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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Beverly J. Sumpter v. Fairbanks North Star Borough School District (8/20/2021) sp-7549
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
BEVERLY J. SUMPTER, )
) Supreme Court No. S-17589
Appellant, )
) Alaska Workers' Compensation
v. ) Appeals Commission No. 18-017
)
FAIRBANKS NORTH STAR
) O P I N I O N
BOROUGH SCHOOL DISTRICT, )
) No. 7549 - August 20, 2021
Appellee. )
)
Appeal from the Alaska Workers' Compensation Appeals
Commission.
Appearances: James M. Hackett, Fairbanks, for Appellant.
Wendy M. Dau, Assistant Borough Attorney, and Jill S.
Dolan, Borough Attorney, Fairbanks, for Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, Carney,
and Borghesan, Justices.
BORGHESAN, Justice.
I. INTRODUCTION
A school aide reported an injury to her cervical spine after she repositioned
a disabled student in his wheelchair. The aide had significant preexisting cervical spine
problems. Doctors disagreed about whether the incident she described could have
aggravated these problems and if so for how long. The Alaska Workers' Compensation
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Board decided that her work was not the substantial cause of her ongoing disability and
need for medical care, and the Alaska Workers' Compensation Appeals Commission
affirmed the Board's decision. The aide appeals, contending that the Board and
Commission applied incorrect legal standards and that the Board failed to make findings
about material and contested issues. We affirm the Commission's decision.
II. FACTS AND PROCEEDINGS
A. Sumpter's Preexisting Condition
Beverly Sumpter began working for the Fairbanks North Star Borough
School District as an intensive resource teacher aide in early November 2013. The job
description stated that the position required "proper lifting skills in order to safely lift a
minimum of 50 pounds regularly." The District did not evaluate Sumpter's physical
capacities prior to hiring her, although it did provide a state-required medical screening
examination about two weeks after she was hired. The examination determined that
Sumpter had no condition "harmful to the welfare of pupils or school personnel."
Sumpter disclosed at this evaluation that she had undergone surgery on her cervical spine
in September 2011.
Sumpter had a history of cervical spine problems before she began working
for the District. She was involved in a motor vehicle collision around 1998. Medical
records related to the accident are not in the record, but at least one doctor involved in
this case considered the accident a significant reason for her ongoing cervical spine
problems. By 2007 Sumpter began to receive medical treatment for neck pain and
tingling in her right arm. After a few years of conservative care, Sumpter underwent a
cervical decompression and fusion at three levels in 2011 when she began to have
difficulties using her arms. Medical records preceding the surgery showed significant
narrowing of the space available for her spinal cord in part of her neck.
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Sumpter evidently recovered well from the surgery and returned to her
household duties. She worked for a few months in the summer of 2013 as an aide to an
older woman, who hired Sumpter directly. Sumpter's duties included lifting the client
"from the bed to the wheelchair, and from the shower back to the wheelchair and back
to the bed." Sumpter estimated that the client weighed about 90 pounds but was able to
assist in these transfers.
B. Sumpter's Injury, Subsequent Treatment, And Medical Evaluations
Notlong after Sumpter's job astheelderlywoman's aideended, theDistrict
hired Sumpter to care for a quadriplegic fifth-grade student who weighed about 70
pounds. In Sumpter's words, she did "everything" for the child. Sumpter was part of
a two-person lift at least twice every day, when the student was transferred from his
home wheelchair to his school wheelchair or needed to be transferred in the nurse's
office. Otherwise Sumpter positioned the student by herself. Sumpter - who admitted
being "a bad historian" - reported she began to experience neck pain on December 18,
1
2013
after she "scooted" the child, using his belt loops, in his wheelchair. She said that
"scooting" the child involved lifting him a little.
The amount and quality of pain Sumpter experienced at the time of the
reported injury were disputed because of inconsistencies between medical records and
lay witness testimony. Sumpter testified that she felt a momentary or transitory stab of
pain at the time she moved the child, something like an electric shock. Her husband
corroborated this testimony. Yet the chart notes from Dr. Grayson Westfall, the first
doctor Sumpter consulted specifically for the injury, indicated the pain began after work,
and another doctor's notes described a headache after school followed by soreness in the
1
The injury date was first reported as December 19, but ultimately Sumpter
said it was December 18.
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neck. In early January Sumpter reported to a different healthcare provider that the pain
"began instantly" and "spread down her neck on both sides."
Sumpter worked for two days following the "scooting" incident but did
only administrative work. December 20, the last day she worked, was the last day of
school before winter break. Sumpter recalled having a headache and soreness, but chart
notes from a physician assistant whom Sumpter saw on December 23 for other health
concerns did not mention any pain complaints. The physician assistant recorded no
problems on Sumpter's physical exam.
On December 24 Sumpter awoke in severe pain and had problems getting
out of bed. She was unable to cook for Christmas and said that even eating was difficult
that day. Jan DeNapoli, a physician assistant who served as Sumpter's healthcare
provider for her neck problems, was on vacation at the time, so on December 27 she
went to Tanana Valley Clinic First Care for pain and saw Dr. Westfall. Dr. Westfall
referred Sumpter to occupational medicine in part to determine whether her problems
were work related. He also ordered x-rays and referred her to physical therapy for six
weeks.
Sumpter followedupwithDr.MatthewRaymondinoccupationalmedicine.
Sumpter complained of neck pain and headache, starting after school on December 19.
The chart note indicated that Sumpter had medication "at home for neck pain." Dr.
Raymond wrote in the assessment section of his notes that Sumpter's "chronic neck
condition" and her previous spinal fusion were "a concern for this particular job"
because of the weight she was required to lift. He wrote that "this job exceeds her
baseline functional capacity with her neck fusion" and observed that even though
Sumpter had been working for the District for less than two months, she was "already
having problems," predicting that "[c]ertainly there will be future exacerbations of the
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neck pain." He concluded, however, "This is not a work-related injury, but an
exacerbation of a pre-existing condition."
Sumpter saw DeNapoli in early January 2014. Sumpter told DeNapoli she
began having neck pain after lifting the student and described the pain as "very similar
to the pain she had before surgery except that she has no upper extremity symptoms."
DeNapoli's physical examination showed that Sumpter had movement restrictions and
muscle spasms in her neck, which were worse on the right side. Sumpter wanted to see
if her condition would improve with conservative treatment before getting an MRI, so
DeNapoli referred Sumpter to physical therapy. Sumpter was to follow up with
DeNapoli if her condition did not improve or got worse.
Sumpterunderwent physicaltherapy and chiropractictreatmentthroughout
January 2014. On January 30 the chiropractor recorded that Sumpter was feeling better,
and he completed a "fitness for duty" form for the District, indicating Sumpter could
frequently lift 11-20 pounds but could only occasionally engage in bending, pushing,
pulling, and kneeling. The January 30 visit was Sumpter's last medical care related to
her neck for more than eight months; this gap in treatment is unexplained in the record.
