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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Silvia V. Tobar v. Remington Holdings LP and Liberty Insurance Company (8/30/2019) sp-7402

Silvia V. Tobar v. Remington Holdings LP and Liberty Insurance Company (8/30/2019) sp-7402

           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                                       



SILVIA  V.  TOBAR,                                               )  

                                                                 )     Supreme  Court  No.  S-17027  

                                Appellant,                       )  

                                                                                                    

                                                                 )    Alaska Workers' Compensation  

                                                                                                                  

           v.                                                    )    Appeals Commission No.  17-013  

                                                                 )  

                                                      

REMINGTON HOLDINGS LP and                                                                  

                                                                 )    O P I N I O N  

                                           

LIBERTY INSURANCE COMPANY, )  

                                                                 )                                           

                                                                      No. 7402 - August 30, 2019  

                                Appellees.                       )  

                                                                 )  



                                             

                                                                                                         

                      Appeal from the Alaska Workers' Compensation Appeals  

                      Commission.  



                                                                                                                        

                      Appearances: Silvia V. Tobar, pro se, Anchorage, Appellant.  

                                                                                                               

                      Rebecca Holdiman Miller, Holmes Weddle & Barcott, P.C.,  

                                                

                      Anchorage, for Appellees.  



                                                                                                                        

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

                                           

                      and Carney, Justices.  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                      

                      A hotel housekeeper injured her back while lifting a pile of linens.  Her  



                                                                                                                                      

employer controverted benefits based on an examining doctor's opinion that she was  



                                                                                                                                      

medically stable and that the job injury was no longer the substantial cause of any  



                                                                                                                            

disability  or  need  for  medical  treatment.                            After  a  hearing,  the  Alaska  Workers'  


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

                                                                                                                            

Compensation Board decided that the woman was medically stable as of the date of the  



                                                                                                                     

doctor's opinion and therefore not entitled to further disability payments or to benefits  



                                                                                                                            

for permanent partial impairment.  The Board also denied further medical care after the  



                                                                                                              

date of medical stability.  The Alaska Workers' Compensation Appeals Commission  



                                                                       

affirmed the Board's decision, and the woman appealed.  



                                                                                                                             

                    Because the Board's selected date of medical stability is not supported by  



                                                                                                                             

substantial evidence in the record, we vacate the Commission's decision and remand the  



                                                                                                                       

case to the Commission with instructions to remand the case to the Board for further  



proceedings.  



                                 

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                            

                    Silvia Tobar worked for Remington Holdings LP as a housekeeper at the  



                                                                                                                    

Anchorage  Sheraton  Hotel.                    With  a  fourth-grade  education  and  limited  English  



                                                                                                                       

proficiency, she had worked only in housekeeping since her immigration to the United  



States.  



                                                                                                           

                    In late July 2013 Tobar injured her back while lifting bed linens.  After a  



                                                                                                                     

short rest she still had difficulty walking,  and an  ambulance took her to a hospital  



                                                                                                                             

emergency room.  An MRI showed disc bulging in her lumbar spine; she was taken off  



                                                                                                  

work and instructed to follow up with the Alaska Spine Institute.  



                                                                                                                      

                    Tobar's primaryprovider at theAlaskaSpineInstitutewasShawnaWilson,  



                                                                        

a nurse practitioner, who diagnosed discogenic back pain.  Wilson initially prescribed  



                                                                                                                                  

medication, referred Tobar to physical therapy, and took her off work for a month.  



                                                                                                                        

Tobar attended physical therapy in August and September; Wilson then released Tobar  



                                                                                                                              

to light duty work with restrictions. But Remington had no light duty work for Tobar to  



                                                                            

do, so she continued to receive disability benefits.  



                                                              -2-                                                        7402
  


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                    In early October Wilson noted that Tobar felt she was "getting depressed  



                                                                                                                        

because of her pain levels and  her  inability to work," and later that month Wilson  



                                                                                                                                 

prescribed an antidepressant.  On October 11 Tobar had an epidural steroid injection in  



                                                                    

her lower back, giving her some pain relief.  



                                                                                                                      

                    Twice that month Wilson answered questions from Remington's workers'  



                                                                                                                              

compensation insurance carrier. In early October Wilson told the carrier that Tobar had  



                                                                                                                               

not yet reached maximum medical improvement, and a few weeks later she informed the  



                                                                                                                                

carrier that she had diagnosed a disc herniation with extrusion at L2-L3, as well as  



                                                                                                                                     

discogenic lower back pain secondary to both the herniation and an L4-L5 annular tear.  



                                                                                                                

It was Wilson's opinion that these diagnosed injuries were work-related.  



                                                                                                    

                    Tobar lost touch with the Alaska Spine Institute for the last three months  



                                                                                                                           

of 2013; at her deposition she explained she had not understood that she needed to return  



                                                                                                                            

to  physical  therapy  after  the  epidural.                        Wilson  did  not  see  Tobar  again  until  



                                                                                                                     

January 2014, when she warned Tobar that any improvement in her condition depended  



                                                                                                                       

on  consistent treatment.                Wilson  prescribed  medication,  referred  Tobar  to  physical  



                                                                                                                      

therapy three times a week for four weeks, and took her off work for another month.  



                                                                                                                     

                    In  February  Wilson  again  responded  to  questions  from  the  insurance  



                                                                                                                                

carrier, informing it that Tobar would again be released to light/sedentary duty work on  



                                                                

March 1, 2014.  But Wilson was "unable to determine" when Tobar could be released  



                          

to regular work.  



                                                                                                                     

                    Tobar attended all the prescribed physical therapy sessions in February,  



                                                                                                                             

reporting to Wilson at the end of the month that her pain had improved.  Wilson took  



                                                                                                                                

Tobar off work for another month, prescribed a second epidural steroid injection -  



                                                                                                                           

administered on March 13 - and wrote a new prescription for physical therapy.  Tobar  



                                                                                                                            

attended the physical therapy evaluation on March 28; the provider planned one to three  



                                                                                                                  

sessions  per  week  "for  6-8  weeks  for  up  to  1  hour  per  session."                                But  Remington  



                                                               -3-                                                         7402
  


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

                                                                                                                    

controverted all benefits shortly afterwards, andthephysicaltherapyprovider discharged  



                                                                                                                                     

Tobar, explaining, "Unfortunately her workman's comp case has been controverted.  



