May v. Maricopa County

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CHRISTINE D. MAY, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
MARICOPA COUNTY, Respondent Employer,
MARICOPA COUNTY, Respondent Carrier.
No. 1 CA-IC 13-0070
FILED 08-19-2014
Special Action - Industrial Commission
ICA Claim No. 20121-290170
Carrier Claim No. WCMAR2012704433
Deborah A. Nye, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Taylor & Associates, PLLC, Phoenix
By Weston S. Montrose
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix
By Lisa M. LaMont
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Kent E. Cattani joined.
T H U M M A, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (ICA) award and decision upon review for a scheduled disability
and supportive care. Claimant Christine May argues Dr. Irwin Shapiro’s
opinion is not legally sufficient to support the administrative law judge’s
(ALJ) finding that her left shoulder condition is not related to her industrial
injury. Because the ALJ did not err, the award is affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 Claimant worked for the Maricopa County Sheriff’s Office in
criminal processing. She parked in a county garage and rode a shuttle bus
between the garage and her place of work. On March 30, 2012, Claimant got
out of the bus at the parking garage, stepped onto uneven concrete and fell
on her left side.
¶3 Claimant first saw Ellen Hand, M.D., her primary care doctor.
Dr. Hand recorded a history of Claimant catching herself on her
outstretched left arm when she fell, which caused left elbow and wrist pain.
1This court defers to the ALJ’s factual findings considering the evidence in
a light most favorable to upholding the award, but reviews questions of law
de novo. See Young v. Indus. Comm’n, 204 Ariz. 267, 270 ¶ 14, 63 P.3d 298,
301 (App. 2003); Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105 ¶ 16, 41 P.3d
640, 643 (App. 2002).
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An x-ray revealed a left elbow fracture, and Dr. Hand referred Claimant to
Eric Novack, M.D.
¶4 Claimant first saw Dr. Novack on April 4, 2012, and noted the
March 30 industrial injury followed by left elbow pain. Dr. Novack
provided conservative treatment for the elbow fracture until August 2012.
When the fracture did not heal properly, he repaired it operatively.
¶5 Dr. Novack first recorded complaints about Claimant’s left
shoulder on September 28, 2012 and then noted on November 5, 2012, “[h]er
shoulder is bothering her more,” with the following plan:
2. With regards to the shoulder, while it is
certainly a possibility that her shoulder was
injured at the time of her initial work related
injury, I explained to her that I am not
convinced it will be considered work related. It
is continuing to bother her. We will do an MR
arthrogram of the shoulder, and we will make
further decisions once this is performed.
¶6 In December 2012, Claimant saw Evan Lederman, M.D., who
reported that the MR arthrogram revealed “an intact rotator cuff [with]
degenerative changes of the labrum.” Dr. Lederman provided conservative
treatment, but when Claimant’s left shoulder pain did not improve, Dr.
Lederman suspected an impingement or labral tear and recommended
arthroscopic surgery. He related the recommended surgery to Claimant’s
March 30 industrial injury.
¶7 Bo Eldridge McClain, M.D., saw Claimant both before and
after her industrial fall and provided Claimant ongoing medical treatment
for pain management. He began seeing Claimant in December 2011 for
cervical, arm and shoulder pain associated with fibromyalgia. He treated
Claimant with epidural injections in her cervical, thoracic and lumbar
spine, and her hips and shoulders. He stated that prior to her March 30
industrial injury, Claimant’s left shoulder pain was referred pain from her
cervical spine, and it was in the shoulder blade. After the industrial injury,
she had a different type of shoulder pain, and it was located in the shoulder
joint.
¶8 Dr. Irwin Shapiro, M.D., board certified in orthopedic
surgery, performed an independent medical examination (IME) of
Claimant. He reviewed and summarized her medical records in his report.
Dr. Shapiro noted that after the industrial injury, there was no mention of
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left shoulder pain until Dr. Novack’s September 28, 2012 medical record.
