer possessed at the time of                                                                                                                                                                     

                                                 87   It is not unreasonable to consider at the outset the evidence the insurer  

 controversion.                                                                                                                                                                                                                                                            



had  when  it  filed  the  controversion,  particularly  when  an  employee's  condition  is  

                                                                                                                                                                                                                                                                                            

unstable.88  But we agree with Vue that an insurer has a continuing obligation to consider  

                                                                                                                                                                                                                                                                       



                       87                     831 P.2d 352, 358 (Alaska 1992).                                                           



                       88  

                                                                                                                                                                                                                                                                                          

                                             See  Gurnett,  AWCAC  Dec.  No.  121  at  7-8  (setting  out  sequence  of  

                                                                                                                                                                                                                                                      (continued...)  



                                                                                                                                       -34-	                                                                                                                                       7490
  


----------------------- Page 35-----------------------

                                                                                  89  

new evidence that comes to its attention                                               and to modify or withdraw controversions                 



based on that new evidence or face a possible penalty or referral to the Division of                                                                  



                                                                                                                                                                          90  

Insurance. A continuing obligation is implicit in the Act and in Commission decisions.                                                                                         



                                                                                                                                                                      

To  construe  the  statute  otherwise  would  allow  an  insurer  to  act  contrary  to  the  



                                                                                                                                                                         

provision's purpose:  "creat[ing] an incentive for the insurance carrier to timely pay an  

                                                                        91      We  therefore  hold  that  the  employer  has  a  

                                                                                                                                                                          

employee  the  compensation  due." 



continuing duty to evaluate the evidence supporting a controversion and that it may be  

                                                                                                                                                                         



subject to a penalty if it fails to modify or withdraw a controversion after receiving  

                                                                                                                                                          



evidence that removes the original basis for the controversion.  

                                                                                                 



                           4.	          The Commission exceeded its authority by adding an element of  

                                                                                                                                                                          

                                        subjective bad faith to AS 23.30.155(o).  

                                                                                                 



                           Vue also challenges the Commission's legal rule that the Board must make  

                                                                                                                                                                   



a finding of subjective bad faith before it can refer an insurer to the Division of Insurance  

                                                                                                                                                           



for frivolously or unfairly controverting a benefit, arguing that Walmart's controversion  

                                                                                                                                                  



of Lyrica was unfair and thus Walmart's insurer should be referred to the Division of  

                                                                                                                                                                         



Insurance under AS 23.30.155(o).  Walmart responds that it had adequate evidence to  

                                                                                                                                                                          



support its controversions.  

                       



             88            (...continued)  



                                                                                              

opinions about employee's ability to return to work).  



             89            AS 23.30.095(h) requires parties to file and serve all medical reports in                                                                     



                                                                                                   

their possession after a claim is filed; the duty is continuing.  



             90            See Gurnett, AWCAC Dec. No. 121 at 18 (postulating that physician's  

                                                                                                                                                       

change  of  opinion  "might  remove  the  basis  for  continuing  to  controvert  future  

                                                                                                                                                                

compensation").  



             91            Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1192 (Alaska 1993).  

                                                                                                                                                                 



                                                                                -35-	                                                                              7490
  


----------------------- Page 36-----------------------

                                                                                                                               92  

                     The       Act      has      contained          a    penalty        provision         since       1959,          but  



                                                           93  

AS 23.30.155(o) was added in 1988.                                                                             

                                                               The statutory language is not complex:  



                                                                                                                 

                     The  [D]irector  shall  promptly  notify  the  [D]ivision  of  

                                                                                                   

                      [I]nsurance if the [B]oard  determines that the  employer's  

                                                                                                

                     insurerhasfrivolouslyorunfairly controverted compensation  

                                                                                                               

                     due  under  [the  Act].                  After  receiving  notice  from  the  

                                                                                                                 

                      [D]irector, the [D]ivision of [I]nsurance shall determine if the  

                                                                                                        

                     insurer has committed an unfair claim settlement practice  

                                      

                     under AS 21.36.125.  



