2009-122. Evelyn Q. Rivera Appellant vs. Wal-Mart Stores Inc. American Home Assurance Co. and The Frank Gates Co. Appellees.

• Case Date: December 15, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-122. Evelyn Q. Rivera Appellant vs. Wal-Mart Stores Inc. American Home Assurance Co. and The Frank Gates Co. Appellees Alaska Workers' Compensation Appeals Commission Evelyn Q. Rivera, Appellant, vs. Wal-Mart Stores, Inc., American Home Assurance Co., and The Frank Gates Co., Appellees.Decision No. 122 December 15, 2009AWCAC Appeal No. 09-005AWCB Decision No. 08-0260AWCB Case Nos. 200514544 and 200609056Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 08-0260 issued December 31, 2008, by southcentral panel members Darryl Jacquot, Chair, Howard (Tony) Hanson, Member for Labor, David Kester, Member for Industry. Appearances: Phillip J. Eide, Eide, Gingras and Pate, P.C., for appellant Evelyn Q. Rivera. Michelle M. Meshke, Russell, Wagg, Cooper and Gabbert, for appellees Wal-Mart Stores, Inc., American Home Assurance Co., and The Frank Gates Co. Commission proceedings: Appeal filed January 30, 2009. Late-filed reply brief accepted by order July 20, 2009. Oral argument presented August 13, 2009. Commissioners: Jim Robison, Philip Ulmer, Kristin Knudsen.By: Kristin Knudsen, Chair. Evelyn Rivera worked at Wal-Mart Stores, Inc. (Wal-Mart) from September 2002 until January 2007. In September 2005, she reported that she injured her low back bending to pass a soda to a child. She returned to work after a short absence. She reported another injury to her low back in May 2006. Again, she returned to work, with restrictions, until her employment was terminated in January 2007. Rivera filed a workers' compensation claim for temporary total disability compensation after January 2007 and additional future medical care. Wal-Mart, which had paid brief periods of compensation after each injury, contested the claim on grounds that Rivera was not disabled and that her injuries were not a substantial factor or the substantial cause of a disability or need for medical care. After a hearing at which Rivera, a former co-worker, Rivera's spouse, and her physician Dr. Grobner testified, the board denied her claim.(fn1) Rivera appeals. Rivera argues that the board failed to consider her testimony, and other witness testimony, on the issue of causation. She argues that the Supreme Court's decision in Smith v. University of Alaska, Fairbanks(fn2) compels reversal and a remand for consideration of the lay testimony because the lay testimony tends to contradict the facts or assumptions underlying the expert witnesses' opinions against causation. She also argues that the board lacked substantial evidence to support its findings because it failed to give adequate weight to Dr. Grobner's testimony and ignored conflicts in the testimony of Dr. Klimow and Yodlowski. The appellees contend that the board's findings are supported by substantial evidence in light of the whole record; thus the commission must uphold the board's conclusions. The commission, the appellees argue, may not set aside a board assessment of credibility of the medical evidence. The appellees contend that causation of the initial injury was not an issue the board was required to decide. Instead, they argue, the board acknowledged the testimony of the lay witnesses, but gave the most weight to medical opinion evidence on the issue of the continuing need for medical care and disability. The contentions of the parties require the commission to decide if the board had sufficient evidence to support the board's conclusion that Rivera's employment injuries were not the legal cause of her need for continuing medical treatment. The commission must also decide if the board failed to engage in the necessary analysis of the lay testimony or if the board's characterization of Dr. Grobner's testimony was so faulty as to be reversible error. The commission concludes the board's failure to make explicit findings regarding the lay testimony is not reversible error because the lay testimony did not establish material facts not assumed by the medical evidence. The commission concludes the board fairly considered the medical evidence. The board's reference to possibilities in Dr. Grobner's testimony(fn3) is a fair characterization, given Dr. Grobner's discussion of many factors involved in Rivera's condition, without identifying one as the substantial factor in her continuing pain and need for medical care. The board's characterization illustrates the contrast between Dr. Grobner's testimony and the opinions of Dr. Klimow and Dr. Yodlowski when it weighed the evidence. The commission affirms the board's decision. 