Sosa de Rosario v. Chenega Lodging ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ANA F. SOSA DE ROSARIO, )
) Supreme Court No. S-14661
Appellant, )
) Alaska Workers’ Compensation
v. ) Appeals Commission No. 11-003
)
CHENEGA LODGING, d/b/a HOTEL ) OPINION
CLARION, and NOVAPRO RISK )
SOLUTIONS, ) No. 6763 – March 22, 2013
)
Appellees. )
)
Appeal from the Alaska Workers’ Compensation Appeals
Commission, Laurence Keyes, Commission Chair.
Appearances: Ana F. Sosa de Rosario, pro se, Anchorage,
Appellant. Colby J. Smith and Aaron M. Sandone, Griffin &
Smith, Anchorage, for Appellees.
Before: Fabe, Chief Justice, Carpeneti, Winfree, Stowers,
and Maassen, Justices.
WINFREE, Justice.
I. INTRODUCTION
A hotel worker fell and injured her back while cleaning a room. Her
employer initially paid benefits, but it filed a controversion of benefits after its doctor
doubted the accident’s occurrence and said any work injury was not the substantial cause
of the worker’s continuing need for medical care. The Alaska Workers’ Compensation
Board decided that the fall was the substantial cause of the worker’s disability, finding
the worker’s testimony about the injury credible and the employer’s doctor’s testimony
not credible. Based on the testimony of the worker and her treating physician, as well
as an MRI showing a herniated disc, the Board decided that the injury was compensable.
The Alaska Workers’ Compensation Appeals Commission reversed the Board’s decision
because, in the Commission’s view, substantial evidence did not support the decision.
Because the Commission incorrectly decided the substantial evidence question, we
reverse the Commission’s decision.
II. FACTS AND PROCEEDINGS
Ana Sosa de Rosario is a native of the Dominican Republic who came to
Alaska in 1999. Beginning in February 2000, Sosa de Rosario worked as a housekeeper
for Chenega Lodging. On June 28, 2007, she fell while making a bed and subsequently
had low back pain. Sosa de Rosario told her supervisor she was in pain, and the
supervisor advised her to take over-the-counter medication; when that did not control the
pain, Sosa de Rosario went to the emergency room.
The emergency room record indicates Sosa de Rosario complained of
“r[ight] hip pain, no injury” and was “in pain.” She received a morphine injection and
a prescription for pain medication; her diagnosis was low back pain and possible sciatica.
The emergency room doctor noted that Sosa de Rosario could return to work on July 2
if she was “feeling better.”
Sosa de Rosario received treatment at Providence Family Practice Center
several times that summer. On July 6 she consulted with Dr. John Schwartz, who had
treated her in the past, and Dr. Bret Thompson, a resident, for leg pain; they excused her
from work for a week. When Sosa de Rosario returned to the clinic on July 12
Dr. Thompson said she could resume modified work on July 23 but restricted her to
lifting 15 pounds. On August 8 Sosa de Rosario again saw Dr. Thompson; he authorized
-2- 6763
her return to modified work that day, with restrictions that she not lift more than 15
pounds and that she not bend or twist more than six times an hour. Sosa de Rosario then
began working in the hotel’s laundry. Chenega Lodging paid Sosa de Rosario three
weeks of temporary total disability (TTD); the compensation report filed on July 31 said
Sosa de Rosario had been released to regular work.
On August 21, Sosa de Rosario underwent an MRI showing she had a
herniated disc at L5-S1, and a physician at Providence Family Practice Center referred
her to an orthopedic surgeon. Sosa de Rosario asked to be referred to physical therapy
first. She attended physical therapy for about two months, noting some improvement but
telling her doctor that she still had pain. On November 11, Dr. Schwartz released Sosa
de Rosario for sedentary work, with restrictions on walking, sitting, and standing.
According to Dr. Schwartz’s chart notes from November 28, Sosa de Rosario was “afraid
that if she return[ed] to full duty her symptoms [would] regress back to the more severe
state of a few months ago.”
Dr. Schwartz next referred Sosa de Rosario to Dr. James Eule for treatment.
Sosa de Rosario saw Jane Sonnenburg, a physician’s assistant in Dr. Eule’s office.
Based on Sonnenburg’s examination and the MRI, Dr. Eule scheduled Sosa de Rosario
for an epidural injection on December 18. According to Sonnenburg, Sosa de Rosario
“had some improvement with the epidural.” Sonnenburg increased Sosa de Rosario’s
lifting limit to 20-25 pounds frequently, said that Sosa de Rosario had “met her maximal
medical benefit,” and noted that she would have “some element of chronicity.”
