text:
    Raymond LEAHY, Appellant, v. John CONANT and James Duncan, Appellees.
    Supreme Court No. S-16866
    Supreme Court of Alaska.
    August 16, 2019
    Raymond Leahy, pro se, Wasilla, Appellant.
    Mary B. Pinkel, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellees.
    Before: Bolger, Chief Justice, Stowers, Maassen, and Carney, Justices. [Winfree, Justice, not participating.]
   CARNEY, Justice.

I. INTRODUCTION

An inmate representing himself sued the prison superintendent and chaplain for violating his religious rights by providing an inadequate halal diet, banning scented prayer oils, and not allowing him to have additional religious texts in his cell beyond the prison's limit. He claimed these actions violated the Equal Protection Clause of both the Alaska Constitution and the federal Constitution, and the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). The inmate also sought reimbursement for scented oils that the prison had destroyed. The superior court granted the prison officials' motion for summary judgment and dismissed all of the inmate's claims.

We reverse summary judgment on the inmate's RLUIPA claim regarding the halal diet because the inmate did not receive adequate guidance on how to file affidavits in opposition to the summary judgment motion. We reverse summary judgment on the RLUIPA claim regarding scented oils because the prison officials failed to satisfy their burden of proving that banning such oils was the least restrictive means to address their substantial interest in maintaining prison security and health. We affirm the dismissal of the inmate's claims regarding the religious book limit because the issue is not yet ripe. And we vacate the award of attorney's fees and costs.

II. FACTS AND PROCEEDINGS

Raymond Leahy is a Muslim inmate at Goose Creek Correctional Center (Goose Creek) in Wasilla. He observes Islam's dietary restrictions (called "halal") and incorporates scented prayer oils in his daily prayers. To further his religious studies he requested additional religious texts above the number generally allowed per inmate.

Leahy first requested a diet that included halal or kosher meat in April 2013. Leahy had been receiving a vegetarian diet, but asserted that it caused him gastrointestinal distress. Goose Creek served vegan or vegetarian meals to both Muslim and Jewish inmates due to the expense and challenges of providing a halal or kosher diet.

Leahy claims to have used scented oils in his daily prayers until April 2014. He asserts that unscented prayer oil does not serve his religious needs because the scent is an important component of his prayers. But in April 2014 Goose Creek banned scented prayer oils following documented health concerns. Leahy objected to the ban and requested that his oils be stored until his objections were resolved, but Goose Creek disposed of them in December. The disposed oils cost Leahy a total of $65.70.

In April and May of 2014, respectively, Leahy filed grievances after his requests for a halal meat diet and an exception to Goose Creek's ban on scented prayer oils were denied. After the grievances were denied, he submitted administrative appeals which were also denied.

A. The First Complaint

After he was unable to convince Goose Creek to grant him access to halal meat or scented oils, Leahy filed a complaint in superior court in December 2014 for declaratory judgment, injunctive relief, and damages against John Conant, the Goose Creek superintendent, and James Duncan, the Department of Corrections' statewide Chaplaincy Coordinator (the officials). Leahy argued that they violated his rights under RLUIPA by placing a substantial burden on his religious exercise by denying his request for a halal meat diet and banning scented prayer oil, and that the officials' actions also violated article I, sections 1 and 4 of the Alaska Constitution.

Goose Creek began serving halal/kosher meat meals at about the same time that Leahy filed his complaint. But Leahy objected to the quality and nutritional value of the meals. Leahy claimed that around the same time, Goose Creek introduced pork for the first time into its kitchen. Islamic law considers pork to be "haram" or unlawful; Leahy was concerned that his meals were being contaminated by their preparation in the same kitchen.

B. The Second Complaint

A month after filing his first complaint Leahy filed a second one, asserting that his religious rights were being violated by Goose Creek's limit on religious books and its ban and disposal of scented prayer oils he had already received approval to purchase. He argued that, despite Goose Creek's limit of 11 publications per inmate, he should be allowed to possess ten religious books and ten religious magazines in his cell.

In September 2015 Conant granted Leahy an exception to the scented oil ban, allowing him to store scented prayer oils in the chaplain's closet and check them out for prayers in his cell. But in July 2016, after reports of allergic reactions to the oils by inmates and staff, Conant reinstated the total ban against scented oils. Goose Creek continues to allow the use of unscented prayer oils; the oils are stored and used only in the chapel.

C. Summary Judgment

The officials moved for summary judgment, arguing that neither the Goose Creek halal diet nor the prayer oil policy violated RLUIPA, that the diet did not violate Leahy's equal protection rights, and that the book limitation policy did not violate either RLUIPA or Leahy's equal protection rights.

Leahy filed an opposition to summary judgment the same month. He asserted that he had never previously been informed of Goose Creek's policy allowing inmates only five books, five magazines, and one religious text in their cells or that he needed to fill out a Religious Accommodation Request Form if he wanted an exception from the policy. Leahy also asserted that he would not fill out the required form because he wanted a "fluid" book list that was not determined by the officials' judgment of what was religiously appropriate. In response to the officials' argument that they were entitled to summary judgment with regard to the ban on scented prayer oils, Leahy proposed less restrictive alternatives. He suggested permitting only "milder" scents less likely to irritate others, allowing only one ounce to be stored in an inmate's cell, or having all scented oils stored in the chaplain's office and checked out for use in the chapel. Regarding the halal diet, Leahy disagreed with the facts as the officials presented them and argued that the halal diet rarely had meat, that fruit was unnecessarily exposed to potential contamination, and that the actual menu differed from that on which Goose Creek based its nutritional claims. Leahy did not submit any affidavits with his opposition.

