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Tobar v. Remington Holdings LP

Supreme Court of Alaska

August 30, 2019

SILVIA V. TOBAR, Appellant,

          Appeal from the Alaska Workers' Compensation Appeals Commission No. 17-013.

          Silvia V. Tobar, pro se, Anchorage, Appellant.

          Rebecca Holdiman Miller, Holmes Weddle & Barcott, P.C., Anchorage, for Appellees.

          Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.




         A hotel housekeeper injured her back while lifting a pile of linens. Her employer controverted benefits based on an examining doctor's opinion that she was medically stable and that the job injury was no longer the substantial cause of any disability or need for medical treatment. After a hearing, the Alaska Workers' Compensation Board decided that the woman was medically stable as of the date of the doctor's opinion and therefore not entitled to further disability payments or to benefits for permanent partial impairment. The Board also denied further medical care after the date of medical stability. The Alaska Workers' Compensation Appeals Commission affirmed the Board's decision, and the woman appealed.

         Because the Board's selected date of medical stability is not supported by substantial evidence in the record, we vacate the Commission's decision and remand the case to the Commission with instructions to remand the case to the Board for further proceedings.


         A. Facts

         Silvia Tobar worked for Remington Holdings LP as a housekeeper at the Anchorage Sheraton Hotel. With a fourth-grade education and limited English proficiency, she had worked only in housekeeping since her immigration to the United States.

         In late July 2013 Tobar injured her back while lifting bed linens. After a short rest she still had difficulty walking, and an ambulance took her to a hospital emergency room. An MRI showed disc bulging in her lumbar spine; she was taken off work and instructed to follow up with the Alaska Spine Institute.

         Tobar's primary provider at the Alaska Spine Institute was Shawna Wilson, a nurse practitioner, who diagnosed discogenic back pain. Wilson initially prescribed medication, referred Tobar to physical therapy, and took her off work for a month. Tobar attended physical therapy in August and September; Wilson then released Tobar to light duty work with restrictions. But Remington had no light duty work for Tobar to do, so she continued to receive disability benefits.

         In early October Wilson noted that Tobar felt she was "getting depressed because of her pain levels and her inability to work," and later that month Wilson prescribed an antidepressant. On October 11 Tobar had an epidural steroid injection in her lower back, giving her some pain relief.

         Twice that month Wilson answered questions from Remington's workers' compensation insurance carrier. In early October Wilson told the carrier that Tobar had not yet reached maximum medical improvement, and a few weeks later she informed the carrier that she had diagnosed a disc herniation with extrusion at L2-L3, as well as discogenic lower back pain secondary to both the herniation and an L4-L5 annular tear. It was Wilson's opinion that these diagnosed injuries were work-related.

         Tobar lost touch with the Alaska Spine Institute for the last three months of 2013; at her deposition she explained she had not understood that she needed to return to physical therapy after the epidural. Wilson did not see Tobar again until January 2014, when she warned Tobar that any improvement in her condition depended on consistent treatment. Wilson prescribed medication, referred Tobar to physical therapy three times a week for four weeks, and took her off work for another month.

         In February Wilson again responded to questions from the insurance carrier, informing it that Tobar would again be released to light/sedentary duty work on March 1, 2014. But Wilson was "unable to determine" when Tobar could be released to regular work.

         Tobar attended all the prescribed physical therapy sessions in February, reporting to Wilson at the end of the month that her pain had improved. Wilson took Tobar off work for another month, prescribed a second epidural steroid injection - administered on March 13 - and wrote a new prescription for physical therapy. Tobar attended the physical therapy evaluation on March 28; the provider planned one to three sessions per week "for 6-8 weeks for up to 1 hour per session." But Remington controverted all benefits shortly afterwards, and the physical therapy provider discharged Tobar, explaining, "Unfortunately her workman's comp case has been controverted. Thus we will discharge her from skilled PT."

