Sessions v. cigna/indemnity

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SYLVIA SESSION, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
CIGNA HEALTH CARE, Respondent Employer,
INDEMNITY INS CO OF NORTH AMERICA C/O SEDGWICK CMS,
Respondent Carrier.
No. 1 CA-IC 16-0025
FILED 12-30-16
Special Action - Industrial Commission
ICA Claim No. 20142-750034
Carrier Claim No. 30142758433-0001
The Honorable J. Matthew Powell, Administrative Law Judge
AFFIRMED
APPEARANCES
Sylvia Session, Laveen
Petitioner
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent ICA
Ritsema & Lyon PC, Denver, CO
By Kelly F. Kruegel
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.
O R O Z C O, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (ICA) award. For the following reasons, we affirm the award of
the Administrative Law Judge (ALJ).
FACTUAL AND PROCEDURAL HISTORY
¶2 Petitioner employee Sylvia Session (Session) worked as a
medical assistant in a pediatrics office for more than twenty years. Her job
duties included entering patient data into a computer, carrying a laptop
between rooms, administering injections and tests, opening heavy doors for
patients, taking vital signs, using a phone, briefing doctors, and typing
letters. In August 2014, Session developed pain, numbness and tingling in
both of her hands and was diagnosed with bi-lateral DeQuervain’s
tenosynovitis (tendinitis) and/or carpal tunnel syndrome.
¶3 Session filed an industrial injury claim asserting her injury
was caused by her work activities as a medical assistant. Respondent
Carrier denied her claim, as Carrier’s medical expert, Dr. Guidera, could
not relate Session’s injury to her work activities. None of the other four
doctors who examined Session concluded her injury was work related or
restricted her work duty. Although Session testified Dr. Dorsey told her
that her work activities caused her injury, Dr. Dorsey did not enter such a
finding in his medical report or testify to this alleged fact at a hearing.
¶4 Session requested Dr. Guidera testify as her medical expert,
despite her distrust in Dr. Guidera’s impartiality, because he was employed
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SESSION v. CIGNA/INDEMNITY
Decision of the Court
by the same company as Session. Dr. Guidera is a medical doctor licensed
to practice in Arizona, specializing in hand surgery. At a hearing, Dr.
Guidera testified that Session’s median neuropathy condition (carpal
tunnel syndrome) was not related to her work activities, to a reasonable
degree of medical certainty. Dr. Guidera further explained, based on peer
reviewed medical literature of the American Medical Association (AMA),
that “computer keyboard use is not a risk factor for carpal tunnel
syndrome.” No other medical expert provided expert testimony.
¶5 The ALJ concluded Session “did not sustain a compensable
injury.” Session requested the ALJ reconsider the Award and attached
additional documentation consisting of a job analysis and promotional
materials. No new medical records were submitted.
¶6 The ALJ affirmed his previous findings and award,
concluding the newly introduced evidence was untimely and “insufficient
to remedy [Session’s] failure to present medical evidence that would
support her injury claim.” This special action followed. We have
jurisdiction under Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.2
and 23-951.A (West 2016),1 and Arizona Rule of Procedure for Special
Actions 10.
¶7 We defer to the ALJ’s factual findings, but review questions
of law de novo. Lane v. Indus. Comm’n, 218 Ariz. 44, 47, ¶ 9 (App. 2008)
(quotation omitted). We consider the evidence in the light most favorable
to upholding the award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16
(App. 2002). We will affirm as long as the award is supported by reasonable
evidence. Delgado v. Indus. Comm’n, 183 Ariz. 129, 131 (App. 1994).
DISCUSSION
¶8 We construe Session’s opening brief to argue she is entitled to
compensation for surgery of her carpal tunnel syndrome,2 because it was
1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
2 Session’s opening brief lacks references to legal authority and the
record, which could be considered abandonment or waiver of her claim.
See ARCAP 13(a)(7)(A) (requiring appellant’s brief to contain arguments
with “citations of legal authorities and appropriate references to the
portions of the record on which the appellant relies”); State v. Carver, 160
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SESSION v. CIGNA/INDEMNITY
Decision of the Court
caused by job related activities. The Respondents argue the ALJ’s award
was supported by substantial evidence and should be affirmed.
I. Substantial Evidence
¶9 Session had the burden to affirmatively show she is entitled
to compensation. Malinski v. Indus. Comm’n, 103 Ariz. 213, 216 (1968).
Because the Workmen’s Compensation Act “does not contemplate a
general health and accident fund[,] . . . there must be a causal connection
between the employment and the injury.” Dunlap v. Indus. Comm’n, 90 Ariz.
3, 6 (1961). Expert medical opinion is required to demonstrate a causal
relationship between the industrial injury and claimant’s condition where
the causal relationship is not readily apparent to a layperson. W. Bonded
Prods. v. Indus. Comm’n, 132 Ariz. 526, 528 (App. 1982).
¶10 Session selected Dr. Guidera as her medical expert witness.
However, Dr. Guidera testified that neither Session’s carpal tunnel
syndrome nor the tendinitis was related to her work activities.
¶11 Because Session failed to introduce any medical evidence
supporting her claim, she did not meet her burden of proof. See Malinski,
103 Ariz. at 216. The evidence in the record supports the ALJ’s award and
that award must stand. See Chalupa v. Indus. Comm’n, 17 Ariz. App. 386, 391
(1972).
II. Medical Expert’s Conflict of Interest
¶12 We further construe Session’s opening brief to contend that
none of the evaluating medical doctors provided an objective and impartial
medical opinion, because the doctors worked for her employer, and
therefore would not testify in her favor on the issue of causation.
¶13 Although Session was not free to choose her own treating
doctor, pursuant to A.R.S. § 23-10703, she was free to select her own expert
Ariz. 167, 175 (1989) (“Failure to argue a claim usually constitutes
abandonment and waiver of that claim.”). However, in our discretion, we
decide this appeal on its merits based on our own review of the record. See
Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984)
(recognizing that courts prefer to decide each case upon its merits rather
than dismissing on procedural grounds).
3 An employer may elect to provide medical, surgical, and hospital
benefits directly to its employees, subject to the ICA’s approval.
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SESSION v. CIGNA/INDEMNITY
Decision of the Court
witness. Kennecott Copper Corporation v. Indus. Comm’n, 115 Ariz. 184, 186
(App. 1977) (an employee of a self-provider of medical services does not
have an “unqualified right to seek independent medical treatment and hold
the employer liable for the cost). Since Session chose Dr. Guidera knowing
he worked for her employer, we reject her claim.
CONCLUSION
¶14 Because the evidence in the record supports the ALJ’s award
and decision upon review, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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