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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Felipe M. Espindola v. Peter Pan Seafoods, Inc. and Seabright Insurance Company (5/14/2021) sp-7529

Felipe M. Espindola v. Peter Pan Seafoods, Inc. and Seabright Insurance Company (5/14/2021) sp-7529

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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                                      



FELIPE  M.  ESPINDOLA,                                          )  

                                                                )    Supreme  Court  No.  S-17683  

                                Appellant,                      )  

                                                                                                  

                                                                )    Alaska Workers' Compensation  

                                                                                                                

           v.                                                   )    Appeals Commission No.  17-019  

                                                                )  

                                                       

PETER PAN SEAFOODS, INC. and                                                              

                                                                )    O P I N I O N  

                        

SEABRIGHT INSURANCE                                             )  

COMPANY,                                                                                               

                                                                )    No. 7529 - May 14, 2021  

                                                                )  

                                Appellees.                      )  

                                                                )  



                                                                                                        

                                            

                     Appeal from the Alaska Workers' Compensation Appeals  

                     Commission.  



                                                                                                  

                     Appearances:              Felipe  M.  Espindola,  pro  se,  Grandview,  

                                                                                                        

                     Washington,  Appellant.                     Michelle  M.  Meshke,  Meshke  

                                                                                    

                     Paddock & Budzinski, Anchorage, for Appellees.  



                                                                                        

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

                                                

                     and Borghesan, Justices.  



                                           

                     MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                      

                     A cannery worker reported two injuries, one to his back and one to his  



                                                                                                                                    

shoulder, suffered at different times but while working for the same employer.   The  



                                                                                                                                       

employer paid some medical benefits for both injuries but eventually controverted its  



                                                                                                                                

obligation to provide further care.  The Alaska Workers' Compensation Board denied  


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

the worker's claim for more medical benefits, and the Alaska Workers' Compensation  

                                                                                                                            



Appeals Commission affirmed the Board's decision.  The worker appeals, representing  

                                                                                                                                



himself.  We conclude that the Commission properly affirmed the Board's decision as  



to the back injury but that the Board's findings as to the shoulder injury lack adequate  



support in the record.   We therefore reverse the Commission's decision in part and  

                                                                                                                                               



remand for further proceedings.                          



II.         FACTS AND PROCEEDINGS     



                       Felipe Espindola lives in Washington and has worked seasonally in Alaska                                           



in the seafood industry for a number of years, including work for Peter Pan Seafoods  

                                                                                                                                     



from 2002 until 2013.  He usually worked from January to April in King Cove, then  

                                                                                                                                              



from June to September in Dillingham; other times of year he worked picking fruit in  

                                                                                                                                                  



Washington.  Espindola is not a fluent English speaker and had a translator at the Board  

                                                                                                                                           



hearing, his deposition, and some medical appointments.  

                                                                          



                       Espindola first reported an injury to his back in April 2009 when he was  

                                                                                                                                              



working for Peter Pan in King Cove spreading cod bellies, but he did not miss any work  

                                                                                                                                             



at that time.  He saw a doctor after he returned to Washington, about three weeks after  

                                                                                                                                             



the injury, and the doctor diagnosed a lumbar strain and told him to take two weeks off.  

                                                                                                                                                       



                       Espindola returned to the doctor in May and August 2009.  In August of  

                                                                                                                                                  



that year he had an MRI, which showed degenerative changes in the lumbar spine.  In  

                                                                       



October he began a course of physical therapy which evidently improved his function,  

                                                                                                                                      



and in early 2010 he came back to Alaska for work.  

                                                                                           



                       Espindola again sought medical attention for his back in Washington in  

                                                                                                                                                  



April 2010, and he was diagnosed with degenerative disc disease. He completed another  

                                                                                                                                         



course of physical therapy that spring and summer and had a series of three epidural  

                                                                                                                                       



steroid injections in June and July.  The injections provided minimal pain relief, but his  

                                                                                                                                                



                                                                        -2-                                                                 7529
  


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healthcare provider decided in November 2010 that he was medically stable and could  



                         

return to work.  