In September 2014 Sumpter began seeing Dr. Milton Wright. Dr. Wright's
notes reflected that she had multiple musculoskeletal complaints, including back and
neck pain, which he treated with osteopathic manipulative therapy and medication.
Sumpter returned briefly to the chiropractor but did not continue chiropractic care.
The District set up an employer's medical evaluation (EME) with Dr.
Charles Brooks, an orthopedic surgeon, in December 2014. Dr. Brooks diagnosed
multiple conditions, including chronic headache beginning in 2007, degenerative disc
disease and degenerative arthritis, pain in multiple locations, depression, and anxiety.
In Dr. Brooks's opinion, "there probably was no injury" in December 2013, but
"[m]ultiple causes contributed to Ms. Sumpter's perceived need for treatment and the
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claimed disability." After noting that Sumpter had "a higher than average propensity to
consume healthcare services," Dr. Brooks wrote that even though there was a "two year
gapin records between December 22, 2011, and December 27,2013,"Sumpter "[a]lmost
certainly . . . continued to receive intermittent treatment during this time." Dr. Brooks
pointed to Dr. Raymond's chart note that Sumpter had medication for neck pain at home
to support this conclusion.
Dr. Brooks's opinion that Sumpter "remained at least intermittently
symptomatic" after her 2011 surgery was supported by "the fact that the degenerative
andstenoticchanges inher cervical spineremaining postoperatively did not improve, but
inevitably gradually worsened during this time," with the fusion placing increased stress
on adjacent vertebraeand accelerating degeneration. Dr. Brooks identified the following
causes as contributing to Sumpter's need for treatment: "residuals" of her neck injury
sustained in the 1998 car accident, degenerativedisc disease, degenerative arthritis of her
cervical spine, "acceleration of the degeneration due to chronic smoking and the three
level cervical fusion," sleep position, "avocational and occupational activities," and
"psychological problems."
In giving an opinion about the relative importance of different causes, Dr.
Brooks separately discussed several conditions. He indicated it was unclear what type
of headaches Sumpter suffered from, but he considered the headaches she complained
of after December 2013 to be essentially the same type of headache, with the same cause,
as the headaches reported from 2007 onward. He thought Sumpter's neck pain was
related to her degenerative arthritis and disc disease, but that depression and anxiety
played a role as well.
Dr. Brooks thought Sumpter's upper back pain was referred from her
cervical spine and that her shoulder pain could either be referred pain or pain from
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2
"intrinsic shoulder pathology." Finally, Dr. Brooks said that Sumpter's medical records
showed other episodes similar to the reported sequence of events in December, when
Sumpter awoke in pain and then sought medical care. He concluded that the substantial
cause of disability "and/or" the need for medical care was Sumpter's "preexisting,
ongoing, and inevitably gradually worsening degenerative and stenotic pathology in her
cervical spine."
Dr. Brooks agreed with Dr. Raymond that Sumpter's neck pain was likely
not the result of a work injury because she first noticed the pain at home. Dr. Brooks
went into considerable detail about inconsistencies in the chart notes of different
providers about how the injury happened and when Sumpter first felt pain. He discussed
the possibility of secondary gain and thought Sumpter showed what he called
"opportunistic misattribution."
When the District asked Dr. Brooks whether Sumpter could continue to
work as an aide, he responded that she could not and elaborated that she "should never
have been hired for this job since it exceeds her physical capabilities." Dr. Brooks
agreed with Dr. Raymond's opinion that Sumpter could " 'expect to have these
[exacerbations] with any strenuous activity at home or work.' " (Alteration in original.)
He noted that Sumpter's assessment of her own capabilities "contradict[ed]" his and Dr.
Raymond's professional opinions, with Sumpter contending that she was "pain free and
strong" before the December "scooting" incident.
In December 2014 Sumpter went to see Dr. Kim Wright, a neurosurgeon,
about her neck pain. Sumpter said her symptoms were worse then than they had been
in January, when she saw DeNapoli. Dr. Wright said Sumpter "obviously [had] suffered
at least a cervical strain injury," but because of her increased symptoms, he thought she
2
Sumpter had shoulder surgery in late 2011, after her neck surgery.
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should have some imaging. X-rays and an MRI were obtained, with the MRI showing
neural foraminal narrowing at the levels above and below the fusion site.
The next month Sumpter saw Dr. Paul Jensen, another neurosurgeon; he
referred her for a nerve root block. After the block Sumpter reported reduced pain in her
right arm. Sumpter continued to get osteopathic manipulative therapy from Dr. Milton
Wright. By June 2015 Dr. Jensen was recommending another surgery.
Sumpter underwent a second independent medical evaluation (SIME) with
Dr. Jon Scarpino, an orthopedic surgeon with experience treating and training athletes,
in July 2017. Dr. Scarpino reviewed records and provided an extensive medical
summary. Dr.Scarpinodiagnosedmultipleconditions, includingchronicpain syndrome,
deconditioning, degenerative disc disease in all areas of the spine, stenosis in the cervical
spine, and a "[r]eported onset of cervical pain" on December 19, 2013.
Dr. Scarpino discussed the different reports of the injury and agreed with
Drs. Raymond and Brooks that whatever prompted the onset of Sumpter's pain, it was
not a work-related accident. Unlike Drs. Raymond and Brooks, however, Dr. Scarpino
did not think Sumpter was precluded from heavy work because of her cervical fusion.
While Dr. Scarpino did not think work was the reason Sumpter had pain complaints, he
stated she had "a reason for the neck pain," which was continuing disc degeneration.
Dr. Scarpino thought Sumpter had suffered, at most, a muscle strain in her
upper back in December 2013, which may have caused neck pain. But he thought such
an injury would have resolved within six weeks with treatment. He did not think this
injury would have combined with Sumpter's preexisting cervical condition to cause any
disability or ongoing need for medical care; he attributed her persistent symptoms to "her
pre-existing condition." He identified Sumpter's "cervical degenerative disc disease" as
the substantial cause of her disability and need for treatment. While Dr. Scarpino
thought Sumpter might benefit from treatment, he did not think any further medical care
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was needed related to the work-related injury. Dr. Scarpino rated Sumpter for a
permanent partial impairment rating, but he did not think the impairment was work
related.
One of the questions posed to Dr. Scarpino was whether "repeated lifting,
or repeated repositioning" of a student like the one Sumpter cared for could "cause
cervical injury, including persistent cervical pain." Dr. Scarpino said that "the position
described would, at most, produce a strain/sprain type of injury to the upper back
musculature and posterior erector chain of muscles." Dr. Scarpino thought it was
possible to eliminate the "described mechanism of injury" as having caused a cervical
injury with persistent and ongoing pain. He added: "The assertion that [Sumpter]
sustained a cervical injury and pain after repetitive lifting or repositioning of a seated 70-
pound student does not correlate with the facts in evidence or the mechanical stresses
developed by such activity."
