Ellenbarger-King v. Fry's

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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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DEVAN A. ELLENBARGER-KING, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
FRY’S FOOD AND DRUG STORES OF ARIZONA, INC., Respondent
Employer,
FRY’S FOOD STORES OF ARIZONA, INC., Respondent Carrier.
No. 1 CA-IC 17-0019
FILED 12-26-2017
Special Action - Industrial Commission
ICA Claim No. 20141-490427
Carrier Claim No. 30142157566-0001
Robert F. Retzer, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Joel F. Friedman, PLLC, Phoenix
By Joel F. Friedman
Counsel for Petitioner
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent ICA
Lundmark, Barberich, LaMont & Slavin, Phoenix
By Lisa M. LaMont, Danielle S. Vukonich
Counsel for Respondent Employer and Respondent Carrier
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.
C R U Z, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review finding the petitioner
employee (“Claimant”) stationary with no permanent impairment. Two
issues are presented on appeal: (1) whether the administrative law judge
(“ALJ”) erred by adopting Patricia Johnson, Ph.D.’s opinion to support the
award; and (2) whether the ALJ made inconsistent findings when he
adopted Dr. Johnson’s opinion but also found Claimant credible. We find
no error in the ALJ’s adoption of Dr. Johnson’s opinion; nor did the ALJ
rule inconsistently in adopting her opinion while finding Claimant credible.
We affirm the award.
JURISDICTION AND STANDARD OF REVIEW
¶2 This court has jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(2) (2003), 23-951(A) (2012), and
Arizona Rules of Procedure for Special Actions 10 (2009).1 In reviewing
findings and awards of the ICA, we defer to the ALJ’s factual findings but
review questions of law de novo. Young v. Indus. Comm’n, 204 Ariz. 267, 270,
¶ 14 (App. 2003). We consider the evidence in a light most favorable to
upholding the ALJ’s award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105,
¶ 16 (App. 2002).
FACTUAL AND PROCEDURAL HISTORY
¶3 Claimant worked for the self-insured respondent employer,
Fry’s Food Stores of Arizona, Inc. (“Fry’s”) as a cashier and customer
1 Absent material revision after the relevant dates, we cite the current
version of statutes and rules.
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ELLENBARGER-KING v. FRY’S
Decision of the Court
service representative. She sustained a psychological injury on May 18,
2013, during an armed robbery at the customer service counter. Claimant
filed a workers’ compensation claim, which was accepted for benefits. She
received psychological treatment, and following an independent
psychological examination (“IPE”), her claim was closed on February 24,
2015, with no permanent impairment. Claimant timely protested, and the
ALJ held four hearings and heard testimony from Claimant, her treating
psychologist, Maryanna Hardy Foley, Ph.D., and independent
psychological examiner, Dr. Johnson.
¶4 Claimant testified that on May 18, 2013, she was working at
the customer service counter when a man walked up, pulled up his shirt to
show her a gun in his waistband, and demanded cash. She placed money
in the bag he handed her, and he left the store. Claimant went to the store
office, reported the robbery to the store manager, and returned to work.
¶5 Claimant testified that she began to experience anxiety and
stomach problems at work, and she sought treatment from Dr. Foley.
Claimant worked at Fry’s for a year after the robbery, and she continued to
treat with Dr. Foley. In August 2014, Claimant was referred to Nancy
Yeamans, Ph.D., for desensitization treatment, because of her difficulty
being inside grocery stores. Claimant later went back to school to learn
medical billing and became reemployed in that field.
¶6 Dr. Foley testified that she first saw Claimant in 2009. At that
time, Dr. Foley diagnosed her with attention deficit disorder (“ADD”),
depression, and post-traumatic stress disorder (“PTSD”), rooted in
Claimant’s childhood neglect by her opioid-addicted parents. Dr. Foley
treated Claimant with anti-depressant and ADD medications. She last saw
Claimant before the robbery on April 21, 2011. At that time, Claimant was
experiencing stress at work, was somewhat depressed, and was not taking
her ADD medication.