The officials replied to Leahy's opposition. Leahy filed a response to their reply. The officials moved to strike the response because it was not permitted by the rules of civil procedure; the court granted the motion. The court also granted the officials' motion for summary judgment and dismissed the case with prejudice.

Leahy then filed a motion to reconsider the grant of summary judgment. In his motion he included new facts concerning another religious group's use of scented prayer oils at Goose Creek. The officials moved for entry of final judgment. The court denied Leahy's motion to reconsider and entered final judgment in favor of the officials. The court's order stated that "the claims have either been agreed to be moot or [Leahy] did not raise genuine disputes of material facts and [the officials were] entitled to judgment as a matter of law." The court also noted that Leahy's attempt to present new evidence in his motion to reconsider was not appropriate. Following the superior court's final judgment Goose Creek paid Leahy $65.70 for the prayer oils which it had destroyed.

Leahy appeals.

III. STANDARD OF REVIEW

"We review for abuse of discretion 'decisions about guidance to a pro se litigant.' " Abuse of discretion is found " 'when a party has been deprived of a substantial right or seriously prejudiced by the [trial] court's ruling.' We consider 'the particular facts and circumstances of each individual case to determine whether the denial was so unreasonable or so prejudicial as to amount to an abuse of discretion.' " We hold self-represented litigants to a "less stringent" standard than lawyers; so long as the essence of the self-represented litigant's argument can be easily discerned from the briefing, and the opposing party would not be prejudiced by its consideration, it should be considered.

"We review a grant of summary judgment de novo" and "view the facts in the light most favorable to the non-moving party." "Questions of ripeness are reviewed de novo."

IV. DISCUSSION

Leahy argues that the superior court abused its discretion by granting summary judgment to the officials without first providing him necessary guidance about how to present facts in support of his claims. He argues that it also abused its discretion by not adequately considering the facts that he did present. We agree he received insufficient guidance on how to file affidavits in support of his opposition to summary judgment and we therefore reverse summary judgment on his RLUIPA claim regarding an inadequate halal diet. We also reverse summary judgment on his RLUIPA claim regarding the ban on scented prayer oils because the officials did not demonstrate that a complete ban on such oils was the least restrictive means of achieving Goose Creek's security and safety interests. We affirm the dismissal of Leahy's claims regarding the limit on religious books because it is not ripe.

A. Leahy Received Insufficient Guidance From The Superior Court On Filing Affidavits.

Self-represented litigants are given "considerable leeway" when following procedural requirements. " '[T]he trial judge should inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish.' But judges must be careful to maintain their impartiality; they therefore may not act as advocates for pro se litigants on substantive legal issues." What the litigant is attempting to accomplish must be obvious. Judges have a heightened duty to advise self-represented litigants of the importance of submitting affidavits or other evidence to preclude summary judgment, due to its consequences. In determining how much guidance the court should provide, we have noted the even greater disadvantage faced by self-represented litigants who are also incarcerated.

The superior court should have advised Leahy that he needed to submit affidavits when he opposed the officials' summary judgment motion. Although Leahy filed an opposition to summary judgment, it did not satisfy Alaska Civil Rule 56(c) 's requirement for supporting materials - including depositions, answers to interrogatories, or affidavits - to show a "genuine issue as to any material fact." His need for procedural guidance was made more apparent when he filed a response to the officials' reply and further when he attempted to introduce new evidence in a motion for reconsideration.

Leahy's response put the superior court on notice of his "obvious attempt" to obtain supporting materials. He detailed his attempts to obtain affidavits and other documentary evidence from Goose Creek's food service manager and its nutrition consultant to refute facts asserted in the officials' summary judgment motion. Leahy specifically noted that his discovery request was denied by Goose Creek's attorney because "the request wasn't proper because [he] asked [for] it in the form of an affidavit." Leahy was therefore unable to obtain affidavits to support his claim that there were issues of material fact.

Although Leahy filed his response months before the court entered final judgment, there is no indication in the record that the court made any attempt to inform Leahy how to properly file an affidavit or a motion to compel discovery during that time. The affidavits that Leahy did file in support of his opposition to the officials' motion to strike his response to their reply - also filed before the court entered final judgment - were his own statements and were used in nontraditional manners, suggesting confusion as to an affidavit's purpose. It was an abuse of discretion not to provide some guidance to Leahy before granting the officials' summary judgment motion.

B. The Failure To Provide Guidance Was Not Harmless.

Summary judgment against a self-represented litigant must be reversed and remanded if the superior court's failure to provide guidance was harmful error. Failing to advise Leahy how to properly file affidavits was not harmless if the affidavits could have shown a "genuine issue as to any material fact." Leahy had tried to obtain affidavits and documents providing information on the portions of food served, acceptable substitutes, greater detail on the special diet menus; the procedure for handling, storing, and preparing halal foods; and the nutrients contained in the foods in the amount served. Had Leahy been informed on how to file affidavits, he might have established an issue of material fact as to the nutritional adequacy of the halal meals.

Under RLUIPA "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution" unless the burden is the least restrictive means of furthering a compelling government interest. Introducing facts about the nutritional inadequacy of Goose Creek's halal meals may have created an issue of material fact sufficient to meet Alaska's lenient standard to overcome summary judgment and required the court to determine whether the diet substantially burdened Leahy's religious practice. Leahy claimed that the vegetarian diet Goose Creek provided caused him the type of "adverse health effects from a prison diet [that] can be relevant to the substantial burden inquiry." Those health effects presented "a factual issue for the [superior] court to resolve." The superior court's failure to inform Leahy how to file an affidavit prevented him from doing what he was clearly trying to accomplish - to present the court with a genuine issue of material fact. Because this failure was not harmless, we reverse summary judgment on Leahy's RLUIPA claim relating to the halal diet.