Moreover, before the industrial injury, Dr. McClain had noted complaints
of left shoulder pain on “both abduction and adduction of that left
shoulder.” Dr. Shapiro explained that these findings indicated “[t]hat there
is some type of abnormality in the shoulder itself, whether it be
impingement or mild adhesive capsulitis or fraying or labral pathology.”
Dr. Shapiro opined that Claimant’s left shoulder condition preexisted the
industrial injury.
¶9 After her claim was closed with a scheduled permanent
partial impairment based solely on a left elbow injury, Claimant timely
protested. The ALJ held five hearings and heard testimony from Claimant
and Drs. Lederman, McClain, Patel and Shapiro. The ALJ entered an award
for a scheduled permanent partial impairment and supportive care.
Claimant timely requested administrative review, and the ALJ
supplemented and affirmed the award. From Claimant’s timely challenge
to that decision, this court has jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(2), 23-951(A) (2014),2 and Arizona
Rules of Procedure for Special Actions 10.
DISCUSSION
¶10 Review by this court “shall be limited to determining whether
or not the commission acted without or in excess of its power and, if
findings of fact were made, whether or not such findings of fact support the
award, order or decision. If necessary, the court may review the evidence.”
A.R.S. § 23-951(B). Compensability requires injury by an accident arising
out of and in the course of employment. See A.R.S. § 23-1021. This involves
“both legal and medical causation.” DeSchaaf v. Indus. Comm’n, 141 Ariz.
318, 320, 686 P.2d 1288, 1290 (App. 1984). Legal causation concerns whether
Claimant’s injury arose out of her employment. See Peter Kiewit Sons’ Co. v.
Indus. Comm’n, 88 Ariz. 164, 168, 354 P.2d 28, 30 (1960); Scheller v. Indus.
Comm’n, 134 Ariz. 418, 420, 656 P.2d 1279, 1281 (App. 1982). Medical
causation typically requires expert medical testimony to establish that the
industrial accident caused the injury. See Allen v. Indus. Comm’n, 124 Ariz.
173, 175, 602 P.2d 841, 843 (App. 1979).
¶11 Claimant has the burden to prove all elements of a
compensable claim. See Toto v. Indus. Comm’n, 144 Ariz. 508, 512, 698 P.2d
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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753, 757 (App. 1985). Unless the industrial injury immediately causes
injuries that are obvious to a layperson, expert medical evidence is required
to establish a causal relationship between the industrial injury and its
alleged consequences. W. Bonded Prods. v. Indus. Comm’n, 132 Ariz. 526, 527-
28, 647 P.2d 657, 658-59 (App. 1982). Any conflict in the evidence is to be
resolved by the ALJ, and this court will not substitute its judgment. See
Malinski v. Indus. Comm’n, 103 Ariz. 213, 217, 439 P.2d 485, 489 (1968). The
ALJ is the sole judge of credibility. Holding v. Indus. Comm’n, 139 Ariz. 548,
551, 679 P.2d 571, 574 (App. 1984).
¶12 Claimant relied on testimony from Drs. Lederman and
McClain to meet her burden of proving that her left shoulder condition was
causally related to the industrial injury and not to preexisting degenerative
changes. Maricopa County responded with IME testimony from Dr.
Shapiro and other evidence, including the lack of mention of left shoulder
pain before Dr. Novack’s September 28, 2012 notation. The ALJ resolved the
conflicting medical evidence in Maricopa County’s favor.
¶13 Claimant argues Dr. Shapiro’s testimony cannot support the
award, because on cross-examination, his answers rendered his testimony
equivocal in the absence of a credibility finding. The testimony in question
states:
Q. Well, what if she did mention it to Dr.
Nova[c]k, and he just didn’t document those
complaints, would that change your opinion?
A. [Dr. Shapiro] It would be - - I would be
surprised because, again, he did note the wrist,
and he noted the elbow.
Q. Well, if I ask you to presume that, in fact, she
did tell him multiple times and - - and presume
that that’s true, that she really did tell him,
would that change your opinion?
