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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gregory Weaver v. ASRC Federal Holding Co. and Arctic Slope Regional Corp. (6/5/2020) sp-7454
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
GREGORY WEAVER, )
) Supreme Court No. S-17406
Appellant, )
) Alaska Workers' Compensation
v. ) Appeals Commission No. 17-025
)
ASRC FEDERAL HOLDING
) O P I N I O N
COMPANY and ARCTIC SLOPE )
REGIONAL CORPORATION, ) No. 7454 - June 5, 2020
)
Appellees. )
)
Appeal from the Alaska Workers' Compensation Appeals
Commission.
Appearances: Michael J. Jensen and Lee D. Goodman, Law
Offices of Michael J. Jensen, Anchorage, for Appellant.
Matthew T. Findley and Laura C. Dulic, Ashburn & Mason,
P.C., Anchorage, for Appellees.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
A laborer began receiving workers' compensation benefits after
experiencing severe low back pain at a remote job site. About six months later his
employer controverted all benefits based on a medical opinion that the work caused only
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a temporary aggravation of a preexisting condition. The laborer underwent extensive
medical care for his back pain, with doctors trying multiple different treatments. The
worker sought workers' compensation for the back pain and asked the Alaska Workers'
Compensation Board to join a prior back injury claim against the same employer.
Following a lengthy and complex administrative process, the Board denied the worker's
claim for additional benefits, and the Alaska Workers' Compensation Appeals
Commission affirmed the Board's decision.
The laborer contends that the Board made both procedural and substantive
errors. He argues the Board violated his right to due process by relying on evidence
from an employer's medical evaluation (EME) and the second independent medical
evaluation (SIME) ordered by the Board. The doctors who performed those evaluations
reviewed reports from two other doctors who were not called to testify at the hearing,
even though the laborer had requested cross-examination of them. We conclude that the
Board adequately protected the laborer's rights by excluding the reports from its own
consideration and by providing a full opportunity for cross-examination of the EME and
SIME physicians. We also conclude that the opinions from the EME, the SIME, and
other medical evidence were sufficient both to rebut the presumption of compensability
and to support the Board's decision that the continuing need for treatment was not work
related. We also find no error in the Board's decision to address the previous work
injury in a separate case. We affirm the Commission's decision.
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II. FACTS AND PROCEEDINGS
A. Work Injury
1 off and on
Gregory Weaver worked at remote sites for ARCTEC Alaska
for several years as a relief station mechanic. His job involved heavy labor, and he filed
several reports of injury during the times he worked for ARCTEC. He reported in
December 2010 that he had "pulled something in the lower spinal area" while adjusting
tire chains on a dump truck. He filed another injury report related to his back in early
2012, after he experienced back pain while installing garage door panels. Weaver passed
"fit for duty" physical examinations after both of these injuries.
Weaver worked at Indian Mountain and Barter Island in 2013. In July
while Weaver was at Barter Island, he woke up one morning with back pain that made
it hard for him to walk. He said his back pain "had been building up for several months,"
but he could not identify a specific task related to the onset of pain. He said "the
majority of the heavy lifting" he did that summer had been at Indian Mountain, but he
described work at Barter Island as including significant shoveling and pushing
wheelbarrows of rocks over difficult surfaces. He thought the camp bed provided
inadequate back support. He asked to be flown out because of his back pain and has not
worked since.
B. Weaver's Medical History
Many years before Weaver began to work for ARCTEC he was in a serious
motor vehicle collision and suffered a traumatic brain injury, which caused continuing
memory problems. Weaver was evidently involved in a second accident in about 2003,
1 The parties generally referred to Weaver's employer as ARCTEC Alaska,
but the opening notice in the Board file referred to it as ASRC Federal Holding
Company. Arctic Slope Regional Corporation is the insurer for ARCTEC Alaska. We
refer to the employer and its insurer as "ARCTEC Alaska" or "ARCTEC."
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----------------------- Page 4-----------------------
but the record in this case has little information about that accident. Weaver had a
history of mood disorders, which a brain injury specialist said was likely related to the
traumatic brain injury.
The parties to this litigation disputed the existence and relevance of
Weaver's substance abuse. Weaver was given an administrative discharge from the
military related to alcohol abuse and "rehabilitation failure." Weaver has been convicted
twice of driving under the influence, once in the 1990s and once in 2014. In 2014
2 in-patient treatment program in Georgia,
Weaver voluntarily entered a dual-diagnosis
but the program is only mentioned in other providers' records. In February 2017, a short
time before the Board hearing, he was again arrested and charged with driving under the
influence but was convicted only of reckless driving. The pain clinic that treated
Weaver's back pain tested him periodically for alcohol; more than once he tested
positive.
Weaver'smedical recordsshowsporadicbackpaintreatment during theten
years before his pain became debilitating. Most treatment was chiropractic care or
osteopathic manipulation, and some of the treatment was for work-related complaints.
C. Medical Treatment And Evaluation Following The 2013 Injury
Weaver began treatment with Dr. Joyce Restad when he returned from
Barter Island in late July 2013. He had not previously seen Dr. Restad and chose her
because she was the only Mat-Su Valley osteopathic physician he found offering
osteopathic manipulation. At his first appointment with Dr. Restad his pain was
2 The term "dual diagnosis" refers to the co-occurrence of a substance abuse
disorder and a mental disorder in an individual. Nat'l Insts. of Health, Dual Diagnosis ,
EDLINEPLUS, https://medlineplus.gov/dualdiagnosis.html (last visited May 18, 2020).
M
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----------------------- Page 5-----------------------
3 4
"a '9'/10." She diagnosed him with lumbago and somatic dysfunction in the lumbar
region and treated him with osteopathic manipulation and medication. An MRI from
early August showed disc bulging in the lumbar spine with "moderate bilateral neural
foraminal stenosis" at L5-S1.