1. Factual background. Evelyn Rivera had been treated for back pain at the Elmendorf Air Force Base clinic in 2001, but she testified she had no problems with her back again until September 2005. At that time, she was working part-time at Wal-Mart. She stated that she set up a baby shower at Wal-Mart, and, when it was almost over, she experienced severe back pain bending to give a child a drink of soda. Rivera was treated with physical therapy and pain medication at Elmendorf's clinic. She missed less than a week of work. She returned to work on light duty, then at regular duty as a "processor" in the ladies department. According to Rivera, one day in May 2006 she was told to go to work in the lawn and garden department. She and a co-worker unloaded plants and together moved them in a cart on a ramp in the lawn and garden area. She said pushing the cart of plants hurt her back. Then, she was pulling down a boxed dog kennel for a customer, and this hurt her back. Finally, she was working at the cashier station, and moving a bag of rocks across the scanner caused severe back pain. The next day she worked she had back pain pushing racks of plants (or putting plants on racks) and she reported her injury to her supervisor. Rivera began treatment again at Elmendorf's clinic, but she was referred to Susan Klimow, M.D. She continued to work, missing less than two weeks of work in October 2006. After this, she was given a light duty assignment assisting in the fitting rooms. According to Rivera, her employment was terminated in January 2007 because she was taking more than 15 minutes on her breaks; Rivera claimed she did so because her back hurt when she got up from sitting down. A Wal-Mart personnel manager confirmed that Rivera's employment was terminated after she and co-workers were observed (and videotaped) taking breaks that were too long. Rivera continued to receive treatment through the Elmendorf clinic and Dr. Klimow. Dr. Klimow asked for a neurosurgeon's opinion, so Rivera was examined by Estrada Bernard, Jr., M.D. Dr. Bernard reported April 2, 2007, that Rivera's back pain was "most consistent with muscle strain."(fn4) She had, he said, no indication of radiculopathy or spine instability and he recommended conservative therapy. At Wal-Mart's request, Rivera was examined by Marilyn Yodlowski, M.D., in April 2007. Dr. Yodlowski gave the opinion that Rivera had temporarily exacerbated a preexisting condition, but that these exacerbations had resolved within three months. She also gave an opinion that no further medical treatment was needed, and that Rivera was medically stable. The day prior to the hearing on her claim, she was seen by Dr. Grobner.(fn5) Rivera did not want to return to the physician to whom she was formerly referred by the Elmendorf clinic, Dr. Klimow, because she was not friendly and Dr. Klimow's prescription for anti-depressant medication offended her. 2. Proceedings before the board. Rivera filed a claim on April 3, 2007, for temporary total disability (TTD) compensation from May 29, 2006, and medical benefits. The employer filed a controversion notice, and answered the claim, admitting liability for TTD compensation for May 25, 2006, TTD compensation from October 17, 2006, through October 28, 2006, and, medical and related benefits through April 18, 2007. Rivera's claim was amended to include additional benefits in a February 27, 2008, prehearing conference.(fn6) The board heard Rivera's claim on June 25, 2008. The board identified that the only issues before it were the claim for TTD compensation from January 2007 forward and the need for medical treatment. The board heard testimony from Rivera, Carole Grobner, M.D., Brigitta Castillo (a friend and former co-worker), Roy Johnson (Rivera's spouse), and Tracy Wagoner (a Wal-Mart personnel manager). The board also had deposition testimony from Susan Klimow, M.D., who treated Rivera on referral from the Elmendorf Clinic, and Marilyn Yodlowski, M.D., the employer's medical examiner. The board found that the presumption of compensability was raised by Dr. Grobner's testimony.(fn7) The board found that testimony of Drs. Yodlowski and Klimow rebutted the presumption.(fn8) The board then "review[ed] the record as [a] whole to determine whether the employee has proved his [sic] claim, by a preponderance of the evidence, that the 2005 and 2006 work injuries were a cause of her alleged current disability and need [for] treatment."(fn9) The core of the board's decision is set out in these two paragraphs:

We give the most weight to the opinion of the employee's

...