                                                                                                                           

                    Espindola's second reported injury related to shoulder pain, which began  



                                                                                                                         

in August 2012 while he was working for Peter Pan in Dillingham trimming salmon  



                                                                                                                                 

fillets.  He usually worked on one side of the conveyor belt but one day was assigned to  



                                                                                                                               

the other; he explained at his deposition that this meant he had to cut fish to the left  



                                                                                                                               

instead of to the right as he usually did.   Further information about the injury is not  



                                                                                                          

entirely consistent.  According to contemporaneous medical records, Espindola began  



                                                                                                                              

to feel pain in his arm and shoulder as he worked; it "started in his little finger . . . like  



                                                                                                                           

pins and needles, and gradually it [went] all the way up to his neck." The report of injury  



                                                                                                                                 

describes pain occurring "after 8 hours of repetitive movement . . . as the movement to  



                                                                                                                            

remove bones was different." But at his deposition Espindola testified that at some point  



                                                                                                                               

he "felt a click" in his right shoulder "[a]nd then with the movement, it got numb."  



                                                                                                                             

                    Espindola went to the walk-in clinic in Dillingham and saw a doctor, who  



                                                                                                                                  

diagnosed nerve impingement in his neck from overuse and instructed him to wear a  



                                                                                                                                  

sling for three days.   Back in Washington in September, Espindola consulted with a  



                                                                                                                              

physician assistant who wrote a note for a few weeks of modified duty and referred him  



                                                                                                                        

to physical therapy.  The physical therapy helped, though he still had "mild residual  



                                                                                                                         

symptoms."            He  reported  "occasional  weakness"  in  his  right  hand,  and  the  doctor  



                                                                                                                                

observed decreased grip strength, so the doctor referred him for a shoulder MRI.  In  



                                                                                                                           

November Espindola reported that his shoulder pain kept him from his usual work  



                                                  

picking apples.  He nonetheless returned to Alaska for seasonal cannery work in early  



2013.  



                                                               -3-                                                         7529
  


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                                 An MRI of Espindola's shoulder in August 2013 showed arthritic changes,                                                                                          



                                                                                                                     1                               2  

tears in tendons that are part of the rotator cuff,                                                                                                                                                         

                                                                                                                        and a labral  cyst, which a doctor later  



                                                                                                                                                                                                               

said could mean a labral tear. Espindola was given a steroid injection in the shoulder but  



                                                                                                                                                                                                                  

had only short-lived pain relief.  He received care for his lower back pain at this time as  



well.  



                                                                                                                                                                                                            

                                 Peter Pan sent Espindola to an employer's medical evaluation (EME) with  



                                                                                                                                                                                            

Dr.  Paul  Reiss,  an  orthopedic  surgeon,  in  September  2013.                                                                                                 Dr.  Reiss  diagnosed  



                                                                                                                                                                                                          

degenerative disc disease in the lumbar spine and degenerative arthritis in the right  



                                                                                                                                                                                                         

shoulder.  Dr. Reiss did not think the work injuries had permanently aggravated either  



                                                                                                                                                                                 

condition,  and  in  his  opinion  both  arthritic  processes  predated  the  work  injuries.  



                                                                                                                                                                                                               

Dr. Reiss acknowledged that Espindola suffered a work-related back injury in 2009, but  



                                                                                                                                                                                                                

he believed that injury was no longer the substantial cause of the back condition.  In  



                                                                                                                                                                                       

Dr. Reiss's opinion, Espindola was medically stable with respect to the work-related  



                                                                                                                                                                                                   

injuries, and they required no further medical care.  Peter Pan controverted all benefits  



                                                                   

after receiving this report.  



                                                                                                                                                                                                     

                                 Espindola's shoulder pain increasedfor no reasonhecouldidentify, leading  



                                                                                                                                                                                                               

him to again seek medical care in April 2014. He informed a physician assistant that the  



                 1               The   MRI   showed   problems   with   the   subscapularis,   the   supraspinatus  



tendon, and the infraspinatus tendon.                                                            The rotator cuff of the shoulder is defined as                                                                  

"anterior, superior, and posterior aspects of the capsule of the shoulder joint reinforced                                                                                                   

by   the   tendons   of   insertion   of   the   supraspinatus,   infraspinatus,   teres   minor,   and  

subscapularis   (SITS)   muscles."     Rotator   cuff  of   shoulder,   STEDMAN'S    MEDICAL  

DICTIONARY, Westlaw (database updated Nov. 2014).                                                                     



                 2               A labrum is "[a] fibrocartilaginous lip around the margin of the concave                                                                                         



portion   of   some   joints."     Labrum,   id.     The   shoulder   joint   is   also   known   as   the  

glenohumeral joint.  Glenohumeral joint, id.  The "glenoid labrum of scapula" is "a ring  

                                                                                                                                                                                                             

of fibrocartilage attached to the margin of the glenoid cavity of the scapula to increase                                                                                                         

its depth."  Glenoid labrum of scapula, id.  