Dr. Restad referred Weaver to Algone Pain Center, where he saw several
providers and continued to receive care through 2017. Algone initially suggested a
series of three epidural steroid injections. Dr. Restad's chart notes reflect that
ARCTEC's nurse case manager5 considered the proposed treatment "aggressive" and
wanted a second opinion and that Weaver "seem[ed] to be neutral about this."
Dr. Restad referred Weaver to Dr. Shawn Johnston at Alaska Spine Institute as suggested
by the case manager.
The underlying question about the epidural steroid injections, beside cost,
appears to have been whether Weaver had radiculopathy, or "irritation of or injury to a
6 Radiculopathy occurs in a pattern related to
nerve root (as from being compressed)."
a specific nerve root, which in Weaver's case would have resulted in pain extending into
the leg. Weaver's medical records did not consistently show pain in the leg.
Dr. Restad's chart notes described the pain as "radiating into his [left] buttock."
3 Lumbago is lower back pain. Lumbago, M ERRIAM-WEBSTER ONLINE
DICTIONARY, https://www.merriam-webster.com/dictionary/lumbago.
4 Onedoctor testified that "somaticdysfunction"is"not aspecificdiagnosis"
but indicates that the spine is "not working properly." Dr. Restad testified she uses this
diagnosis when she does an adjustment.
5 ARCTEChired anursecasemanagerinWeaver's case; shemonitored care,
including scheduling at least one appointment, and went to several appointments with
Weaver.
6 Radiculopathy , MERRIAM -WEBSTER ONLINE DICTIONARY ,
https://www.merriam-webster.com/dictionary/radiculopathy.
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----------------------- Page 6-----------------------
7
Dr. Johnston thought Weaver's pain was "facet-mediated" and restricted
him to light duty work. After noting Weaver's "occasional radicular complaints,"
Dr. Johnston referred Weaver for physical therapy and prescribed other medication.
Weaver attended physical therapy but showed little improvement. Dr. Johnston later
prescribed lumbar traction, which was unhelpful, and continued work restrictions.
Weaver attended physical therapy regularly but showed no significant improvement; a
work-hardening program intended to gradually prepare Weaver for a return to work was
also unsuccessful. In November 2013 Dr. Johnston considered releasing Weaver to full
time work but did not do so.
Dr. Johnston suggested medial branch blocks, a diagnostic procedure to
identify which facets cause pain, as an option if Weaver did not improve with physical
therapy, but he did not specifically order them. In a medial branch block nerves related
to facets at a specific level of the spine are temporarily numbed; if pain is reduced or
relieved, doctors conclude that facets at the corresponding level are the pain source. The
nerve can then be treated with radiofrequency ablation (RFA) for more permanent pain
relief. Algone later performed medial branch blocks on Weaver.
In January 2014 ARCTEC arranged an employer's medical evaluation
(EME) with Dr. Stephen Marble. Dr. Marble diagnosed "[m]ultilevel lumbar
degenerative disc disease, greatest at L5-S1." Dr. Marble said there was "potential for
work factors (as described) causing symptomatic exacerbation" and thought Weaver
"had evolving degenerative disc disease symptoms over the course of approximately
three years." Dr. Marble did not think the July 2013 injury was the substantial cause of
Weaver's disability and need for medical treatment, but he did say the work activities
7
Facet-mediated pain is pain related to the facets, the spinal joints that
connect the vertebral bodies.
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"resulted in a temporary aggravation/exacerbation of Mr. Weaver's preexisting lumbar
condition." Dr. Marble thought Weaver was medically stable but said Weaver should
be limited to work in the "light-medium" physical demands category and should not
return to work as a station mechanic. ARCTEC controverted all benefits in late January
2014 based on Dr. Marble's report. After the controversion the nurse case manager met
with Dr. Johnston, without Weaver in attendance, to "fill out paperwork." Dr. Johnston
signed a "check the box" form letter, written by the nurse case manager, indicating his
agreement with Dr. Marble's report.
Dr. Restad wrote a letter supporting Weaver, and Weaver filed a written
workers' compensation claim in February 2014. ARCTEC denied that further benefits
were due but agreed that a second independent medical evaluation (SIME) was
appropriate.
Weaver continued to see Dr. Restad until February 2015. After the
controversion he sought medical care referrals from the Veterans Administration (VA).
A VA physician assistant noted "moderate" radiculopathy on the right and "mild"
radiculopathy on the left when examining Weaver. The VA authorized care with
Dr. Samuel Inouye, a family practice doctor. Dr. Inouye ordered an MRI in July 2014
at the VA's request; the MRI showed that Weaver's spine was essentially unchanged
since August 2013. Shortly after seeing Dr. Inouye, Weaver saw Dr. Andrea Trescot,
a pain physician, on referral from Dr. Restad. Dr. Trescot thought Weaver's back pain
8 and
was work related; she recommended a transforaminal epidural steroid injection
wrote that Weaver had "never received adequate treatment" for his low back pain and
was therefore not medically stable.
8 Dr. Trescot later explainedthat a transforaminalepidural injection involves
injecting an "individual nerve root as it's coming out of [the] foramen," which is "the
opening where the nerve root exits" the spine.
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Weaver consulted Dr. Louis Kralick, a neurosurgeon, in October 2014 on
referral from the VA. Dr. Kralick did not discern any radicular symptoms but ordered
further testing. Algone performed a second epidural steroid injection that month because
Weaver had "2 days of excellent relief" after the epidural steroid injection administered
by Dr. Trescot.
On October 30, 2014, Weaver saw Dr. Amy Murphy for the first time for
treatment related to cognition and his old brain injury; this care was authorized by the
VA. Dr. Murphy did not treat Weaver for pain but prescribed an antidepressant and a
muscle relaxant. Dr. Murphy noted in October that Weaver "[was] having a great deal
of psychosocial stressors" including his wife filing for divorce, the workers'
compensation controversion, a need for financial assistance from his parents, and a lack
of income "for months." In addition, he had been unable to visit his children and had a
heart attack. The VA medical records from earlier in 2014 indicate that Weaver was at
one point "overwhelmed with stress" including a divorce, "severe debt," inability to
work, his workers' compensation "appeal," and "chronic pain issues." In November
2014 Dr. Murphy noted that "[t]herapy is not helping a great deal but then again his
stressors continue to be high and this is definitely not helping his care."