C. The Officials Failed To Carry Their Burden To Show That The Ban On Scented Oils Was The Least Restrictive Means Of Achieving The Compelling State Interest.

A successful motion for summary judgment requires the moving party to demonstrate through admissible evidence "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "Once the moving party has made that showing, the burden shifts to the non-moving party 'to set forth specific facts showing that he could produce evidence reasonably tending to dispute or contradict the movant's evidence and thus demonstrate that a material issue of fact exists.' " "Even where affidavits have not been submitted, the trial court still has a duty to consider the evidence referred to by the party opposing summary judgment." Civil Rule 56 requires only " 'a showing that a genuine issue of material fact exists to be litigated, and not a showing that a party will ultimately prevail' at trial." "Alaska's summary judgment standard does not allow trial courts, on the limited evidence presented at the summary judgment stage, to make trial-like credibility determinations, conduct trial-like evidence weighing, or decide whether a non-moving party has proved its case."

RLUIPA prohibits the government from imposing a substantial burden on an inmate's religious exercise, even by a generally applicable rule, unless the government demonstrates that the burden is the least restrictive means of furthering a compelling government interest. The Ninth Circuit has "noted that a burden is substantial under RLUIPA when the state 'denies [an important benefit] because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.' " As the party moving for summary judgment, the officials were required to present a prima facie case that no genuine issues of material fact existed. That showing required them to demonstrate that the scented oil ban did not impose a substantial burden on Leahy's religious exercise, or that if it did, then the ban furthered a compelling government interest and was the least restrictive means to further that interest. Until they did so, Leahy had no burden to counter with contradictory evidence.

The superior court found that the ban on scented oils was a substantial burden on Leahy's religious exercise in violation of RLUIPA. The court also found that Goose Creek had a compelling interest in health, safety, and security that justified the burden. But the court did not consider whether, and Goose Creek did not present any evidence that, the ban was the least restrictive means to achieve its safety and security interests.

The court's finding that the ban placed a substantial burden on Leahy's religious rights required the officials to show that banning all scented oils was the least restrictive means of furthering the recognized government interests. The United States Supreme Court has held that " '[t]he least-restrictive-means standard is exceptionally demanding,' and it requires the government to 'sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].' " If a less restrictive means is available, the government must use it. Summary judgment was only proper if there were no genuine issues of material fact and the officials demonstrated that Goose Creek had used the least restrictive means to address its compelling state interest.

But Goose Creek's banning of all scented prayer oils failed to meet the "exceptionally demanding" standard established by the Supreme Court. Goose Creek based its decision to ban all scented oils and to allow only unscented ones on staff determinations that the scented oils "caused inmates and staff to have allergic reactions" and "could mask smells from marijuana or other prohibited substances." While Goose Creek had tried some alternative approaches without success, the officials neither addressed Leahy's proposed alternatives nor fully explained why an exception for Leahy would compromise these interests. It was the superior court that specifically noted that one of Leahy's proposed alternatives, allowing only milder scented oils, "potentially ... could resolve the concerns of allergic reactions."

This potential resolution presented an issue of material fact. And Goose Creek had previously been willing to accommodate Leahy by storing scented oils in the chaplain's office, but instituted the total ban without fully explaining why its previous accommodation was no longer an option. Absent any explanation or even acknowledgment of Leahy's proposed alternatives to completely banning scented oils, Goose Creek did not meet its burden of proving for purposes of summary judgment that it used the least restrictive means available. It was error to grant summary judgment to the officials on Leahy's RLUIPA claim regarding the scented oils. We therefore reverse the superior court's grant of summary judgment that was in favor of the officials on this issue.

D. Leahy's Challenge To The Book Limit Is Not Ripe.

Leahy claims Goose Creek unlawfully denied him religious texts. But his claim is not ripe. As the officials noted in an affidavit, accommodations are available to inmates who seek religious exemptions from Goose Creek's limit on books in cells. Goose Creek has provided Leahy with a route, and a specific form, to request accommodation of his religious needs. Leahy has not sought such an accommodation. "The ripeness doctrine requires a plaintiff to claim that either a legal injury has been suffered or that one will be suffered in the future." Unless and until Goose Creek denies Leahy's request for accommodation, he does not have a legal claim and the issue is not ripe for decision. We therefore dismiss Leahy's RLUIPA claim regarding religious books.

E. The Award Of Attorney's Fees And Costs Must Be Vacated.

Alaska Civil Rule 79 provides that "the prevailing party is entitled to recover costs ... that were necessarily incurred in the action." "[T]he prevailing party is the one who successfully prosecuted or defended the action and prevailed on the main issue." Because we reverse the grant of summary judgment on Leahy's halal diet and scented prayer oil claims, no party has yet prevailed on those issues. Consequently we vacate the award of attorney's fees and costs against Leahy.

V. CONCLUSION

We REVERSE the superior court's order granting summary judgment on Leahy's halal diet and scented prayer oil claims. We AFFIRM the superior court's order dismissing the religious books claim. We VACATE the award of attorney's fees and costs.

      Because we reverse summary judgment on other grounds, we need not reach the inmate's constitutional claims.

      Leahy proposed that Goose Creek provide kosher meats as an acceptable alternative to halal meats.

      According to Goose Creek's superintendent, the kosher diet with meat cost $8,551.95 per inmate per year, compared to $1,478.25 for the standard diet.

      Leahy signed and mailed his first complaint to the court on August 26, 2014, before the halal meals began including meat. But his complaint was not logged as filed by the court until December 1, 2014.