                                                                      

Thus we will discharge her from skilled PT."  



                                                                                                                        

                    Remington's controversion was based on a March 20 employer's medical  



                                                                                                                              

evaluation (EME) by Dr. Scot Youngblood.  Dr. Youngblood's EME report shows that  



                                                                                                                               

he was provided medical records only through October 23, 2013, five months earlier; the  



                                                                                                                              

insurance carrier's cover letter, dated January 2014, informed himthat Tobar's "last visit  



                                                                                                                         

was October 23, 2013, and she has had no further treatment."  Dr. Youngblood learned  



                                                                                                                     

during the evaluation, however, that Tobar had in fact been receiving further treatment;  



                                                                                                                    

he wrote that Tobar informed himabout the "second epidural steroid injection performed  



                                                                                                                       

at the Alaska Spine Institute" just seven days earlier; that she had attended physical  



                                                                                                                           

therapy in February; and "that she is to continue to follow up with the Alaska Spine  



                                                                                                                                     

Institute," where "[a]dditional physical therapy and injections are evidently planned."  



                                                                                                                       

In his own examination of Tobar, Dr. Youngblood concluded that the July 2013 accident  



                                                                                                                      

had caused a lower back strain, although he also noted "[p]ain behaviors and symptom  



                                                                                                                            

magnification."  He diagnosed Tobar with degenerative disc disease and said the work  



                                                                                                                               

injury was not the substantial cause of her low back condition or current  need for  



                                                                                                                          

medical treatment; in his opinion she likely reached medical stability only a few weeks  



                                                                                                                          

after the accident.   Dr. Youngblood also wrote that Tobar had no permanent partial  



                                                         

impairment as a result of the injury.  



                                                                                                                   

                    On April 3 Wilson wrote that Tobar could return to work with restrictions  



                                                                                                                          

on lifting, standing, walking, and bending/squatting.  But she also cautioned:  "Must  



                                        

attend physical therapy."  



                                                                                                                      

                    At this point there is an approximately one-year gap in Tobar's treatment  



                                                                                                                        

records.       In  the  spring  of  2015  she  began  seeing  providers  at  Providence  Family  



                                                                                                                               

Medicine Center, obtaining mental health counseling there as well as treatment for her  



                                                               -4-                                                         7402
  


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

back.  Dr. Kathryn Turner prescribed medications for chronic back pain and also tried  



osteopathic manipulative therapy in late May 2015, but she then deferred further therapy  

                                                                                                                             



until Tobar could obtain insurance.  

                                                         



                     In  February  2016,  after  Tobar  had  apparently  been  found  eligible  for  

                                                                                                                                   



Medicaid and spoken with an attorney about her worker's compensation case, she again  

                                                                                                                                



saw Dr. Turner, who arranged for an updated MRI.   The MRI showed mild spinal  

                                                                                                                               



stenosis at L1-L2 as well as disc-related problems at L2-L3 and L4-L5.   Dr. Turner  

                                                                                                                              



referred Tobar to physical therapy, which she attended a total of 15 times over the course  

                                                                                                                               



of two or three months. Tobar also received counseling at Providence Family Medicine  

                                                                                                                          



Center for depression.  She and some of her medical providers observed a connection  

                                                                                                                       



between her mental state and her pain:  she reported that counseling helped with pain  

                                                                                                              



relief, and at least one doctor referred her to a psychiatrist  specifically because he  

                                                                                                                                    



thought improving her mood would help with the pain.  

                                                                                



                     Dr. Turner and other providers at Providence Family Medicine Center  

                                                                                                                              



continued to treat Tobar for lower back pain at least through October 2016. Tobar's pain  

                                                                                                                                  



did not significantly improve during that time, however, and in October 2016 she began  

                                                                                                                               



to see Kimberly Hand, a physician's assistant at Anchorage Fracture & Orthopedic  

                                                                                                                      



Clinic. Hand believed that some of Tobar's symptoms corresponded to what was shown  

                                                                                                                               

in her MRI and some did not, and that part of Tobar's problem might be deconditioning.1  

                                                                                                                                          



She referred Tobar for physical therapy and massage therapy, and Tobar again attended  

                                                                                                                           



most of the prescribed sessions.  In April 2017 Hand answered "yes" to a question from  

                                                                                                                                 



Remington's  attorney  asking  whether  Tobar's  symptoms  had  "remained  the  same  

                                                                                                                                



without any improvement for over 45 days."  

                                                             



           1         Deconditioning is "the loss of muscle tone and endurance due to chronic                             



disease, immobility, or loss of function."                         Deconditioning, M             ILLER-KEANE  ENCYC . &   

   ICTIONARY OF MED., NURSING, & ALLIED HEALTH (7th ed. 2003).                                  

D                                                                                   



                                                                  -5-                                                           7402
  


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

                           Hand referredTobartoDr.JaredKirkham,whoperformed                                                                  another epidural   



steroid   injection   in   February   2017.     Dr.   Kirkham   observed   "pain   behavior"   and  

                                                                                                  2    He  did  not  believe  Tobar  needed  

additionally   noted   kinesiophobia   as   a   concern.                                                                                                       



surgery, finding "the structure of [her] spine" to be "actually quite good." He diagnosed  

                                                                                                                                                          



chronic low back pain, which he thought might be "myofascial in etiology and certainly  

                                                                                                                                                             



perpetuated  by  [Tobar's] chronic pain syndrome, central pain hypersensitivity, and  

                                                                                                                                                                      



kinesiophobia."  In his opinion, Tobar could return to work "as she tolerates."  

                                                                                                                                         



                           Dr. Kirkham arranged a functional capacity evaluation at Tobar's request.  