Algone continued to provide treatment for Weaver's back pain, using
different medications for pain relief. An MRI from December 2014 showed that
Weaver's lumbar condition was stable. In early January 2015 Algone performed a third
epidural steroid injection. At about this time Dr. Kralick recommended facet injections
at two levels in the lumbar spine.
In late January 2015 Algone recommended "diagnostic lumbar facet
blocks" for "mechanical low back pain," and Weaver underwent medial branch blocks
at several levels, reporting "80% relief" that "lasted for 5 hours." The branch blocks
were repeated, but Weaver experienced less pain relief after the second procedure. At
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about this time Weaver's urinalysis (UA) at Algoneshowed that hewas drinkingalcohol,
and Weaver told the doctor he drank "to help with the pain."
In March 2015 Dr. Patrick Radecki did his first EME for ARCTEC.
Dr. Radecki did not think Weaver had suffered any injury at work; he said Weaver had
degenerative disc disease related to age and weight. Dr. Radecki reported that Weaver
had "nonphysiologic" responses to touch and certain maneuvers on examination.
Dr. Radecki thought Weaver's pain was mainly caused by psychosocial factors but did
not think a psychological evaluation was necessary "to determine if there are any
psychological factors at play because [he and ARCTEC] already kn[e]w that from a
comprehensive physical exam, such as [he had] performed." Dr. Radecki thought a
psychological evaluation might bolster the evidence ARCTEC could present, even
though he felt psychological factors were "the only explanation for [Weaver's]
presentation." Dr. Radecki noted that a brain MRI showed changes related to Weaver's
old head injury, which would cause "poor recall." He suggested that Weaver might
"have some atypical response to the normal aches and pains of daily living or may have
a tendency to develop a perseveration of complaints that are nonphysiologic, in part
because of his pathology in his brain."
In spring 2015 Algone recommended RFA therapy at the facet levels
corresponding to the medial branch blocks. Algone continued to be concerned about
Weaver's use of alcohol, warning that the clinic would not prescribe pain medication if
Weaver "continue[d] to drink at this level." Weaver underwent RFA therapy, but it did
not bring the expected relief. Algone treated Weaver's pain with multiple medications.
In August Algone referred Weaver back to Dr. Kralick for surgical evaluation.
Weaver underwent a SIME examination with Dr. James Scoggin in
December 2015. Dr. Scoggin diagnosed degenerative disc disease, chronic low back
pain, and an "industrial" soft tissue injury in July 2013. Dr. Scoggin said there was "no
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objective evidence of a permanent aggravation" of Weaver's degenerative disc disease
or his chronic low back pain, and he thought Weaver was medically stable from the
effects of the July 2013 injury by the date of Dr. Marble's January 2014 EME. In
explaining his opinion about medical stability, Dr. Scoggin first noted Dr. Marble's
opinion that Weaver was medically stable and then noted that Dr. Johnston "concurred
with" Dr. Marble's conclusions. Dr. Scoggin observed that the pain levels Weaver
reported at the SIME examination were similar to those in Dr. Marble's report.
Dr. Scoggin summarized the treatments Weaver had undergone in the intervening time
and noted the lack of improvement in Weaver's pain levels. Dr. Scoggin gave the
opinion that Weaver would likely not be able to return to the heavy labor he had
performed in the past because of both his lumbar spine condition and his cardiac
problems. Dr. Scoggin issued several supplemental reports but did not change his
opinion.
9 which Dr. Kralick had
In early April 2016 Algone performed a discogram,
recommended, and Weaver reported an immediate reduction in pain. The pain relief was
short-lived, however, and Algone continued the pain regimen it had established for
Weaver. A June 2016 UA tested positive for alcohol.
In May Dr. Kralick discussed spinal fusion surgery with Weaver because
of his lack of improvement after other treatment. An early July assessment note recorded
"bilateral L5/S1 radiculopathies." Weaver opted to have surgery, and in mid-July 2016
Dr. Kralick performed an "L4-S1 laminectomy with spinal canal and neural foraminal
decompression" and "disc excision of left L4-L5." The operative report indicated
9 A discogram injects fluid with dye into a disc to increase pressure and
attempt to reproduce the patient's pain. The dye allows a physician to see if the disc is
leaking and may help determine whether the disc is causing the pain. Algone injected
an anesthetic with dye into the discs.
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Weaver had "[s]ignificant canal compromise of the thecal sac . . . at both the L4-5 and
10
L5-S1 levels."
Dr. Kralick's "BriefOperativeNote"gaveadiagnosisof"[s]pondylosis
of lumbar region without myelopathy or radiculopathy."
Weaver followed up with Dr. Kralick's office and continued treatment at
Algone for chronic pain. He reported to Algone that he had decreased pain following
surgery: in January 2017 he reported "an average pain level of 3-5/10," and in
March 2017 he rated his pain at three out of ten at the time of the appointment, with an
average of three to four when using medication. Weaver's pain medication was
decreased by half at that time. In May 2017 he reported that the decreased dosages were
adequate for his pain, and gave an average pain level of three to five.
In mid-February 2017 ARCTEC scheduled another EME. At ARCTEC's
request, Dr. Radecki referred Weaver to Dr. Ronald Teed, an orthopedic surgeon.
Dr. Teed thought Weaver's back pain was degenerative in nature, specifically that it was
the result of arthritic changes. He did not think any of Weaver's medical problems were
work related. ARCTEC asked Dr. Teed questions related to both the 2010 and the 2013
injury reports; Dr. Teed thought Weaver was medically stable as of the date of both
injuries.
