McGee v. ihop/northern ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARYLOU MCGEE, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
IHOP, Respondent Employer,
NORTHERN INSURANCE CO. OF NY, Respondent Carrier.
No. 1 CA-IC 15-0022
FILED 4-14-2016
Special Action - Industrial Commission
ICA Claim No. 20132-610681
Carrier Claim No. 2010234688
The Honorable Robert F. Retzer, Administrative Law Judge
AFFIRMED
COUNSEL
Marylou McGee, Flagstaff
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Lester Norton & Brozina PC, Phoenix
By Christopher S. Norton, Steven C. Lester, Rachel Parise Brozina
Counsel for Respondent Employer and Carrier
MCGEE v. IHOP/NORTHERN
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.
J O N E S, Judge:
¶1 Marylou McGee seeks special action review of an Industrial
Commission of Arizona (the Commission) decision upon review, in which
the administrative law judge (ALJ) awarded McGee workers’ compensation
benefits for a claimed injury to her left wrist, but found her claims for
injuries to her right wrist, neck, and lumbar area non-compensable. For the
following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 McGee began waitressing at an IHOP restaurant in 2011. In
February 2013, she began experiencing shooting pain in her left wrist and
purchased a wrist brace for support. In September 2013, while she was
carrying a tray full of drinks in one hand and three coffee pots in the other,
a small child ran toward her. McGee twisted her body sharply to avoid the
child and dropped the drinks and the coffee pots. She returned to the
kitchen to retrieve new drinks and coffee pots but found she could no
longer pick anything up with her left hand. She told her supervisor about
the accident and went to the emergency room, complaining of pain in her
left wrist.
¶3 Hospital staff performed blood work and took x-rays of
McGee’s wrist. McGee was told she might have sprained her wrist and that
she should tend to it with ice and see her primary care physician in three
days. McGee followed these instructions, and her primary care physician
referred her to a hand specialist, Dr. Robert Lock. In October 2013, McGee
met with Dr. Lock, who recommended a nerve conduction test. After
reviewing the results and the x-rays, Dr. Lock diagnosed McGee with carpal
1 We view the evidence in the light most favorable to affirming the
Commission’s findings and awards. Polanco v. Indus. Comm’n, 214 Ariz. 489,
490-91, ¶ 2 (App. 2007) (citing Roberts v. Indus. Comm’n, 162 Ariz. 108, 110
(1989)).
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MCGEE v. IHOP/NORTHERN
Decision of the Court
tunnel syndrome. Dr. Lock performed carpal tunnel surgery on McGee’s
left wrist later that month.
¶4 Soon after the surgery, McGee began experiencing intense
pain in her right wrist, which was also diagnosed as carpal tunnel
syndrome. Dr. Lock performed carpal tunnel surgery on her right wrist in
December 2013.
¶5 After the second surgery, McGee noticed strong pains
shooting up her arm, moving into her shoulder and back, and causing
muscle spasms. Believing the pains were caused by the September 2013
accident, McGee returned to her primary care physician, who
recommended she see a spine specialist. Dr. John Hall first examined
McGee in April 2014. He found she had decreased sensation in her cervical
vertebrae. He later determined from x-rays and an MRI that McGee had
multiple herniated discs and other degenerative conditions contributing to
her symptoms.
¶6 Meanwhile, McGee submitted a claim for workers’
compensation benefits, seeking reimbursement for her medical expenses
incurred as a result of the September 2013 accident. Northern Insurance
Company of New York issued notices denying McGee’s claim in January
and February 2014. McGee requested a hearing in protest of the denial.
¶7 At the hearing, Dr. Hall testified he was confident the
workplace accident either caused or exacerbated McGee’s herniated discs
but was not convinced the other degenerative spinal conditions were
caused by the accident. He also testified, “the temporal relationship
becomes very weak,” noting McGee reported she had been experiencing
the symptoms for over a year, long before the accident.
¶8 Dr. Lock testified McGee had indeed been diagnosed, post-
accident, with moderate carpal tunnel syndrome. Her x-rays showed she
was predisposed to wrist problems that were not the result of any trauma,
and he testified the workplace accident “had zero to do with her carpal
tunnel syndrome.” He further testified the “notion of work activity as a
primary cause of carpal tunnel syndrome has largely been debunked. We
see carpal tunnel syndrome in just as many people who don’t do repetitive-
type jobs as patients who do repetitive-type jobs.”