C. Preliminary Proceedings Before The Board
Sumpter voluntarily resignedherpositioninJanuary2014, aroundthesame
time that a report of injury was filed with the Board. The District paid Sumpter
temporary total disability for about eight weeks, but later claimed it had overpaid
Sumpter because her chiropractor had released her to regular work on January 30.
Sumpter, representing herself, filed a written claimfor a number of benefits
in October 2014. She described the injury mechanism as "re-adjusting a student in his
wheelchair by standing in front of him, lifting him by his belt loops," with a single injury
date. Her claim stated she had "preexisting injuries" to her neck and reinjured or
aggravated it. The District filed a notice of controversion, controverting all benefits and
relying on Dr. Brooks's EME report. An attorney entered an appearance for Sumpter in
late June 2015.
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The Board proceedings were lengthy, so we summarize only portions
relevant to issues on appeal. Sumpter posed two questions to Dr. Scarpino about
repetitive lifting. The District filed a written objection to these questions, asserting that
they were "misleading and mischaracterized the evidence" because Sumpter identified
only a single incident as the cause of her injury. It relied on Sumpter's report of injury,
the written workers' compensation claim she filed, and a statement she made at
deposition to support the objection. The District did not ask for a hearing on the
3 and the Board sent the questions to Dr. Scarpino, who answered them.
objection,
Sumpter successfully pursued an occupational disability claim with the
State PublicEmployees' Retirement Systemwhileher workers' compensation claimwas
pending. She submitted to the Board doctors' statements supporting her occupational
disability claim.
D. Hearing Before The Board
The Board held a hearing on Sumpter's claim on June 21, 2018. Six
witnesses testified: Sumpter, her husband Patrick, and her sister were lay witnesses; Dr.
Raymond, Dr. Brooks, and DeNapoli were the medical witnesses. The Board had the
deposition testimony of Dr. Scarpino and Dr. Westfall as well as depositions of both
Sumpter and Dr. Raymond. Because of the issues Sumpter raises on appeal, we provide
a detailed summary of Dr. Scarpino's testimony.
Dr. Scarpino was deposed before the hearing and also answered
interrogatories. Responding to an interrogatory, Dr. Scarpino disagreed with Dr.
3 A regulation in effect at the time of Sumpter's injury provided that a party
who objected to an SIME question "shall file a petition" to preserve an objection but also
provided that failure to file one did not waive the objecting party's right to have the
Board consider the objection at hearing or to have a separate hearing on the objection.
Former 8 Alaska Administrative Code (AAC) 45.092(h)(5), am. May 12, 2019.
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Raymond's opinion that Sumpter's job with the District exceeded her lifting capacity
following the 2011 surgery. Dr. Scarpino acknowledged that doctors "do not usually
advise patients to go back to very strenuous activities that put high forces on their neck
following cervical fusions," explaining later that engaging in suchactivities "put[s]more
stresses on the adjacent discs" thereby risking accelerated degeneration. Yet he did not
consider Sumpter "to be at higher risk than someone without a fusion in relation to
intermittent shifting or lifting type maneuvers." Dr. Scarpino said Sumpter had not
"report[ed] any previous pain or injuries with the activities carried out."
When presented with the job description for Sumpter's condition, Dr.
Scarpino protested that it was "very vague" because the range of motion in which the
person would be "lifting 50 pounds" is not specified. He thought different ranges of
motion - e.g., from the ground to waist height as opposed to lifting overhead - would
have different effects on the neck, making it hard to know whether the activity in the job
description would actually affect Sumpter. He said that for some ranges of motion he
"would send [a] patient for a job-specific [functional capacities evaluation]."
Dr. Scarpino said the medical literature was "mixed" as to whether
"repetitive lifting maneuvers over a period of time cause asymptomatic [degenerative
disc disease] to become symptomatic." He thought it was important to consider which
part of the spine was engaged in the movement because not all lifting uses neck muscles,
and thus does not increase pressure on cervical discs. He thought that the lifting "like
we have in this case, of a few inches, is not going to put any stress on the neck" because
"the forces stop at the shoulder girdle." He agreed he had not observed the exact
maneuver Sumpter made when she "scooted" the student, but he did not think that
mattered because in his view the movement did not "go to her neck."
When asked whether he was "discounting the possibility that number of
movement [sic] such as that, over time, . . . as a cumulative matter" could cause the
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injury, Dr. Scarpino answered, "We're not talking about cumulative maneuvers here.
We're talking about one maneuver." He said Sumpter discussed only one incident, and
"[t]his one specific incident did not cause any problems with her adjacent level disc
disease." When asked whether it was possible "that this one incident, in the context of
having worked with this student over a . . . course of a couple [of] months, was the straw
that broke the camel's back," Dr. Scarpino said no because he did not think the type of
movement at issue would "influence her neck."
Dr. Scarpino said he could not explain why Sumpter had severe neck pain
on December 24, 2013, but he did not think the increased pain was related to her work.
He also said that in his experience, patients who complained of neck pain after lifting at
work had injured their upper back muscles. He said Sumpter was "destined to have
symptoms sooner or later," but he did not think the "scooting" incident caused her
ongoing symptoms.
DeNapoli opined that the work injury was the main cause of Sumpter's
ongoing problems, saying Sumpter would have been "fine" had she not worked for the
District. She agreed that Sumpter's preexisting cervical condition was a factor in her
ongoing medical problems. DeNapoli was doubtful that Sumpter had the physical
capacities to perform the aide job, although she acknowledged that neither she nor Dr.
Jensen had placed absolute limits on Sumpter when she ended her treatment with them
after the surgery. DeNapoli thought the District should have required some sort of
functional capacities evaluation to be sure that Sumpter could in fact lift the required
amount on a daily basis.
Sumpter's husband and sister testified about their observations of Sumpter,
describing her as fully recovered from the fusion surgery and able to engage in activities
like working on the deck of her house and doing all the housework. They both described
changes they observed after the December "scooting" incident. Sumpter's husband
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confirmed that Sumpter called him on December 18 and that she described an "electric
shock" pain when moving the student.
Sumpter introduced her pharmacy records to show that she had not been
prescribed pain medication for neck pain prior to the December 2013 incident but had
been prescribed medication after a different surgery. The records also addressed the
implication in both the EME and SIME reports that Sumpter must have been suffering
from neck pain before the "scooting" incident because of references to prescriptions for
pain medication in chart notes. Sumpter described in detail the job she had with the
District. She testified she felt a sharp but fleeting pain when she "scooted" the child to
reposition him and that afterwards she felt a little sore but did not initially think much
about it.