                                                                                                                                                                               



The evaluation showed that she was limited in some areas, such as bending, kneeling,  

                                                                                                                                        



and  squatting;  the  evaluation  placed  her  in  the  "sedentary"  physical  demands  

                                                                                                                                                          



classification.  

                              



             B.            Proceedings  



                           In late February 2015 Tobar, through an attorney, filed a written claim  

                                                                                                                                                                  



seeking temporary total disability benefits from the date of the injury, medical costs, and  

                                                                                                                                                                       



permanent partial impairment benefits.  In its answer Remington admitted temporary  

                                                                                                                                                         



total disability only through August 12, 2013, a date consistent with the estimated date  

                                                                                                                                                                     



of  medical  stability  in  Dr.  Youngblood's  EME  report,  as  well  as  medical  and  

                                                                                                                                                                     



transportation costs through the date of his report - March 20, 2014 - with some  

                                                                                                                                                                   



qualifications. Remington denied that Tobar was entitled to any other benefits and raised  

                                                                                                                                                                  



as an affirmative defense that she had already been overpaid.  

                                                                                                                             



             2             Kinesiophobia is an excessive and irrational fear of physical movement                                                       



"resulting from a feeling of vulnerability due to painful injury or reinjury"; it "is found                                                                       

to be a central factor in the process of pain developing from acute to chronic stages."                                                                                        

Caroline Larsson et al.,                         Kinesiophobia and its Relation to Pain Characteristics and                                                           

Cognitive Affective Variables in Older Adults with Chronic Pain                                                                 , 16 BMC G               ERIATRICS  

 128, 128 (July 7, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4936054/.  

                                                  



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

                                                                                                                           

                    Theparties attemptedtosettleTobar's claimwithout success, and theBoard  



                                                                                                                               

held a hearing in June 2017.  Tobar's attorney had withdrawn the year before, and the  



                                                                                                                            

hearing transcript reflects that Tobar represented herself with the assistance of her sister  



                                                                                                                             

and  a  Board-supplied  interpreter.                       No  witnesses  testified,  but  both  Tobar  and  



                                                        

Dr. Youngblood had been deposed.  



                                                                                                                     

                    Because Tobar's deposition had been taken almost two years earlier, it  



                                                                                                                              

contained little information about her condition at the time of the hearing.   She had  



                                                                                                                               

testified that she was able to cook on days when she was not in too much pain, that she  



                                                                                                                               

was generally able to take care of herself, but that it was hard to bend to change her  



                                                                                                                             

grandchild's diaper.  Her deposition testimony gave few details about her medical care  



                                                                                                               

other than that she had seen Dr. Turner and been prescribed medication.  



                                                                                                                           

                    Dr.  Youngblood's  deposition  testimony  was  consistent  with  his  EME  



                                                                                                                              

report, though he updated some of his opinions after looking at more recent MRIs and  



                                                                                                                    

medical records. He diagnosed degenerative disc disease. He agreed that Dr. Kirkham's  



                                                                                                   

MRI showed disc bulging and herniation, but in his view it was "very difficult" to tell  



                                                                                                                            

when it happened. He continued to believe the work injury was not the substantial cause  



                                                                                                                      

of Tobar's medical issues, that any problem from the work injury had quickly resolved,  



                                                                                      

and that Tobar had no resulting permanent impairment.  



                                                                                                                               

                    The Board decided that Tobar was not entitled to benefits after March 20,  



                                                                                                                        

2014, the date of Dr. Youngblood's EME report. Its findings of fact summarize medical  



                                                                                                                        

evidence but do not assign particular weight to any of it; they do not mention Tobar's  



                                                                                                                                     

March 2014 epidural steroid injection or that month's prescription for physical therapy.  



                                                                                                                              

The Board found Tobar "credible with regard to subjective descriptions of her pain and  



                                                                                                                    

the events and circumstances of her injury," but it made no other explicit credibility  



                                                                                                                           

determinations.  It rejected Dr. Youngblood's opinion that Tobar was medically stable  



                                                               -7-                                                         7402
  


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

                                                                                              

in August 2013, writing that "the medical evidence supports [Tobar's] contention that  



                                                                      

the symptoms continued beyond that [date]."  



                                                             

                    With regard to temporary total disability benefits, the Board decided that  



                                                                                                                        

Tobar had attached the presumption of compensability and that Remington had rebutted  



                                                                                                                      

it. The Board noted that Tobar "suffered fromsubjective pain not explained by objective  



                                                                                                                                  

findings, and may have been psychologically prone to increased pain perceptions"; it  



                                                                                                                         

said that "[t]hese facts increase the complexity of the medical facts" such that "expert  



                                                                                                                              

opinions frommedical professionals are needed to address these issues." It then said that  



                                                         

(1) no medical opinion after the date of the EME indicated that the disability and need  



                                                                                                                    

for medical treatment were due to the work injury, and (2) Hand's and Dr. Kirkham's  



                                                                                                                                 

opinions were "generally consistent" with Dr. Youngblood's statements because both of  



                                                                                                                   

them thought Tobar's pain "was in part psychologically based."  The Board concluded,  



                                                                                                                                 

"After the date of Dr.  Youngblood's examination, [Tobar] is unable to prove by a  



                                                                                                                              

preponderance of the evidence that the work injury was the substantial cause of her  



                                  

disability or need for treatment."  



                                                                                                                           

                    Turning to the question of permanent partial impairment, the Board noted  



                                                                                                                  

that  "[m]edical  stability  is  presumed  after  45  days  without  objectively  measurable  



                                                                                                                              

improvement"; that Dr. Youngblood had opined that Tobar "was medically stable two  



                                                                                                                         

weeks after the work injury"; that Dr. Kirkham had not seen "the need for any further  



                                                                                                                       

interventional procedures" for Tobar's back; and that nothing in the evidence rebutted  



                                                                                                                          

the presumption of medical stability.   Observing that "[t]he only [permanent partial  



                                                                                                                               

impairment] rating [Tobar] has received was from Dr. Youngblood, who stated she did  



                                                                                                                              

not have any permanent impairment related to the injury," the Board concluded that  



                                                                                                   

Tobar was not entitled to permanent partial impairment benefits.  