                                                                                                                                     

The  legislature's  intent  was  that  the  Division  of  Workers'  Compensation  and  the  



                                                                                                                                      

Division of Insurance "strictly enforce . . . the reporting requirements and penalties for  



                                                            94  

                                           

noncompliance under AS 23.30.155." 



                     The statute does not mention bad faith; it requires a referral if the Board  

                                                                                                                                 



"determines  that  the  employer's  insurer  has  frivolously  or  unfairly  controverted  

                                                                                                                     



compensation due under" the Act.  The legislature did not define what a frivolous or  

                                                                                                                                       



unfair  controversion  was,  so  the  Board  and  later  the  Commission  had  authority  to  

                                                                                                                                       



interpret those terms.  The Commission's interpretation of "frivolous" and "unfair" did  

                                                                                                                                      



not require an assessment of the controversion author's intent:  the Commission wrote  

                                                                                                                                  



that "[a] frivolous controversion is not necessarily the product of bad faith conduct by  

                                                                                                          

the author."95         Having interpreted AS 23.30.155(o) in a manner that did not require bad  

                                                                                                                                     



           92        Ch.   193,  §   13,  SLA   1959.  



           93        Ch.  79,  §  29,  SLA   1988.  



           94        Ch.  79,  §   1(e),  SLA   1988.  



           95        State, Dep't of Educ. v. Ford, AWCAC Dec. No. 133  at 21 n.99 (Apr. 9,  



2010),  http://labor.state.ak.us/WCcomm/memos-finals/D_133.pdf.  



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----------------------- Page 37-----------------------

faith,   the   Commission   could   not   expand   the   statutory   requirements   and   impose   an  



                                                                 96  

additional element of subjective bad faith.                           



                                                                                                                  

                     5.	       The April 2017 controversion was frivolous as the Commission  

                                                           

                               has defined that term.  



                                                                                                                               

                     We now examine the two controversions here.  Because Walmart's April  



                                                                                                                               

2017 controversion disputed Vue's entitlement to medical care within the first two years  



                                                                                                                            

after the injury, it needed to have enough evidence to meet the standard set out in Phillip  



                                                     97  

                                                                                                                          

Weidner &Assocs., Inc. v. Hibdon.                        We said in that case that when a "claimant presents  



                                                                                                                                        

credible, competent evidence from his . . . treating physician that the treatment . . .  



                                                                                                                                 

sought  is  reasonably  effective  and  necessary  for  the  process  of  recovery,  and  the  



                                                                                                                                  

evidence is corroborated by other medical experts, and the treatment falls within the  



                                                                                                                         98  

                                                                                                                                   

realm of medically accepted options, it is generally considered reasonable."                                                  If an  



                                                                                                                                

employee makes  this showing, an employer must have evidence the treatment was  



                                                                                                                           

"neither reasonable and necessary, nor within the realm of acceptable medical options  

                                       99 of the case. Walmart thus needed to have sufficient evidence  

                                                                                                                         

under the particular facts" 



          96         See  London   v.  Fairbanks  Mun.   Utils.,  Emp'rs   Grp.,   473   P.2d   639,   642  



(Alaska   1970) (holding that Board's "imposing  additional restrictions on the statutory  

language"  was  "improper").  



                     As we observed, the Commission's definition of "frivolous"  is similar to  

the  "good  faith"  standard  in  Harp .   The  Harp  standard  is  objective  and  "does  not  require  

an inquiry into the motives of  the controversion's  author."   Harris v. M-K Rivers, 325  

P.3d  510,  517  (Alaska  2014).  



          97         989 P.2d 727, 732 (Alaska 1999).  

                                                                



          98        Id.  

                           



          99        Id. (emphasis added).  

                                           



                                                              -37-	                                                           7490
  


----------------------- Page 38-----------------------

both that the medical treatment it controverted was not reasonable and necessary                                                                    and  that  

it was not within the realm of acceptable medical options under the facts of the case.                                                                        100  



                         Vue focuses on Dr. Baer's lack of expertise in pain management to argue  

                                                                                                                                                         



that his opinion was not adequate evidence to support a controversion.  We have not  

                                                                                                                                                             

generally required the Board to give more weight to the opinions of specialists,101 but the  

                                                                                                                                                              



Hibdon standard may include consideration of lack of expertise because "[t]he question  

                                                                                                                                                   

of reasonableness is 'a complex fact judgment involving a multitude of variables.' "102  

                                                                                                                                                                     



There may be circumstances when, as the Commission said and as Walmart argues, an  

                                                                                                                                                               



employer could reasonably rely on a medical doctor's opinion outside of his specialty.  