                                                                                                   



                                                                                                        -4-                                                                                               7529
  


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

                                                                     

pain interfered with his sleep and got worse when he tried to work picking apples and  



                                                                                                                               

grapes. The physician assistant did not impose any formal work restrictions because "the  



                                                                                                                               

claim is not open and accepted at this time," but he nonetheless recommended that  



                                                                                                                                      

Espindola look for work that did not require him to raise his arm above shoulder level.  



                                                                                                                         

Imaging in July 2014 was similar to the 2013 MRI, with the exception of a change  



                      

related to the infraspinatus.  



                                                                                                                                 

                    Espindola filed a written workers' compensation claim in the spring of  



                                                                                                                            

2014, seeking medical and transportation costs as well as a finding that Peter Pan's  



                                                                                                                                

controversion of his claim was unfair and frivolous.  Peter Pan again controverted the  



            

claim.  



                                                                                                                                

                    Espindola continued to get medical care throughout 2014 for both his  



                                                                                                                                 

shoulder and his back.  Following a diagnosis of shoulder impingement syndrome, he  



                                                                                                                                

consulted with a surgeon.  The surgeon cautioned that surgery might not alleviate the  



                                                                                                                            

pain and that the rehabilitation process would be "prolonged."  In early 2015 Dr. Reiss  



                                                                                                                    

did another EME, which did not change his earlier opinion that Espindola's continuing  



                                                    

problems were not work-related.  



                                                                                                                        

                    In  April  2016  the  parties  stipulated  to  a  second  independent  medical  



                                                                                                                     

evaluation  (SIME)  for  both  the  back  and  the  shoulder,  and  the  Board  appointed  



                                                                                                                             

Dr. James F. Scoggin III to do the evaluation. Dr. Scoggin's report concluded that work  



                                                                                                                               

with Peter Pan was likely not the substantial cause of Espindola's back condition but  



                                                                                                                                

likely was the substantial cause of his  shoulder  condition  and  the related  need  for  



                                                                                                                     

medical care.  According to Dr. Scoggin, Espindola's work-related shoulder conditions  



                                                                                                                     

included a labral tear and a possible rotator cuff injury; Dr. Scoggin also diagnosed  



                                                                                                                                      

arthritis  in  the  shoulder,  though  noting  that  this  condition  was  "non-industrial."  



                                                                                                                           

Dr. Scoggin did not diagnose a specific problem with Espindola's lower back, saying  



                                                                -5-                                                         7529
  


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

simply that the patient had "low back pain . . . already noted to have been present for 4                                                                                                                                                                                                                                                      



years at the time of [a] 12/18/08 note" in a medical chart.                                                                                                                                               



                                                     In explaining his diagnoses, Dr. Scoggin observed that Espindola had not                                                                                                                                                                                                          



had shoulder pain before the incident at Peter Pan and had had "consistent complaints                                                                                                                  



of right shoulder pain" ever since.                                                                                                     Dr. Scoggin considered the mechanism of the work                                                                                                                                       



activity to be an adequate explanation for a labral tear and a possible rotator cuff tear.                                                                                                                                                                                                                                                              



Because   Espindola's   account   of   the   shoulder   pain   was   not   entirely   consistent,  



Dr. Scoggin clarified in his deposition that he believed the shoulder injury could be                                                                                                                                                                                                                                                    



explained by either a repetitive-motion injury or trauma from "an individual cut."                                                                                                                                                                                                                                                 



                                                     Espindola's submissions to the Board included medical records from two                                                                                                                                                                                                          



doctors he had consulted in Mexico.                                                                                                                    One record was a statement from Dr. J. Jesús                                                                                                                           