D. Board Proceedings, Including Medical Depositions
This was a very contentious case with considerable litigation, so we
summarize only the proceedings relevant to this appeal. Weaver filed a written workers'
compensation claim after the January 2014 controversion; he filed an amended claim in
June 2014 related to the July 2013 injury, seeking temporary total disability (TTD) from
10 The thecal sac is "the membranous sac of dura mater covering the spinal
ERRIAM-
cord and cauda equina and containing cerebrospinal fluid." Thecal sac , M
W E B S T E R O N L I N E D I C T I O N A R Y ,
https://www.merriam-webster.com/medical/thecal%20sac.
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the date of the controversion, medical costs, permanent partial impairment (PPI), and
reemployment benefits. His injury theory was in the alternative: there was either a
"traumatic incident" or a "cumulative trauma" or both. Weaver also filed a Request for
Cross-Examination, seeking to cross-examine Dr. Marble about his EME report and
Dr. Johnston about his February "check the box" letter.
In October 2014 Weaver filed a petition to join an additional employer,
11 He listed
asking the Board to join his earlier injuries with ARCTEC to the 2013 injury.
two additional reported injuries, one from December 2010 and one from June 2011, both
against ARCTEC Alaska and both to his low back. ARCTEC did not oppose the petition
to join and objected to a hearing when Weaver asked for one.12 A later prehearing
conference summary shows that the 2010 case, related to adjusting tire chains, was
joined with the 2013 case, and the Board assigned the 2013 number as the master case
number.13
The parties deposed Dr. Scoggin in August 2016, about six weeks after the
back surgery. He reiterated his opinions about the 2013 injury and its effects on
Weaver's degenerative disc disease. Dr. Scoggin called Weaver's pain "multifactorial,"
11 See 8 Alaska Administrative Code (AAC) 45.040 (2011) (allowing joinder
of parties). Weaver did not explain why he petitioned to join an additional employer to
the 2013 injury claim, but it appears he was using a process like that used in last
injurious exposure rule cases. See Morrison v. Alaska Interstate Constr., Inc. , 440 P.3d
224, 228 (Alaska 2019) (summarizing process used tojoinfirst employer in last injurious
exposure rule case).
12 See 8 AAC 45.040(h)(2) (providing that a party "is joined without further
[B]oard action" when no timely objection is filed).
13 See 8 AAC 45.040(k) ("If claims are joined together, the [B]oard or
designee will notify the parties which case number is the master case number."). Weaver
raised an issue only about the 2010 injury, not the 2011 injury, in his appeal to this court.
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saying "he's got facet, he's got disc, he's got now spinal stenosis." In Dr. Scoggin's
opinion the multifactorial aspect of Weaver's pain made it more likely that the condition
was degenerative. Dr. Scoggin explained that as people age their discs deteriorate, and
that the process can be accelerated by a number of factors, "including obesity, age,
genetic factors," trauma (including disc herniation), and "any sort of injury to the spine
that's disruptive of the anatomy or structure."
Responding to ARCTEC's questions, Dr. Scoggin testified that based on
the information he had reviewed, he thought the 2010 injury was the substantial cause
of Weaver's disability and need for medical treatment after January 2014, which was the
month he had estimated Weaver became medically stable as a result of the 2013 injury.
To support this opinion Dr. Scoggin pointed out that Weaver had reported a specific
activity in 2010 - putting heavy chains on a road grader and tightening them - and that
from that time forward Weaver's pain complaints may not have completely resolved.
Dr. Scoggin did not consider Weaver's surgery reasonable or necessary and said he
would not attribute any need for the surgery to the 2010 injury.
The parties deposed Dr. Trescot and Dr. Teed. Dr. Trescot stated that a
pain physician needs to assess a patient's mental health when considering treatment for
pain. Dr. Trescot agreed (as a hypothetical) that she would "be concerned that there is
an underlying issue that isn't being addressed" if a patient did not get relief frommultiple
types of treatment such as narcotics, anti-inflammatories, medial branch blocks, RFA,
and surgery. And Dr. Trescot agreed that when a pain patient does not improve in spite
of multiple treatments, it may be related to "untreated depression or anxiety," "substance
abuse," or potential secondary benefits of a lack of improvement; she said that "[t]hose
are usually things you would start looking for when patients don't get better with a
treatment that you have identified."
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Dr. Teed testified that when a patient does not improve after multiple types
of treatment, "that's a red flag for functional overlay" and that treating physicians need
to have information about substance abuse and the patient's mental health history.
Dr. Teed would not give an opinion when asked whether psychosocial issues were "a
large part of [Weaver's] ongoing pain complaints" because this asked for an opinion
outside his specialty; he said he would "call for a consultation and psychologic and
psychiatric and multidisciplinary evaluation on this claimant."
The Board held a two-part hearing on the merits of Weaver's claim. The
first took place in March 2017 and featured four witnesses: Dr. Restad, Dr. Radecki,
Weaver, and Weaver's father. The second was in July and had one rebuttal witness.
Prior to hearing testimony in March the Board heard arguments related to procedural
disputes but did not make oral rulings on the issues that are on appeal to us. Instead, the
Board held a prehearing conference about three weeks after the hearing and ordered the
parties to file short briefs about Weaver's request to cross-examine Dr. Johnston.
We summarize only that hearing testimony directly relevant to the issues
on appeal. Dr. Radecki's testimony was generally consistent with his reports, and he was
highly critical of Weaver's healthcare providers. Dr. Radecki's chief opinion was that
Weaver's pain was mainly psychological in origin and not in his back, although he
thought the pain might be related to Weaver's head injury. He testified that Weaver's
case was "a very complex situation" because of the "known psychosocial problem[s]"
documented in the medical records, including drug and alcohol use, monetary problems,
a divorce, and a history of depression and anxiety. Dr. Radecki considered that
Weaver's old head injury could affect his judgment or could make him more likely to
have total body pain. Dr. Radecki considered Weaver's pain to be a "psychological
condition" involving "the mind-brain interface with the rest of the body." Dr. Radecki
did not feel it was inappropriate for him to testify about psychological issues because he
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had some related training during his residency and because he could "give any opinion
[he] want[ed]" as long as it was "substantiated."