¶7 Dr. Foley next saw Claimant on May 29, 2013, after the
robbery, and diagnosed Claimant with an acute stress disorder. Claimant
returned to see Dr. Foley in June 2013, after the robber had been caught.
She reported feeling relieved that he was in custody, and that she had been
transferred to work in the store bakery. Claimant also requested
medication to help with her ADD. At her August 6, 2013 appointment,
Claimant reported dissatisfaction with her job due to personnel issues.
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ELLENBARGER-KING v. FRY’S
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¶8 Claimant returned to see Dr. Foley on May 13, 2014, after
learning that the robber had been released from jail. She told Dr. Foley that
she was very depressed and had started to feel much worse. She was
having difficulty with focus and concentration and was experiencing mood
swings, sleep disturbances, and flashbacks.
¶9 Dr. Foley testified that these were new symptoms that
occurred on the anniversary of the robbery, and the anniversary date had
caused Claimant to reexperience the traumatic event. The doctor diagnosed
PTSD related to the 2013 robbery. She last saw Claimant on December 30,
2014. At that time, it was Dr. Foley’s opinion that although Claimant
wanted to return to work, she was not emotionally ready.
¶10 Dr. Johnson testified that she examined Claimant twice, and
she authored two IPE reports: July 1, 2014 and February 24, 2015. Dr.
Johnson first saw Claimant on July 1, 2014. She received a history of the
robbery, reviewed Dr. Foley’s treatment records, administered objective
testing, and performed a psychological examination.
¶11 At that time, Dr. Johnson diagnosed adjustment disorder with
mixed anxiety and depression related to the robbery and preexisting ADD
and PTSD. She reported that “even though [Claimant] had pre-existing
PTSD along with possible undiagnosed depression and anxiety, this
underlying disorder has been exacerbated by the robbery, failure to get
treatment, anniversary reaction, and a subsequent robbery.” Dr. Johnson
recommended medication and treatment with a therapist skilled in trauma
recovery.
¶12 Dr. Johnson next saw Claimant on February 24, 2015. She
took an interim history, reviewed additional medical records from
Claimant’s primary care physician and the trauma therapist, Dr. Yeamans,
administered additional psychological testing, and conducted an interview.
It was Dr. Johnson’s opinion that Claimant had received appropriate
comprehensive treatment for her industrially-related adjustment disorder,
that it was stationary as of February 24, 2015, with no permanent
impairment and without need for supportive care.
¶13 Dr. Johnson also testified, however, that Claimant had
preexisting, underlying psychological problems that continued to need
treatment. These preexisting conditions included ADD, PTSD, generalized
anxiety disorder, and the need to rule out a recurrent major depressive
disorder or a personality disorder. Dr. Johnson reported, “It is felt that her
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ELLENBARGER-KING v. FRY’S
Decision of the Court
current, somewhat inexplicable level of dysfunction is related to her
preexisting and unrelated psychiatric disorders.”
¶14 Following the hearings, the ALJ entered an award for
temporary disability benefits and, finding no evidence of permanent
impairment related to the industrial event, closed the case for continuing or
permanent benefits, effective February 24, 2015. Claimant timely requested
administrative review, and the ALJ supplemented his findings, specifically
noting he found Claimant to be credible, and affirmed the award. This
Special Action followed.
DISCUSSION
¶15 Claimant first argues that the ALJ erred by adopting Dr.
Johnson’s testimony to support the award, because Dr. Johnson
purportedly reversed her initial opinion and withheld documentation
during discovery. The ALJ is the sole judge of witness credibility. Holding
v. Indus. Comm’n, 139 Ariz. 548, 551 (App. 1984). It is his duty to resolve all
conflicts in the evidence and to draw all warranted inferences. Malinski v.
Indus. Comm’n, 103 Ariz. 213, 217 (1968) (citation omitted). Where more
than one inference may be drawn, the ALJ is at liberty to choose either and
this court will not disturb his conclusion unless it is wholly unreasonable.