Campos   Chávez,   along   with   an   English   translation.     Dr.   Campos,   an   orthopedist,  



diagnosed chronic low back pain exacerbated by flexion; he noted that Espindola's pain                                                                                                                                                                                                                                             



made it difficult for him to walk or to carry more than 25 kilograms.                                                                                                                                                                                                             Imaging studies   



showed scoliosis as well as degenerative changes in the lumbar spine.                                                                                                                                                                                                                           Dr. Campos   

                                                                                                                                                                              3 inthespineand recommended weight loss  

diagnosed degenerativespondyloarthropathy                                                                                                                                                                                                                                                                                            



and   core   muscle   strengthening   in   addition   to   limitations   on   some   activities.  

                                                                                                                                                                                                                                                                                                                                                        



Dr. Campos's statement did not recommend surgery, and, aside from noting that the  

                                                                                                                                                                                                                                                                                                                                       



condition was secondary to a work accident, it had no causation analysis.  

                                                                                                                                                                                                                                                              



                                                     Espindola testified at his deposition about the other doctor he had seen in  

                                                                                                                                                                                                                                                                                                                                            



Mexico for his back, Dr. Victor Díaz Giner, a radiologist; he later submitted Dr. Díaz's  

                                                                                                                                                                                                                                                                                                                          



                          3                          Spondyloarthropathy refers to a class of "inflammatory rheumatic diseases                                                                                                                                                                                      



that cause arthritis" such as psoriatic arthritis or ankylosing spondylitis; they can be                                                                                                                                                                                                                                                 

hereditary.                                                Spondyloarthritis,                                                             Fast                      Facts,                           AM.                     COLL.                           OF               RHEUMATOLOGY,   

https://www.rheumatology.org/I-Am-A/Patient-Caregiver/Diseases-Conditions/Spon  

                                                                                                                                  

dyloarthritis (last visited Nov. 4, 2020).  



                                                                                                                                                                     -6-                                                                                                                                                         7529
  


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

                                                                                                                             

report, along with an English translation, to the Board. According to Espindola, Dr. Díaz  



                                                                                                                                

told him that "with an operation [he] should be fine."  Dr. Díaz's report appears to be  



                                                                                                                                 

similar to the MRI report on Espindola's back done in Washington in August 2013.  



                                                                                                                             

                    The Board held a hearing on Espindola's claims in August 2017, with  



                                                                                                                     

Espindola representing himself with assistance from an interpreter.  The only witnesses  



                                                                                                                                

at  the  hearing  were  Dr.  Reiss  and  Espindola;  the  Board  also  had  a  transcript  of  



                                                                                                                               

Dr. Scoggin's deposition.  Dr. Reiss questioned Dr. Scoggin's conclusions about the  



                                                                                                        

shoulder as well as his measurements of certain movements. Dr. Reiss's testimony  



                                                                                                                                

suggests that he was not asked to consider whether Espindola's shoulder pain could be  



                                                                                                                                

related to a repetitive-motion-type claim: after explaining that he been asked to focus on  



                                                            

the day of the 2012 injury, he said, "If [Espindola] would like to file another claim for  



                                                                                                                              

what he's doing for all these other days, I would be happy to see him for that claim and  



                                                                                                                

discuss it on its own merits."   Dr. Reiss pointed to the change in the infraspinatus  



                                                                                                                       

between two shoulder MRIs to support his opinion that Espindola did not have a superior  



                                                                                                                                     

labrum anterior and posterior (SLAP) tear, as other examining doctors had suggested.  



                                                                                                                             

Dr. Reiss opined that the new finding related to the rotator cuff shown on the 2014 MRI  



                                                                                                                                 

was likely related to degenerative changes, and that the labral tear was degenerative as  



well.  



                                                                                                                              

                    Espindola testified about working conditions at Peter Pan, suggesting that  



                                                                                                                            

his back pain described in the pre-2009 medical records was also related to his work  



                                                                                                                         

there.  He said he had not filed an earlier workers' compensation claim because doctors  



                                                                                                                        

had not been able to identify any damage to his back before 2009. His testimony focused  



                                                                                                                           

on his pain and the problems it caused him.  Peter Pan's attorney asked Espindola about  



                                                                                                              

his work in agriculture in Washington.   Espindola agreed that he had picked apples  



                                                                                                                               

seasonally  since  2002  and  that  the  work  required  him  to  lift  his  hands  above  his  



                                                                                                                             

shoulders; he said he could not do it much anymore because of his shoulder pain.  