      See 42 U.S.C. § 2000cc-1(a) (2012).

      See Alaska Const. art. I, §§ 1 (inherent rights), 4 (freedom of religion).

      Greenway v. Heathcott , 294 P.3d 1056, 1062 (Alaska 2013) (quoting Shooshanian v. Dire , 237 P.3d 618, 622 (Alaska 2010) ).

      Id. (first quoting Azimi v. Johns , 254 P.3d 1054, 1059 (Alaska 2011) ; then quoting Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 183 (Alaska 2009) ).

      Adkins v. Stansel , 204 P.3d 1031, 1033 (Alaska 2009).

      Stavenjord v. Schmidt , 344 P.3d 826, 830 (Alaska 2015).

      Olson v. City of Hooper Bay , 251 P.3d 1024, 1030 (Alaska 2011) (quoting McCormick v. Reliance Ins. Co. , 46 P.3d 1009, 1011 (Alaska 2002) ).

      RBG Bush Planes, LLC v. Kirk , 340 P.3d 1056, 1060 (Alaska 2015).

      Greenway v. Heathcott , 294 P.3d 1056, 1071 (Alaska 2013).

      Rae v. State, Dep't of Corr. , 407 P.3d 474, 479 (Alaska 2017) (quoting Breck v. Ulmer , 745 P.2d 66, 75 (Alaska 1987) (internal citation omitted)).

      See Breck , 745 P.2d at 75 (finding judge should have informed self-represented litigant "of the necessity of submitting affidavits to preclude summary judgment").

      See Bauman v. State, Div. of Family &Youth Servs. , 768 P.2d 1097, 1098-99 (Alaska 1989).

      See Breck , 745 P.2d at 75 (finding error, although harmless, where judge should have informed self-represented litigant).

      Alaska R. Civ. P. 56(c).

      See Shooshanian v. Dire , 237 P.3d 618, 624 (Alaska 2010) ("When a pro se litigant is 'obviously attempting to accomplish' an action, the trial court should inform the litigant of the proper procedure for that action." (quoting Breck , 745 P.2d at 75 )).

      Leahy used affidavits to argue that the officials' discovery was "fraught with inaccuracies," to explain what he "deduce[d]" about Goose Creek's meals, to inform the court when filings were mailed to him, to inform the court he served his complaint, and to amend defective service.

      See Breck , 745 P.2d at 75.

      Alaska R. Civ. P. 56(c) (requirements for summary judgment motion).

      42 U.S.C. § 2000cc-1(a) (2012).

      See Christensen v. Alaska Sales & Serv., Inc. , 335 P.3d 514, 520 (Alaska 2014) ("We reiterate that ours is a 'lenient standard for withstanding summary judgment.' " (quoting Shaffer v. Bellows , 260 P.3d 1064, 1069 (Alaska 2011) )).

      Shakur v. Schriro , 514 F.3d 878, 889 (9th Cir. 2008).

      Id.

      Alaska R. Civ. P. 56(c).

      Because nothing in the record suggests that procedural guidance from the court would have led to additional evidence on either the scented oils or religious books claims, it was harmless error as to those claims.

      Alaska R. Civ. P. 56(c) ; see Christensen , 335 P.3d at 517.

      Christensen , 335 P.3d at 517 (quoting State, Dep't of Highways v. Green , 586 P.2d 595, 606 n.32 (Alaska 1978) ).

      Breck v. Ulmer , 745 P.2d 66, 75 (Alaska 1987).

      Christensen , 335 P.3d at 519 (quoting Lockwood v. Geico Gen. Ins. Co. , 323 P.3d 691, 696 (Alaska 2014) ).

      Id. at 520 (internal citation omitted).

      42 U.S.C. § 2000cc-1(a) (2012).

      Shakur v. Schriro , 514 F.3d 878, 888 (9th Cir. 2008) (alteration in original) (quoting Warsoldier v. Woodford , 418 F.3d 989, 995 (9th Cir. 2005) ).

      See Stavenjord v. Schmidt , 344 P.3d 826, 831 (Alaska 2015) (placing initial burden on moving party).

      See id. at 832 ("The prima facie elements of a RLUIPA claim are the 'wish[ ] to engage in (1) a religious exercise (2) motivated by a sincerely held belief, which exercise (3) is subject to a substantial burden imposed by the government.' " (alteration in original) (quoting Abdulhaseeb v. Calbone , 600 F.3d 1301, 1312 (10th Cir. 2010) )).

      The court did consider whether it was the least restrictive means to address health concerns, and found that Leahy's proposal to use different kinds of scented oil "could resolve the concerns of allergic reactions."

      See Holt v. Hobbs , 574 U.S. 352, 135 S. Ct. 853, 863, 190 L.Ed.2d 747 (2015) ("RLUIPA requires us to 'scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants' and 'to look to the marginal interest in enforcing' the challenged government action in that particular context." (alteration in original) (internal quotation marks omitted) (quoting Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 726-27, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) )).

      Id. at 864 (alterations in original) (quoting Hobby Lobby , 573 U.S. at 728, 134 S.Ct. 2751 ).

      Id.

      See id. at 863-64, 866 (finding specific ban on half-inch beard "hard to take seriously" when prison officials allowed - subject to search - quarter-inch beards, longer head hair, shoes, and clothing, but asserted half-inch beards threatened prison's security interest).

      Goose Creek had previously said the security risk of scented oils masking the smell of marijuana would only be an issue if the oils were allowed in inmates' cells, and thus it had allowed oils to be stored in the chaplain's closet.

      We affirm the superior court's finding that Leahy's claims for restitution for his destroyed scented oils is moot because Goose Creek reimbursed him for the oils.

