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Evelyn Q. Rivera v. Wal-Mart Stores

February 11, 2011


Appeals Commission No. 09-005 Supreme Court No. S-13747 Alaska Workers' Compensation Appeal from the Alaska Workers' Compensation Appeals Commission, Kristin Knudsen, Commission Chair.

The opinion of the court was delivered by: Fabe, Justice.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail


Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers, Justices. [Christen, Justice, not participating.]


Evelyn Rivera twice injured her back while working at Wal-Mart. After initially paying workers' compensation benefits to her, Wal-Mart filed a controversion because its physician thought that she had suffered only a temporary aggravation of a preexisting low back condition that should have healed by the date of controversion.

After a hearing, the Alaska Workers' Compensation Board denied Rivera's claim. She appealed to the Alaska Workers' Compensation Appeals Commission, arguing that the Board failed to make findings on material issues and did not evaluate the lay testimony she presented. The Commission affirmed the Board's decision. Because we find no error in the Commission's decision, we affirm.


Evelyn Rivera worked at Wal-Mart in Anchorage beginning in 2002. She had at least one episode of back pain that prompted her to seek medical attention before she began working at Wal-Mart, but she worked there without significant back pain for about three years. Rivera's first position at Wal-Mart was a stocker on night shift. She later transferred to a day-time position in the baby department, where she broke down pallets of merchandise, including cribs and baby furniture. She again changed duties in late 2005, moving to a processing position, which entailed breaking down pallets of merchandise, checking prices, hanging clothes, and moving racks of clothing onto the floor. She worked other positions, such as cashier, on an as-needed basis.

On September 3, 2005, Rivera was assigned to work at a store baby shower promotional event. She moved tables and chairs to set up for the event and also retrieved a crib. She experienced some pain while setting up. She had more pain as she bent over to cut a cake and asked a coworker to finish cutting the cake. When she later bent over to serve a soda to a child, she felt pain in her back and right leg all the way down to her ankle; for a short period of time she was unable to stand up. She took over-the-counter pain medication that night for the injury, but it did not relieve her pain. She went to the Elmendorf emergency room on September 6. The doctor there gave her prescription pain medication and told her to see her family physician. Rivera saw Dr. Carol Grobner later that month; Dr. Grobner referred her to physical therapy and prescribed anti- inflammatory medications. Rivera was initially restricted to light-duty work, but she asked to go back to regular-duty work in October 2005. On October 30, 2005, a physician's assistant released her to work without limitations.

Rivera had an episode of back pain in January 2006 that prompted her to go to the emergency room again; according to the medical record from her visit, she was "unsure" of what occurred to cause the pain. In May 2006 Rivera reported a second work-related injury. She was working in the garden department and performed a series of tasks that injured her back. First, she and another employee moved racks of plants to the floor. She then assisted a customer by getting a pet carrier from an overhead shelf. Finally, she was cashiering and had to scan a bag of rocks. She felt extreme pain in her back and sought medical care for it.

Rivera was treated with a combination of medication and physical therapy. Imaging studies showed disc dessication; some annular tears; and facet hypertrophy, an arthritis-type condition, at many levels in her lower back. In October 2006 Rivera's treating doctors referred her to a pain clinic, where she saw Susan Klimow, M.D. Dr. Klimow tried treating her with facet blocks to relieve her pain, but Rivera did not respond to the injections. Dr. Klimow restricted Rivera's work activities to the sedentary level because of Rivera's symptoms and prescribed aquatic physical therapy because Rivera had not shown improvement with regular physical therapy. Dr. Klimow also performed an electrodiagnostic study of Rivera's right lumbosacral paraspinal muscles; the study results were normal. Dr. Klimow referred Rivera to a neurosurgeon to see if Rivera might benefit from surgery because her pain was not responding to the different treatments Dr. Klimow had tried. The neurosurgeon concluded that Rivera's back pain "seem[ed] most consistent with muscle strain." He did not recommend surgery but thought she should continue with conservative treatment.

Rivera was fired from her job at Wal-Mart in January 2007 for taking too long on her breaks. Rivera said that she took longer breaks than permitted because of her back pain, but her account was disputed at the workers' compensation hearing. WalMart continued to pay for medical care related to Rivera's back after she was fired, but it did not pay any type of disability benefits to her at that time.

Wal-Mart arranged an employer's independent medical evaluation (EIME) with Marilyn Yodlowski, M.D., an orthopedic surgeon, on April 18, 2007.

Dr. Yodlowski's report concluded that Rivera had "[d]egenerative disease of the lumbosacral spine including degenerative disc disease and facet arthropathy."*fn1 Dr. Yodlowski agreed that Rivera had suffered a work-related injury but thought that the injury was a strain or sprain that had resolved no later than three months from the date of the last injury. Dr. Yodlowski stated that the earlier injury was not a substantial factor in Rivera's ongoing pain complaints and that the later injury was not the substantial cause of her disability.*fn2 Dr. Yodlowski also thought that both injuries had resolved by the time of the examination, that Rivera was medically stable for the conditions related to the work ...

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