Chenega Lodging arranged for an employer’s independent medical
evaluation (EIME) in December 2007 with Dr. Charles Brooks, an orthopedist.
Dr. Brooks was skeptical of Sosa de Rosario’s account of the injury and concluded that
her disc problems were due to age-related degenerative changes. Dr. Brooks focused on
inconsistencies between medical records and Sosa de Rosario’s account of the accident,
-3- 6763
noting: “Given the inconsistency between her recent histories and that reported in the
emergency room (ER) at Providence on June 28, 2007, I would not conclude, on a more-
probable-than-not basis or reasonable degree of medical probability, there was an
occupational back injury on that date.” Dr. Brooks’s opinion with respect to causation
was that Sosa de Rosario’s “low back pain and right sciatica . . . may have been
precipitated or worsened by her occupational duties, avocational activities, or an
unreported injury,” but because he did not “believe there was an occupational back
injury on June 28, 2007,” he could not “conclude the claimant’s work was the substantial
cause of her current low back pain and right sciatica.”
In late December, Chenega Lodging sent Dr. Eule and Sonnenburg a copy
of the EIME, asking if they agreed with it. Dr. Eule did not agree with the report,
although he could “not make an accurate determination as to work injury” because he
had not yet seen Sosa de Rosario. Sonnenburg concurred with the report. Sonnenburg’s
chart notes indicated she “tend[ed] to agree with the medical examiner’s report” and that
Sosa de Rosario “tend[ed] to have some inconsistency to her complaints.” On January 9,
2008, Sosa de Rosario saw Dr. Schwartz again; he “recommended that she continue with
light duty work indefinitely.”
Chenega Lodging controverted all benefits on January 31, based on
Dr. Brooks’s report and on Sonnenburg’s having released Sosa de Rosario to full-time
work with a 20-25 pound lifting limit. Chenega Lodging terminated Sosa de Rosario’s
employment on March 7. On April 22 Dr. Schwartz saw Sosa de Rosario and wrote
Chenega Lodging a letter stating Sosa de Rosario was “not able to work at this time and
. . . would best be served by surgery.” Dr. Schwartz related the onset of her “severe
pain” to a June 28, 2007 “fall she suffered at work.”
In July 2008 an attorney entered an appearance and filed a workers’
compensation claim on Sosa de Rosario’s behalf seeking: TTD from April 22, 2008, and
-4- 6763
continuing; temporary partial disability (TPD) from the injury date to April 21, 2008;
permanent total disability (PTD) from April 22, 2008, and continuing; medical costs;
interest; and attorney’s fees and costs. Chenega Lodging denied all claims.
The parties stipulated to a second independent medical evaluation (SIME)
by an orthopedist. The Board arranged an SIME with Dr. John Lipon, who evaluated
Sosa de Rosario on July 18, 2009. Also present at the evaluation were a translator and
Sosa de Rosario’s daughter-in-law, Suhail Echavarria. Dr. Lipon examined Sosa de
Rosario and reviewed her medical records. He diagnosed degenerative disc disease,
facet hypertrophy at L5-S1, and disc bulges at two other levels in her lumbar region, all
caused by “a combination of genetics, aging, and progressive degenerative changes.”
He also diagnosed “[r]ight posterolateral disc extrusion at L5-S1, probably due to
degenerative disc disease and possibly to occupational and/or non-work-related
activities, which could include a prior lower back injury which has not been reported.”
He noted “inconsistencies in Ms. Sosa De Rosario’s history of the cause and onset of her
lower back and right leg pain”; he could not “state on a more probable than not basis that
this condition [was] related to the industrial claim date of June 28, 2007, or her
occupational duties as a housekeeper.”
Dr. Lipon thought Sosa de Rosario was magnifying her symptoms and
stated that there was “no consistent measurable abnormal objective evidence of
radiculopathy” in his examination. In Dr. Lipon’s opinion there was no injury on
June 28, 2007, and because he determined there was no injury he did not give an opinion
about medical stability, permanent impairment, or other issues.
At his deposition, Dr. Lipon generally testified consistently with his report.