      See Religious Accommodation Request , STATE OF ALASKA DEP'T OF CORR. , Form 816.01a (2014), available at http://www.correct.state.ak.us/pnp/pdf/816.01a.pdf.

      Brause v. State, Dep't of Health & Soc. Servs. , 21 P.3d 357, 359 (Alaska 2001).

      Alaska R. Civ. P. 79(a).

      Matanuska Elec. Ass'n v. Rewire the Bd. , 36 P.3d 685, 690 (Alaska 2001) (citation omitted).


source: Caselaw Access Project

author: MAASSEN, Justice.

license: Public Domain

text:
    Silvia V. TOBAR, Appellant, v. REMINGTON HOLDINGS LP and Liberty Insurance Company, Appellees.
    Supreme Court No. S-17027
    Supreme Court of Alaska.
    August 30, 2019
    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.
   MAASSEN, Justice.

I. INTRODUCTION

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.

II. FACTS AND 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 "[a]dditional 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. 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. 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 - March 20, 2014 - 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 interpreter. No witnesses testified, but both Tobar and Dr. Youngblood had been deposed.

Because Tobar's deposition had been taken almost two years earlier, it contained little information about her condition at the time of the hearing. She had testified that she was able to cook on days when she was not in too much pain, that she was generally able to take care of herself, but that it was hard to bend to change her grandchild's diaper. Her deposition testimony gave few details about her medical care other than that she had seen Dr. Turner and been prescribed medication.

Dr. Youngblood's deposition testimony was consistent with his EME report, though he updated some of his opinions after looking at more recent MRIs and medical records. He diagnosed degenerative disc disease. He agreed that Dr. Kirkham's MRI showed disc bulging and herniation, but in his view it was "very difficult" to tell when it happened. He continued to believe the work injury was not the substantial cause of Tobar's medical issues, that any problem from the work injury had quickly resolved, and that Tobar had no resulting permanent impairment.

The Board decided that Tobar was not entitled to benefits after March 20, 2014, the date of Dr. Youngblood's EME report. Its findings of fact summarize medical evidence but do not assign particular weight to any of it; they do not mention Tobar's March 2014 epidural steroid injection or that month's prescription for physical therapy. The Board found Tobar "credible with regard to subjective descriptions of her pain and the events and circumstances of her injury," but it made no other explicit credibility determinations. It rejected Dr. Youngblood's opinion that Tobar was medically stable in August 2013, writing that "the medical evidence supports [Tobar's] contention that the symptoms continued beyond that [date]."

With regard to temporary total disability benefits, the Board decided that Tobar had attached the presumption of compensability and that Remington had rebutted it. The Board noted that Tobar "suffered from subjective pain not explained by objective findings, and may have been psychologically prone to increased pain perceptions"; it said that "[t]hese facts increase the complexity of the medical facts" such that "expert opinions from medical professionals are needed to address these issues." It then said that (1) no medical opinion after the date of the EME indicated that the disability and need for medical treatment were due to the work injury, and (2) Hand's and Dr. Kirkham's opinions were "generally consistent" with Dr. Youngblood's statements because both of them thought Tobar's pain "was in part psychologically based." The Board concluded, "After the date of Dr. Youngblood's examination, [Tobar] is unable to prove by a preponderance of the evidence that the work injury was the substantial cause of her disability or need for treatment."

Turning to the question of permanent partial impairment, the Board noted that "[m]edical stability is presumed after 45 days without objectively measurable improvement"; that Dr. Youngblood had opined that Tobar "was medically stable two weeks after the work injury"; that Dr. Kirkham had not seen "the need for any further interventional procedures" for Tobar's back; and that nothing in the evidence rebutted the presumption of medical stability. Observing that "[t]he only [permanent partial impairment] rating [Tobar] has received was from Dr. Youngblood, who stated she did not have any permanent impairment related to the injury," the Board concluded that Tobar was not entitled to permanent partial impairment benefits.

On the subject of medical benefits, the Board reiterated its conclusion that Tobar "was medically stable at the time of Dr. Youngblood's examination" and its mistaken finding that "[n]o physician has recommended additional treatment since that time." The Board found that Tobar had not produced the evidence necessary for a claim for palliative care and determined that no medical benefits were "required for the process of recovery ... after the date of medical stability."

Tobar appealed to the Commission, still representing herself and supplying her own interpreter at oral argument. She argued that she remained disabled by the work injury; that the Board had not adequately considered Wilson's opinions; and that she had "unanswered questions" after her attorney withdrew and was under the mistaken impression that the Board had more of her records than it did. She disagreed with Dr. Youngblood's diagnosis and disputed Dr. Kirkham's opinion, which she understood as saying that her "pain was for depression."

The Commission affirmed the Board's decision. It determined that Tobar had not met her burden of proof "because the medical evidence to date demonstrates that the work injury resolved without the need for ongoing medical treatment." Citing the statutory definition of medical stability, the Commission agreed with the Board that Tobar had failed to carry her burden of proof on her claim for temporary total disability benefits because there was no clear and convincing evidence that could overcome the presumption of medical stability. The Commission noted what it believed to be Tobar's failure to "seek medical treatment, including physical therapy," for two years following Dr. Youngblood's evaluation, as well as Tobar's report to Hand in January 2017 that "her lumbar spine symptoms had not changed in the last three years." The Commission concluded that the evidence did not support a claim "for further medical treatment" because no doctor thought Tobar needed surgery or other interventions; Dr. Kirkham's only recommended treatment was for depression, and he "placed no limitations on Ms. Tobar returning to work." The Commission also decided that Tobar had not met her burden of proof for permanent partial impairment, relying, like the Board, on Dr. Youngblood's opinion that her injury had resolved soon after it occurred.