Id. (citation omitted). Further, the testimony of the treating physician is not
necessarily entitled to greater weight than that of an independent medical
examiner. Walters v. Indus. Comm’n, 134 Ariz. 597, 599 (App. 1982).
¶16 In this case, Dr. Johnson evaluated Claimant twice. At her
first examination, the doctor found that Claimant had preexisting
psychological conditions that were aggravated by the armed robbery at
work. She diagnosed Claimant with an industrially-related adjustment
disorder and recommended ongoing psychological treatment. By the time
of Dr. Johnson’s second evaluation eight months later, Claimant had
received the recommended psychological treatment. Dr. Johnson opined
that the aggravation caused by the robbery had been comprehensively
treated, and Claimant’s only remaining psychological conditions were
those that preexisted her industrial injury.2 We conclude that Dr. Johnson
2 A symptomatic aggravation of a preexisting condition that requires
additional medical treatment or results in additional disability can
constitute a compensable claim. See Indus. Indem. Co. v. Indus. Comm’n, 152
Ariz. 195, 199 (App. 1986); see also Mandex v. Indus. Comm’n, 151 Ariz. 567,
570 (App. 1986). But, a claimant has the burden of showing more than a
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did not “reverse” her opinion on causation, but rather that her opinion after
her February 2015 examination of Claimant was based on changed
conditions, including the passage of time, further evaluative testing, and
the results of the interim therapy. Based on these factors, Dr. Johnson’s
opinion was that the exacerbating effects of the robbery on Claimant’s pre-
existing psychological conditions had resolved, and that her need for
continuing psychological treatment and/or therapy was solely related to
her preexisting, non-industrially caused conditions.
¶17 Regarding any withheld documentation, Claimant’s attorney
first requested Dr. Johnson’s hand-written patient interview notes and the
actual objective test materials and data after the ICA hearings concluded.
Despite the untimely request,3 Dr. Johnson provided additional
documentation and agreed to appear at another hearing on December 7,
2016, to allow Claimant’s attorney an opportunity for additional cross-
examination. Claimant’s attorney failed to appear for the requested
hearing, and the ALJ considered the case submitted for decision. On this
record, we find Claimant has waived any issue concerning the
completeness of the medical or psychological records before the ALJ, and
further find no error in the ALJ’s adoption of Dr. Johnson’s opinion.
¶18 Claimant next argues that the ALJ made inconsistent findings
when he both found Claimant credible and adopted Dr. Johnson’s
testimony. When the causal relationship between the industrial accident
and the injury is not obvious, it must be established by expert medical
testimony. See, e.g., McNeely v. Indus. Comm’n, 108 Ariz. 453, 455 (1972)
(recognizing that where causation is peculiarly within the knowledge of a
medical expert, the medical expert’s opinion must be relied upon). A
medical opinion must be based on findings of medical fact to support an
award. Royal Globe Ins. Co. v. Indus. Comm’n, 20 Ariz. App. 432, 434 (1973).
These findings come from a claimant’s history, medical records, diagnostic
tests, and examinations. See id.
temporary aggravation of an underlying condition; he must show the
industrial injury caused an aggravation which has not terminated and
continues to contribute to his ongoing disability. Arellano v. Indus. Comm’n,
25 Ariz. App. 598, 604 (1976).
3 See A.A.C. R20-5-155 (rules for submitting evidence for
consideration in an ICA proceeding).
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¶19 Here, the issue was whether Claimant’s ongoing
psychological problems were related to her industrial injury. Claimant’s
own subjective opinion concerning such connection is not dispositive.
Further, it is not inconsistent for the ALJ to have found Claimant’s
description of the events and her symptoms to be credible, and at the same
time adopt Dr. Johnson’s evaluation of those statements and symptoms and
her professional opinion as to the point at which any effects of the industrial
episode on Claimant’s underlying psychological conditions had ceased,
and as to whether the industrial episode resulted in any permanent
impairment.
CONCLUSION
¶20 For all the foregoing reasons, we affirm the award.
AMY M. WOOD • Clerk of the Court
FILED: AA
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