He agreed that Sosa de Rosario had a herniated disc at L5-S1 with an impingement of
the nerve root, but he did not think her condition was “related to her industrial claim of
[June 28, 2007].” He testified that degenerative disc disease can cause a disc extrusion
-5- 6763
and that Sosa de Rosario’s herniated disc was “most probably” caused by degenerative
disc disease, but he acknowledged that she could have “had some type of injury that was
never documented.” He agreed with Dr. Brooks’s report and “refer[red] the accident
reconstruction part” to Dr. Brooks.1 Dr. Lipon noted “magnification of pain behavior”
in his examination of Sosa de Rosario and inconsistencies between his examination
results and other doctors’ examinations, but because he thought she might be afraid of
getting hurt he could not say that she was purposely affecting the results. Dr. Lipon
thought these inconsistencies were more important for determining whether Sosa de
Rosario had “a significant nerve root problem that requires any treatment.” Near the end
of the deposition, Chenega Lodging provided its job description for the housekeeping
position Sosa de Rosario had held; Dr. Lipon thought Sosa de Rosario could perform
sedentary work and could return to the housekeeping position.2 The job description
Dr. Lipon was provided stated that “[t]he employee must occasionally lift and/or move
1
According to Dr. Lipon, Dr. Brooks “had training in accident
reconstruction.” Dr. Lipon acknowledged that there was nothing in the record to indicate
this was the case, but he said he had “personal information” about it because he had
known Dr. Brooks for 25 years and saw him at professional meetings.
2
Chenega Lodging did not ask Dr. Lipon to define or describe sedentary
work, nor did it provide a definition. Social Security disability regulations provide,
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. §
404.1567(a) (2012). This definition is similar to the one Dr. Schwartz used to evaluate
Sosa de Rosario.
-6- 6763
up to 25 pounds.”3 Dr. Lipon also thought Sosa de Rosario could work at a dry cleaners,
although he was not given a job description for that position.
The Board held a hearing on June 9, 2010, with Sosa de Rosario
representing herself.4 Chenega Lodging brought an interpreter; Sosa de Rosario brought
her son’s girlfriend to translate for her. The Board chair relied on translation from
Chenega Lodging’s interpreter. Sosa de Rosario was the only witness who testified at
the hearing because translation problems arose and Sosa de Rosario asked for a
continuance. The Board continued the hearing, over Chenega Lodging’s objection, to
give Sosa de Rosario an opportunity to find another attorney.
The hearing resumed on September 30, 2010. Sosa de Rosario and
Dr. Schwartz testified. Dr. Schwartz testified that he was an internist practicing in
Anchorage for 30 years, and even though he was not an orthopedic surgeon, he had
“seen a lot of back pain patients and dis[c] problem patients.” Dr. Schwartz testified that
since the accident Sosa de Rosario had had weakness and pain in her right leg. In his
opinion, Sosa de Rosario’s pain was probably not caused by degenerative changes
because it “came on quickly.” He testified that in his experience, back pain caused by
3
Occasionally lifting 25 pounds exceeded the light duty classification as
defined on the form Dr. Schwartz used. Unlike Dr. Lipon, Dr. Brooks did not think Sosa
de Rosario should resume work as a housekeeper. The physical requirements of
Chenega Lodging’s housekeeper job description differed from the description Chenega
Lodging’s vocational expert provided, which appears to be based on the United States
Department of Labor’s job descriptions. See U.S. Dept. of Labor, Dictionary of
Occupational Titles (4th ed. Rev. 1991), available at http://www.oalj.dol.gov
/PUBLIC/DOT/REFERENCES/DOT03A.HTM. The description the vocational expert
provided classified housekeeper as “heavy,” requiring lifting of up to 100 pounds, while
Chenega Lodging’s job description required moving or lifting only 25 pounds
occasionally.
4
Sosa de Rosario’s attorney withdrew in June 2010, with her consent.
-7- 6763
degenerative changes had a “totally different presentation.” He further testified that he
referred Sosa de Rosario to an orthopedic specialist for treatment, not for diagnosis. He
thought Sosa de Rosario’s diagnosis was “pretty clear, she had an acute dis[c] herniation
that was symptomatic.”
The Board decided Sosa de Rosario had suffered a compensable back injury
on June 28, 2007, and she was entitled to further medical care. In making its decision,
the Board found that Sosa de Rosario testified credibly about the work-related injury.
The Board applied its three-step presumption analysis to the claim.5 The Board decided
the presumption of compensability had attached through Sosa de Rosario’s and Dr.