Finally, the Commission observed that Tobar had not provided the Board "with any medical testimony showing a need for medical treatment as a result of the 2013 work injury" and that she was unable to point to any particular medical evidence the Board misunderstood or failed to consider. The Commission affirmed the Board's decision as "supported by substantial evidence in the record as a whole."

Tobar appeals.

III. STANDARDS OF REVIEW

In an appeal from the Commission, we review the Commission's decision. We independently review the Commission's conclusion that substantial evidence supports the Board's findings of fact by independently reviewing the record and the Board's findings. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." "Whether the quantum of evidence is substantial is a question of law." "Whether the [B]oard made sufficient findings is a question of law that we review de novo."

IV. DISCUSSION

A. We Decline To Dismiss Tobar's Appeal.

Tobar argues on appeal that the Board failed to give her the assistance to which she was entitled as a self-represented litigant, primarily by failing to notify her that she could request a second independent medical evaluation (SIME) to help her fill or explain the gaps in the medical records. Remington argues that Tobar's appeal should be dismissed because she waived all issues, though it acknowledges our "policy against finding unintended waiver of claims in technically defective pleadings filed by pro se litigants." Remington contends that Tobar failed to raise below the issues discussed in her brief and that the issues she does discuss are not set out in her statement of points on appeal.

We decline to dismiss Tobar's appeal. We may consider "new arguments or points of error that were neither raised before the trial court nor included in the points on appeal" when "the issue presented is '1) not dependent on any new or controverted facts; 2) [is] closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings, or if failure to address the issue would propagate plain error.' " We have also concluded that pleadings of self-represented litigants should be held to a less stringent standard and that their briefs are to be read generously. The Commission itself uses this rule. Tobar, as a self-represented litigant, argued to the Commission that the Board had not fully considered Wilson's opinions. We conclude that this argument is sufficiently related to the focus of her appeal - the Board's failure to advise her about an SIME - that her SIME argument is preserved for our review.

The Board is authorized under AS 23.30.095(k) to order an SIME "[i]n the event of a medical dispute regarding determinations of causation, medical stability, ... the amount and efficacy of the continuance of or necessity of treatment, or compensability between the employee's attending physician and the employer's independent medical evaluation." The date of medical stability was contested in Tobar's case, and Wilson's opinions from 2013 differed from Dr. Youngblood's on the issue. The Board decided that Tobar had become medically stable in March 2014, making Wilson's disagreement with Dr. Youngblood and her continuing treatment of Tobar in 2014 highly relevant. Concluding that the Board's slighting of Wilson's opinions and the advisability of an SIME are "closely related" issues for purposes of issue preservation, and finding plain errors in important factual findings in the Board's decision - affirmed by the Commission - we also conclude that it "would propagate plain error" if we failed to consider Tobar's appeal in this case.

B. The Commission Erred By Concluding That The Board's Decision Was Supported By Substantial Evidence.

1. The importance of the date of medical stability

Tobar made claims for temporary total disability, permanent partial impairment, and medical benefits. A worker's eligibility for temporary total disability benefits ends at medical stability. "Medical stability" is defined by statute as

the date after which further objectively measurable improvement from the effects of the compensable injury is not reasonably expected to result from additional medical care or treatment, notwithstanding the possible need for additional medical care or the possibility of improvement or deterioration resulting from the passage of time; medical stability shall be presumed in the absence of objectively measurable improvement for a period of 45 days; this presumption may be rebutted by clear and convincing evidence.[ ]

Remington conceded in its answer that Tobar was eligible for temporary total disability benefits through what it claimed to be the date of medical stability: "no later than August 12, 2013, two weeks following the alleged work incident."

Medical stability can also affect a rating of permanent partial impairment. The Alaska Workers' Compensation Act requires that "determinations of the existence and degree" of permanent partial impairment be "made strictly and solely" under the American Medical Association Guides to the Evaluation of Permanent Impairment (the Guides). The Guides uses maximum medical improvement (MMI) as the time when an evaluation of permanent impairment can be done. "The Guides has consistently evaluated different organs and body systems separately, using medical testing and examination to estimate the extent a particular organ or body system impairment limits a person's activities of daily living"; thus an injured worker could reach MMI as to a particular impairment while having not yet reached medical stability. In this case, however, because Tobar claimed disability only due to her back condition, the dates of MMI and medical stability may be the same.

The date of medical stability was not only important, it was also contested. Remington admitted that Tobar suffered at least a temporary disability, arguing that she was medically stable as of August 2013, whereas Tobar, by claiming continuing temporary total disability, contended that she had not yet reached medical stability.

"Once an employee is disabled, the law presumes that the employee's disability continues until the employer produces substantial evidence to the contrary." The Board found substantial evidence to overcome this presumption in "Dr. Youngblood's medical report and testimony opining that [Tobar's] injury was relatively minor, and would have resolved within two weeks." But when the Board considered the next step in its analysis - whether Tobar could prove by a preponderance of the evidence that her disability was continuing - the Board rejected Dr. Youngblood's finding of a two-week disability, deciding instead that "the medical evidence supports [Tobar's] contention that the symptoms continued beyond that." There is certainly evidence supporting this finding, including Wilson's October 2013 report in which she told Remington's insurance carrier that Tobar had not yet reached maximum medical improvement and Wilson's further treatment recommendations in January, February, and March 2014.

The date on which the Board settled was the date of Dr. Youngblood's EME, March 20, 2014, after which it decided Tobar was no longer entitled to benefits for temporary total disability. The Commission decided that substantial evidence supported the Board's decision, but it never identified and did not discuss the evidence supporting March 20, 2014 as the date of medical stability.