                                                                                                                              

                    On the subject of medical benefits, the Board reiterated its conclusion that  



                                                                                                                                

Tobar "was medically stable at the time of Dr. Youngblood's examination" and its  



                                                               -8-                                                         7402
  


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

mistaken finding that "[n]o physician has recommended additional treatment since that                                                                                                                                        



time." The Board found that Tobar had not produced the evidence necessary for a claim                                                                                                                                  

                                                 3   and  determined  that no medical benefits were "required  for  the  

for   palliative care                                                                                                                                                                                                         



process of recovery . . . after the date of medical stability."  

                                                                                                                                   



                                    Tobar appealed to the Commission, still representing herselfand supplying  

                                                                                                                                                                                                             



her own interpreter at oral argument. She argued that she remained disabled by the work  

                                                                                                                                                                                                                          



injury; that the Board had not adequately considered Wilson's opinions; and that she had  

                                                                                                                                                                                                                              



"unanswered  questions"  after  her  attorney  withdrew  and  was  under  the  mistaken  

                                                                                                                                                                                                              



impression that the Board had more of her records than it did.   She disagreed with  

                                                                                                                                                                                                                           



Dr. Youngblood's diagnosis and disputed Dr. Kirkham's opinion, which she understood  

                                                                                                                                                                                                          



as saying that her "pain was for depression."  

                                                                                                                          



                                    The Commission affirmed the Board's decision.  It determined that Tobar  

                                                                                                                                                                                                                       



had not met her burden of proof "because the medical evidence to date demonstrates that  

                                                                                                                                                                                                                              



the work injury resolved without the need for ongoing medical treatment."  Citing the  

                                                                                                                                                                                                                               



statutory definition of medical stability, the Commission agreed with the Board that  

                                                                                                                                                                                                                            



Tobar had failed to carry her burden of proof on her claim for temporary total disability  

                                                                                                                                                                                                               



benefits because there was no clear and convincing evidence that could overcome the  

                                                                                                                                                                                                                               



presumption of medical stability. The Commission noted what it believed to be Tobar's  

                                                                                                                                                                                                                   



failure to "seek medical treatment, including physical therapy," for two years following  

                                                                                                                                                                                                             



Dr. Youngblood's evaluation, as well as Tobar's report to Hand in January 2017 that  

                                                                                                                                                                                                                             



                  3                 Under AS 23.30.095(o), "an employer is not liable for palliative care after                                                                                                            



the date of medical stability unless the palliative care is reasonable and necessary (1) to                                                                                                                                       

enable the employee to continue in the employee's employment at the time of treatment,                                                                                                                       

(2)  to enable the employee to continue to participate in an approved reemployment plan,                                                                                                                                  

or (3) to relieve chronic debilitating pain."                                                                             A claim for                           palliative care requires "a                                     

certification of the attending physician that the palliative care meets the requirements of                                                                                                                                       

this subsection."                             AS 23.30.095(o).                                  



                                                                                                                -9-                                                                                                       7402
  


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

"her lumbar spine symptoms had not changed in the last three years."                                                                                                                                                                                                                                            The Commission   



concluded that the evidence did not support a claim "for further medical treatment"                                                                                                                                                                                                                                                          



because no doctor thought Tobar needed surgery or other interventions; Dr. Kirkham's                                                                                                                                                                                                                                                         



only recommended treatment was for depression, and he "placed no limitations on                                                                                                                                                                                                                                                                                                 



Ms. Tobar returning to work." The Commission also decided that Tobar had not met her                                                                                                                                                                                                                                                                                           



burden   of   proof   for   permanent   partial   impairment,   relying,   like   the   Board,  on  



Dr. Youngblood's opinion that her injury had resolved soon after it occurred.                                                                                                                                                                                                                                                                           



                                                           Finally, the Commission observed that Tobar had not provided the Board                                                                                                                                                                                                                                 



"with any medical testimony showing a need for medical treatment as a result of the                                                                                                                                                                                                                                                                                           



2013 work injury" and that she was unable to point to any particular medical evidence                                                                                                                                                                                                                                                                



the Board misunderstood or failed to consider.                                                                                                                                                                  The Commission affirmed the Board's                                                                                                      



decision as "supported by substantial evidence in the record as a whole."                                                                                                                                                                                                                                                          



                                                           Tobar appeals.                                                     



III.                          STANDARDS OF REVIEW                                                                    



                                                                                                                                                                                                                                                                                                                                                                                          4  

                                                           In an appeal fromthe Commission, we review the Commission's decision.                                                                                                                                                                                                                                                               



We  independently  review  the  Commission's  conclusion  that  substantial  evidence  

                                                                                                                                                                                                                                                                                                                                                  



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

                                                                                                                                                                                                                                                                                                                                                                              

Board's findings.5   "Substantial evidence is such relevant evidence as a reasonable mind  

                                                                                                                                                                                                                                                                                                                                                                      

might accept as adequate to support a conclusion."6   "Whether the quantum of evidence  

                                                                                                                                                                                                                                                                                                                                                      



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



 1178 (Alaska 2014).                                         



                              5                           Id.  



                              6                           Id. at 1179.  

                                                                                   



                                                                                                                                                                                      -10-                                                                                                                                                                              7402
  


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

                                                                7  

is substantial is a question of law."                              "Whether the [B]oard made sufficient findings is a                                           



                                                                             8  

question of law that we review de novo."                                         



IV.         DISCUSSION  



                                                                                          

            A.           We Decline To Dismiss Tobar's Appeal.  



                                                                                      

                         Tobar argues on appeal that the Board failed to give her the assistance to  



                                                                                                                                                           

which she was entitled as a self-represented litigant, primarily by failing to notify her that  



                                                                                                                                                              

she could request a second independent medical evaluation (SIME) to help her fill or  



                                                                                                                                                     

explain the gaps in the medical records.  Remington argues that Tobar's appeal should  



                                                                                                                                                     

be dismissed because she waived all issues, though it acknowledges our "policy against  



                                                                                                                                                              

finding unintended waiver of claims in technically defective pleadings filed by pro se  



                  9  

                                                                                                                                                               

litigants."           Remington contends that Tobar failed to raise below the issues discussed in  



                                                                                                                                                             

her brief and that the issues she does discuss are not set out in her statement of points on  



appeal.  