                                                               -7-                                                         7529
  


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

                                                                         The Board applied its three-step presumption analysis to each claim for                                                                                                                                                                                                                                                                                                                    



medical care, finding that Espindola had attached the presumption of compensability as                                                                                                                                                                                                                                                                                                                                                                                    



to both his back and his shoulder.                                                                                                                                                             The Board concluded that Peter Pan rebutted the                                                                                                                                                                                                                     



presumption for both conditions with Dr. Reiss's opinions.                                                                                                                                                                                                                                                                    At the third stage, when the                                                                                                          



Board weighed the evidence, it decided first that Espindola failed to meet his burden of                                                                                                                                                                                                                                                                                                                                                                                 



proof about his back injury; it relied on both Dr. Reiss's and Dr. Scoggin's opinions for                                                                                                                                                                                                                                                                                                                                                                           



this conclusion.                                                                        As for the shoulder, the Board gave the most weight to Dr. Reiss's                                                                                                                                                                                                                                                                                  



 opinions and again rejected Espindola's claims.                                                                                                                                                                                                                     



                                                                         In explaining its evaluation of the                                                                                                                                              evidence, the Board said that Espindola's                                                                                                                  



 "description of how the injury occurred changed over time, and Dr. Scoggins [sic] relied                                                                                                                                                                                                                                                                                                                                                             



heavily on the description [Espindola] gave at the time of the SIME."  The Board also  



thought Dr. Scoggin did not "appear to differentiate between the supraspinatus tear" on                                                                                                                                                                                                                                                                                                                                                                                



the August 2013 MRI "and the infraspinatus tear" on the July 2014 MRI.                                                                                                                                                                                                                                                                                                                                                The Board   



 cited Dr. Reiss's explanation that Espindola's "description of the injury would not cause                                                                                                                                                                                                                                                                                                                                                             



the supraspinatus tear shown on the first MRI."                                                                                                                                                                                                                           The Board's very brief summary of                                                                                                                                                             



Dr. Scoggin's report and testimony does not mention either the infraspinatus or the                                                                                                                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                                                                                                                                                            4  The Board also  

 supraspinatus; it indicates only that Dr. Scoggin diagnosed a labral tear.                                                                                                                                                                                                                                                                                                                                                                                    



decided that Peter Pan had not filed an unfair or frivolous controversion.  

                                                                                                                                                                                                                                                                                                                           



                                    4                                    The supraspinatus and infraspinatus are muscles, attached to the bone by                                                                                                                                                                                                    



tendons.   Supraspinatus,   infraspinatus, S                                                                                                                                                                                         TEDMAN'S   MEDICAL   DICTIONARY, Westlaw   

 (database updated Nov. 2014).                                                                                                                                          The tendons are part of the rotator cuff.                                                                                                                                                                                 See supra                                                 note  

  1.   The labrum is made of cartilage.                                                                                                                                                       See supra                                                note 2. The labrum in the shoulder is part                                                                                                                                                               

 of the scapula; according to a medical dictionary, the "glenoid labrum of scapula" is "a                                                                                                                                                                                                                                                                                                                                                                               

ring of fibrocartilage attached to the margin of the glenoid cavity of the scapula to                                                                                                                                                                                                                                                                                                                                                                                   

increase its depth."                                                                                         Glenoid labrum of scapula                                                                                                                                    , STEDMAN'S   MEDICAL   DICTIONARY,  

                                                                                                                                                                                     

Westlaw (database updated Nov. 2014).  