Schwartz’s testimony; it further found that Chenega Lodging had rebutted the
presumption with Dr. Brooks’s and Dr. Lipon’s testimony. In concluding that Sosa de
Rosario had proved her case by a preponderance of the evidence, the Board relied on the
following facts: (1) the absence of treatment for low back pain before June 2007; (2) a
credible or convincing mechanism of injury; (3) Dr. Schwartz’s testimony; and (4) the
MRI showing a herniated disc. The Board expressly found Dr. Brooks not credible and
5
As developed before the 2005 amendments to the Alaska Workers’
Compensation Act, the three-step presumption analysis first required an injured worker
to produce some evidence that the injury and disability were work related. If the worker
did so, the employer was then required to produce substantial evidence that either
(1) provided an alternative explanation which would exclude work-related factors as a
substantial cause of the disability, or (2) directly eliminated any reasonable possibility
that employment was a factor in causing the disability. If the employer met this
requirement, the burden shifted back to the employee to prove all elements of the
employee’s claim by a preponderance of the evidence. Bradbury v. Chugach Elec.
Ass’n, 71 P.3d 901, 905-06 (Alaska 2003). The Commission mentioned the 2005
amendments in its discussion of the presumption analysis in this case. “Whether or how
the 2005 amendments to the Act modified the existing three-step presumption analysis
is an open question.” Runstrom v. Alaska Native Med. Ctr., 280 P.3d 567, 574 n.16
(Alaska 2012).
-8- 6763
expressly discounted Dr. Lipon’s opinions because of his deference to Dr. Brooks; it
considered Dr. Schwartz more credible, in part because he spoke Spanish and was able
to communicate directly with Sosa de Rosario. The Board also noted that neither Dr.
Brooks nor Dr. Lipon could rule out the possibility that work activities had caused the
herniated disc. The Board ascribed the inconsistent medical records to language
difficulties and “translators of varying degrees of competency.” The Board ordered
Chenega Lodging to pay for an evaluation with a spine surgeon, preferably Spanish
speaking, and deferred a permanent partial impairment (PPI) order until Sosa de Rosario
had been evaluated and treated. The Board also awarded TTD “from April 22, 2008 to
the date of medical stability” and reserved jurisdiction over the PTD claim.
Chenega Lodging appealed to the Commission. The Commission
concluded the Board’s findings were not supported by substantial evidence in light of the
whole record. The Commission focused on the Board’s concern about communication
difficulties due to Sosa de Rosario’s limited English. It decided Drs. Brooks and Lipon
were more “qualified than Dr. Schwartz, an internist, to render orthopedic medical
opinions. . . . Their reports constituted the more specific, the more probative, and the
more persuasive evidence[] on the issue of whether employment was the substantial
cause of Sosa de Rosario’s low back condition.” The Commission did not mention the
Board’s finding that Dr. Brooks was not credible. The Commission thought the Board
“may have misapplied certain legal standards in the process of analyzing the evidence”
because of its discussion of Dr. Brooks’s report. Ultimately, the Commission decided:
[T]he quantum of evidence was not substantial enough to
support the [B]oard’s conclusion that employment was the
substantial cause of Sosa de Rosario’s disability and need for
medical treatment. The record as a whole, in particular[] the
expert medical opinions provided by Drs. Brooks and Lipon,
supports the opposite conclusion. Based on the same
evidence and analysis, we conclude that Sosa de Rosario
-9- 6763
failed to satisfy her burden of proof by a preponderance of
the evidence.
After deciding that Sosa de Rosario had not met her burden of proof and
that her claim should have been denied, the Commission then decided whether the Board
erred in permitting Sosa de Rosario to get a PPI rating at a later date. According to the
Commission, neither Dr. Lipon nor Dr. Brooks considered Sosa de Rosario to be
permanently impaired, and the Board should have denied her claim; Sosa de Rosario’s
remedy then would have been to seek modification of the Board order under AS
23.30.130(a). Sosa de Rosario appeals.
III. STANDARD OF REVIEW
In a workers’ compensation appeal “we review the [C]ommission’s
decision and apply our independent judgment when there is a question of law that does
not involve agency expertise.”6 We independently review the Commission’s legal
conclusion that the Board’s factual findings are supported by substantial evidence in the
record, which “requires us to independently review the record and the Board’s factual
findings.”7 Interpretation of a statute is a question of law to which we apply our
independent judgment, interpreting the statute according to reason, practicality, and
common sense, considering the meaning of the statute’s language, its legislative history,
and its purpose.8
IV. DISCUSSION
A. It Was Error To Disregard The Board’s Credibility Determinations.
6
Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing
Barrington v. Alaska Commc’ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska 2008)).
7
Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).
8
Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003) (quoting Native Vill.
of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).
