Doss v. walmart/claims Mgt ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DEBORAH C. DOSS, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
WALMART STORES, INC., Respondent Employer,
WALMART ASSOCIATES, INC. C/O CLAIMS MANAGEMENT, INC.,
Respondent Insurance Carrier.
No. 1 CA-IC 15-0036
FILED 2-25-2016
Special Action - Industrial Commission
ICA Claim No. 20110-740076
Carrier Claim No. 6291119
Anthony Halas, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Deborah C. Doss, Carlsbad, New Mexico
Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent Industrial Commission of Arizona
Hoffman Kelley Lopez, L.L.P., Scottsdale
By Anthony B. Eskridge
Counsel for Respondent Employer and Respondent Insurance Carrier
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
W I N T H R O P, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review finding the petitioner
employee, Deborah C. Doss (“Doss”) medically stationary and without
permanent impairment, work restrictions, or the need for continuing
supportive care. The administrative law judge (“ALJ”) resolved the issues
in favor of the respondent employer, Wal-Mart Stores, Inc. (“Wal-Mart”)
and the respondent carrier, Wal-Mart Associates, Inc. c/o Claims
Management, Inc. (collectively, “Respondents”). Because the ALJ’s
determinations are reasonably supported by substantial evidence, we
affirm the award and decision upon review.
FACTS AND PROCEDURAL HISTORY
¶2 On March 6, 2011, while in the course of her work for Wal-
Mart d/b/a Sam’s Club, Doss sustained a compensable industrial injury to
her lower back when she attempted to lift a large bag of dog food to scan
the price. She finished her shift and was taken to Concentra for medical
care, where she began receiving conservative treatment, including physical
therapy, for her low back pain. Doss filed a claim for workers’
compensation benefits, which was accepted by the industrial insurance
carrier.
¶3 Doss initially saw Richard K. Burger, M.D., who referred her
to Michael Wolff, M.D., whom she saw several times. Dr. Wolff provided
a facet injection, which did not help, and Doss continued to experience axial
low back pain. On May 23, 2011, Doss underwent an MRI of her lumbar
spine, which revealed findings of multi-level spondylosis, a pre-existing
degenerative condition.
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¶4 In June 2011, Doss came under the care of Dr. Wolff’s
associate, Jason R. Sherman, M.D., a board-certified physician in physical
medicine and rehabilitation. Doss complained of left-side low back pain
and occasional symptoms in her left lower extremity, and stated she had no
similar symptoms before her March 2011 injury. Upon examination, Dr.
Sherman found no significant signs of radiculopathy into Doss’s lower
extremities. Based on the May 2011 MRI, Dr. Sherman thought a disc bulge
and annular tear at L4-5 likely had been caused by the March 2011 incident
and was contributing to Doss’s axial back pain, which she described as
worse with almost any physical activity.
¶5 Dr. Sherman prescribed physical therapy, medication, and
epidural injections along Doss’s lumbar spine. Doss reported that the first
injection—on May 29, 2012—provided approximately fifty percent relief,
and a second injection—on July 26, 2012—caused Doss to state she was
amazed at the improvement in her condition. Dr. Sherman’s next chart
note—on October 11, 2012—indicated the injection had provided one
hundred percent relief. At that time, Dr. Sherman declared Doss’s
condition attributable to the March 2011 industrial injury to be medically
stationary. According to Doss, the relief from the July 2012 injection lasted
three or four months, during which she was back to her normal activities—
including riding her bike—and did not take any pain medication or see her
doctor.
¶6 In a December 6, 2012 follow-up meeting with Dr. Sherman,
however, Doss reported she had experienced progressive worsening of her
low back pain (up to fifty percent), with similar left-sided low back and left
leg symptoms upon returning to work. Dr. Sherman continued to provide
Doss with conservative treatment, including medication and epidural
injections, but the injections reportedly provided no relief.
¶7 Dr. Sherman ordered an MRI performed on April 8, 2013.