A. Again, it depends. Was her pain present with
her arm at rest or just with activity - - or
elevation. Because if it’s with the arm at rest,
that’s not impairment. Okay? Impingement is
only with elevation. And to be frank I have
never seen anybody only abduct to 50 degrees.
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Usually it’s 70 to 80 degrees at the worst with
impingement, and then they usually get past it.
Q. So it’s - -
A. If she had complained multiple times to him that
her shoulder hurt, hurt, hurt, hurt, and it’s not as we
noted the first time that he - - that we document,
quote, claimant’s shoulder was, quote, bothering her
a bit, and that’s on 9/28. So if he had seen her
multiple times before, and she had complained each
time about her left shoulder, then I would potentially
have a different feeling about the complaint.
(emphasis added).
¶14 Claimant testified that she told Dr. Novack that her left
shoulder hurt “[f]rom the beginning” and she told him that “[m]ore than
once. Every visit.” Claimant stated that, each time, Dr. Novack responded
that after a fall some trauma could be expected. She argues that unless the
ALJ found her testimony incredible, Dr. Shapiro’s concession that if she
repeatedly complained, he “would potentially have a different feeling
about the [shoulder] complaint” rendered his opinion equivocal.
¶15 In response to Claimant’s request for a specific credibility
finding on administrative review, the ALJ supplemented her award
finding:
1. The parties are in agreement that a specific
finding should be made by the undersigned on
the factual conflict between [Claimant’s]
testimony and Dr. Nova[c]k’s
contemporaneous medical records. [Claimant]
testified that she reported a hurt shoulder on
each visit she had with Dr. Nova[c]k, yet his
records do not reflect such a report. I resolve the
conflict by adopting the contemporaneous
medical records as more probably correct.
By finding Dr. Novack’s contemporaneous medical records more reliable
than Claimant’s memory in her testimony during the hearing, the ALJ
resolved the conflicting evidence in favor of Dr. Shapiro and Maricopa
County. Claimant has not shown that resolution is improper. Instead, the
administrative record allows this court to determine the basis of the ALJ’s
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decision and, recognizing that credibility determinations are left to the ALJ,
to confirm that there was a legally sound basis for the ALJ’s decision. See
Joplin v. Indus. Comm’n, 175 Ariz. 524, 528, 858 P.2d 669, 673 (App. 1993).
Contrary to Claimant’s argument, this court “cannot say the conclusion
reached [by the ALJ] is wholly unreasonable.” Graver Tank & Mfg. Co. v.
Indus. Comm’n, 96 Ariz. 34, 38, 391 P.2d 589, 592 (1964). Moreover, on this
record, the medical evidence was not “in conformance with [Claimant’s]
testimony completely,” thereby distinguishing Hunter v. Industrial
Commission, 73 Ariz. 84, 85, 237 P.2d 813, 814 (1951) upon which Claimant
relies.
¶16 The ALJ was not asked to find that Dr. Shapiro’s response to
counsel’s hypothetical question on cross-examination rendered his opinion
equivocal and speculative. Medical evidence is equivocal when a doctor
keeps changing his or her mind or will not commit to an opinion. See State
Comp. Fund v. Indus. Comm’n, 24 Ariz. App. 31, 36, 535 P.2d 623, 628 (1975).
That Dr. Shapiro “would potentially” have a different opinion if the
underlying facts he relied on for his opinion changed is reasonable. But that
answer to a hypothetical question premised on a factual scenario the ALJ
was not required to accept, and did not find, does not make Dr. Shapiro’s
testimony equivocal or speculative. Id. Instead, Dr. Shapiro’s opinion is
consistent with Dr. Novack’s contemporaneous medical records, which the
ALJ deemed to be more reliable and credible than Claimant’s testimony.
Accordingly, on this record, the ALJ properly addressed the evidence and
no additional findings were necessary.
CONCLUSION
¶17 The award is affirmed.
:gsh
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