-10- 6763
The Board’s credibility determinations are a central issue in this case. The
Board found Dr. Brooks’s testimony not credible and discounted Dr. Lipon’s testimony
because it relied on Dr. Brooks’s report. The Board found Sosa de Rosario’s testimony
about the accident credible and also found Dr. Schwartz’s testimony about her condition
credible. Although the Commission noted the credibility finding about Sosa de Rosario,
it did not discuss the impact of the Board’s other credibility findings. The Commission
did not explain how an opinion the Board expressly found not credible together with an
opinion the Board expressly discounted could be “the more specific, the more probative,
and the more persuasive[] evidence” of causation. The Commission essentially reversed
the Board’s credibility findings, dismissing the Board’s concern about communication
difficulties and pointing to Dr. Brooks’s and Dr. Lipon’s training as orthopedists to give
their opinions more weight.
Chenega Lodging argues the Board’s finding that Dr. Brooks was not
credible did not “allow the Board to simply ignore his testimony or prevent evaluation
of his opinion in relation to the necessary quantum of evidence while evaluating the
Board’s decision.” The only authority Chenega Lodging relies on to support this
argument is an earlier Commission decision, Uresco Construction Materials, Inc. v.
Porteleki.9 But in Uresco the Board did not make a credibility determination — in
response to the employee’s argument that the Board found a doctor not credible, the
Commission said the Board had not discussed the doctor’s testimony or report.10 Here
the Board specifically found Dr. Brooks not credible.
9
AWCAC Dec. No. 152 (May 11, 2011), available at http://labor.alaska.gov
/wccomm/memos-finals/D_152.pdf.
10
Id. at 14 (the Commission will “not assume that lack of credibility was
relevant to the [B]oard’s decision without a specific finding that the [B]oard disbelieved
a witness”).
-11- 6763
The Board’s responsibility as fact finder is set out in AS 23.30.122, which
provides in relevant part:
The board has the sole power to determine the credibility of
a witness. A finding by the board concerning the weight to
be accorded a witness’s testimony, including medical
testimony and reports, is conclusive even if the evidence is
conflicting or susceptible to contrary conclusions.
The legislative history of this section states that the intent was “to restore to the Board
the decision making power granted by the Legislature when it enacted the Alaska
Workers’ Compensation Act.”11 The “section clarifies and emphasizes the role of the
Board in determining the credibility of witnesses and the weight to be accorded medical
testimony and reports.”12 The legislature considered rewriting this section in 2005 when
it created the Commission but ultimately elected not to do so.13
The legislature requires the Commission to defer to the Board’s credibility
findings. Alaska Statute 23.30.128(b) provides in part: “The [B]oard’s findings
regarding the credibility of testimony of a witness before the [B]oard are binding on the
[C]ommission.” We construe AS 23.30.128(b) to mean that the Commission must
follow the Board’s credibility determination. “Bind” means “[t]o impose one or more
legal duties on (a person or institution) .”14 Binding precedent is “[a] precedent that a court must follow.”15
11
H. Finance Comm., Section by Section Analysis HB 159, 12th Leg., 2d
Sess. at 2 (1982), available at Alaska Finance Comm. Bill File Microfiche No. 1468.
12
Id.13
Compare § 29, Senate Bill (S.B.) 130, 24th Leg., 1st Sess. (Mar. 3, 2005),
with ch. 10, FSSLA 2005.
14
BLACK ’S LAW D ICTIONARY 178 (8th ed. 2004). “Binding” is defined as
(continued...)
-12- 6763
The Commission was thus required to accept the Board’s credibility determinations,
including its decision that Dr. Brooks was not credible.
We have given little weight to testimony the Board found not credible when
evaluating whether substantial evidence supported a Board decision, because “we defer
to the Board’s determination of witness credibility.”16 Here, the Board found Dr. Brooks
not credible and discounted Dr. Lipon’s testimony; their opinions therefore were entitled
to little weight in assessing the substantiality of the evidence. The Commission could
not permissibly find their testimony “more probative” and “more persuasive” than expert
testimony the Board found credible.17 The Board found Dr. Schwartz credible; the
Commission could not dismiss his opinion simply because he was not an orthopedist.18
14
(...continued)
“that binds” or “that requires obedience.” Id.
15
BLACK ’S LAW D ICTIONARY 1215 (8th ed. 2004).
16
Steffey v. Municipality of Anchorage, 1 P.3d 685, 691-92 (Alaska 2000).
17
The fact that Dr. Brooks did not testify orally is not determinative. “A
finding by the board concerning the weight to be accorded a witness’s testimony,
including medical testimony and reports, is conclusive even if the evidence is conflicting
or susceptible to contrary conclusions.” AS 23.30.122 (emphasis added). Also, “[t]he
board favors the production of medical evidence in the form of written reports . . . .” 8
Alaska Administrative Code (AAC) 45.120(k) (2012).