                                                                                                                                                                     



A doctor can have training or experience outside of his speciality that can provide an  

                                                                                                                                                              

adequate basis for an opinion.103  But Dr. Baer ultimately testified that he had no basis  

                   



to dispute several of Dr. McAnally's opinions and that he had no experience with either  

                                                                                                                                                         



of the treatments Walmart controverted.  Given Dr. Baer's admitted lack of knowledge  

                                                                                                                                              



and experience with the treatments at issue here, his opinion could not as a matter of law  

                                                                                                                                                            



             100         The   Commission's   paraphrase   of   the   Hibdon   test   in   Ford   is   incorrect  



because the Commission used the disjunctive "or" to set out the test.                                                               Ford, AWCAC   

Dec. No. 133 at 29.                    We overrule that part of the                         Ford  decision.  



             101         Sosa de Rosario v. Chenega Lodging, 297 P.3d 139, 147 (Alaska 2013)  

                                                                                                                                                        

("We have never held that the opinion of one type of medical specialist is, as a matter of  

                                                                                                                                                               

law, entitled to greater weight than that of another.").  

                                                                                 



             102         Hibdon, 989 P.2d at 732 (quoting Fluor Alaska, Inc. v. Mendoza, 616 P.2d  

                                                                                                                                                           

25, 27 (Alaska 1980)).  

                              



             103         For example, in Sosa de Rosario the claimant's treating physician was an  

                                                                                                                                                               

internist who had practiced for 30 years and testified as to his experience treating patients  

                                                                                                                                                     

with back pain and disc problems.  297 P.3d at 144.  

                                                                                          



                                                                           -38-                                                                          7490
  


----------------------- Page 39-----------------------

provide enough evidence to permit the Board or the Commission to reject Vue's claim                                                                     

 for these two treatments.                     104  



                         With respect to Lyrica, two of Vue's treating physicians indicated it would  

                                                                                                                                                      



                                                                                                                                                             105  

be useful to treat neuropathic pain.  Dr. Baer agreed that Lyrica is used to treat pain.                                                                            

                                                                                                                                                     



Nothing in Dr. Baer's April report indicates that Lyrica was not within the realm of  

                                                                                                                                                              



 acceptable medical options for treatment of Vue's pain; indeed, Dr. Baer prefaced his  

                                                                                                                                                            



 opinion that Lyrica was unnecessary with the phrase "[i]n my judgment."  And at his  

                                                                                                                                                            



 deposition, Dr. Baer indicated Lyrica's use was "a judgment call" when asked about his  

                                                                                                                                                             



 opinion.  This is not adequate evidence to support controverting Lyrica under Hibdon .  

                                                                                                                                                                    



When the appropriateness of medical treatment in the first two years after injury is "a  

                                                                                                                                                              



judgment  call,"  the  choice  in  treatment  is  left  to  the  employee  and  his  treating  

                                                                                                                                                   



                    106  

physician.                



                         While Dr. Baer acknowledged that pain is subjective and there was no  

                                                                                                                                                             



 question Vue was injured, he doubted the level of Vue's pain.  He thought the pain's  

                                                                                                                                                      



 source was the pellet,  even  though he was aware  by  April that Dr.  McAnally  had  

                                                                                                                                                           



 administered a nerve block and that the results of that nerve block suggested that the  

                                                                                                                                                            



pain's source was the infraorbital nerve.  At his deposition Dr. Baer stated that he had  

                                                                                                                                 



no basis to dispute Dr. McAnally's diagnosis that the source of Vue's pain was the entry  

                                                                                                                                                         



             104         See State, Dep't of Commerce, Cmty. &Econ. Dev., Div. of Corps., Bus. &                                                               



Prof'l   Licensing   v.   Wold,   278   P.3d   266,   272   (Alaska   2012)   (holding   that   expert's  

 "speculation" was not substantial evidence).                   