The Board issued a decision in late October 2017 and decided that Weaver
had not carried his burden of proof. The Board first considered the procedural issues it
had not addressed at the hearing and decided that both Dr. Marble's EME report and
Dr. Johnston's concurrences should be excluded from consideration by the Board. It
then decided that no claim for benefits related to the 2010 injury was at issue at the
hearing because Weaver had not filed a written claim specifically for that injury.
Turning to the merits, the Board decided Weaver had attached the
presumption of compensability and that ARCTEC had rebutted it. The Board said
ARCTEC "rebut[ted] the presumption with Dr. Radecki's opinion that [Weaver's]
continuing need for medical treatment was caused by factors other than work, and
Dr. Scoggin's opinion that [Weaver] suffered a soft tissue injury that had resolved by the
time of Dr. Marble's . . . evaluation." The Board did not use Dr. Teed's opinions at the
rebuttal stage.
Considering the third stage of the analysis, the Board gave little weight to
Dr. Restad's opinions because in its view her "hearing testimony was contradictory and
problematic." It also gave little weight to Dr. Kralick's opinions because he never
testified. It gave little weight to Dr. Trescot's opinions because she only saw Weaver
twice and her "opinions faltered on cross-examination."
In discussing Dr. Radecki's opinions, the Board said those opinions "were
initially viewed with some skepticism," in part because Weaver's pain responses that
Dr. Radecki noted "were not previously noted by other providers." It then summarized
Dr. Radecki's opinions as well as those of Dr. Scoggin and Dr. Teed. The Board
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afforded little weight to Dr. Teed's opinions, and gave "substantial weight" to
Dr. Scoggin's and Dr. Radecki's opinions.
The Board thought Weaver's "alcohol abuse" was "a compelling aspect in
this case," but it cited other psychosocial factors mentioned by Dr. Radecki that it
considered relevant. The Board was troubled by Weaver's "lack of response to very
extensive and prolonged treatment," listing the numerous treatments he had received,
including the pain management regimen and numerous drugs. The Board noted the
agreement between Drs. Radecki, Trescot, and Teed that when a claimant does not
respond to multiple treatments, psychosocial factors need to be considered. The Board
decided that the evidence showed Weaver's non-work-related factors were a more likely
cause of his continuing pain and decided he had not proved his claim by a preponderance
of the evidence.
Weaver appealed to theCommission, and the Commission first agreed with
the Board's decision. The Commission affirmed the Board's decision that ARCTEC
rebutted the presumption. The Commission also affirmed the merits of the Board's
decision because in its view substantial evidence in the record, specifically Dr. Radecki's
and Dr. Scoggin's opinions, supported that decision. The Commission decided the
Board had made adequate findings, discussing issues related to Dr. Radecki's credibility.
Turning to the procedural issues, the Commission decided that the Board
had appropriately handled the exclusion of Dr. Johnston's and Dr. Marble's reports. The
Commission decided that Drs. Radecki and Scoggin "based their findings of medical
stability not only on [Dr. Marble's] date for medical stability, but also on Mr. Weaver's
lack of improvement for more than 45 days in 2014." The Commission considered the
Board's "references to Dr. Marble's report" to be "incidental factors." The Commission
wrote that "Weaver's right to cross-examine Dr. Marble and Dr. Johnston was also
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properly protected by the Board's exclusion of those two items from the Board's own
deliberations and conclusions."
Finally, the Commission agreed with the Board's interpretation of its
regulation about joining claims. Relying on one of its own prior decisions, the
Commission decided that the lack of a specific reference to the 2010 injury on the written
claim from June 2014, together with the prehearing conference summary that identified
the June 2014 written claim as the subject of the hearing, supported the Board's decision
to limit the issues to the 2013 injury. According to the Commission ARCTEC was
"never put on notice that benefits were sought arising out of the 2010 injury, nor what
those benefits might be." Weaver appeals.
III. STANDARD OF REVIEW
In an appeal from the Commission, we review the Commission's decision
14
and not the Board's.
We independently review a Commission decision that substantial
evidence supports the Board's findings of fact by independently reviewing the record
15
and the Board's findings. "Substantial evidence is such relevant evidence as a
16 "Whether the
reasonable mind might accept as adequate to support a conclusion."
quantum of evidence is substantial is a question of law."17 "Whether the [B]oard made
14 Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1121 (Alaska 2017) (citing
Humphrey v. Lowe's Home Improvement Warehouse, Inc., 337 P.3d 1174, 1178 (Alaska
2014)).
15 Humphrey, 337 P.3d at 1178 (citing Shehata v. Salvation Army , 225 P.3d
1106, 1113 (Alaska 2010)).
16 Id. at 1179 (quoting DeYonge v. NANA/Marriott, 1 P.3d 90, 92 (Alaska
2000)).
17 Id. (citing Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d
624, 630 (Alaska 2011)).
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18
sufficient findings is a question of law that we review de novo." We review an
19
agency's interpretation of its own regulation under the reasonable basis standard.
"When we review the Commission's legal conclusions about the Board's exercise of
discretion or legal rulings, we also independently assess the Board's rulings and in so
doing apply the appropriate standard of review."20
IV. DISCUSSION
A. The Commission Correctly Concluded That ARCTEC Rebutted The
Presumption Of Compensability.
WeaverarguestheCommission erred in concluding that ARCTECrebutted
21
the presumption of compensability. He points out that in Huit v. Ashwater Burns, Inc.
we did not decide how the presumption analysis applies when another possible cause
contributes to the disability or need for medical treatment. He contends that
Dr. Radecki's opinion was not substantial evidence that could rebut the presumption.
Weaver maintains that Dr. Radecki's opinion was "inconsisten[t]" and failed "to name
a credible generator of Weaver's pain," which essentially meant Dr. Radecki pointed to
an "unknown cause." He argues that Dr. Radecki's opinion that his continuing pain
complaints were due to psychosocial factors was a psychological diagnosis Dr. Radecki
was not qualified to make. ARCTEC responds that the Board and the Commission
considered both the opinions of Dr. Scoggin and Dr. Radecki in deciding it had rebutted
the presumption and that either opinion alone was adequate. In reply Weaver asserts that
18 Pietro v. Unocal Corp., 233 P.3d 604, 611 (Alaska 2010) (alteration in
original) (quoting Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006)).