Also, on April 24, 2013, Terry E. McLean, M.D., performed an independent
medical examination (“IME”) of Doss. On May 13, 2013, Dr. Sherman
referred Doss to Jonathan Landsman, M.D., who believed Doss might be a
candidate for spinal fusion surgery in the future, but wanted to first review
Dr. McLean’s IME, and recommended pain management in the interim. On
June 18, 2013, Doss again saw Dr. McLean, who concluded surgery was not
indicated and opined that Doss’s 2011 industrial injury could have
aggravated a pre-existing spondylolisthesis at L4-5, with axial low back
symptoms similar to those caused by an annular tear. Doss returned to Dr.
Sherman, who continued conservative care, including another injection and
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more physical therapy. The last time Doss saw Dr. Sherman was February
5, 2014.1
¶8 Meanwhile, on January 22, 2014, Doss attended an IME
conducted by Paul E. Palmer, M.D., a board-certified orthopedic surgeon,
and Carol J. Peairs, M.D., a board-certified anesthesiologist with a
subspecialty board certification in pain management, both of whom
examined Doss in person. Drs. Palmer and Peairs determined Doss to be
medically stationary without permanent impairment. On February 5, 2014,
based on the IME report by Drs. Peairs and Palmer, the respondent carrier
issued a notice of claim status closing Doss’s claim for benefits without
permanent disability, effective January 22, 2014.
¶9 On February 26, 2014, Doss timely requested a hearing
protesting the closure of her claim. The issues to be considered by the ALJ
were whether Doss’s industrial injury was medically stationary, and if so,
whether she had sustained a ratable permanent impairment necessitating
additional active or supportive care.
¶10 The ALJ held formal hearings on September 29, 2014, and
January 15, February 3, and February 10, 2015. At the hearings, the ALJ
heard testimony from Doss and Drs. Sherman, Palmer, and Peairs. The ALJ
also received medical evidence in the form of reports of diagnostic studies,
the treatment records of Drs. Wolff, Landsman, and Sherman, and the IME
reports and addenda of Drs. McLean, Palmer, and Peairs.
¶11 On April 27, 2015, the ALJ issued his award. After
considering the testimony of Doss, and the medical records and testimony,
the ALJ resolved the conflicting medical conclusions in favor of Drs. Palmer
and Peairs as more probably correct and well-founded than that of Dr.
Sherman. The ALJ found Doss medically stationary and “without
permanent impairment, without work restrictions, and without need for
supportive care” as of January 22, 2014. The ALJ awarded Doss medical,
surgical, and hospital benefits, and temporary total or temporary partial
disability benefits, from March 6, 2011, through January 22, 2014.
¶12 On May 27, 2015, Doss requested review of the ALJ’s award,
arguing the ALJ improperly relied on Dr. Peairs’ testimony to reach a
causation opinion, and the medical opinions of Drs. Palmer and Peairs were
not reasonably supported by the evidence. On June 11, 2015, Respondents
1 Doss subsequently saw her primary care physician for her back pain.
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filed their response to Doss’s request for review. On June 15, 2015, the ALJ
issued his decision upon review summarily affirming the award.
¶13 On July 14, 2015, Doss filed this timely petition for special
action. We have jurisdiction pursuant to Arizona Revised Statutes sections
12-120.21(A)(2) (2003) and 23-951(A) (2012), and Rule 10 of the Arizona
Rules of Procedure for Special Actions.
ANALYSIS
I. Standard of Review
¶14 In general, Doss bears the burden of establishing the material
elements of her claim, including that her condition is causally related to the
industrial accident and that she is not medically stationary, or if so, that she
has sustained a permanent disability. See Estate of Bedwell v. Indus. Comm’n,
104 Ariz. 443, 444, 454 P.2d 985, 986 (1969); Malinski v. Indus. Comm’n, 103
Ariz. 213, 216, 439 P.2d 485, 488 (1968); T.W.M. Custom Framing v. Indus.
Comm’n, 198 Ariz. 41, 45-46, ¶ 12, 6 P.3d 745, 749-50 (App. 2000); Spears v.
Indus. Comm’n, 20 Ariz. App. 406, 407, 513 P.2d 695, 696 (1973). If it is not
readily apparent to a layman whether a claimant has residual disability
resulting from an industrial accident, the need for further treatment is
essentially a medical question to be answered by expert medical evidence.
