Fonseca v. Dole fresh/dole Food

NOTICE: NOT FOR PUBLICATION.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
CONCEPCION FONSECA, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
DOLE FRESH VEGETABLES, INC., Respondent Employer,
DOLE FOOD COMPANY, INC., Respondent Carrier.
No. 1 CA-IC 14-0027
FILED 12-04-2014
Special Action – Industrial Commission
ICA Claim No. 20123-520177
Carrier Claim No. 30121236848-0001
The Honorable JoAnn C. Gaffaney, Administrative Law Judge
AFFIRMED
COUNSEL
Concepcion Fonseca, Yuma
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent ICA
FONSECA v. DOLE FRESH/DOLE FOOD
Decision of the Court
Jardine Baker Hickman & Houston PLLC, Phoenix
By Stephen M. Venezia
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
J O N E S, Judge:
¶1 Concepcion Fonseca (Claimant) seeks special action review of
an Industrial Commission of Arizona (ICA) award and decision upon
review, in which the administrative law judge (ALJ) found her medical
conditions became stationary on March 3, 2013, with no permanent
impairment. Although Claimant raises multiple issues in her opening
brief,1 the only issue properly before us is whether the ALJ’s findings and
award were reasonably supported by the record. Based upon the ALJ’s
resolution of conflicting medical opinions, we conclude reasonable
evidence exists in the record to support the award. Accordingly, we affirm.
JURISDICTION AND STANDARD OF REVIEW
¶2 We have jurisdiction pursuant to Arizona Revised Statutes
sections 12-120.21(A)(2)2 and 23-951(A), and Arizona Rule of Procedure for
Special Actions 10. When reviewing ICA’s findings and awards, we defer
1 Specifically, Claimant raised the following issues: (1) whether the
respondent employer had workers’ compensation insurance; (2) whether
the respondent employer discriminated against her in violation of Arizona
law; and (3) whether she qualified for Time Lost Benefits. As Claimant did
not raise these issues to the ALJ, we will not consider them. T.W.M. Custom
Framing v. Indus. Comm’n, 198 Ariz. 41, 44, ¶ 4, 6 P.3d 745, 748 (App. 2000)
(noting “this Court generally will not consider on appeal issues not raised
before the I[ndustrial Commission]”).
2 Absent material revisions from the relevant date, we cite a statute’s
current version.
FONSECA v. DOLE FRESH/DOLE FOOD
Decision of the Court
to the ALJ’s factual findings, but review questions of law de novo. Young v.
Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003).
FACTS3 AND PROCEDURAL HISTORY
¶3 The respondent employer, Dole Fresh Vegetables, Inc. (Dole),
employed Claimant as a packer. Her job duties included “packing and
taping lettuce.” On December 11, 2012, Claimant slipped on a wet dirt road
and fell onto her back. Claimant experienced pain in her neck, upper and
middle back, and left hip and arm as a result of the fall. She filed a worker’s
compensation claim, which was accepted for benefits.
¶4 On the day she fell, Claimant was treated by Dr. David Smock
at Foothills Walk-In Medical Care & Urgent Care in Yuma, Arizona, and x-
rays revealed no significant damage. Dr. Smock diagnosed Claimant with
back and arm pain, and prescribed pain medication and a Toradol injection;
she was also referred for physical therapy. Claimant was released to work.4
¶5 Claimant was then referred to Dr. James Serocki, an
orthopedic surgeon. At her initial consultation, Claimant complained of
back pain “present diffusely through the thoracic and lumbar spines,” and
denied having any pain in her legs. Upon an examination, Dr. Serocki
observed “minimal diffuse tenderness over the mid and low lumbar spine,
as well as both paralumbar and both parathoracic regions,” but did not
perceive any muscle spasm. He diagnosed Claimant with axial mid and
low back pain, and prescribed Ibuprofen. Noting that the physical therapy
did not seem to be helping Claimant, he also recommended she discontinue
her treatment.
¶6 On March 13, 2013, Claimant visited Dr. Serocki for a
“Permanent and Stationary Evaluation.” Claimant continued to complain
of pain in her mid-back that “radiate[d] proximally up towards her neck
and distally towards her low back.” An examination of Claimant’s back
revealed no muscle spasm, normal thoracolumbar posture, and a normal
gait. Dr. Serocki noted that Claimant had reached a plateau in her recovery
after completing a course of conservative treatment, and he did not believe
3 We consider the evidence in the light most favorable to sustaining
the ALJ’s award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d
640, 643 (App. 2002).
4 The record indicates Claimant was originally released to work on
“full duty” the day of her fall, but was placed on “light duty” a week later.
FONSECA v. DOLE FRESH/DOLE FOOD
Decision of the Court
invasive treatment was warranted. Dr. Serocki concluded Claimant had
“reached her point of maximal medical improvement and can be
considered permanent and stationary as of [the date of the evaluation,
March 13, 2013],” found there was no ratable permanent impairment, and
discharged her.
¶7 Based upon Dr. Serocki’s evaluation, Dole issued a notice of
claim status on March 25, 2013, closing Claimant’s claim as stationary with
no permanent impairment. Claimant timely requested, and was granted, a
hearing. After hearings were held in October and November 2013 and
January 2014, the ALJ determined Claimant’s condition was stationary,
without permanent impairment, as of March 3, 2013; 5 the ALJ later affirmed
her decision after Claimant’s request for further review. Claimant timely
petitioned this Court for special action relief.