Dr. Raymond testified about the type of medical exam Sumpter was
required to undergo for the District because he had done them in the past. He indicated
that the exam is not a fit-for-duty exam. Instead, the exam's emphasis is on safety to
students and other school personnel. Dr. Raymond testified about his December 2013
appointment with Sumpter, mainly relying on the chart note. Dr. Raymond said it was
possible that Sumpter hurt her neck when she was positioning the student as she
described, but he concluded the injury was likely not work-related because she reported
experiencing pain after getting home. He indicated that Sumpter would have felt
immediate pain and reported the pain to him if the lift caused an injury severe enough
to result in long-term pain.
Dr. Brooks testified consistentlywithhisreportandindicated hisagreement
with Dr. Scarpino. Dr. Brooks said he could not "rule out the fact . . . or the possibility
that Ms. Sumpter could have had an exacerbation, i.e., a temporary recurrence of her
chronic intermittent neck pain" after the "scooting" incident, but Dr. Brooks said the
described mechanism was "not likely to cause a neck injury," adding that "not every
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symptom equals an injury." He discussed the issue of increased stresses on and
degeneration of adjacent levels of the spine after a fusion surgery, which he identified
as the cause of her ongoing symptoms.
E. The Board's Decision
The Board decided that Sumpter had not proved that her work with the
District was the substantial cause of her disability or need for medical treatment. The
Board extensively summarized the witnesses' testimony and the parties' arguments. In
its analysis, the Board began by addressing some procedural issues and overruled the
District's objections to the SIME questions about repeated lifting. It ruled that Sumpter
triggered the presumption that her disability and need for treatment were compensable
through her own testimony, DeNapoli's testimony, and the written statement from Dr.
Jensen. The Board then decided the District rebutted the presumption through the
testimony of Dr. Raymond, Dr. Brooks, and Dr. Scarpino "that any work injury was a
sprain or strain and would have resolved quickly" and that Sumpter's "current need for
treatment" was caused by her preexisting degenerative disc disease.
When weighing the evidence, the Board gave the most weight to Dr.
Scarpino's report because he was "independent of both parties." The Board also gave
more weight to Dr. Brooks and Dr. Scarpino because "they did a thorough records
review," emphasizing that it was important that "Drs. Brooks and Scarpino agree with
each other." The Board also stated Drs. Brooks and Scarpino "weighed all the potential
causes" when they opined that Sumpter's preexisting degenerative disc disease and
fusion surgery were the substantial cause of her continuing pain complaints.
The Board gave less weight to DeNapoli's testimony because "she did not
do a records review, and specifically did not review the records immediately after the
work injury before she gave her opinion on causation." It also discounted DeNapoli's
opinion because it was "based on the fact that [Sumpter's] symptoms are similar to her
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pre-fusion status" even though "those original symptoms occurred without a trauma."
The Board gave less weight to the opinions of two doctors who had supported Sumpter's
occupational disability case, Dr. Jensen and Dr. Wright, in part because these doctors did
not weigh all potential causes when forming an opinion about causation. The Board
decided that in comparison to all other causes, Sumpter's "pre-existing degeneration and
cervical fusion is the substantial cause" of her disability and need for medical treatment
and denied Sumpter's claim. Sumpter moved for reconsideration or modification; the
Board granted modification in part on two minor factual errors but denied
reconsideration.
F. Appeal To The Commission
Sumpterappealed totheCommission, which affirmed theBoard'sdecision.
After a lengthy summary of the facts, the Commission rejected various challenges to Dr.
Scarpino's opinion, to the Board's decision not to give weight to the occupational
disability decision, and to the Board's credibility determinations. The Commission
decided that the Board correctly determined that the District had rebutted the
presumption with the opinions of Drs. Scarpino, Raymond, and Brooks. And it
concluded that substantial evidence supported the Board's decision to deny benefits.
Acknowledging theconflictingmedicalopinionsbeforetheBoard, theCommission ruled
that it was the Board's "prerogative" to give most weight to the opinions of Drs. Brooks
andScarpino that the December 2013 incident was not the substantial cause ofSumpter's
disability.
Sumpter appeals.
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III. STANDARD OF REVIEW
"In an appeal from the Alaska Workers' Compensation Appeals
4
Commission, we review the Commission's decision."
We review de novo the
Commission's legal conclusion that substantial evidence supports the Board's factual
5
findings by "independently reviewing the record and the Board's findings."
"Substantial evidence is such relevant evidence as a reasonable mind might accept as
6
adequate to support a conclusion." "Whether the quantum of evidence is substantial is
7
a question of law." "Whether the [B]oard made sufficient findings is a question of law
8
that we review de novo."
IV. DISCUSSION
A. TheCommissionCorrectly ConcludedThat TheDistrictRebuttedThe
Presumption That Sumpter Is Entitled To Compensation.
The Alaska Workers Compensation Act creates a three-step process for
determining whether an injured employee is entitled to compensation for disability or
9
medical treatment. First, the employee must establish a presumption of compensability
by "establish[ing] a causal link" between her employment and her disability or need for
4 Burke v. Raven Elec., Inc., 420 P.3d 1196, 1202 (Alaska 2018).
5 Humphrey v. Lowe's Home Improvement Warehouse, Inc., 337 P.3d 1174,
1178 (Alaska 2014) (citing Shehata v. Salvation Army , 225 P.3d 1106, 1113 (Alaska
2010)).
6 Id. at 1179 (quoting DeYonge v. NANA/Marriott, 1 P.3d 90, 92 (Alaska
2000)).
7 Id.
8 Pietro v. Unocal Corp., 233 P.3d 604, 611 (Alaska 2010) (alteration in
original) (quoting Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006)).
9 AS 23.30.010(a).
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10
medical treatment. Second, if the presumption attaches, the employer may rebut the
presumption "by a demonstration of substantial evidence" that the disability or need for
11 Third, if the
treatment "did not arise out of and in the course of the employment."
employer rebuts the presumption, the Board must then determine whether "the
employment is thesubstantial cause"ofthedisability or need for treatment,12 "choos[ing]
among the identified causes the most important or material cause with respect to the
benefit sought."13
In this case, the Board determined at the second step that the District
rebutted the presumption with three doctors' opinions "that any work injury was a sprain
or strain and would have resolved quickly." The Board also mentioned Dr. Scarpino's
opinion that adjusting the student would not have put forces on Sumpter's neck. The
Commission affirmed, considering these doctors' opinions adequate to rebut the
presumption.
Sumpter argues that the Commission erred in affirming the Board's
decision, contending that the medical opinions proffered by the District were
"insufficient" to rebut the presumption of compensability. She suggests that the Board
should have compared the District's evidence against her own in deciding whether the
District's evidence was substantial enough to rebut the presumption.