                                                                                                                                               

                         We decline to dismiss Tobar's appeal.  We may consider "new arguments  



                                                                                                                                                       

or points of error that were neither raised before the trial court nor included in the points  



                                                                                                                                          

on appeal" when "the issue presented is '1) not dependent on any new or controverted  



                                                                                                                                                         

facts; 2) [is] closely related to the appellant's trial court arguments; and 3) could have  



                                                                                                                                                         

been gleaned from the pleadings, or if failure to address the issue would propagate plain  



               10  

                                                                                                                                                              

error.' "           We have also concluded that pleadings of self-represented litigants should be  



             7           Id.  



             8           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)).                   



             9           Mitchell v. Mitchell, 370 P.3d 1070, 1083 (Alaska 2016).  

                                                                                                                        



             10          O'Callaghan v. State, 826 P.2d 1132, 1133 n.1 (Alaska 1992) (alteration  

                                                                                                                                               

in original) (quoting Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 115  

                                                                                                                                                           

                                                                                                                                        (continued...)  



                                                                             -11-                                                                       7402
  


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

                                                                                                                                              11  

held to a less stringent standard and that their briefs are to be read generously.                                                                 The  



                                                           12  

Commission itself uses this rule.                                                                                                                     

                                                                Tobar, as a self-represented litigant, argued to the  



                                                                                                                                           

Commission that the Board had not fully considered Wilson's opinions.  We conclude  



                                                                                                                                                

that this argument is sufficiently related to the focus of her appeal - the Board's failure  



                                                                                                                                                           

to advise her about an SIME - that her SIME argument is preserved for our review.  



                                                                                                                                                      

                        The Board is authorized under AS 23.30.095(k) to order an SIME "[i]n the  



                                                                                                                                           

event        of      a    medical           dispute          regarding           determinations                of      causation,           medical  



                                                                                                                                                        

stability, . . . the amount and efficacy of the continuance of or necessity of treatment, or  



                                                                                                                                      

compensability  between  the  employee's  attending  physician  and  the  employer's  

                                                              13    The  date of medical stability  was contested  in  

                                                                                                                                                       

independent medical evaluation." 



Tobar's case, and Wilson's opinions from 2013 differed from Dr. Youngblood's on the  

                                                                                                                                                      



issue.   The Board decided that Tobar had become medically stable in March 2014,  

                                                                                                                                                 



making Wilson's disagreement with Dr. Youngblood and her continuing treatment of  

                                                                                                                                                       



Tobar in 2014  highly relevant.   Concluding that the Board's slighting of Wilson's  

                                                                                                                                          



opinions and the advisability of an SIME are "closely related" issues for purposes of  

                                                                                                                                                       



            10          (...continued)  



                

(Alaska 1990)).  



            11  

                                                                                                              

                        Hymes v. Deramus, 119 P.3d 963, 965 (Alaska 2005).  



            12          See, e.g.      ,  Khan v. Adams & Assocs.                      , AWCAC Dec. No. 57 at 6 (Sept. 27,                            



2007) ("We read the briefs of pro se litigants generously.").                     



            13          The Board's regulation about SIMEs under AS 23.30.095(k) allows the  

                                                                                                                                                     

parties to request an SIME, but it also permits the Board to order an SIME on its own  

                                                                                                                                                   

motion if it deems an SIME necessary. 8 Alaska Administrative Code (AAC) 45.092(g)  

                                                                                                                                          

(2011).  The Board has raised the need for an SIME on its own even when both parties  

                                                                                                                                               

are represented by counsel.  Jennings v. Safelite Auto Glass, AWCB Dec. No. 12-0014  

                                                                                                                                            

at  2,  12  (Jan.  13,  2012)  (raising  sua  sponte  whether  medical  examination  under  

                                                                                                                                                

AS 23.30.110(g) or SIME under .095(k) was needed).  

                                                                                  



                                                                          -12-                                                                    7402
  


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

issue preservation, and finding plain errors in important factual findings in the Board's                                                                                                     



decision - affirmed by the Commission - we also conclude that it "would propagate                                                                                                        



plain error" if we failed to consider Tobar's appeal in this case.                                                                           



                B.	             The Commission Erred By Concluding That The Board's Decision                                                                                               

                                Was Supported By Substantial Evidence.                                            



                                 1.	            The importance of the date of medical stability                                                      



                                Tobar   made   claims   for  temporary   total   disability,   permanent   partial  



impairment, and medical benefits.                                                   A worker's eligibility for temporary total disability                                                  



                                                                                 14  

benefits ends at medical stability.                                                                                                                                                      

                                                                                       "Medical stability" is defined by statute as  



                                                                                                                                                  

                                the          date           after           which               further              objectively                     measurable  

                                                                                                                                                                             

                                improvement from the effects of the compensable injury is  

                                                                                                                                                              

                                not reasonably expected to result from additional medical  

                                                                                                                                                                         

                                care  or  treatment,  notwithstanding  the  possible  need  for  

                                                                                                                                                                            

                                additional medical care or the possibility of improvement or  

                                                                                                                                                             

                                deterioration  resulting  from  the  passage  of  time;  medical  

                                                                                                                                                     

                                stability  shall  be  presumed  in  the  absence  of  objectively  

                                                                                                                                                                       

                                measurable  improvement  for  a  period  of  45  days;  this  

                                                                                                                                                    

                                presumption  may  be  rebutted  by  clear  and  convincing  

                                evidence.[15]  



Remington conceded in its answer that Tobar was eligible for temporary total disability  

                                                                                                                                                                                           



benefits through what it claimed to be the date of medical stability:   "no later than  

                                                                                                                                                                                                      



August 12, 2013, two weeks following the alleged work incident."  