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MCGEE v. IHOP/NORTHERN
Decision of the Court
¶9 Dr. Terry McLean testified he performed an independent
medical evaluation of McGee in May 2014, which included a review of her
medical records. He testified McGee reported she began experiencing
lower back pain only two weeks prior to the examination. Dr. McLean also
testified his examination of McGee’s x-rays confirmed problems within her
lumbar area but that the workplace accident did not cause any injury to
McGee. Dr. McLean thus concluded McGee’s neck and back pain was
unrelated to either the workplace accident specifically, or McGee’s
employment generally. Dr. Peter Campbell also performed an independent
medical examination and concluded McGee’s symptoms, including pain
and weakness in her limbs and spine, blurry vision, dry mouth, and
headaches, were “clearly unrelated to her previous work duties or the
reported work injury.”
¶10 In January 2015, the ALJ issued a decision finding McGee
suffered an industrial injury to her left wrist during the workplace accident.
McGee was awarded medical, surgical, and hospital benefits related to her
left wrist injury, from September 6, 2013 “until such time as her condition
becomes medically stationary, as provided by law.” The ALJ also found the
injuries to McGee’s right wrist, neck, and lumbar area were non-
compensable because they did not result from the accident.
¶11 McGee timely filed a request for review of the ALJ’s decision,
which was affirmed upon review. McGee timely petitioned this Court for
special action relief. We have jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(2)2 and 23-951(A), and Arizona Rule
of Procedure for Special Actions 10.
DISCUSSION
¶12 When reviewing a workers’ compensation award, we defer to
the factual determinations of the ALJ. Tabler v. Indus. Comm’n, 202 Ariz.
518, 522, ¶ 14 (App. 2002) (citing Vance Int’l v. Indus. Comm’n, 191 Ariz. 98,
100, ¶ 6 (App. 1998)). We will accept the ALJ’s resolution of a conflict in the
evidence if it is reasonably supported by the record. Fry’s Food Stores v.
Indus. Comm’n, 161 Ariz. 119, 121 (1989) (citing Micucci v. Indus. Comm’n,
108 Ariz. 194, 195 (1972)).
2 Absent material changes from the relevant date, we cite a statute’s
current version.
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MCGEE v. IHOP/NORTHERN
Decision of the Court
¶13 McGee argues the ALJ erred in finding her right wrist injury
did not result from the workplace accident because she experienced pain in
both wrists as a result of the accident. In support of this contention, McGee
cites a medical record showing she complained of pain in both wrists when
she saw her primary care physician ten days after the accident and before
seeing Dr. Lock. However, McGee’s testimony and the medical records
from her emergency room visit indicate she only complained of pain in her
left wrist directly after the accident. McGee’s belief that the pain in her right
wrist was caused by the workplace accident is also inconsistent with Dr.
Lock’s testimony that McGee’s carpal tunnel syndrome — the source of
McGee’s wrist pain — was not caused by the accident. Although the
evidence is conflicting, the record reasonably supports the ALJ’s conclusion
that the injury to McGee’s right wrist was not work-related and thus not
compensable. We find no error.
¶14 McGee also argues the ALJ erred in finding her neck and
lumbar injuries did not result from the workplace accident because she was
experiencing shooting pains from her arms into her back just after the
accident. But, McGee fails to cite any support in the record for this
contention, and we find none. To the contrary, the record reflects that none
of McGee’s treating physicians were able to testify to any degree of medical
probability that her neck and lumbar problems were related to her accident.
McGee’s own testimony indicates she did not experience this pain until
after the carpal tunnel surgeries. Furthermore, Drs. Hall, McLean, and
Campbell all concluded McGee’s neck and lumbar problems were not
caused by the workplace accident, and their reports indicate McGee gave
inconsistent answers when asked how long she had been experiencing this
pain. See supra ¶¶ 7, 9. The record reasonably supports the ALJ’s finding
that McGee’s neck and lumbar injuries were not related to the workplace
accident, and we again find no error.3
3 McGee also argues that IHOP forged her signature on documents
located within her employee record and claims these documents were
written in such a way to “hide the fact that this was a Workman’s
Compensation injury.” Because McGee was not denied the opportunity to
make a workers’ compensation claim and the records to which she objects
had no bearing on the ALJ’s decision regarding whether McGee’s injuries
were compensable, we need not address this argument.
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MCGEE v. IHOP/NORTHERN
Decision of the Court
CONCLUSION
¶15 The ALJ’s decision finding McGee’s right wrist, neck, and
lumbar injuries were not related to the workplace accident and non-
compensable is affirmed.
:ama
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