             105         Walmart's assertion that Dr. Baer "opined that the work injury was not the  

                                                                                                                                                             

 substantial cause of the need for either treatment" is not supported by Dr. Baer's report.  

                                                                                                                                                                    



             106         Hibdon, 989 P.2d at 732 ("[W]here a claimant receives conflicting medical  

                                                                                                                                                    

 advice, the claimant may choose to follow his or her own doctor's advice, so long as the  

                                                                                                                                                             

 choice of treatment is reasonable.").  

                                          



                                                                           -39-                                                                         7490
  


----------------------- Page 40-----------------------

wound and the infraorbital nerve, saying, "[I]t's out of my field." Without a basis for the                                                        



opinion, it was no more than speculation.                                     An expert's speculation is not substantial             



                107  

                                                                                                 

evidence             and could not serve as the basis for a valid controversion.  



                                                                                                                                        

                       With respect to pulsed neuromodulation, Dr. Baer's April report contained  



                                                                                                                                                 

what can best be described as neutral evidence about pulsed neuromodulation.   We  



                                                                                                                                                

indicated in Harp that evidence that is at best neutral is not sufficient to support a fact- 



                                    108  

                                                                                                                                        

based contoversion.                        Dr. Baer wrote that while pulsed neuromodulation was "not  



                              

widely accepted as a treatment modality," "[m]edical literature suggests that it may be  



                                                                                                                                                      

useful in certain cases"; he suggested that Walmart "could" refer the question "to a  



                                                                                                                                                   

physician experienced in pain management."  After noting the relief Vue got from the  



                                                                                                                                                    

temporary  nerve  block  to  his  infraorbital  nerve,  Dr.  Baer  noted  the  availability  of  



                                                                                                                                                  

alternative treatments for "longer term or permanent block," but neither identified nor  



                                                                                                                                        

described them.  He concluded, "From my knowledge and experience, this treatment  



                                                                                                                                          

modality  is  neither  reasonable  nor  necessary."                                        These  statements  do  not  provide  



                                                                                                                                                  

sufficient evidenceto support afact-basedcontroversionbecausetheyacknowledgedthat  



                                                                                                                                                   

the treatment was effective in some cases and contained no information about why Dr.  



                                                                                                                                              

Baer thought it would not be useful to Vue.   With no factual basis to support it, the  



                                                                                  

controversion was frivolous as defined by the Commission.  



                                                                                                                                       

                       Assuming for the sake of argument that the April report had sufficient  



                                                                                                                                                 

evidence to support a controversion, Dr. Baer's deposition  testimony removed any  



                                                                                                                                                          

possible evidentiary value his report might have to controvert pulsed neuromodulation.  



                                                                                                                                            

When  asked  at  deposition,  Dr.  Baer  revealed  that  he  had  not  heard  of  pulsed  



                                                                                                                                      

neuromodulation beforeWalmart inquired and hadnoexperiencewithit. His knowledge  



            107         Wold, 278 P.3d at 272.           



            108  

                                                                              

                        831 P.2d 352, 358-59 (Alaska 1992).  



                                                                      -40-                                                                          7490  


----------------------- Page 41-----------------------

came frominquiries to "oculoplastic" surgeons who had "heard of it" and some research.                                                                                                                                                                                                                                                                                          



He said that "[his] question is not the treatment but the existence of [Vue's] pain."                                                                                                                                                                                                                                                                      All  



of this information should have prompted Walmart to withdraw its April controversion.                                                                                                                                                                                                                          



                                                        6.                          The May 2017 controversion of TTD was frivolous.                                                                                                                                           



                                                        Walmart's May 2017 controversion controverted two periods of TTD:                                                                                                                                                                                                                                                       



April 20 to August 24, 2016 and the period after January 6, 2017. The controversion did                                                                                                                                                                                                                                                                       



not set out any basis for controverting the 2016 period, merely reciting the payment                                                                                                                                                                                                                                                  



history. The controversion identified Dr. Chang's and Dr. Vincent's "work status report                                                                                                                                                                                                                                                            



dated 01/05/17, opining employee reached medical stability on that date" to support the                                                                                                                                                                                                                                                                       



controversion of TTD in 2017 and continuing.                                                                                                                                                          In its hearing brief Walmart contended                                                                                    



Dr.Rosen's 2016                                                          note about Vue's physical capacities supported the termination ofTTD                                                                                                                                                                                                          



in 2016.   