Ultimately, while the evidence supported the Board's finding that Tobar's disability continued beyond August 2013, the question we need to consider is whether the evidence supported the Board's more specific finding that March 20, 2014, was the date on which she reached medical stability. We consider that question next.

2. Evidence related to the date of medical stability

The Commission concluded that Tobar failed to prove by a preponderance of the evidence that her disability continued past the time of Dr. Youngblood's EME, "because the medical evidence to date demonstrates that the work injury resolved without the need for ongoing medical treatment" and because "the evidence is that she has been medically stable for some time." The Commission noted that Tobar returned to Wilson after the EME but that, despite Wilson's referral for physical therapy, "Tobar did not seek medical treatment, including physical therapy[,] for the next two years." But this observation overlooks critical facts. First, the Commission, like the Board, failed to mention the physical therapy provider's explanation why Tobar did not continue with physical therapy in April 2014: "Unfortunately her workman's comp case has been controverted. Thus we will discharge her from skilled PT." (Notably, Tobar had attended all the prescribed physical therapy sessions in February, after Wilson, in January, had impressed upon her the need for consistent treatment.) Second, the Commission's statement that Tobar "did not seek medical treatment ... for the next two years" is also clearly erroneous; Tobar's medical records show that a year after the EME she sought treatment for both her back and her mental health at Providence Family Medicine Center, where treatment was again deferred after several months only because of her lack of insurance.

The Commission also found support for medical stability in the records of PA Hand. But nothing in the records indicates that Hand supported a March 2014 date of medical stability. The Commission, like the Board, summarized a January 2017 chart note as indicating that Tobar had told Hand "her lumbar spine symptoms had not changed in the previous three years." The Board did not mention this evidence in its analysis of medical stability, so we cannot say whether the Board relied on it or gave it any weight. Regardless, it is not an accurate summary of the evidence: the chart note relates that Tobar reported to Hand that her pain had improved after the two epidural injections but each time had returned in about three months. The note also reflects that Tobar told Hand that "all of the symptoms that [Tobar] complains of today are the same chronic symptoms that she has had since the beginning of all this." Hand's note appears to show that Tobar had the same symptoms from 2013 to 2017 but their severity came and went depending on her treatment.

The Commission, like the Board, also relied on the fact that Hand checked the "yes" box when asked by Remington's attorney whether Tobar's symptoms had "remained the same without any improvement for over 45 days." But Hand first saw Tobar in late 2016. Hand never identified a specific date of medical stability; her April 2017 statement that Tobar had not improved "for over 45 days" could mean that Tobar had become medically stable as recently as early 2017 - three years after the Board's selected date.

Remington does not identify any additional evidence that supports a March 2014 date of medical stability. Remington relies on the "general consisten[cy]" in the opinions of Dr. Youngblood, Dr. Kirkham, and PA Hand. Dr. Youngblood's report says that Tobar was medically stable at the time of his EME because she would "likely" have been medically stable two weeks after the injury, but the Board specifically rejected his opinion about a two-week recovery. Dr. Youngblood also testified that he agreed with several of Dr. Kirkham's diagnoses and some of his other observations, but Dr. Kirkham - who first saw Tobar in 2017 - did not offer an opinion about when Tobar became medically stable. And Hand's opinions, as noted above, also came three years after Dr. Youngblood's and did not purport to address the medical stability issue.

Our review of the medical stability finding is impeded by the Board's failure to assign weight to the medical evidence and its apparent oversight of key medical records in addition to those mentioned above. Neither the Board nor the Commission discussed Wilson's October 2013 opinions about causation or maximum medical improvement. Also missing from both decisions' analyses is any reference to Tobar's consistent participation in physical therapy in February 2014, as Wilson prescribed; this would seem to be evidence of Tobar's willingness to engage in the physical therapy Wilson recommended in April 2014, had her finances allowed it. The Board noted that Wilson ordered a second epidural steroid injection, but the Board did not identify when it was ordered or acknowledge that Tobar underwent this procedure on March 13, 2014, just a week before the date the Board selected for medical stability. The Commission said Tobar "was unable to point to any particular medical evidence the Board failed to consider," but Tobar contended that the Board did not adequately consider Wilson's opinions, and this appears to be true.

The Board also failed to mention Wilson's prescription for physical therapy following the second epidural or the note from the physical therapist indicating that Tobar's treatment was discontinued because of Remington's controversion. The Commission thought Tobar's failure to "seek medical treatment, including physical therapy," after the EME was important, but Tobar in fact attended a physical therapy evaluation a week after the EME, was advised at that time to participate one to three times a week for six to eight weeks, but was discharged soon thereafter because of the controversion and her lack of insurance. The Board and the Commission also failed to recognize that Providence Family Medicine Center began treating Tobar for back pain in late April 2015; both the Board and the Commission observed that Tobar went for two years without seeking treatment following the EME in March 2014, but this finding was mistaken.

We have said that "[t]he substantial evidence test is highly deferential, but we still 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.' " Here we have found no evidence to support the March 2014 date of medical stability selected by the Board. Wilson's opinions contradict Dr. Youngblood's assessments of medical stability, and her prescription of more physical therapy after the second epidural steroid injection implies that Tobar's condition might still have improved with further care. In other words, Wilson's opinions detract from the Board's decision about the date of medical stability, and it is troubling that the Board failed to mention, evaluate, or weigh this countervailing evidence.

In sum, the Board's finding of a March 2014 date of medical stability, affirmed by the Commission, is not supported by substantial evidence. And because the Board and the Commission failed to mention relevant medical evidence - in fact relying on the absence of records for a time when there were records - and neglected to assign weight to the medical evidence it did mention, we must remand this case for further proceedings before the Board.

