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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

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.  



                                                            -2-                                                           7549
  


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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.  



                                                                                                                                       -3-                                                                                                                                                        7549  


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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  



                                                            -4-                                                           7549
  


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

                                                                                                                               

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  



                                                             -5-                                                           7549
  


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

                                                                                                                                 

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  



                                                             -6-                                                           7549
  


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

                                                                                                                                                                      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.  



                                                                                                                                                                                                                          -7-                                                                                                                                                                                                                               7549  


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

                                                                                                                       

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  



                                                             -8-                                                           7549
  


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

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.  

               



                                                             -9-                                                           7549
  


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

                                      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.                                                                                                                                           



                                                                                                                   -10-                                                                                                                   7549
  


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

                                                                                                                       

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  



                                                             -11-                                                          7549
  


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

                                                                                                                                     

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  



                                                             -12-                                                          7549
  


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

                                                                                                                        

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  



                                                             -13-                                                           7549
  


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

                                                                                                                             

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  



                                                             -14-                                                          7549
  


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

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.  

                                   



                                                            -15-                                                          7549
  


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

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).  

                                                 



                                                             -16-	                                                           7549
  


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

                                 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).  



                                                                       -17-                                                                          7549  


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

                                                                                                        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
  


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

                     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).  

                                                                                                      



                                                               -19-                                                             7549
  


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

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.  

                                  



                                                                      -20-                                                                    7549
  


----------------------- Page 21-----------------------

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).                      



                                                                          -21-                                                                         7549
  


----------------------- Page 22-----------------------

                            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.  

                                                                                    



                                                                                  -22-                                                                                  7549
  


----------------------- Page 23-----------------------

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
  


----------------------- Page 24-----------------------

 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
  


----------------------- Page 29-----------------------

                                                                                                                       

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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Choices
AWAIC