18
We recently decided in a personal injury case that an injured party’s
treating physician could offer an experience-based opinion about causation. Thompson
v. Cooper, 290 P.3d 393, 400 (Alaska 2012). Dr. Schwartz’s opinion was similar — he
testified to his experience treating patients with back problems, and he based his opinion
about causation on that experience. Chenega Lodging claims that Dr. Schwartz testified
he would defer to the opinions of an orthopedist. We disagree with Chenega Lodging’s
interpretation of the testimony it cites. Dr. Schwartz testified that he would defer to an
orthopedist’s opinion about the need for and type of surgery but qualified this statement
by saying “someone that . . . I was familiar with.” Any deference Dr. Schwartz might
(continued...)
-13- 6763
We have never held that the opinion of one type of medical specialist is, as
a matter of law, entitled to greater weight than that of another. Rather, “[w]hen medical
experts provide contradictory testimony, the [B]oard determines credibility.”19
Additionally, “if the Board is faced with two or more conflicting medical opinions —
each of which constitutes substantial evidence — and elects to rely upon one opinion
rather than the other, we will affirm the Board’s decision.”20 The Board can also choose
not to believe its own expert.21
Chenega Lodging contends the Board’s analysis of Dr. Brooks’s report was
inadequate and the Board did not make adequate findings about issues that were material
and contested, but it does not identify those issues. The Board was concerned that
Dr. Brooks was basing his opinion on what the Board considered minor inconsistencies
in the medical records, even though Dr. Brooks knew Sosa de Rosario did not speak
English and was dependent on others to translate for her. The Board’s decision shows
that it carefully examined the medical records and based its decision on its own
evaluation of those records.
Finally, it is noteworthy that the Board’s other credibility finding was that
Sosa de Rosario was “credible and consistent in her description of the mechanism of her
injury.” The Commission did not consider this finding “particularly helpful” in making
18
(...continued)
give to an opinion about treatment is unrelated to causation.
19
Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004) (citing Childs v.
Copper Valley Elec. Ass’n, 860 P.2d 1184, 1189 (Alaska 1993)).
20
Id. (quoting Doyon Universal Servs. v. Allen, 999 P.2d 764, 767-68 (Alaska
2000)) (alteration omitted) (internal quotation marks omitted).
21
See, e.g., AT & T Alascom v. Orchitt, 161 P.3d 1232, 1238, 1240-42
(Alaska 2007) (affirming Board when it rejected testimony of its own engineering
expert).
-14- 6763
a causation determination, but both Dr. Brooks and Dr. Lipon specifically said they did
not think there was an accident on June 28, 2007. This discrepancy further undermined
both orthopedic doctors’ opinions, weakening their evidentiary value.22 In considering
whether substantial evidence supported the Board’s decision, Dr. Brooks’s and
Dr. Lipon’s opinions were entitled to little, not great, weight.
B. It Was Error To Conclude That Substantial Evidence Did Not Support
The Board’s Decision.
Sosa de Rosario argues that the Board correctly credited Dr. Schwartz’s and
her own testimony in finding that her injury was compensable.23 Chenega Lodging
argues that several of the Board’s findings were not supported by substantial evidence.
Assessing the Commission’s decision requires review of the evidence presented to the
Board in light of the Board’s credibility determinations.
The Board and Commission both applied the three-step presumption
analysis used in workers’ compensation cases to determine the claim’s compensability.24
The Board decided that Sosa de Rosario had attached the presumption of compensability
and that Chenega Lodging had rebutted it. The Commission agreed with both of these
decisions. As discussed, the Board found Sosa de Rosario was credible and Dr. Brooks
was not. The Board found Dr. Schwartz’s testimony credible and “discounted”
Dr. Lipon’s opinions. The Board decided that Sosa de Rosario had proved by a
preponderance of the evidence that her work-related injury was the substantial cause of
her disability and need for treatment of her low back pain and sciatica. The Commission
22
Cf. Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 790-91 (Alaska
2007) (requiring Board to evaluate lay testimony that “could undermine” employer’s
doctor’s analysis of the course of the employee’s illness).
23
We interpret the pleading of pro se litigants liberally. Khalsa v. Chose, 261
P.3d 367, 372 n.9 (Alaska 2011) (citing Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)).
24
See supra note 5.