DISCUSSION
¶8 In workers’ compensation cases, the claimant bears the
burden of proving her condition is causally related to her industrial injury
and is not medically stationary, or if the condition is medically stationary,
that she has sustained a permanent disability attributable to that injury. See
Lawler v. Indus. Comm’n, 24 Ariz. App. 282, 284, 537 P.2d 1340, 1342 (1975)
(citations omitted). The ALJ is tasked with resolving conflicts in the medical
evidence, “and we will not disturb that resolution unless it is ‘wholly
unreasonable.’” Gamez v. Indus. Comm’n, 213 Ariz. 314, 316, ¶ 15, 141 P.3d
5 We note an apparent typographical error in the ALJ’s findings and
award, which determined Claimant’s condition became stationary on
March 3, 2013, also identified as “the date of Dr. Serocki’s last examination.”
The record indicates Claimant’s last examination with Dr. Serocki actually
occurred on March 13, 2013, which is corroborated by the Notice of Claim
Status issued by Dole that demonstrated Claimant’s “[t]emporary
compensation and active medical treatment terminated on 03/13/2013
because [C]laimant was discharged.” Therefore, it is evident Claimant’s
medical condition became stationary on March 13, 2013, rather than March
3, 2013. See Steward v. Indus. Comm’n, 69 Ariz. 159, 170, 180, 211 P.2d 217,
224, 231 (1949) (holding the Industrial Commission “may correct its records
to reflect the truth where it is apparent that a mistake has been made,” and
that if the mistake is merely a typographical or clerical error, “the correction
may be made without notice, by an order nunc pro tunc”) (citing Hamer v.
Indus. Comm’n, 43 Ariz. 349, 351, 31 P.2d 103, 104 (1934)).
FONSECA v. DOLE FRESH/DOLE FOOD
Decision of the Court
794, 796 (App. 2006) (quoting Ortega v. Indus. Comm’n, 121 Ariz. 554, 557,
592 P.2d 388, 391 (App. 1979)).
¶9 Claimant essentially argues the ALJ’s award was not
supported by reasonable evidence because there was a conflict in the
medical evidence presented.6 We disagree.
¶10 Dr. Evan Minkoff, a physician board certified in physical
medicine and rehabilitation, examined Claimant on one occasion in April
2013 and testified on her behalf. Dr. Minkoff testified he noticed
“tenderness along the muscles of [her] spine with some tightness,” but that
this was “the only pertinent positive finding” as the remainder of his
examination, which focused on her upper and lower extremities and her
cervical and lumbar spine, was essentially normal. Dr. Minkoff further
stated Claimant’s sensation to light touch and her range of motion were
within normal limits. Based upon his exam and his review of Dr. Serocki’s
records, Dr. Minkoff diagnosed Claimant with “thoracic pain, cervical pain
and myofascial pain syndrome,” and expressed his belief that active care
was reasonable and appropriate for treatment of Claimant’s symptoms.
Specifically, Dr. Minkoff recommended trigger point injections, which
combine a steroid with an anesthetic, to relax the muscles in Claimant’s
spine in an effort to alleviate some of her pain. Dr. Minkoff, however, could
not say Claimant suffered a permanent impairment.
¶11 In contrast, Dr. Scott Krasner, a physician board certified in
occupational medicine, independent medical exams, and forensic medicine,
testified that he examined Claimant on August 26, 2013, at the request of
Dole. Based upon his examination and review of the medical records, Dr.
Krasner opined Claimant’s industrial injury was a strain or sprain that had
resolved. He testified he did not find any “objective findings of any
pathology related to the industrial injury” that would support or explain
Claimant’s subjective pain complaints during his exam. He further testified
Claimant exhibited several “Waddell’s signs,” or non-physiologic
responses. For instance, he reported that when he palpated Claimant’s
back, she would describe pain responses to even the slightest touch. He
6 Claimant also argues that the evidence was not reviewed by
qualified professionals. She does not, however, develop this argument or
support it with any legal authority, and therefore, we do not address it
further. See ARCAP 13(a)(6) (requiring arguments be supported by
citations to relevant facts in the record and applicable legal authority);
Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2
(App. 2007).
FONSECA v. DOLE FRESH/DOLE FOOD
Decision of the Court
interpreted this response as non-physiological because she did not make
similar complaints when her back was touching the chair while she was
seated. Additionally, Dr. Krasner observed Claimant walk into his office
without placing any weight on her cane, but when he asked her to walk
independently in the exam room, she could only do so while grabbing onto
other items, purportedly to support her weight. Ultimately, he concluded,
consistent with Dr. Serocki’s medical opinion, that Claimant’s condition
was stationary and without a permanent impairment, and she did not
require supportive care.
¶12 Even assuming Dr. Minkoff’s testimony could support a
finding of permanent impairment, the ALJ resolved the conflict in the
testimony in favor of the opinions of Drs. Krasner and Serocki. It is the
ALJ’s role to “resolve all conflicts in the evidence, especially when the
conflicts involve expert medical testimony.” Post v. Indus. Comm’n, 160
Ariz. 4, 8, 770 P.2d 308, 312 (1988) (citing Perry v. Indus. Comm’n, 112 Ariz.
397, 398, 542 P.2d 1096, 1097 (1975), and Phelps Dodge Corp. v. Indus. Comm’n,
121 Ariz. 75, 77, 588 P.2d 368, 370 (App. 1978)). Because the resolution was
based upon a reasonable view of the record, we cannot say it was “wholly
unreasonable.” See Stainless Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz.
12, 19-20, 695 P.2d 261, 268-69 (1985) (citing Ortega, 121 Ariz. at 557, 592 P.2d
at 391).
CONCLUSION
¶13 For the foregoing reasons, the award is affirmed.
:gsh