                                                                                                                                                                                                                                    -8-                                                                                                                                                                                                                    7529
  


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

                                           Espindola appealed                                                to   the Commission.                                                   He primarily                                  argued   that the   



Board's decision, with its focus on Dr. Reiss's opinions, erroneously failed to take into                                                                                                                                                                                 



account the views of other doctors.                                                                                   The Commission affirmed the Board's decision,                                                                                      



deciding that it was supported by substantial evidence in the record.                                                                                                                                                        The Commission   



pointed out that the Board acted within its authority when it chose to credit Dr. Reiss's                                                                                                                                                                      



opinions over those of other doctors. It further noted that the record lacked reports from                                                                                                                                                                             



some of the doctors Espindola now relied on and that it could not consider evidence that                                                                                                                                                                                  



had not been presented first to the Board; however, it reminded Espindola that he could                                                                                                                                                                             



file a new claim if he believed he had new medical evidence to support it.                                                                                                                                                             



                                           Espindola appeals.   



III.                  STANDARD OF REVIEW                                          



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



                                                                     5  

and not the Board's.                                                                                                                                                                                                                                                     

                                                                             We review de novo the Commission's legal conclusion that  



                                                                                                                                                                                                                                                      

substantial evidence supports the Board's factual findings by "independently reviewing  



                                                                                                                        6  

                                                                                                                                                                                                                                                          

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

                                                                                                                                                                                                                                      7   "Whether the  

                                                                                                                                                                                                                                                                             

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

quantum of evidence is substantial is a question of law."8                                                                                                                                   "Whether the [B]oard made  

                                                                                                                                                                                                                                                                     



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



                      6                    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)).   



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

                                                                                                                                                                                                                                                 

2000)).  



                      8                    Id.  

                                                      



                                                                                                                                       -9-                                                                                                                            7529
  


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

sufficient findings is a question of law that we review de novo."                                    9  



IV.	       DISCUSSION  



                     Espindola argues, as he did before the Commission, that the Board "did not  

                                                                                                                                     



take  into  consideration  all  of  the  doctor[s']  point[s]  of  view  as  well  as  witness  

                                                                                                                             



statements."  He asserts that there were doctors willing to testify that his injuries were  

                                                                



work-related,  but he does not explain  why  he did  not call them as  witnesses.                                                   He  

                                                                                                                                     



contends that even if he did have osteoarthritis or other preexisting conditions, he was  

                                                                                                            



still injured on the job and has "had a lot of pain and suffering" as a result.  Peter Pan  

                                                                                                                                    



asks us to affirm the Commission's decision, arguing that the Board's decision had  

                                                                                                                                   



substantial evidentiary support and the Commission properly deferred to the Board's  

                                                                                                                             



assessment of the evidence.  

                              



                     Because  the  Commission,  like  the  Board,  considered  Espindola's  two  

                                                                                                                                   



injuries individually, we do the same.  

                                                   



           A.	       The  Commission  Correctly  Concluded  That  Substantial  Evidence  

                                                                                                                          

                     Supports The Board's Decision About The Back Injury.  

                                                                                                         



                     The only benefit Espindola sought was medical care; with respect to his  

                                                                                                                                     



lower back, it was not clear what medical care he wanted the Board to order. He testified  

                                                                                                                             



at his deposition that Dr. Díaz told him surgery would resolve his pain, but the medical  

                                                                                                                             



records  from  Dr.  Díaz  do  not  support  this  assertion.                                Dr.  Campos  recommended  

                                                                                                                  



essentially  conservative  care  for  Espindola's  back  pain.                                    No  Washington  doctor  

                                                                                                                              



recommended back surgery.  

                                                



                     Assuming Espindola does need further medical care for his lower back,  

                                                                                                                                 



substantial evidence supports the Board's decision that Espindola's work with Peter Pan  

                                                                                                                                    



was not the substantial cause of that need.  Both Dr. Reiss and Dr. Scoggin diagnosed  

                                                                      



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

                                                                                                                                      

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

                                                                                                              



                                                                 -10-	                                                               7529  


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

                                                                                                                                      10  

degenerative disc disease unrelated to Espindola's 2009 work injury.                                                                       The Board has   



                                                                                                                   11  

authority to weigh the evidence, including medical opinions.                                                                                                     

                                                                                                                       TheBoarddiscussed both  



                                                                                                                                                        

Dr. Reiss's and Dr. Scoggin's opinions about Espindola's back; their opinions certainly  



                                                                                                                                                              

support a reasonable conclusion that the work injury at Peter Pan was no longer the cause  



                                                                                                                                                                 

of his back pain. Unless "the evidence detracting from the agency's decision" was  

                                                                                                                                                           12   And  

                                                                                                                                                                

"dramatically disproportionate to the evidence supporting" it, we must affirm it. 



there is little evidence detracting from the Commission's decision about Espindola's  

                                                                                                                                     



lower back pain.  