-15- 6763
reversed the Board’s analysis at the third stage — when the Board weighs the evidence
— because it did not think the quantum of evidence was “substantial enough to support
the [B]oard’s conclusion.”
The Board based its compensability determination on four factors: the MRI
showing a herniated disc, a credible mechanism of injury, the absence of treatment for
lumbar spine problems before the June accident, and Dr. Schwartz’s credible testimony.
Chenega Lodging first argues that substantial evidence does not support the finding that
Sosa de Rosario had not received medical treatment for low back pain and right leg pain
before the work-related injury, pointing to medical chart notes supporting its argument.25
The Commission agreed with Chenega Lodging that there was evidence of “low back
pain that pre-existed the work incident,” citing medical records from 2004, 2006, and
early 2007.26
Our review of the record does not support the Commission’s summary of
the evidence. The medical records show that Sosa de Rosario was treated for pain in her
cervical and thoracic spine before June 2007, but the records do not show treatment for
lumbar pain. The only medical record that might suggest prior lumbar pain was a pain
diagram from February 2006. According to a medical summary Chenega Lodging
submitted to the Board, the pain diagram was from Providence Physical Therapy.
Dr. Schwartz referred Sosa de Rosario to physical therapy at that time because of
cervical pain after a car accident. Chenega Lodging questioned Dr. Schwartz at the
hearing about the pain diagram. The Board considered the pain diagram and described
25
No one contested that Sosa deRosario’s MRI showed a herniated disc
impinging on her nerve.
26
The chart note from 2007 refers to a history of back pain in 2006, but the
related medical record from 2006 shows that Sosa de Rosario was treated for cervical
pain at the time.
-16- 6763
it as “incomplete and inconsistent with the complaints in the accompanying chart note.”
This assessment is supported by the record, as the chart notes show that Sosa de Rosario
received treatment and was referred to physical therapy for cervical pain complaints.
Chenega Lodging next contends that the Board incorrectly assessed the
impact the language barrier and translation had in the case. The Board could reasonably
have concluded that Sosa de Rosario’s limited English and her reliance on translators
influenced the accuracy of some medical records.27 The record shows translation errors
at the Board’s hearing as well as at Sosa de Rosario’s deposition. Dr. Thompson wrote
in one chart note that Sosa de Rosario should be seen by a Spanish-speaking provider,
suggesting that he was concerned about the language barrier. Given the importance
Dr. Brooks and, consequently, Dr. Lipon attached to Sosa de Rosario’s account of the
injury in determining causation, the Board acted within its discretion in assessing
potential communication problems as it did. The only physician who communicated
directly with Sosa de Rosario in Spanish was Dr. Schwartz, and the Board could
reasonably conclude that their ability to communicate more effectively made his opinions
more accurate.
Chenega Lodging maintains substantial evidence does not support the
Board’s finding that Dr. Lipon deferred to Dr. Brooks “on the mechanism of injury
issue.” Dr. Lipon said at his deposition that he “would have to refer the accident
reconstruction part” to Dr. Brooks. Dr. Lipon also agreed that he would “defer to
[Dr. Brooks] whenever the reference was made to the reconstruction of events.” These
comments fully support the Board’s finding.
27
To the extent the medical records conflict, it is the Board’s responsibility
as the finder of fact to resolve evidentiary conflicts, as it did here. See Robinson v.
Municipality of Anchorage, 69 P.3d 489, 493 (Alaska 2003) (holding that one of Board’s
functions is weighing conflicting evidence).
-17- 6763
Chenega Lodging argues that the Board should have given Dr. Brooks’s
report and Dr. Lipon’s testimony and report more weight. As we explained above, the
Board has authority to determine witness credibility and to weigh conflicting evidence.
Because of the Board’s credibility determinations, the opinions of Dr. Brooks and
Dr. Lipon are entitled to little weight in assessing the evidence supporting the Board’s
findings, and Dr. Schwartz’s opinion is entitled to greater weight.
The Commission thought Dr. Schwartz’s opinions “[fell] short of the
statutory standard that employment must be the substantial cause” of the injury and
disability. According to the Commission, “to say that the injury was work-related, or
was in large part responsible for her disability, does not necessarily mean that
employment was the substantial cause.” (Emphasis in original.) We have cautioned
against considering the workers’ compensation process “a game of ‘say the magic word,’
in which the rights of injured workers should depend on whether a witness happens to
choose a form of words prescribed by a court or legislature.”28 We have not required a
physician’s statement to include a specific term to prove an injured worker’s claim,29 and
we have “upheld compensation awards in the face of inconclusive medical testimony.”30
We hold that Dr. Schwartz’s opinion together with other evidence provides
adequate support for the Board’s decision. Dr. Schwartz rejected the opinion that Sosa
de Rosario’s lumbar complaints and sciatica were caused by degenerative changes
28
Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 791 (Alaska 2007)
(quoting 8 A RTHUR LARSON & LEX K. LARSON , LARSON ’S W ORKERS ’ COMPENSATION
LAW § 130.06[2][e] (2006)) (internal quotation marks omitted).