C. The Board May Order An SIME On Remand.

Tobar's central argument on appeal is that the Board failed in its duties to her as a self-represented litigant because it did not advise her that she could request an SIME under AS 23.30.095(k). The Act authorizes the Board to order an SIME under both that statute and another, AS 23.30.110(g). Alaska Statute 23.30.095(k) permits an SIME if there is "a medical dispute regarding [a] determination[ ] of ... medical stability." Either party may request an SIME under AS 23.30.095(k), or the Board may order one on its own motion. The Board and the Commission have interpreted AS 23.30.110(g) as allowing the Board to order an SIME "when there is a significant gap in the medical or scientific evidence and an opinion by an independent medical examiner or other scientific examination will help the board in resolving the issue before it."

As we have discussed, the date of medical stability was both important and disputed in this case, and the date selected by the Board is not supported by substantial evidence. While an SIME is discretionary and not always appropriate, the circumstances of this case appear to favor its use: the claimant does not have a lawyer, she has limited English proficiency, and she apparently failed to call the Board's attention to existing medical records that were important to her case, contributing to the Board's factual errors. We are not ordering that the Board require an SIME on remand, however. Whether to do so remains subject to the Board's discretion.

V. CONCLUSION

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 consistent with this opinion.

      Deconditioning is "the loss of muscle tone and endurance due to chronic disease, immobility, or loss of function." Deconditioning , Miller-Keane Encyc. & Dictionary of Med., Nursing, & Allied Health (7th ed. 2003).

      Kinesiophobia is an excessive and irrational fear of physical movement "resulting from a feeling of vulnerability due to painful injury or reinjury"; it "is found to be a central factor in the process of pain developing from acute to chronic stages." Caroline Larsson et al., Kinesiophobia and its Relation to Pain Characteristics and Cognitive Affective Variables in Older Adults with Chronic Pain , 16 BMC Geriatrics 128, 128 (July 7, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4936054/.

      Under AS 23.30.095(o), "an employer is not liable for palliative care after the date of medical stability unless the palliative care is reasonable and necessary (1) to enable the employee to continue in the employee's employment at the time of treatment, (2) to enable the employee to continue to participate in an approved reemployment plan, or (3) to relieve chronic debilitating pain." A claim for palliative care requires "a certification of the attending physician that the palliative care meets the requirements of this subsection." AS 23.30.095(o).

      Humphrey v. Lowe's Home Improvement Warehouse, Inc. , 337 P.3d 1174, 1178 (Alaska 2014).

      Id.

      Id. at 1179.

      Id.

      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) ).

      Mitchell v. Mitchell , 370 P.3d 1070, 1083 (Alaska 2016).

      O'Callaghan v. State , 826 P.2d 1132, 1133 n.1 (Alaska 1992) (alteration in original) (quoting Sea Lion Corp. v. Air Logistics of Alaska, Inc. , 787 P.2d 109, 115 (Alaska 1990) ).

      Hymes v. Deramus , 119 P.3d 963, 965 (Alaska 2005).

      See, e.g. , Khan v. Adams & Assocs. , AWCAC Dec. No. 57 at 6 (Sept. 27, 2007) ("We read the briefs of pro se litigants generously.").

      The Board's regulation about SIMEs under AS 23.30.095(k) allows the parties to request an SIME, but it also permits the Board to order an SIME on its own motion if it deems an SIME necessary. 8 Alaska Administrative Code (AAC) 45.092(g) (2011). The Board has raised the need for an SIME on its own even when both parties are represented by counsel. Jennings v. Safelite Auto Glass , AWCB Dec. No. 12-0014 at 2, 12 (Jan. 13, 2012) (raising sua sponte whether medical examination under AS 23.30.110(g) or SIME under .095(k) was needed).

      AS 23.30.185.

      AS 23.30.395(28).

      AS 23.30.190(b).

      Unisea, Inc. v. Morales de Lopez , 435 P.3d 961, 965 (Alaska 2019).

      Id. ("Because a single work-related injury can affect more than one body system or cause more than one condition, medical stability and MMI may not always be coextensive.").

      Grove v. Alaska Constr. & Erectors , 948 P.2d 454, 458 (Alaska 1997).

      AS 23.30.122 ("The board has the sole power to determine the credibility of a witness. A finding by the board concerning the weight to be accorded a witness's testimony, including medical testimony and reports, is conclusive ...."); see also AS 23.30.128(b) ("The board's findings regarding the credibility of testimony of a witness before the board are binding on the commission.").

      Dr. Youngblood's report shows that Tobar informed him of both the second epidural injection and the February physical therapy; his report also mentions Wilson's diagnoses and her opinion of causation.

      Shea v. State, Dep't of Admin., Div. of Ret. & Benefits , 267 P.3d 624, 634 n.40 (Alaska 2011) (emphasis in original) (quoting Universal Camera Corp. v. Nat'l Labor Relations Bd. , 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ).

      See AS 23.30.095(k) (setting out circumstances when "the board may require" an SIME); AS 23.30.110(g) (requiring an employee to submit to a physical examination "which the board may require").

      8 AAC 45.092.

      Bah v. Trident Sea foods Corp. , AWCAC Dec. No. 073 at 5 (Feb. 27, 2008); see Hulshof v. Spenard Builders Supply , AWCB Dec. No. 02-0242 at 4-5 (Nov. 26, 2002) (finding that medical records did not clearly establish causation, impairment, or medical stability and deciding that conflicting medical opinions were not needed "to trigger [the Board's] authority (or responsibility)" to appoint an SIME under AS 23.30.110(g) ).