We disagree. As the District argues, we have consistently held that at the
first and second stages of the workers' compensation presumption analysis, the evidence
10 Id.
11 Id.
12 Id .
13 Morrison v. Alaska Interstate Constr. Inc., 440 P.3d 224, 238 (Alaska
2019).
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14
is not weighed and is viewed in isolation. Sumpter points out that we have stated, in
determining whether evidence is substantial, that we "must take into account whatever
15 But in those cases we applied the
in the record fairly detracts from its weight."
16
substantial evidence rule to review an administrative agency's factual findings.
Because making factual findings entails weighing conflicting evidence, it makes sense
that substantial evidence review in that context considers the weight of detracting
evidence. But this rule does not neatly map onto the Board's task at the second stage of
the rebuttable presumption analysis, when the Board is not making factual findings.
Instead, the Board at the second stage is deciding only whether the employer has rebutted
the presumption of compensability with evidence that the injury was not caused by
14 See McGahuey v. Whitestone Logging, Inc. , 262 P.3d 613, 620 (Alaska
2011) (citing Stephens v. ITT/Felec Servs. , 915 P.2d 620, 624 (Alaska 1996)). The rule
that the evidence is viewed in isolation is similar to the way we decide whether a genuine
issue of material fact precludes summary judgment: the evidence presented at summary
judgment does not need to meet "the applicable evidentiary standard" and is viewed
making all inferences in favor of the nonmoving party. See Christensen v Alaska Sales
& Serv. Inc. , 335 P.3d 514, 519 (Alaska 2014).
15 Lopez v. Adm'r, Pub. Emps.' Ret. Sys., 20 P.3d 568, 570 (Alaska 2001);
accord Alaska Police Standards Council v. Maxwell, 465 P.3d 467, 473 (Alaska 2020)
(Although substantial evidence is "a deferential standard, we will review the entire
record to ensure that the evidence detracting from the agency's decision is not
dramatically disproportionate to the evidence supporting it such that we cannot
conscientiously find the evidence supporting the decision to be substantial.").
16 Lopez, 20 P.3d at 571-73 (holding that Public Employee Retirement
Board's finding that claimant's disability was unrelated to her work was supported by
substantial evidence); Maxwell, 465 P.3d at 474 (reversing Alaska Police Standards
Council's finding that officer lacked good moral character for lack of substantial
evidence).
-18- 7549
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17
employment. That evidence must be "comprehensive and reliable," but it is considered
18
"standing alone."
The Board's task is to consider whether "a reasonable mind" could
reach the conclusion that the injury is not compensable if that reasonable mind credited
19 Therefore it was not required to weigh the District's evidence against
the evidence.
Sumpter's when deciding whether the former was substantial at the second step of the
analysis.
Sumpter also argues that the Board's second stage analysis was flawed
because the Board "relied on insufficient medical opinions." She contends that the
medical opinions needed to "rul[e] out work-related causes" of her disability in order to
20 she asserts that
rebut the presumption. Relying largely on Huit v. Ashwater Burns, Inc.,
the doctors' opinions were too speculative, and were thus not substantial evidence,
because they were unable to identify the cause of her increased pain in late December
2013. In her reply brief she asserts that the Board needed to consider her repetitive
lifting of the student as a competing cause of her disability.
We reject Sumpter's contention that the Board erred by not considering
repetitive lifting as a competing cause of her disability at the second stage. She waived
consideration of this point by raising it for the first time in her reply brief,21 but in any
17 AS 23.30.010(a).
18 Carlson v. Doyon Universal-Ogden Servs., 995 P.2d 224, 228-29 (Alaska
2000).
19 See Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004) (explaining that
a reasonable mind could rely on medical opinion to decide that medical problem was not
caused by work injury and that this opinion rebutted the presumption).
20 372 P.3d 904 (Alaska 2016).
21 See Barnett v. Barnett, 238 P.3d 594, 603 (Alaska 2010).
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event repetitive lifting at work is an alternative injury theory, i.e., a different way that
work would cause Sumpter's disability. Sumpter needed to file a claim based on that
22 And as we discuss in more detail
injury theory in order for the Board to consider it.
below, Sumpter did not squarely present this alternative injury theory to the Board, so
the Board was not obliged to address it.
We also reject Sumpter's argument that the medical opinions relied on by
the Board were inadequate.23 Sumpter's argument stems from changes the legislature
made to the presumption of compensability in 2005. Before 2005, an employee had to
show that work was "a substantial factor in causing the disability" to receive
compensation.24 The legislature then changed the law to provide that an employee must
prove that work is "the substantial cause of the disability."25 With these amendments,
the legislature also required the Board to "evaluate the relative contribution of different
causes of the disability" in deciding whether employment is the substantial cause.26 We
analyzed these amendments in Huit, but because the claimant in that case did not have
a preexisting condition that might be a competing cause of his injury, we did not decide
22 See Groom v. State, Dep't of Transp., 169 P.3d 626, 628-31 (Alaska 2007)
(detailing differences in workers' compensation claims that alleged different injury
theories).
23 Sumpter's attacks on the opinions of the doctors the Board relied on tend
to conflate the second and third steps of the presumption analysis. Because many of her
attacks against these opinions entail weighing them against each other and other evidence
in the record, we address all of those criticisms in deciding at the third stage whether the
Board's decision is supported by substantial evidence.
24 Huit, 372 P.3d at 907.
25 Id. at 908 (quoting AS 23.30.010(a)).
26 Id. at 907.
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whether these amendments altered the standards for evaluating the employer's evidence
27
at the second step of the presumption analysis.
However, we did observe that
28
"something cannot be 'the substantial cause' of a disability if it is not a cause at all."
In other words, if an employer's evidence is sufficient to rebut the presumption that work
is a substantial factor in causing the disability, that will always be enough to show that
work cannot be the substantial cause of the disability.
We applied this logic in Weaver v. ASRC Federal Holding Co., a case
similar to Sumpter's because it involved possible aggravation of an underlying spine
29 We acknowledged that our decision in Huit left open how the 2005
condition.
amendments affect the second stage of the presumption analysis when there is a
competing cause, but declined to decide the issue "because [the employer] offered
30 "Because
substantial evidence that rebutted the presumption under pre-2005 case law."
[the employer's] evidence rebutted the presumption that work was a substantial factor
in causing the disability, it necessarily rebutted a narrower presumption that work was
31
the substantial cause."
As in Weaver, we decline to address the effect of the 2005 amendments on
the rebuttal stage because the District's evidence is sufficient to rebut the presumption
under the pre-2005 standard. The medical opinions the Board cited were evidence
which, if believed, would exclude work as a substantial factor in causing the disability.
27 Id. at 917-20.
28 Id. at 919.
29 464 P.3d 1242, 1252 (Alaska 2020).