                                                                                                                                                                   



                                Medical stability can also affect a rating of permanent partial impairment.  

                                                                                                                                                                                                                   



The Alaska Workers' Compensation Act requires that "determinations of the existence  

                                                                                                                                                                                           



and degree" of permanent partial impairment be "made strictly and solely" under the  

                                                                                                                                                                                                          



American Medical Association Guides to the Evaluation of Permanent Impairment (the  

                                                                                                                                                                                                        



                14              AS 23.30.185.   



                15              AS 23.30.395(28).  

                                          



                                                                                                    -13-                                                                                             7402  


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

Guides).16  The Guides uses maximum medical improvement (MMI) as the time when                                            



                                                                                          17  

an evaluation of permanent impairment can be done.                                                                           

                                                                                               "The Guides has consistently  



                                                                                                                                           

evaluated  different  organs  and  body  systems  separately,  using  medical  testing  and  



                                                                                                                                        

examination to estimate the extent a particular organ or body system impairment limits  



                                                                                                                                               

a person's activities of daily living"; thus an injured worker could reach MMI as to a  

                                                                                                                       18   In this case,  

                                                                                                                                         

particular impairment while having not yet reached medical stability. 



however, because Tobar claimed disability only due to her back condition, the dates of  

                                                                                                                                              



MMI and medical stability may be the same.  

                                                                              



                      The date of medical stability was not only important, it was also contested.  

                                                                                                                                                   



Remington admitted that Tobar suffered at least a temporary disability, arguing that she  

                                                                                                                                            



was  medically  stable  as  of  August  2013,  whereas  Tobar,  by  claiming  continuing  

                                                                                                                              



temporary total disability, contended that she had not yet reached medical stability.  

                                                                                                                                             



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

                                                                                                                              



                                                                                                                                              19  

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

                                                                                                                              



The        Board         found        substantial           evidence           to     overcome             this     presumption              in  

                                                                                                                                           



"Dr. Youngblood's medical report and testimony opining that [Tobar's] injury was  

                                                                                                                                          



relatively minor, and would have resolved within two weeks."  But when the Board  

                                                                                                                                       



considered the next step in its analysis -whether Tobar could prove by a preponderance  

                                                                                                                         



of     the      evidence   that            her      disability         was       continuing           -   the   Board              rejected  

                                                                                                                                  



           16         AS  23.30.190(b).  



           17          Unisea,  Inc.  v.  Morales  de  Lopez,  435  P.3d  961,  965  (Alaska  2019).   



           18         Id. ("Because a  single  work-related  injury  can  affect  more  than one body  



system  or  cause  more  than  one  condition,  medical  stability  and  MMI  may  not  always  be  

coextensive.").  



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

                                                                                                                                   



                                                                     -14-                                                               7402
  


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

                                                                                              

Dr. Youngblood's finding of a two-week disability, deciding instead that "the medical  



                                                                                                                                     

evidence supports [Tobar's] contention  that the symptoms continued  beyond  that."  



                                                                                                                            

There is certainly evidence supporting this finding, including Wilson's October 2013  



                                                                           

report in which she told Remington's insurance carrier that Tobar had not yet reached  



                                                                                                                                 

maximum medical improvement and Wilson's further treatment recommendations in  



                                                          

January, February, and March 2014.  



                                                                                                             

                    The date on which the Board settled was the date of Dr. Youngblood's  



                                                                                                        

EME, March 20, 2014, after which it decided Tobar was no longer entitled to benefits  



                                                                                                                     

for  temporary  total  disability.                The  Commission  decided  that  substantial  evidence  



                                                                                                                      

supported the Board's decision, but it never identified and did not discuss the evidence  



                                                                                           

supporting March 20, 2014 as the date of medical stability.  



                                                                                                                        

                    Ultimately, while the evidence supported the Board's finding that Tobar's  



                                                                                                                       

disability continued beyond August 2013, the question we need to consider is whether  



                                                                                                                               

the evidence supported the Board's more specific finding that March 20, 2014, was the  



                                                                                                                       

date on which she reached medical stability.  We consider that question next.  



                                                                                               

                    2.        Evidence related to the date of medical stability  



                                                                                                             

                    The Commission concluded that Tobar failed to prove by a preponderance  



                                                                                                    

of the evidence that her disability continued past the time of Dr. Youngblood's EME,  



                                                                                                                      

"because  the  medical  evidence  to  date  demonstrates  that  the  work  injury  resolved  



                                                                                                                               

without the need for ongoing medical treatment" and because "the evidence is that she  



                                                                                                                       

has been medically stable for some time."  The Commission noted that Tobar returned  



                                                                                                                         

to Wilson after the EME but that, despite Wilson's referral for physical therapy, "Tobar  



                                                                                                                                     

did not seek medical treatment, including physical therapy[,] for the next two years."  



                                                                                                                         

But this observation overlooks critical facts.   First, the Commission, like the Board,  



                                                                                                                       

failed to mentionthephysicaltherapy provider'sexplanation whyTobar did not continue  



                                                                                                                             

with physical therapy in April 2014: "Unfortunately her workman's comp case has been  



                                                              -15-                                                         7402
  


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

                                                                                                                               

controverted.          Thus we will  discharge her  from skilled PT."                               (Notably,  Tobar  had  



                                                                                                                                 

attended  all  the  prescribed  physical  therapy  sessions  in  February,  after  Wilson,  in  



                                                                                                                               

January,  had  impressed  upon  her  the  need  for  consistent  treatment.)                                     Second,  the  



                                                                                                                               

Commission's statement that Tobar "did not seek medical treatment . . . for the next two  



                                                                                                                             

years" is also clearly erroneous; Tobar's medical records show that a year after the EME  



                                                                                                                          

she sought treatment for both her back and her mental health at Providence Family  



                                                                                                                         

Medicine Center, where treatment was again deferred after several months only because  



                                        

of her lack of insurance.  