                                                        With respect to the months in 2016, we note first that the controversion                                                                                                                                                                                



notice itself did not meet the statutory standard of explaining the basis for Walmart's                                                                                                                                                                                                                                       



                                                                                                                         109  

controversion of 2016 TTD.                                                                                                                                                                                                                                                                                                                                   

                                                                                                                                        Turning to the reason asserted in its hearing brief, Dr.  



                                                                                                                                                                                                                                                                                                                                                                     

Rosen's note was not sufficient evidence to support a controversion of TTD because it  



                                                                                                                                                                                                                                                                                                                                                                   

failed to adequately show that Vue was not disabled by his psychological condition, as  



                                                                                                                                                                                                                                                                                                                                 110  

                                                                                                                                                                                                                                                                        

set out above.  The notice was thus frivolous as defined by the Commission. 



                                                        The January 2017 work status report limited its opinion about medical  

                                                                                                                                                                                                                                                                                                                                         



stability to the surgery:   in response to the question whether Vue "reached medical  

                                                                                                                                                                                                                                                                                                                                         



                            109                         AS 23.30.155(a)(5) (setting out "the type of compensation and all grounds                                                                                                                                                                                                        



on which the right to compensation is controverted" as requirement of notice).                                                                                                                                                                                                                            



                            110                         See Kinley's Rest. &Bar v. Gurnett, AWCAC Dec. No. 121 at 16 (Nov. 24,  

                                                                                                                                                                                                                                                                                                                                                               

2009), http://labor.state.ak.us/WCcomm/memos-finals/D_121.pdf (defining frivolous  

                                                                                                                                                                                                                                                                                                                                   

controversion asone"completely lackingaplausiblelegaldefenseorevidenceto support  

                                                                                                                                                                                                                                                                                                                                            

a fact-based controversion").  

                                                     



                                                                                                                                                                        -41-                                                                                                                                                                           7490
  


----------------------- Page 42-----------------------

 stability from the 2/3/2016 eye injury," the doctors wrote, "Yes, from surgical aspect."                                                                                                                                                                                                                                                                                                                               



Given that Vue continued to receive pain management and psychological treatment                                                                                                                                                                                                                                                                                       



related to the injury and that Dr. Wicher's March 2017 report said Vue was not medically                                                                                                                                                                                                                                                                              



 stable with respect to his psychological condition, Walmart did not have sufficient                                                                                                                                                                                                                                                                                 



evidence to support its factual assertion in the controversion that Vue was medically                                                                                                                                                                                                                                                                               



 stable, making the controversion frivolous under the Commission's definition.                                                                                                                                                                                                                                                                                                   



                                                               7.                             The May 2017 controversion of medical benefits was frivolous.                                                                                                                                                                                                         



                                                              Walmart's May 2017 controversion also controverted "Medical Benefits                                                                                                                                                                                                                                          



 . . . which are unnecessary, unreasonable, and/or unrelated to employee's injury of                                                                                                                                                                                                                                                                                   



02/03/16."    The reason related to medical benefits was Dr. Baer's April EME about                                                                                                                                                                                                                                                                                                     



Lyrica and pulsed neuromodulation, but the controversion did not state with specificity                                                                                                                                                                                                                                                                            



what medical treatment was controverted.                                                                                             



                                                              A controversion of all medical benefits that are not reasonable or necessary                                                                                                                                                                                                                            



 fails to provide notice to anyone what specific benefit is disputed and therefore does not                                                                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                                                                                                                                         111  

 fulfill the basic function of providing notice of what part of a claim is disputed.                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                                                                                                                        It also  



                                                                                                                                                                                                                                                                                                                                                                                      

does not provide an explanation of coverage related to the facts of Vue's case that would  

                                                                                                                                                                                                                                                                                                                                                             112  We have  

                                                                                                                                                                                                                                                                                                                                                                                             

allow him or a provider to discern whether coverage exists for specific care. 