30 Id.
31 Id. at 1252-53 (citing Huit, 372 P.3d at 919).
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In order to rebut the presumption under the pre-2005 standard, an employer
had to present substantial evidence that either (1) "provided an alternative explanation
excluding work-related factors as a substantial cause of the disability," also called
"affirmative evidence"; or (2) "directly eliminated a reasonable possibility that
32
employment was a factor in causing the disability," also called "negative evidence."
Here, the District provided both kinds.
First, the District presented affirmative evidence quite similar to the
evidence we deemed substantial in Weaver. There we held that a doctor's opinion that
the employee "had degenerative disc disease that preexisted the 2013 injury report
together with his opinion that [the employee's] continuing pain could be attributed to
psychosocial factorsprovidedan explanationthatifbelievedwouldexcludework-related
33 The evidence cited by the Board in this case is
factors as a substantial cause."
comparable. Dr. Scarpino opined that Sumpter suffered at most a muscle strain in her
upper back in December 2013 - not damage to her spine - which may have caused
temporary neck pain but would have resolved within six weeks with treatment. Dr.
Brooks agreed with this opinion, and Dr. Raymond gave a similar assessment. The
doctors also indicated that Sumpter's degenerative disc disease caused her persistent
symptoms. These opinions are affirmative evidence that work did not cause Sumpter's
pain complaints: an alternative explanation that, if accepted, would exclude work as a
substantial factor in Sumpter's continuing disability and need for medical treatment. A
strain that resolves within weeks cannot be a cause of pain, disability, or need for
medical care years later, but degenerative disc disease can. The three doctors' opinions
32 See Huit , 372 P.3d at 906-07 (first quoting Tolbert v. Alascom, Inc. , 973
P.2d 603, 611 (Alaska 1999); then quoting Veco, Inc. v. Wolfer , 693 P.2d 865, 872
(Alaska 1985)).
33 Weaver, 464 P.3d at 1253.
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are exactly the type of opinion evidence that employers used to rebut the presumption
of compensability before the 2005 amendments changed the causation standard for
compensability.34
Second, Dr. Scarpino's testimony rebutted the presumption using negative
evidence as well. Dr. Scarpino testified that Sumpter's repositioning the student was not
the type of movement that would engage the neck muscles and cause increased
degeneration, making it impossible for her work activities to be a cause of her neck
complaints. This opinion, if believed, would eliminate any reasonable possibility that
her work was a factor in causing the disability. Because this evidence rebuts the
presumption of compensability under the "broader" pre-2005 standard, we affirm the
35
Commission's ruling at the second stage.
B. The Commission Correctly Concluded That Substantial Evidence In
The Record Supports The Board's Conclusion That Employment Is
Not The Cause Of Sumpter's Disability And Need For Medical
Treatment.
Sumpter also argues that the Commission erred in affirming the Board's
weighing of the evidence at the third stage of the presumption analysis. Relying on the
36 37
rule from Universal Camera Corp. v. NLRB,
which we have applied in some cases,
34 See Robinson v. Municipality of Anchorage , 69 P.3d 489, 495 (Alaska
2003) (holding that e mployer rebutted presumption with doctor's o pinions that work-
related back strain would have resolved quickly and that back complaints were result of
non-work-related car accident).
35 See Weaver, 464 P.3d at 1252-53 ("Because [the employer'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.").
36 340 U.S. 474 (1951).
37 See, e.g., Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d
(continued...)
-23- 7549
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she maintains that the Board and Commission "overlook[ed] a significant body of
evidence fairly detracting from the weight of the evidence."
The evidence Sumpter points to is not so compelling that we are convinced
the Board's conclusion lacks substantial evidence to support it. The Board gave
relatively less weight to Sumpter's testimony and the testimony of her family members
about the onset and symptoms of her injury because it found Sumpter to be "not a good
historian." The Board gave more weight to Dr. Brooks's and Dr. Scarpino's opinions
because they reviewed extensive medical records. It gave the most weight to Dr.
Scarpino's opinions - which maintained that the lift Sumpter described could not have
injured her cervical spine but would only have caused a muscle strain that would quickly
heal - because of his independence. The Board also thought it important that Dr.
Scarpino and Dr. Brooks "agree[d] with each other." The Board discounted the medical
opinions supporting Sumpter's claims. In particular, it found DeNapoli's opinion less
credible because it was "based solely on what [Sumpter] has told her," which the Board
found "troubling" because Sumpter's medical history "is unreliable and has changed
over time." It decided that in comparison to all other causes, Sumpter's "pre-existing
degeneration and cervical fusion" were the substantial cause of her disability and need
for medical treatment. The Commission examined Sumpter's arguments related to the
Board's findings and decided that substantial evidence supported the decision.
Sumpter's arguments can be roughly divided into three groups: (1)
arguments about the Board's treatment of lay testimony; (2) arguments about asserted
weaknesses and contradictions in the medical evidence; and (3) arguments about
37 (...continued)
624, 635 n.40 (Alaska 2011).
-24- 7549
----------------------- Page 25-----------------------
Sumpter's alternative theory that repetitive lifting, rather than the single "scooting"
incident, caused her disability. We address each in turn.
1. Arguments about lay testimony
The Board is responsible for determining witness credibility and weighing
38
the evidence in a workers' compensation case.
The Board here stated that Sumpter's
admission that "she is not a good historian . . . impact[ed] her credibility." It then
identified discrepancies in Sumpter's testimony related to the injury, noting that she had
changed her descriptions of the way the injury happened, the immediacy of her pain, and
the type of pain she experienced. The Board effectively found that Sumpter was not
credible. And because the Board decided Sumpter was not credible, it gave less weight
to testimony from witnesses who relied more on Sumpter's accounts of the injury than
on review of written medical records. There was nothing improper in the Board doing
so.
Sumpter's assertion that no doctor has found malingering in her case does
not mean the Board was required to find her credible in all respects. The Board deemed
her explanations about causation to be inconsistent enough to undermine her credibility
about causation; this determination is within the Board's authority. No one doubted the
severity of her pain, and Dr. Scarpino indicated that she was disabled. But Dr. Brooks
thought she might be engaged in "opportunistic misattribution," and while the Board did
not explicitly say so, its decision suggests that the Board agreed with Dr. Brooks on this
point.
38
AS 23.30.122.
-25- 7549
----------------------- Page 26-----------------------
Sumpter argues that the Board failed to follow our decision in Employers
39
Commercial Union Co. v. Libor
by not giving her testimony about her symptoms
decisive weight. But in Libor we merely held that the Board may award compensation
40 We did not hold that the Board must do
based solely on lay testimony about causation.
so.