                                                                                                                                  

                    The Commission also found support for medical stability in the records of  



                                                                                                                               

PA Hand.  But nothing in the records indicates that Hand supported a March 2014 date  



                                                                                                                             

of medical stability. The Commission, like the Board, summarized a January 2017 chart  



                                                                                                       

note  as  indicating  that  Tobar  had  told  Hand  "her  lumbar  spine  symptoms  had  not  



                                                                                                                                 

changed in the previous three years."  The Board did not mention this evidence in its  



                                                                                                                                   

analysis of medical stability, so we cannot say whether the Board relied on it or gave it  



                                                                                               

any weight.  Regardless, it is not an accurate summary of the evidence:  the chart note  



                                                                                                                        

relates that Tobar reported to Hand that her pain had improved after the two epidural  



                                                                                                                               

injections but each time had returned in about three months.  The note also reflects that  



                                                                                                                             

Tobar told Hand that "all of the symptoms that [Tobar] complains of today are the same  



                                                                                                                         

chronic symptoms that she has had since the beginning of all this." Hand's note appears  



                                                                                         

to show that Tobar had the same symptoms from 2013 to 2017 but their severity came  



                                           

and went depending on her treatment.  



                                                                                                                        

                    The Commission, like the Board, also relied on the fact that Hand checked  



                                                                                                                               

the "yes" box when asked by Remington's attorney whether Tobar's symptoms had  



                                                                                                                               

"remained the same without any improvement for over 45 days."  But Hand first saw  



                                                                                                                               

Tobar in late 2016.   Hand never identified a specific date of medical stability; her  



                                                                                                                               

April 2017 statement that Tobar had not improved "for over 45 days" could mean that  



                                                               -16-                                                         7402
  


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

Tobar had become medically stable as recently as early 2017 - three years after the                                                                                                                                                                                                                                                                                            



Board's selected date.                                                     



                                                           Remington   does   not   identify   any  additional   evidence   that   supports   a  



March 2014 date of medical stability.                                                                                                                                 Remington relies on the "general consisten[cy]"                                                                                                        



in the opinions of Dr. Youngblood, Dr. Kirkham, and PA Hand.                                                                                                                                                                                                                                           Dr. Youngblood's   



report says that Tobar was medically stable at the time of his EME because she would   



"likely" have been medically stable two weeks after the injury, but the Board specifically                                                                                                                                                                                                                                                 



rejected his opinion about a two-week recovery.                                                                                                                                                                       Dr. Youngblood also testified that he                                                                                                                       



agreed with several of Dr. Kirkham's diagnoses and some of his other observations, but                                                                                                                                                                                                                                                                                        



Dr. Kirkham - who first saw Tobar in 2017 - did not offer an opinion about when                                                                                                                                                                                                                                                                                     



Tobar became medically stable.                                                                                                               And Hand's opinions, as noted above, also came three                                                                                                                                                                      



years after Dr. Youngblood's and did not purport to address the medical stability issue.                                                                                                                                                                                                                                                                                                         



                                                           Our review of the medical stability finding is impeded by the Board's                                                                                                                                                                                                                        



failure to assign weight to the medical evidence and its apparent oversight of key medical                                                                                                                                                                                                                                                                 

                                                                                                                                                                                                        20   Neither the Board nor the Commission  

records in addition to those mentioned above.                                                                                                                                                                                                                                                                                        



discussed  Wilson's  October  2013  opinions  about  causation  or  maximum  medical  

                                                                                                                                                                                                                                                                                                                                                       



improvement.  Also missing from both decisions' analyses is any reference to Tobar's  

                                                                                                                                                                                                                                                                                                   



consistent participation in physical therapy in February 2014, as Wilson prescribed; this  

                                                                                                                                                                                                                                                                                                                                                                             



would seem to be evidence of Tobar's willingness to engage in the physical therapy  

                                                                                                                                                                                                                                                                                                                                                           



Wilson recommended in April 2014, had her finances allowed it.  The Board noted that  

                                                                                                                                                                                                                                                                                                                                                                            



Wilson ordered a second epidural steroid injection, but the Board did not identify when  

                                                                                                                                                                                                                                                                                                                                                                     



                             20                            AS 23.30.122 ("The board has the sole power to determine the credibility                                                                                                                                                                                                             



of a witness.                                            A finding by the board concerning the weight to be accorded a witness's                                                                                                                                                                                                               

testimony, including medical testimony                                                                                                                                                  and reports, is conclusive . . . .");                                                                                                                          see also   

AS 23.30.128(b) ("The board's findings regarding the credibility of testimony of a                                                                                                                                                                                                                                                                                                    

witness before the board are binding on the commission.").                                                                                                                                       



                                                                                                                                                                                      -17-                                                                                                                                                                              7402
  


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

 it was ordered or acknowledge that Tobar underwent this procedure on March 13, 2014,                                                                                    



                                                                                                                                           21  

just a week before the date the Board selected for medical stability.                                                                                     

                                                                                                                                                 The Commission  



                                                                                                                                              

 said Tobar "was unable to point to any particular medical evidence the Board failed to  



                                                                                                                                                                 

 consider," but Tobar contended that the Board did not adequately consider Wilson's  



                                                                    

 opinions, and this appears to be true.  



                                                                                                                                                                     

                            TheBoard also failed tomention Wilson's prescriptionforphysical therapy  



                                                                                                                                                                            

 following the second epidural or the note from the physical therapist indicating that  



                                                                                                                                                                           

 Tobar's  treatment  was  discontinued  because  of  Remington's  controversion.                                                                                            The  



                                                                                                                                             

 Commission thought Tobar's failure to "seek medical treatment, including physical  



                                                                                                                                                                    

therapy," after the EME was important, but Tobar in fact attended a physical therapy  



                                                                                                                                                                          

 evaluation a week after the EME, was advised at that time to participate one to three  



                                                                                                                                                                              

times a week for six to eight weeks, but was discharged soon thereafter because of the  



                                                                                                                                                                                 

 controversion and her lack of insurance.  The Board and the Commission also failed to  



                                                                                                                                                                            

recognize that Providence Family Medicine Center began treating Tobar for back pain  



                                                                                                                                                                              

 in late April 2015; both the Board and the Commission observed  that Tobar went for  



                                                                                                                                                                      

two years without seeking treatment following the EME in March 2014, but this finding  



                                

was mistaken.  