                                111  

                                                              See   Bockness   v.   Brown   Jug,   Inc.,   980   P.2d   462,  467   (Alaska   1999)  

 (observing   that   controversion   notices   of   specific   medical   treatment   gave   employee  

adequate notice that employer "did not consider them reasonable and necessary");                                                                                                                                                                                                                                                                                                         Univ.  

of Alaska Fairbanks v. Hogenson                                                                                                                                , AWCAC Dec. No. 074 at 12 n.68 (Feb. 28, 2008),                                                                                                                                                                     

http://labor.state.ak.us/WCcomm/memos-finals/D_074.pdf                                                                                                                                                                                                                                        ("[T]he                                       purpose                                        of                  a  

post-claim controversion is                                                                                                         notice   -  to notify the claimant what claimed benefits are                                                                                                                                                                                                    

contested and why." (emphasis in original) (citing                                                                                                                                                                                    Groom v. State, Dep't of Transp.                                                                                                                        , 169   

P.3d 626, 635 (Alaska 2007))).                                                                             



                                112  

                                                               Cf. AS 21.36.125(a)(15) (listing as unfair insurance practice "fail[ing] to  

                                                                                                                                                                                                                                                                                                                                                                                                          

promptly provide a reasonable explanation of the basis in the insurance policy in relation  

                                                                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                                                                                                                      (continued...)  



                                                                                                                                                                                           -42-                                                                                                                                                                                              7490
  


----------------------- Page 43-----------------------

construed the Act as requiring employers to provide medical care that is reasonable and                                               



                 113  

necessary,                                                                                                                 

                      so this controversion in essence provides no information to either  the  



                                                                                                                              

claimant or healthcare providers about what care may be contested or why.  A claimant  

                                                                                                                            114   More  

                                                                                                                                   

                                                                                                                    

could not decide on the basis of this type of notice whether to pursue a claim. 



importantly, controverting a claim or otherwise undermining a claim's status has a  

                                                                                                                                         



documented negative impact on medical care for injured workers.  In Bockus v. First  

                                                                                                                                    



Student  Services,  for  example,  the  mere  knowledge  that  an  EME  was  scheduled  

                                                                                                                           

prompted the treating physician to delay needed surgery.115  

                                                                                                  



                     Dr. Baer's April 2017 report could not provide a factual basis to support a  

                                                                                                                                          



controversion this broad; it only addressed a small number oftreatments and only offered  

                                                                                                                                



opinions about two.   We have discussed the evidentiary insufficiency of Dr. Baer's  

                                                                                                                                 



report above.   With no factual basis to support it, the May 2017 controversion was  

                                                                                                                                     



frivolous as the Commission has defined that term.  

                                                                          



           112        (...continued)  



                                                                        

to the facts or applicable law for denial of a claim").  



           113       See Bockness, 980 P.2d at 466.  

                                                                 



           114  

                      Cf. Bailey v. Tex. Instruments, Inc., 111 P.3d 321, 325-26 n.10 (Alaska  

                                                                                                                               

2005) ("Once an employer controverts a claim, the burden shifts to the employee to  

                                                                                                                                        

prosecute the claim promptly.").  

                                 



           115        384 P.3d 801, 806 (Alaska 2016); see also Phillip Weidner &Assocs., Inc.  

                                                                                                                                      

v. Hibdon, 989 P.2d 727, 730 (Alaska 1999) (describing delay in getting surgery when  

                                                                                                                                   

employer controverted it); cf. Rusch v. Se. Alaska Reg'l Health Consortium, 453 P.3d  

                                                                                                                                    

784, 788-89 (Alaska2019) (describing difficultyschedulingsurgery when insurer would  

                                                                                                                                  

not preauthorize it).  

                            



                                                                -43-                                                               7490
  


----------------------- Page 44-----------------------

V.      CONCLUSION  



               We REVERSE the Commission's decision and REMAND  this case with  



instructions  to  remand  the  case  to  the  Board  for  calculation  of  TTD  and  penalty  owed  to  



Vue  as  well  as  referral  of  Walmart's  insurer  to  the  Division  of  Insurance.  



                                               -44-                                            7490
  

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