Sumpter also relies on Smith v. University of Alaska, Fairbanks41 to argue
that the Board improperly ignored "credible lay evidence" about causation when it
discounted the testimony of her husband and sister. But the Board did not explicitly
disregard the lay testimony in this case. Instead, the Board noted its concern that the lay
witnesses' testimony was based in part on information Sumpter conveyed to them and
repeated its finding that Sumpter was "not a good historian." This indicates that the
Board did not give her family's testimony about the onset of her pain much weight
because its foundation was untrustworthy and contradictory. In fact, at the hearing
Sumpter contradicted the testimony her sister had just given about Sumpter's pain
complaints in December. In light of the numerous inconsistencies in Sumpter's accounts
of the injury we see no error in the Board's treatment of the lay testimony.
2. Arguments about medical evidence
The Board's conclusion that Sumpter's disability was not caused by her
employment rested primarily on the opinions of Dr. Brooks and Dr. Scarpino. Sumpter's
attack on this conclusion emphasizes differences between Dr. Brooks's and Dr.
Scarpino's opinions. Although true that Dr. Brooks and Dr. Scarpino did not agree on
every point, their opinions overlapped on salient issues related to diagnosis and
39 536 P.2d 129 (Alaska 1975).
40 Id. at 132.
41 172 P.3d 782, 789 (Alaska 2007).
-26- 7549
----------------------- Page 27-----------------------
causation. Both stated that Sumpter suffered at most a strain or sprain when she
repositioned the student; such an injury would not cause prolonged pain or disability.
Both also stated that the primary cause of her neck pain is her preexisting degenerative
disc disease. Because the main disagreement in the case was causation, the doctors'
agreement on the diagnosis and mechanism of Sumpter's ongoing pain complaints leads
us to conclude there was no error in the Board's finding.
Sumpter argues that the differences in opinion between Drs. Scarpino,
Brooks, and Raymond about the suitability of Sumpter's job in light of her unknown
functional capacities makes the Board's reliance on the parts of these doctors' opinions
that agree with each other untenable. This difference of opinion is not material to the
causation question presented to the Board. Sumpter only presented one injury theory to
the Board: that repositioning the student on December 18 caused her continuing pain
and disability. Whether she had the physical capacities to do the job is not dispositive
of whether this one incident caused her disability.
Drs. Scarpino, Brooks, and Raymond all agreed that the incident did not
cause her ongoing symptoms, and the Board's reliance on those opinions is not flawed
just because the doctors had different estimates of her general capacities. Dr. Scarpino
acknowledged his disagreement with Dr. Raymond's opinion about Sumpter's lifting
restrictions, stating that he did not consider Sumpter "to be at higher risk than someone
without a fusion in relation to intermittent shifting or lifting type maneuvers." Dr.
Scarpino's written report cited an article showing that 81% of patients who had
underdone the same type of surgery as Sumpter "returned to strenuous work or sport
activity" at "2-17 year follow up." Further, Dr. Scarpino explained why this particular
lift would not cause Sumpter's ongoing disability: merely lifting a weight a few inches
at waist level would not engage the cervical spine. In light of the considerable weight
the Board gave to Dr. Scarpino's testimony, we are not persuaded that the disagreement
-27- 7549
----------------------- Page 28-----------------------
between the doctors about Sumpter's physical capacity means the Board's decision is
flawed.
Nor are we persuaded that Dr. Westfall's deposition testimony necessarily
outweighs Dr. Brooks's or Dr. Scarpino's opinion about causation. Sumpter cites Dr.
Westfall's testimony that (1) it is not uncommon to have pain "a couple hours" after a
lifting injury, (2) Sumpter "clearly had a tissue injury" when he examined her, and (3)
a lifting injury could cause cervical pain. But Dr. Westfall referred Sumpter to Dr.
Raymond specifically because Dr. Westfall could not determine whether her neck
complaints were related to her work. The Board was entitled to give more weight to the
opinions of physicians who "did a thorough records review" and were confident in their
own opinions.
Sumpter's documentary exhibits are not so compelling that they make the
doctors' opinions insubstantial by comparison. Sumpter offered a printout of her
prescriptions to show she had not received pain medication specifically for neck pain
during the relevant time before the injury. This evidence was intended to undermine Dr.
Raymond's and Dr. Brooks's opinions that she had ongoing neck pain between her 2011
surgery and the work incident, which she argued contributed to the doctors' conclusions
about causation. But even if true that she was not taking pain medication for her neck
at that time, her evidence does not undermine Dr. Brooks's opinion that degeneration in
Sumpter's cervicalspinewas inevitablefollowing her fusion surgery and was most likely
the main reason for her ongoing symptoms. Nor does it address Dr. Scarpino's opinion
that the type of lifting she described would not activate her neck muscles and therefore
could not be the cause of her neck complaints. Other exhibits Sumpter identifies in her
brief - a copy of the job description for her position with the District, a printout about
ergonomics and musculoskeletal injuries from a federal agency website, and copies of
pages related to chronic pain from the American Medical Association's Guides to the
-28- 7549
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Evaluation of Permanent Impairment - do not convincingly rebut the doctors' opinions
about what did and did not cause her ongoing disability.
Sumpter argues that neither Dr. Scarpino nor Dr. Brooks could identify
with certainty the cause of her increased pain on December 24, 2013 (a little less than a
week after the lifting incident), but she does not explain why they were required to do
so. Both doctors opined that repositioning the student would have had little to no impact
on her neck and underlying degenerative disc disease; those opinions eliminated the
lifting incident as a substantial cause of her continuing pain complaints. The doctors did
not need to provide an explanation for every pain symptom she experienced after she
repositioned the student on December 18. In any event Dr. Brooks explained that people
"not infrequently get their neck in an awkward position . . . when [they]'re unaware
while sleeping" and that such positioning could cause painful compression on the nerve
roots or spinal cord in someone like Sumpter with a narrowed spinal canal or foramina.
Dr. Brooks considered it unlikely that Sumpter would have put her neck "in such an
awkward position while conscious . . . because it hurts." This testimony and Dr.
Scarpino's testimony about which muscles would be activated when repositioning the
child supported the doctors' theory that Sumpter's increased pain on December 24 was
unrelated to her work injury.
Finally, Sumpter argues that theBoard failed to acknowledgeor adequately
address the fact that her husband's and sister's testimony "about the timing and onset of
Sumpter's debilitating chronic pain" undercut themedical testimony the Board relied on.
We see nothing in either her husband's or sister's testimony that invalidates the medical
evidence. Sumpter's husband testifiedthatSumpter reported feelingsomepainwhenshe
repositioned the student, and he supported Sumpter's testimony that the pain became
severe the morning of December 24. Sumpter's sister testified about her observations
of Sumpter during a trip they took together in March 2014 and recounted conversations
-29- 7549
----------------------- Page 30-----------------------
she had with Sumpter about the pain closer to the time of injury. The doctors the Board
relied on concluded Sumpter's greatly increased pain on December 24 was unrelated to
the work injury. And Dr. Brooks stated that not every symptom is an injury, suggesting
that whether Sumpter felt transient pain on December 18 is not sufficient to establish that
she injured herself that day. Finally, both Drs. Brooks and Scarpino opined that if she
did experience pain on that day it was likely a sprain or strain, not an injury to her
cervical spine that would cause pain and disability months and years later. Thus the lay
testimony about pain does not undercut the medical opinions about causation.