19 Eder v. M-K Rivers, 382 P.3d 1137, 1140 (Alaska 2016).
20 Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).
21 372 P.3d 904 (Alaska 2016).
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the Board used both opinions to rebut the presumption so that "if one opinion fails they
both fail to overcome the presumption."
As relevant to this appeal, Weaver sought TTD after January 15, 2014, and
continuing medical benefits in his amended workers' compensation claim. ARCTEC
denied that Weaver was entitled to TTD after January 15, 2014, or to any additional
medical benefits after January 9, 2014, relying on Dr. Marble's opinions that (1) Weaver
suffered "a temporary aggravation/exacerbation" of his non-work-related preexisting
degenerative disc diseasefromhis 2013 work activities; (2) Weaver was medically stable
from the effects of the 2013 injury; and (3) any medical care related to Weaver's back
pain after January 9 was necessitated by his non-work-related preexisting degenerative
disc disease.
Weaver is correct that we did not decide in Huit how the 2005 workers'
compensation amendments affected the second stage of the presumption analysis when
there is a competing cause. We do not decide that issue here because ARCTEC offered
substantial evidence that rebutted the presumption under pre-2005 case law. Because
ARCTEC's evidence rebutted the presumption that work was a substantial factor in
causing the disability, it necessarily rebutted a narrower presumption that work was the
substantial cause. 22
At the second stage of the presumption analysis the evidence is viewed in
isolation and is not weighed.23 To rebut the presumption under the pre-2005 analysis,
an employer needed sufficient evidence "that either (1) provided an alternative
explanation that would exclude work-related factors as a substantial cause of the
22 See id. at 919 ("[S]omething cannot be 'the substantial cause' of a disability
if it is not a cause at all.").
23 Pietro, 233 P.3d at 611.
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disability, or (2) directly eliminated any reasonable possibility that employment was a
factor in causing the disability."24
Either Dr. Radecki's or Dr. Scoggin's opinion
provided an explanation that if believed would exclude work-related factors as a
substantial cause of Weaver's continuing disability and need for medical treatment.
Both Drs. Radecki and Scoggin diagnosed Weaver with non-work-related
degenerative disc disease. Dr. Scoggin diagnosed a soft tissue injury related to Weaver's
work in July 2013, but he said the soft tissue injury would have resolved within a few
months, and certainly by January 9, 2014, the date of Dr. Marble's EME. This opinion
provided an alternative explanation that excluded work-related factors as a substantial
cause of Weaver's continuing disability and need for medical care after January 15,
2014.
Dr. Radecki did not think Weaver had suffered any work-related injury in
2013, so any need for medical treatment or disability was not work-related. Dr. Radecki
attributed Weaver's pain complaints to psychosocial factors or possibly to the traumatic
brain injury from years before. Weaver contends that Dr. Radecki lacked the expertise
to make a psychological diagnosis, but at oral argument before us, Weaver agreed that
a physical medicine and rehabilitation specialist like Dr. Radecki can properly consider
psychosocial factors when diagnosing and treating a patient for pain. Weaver's response
suggests that his concern is not with Dr. Radecki's expertise but with the purpose of
Dr. Radecki's statement. We regard Weaver's argument as largely immaterial in any
event. Several of Weaver's own healthcare providers noted the existence of his
psychosocial stressors, and Dr. Murphy specifically said the stressors were impacting
Weaver's care. Dr. Radecki did not make a psychiatric diagnosis but instead cited
factors that other medical doctors considered when treating Weaver, so we consider
24
Huit, 372 P.3d at 917.
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----------------------- Page 21-----------------------
Dr. Radecki's expertise adequate to render an opinion about the influence of
psychosocial factors on Weaver's pain.
Dr. Radecki's opinion that Weaver had degenerative disc disease that
preexisted the2013 injury report together withhis opinion that Weaver's continuing pain
couldbeattributed to psychosocialfactors provided anexplanation that ifbelieved would
exclude work-related factors as a substantial cause of Weaver's continuing disability and
need for medicaltreatment. Wethereforehold that theCommission correctly determined
that ARCTEC rebutted the presumption.
B. The Commission Correctly Concluded That Substantial Evidence In
The Record Supported The Board's Decision.
Weaver argues that the Board made a legal error when it "determined that
Weaver's lack of improvement despite treatment undermined his proof of causation."
As to the facts, he contends that his symptoms "did improve with appropriate treatment"
because his pain decreased after the surgery such that he reduced his medication dosage
by half. He argues that "the Board required [him] to show improvement of his symptoms
in order to meet his burden regarding causation" and that this is erroneous because some
work-related conditions by their nature will never improve, making improvement
irrelevant to causation.
Weaver misreads the Board's decision. The Board's statement in essence
summarized what several doctors had said. Weaver underwent multiple treatments for
his back pain, some of which had a diagnostic function as well. For example Dr. Trescot
explained how medial branch blocks are used to diagnose facet-related pain. Weaver's
responses to the different treatments - first reporting improvement and then reporting
little or no improvement in his condition - made the pain difficult both to treat and to
diagnose. Without a good idea of what underlying condition caused the pain, it was
difficult for the doctors or the Board to determine causation. Weaver's responses to
-21- 7454
----------------------- Page 22-----------------------
different treatments prompted Dr. Scoggin to label Weaver's pain "multifactorial" and
conclude that the main reason for the pain was Weaver's degenerative changes in his
spine. Dr. Scoggin based this opinion on the following factors: Weaver (1) had some
response (mostly transitory) to many types of treatment, (2) had no complete relief with
any one type of treatment (not even the surgery), and (3) was unable to identify a specific
activity that might have caused a change in his lower back (a disc herniation, for
example) that would explain the increased pain. Additionally, Weaver reported some
improvement after the surgery even though his records did not consistently document
symptoms associated with lumbar spinal stenosis.