                                                                                                                                                                              

                            We have said that "[t]he substantial evidence test is highly deferential, but  



                                                                                                                                                                  

we still 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  



                                                                                                                                                                                 22  

                                                                                                                                                                                      

 cannot 'conscientiously' find the evidence supporting the decision to be 'substantial.' " 



              21            Dr. Youngblood's reportshows that                                         Tobar informed himofboth                                 thesecond   



 epidural injection and the February physical therapy; his report also mentions Wilson's                                                                          

 diagnoses and her opinion of causation.                                             



              22            Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 634  

                                                                                                                                                                             

                                                                                                                                                        (continued...)  



                                                                                      -18-                                                                                7402
  


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

 Here we have found no evidence to support the March 2014 date of medical stability                                                                                                                                                                                                                                                                   



 selected by the Board.                                                                            Wilson's opinions contradict Dr. Youngblood's assessments of                                                                                                                                                                                                                  



medical stability, and her prescription of more physical therapy after the second epidural                                                                                                                                                                                                                                                            



 steroid injection implies that Tobar's condition might still have improved with further                                                                                                                         



 care. In other words, Wilson's opinions detract from the Board's decision about the date                                                                                                                                                                                                                                                                               



 of medical stability, and it is troubling that the Board failed to mention, evaluate, or                                                                                                                                                                                                                                                                                       



weigh this countervailing evidence.                                                                                                                            



                                                           In sum, the Board's finding of a March 2014 date of medical stability,                                                                                                                                                                                                                  



 affirmed by the Commission, is not supported by substantial evidence. And because the                                                                                                                                                                                                                                                                                       



 Board and the Commission failed to mention relevant medical evidence -in fact relying                                                                                                                                                                                                                                                                      



 on the absence of records for a time when there were records - and neglected to assign                                                                                                                                                                                                                                                                        



weight to the medical evidence it did mention, we must remand this case for further                                                                                                                                                                                                                                                                        



proceedings before the Board.                                                                         



                              C.                           The Board May Order An SIME On Remand.                                                                                                                                                                                    



                                                           Tobar's central argument on appeal is that the Board failed in its duties to                                                                                                                                                                                                                                          



her as a self-represented litigant because it did not advise her that she could request an                                                                                                                                                                                                                                                                                     



 SIME under AS 23.30.095(k).  The Act authorizes the Board to order an SIME under                                                                                                                                                                                                                                                                               

both that statute and another, AS 23.30.110(g).                                                                                                                                                                23  Alaska Statute 23.30.095(k) permits  



 an SIME if there is "a medical dispute regarding [a] determination[] of . . . medical  

                                                                                                                                                                                                                                                                                                                                         



 stability."  Either party may request an SIME under AS 23.30.095(k), or the Board may  

                                                                                                                                                                                                                                                                                                                                                                       



                              22                           (...continued)  



                                                                                                                                                                                                                                                                                                                                                                   

n.40 (Alaska 2011) (emphasis in original) (quoting  Universal Camera Corp. v. Nat'l  

                                                                                                                                                                                 

Labor Relations Bd., 340 U.S. 474, 488 (1951)).  



                              23                           See  AS 23.30.095(k) (setting out circumstances when "the board may  

                                                                                                                                                                                                                                                                                                                                                                     

require" an SIME); AS 23.30.110(g) (requiring an employee to submit to a physical  

                                                                                                                                                                                                                                                                                                                                               

 examination "which the board may require").  

                                                                                                                                                            



                                                                                                                                                                                     -19-                                                                                                                                                                            7402
  


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

                                                                      24  

order   one   on   its   own   motion.                                       The   Board   and   the   Commission  have   interpreted  



AS 23.30.110(g) as allowing the Board to order an SIME "when there is a significant gap                                                                                                   



in the medical or scientific evidence and an opinion by an independent medical examiner                                                                                      



                                                                                                                                                                                        25  

or other scientific examination will help the board in resolving the issue before it."                                                                                                        



                              As we have discussed, the date of medical stability was both important and  

                                                                                                                                                                                         



disputed in this case, and the date selected by the Board is not supported by substantial  

                                                                                                                                                                         



evidence. While an SIME is discretionary and not always appropriate, the circumstances  

                                                                                                                                                                  



of this case appear to favor its use:  the claimant does not have a lawyer, she has limited  

                                                                                                                                                                                  



English proficiency, and she apparently failed to call the Board's attention to existing  

                                                                                                                                                                               



medical records that were important to her case, contributing to the Board's factual  

                                                                                                                                                                                 



errors.   We are not ordering that the Board require an SIME on remand, however.  

                                                                                                                                                                                                   



Whether to do so remains subject to the Board's discretion.  

                                                                                                                                       



V.             CONCLUSION  



                              We VACATE the Commission's decision and REMAND the case to the  

                                                                                                                                                                                    



Commission with instructions to remand the case to the Board for further proceedings  



consistent with this opinion.  

                                             



               24             8 AAC 45.092.     



               25  

                                                                                                                                                                                   

                              Bah v. Trident Seafoods Corp., AWCACDec. No. 073 at 5 (Feb. 27, 2008);  

                                                                                                                                                                                          

see Hulshof v. Spenard Builders Supply, AWCB Dec. No. 02-0242 at 4-5 (Nov. 26,  

                                                                                                                                        

2002) (finding that medical records did not clearly establish causation, impairment, or  

                                                                                                                                                                                          

medical stability and deciding that conflicting medical opinions were not needed "to  

                                                                                                                                                                                  

trigger  [the  Board's]  authority  (or  responsibility)"  to  appoint  an  SIME  under  

         

AS 23.30.110(g)).  



                                                                                            -20-                                                                                      7402
  

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