Garcia v. vw/copperpoint

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ALEX GARCIA, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
VW CONNECT, Respondent Employer,
COPPERPOINT WESTERN INSURANCE CO, Respondent Carrier.
No. 1 CA-IC 21-0015
FILED 7-7-2022
Special Action - Industrial Commission
ICA Claim No. 20192-610150
Carrier Claim No. 1000013974
The Honorable Michelle Bodi, Administrative Law Judge
AFFIRMED
COUNSEL
Snow Carpio & Weekley PLC, Phoenix
By Chad T. Snow and Dennis R. Kurth (argued)
Co-Counsel for Petitioner Employee
Toby Zimbalist, Esq., Phoenix
By Toby Zimbalist
Co-Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
CopperPoint Insurance Company, Phoenix
By Sharon M. Hensley (argued)
Counsel for Respondent Employer and Carrier
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Vice Chief Judge David B. Gass and Judge Angela K. Paton joined.
M c M U R D I E, Judge:
¶1 Petitioner Alex Garcia challenges an Industrial Commission
award that found his injury not compensable because it was not causally
related to his work. He argues that the expert medical testimony the
administrative law judge (“ALJ”) relied on cannot support that conclusion.
We find no reversible error and affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Garcia has been a heavy machine operator for most of his
adult life. In January 2019, he began working for VW Connect. Over the
next six months, he began to experience back pain that worsened until he
could not work starting in June 2019. In September 2019, he filed a workers’
compensation claim. VW Connect’s insurer, CopperPoint, denied the claim,
and Garcia requested a hearing.
¶3 At the hearing, the parties each offered testimony from
medical experts who had conducted independent medical examinations,
including physical examinations of Garcia and a review of his medical
records. Both experts agreed that Garcia had symptomatic lumbar spinal
stenosis, a degenerative disease in which the spinal canal through which
nerves pass narrows over time and pinches the nerves, causing pain. One
of the experts, Dr. Jeffrey Scott, concluded that Garcia’s years of work as a
backhoe and excavator operator aggravated his back condition, making it
symptomatic. Garcia claimed that his work contributed to the onset of his
symptoms because, as he described it, his body was “rocking and jumping
around” while operating the equipment.
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Decision of the Court
¶4 The other expert who testified, Dr. Lyle Young, concluded
that Garcia’s work did not contribute to his present condition. He
diagnosed Garcia with the symptomatic progression of pre-existing
degenerative spinal pathology, including L5-S1 spondylolisthesis and
significant bilateral neuroforaminal stenosis. He explained Garcia’s isthmic
spondylolisthesis is a universally congenital problem that “is either present
when one is born or develops . . . by the teenage years at the latest.” And
that “the natural history of that spondylolisthesis is a forward progression
of the spine, [and] eventual nerve root impingement.” He also testified:
there’s no evidence I can find in the medical literature that,
you know, jarring activities or working with heavy machinery
is—is at all implicated in the emergence of symptoms due to
pre-existing spinal stenosis, even though there are
occupational exposures that are implicated in certain disease
processes. One that comes to mind is, for example, carpal
tunnel syndrome. That is not the case when it comes to spinal
stenosis, so both in my opinion and my review of the medical
literature, there’s no evidence that that would be the case.
During cross-examination, Dr. Young repeated:
Also, figuring prominently in my opinion that is—and
perhaps more so is, you know, the—my understanding of the
line of work he’s in, which is working on machinery with
some jarring and vibration and things of like that, is not—is
not an accepted mechanism in the medical literature to render
spinal stenosis symptomatic.
Thus, the ALJ was presented with conflicting medical opinions about the
cause of Garcia’s worsening back condition.
¶5 After the record closed, but before the ALJ issued her
decision, Garcia filed a medical article entitled “Whole-body vibration and
postural stress among operators of construction equipment: A literature
review.” Garcia asserted that the article was posted on the Center for
Disease Control website and requested that it be considered as rebuttal
evidence.
¶6 VW Connect and CopperPoint objected to the article on
timeliness grounds and asserted that it did not contradict Dr. Young’s
testimony. The ALJ issued an order acknowledging receipt and stating that
she would not consider it because it was filed after the record closed. She
allowed the parties more time to request reopening the record to recall the
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GARCIA v. VW/COPPERPOINT
Decision of the Court
expert witnesses “to discuss the study.” She stated that she would issue a
decision if she did not receive a request before the deadline. No request was
filed, and the ALJ issued her decision.
¶7 The ALJ found Dr. Young’s testimony more persuasive than
Dr. Scott’s. She issued an award denying compensability.
¶8 Garcia requested administrative review, again urging the ALJ
to reopen the record to consider the literature review or, alternately, to
allow the medical experts to testify about the article. After VW Connect and
CopperPoint responded, the ALJ issued a Decision Upon Review. She
found Garcia had waived his right to offer more medical expert testimony
but admitted the literature review into evidence. She found the article did
not support Garcia’s theory because he had not testified that he had
experienced “whole-body vibration and awkward posture.” She also found
that the article was tentative in its conclusions because it stated that the
identified ergonomic risk factors might contribute to unspecified
musculoskeletal disorders but that research on the issue is sparse. She
concluded that the article did not “undermine” Dr. Young’s conclusions
and affirmed the award. Garcia then brought this statutory special action.
DISCUSSION
¶9 We consider the evidence in the light most favorable to
upholding the ALJ’s award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105,
¶ 16 (App. 2002). To show compensability, a claimant has the burden of
proving an injury by accident arising out of and in the course of
employment. Malinski v. Indus. Comm’n, 103 Ariz. 213, 216 (1968). In
addition, “[u]nless a causal connection is clearly apparent to a layperson,
the relationship must be established by expert medical testimony.” Stainless
Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz. 12, 19 (1985). We defer to the
ALJ’s resolution of conflicting evidence and affirm findings if any
reasonable theory of the evidence supports them. Perry v. Indus. Comm’n,
112 Ariz. 397, 398–99 (1975). An award based on conflicting medical
testimony will not be disturbed. Smiles v. Indus. Comm’n, 2 Ariz. App. 167,
168 (1965).
¶10 The general rule of medical causation in workers’
compensation is that any industrial contribution to an injury is enough to
show compensability. Skyview Cooling Co. v. Indus. Comm’n, 142 Ariz. 554,
558 (App. 1984). Thus, if Garcia’s employment aggravated his pre-existing
condition, he has shown a compensable injury. Martinez v. Indus. Comm’n,
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192 Ariz. 176, 180, ¶ 17 (1998). Relying on Dr. Young’s opinion, the ALJ
concluded that Garcia’s employment did not contribute to his condition.
¶11 Garcia argues that Dr. Young’s testimony was based on the
mistaken belief that the existing medical literature does not support
Garcia’s theory. He argues that because Dr. Young’s opinion was based on
this faulty premise, the opinion is unsupported and cannot sustain the
ALJ’s decision.
¶12 The ALJ admitted the literature review into evidence but
concluded that the article did not contradict Dr. Young’s testimony. After
declining the opportunity to offer medical expert testimony interpreting the
literature review, Garcia now argues that the ALJ misinterpreted the article.
In any event, the ALJ considered the conflicting evidence presented by the
medical experts and resolved the conflict in favor of the employer after
finding its medical testimony was more probably correct. We conclude that
the evidence reasonably supported the ALJ’s finding on this record.
CONCLUSION
¶13 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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