Weaver's theory is that spinal stenosis was the real cause of his pain and
that the heavy labor he did in 2013 was the substantial cause of this condition.
Dr. Scoggin agreed that "wear and tear" can be a factor in causing spinal stenosis, but
he did not think there was "anything that's quantifiable or definable" to determine what
part of the stenosis was caused by Weaver's job. Dr. Scoggin listed a number of other
factors that could contribute to spinal stenosis, including a traumatic event, age, and
genetics. He also testified that Weaver's weight was a contributing factor to the back
condition, although he did not identify that factor specifically with the spinal stenosis.
Dr. Scoggin identified the earlier trauma Weaver experienced in "two big accidents" (the
1993 motor vehicle accident that "tore [Weaver's] aorta" and the later accident that
resulted in removal of Weaver's spleen) when listing possible causes of the degenerative
changes in Weaver's spine.
As to Weaver's contention that the Board erroneously determined his
condition did not improve with any treatment, substantial evidencein the record supports
the Board's decision. Although the medical records indicate that Weaver's prescribed
doseofnarcotics decreased following surgery, the pain level he reported after thesurgery
was similar to or higher than pain levels he had reported earlier in his treatment. In
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----------------------- Page 23-----------------------
August 2013 Weaver reported to Dr. Restad pain that was three out of ten. In late 2014
Weaver reported to Algone an average pain level of five. In May 2017, more than ten
months after the surgery, Weaver reported an average pain level of three to five, with
medication. This is not a dramatic improvement over a reported average of five earlier.
And according to Dr. Teed, Weaver reported that the surgery had reduced sharp pains
in his back but that ongoing dull pain continued to be disabling.
Weaver discusses past Board decisions in which Dr. Radecki's opinions
were given little weight, but we agree with ARCTEC that the Board can decide in an
individual case that Dr. Radecki's opinions are persuasive and entitled to substantial
25 As a general matter, if an employer's evidence is sufficient to rebut the
weight.
presumption and if the Board later decides that evidence is entitled to more weight, then
substantial evidence in the record supports the Board's decision.26 Because the Board
gave the most weight to Dr. Radecki's and Dr. Scoggin's opinions, those opinions
provided substantial evidence to support the Board's decision.27
25 See AS 23.30.122 ("The board has the sole power to determine the
credibility of a witness. A finding by the board concerning the weight to be accorded a
witness's testimony, including medical testimony and reports, is conclusive even if the
evidence is conflicting or susceptible to contrary conclusions.").
26 See Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004) ("The evidence
that was sufficient to rebut the presumption of compensability was also sufficient to
support the [B]oard's determination that [the claimant] failed to show by a
preponderance of the evidence that her injury was work-related.").
27 We reject Weaver's argument that the Board failed to make adequate
findings about inconsistencies in Dr. Radecki's testimony and about the outcome of
Weaver's surgery. We also reject his argument that the Board was required to make
further findings than it did about the lay testimony. In our view, the Board's findings
were more than adequate to permit our review.
-23- 7454
----------------------- Page 24-----------------------
C. The Board Did Not Violate Weaver's Due Process Rights.
In Commercial Union Cos. v. Smallwood we considered whether an
employer had waived its right to cross-examine a claimant's doctors about their medical
28
opinions. The employer had the doctors' written reports at least 30 days before the
29
hearing but had not deposed the doctors. Relying on an earlier case, we held that in the
absence of a Board regulation delineating when a party waived cross-examination of a
medical opinion's author, the employer had not waived his right to cross-examine the
30
doctors. The Board later adopted a regulation about cross-examining the authors of
31
medical opinions.
It is undisputed that Weaver did not waive his right to cross-examine either
Dr. Marble about his EME report or Dr. Johnston about his concurrence in that report.
In its written decision, the Board decided it would exclude these reports from its own
32
consideration but did not strike them from the record. On appeal to the Commission,
Weaver argued that theBoardviolated his due process rights as recognized in Smallwood
because the Board's decision relied on the opinions of Drs. Scoggin, Radecki, and Teed,
all of whom had in turn relied on the opinions of Drs. Marble and Johnston, the doctors
he had not been able to cross-examine. The Commission decided that "none of these
28 550 P.2d 1261, 1264-67 (Alaska 1976).
29 Id. at 1262-63.
30 Id. at 1264-66 (citing Emp'rs Commercial Union Ins. Grp. v. Schoen, 519
P.2d 819, 823-24 (Alaska 1974)).
31 8 AAC 45.052.
32 Because the Board does not require the parties to file witness lists until
"five working days" before a hearing, the parties may not k now until shortly before a
hearing whether they will have the opportunity to cross-examine doctors.
8 AAC 45.112.
-24- 7454
----------------------- Page 25-----------------------
doctors based their findings of medical stability solely on Dr. Marble's report or on
Dr. Johnston's 'check-the-box' form," viewing any reference to Dr. Marble's report as
"incidental" to the other doctors' conclusions.
Weaver argues that the Commission's decision was erroneous and repeats
his argument that the Board violated his right to cross-examination. ARCTEC contends
that Weaver's due process rights were adequately protected by the Board's exclusion of
those medical reports from its own decision making and by Weaver's ability to cross-
examine both Dr. Scoggin and Dr. Radecki. In reply Weaver points out that Dr. Scoggin
used Dr. Marble's examination date as the date of medical stability; he contends that he
was unable to ask Dr. Marble the basis for his opinion and cross-examine him about
continuing pain. Weaver lists the multiple references Dr. Scoggin made to the excluded
reports and notes that Dr. Radecki and Dr. Teed referred to them as well.
