Stried v. Angry crab/amtrust ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DIANNA L. STRIED,
Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA,
Respondent,
ANGRY CRAB SHACK, LLC,
Respondent Employer,
AMTRUST INSURANCE COMPANY OF KANSAS, INC.,
Respondent Carrier.
No. 1 CA-IC 18-0082
FILED 10-1-2019
Special Action - Industrial Commission
ICA No. 20170-620416
INSCA 2550244-1
The Honorable Layna Taylor, Administrative Law Judge
AFFIRMED
COUNSEL
Snow Carpio & Weekley, PLC, Phoenix
By Erica Rose Gonzalez-Melendez
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Broening Oberg Woods & Wilson, PC, Phoenix
Jerry T. Colleen, Alice Jones
Counsel for Respondent Employer/Respondent Carrier
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Chief Judge Peter B. Swann joined.
W E I N Z W E I G, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) decision that Dianna L. Stried’s industrial injury is
stationary with no permanent impairment or need for supportive care.
Stried argues the administrative law judge (“ALJ”) erroneously resolved
conflicting medical evidence. Because she has shown no reversible error,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Stried was a manager at the Angry Crab Shack restaurant in
February 2017 when she injured her right hand in an industrial accident.
Her hand “didn’t feel right” and “ache[d]” after pushing a heavy shelving
unit into place, although “there was no pop, there was no snap, there was
nothing like that.” She worked the full day without restrictions. Later that
night, however, Stried noticed “something [was] not right” with her hand,
and then reported the incident to her general manager.
¶3 Stried worked for 17 more days before seeking medical
attention at NextCare. She complained about “wrist pain” to NextCare staff
and was diagnosed with a fractured lunate bone. She was given a splint
and told to visit a hand specialist.
¶4 The same day, Stried applied for workers compensation
insurance. Respondent AmTrust Insurance Company of Kansas, Inc.
accepted her claim based on available evidence. She kept working at the
restaurant “within the restrictions given by NextCare.”
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Decision of the Court
¶5 Nine more weeks elapsed before Stried visited Dr. Burgess,
the hand specialist. After reviewing her wrist x-ray, Dr. Burgess diagnosed
Stried with Kienbock’s Disease and possible Carpal Tunnel Syndrome.
Kienbock’s Disease occurs when the lunate bone does not receive enough
blood and eventually dies.
¶6 From there, Stried received independent medical
examinations from two board-certified orthopedic specialists with hand
subspecialties. Dr. Josh Vella examined Stried and reviewed her medical
records in August 2017 on behalf of the respondent insurance carrier. He
diagnosed her with stage-four “[r]ight wrist Kienbock’s” and “[r]ight wrist
carpal tunnel,” but did not attribute her condition to a lunate fracture or the
industrial accident. Stried then hired Dr. Mitchel Lipton to examine her and
her medical records in October 2017. Dr. Lipton disagreed with Dr. Vella.
Dr. Lipton opined that Stried’s condition was caused by the February 2017
work accident, which fractured her lunate bone.
¶7 AmTrust Insurance terminated Stried’s benefits after Dr.
Vella provided his medical opinion, and Stried sought a formal Industrial
Commission hearing when Dr. Lipton reached a different conclusion.
¶8 Over three days, an ALJ received testimony from Stried, Dr.
Lipton and Dr. Vella. Dr. Lipton was more equivocal at the hearing. He
testified that Stried “could have” fractured her right lunate bone in the
work accident, but discounted the possibility when told she suffered no
immediate pain. Dr. Lipton also conceded that Kienbock’s Disease is
“[s]low developing,” Stried had an advanced stage of the disease and ulnar
minus variance could lead to the disease.
¶9 Meanwhile, Dr. Vella opined that Stried could not have
developed Kienbock’s Disease from pushing the shelving unit in February
2017 because she had an advanced form of the slow-moving disease in May
2017. He also testified that Stried did not fracture her lunate bone at the
time because she would have felt immediate pain. Asked whether Stried’s
work injury could have “aggravated or accelerated” her Kienbock’s
Disease, Dr. Vella replied that it was “unlikely” to the same extent that “a
meteor could fall in the room right now . . . .” Nevertheless, Dr. Vella said
his opinion would not have changed even with evidence of “a rapid
acceleration” in the disease following Stried’s industrial injury.
¶10 The ALJ found that Stried’s industrial injury was “medically
stationary without permanent disability effective August 4, 2017,” and her
award was limited to “[m]edical, surgical, and hospital benefits . . . from
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STRIED v. ANGRY CRAB/AMTRUST
Decision of the Court
February 7, 2017, through August 4, 2017.” The ALJ resolved the conflict in
medical evidence “in favor of the opinions of Dr. Vella as being more
probably correct and well founded.” The ALJ summarily affirmed the
award after Stried’s request for review.
¶11 Stried timely petitioned for special action review. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A) and Arizona
Rule of Procedure for Special Actions 10.
DISCUSSION
¶12 This court will not set aside the ALJ’s award unless it “cannot
be supported by any reasonable theory of the evidence.” Gamez v. Indus.
Comm’n, 213 Ariz. 314, 315, ¶ 9 (App. 2006). When presented with
conflicting expert testimony on medical issues, the ALJ must determine
which testimony is more probably correct. Perry v. Indus. Comm’n, 112 Ariz.
397, 398 (1975); Kaibab Indus. v. Indus. Comm’n, 196 Ariz. 601, 609, ¶¶ 25-26
(App. 2000) (holding the ALJ has the exclusive duty to do so). We affirm
the ALJ’s resolution of conflicting expert opinions absent an abuse of
discretion, Kaibab, 196 Ariz. at 605, ¶ 10, meaning the ALJ’s decision “cannot
be reasonably supported on any reasonable theory of [the] evidence,” Phelps
v. Indus. Comm’n, 155 Ariz. 501, 506 (1987).
¶13 Stried contends the ALJ erred “in finding the opinion of Dr.
Vella more probably correct than Dr. Lipton” because Dr. Vella lacked
foundation for his opinion and made a dismissive comment during the
hearing. We find no error.
¶14 The record includes ample foundation for Dr. Vella’s medical
opinion. Dr. Vella is a board-certified orthopedic specialist. He personally
examined Stried and reviewed her medical records in forming his opinion.
See Royal Globe Ins. Co. v. Indus. Comm’n, 20 Ariz. App. 432, 434 (1973) (“[A]
medical opinion must be based upon the finding of medical facts by the
doctor involved.”). Stried has not shown that Dr. Vella ignored or
neglected to consider her medical records. Stried’s counsel had every
chance to cross-examine Dr. Vella before the ALJ on the basis of his medical
opinion. Even more, Dr. Lipton offered a less strident medical opinion at
the hearing, conceding flaws in Stried’s theory. At bottom, Stried wants us
to “re-weigh the evidence in the light most favorable to reversal,” Wal-Mart
v. Indus. Comm’n, 183 Ariz. 145, 147 (App. 1995), but “[t]his we cannot do,”
Kaibab, 196 Ariz. at 608, ¶ 21.
¶15 Stried’s second argument also misses the mark. She seems to
argue that Dr. Vella’s opinion should be stricken or discounted because he
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Decision of the Court
compared the likelihood of her theory to a meteor falling in the courtroom.
She offers no authority for her argument, which is thus waived. Polanco v.
Indus. Comm’n, 214 Ariz. 489, 492 n. 2 (App. 2007); see also ARCAP 13(a)(6).
CONCLUSION
¶16 We affirm the Commission’s decision and award upon
review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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