                        



                          The medical records show that Espindola had lower back pain at least  

                                                                                                                                                               



beginning in 2004, and from imaging studies his doctors diagnosed degenerative disc  

                                                                                                                                                                 



disease.  Few if any doctors thought anything other than conservative treatment was  

                                                                                                                                                                 



warranted, and atleast oneofEspindola's treating doctors in Washington consideredhim  

                                                                                                                                                                  



to be medically stable with regard to the 2009 injury. Neither Dr. Scoggin nor Dr. Reiss  

                                                                                                                                                               



thought Espindola's ongoing back pain was related to his work in general or to the 2009  

                                                                                                                                                               



incident in particular.  

                       



             10           Dr. Scoggin's report appears to be limited to the 2012 shoulder injury, but                                                              



at his deposition he agreed with Dr. Reiss's opinion about the effects of the 2009 back                                                                         

injury.  



             11           AS 23.30.122.  

                                  



             12           Alaska Police Standards Council v. Maxwell , 465 P.3d 467, 473 (Alaska  

                                                                                                                                       

2020) ("While [substantial evidence] is a deferential standard, we will 'review the entire  

                                                                                                                                                              

record  to  ensure  that  the  evidence  detracting  from  the  agency's  decision  is  not  

                                                                                                                                                                 

dramatically  disproportionate  to  the  evidence  supporting  it  such  that  we  cannot  

                                                                                                                                                          

"conscientiously" find the evidence supporting the decision to be "substantial." ' "  

                                                                                                                                                                          

(emphasis omitted) (quoting Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267  

                                                                                                                                                                  

P.3d 624, 635 n.40 (Alaska 2011))).  

                                                       



                                                                                -11-                                                                           7529
  


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

                    While the Board did not summarize all of Espindola's medical evidence,  



its failure to do so is not a reason for us to reverse the decision.  The Board is required  

                                                                                                                    

                                                                                                  13  it does not need to  

to make findings only about issues that are material and contested;                                                           

                                                                                    



discuss all medical records before it. The medical records about Espindola's lower back  

                                                                                                                          



are consistent for the most part, and Espindola did not explain how the information he  

                                                       

cited to the Commission undercut the evidence on which the Board relied.14  Dr. Campos  

                                                                                                                     



noted Espindola's report that his chronic back pain was "secondary to a labor accident,"  

                                                                                                                  



but the doctor made no analysis of causation himself, and he diagnosed a type of arthritis  

                                                                                                                      



that was not clearly work related.  Dr. Díaz's report said nothing at all about causation.  

                                                                                                                                  



                    Because the Commission correctly concluded that substantial evidence in  

                                                                                                                              



the record supported the Board's decision about Espindola's lower back, we affirm this  

                                                                                                                            



aspect of its decision.  

                    



          B.	       The  Commission  Erred  In  Concluding  That  Substantial  Evidence  

                                                                                                                  

                    Supports The Board's Decision About The Shoulder Condition.  

                                                                                                        



                    We turn next to the  shoulder injury.   The testimony and reports from  

                                                                                                                         



Espindola's treating doctors did not diagnose this condition with certainty, noting a  

                                                                                                                               



possible SLAP tear, a possible rotator cuff injury, and a possible labral tear. Dr. Scoggin  

                                                                                                                     



diagnosed a work-related "[r]ight shoulder posterior labral tear" as well as a "possible  

                                                                                         



partial-thickness rotator cuff tear" that could have been caused by work.  Dr. Reiss, on  

                                                                                                                             



the other hand, thought all of Espindola's shoulder problems were degenerative.  

                                                                                                                         



          13        Bolieu  v.  Our  Lady  of  Compassion  Care  Ctr.,  983  P.2d  1270,  1275  (Alaska  



1999).  



          14        Like   the   Commission,   we   did   not   find   medical   records   from   either   a  



Dr.  David  or  a  Dr.  Brian  in the  record.   Two  of  Espindola's  physical  therapists  were  

Bryan  Davis  and  David  Bullock;  their  reports  were  included  in  the  records  provided  to  

Dr.  Scoggin.   