         Remington's controversion was based on a March 20 employer's medical evaluation (EME) by Dr. Scot Youngblood. Dr. Youngblood's EME report shows that he was provided medical records only through October 23, 2013, five months earlier; the insurance carrier's cover letter, dated January 2014, informed him that Tobar's "last visit was October 23, 2013, and she has had no further treatment." Dr. Youngblood learned during the evaluation, however, that Tobar had in fact been receiving further treatment; he wrote that Tobar informed him about the "second epidural steroid injection performed at the Alaska Spine Institute" just seven days earlier; that she had attended physical therapy in February; and "that she is to continue to follow up with the Alaska Spine Institute," where "[additional physical therapy and injections are evidently planned." In his own examination of Tobar, Dr. Youngblood concluded that the July 2013 accident had caused a lower back strain, although he also noted "[p]ain behaviors and symptom magnification." He diagnosed Tobar with degenerative disc disease and said the work injury was not the substantial cause of her low back condition or current need for medical treatment; in his opinion she likely reached medical stability only a few weeks after the accident. Dr. Youngblood also wrote that Tobar had no permanent partial impairment as a result of the injury.

         On April 3 Wilson wrote that Tobar could return to work with restrictions on lifting, standing, walking, and bending/squatting. But she also cautioned: "Must attend physical therapy."

         At this point there is an approximately one-year gap in Tobar's treatment records. In the spring of 2015 she began seeing providers at Providence Family Medicine Center, obtaining mental health counseling there as well as treatment for her back. Dr. Kathryn Turner prescribed medications for chronic back pain and also tried osteopathic manipulative therapy in late May 2015, but she then deferred further therapy until Tobar could obtain insurance.

         In February 2016, after Tobar had apparently been found eligible for Medicaid and spoken with an attorney about her worker's compensation case, she again saw Dr. Turner, who arranged for an updated MRI. The MRI showed mild spinal stenosis at L1-L2 as well as disc-related problems at L2-L3 and L4-L5. Dr. Turner referred Tobar to physical therapy, which she attended a total of 15 times over the course of two or three months. Tobar also received counseling at Providence Family Medicine Center for depression. She and some of her medical providers observed a connection between her mental state and her pain: she reported that counseling helped with pain relief, and at least one doctor referred her to a psychiatrist specifically because he thought improving her mood would help with the pain.

         Dr. Turner and other providers at Providence Family Medicine Center continued to treat Tobar for lower back pain at least through October 2016. Tobar's pain did not significantly improve during that time, however, and in October 2016 she began to see Kimberly Hand, a physician's assistant at Anchorage Fracture & Orthopedic Clinic. Hand believed that some of Tobar's symptoms corresponded to what was shown in her MRI and some did not, and that part of Tobar's problem might be deconditioning.[1]She referred Tobar for physical therapy and massage therapy, and Tobar again attended most of the prescribed sessions. In April 2017 Hand answered "yes" to a question from Remington's attorney asking whether Tobar's symptoms had "remained the same without any improvement for over 45 days."

         Hand referred Tobar to Dr. Jared Kirkham, who performed another epidural steroid injection in February 2017. Dr. Kirkham observed "pain behavior" and additionally noted kinesiophobia as a concern.[2] He did not believe Tobar needed surgery, finding "the structure of [her] spine" to be "actually quite good." He diagnosed chronic low back pain, which he thought might be "myofascial in etiology and certainly perpetuated by [Tobar's] chronic pain syndrome, central pain hypersensitivity, and kinesiophobia." In his opinion, Tobar could return to work "as she tolerates."

         Dr. Kirkham arranged a functional capacity evaluation at Tobar's request. The evaluation showed that she was limited in some areas, such as bending, kneeling, and squatting; the evaluation placed her in the "sedentary" physical demands classification.

         B. Proceedings

         In late February 2015 Tobar, through an attorney, filed a written claim seeking temporary total disability benefits from the date of the injury, medical costs, and permanent partial impairment benefits. In its answer Remington admitted temporary total disability only through August 12, 2013, a date consistent with the estimated date of medical stability in Dr. Youngblood's EME report, as well as medical and transportation costs through the date of his report - with some qualifications. Remington denied that Tobar was entitled to any other benefits and raised as an affirmative defense that she had already been overpaid.

         The parties attempted to settle Tobar's claim without success, and the Board held a hearing in June 2017. Tobar's attorney had withdrawn the year before, and the hearing transcript reflects that Tobar represented herself with the assistance of her sister and a Board-supplied ...

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