29
See id. (“A statement by a physician using a probability formula is not
required to establish employer liability in workers’ compensation.”).
30
Id. (citing Emp’rs Commercial Union Co. v. Libor, 536 P.2d 129, 132
(Alaska 1975); Beauchamp v. Emp’rs Liab. Assurance Corp., 477 P.2d 993, 996-97
(Alaska 1970)).
-18- 6763
because, in his experience, degenerative changes had a different presentation; he linked
her pain to the work-related accident. From the absence of credible medical testimony
to the contrary, as well as from the MRI and Sosa de Rosario’s account of the injury, the
Board could reasonably conclude that the work injury was the substantial cause of her
continuing need for medical care.
Chenega Lodging finally argues that the Board applied an incorrect legal
standard and did not require Sosa de Rosario to prove her claim by a preponderance of
the evidence. It relies on the Board’s use of the phrase “substantial evidence” to describe
some of the evidence. But the Board first made a series of factual findings “by a
preponderance of the evidence.” The Board made detailed factual findings and
credibility determinations showing what evidence it considered important in reaching its
decision. And it expressly set out the preponderance-of-the-evidence standard to
describe the last step of the presumption analysis, stating that Sosa de Rosario “ha[d]
proven by a preponderance of the evidence her work was the substantial cause in her
need for past and continuing medical treatment and disability.” We conclude the Board
applied the correct legal standard.31
Our examination of the record and the Board’s findings leads us to
conclude that the Commission erred in reversing the Board’s decision that Sosa de
Rosario’s injury was work related and compensable — we hold that substantial evidence
in the record supports the Board’s decision.32
31
We disagree with Chenega Lodging’s contention that the Board required
it to “prov[e] the non-compensability of the employee’s claim.” The Board’s comment
that Dr. Brooks did not exclude occupational activities as a possible cause of Sosa de
Rosario’s disc problem was part of its explanation for why it found the needed medical
treatment to be work related. The Board pointed to other evidence as well.
32
With respect to the TTD finding, Chenega Lodging asserts that no medical
(continued...)
-19- 6763
C. It Was Error To Reverse The Board’s PPI Decision.
The Board decided that Sosa de Rosario was “entitled to PPI [permanent
partial impairment] when rated.” The Commission faulted the Board for this order
because in its view, only Chenega Lodging presented evidence about whether Sosa de
Rosario had a permanent impairment. Citing Griffiths v. Andy’s Body & Frame, Inc.,33
the Commission said that “[t]he appropriate remedy” would have been for Sosa de
Rosario to ask for a modification.
Before the Board the parties disagreed about medical stability; the Board
decided Sosa de Rosario was not yet medically stable and directed her to get a rating
when she reached medical stability. As a result Sosa de Rosario’s PPI claim was not yet
ripe. In Griffiths, in contrast, everyone agreed the claimant was medically stable — he
was already engaged in the reemployment process when the employer had him formally
rated.34 Although the Board could have said that it was reserving a decision on PPI until
Sosa de Rosario was rated rather than that she was entitled to PPI when rated, any error
was harmless because if and when she is rated, Chenega Lodging can contest the rating.
32
(...continued)
evidence supported the Board’s award of TTD. We disagree. Dr. Schwartz thought that
Sosa de Rosario would benefit from surgery, suggesting that in his opinion she was not
medically stable. (Medical stability is “the date after which further objectively
measurable improvement from the effects of the compensable injury is not reasonably
expected to result from additional medical care or treatment.” AS 23.30.395(27).) The
Board found his testimony credible; it also provided in its order that if surgery were
recommended and Sosa de Rosario refused to consider it, the date of medical stability
would be the date of the Board’s decision.
33
165 P.3d 619 (Alaska 2007) (holding that Board abused its discretion in
failing to allow worker to file a modification petition about permanent impairment
rating).
34
Id. at 621.
-20- 6763
V. CONCLUSION
For the foregoing reasons, we REVERSE the Commission’s decision and
REMAND to the Commission with instructions to reinstate the Board’s order.
-21- 6763