See Yates v. Indus. Comm’n, 116 Ariz. 125, 127, 568 P.2d 432, 434 (App. 1977);
Spears, 20 Ariz. App. at 407, 513 P.2d at 696. The ALJ resolves conflicts in
the medical evidence, draws warranted inferences, and is the sole judge of
the witnesses’ credibility. See Carousel Snack Bar v. Indus. Comm’n, 156 Ariz.
43, 46, 749 P.2d 1364, 1367 (1988); Malinski, 103 Ariz. at 217, 439 P.2d at 489;
Holding v. Indus. Comm’n, 139 Ariz. 548, 551, 679 P.2d 571, 574 (App. 1984).
¶15 In our review of the ALJ’s award, we deferentially review the
ALJ’s factual findings, but independently review any legal conclusions.
Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003)
(citing PFS v. Indus. Comm’n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App. 1997)).
Further, we do not weigh conflicting evidence, but consider the facts and
inferences therefrom in the light most favorable to sustaining the award.
See Malinski, 103 Ariz. at 216, 439 P.2d at 488; Lovitch v. Indus. Comm’n, 202
Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002); United States Fid. & Guar.
Co. v. Indus. Comm’n, 114 Ariz. 472, 476, 561 P.2d 1244, 1248 (App. 1977).
We will uphold the ALJ’s findings if reasonably supported by substantial
evidence, even if we, sitting as a trier of fact, might reach a different
conclusion. See generally Carousel Snack Bar, 156 Ariz. at 46, 749 P.2d at 1367;
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Perry v. Indus. Comm’n, 112 Ariz. 397, 398-99, 542 P.2d 1096, 1097-98 (1975);
Malinski, 103 Ariz. at 216-17, 439 P.2d at 488-89.
II. The Merits
¶16 Doss argues the ALJ erred in not adopting the opinions of her
treating physicians—most specifically, that of Dr. Sherman—and instead
relying on the opinions of Drs. Palmer and Peairs in finding her medically
stationary without a permanent impairment. In essence, her argument
appears to primarily be that the ALJ wrongly adopted Dr. Palmer’s opinion,
not based on any error of judgment or expertise on the part of Dr. Palmer,
but based on duration of treatment.
¶17 At Doss’s hearings, Dr. Sherman testified, consistent with his
medical chart, that after Doss’s December 2012 follow-up visit, at which she
reported worsening of her low back pain, he tried diagnostic medial branch
blocks, but they did not have a positive response, so a possible diagnosis
involving the facet joints was ruled out, and he thought her symptoms were
consistent with an annular tear. He also acknowledged as valid Dr.
McLean’s opinion that Doss’s injury could have aggravated a pre-existing
spondylolisthesis at L4-5, causing axial low back symptoms similar to those
caused by an annular tear. Dr. Sherman disagreed, however, with the
conclusions of Drs. Palmer and Peairs that Doss’s symptoms since
December 2012 were related to pre-existing degenerative disc and joint
disease.
¶18 Because he had determined Doss was not a surgical
candidate, Dr. Sherman continued to use medication as the basic treatment
modality. Dr. Sherman opined that, by February 5, 2014—the time of Doss’s
last examination by Dr. Sherman—Doss was at maximal medical
improvement per the Sixth Edition of the American Medical Association
(“AMA”) Guides to the Evaluation of Permanent Impairment (“Guides”),
and was permanent and stationary with a three percent impairment of the
whole person. See AMA Guides 570, Table 17-4 (6th ed. 2009). Dr. Sherman
recommended supportive care for a year consisting of three doctor visits,
anti-inflammatory medication, and six to twelve physical therapy sessions.
He explained that, following an injection like the one Doss received on July
26, 2012, a person’s pain would likely go away due to resolution of the
inflammation and not come back unless the person re-aggravated the
problem.
¶19 Dr. Palmer testified, consistent with his IME report and
addendum, that he understood that after her industrial injury, Doss had
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received conservative medical care, including epidural injections by Dr.