                                                             -12-	                                                       7529
  


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

                                                                                                                            

                    The Board gave more weight to Dr. Reiss's opinion because in its view  



                                                                                                                                 

Dr. Scoggin's opinion "relied heavily on the description [Espindola] gave at the time of  



                                                                                                                              

[the] SIME." But the record does not support this conclusion; Dr. Scoggin indicated that  



                                                                                                                               

Espindola's work at Peter Pan could have caused a labral tear regardless of how the  



                                                                                                                           

injury was described. Dr. Scoggin acknowledged that Espindola's account of the injury  



                                                                                                                               

had changed, saying "that the most consistent mechanism described was cutting the  



                                                                                                                              

fillets, and whether it was one specific fillet or whether it was doing things all day  



                                                                                                                      

long . . . has varied." But Dr. Scoggin said either mechanism could explain the posterior  



labral tear he had diagnosed; he did not think the preexisting arthritis eliminated work  



                                                                                                                  

as a factor.   He testified, "The injury, I think, is the labral tear, and the mechanism  



                                                                                                                                 

whether it's an individual cut or repetitive cuts, which specific cut caused the injury to  



                                                                                                                         

the shoulder may not be . . . it's probably unknowable, but yet he was doing that activity  



                                                                                                                               

and the pain began that day." He concluded, "In my opinion, the substantial cause of his  



                                                                                                  

labral tear and pain was the cutting activities that he did on that date."  



                                                                                                                              

                    The other reason the Board gave for rejecting Espindola's claim was that  



                                                                                                                               

Dr. Scoggin did not "appear to differentiate between the supraspinatus tear shown on the  



                                                                                                                              

August 2, 2013 MRI and the infraspinatus tear shown on the July 21, 2014 MRI."  But  



                                                                                                                           

Dr. Scoggin's principal diagnosis was not a rotator cuff injury; his only explicitly work- 



                                                                                                                      

related diagnosiswas the posterior labral tear. Although hisreport mentioned a"possible  



                                                                                                                               

partial-thickness rotator cuff tear" in the August 2013 MRI report, we see nothing in the  



                                                                                                                              

record suggesting that this injury, whatever it was, was related to the labral tear that  



                                           

Dr. Scoggin unequivocally diagnosed.  



                                                                                                                                 

                    Because the Board's crucial findings supporting its decision with regard to  



                                                                                                                                 

Espindola's shoulder injury are not supported by the record, the Commission erred in  



                          

concluding they were.  



                                                              -13-                                                         7529
  


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

              C.	            The   Commission   Correctly   Concluded   That   Substantial   Evidence  

                             Supports The Board's Finding About The Controversions.                                           



                             It is not clear that Espindola is challenging the Commission's decision                                                                   



about the controversions, but we agree with the Commission that they were not unfair   



or frivolous.                An employer may be penalized if its controversion is not made in good                                                                             



           15  

faith.                                                                                                                                                                    

                 "For a controversion notice to be filed in good faith, the employer must possess  



                                                                                                                                                                      

sufficient evidence in supportofthecontroversion that, if the claimant does not introduce  



                                                                                                                                                                                   

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



                                            16  

                                                                                                                                                          

entitled to benefits."                            Peter Pan had adequate evidence to support its controversions  



                                                                                                                                                                                     

because they relied on Dr. Reiss's EME reports, which provided enough evidence to  



                                                      

meet the Harp standard.  



V.	           CONCLUSION  



                             We AFFIRM the Commission's decisions that substantial evidence in the  

                                                                                                                                                                                   



record supported the Board's decision about Espindola's low back condition and that the  

                                                                                                                                                                                    



controversions were not unfair or frivolous. We REVERSE the Commission's decision  

                                                                                                                                                                        



that substantial evidence supported the Board's decision about Espindola's shoulder  

                                                                                                                                                                       



condition and REMAND this case for further proceedings.  

                                                                                                                                



              15            Harp  v.  ARCO  Alaska,  Inc.,  831  P.2d  352,  358  (Alaska   1992).  



              16            Id.  



                                                                                        -14-                                                                                          7529  

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