Under the facts of this case, we agree with the Commission that Weaver's
due process rights as recognized in Smallwood were adequately protected. Neither
Dr. Radecki nor Dr. Scoggin relied exclusively, or even primarily, on Dr. Johnston's or
Dr. Marble's excluded opinions. In fact, in his first EME report, Dr. Radecki opined that
Weaver had reached medical stability from the effects of his July 2013 work injury by
November 2013, well before Dr. Marble's January 9, 2014 EME. Dr. Radecki's
identification of November 2013 was influenced by a part of Dr. Johnston's medical
record that Weaver did not object to, specifically a chart note from early November 2013
in which Dr. Johnston discussed with Weaver the possibility of returning to full duty
work if it was available. At the hearing Dr. Radecki indicated his "full agreement" with
Dr. Scoggin and Dr. Marble that "being generous" Weaver was medically stable by
January 9, 2014. Weaver had ample opportunity to cross-examine Dr. Radecki at the
hearing about this opinion and why his opinion about the date of medical stability might
have changed.
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----------------------- Page 26-----------------------
Dr. Scoggin diagnosed Weaver with degenerative changes in his spine and
thought Weaver suffered only a soft tissue injury related to his work for ARCTEC in
July 2013. Dr. Scoggin testified that "soft tissue strains tend to resolve in a period of a
few months," adding that by January 2014 Weaver had been medically stable for "more
than a few months." This testimony implies that Dr. Scoggin, like Dr. Radecki, would
have placed the date of medical stability from the July 2013 injury earlier than January 9,
2014. Weaver had ample opportunity to cross-examine Dr. Scoggin about the basis of
his opinions, and in fact did so. Dr. Scoggin's report and testimony demonstrate that he
independently assessed the medical evidence to give an opinion about medical stability
and did not simply rely on Dr. Marble's excluded EME report to diagnose Weaver or to
estimate the date he became medically stable. We therefore agree with the Commission
that "[w]hile it might have been prudent for ARCTEC" to have presented Drs. Marble
and Johnston as witnesses, Weaver's due process rights as recognized in Smallwood
were not violated because the doctors the Board relied on independently assessed the
medical evidence and reached their own conclusions about medical stability.
Although we affirm the Commission's decision, we note that the process
the Board used here is potentially problematic. Even though Weaver objected to use of
Dr. Marble's EME report and Dr. Johnston's form response at the outset of the hearing,
the Board made no ruling on the objection until it issued its final decision, after the
parties had completed both the hearing on the claim and their written arguments.
Objections to evidence should be decided promptly because admissibility or exclusion
of evidence can affect litigation strategy, including questioning witnesses. Here, for
example, ARCTEC referred to Dr. Marble's report when questioning Dr. Radecki in
spite of Weaver's objection. AndDr. Radecki compared his own examination of Weaver
to Dr. Marble's to illustrate points he was making. The Board should rule on objections
-26- 7454
----------------------- Page 27-----------------------
like Weaver's promptly so that the parties can make informed decisions about presenting
their cases.
Finally, we observe that under Alaska Evidence Rule 703 experts can use
inadmissible evidence to form opinions as long as it is the type of evidence experts in the
field reasonably rely on. While the Board "is not bound by common law or statutory
33 we note that Dr. Scoggin and Dr. Radecki could, consistent with this
rules of evidence,"
rule, use inadmissible evidence to form an opinion about medical stability. While
Evidence Rule 703 "is not intended merely to provide a conduit for the admission of
otherwise inadmissible evidence,"34 in this case Dr. Radecki and Dr. Scoggin did not
merely provide a conduit for Dr. Marble's opinion. Their testimony showed their
independent assessment of Weaver's condition in rendering their opinions.
D. The Commission Correctly Concluded That The Board Properly
Applied Its Regulation About Joinder.
Weaver maintains that the Board should have considered a claim related to
his 2010 injury because he filed a petition to join in October 2014, listing his 2010 and
2011 injuries with ARCTEC; the Board joined the two cases; and the 2014 case number
was designated the master case number. He points out that ARCTEC clearly anticipated
that the 2010 injury would be considered at the hearing because in 2015 it began asking
its doctors to evaluate the effects of the 2010 injury on Weaver's condition.
Additionally, ARCTEC asked Dr. Scoggin to give his opinion about the 2010 injury
when it questioned himat deposition, and Dr. Scoggin indicated then that the 2010 injury
was the substantial cause of Weaver's need for medical treatment. ARCTEC responds
that the Board and Commission were correct because Weaver never filed a separate
33 AS 23.30.135(a).
34 Estate of Arrowwood v. State, 894 P.2d 642, 647 (Alaska 1995).
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----------------------- Page 28-----------------------
written claim related to the 2010 injury, asserting that "a claim cannot be joined if it does
not exist."
The Board applied its pleading regulation in this case; that regulation
requires a "separate claim . . . for each injury for which benefits are claimed, regardless
35 The Board also cited its regulation
of whether the employer is the same in each case."
about hearings, which directs that a hearing cannot be scheduled "unless a claim . . . [has
been] filed."36 It is undisputed that Weaver did not file a written workers' compensation
claim for the 2010 injury until after the Board's decision in this case, and that claim was
pending before the Board at the time of oral argument before us. Weaver used the
Board's regulation about joining parties,37 which "does not specify how to join claims
or when joinder of claims is permitted or required."38
We review an agency's interpretation of its own regulation using the
reasonable basis standard and its application of that regulation to the facts of a case for
39 Here, the Board interpreted its regulations as requiring a separate
abuse of discretion.
written claim for each injury, even when the underlying cases had been joined. This is
not unreasonable because it gives all parties notice of precisely what is at issue as they
prepare for a hearing. Likewise, it was within the Board's discretion to refuse to hear
Weaver's claim for compensation related to the 2010 injury and to defer that question
until Weaver had filed a written claimdetailing exactly what he sought. Because Weaver
35 8 AAC 45.050(b)(5).
36 8 AAC 45.070(b).
37 8 AAC 45.040.
38 Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1129 n.28
(Alaska 2008).
39 Eder v. M-K Rivers, 382 P.3d 1137, 1140 (Alaska 2016).
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----------------------- Page 29-----------------------
has now filed a claim related to the 2010 injury, the parties can litigate that claim before
the Board.
V. CONCLUSION
We AFFIRM the Commission's decision.
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