Sherman in May and July 2012, after which she had complete resolution of
her symptoms for several months. Dr. Palmer opined this was consistent
with resolution of a soft tissue lumbar sprain/strain attributable to Doss’s
March 2011 accident. To the extent Doss had a subsequent onset of
symptoms, with medial branch blocks ineffective, he concluded that such
symptoms were attributable to pre-existing lumbar spine degenerative
changes, including the annular tear at L4-5 seen on the May 2011 and April
2013 MRIs, with no significant change by the time of the April 2013 MRI.
At the time of his January 2014 examination of Doss, Dr. Palmer noted that
although Doss continued with complaints of low back pain, he found no
significant abnormal objective physical findings of any residuals from
either Doss’s March 2011 injury or her pre-existing degenerative changes.
Doss had full range of motion, no evidence of muscle tension or spasm, and
normal strength, reflexes, and sensation, with no evidence of sacroiliac
dysfunction, no radiculopathy, and extension of the lumbar spine well-
tolerated. Dr. Palmer concluded that Doss had sustained a lumbar
strain/sprain as a result of the March 2011 incident, which had resolved
after the one hundred percent relief she received from the epidural
injections in the summer of 2012, without ratable permanent impairment,
work restrictions, or need for supportive care due to her industrial injury.
¶20 Dr. Peairs testified, consistent with her IME report and
addendum, that her understanding of Doss’s industrial injury and
subsequent treatment was in accord with Dr. Palmer, and she noted, as had
Dr. Palmer, that Dr. Sherman had reported Doss to have had one hundred
percent relief for several months after July 2012. The subsequent onset of
symptoms several months later had been treated by Dr. Sherman with
medial branch blocks, which Dr. Peairs understood were ineffective and not
diagnostic for any facet joint dysfunction. According to Dr. Peairs, at the
time of Doss’s January 2014 IME exam, Doss described left lower back pain,
and pain over the left posterior iliac crest with general achiness. Clinically,
however, her findings were objectively normal, with Doss’s reflexes,
sensation, and motor strength all intact, with no spasm, no sacroiliac joint
dysfunction, and no radiculopathy. Dr. Peairs opined that Doss had
sustained a lumber sprain/strain related to the March 2011 incident, from
which Doss had recovered by October 2012, after the complete relief
provided by the epidural steroid injections in May and July 2012, which had
resolved the inflammation. Dr. Peairs also noted Doss had MRI evidence
of a lumbar spine condition pre-dating the March 2011 incident, but Doss
was without symptoms consistent with that condition at the time of the
January 2014 IME. Dr. Peairs opined that Doss was medically stationary in
relation to her industrial injury, without ratable permanent impairment.
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Further, although Dr. Peairs thought the supportive care recommended by
Dr. Sherman might be appropriate when Doss experienced symptoms
consistent with her degenerative lumbar spine condition, Dr. Peairs did not
consider such care to be related to Doss’s industrial injury.
¶21 In this case, after considering the substantial evidence
introduced by both parties, and the testimonial conflicts among the
witnesses, the ALJ found that the medical conclusions of Dr. Palmer,
supported by Dr. Peairs, were more probably correct and well-founded
than those of Dr. Sherman. Evidence in the record indicated that, following
the July 2012 injection, Doss experienced one hundred percent relief from
the pain brought on by the industrial injury, which led Dr. Palmer to believe
the condition had resolved to baseline. After the pain eventually returned,
Dr. Palmer concluded that some other incident, unrelated to the March 2011
industrial incident, had caused the return of the pain, which was likely
related to Doss’s nonindustrial pre-existing degenerative condition. The
ALJ resolved the conflict of medical opinion in favor of Respondents, and
substantial evidence reasonably supports the ALJ’s conclusions. Moreover,
although Doss suggests otherwise, nothing precluded the ALJ from
adopting the opinion of the IME physicians as more probably correct than
that of Doss’s treating physician. We find no abuse of the ALJ’s discretion
in resolving the conflict in the evidence in favor of Respondents.
CONCLUSION
¶22 For the foregoing reasons, we affirm the ALJ’s award and
decision upon review finding Doss medically stationary and without
permanent impairment, work restrictions, or the need for continuing
supportive care. Respondents are awarded their taxable costs on appeal,
subject to compliance with Rule 21, ARCAP.
:ama
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