3. Arguments about repetitive lifting
Sumpter contends that the Board made a legal error at the third stage
because it failed to consider all of the possible causes of her continuing disability and
need for treatment. The alternative cause Sumpter asserts the Board should have
considered is repeated repositioning of the student over the course of the approximately
seven weeks she worked as an aide. The District responds that Sumpter did not advance
an injury theory related to repeated lifting before the Board and that to the extent
repeated lifting was at issue, Dr. Scarpino's testimony eliminated it as an injury
mechanism.
Sumpter did not clearly articulateto theBoard thecausation theory shenow
proposes on appeal: that repeatedly repositioning the student was a competing cause of
her disability - a mechanism of injury distinct from the single traumatic lift on
December 18. Sumpter did not present repetitive lifting as a separate injury mechanism
at her deposition or in her workers' compensation claim, nor did she file a second report
of injury, alleging she had suffered a different injury than the single incident reported to
-30- 7549
----------------------- Page 31-----------------------
42
the District. Her pre-hearing brief and closing brief each referred, without much
explanation, to a single-page "physician statement" by Dr. Wright prepared for her
occupational disability case, which listed the cause of her disability as "lifting student
4x /day stress cervical spine." And she did pose questions to Dr. Scarpino about
repeatedly repositioning the student, which the Board permitted over the District's
objection. But in light of Sumpter's scattershot approach to briefing and argument, these
oblique references to the issue of repeated lifting did not squarely present an alternative
theory of causation for the Board's consideration.
In any event, Dr. Scarpino rejected this theory of causation in two different
ways. Dr. Scarpino responded to questioning about repeated lifting by pointing out that
Sumpter had never complained about pain from any other time she repositioned the
student. And when asked whether the December 18 maneuver could have been "the
straw that broke the camel's back," Dr. Scarpino reiterated his opinion that repositioning
the student would not impact Sumpter's neck. Because Dr. Scarpino, whose opinions
the Board gave the most weight, effectively ruled out a repetitive lifting theory of
causation, we see no error in the Board's analysis.
The medical opinions the Board found most convincing provided
substantial evidence to support its decision, and the Commission did not err by affirming
that decision.
42 Cf. Groom v. State, Dep't of Transp. , 169 P.3d 626, 628-31 (Alaska 2007)
(detailing differences in workers' compensation claims that alleged different injury
theories).
-31- 7549
----------------------- Page 32-----------------------
C. The Board Made Adequate Findings.
"When an employee makes a claim for compensation, the Board 'may hear
43
and determine all questions in respect to the claim.' "
"The Board need only make
44
"When the Board
findings with respect to issues that are both material and contested."
fails to make a necessary finding, we cannot fill the gap by making our own
45
determination from the record; we must remand to the Board." Sumpter maintains the
Board failed to make adequate findings, identifying six issues the Board did not
explicitly address that were in her view both material and contested. But some of the
identified issues were necessarily decided by the Board's resolution of other issues, and
46 We therefore find no error.
others are not material to Sumpter's right to compensation.
Sumpter contends the Board was required to determine whether Dr.
Raymond was biased because of statements he made during his appointment with her in
December 2013. But this issue is not material because it does not affect Sumpter's right
to compensation. Even if the Board thought Dr. Raymond was biased in favor of the
District, the finding does not impact the Board's ultimate conclusion, which rested
primarily on Drs. Brooks and Scarpino, especially the latter's opinion that the lifting
Sumpter described would not affect the cervical spine.
Sumpter also argues that the Board was required to find whether the
position's job duties exceeded her physical capacity, which several doctors - notably
43 Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d 1270, 1274-75
(Alaska 1999) (citing AS 23.30.110(a)).
44 Id. at 1275.
45 Id.
46 See id. ("An issue is material in a workers' compensation dispute if it
'affect[s] the right to compensation.' " (alteration in original) (quoting MCCORMICK ON
EVIDENCE § 185 (John William Strong ed., 4th ed. 1992))).
-32- 7549
----------------------- Page 33-----------------------
Drs. Raymond and Scarpino - disagreed about. But whether Sumpter was able to do
the job and whether the lift on December 18 caused injury to her cervical spine are
distinct and independent questions. In light of Dr. Scarpino's testimony that
repositioning the student would not affect Sumpter's neck and Sumpter's failure to
present repeated lifting as a different injury mechanism, the issue was not material.
Next, Sumpter asserts the Board failed to make two findings related to the
onset of her pain: (1) whether she told Dr. Westfall "about the jolt of pain" and (2)
whether Dr. Scarpino's testimony about her cervical pain is contradicted by her medical
records. The first point is not material because Sumpter did not see Dr. Westfall for
more than a week after the injury, and it is undisputed that she failed to mention any pain
to the only healthcare provider she saw before seeing Dr. Westfall. The Board's finding
that Sumpter has been inconsistent in her account of the injury therefore stands
regardless of how she described her pain to Dr. Westfall.
And the second assertion - that her medical records contradict Dr.
Scarpino's testimony that Sumpter's cervical headaches did not start on the day of the
"scooting" incident - is simply not supported by the record. The medical records
Sumpter cites are dated after December 24, when she testified she awoke in considerable
pain. Both Dr. Brooks and Dr. Scarpino discounted repositioning the student as the
cause of Sumpter's pain on December 24. As we explained earlier, these doctors both
said repositioning the student would not have caused the increased pain she felt on
December 24. So there is no inconsistency to resolve.
Thelast two issues Sumpter identifies arewhether repositioning thestudent
made Sumpter's preexisting degenerative disc disease symptomatic and whether her
"severe cervicogenic headaches originated in the cervical area." The Board's decision
to credit Dr. Scarpino's testimony, including his opinions about causation, necessarily
decided these issues adversely to Sumpter. Dr. Scarpino testified that repositioning the
-33- 7549
----------------------- Page 34-----------------------
student would have no impact on Sumpter's disc disease because the maneuver would
not engage her neck and therefore could not cause the disc disease to become
symptomatic. He indicated that any strain or sprain injury she had would have been in
her upper back. Whether Sumpter's headaches originated in the cervical area was
immaterial to the question of causation because nothing in the opinions the Board
credited connected the headaches to repositioning the student.
We conclude the Board made adequate findings to permit our review of its
decision.
V. CONCLUSION
We AFFIRM the Commission's decision.
-34- 7549
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