EVANS v. ICA/WACKENHUT/NEW HAMPSHIRE

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE EVAN F. EVANS, ) ) Petitioner, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) WACKENHUT, ) ) Respondent Employer, ) ) NEW HAMPSHIRE c/o GALLAGHER ) BASSETT, ) ) Respondent Carrier. ) __________________________________) DIVISION ONE FILED: 06/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-IC 11-0081 DEPARTMENT D MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action--Industrial Commission ICA CLAIM NO. No. 20092-740081 CARRIER NO. No. 000891-086680-WC-01 Administrative Law Judge Paula R. Eaton AWARD AFFIRMED Evan F. Evans In Propria Persona, Petitioner Phoenix Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix Manning & Kass, Ellrod, Ramirez, Trester LLP by Robert B. Zelms Pari K. Scroggin Attorneys for Respondent Employer Scottsdale G E M M I L L, Judge ¶1 Evan Evans ( Claimant ) seeks special action review of the decision of the Administrative Law Judge ( ALJ ) in which she resolved Claimant s conflicting industrial permanent impairment. whether there findings. was medical accident did evidence not by cause finding a that compensable Claimant raises one issue for our review: sufficient evidence to support the ALJ s For the reasons that follow, we affirm the ALJ s award. FACTUAL AND PROCEDURAL HISTORY ¶2 Claimant sustained injuries after a fall while working the graveyard shift on September 21, 2009. Claimant alleges that he has a permanent impairment to his left shoulder and neck (cervical spine) as well as carpal tunnel syndrome. 18, 2010, Bassett, Claimant s issued a employer s Notice of insurance Claim carrier, discharging On October Gallagher Claimant stating there was no permanent disability to Claimant. and Claimant subsequently requested review before the Industrial Commission of Arizona on December 30, 2010. After formal hearings and testimony from Claimant and multiple physicians, the ALJ issued 2 a Decision Upon Hearing and Findings and Award on September 8, 2011. ¶3 The ALJ made the following pertinent findings: I find the opinions of Dr. Guidera and Dr. Nauman to be more probably correct and well founded. Based upon the testimony of Dr. Guidera and Dr. Nauman, I find that the [Claimant s] condition related to the industrial injury was medically stationary as of November 22, 2010 with no permanent impairment. I further find that the [Claimant s] carpal tunnel condition is unrelated to the subject industrial injury. ¶4 On September 26, 2011, Claimant requested a review of the ALJ s Decision Upon Hearing and Findings and Award. November 2, 2011, the Industrial Commission On affirmed the Decision Upon Hearing and Findings and Award, concluding it was fully supported by the evidence[.] ¶5 Claimant jurisdiction timely pursuant to filed Arizona this appeal Revised and Statutes we have ( A.R.S. ) sections 12-120.21(A)(2) (2003), 23-951(A) (2012), 1 and Arizona Rule of Procedure for Special Actions 10. ANALYSIS ¶6 The applicable standard of review requires that we consider the evidence in a light most favorable to upholding the ALJ s award. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 1 We cite the current versions of statutes when no material revisions have occurred since the events in question. 3 16, 41 P.3d 640, 643 (App. 2002). We will not disturb the ALJ s findings unless her conclusions cannot be reasonably supported on any reasonable theory of evidence. Phelps v. Indus. Comm n, 155 Ariz. 501, 506, 747 P.2d 1200, 1205 (1987). ALJ determines witness credibility, Royal Moreover, the Globe Ins. Co. v. Indus. Comm n, 20 Ariz. App. 432, 434, 513 P.2d 970, 972 (1973), and has a duty to resolve all conflicts in the evidence and to draw inferences from that evidence. Johnson-Manley Lumber v. Indus. Comm n, 159 Ariz. 10, 13, 764 P.2d 745, 748 (App. 1988). ¶7 We understand Claimant s argument to be that the ALJ should have accepted Dr. Scott s and Dr. Scalice s findings that Claimant s injuries were permanent and causally related to his industrial injury - conclusions other physicians findings. which were contrary to two In a report dated January 15, 2010, Dr. Scalice expressed his belief that Claimant s left shoulder injury qualified as a permanent impairment. Dr. Scalice did not testify in person, but his medical reports were included in the record. Drs. Scott, Guidera, and Nauman testified before the ALJ. ¶8 We briefly summarize the findings made by the doctors below. Dr. Scott testified that Claimant had permanent impairments to his shoulder and neck (cervical spine) caused by his fall. Dr. Scott did not evaluate Claimant s carpal tunnel 4 issues. ¶9 Dr. Guidera, a hand surgeon specialist, testified that Claimant did have carpal tunnel syndrome but that he could not say with reasonable probability that it was causally related to Claimant s fall. ¶10 Dr. Nauman, after reviewing Dr. Scalice s notes and other records, opined that Claimant s injury to his left elbow did not warrant a finding of a permanent impairment. further unrelated opined to that the Claimant s industrial cervical injury. He spine also Dr. Nauman injury was concluded that Claimant s shoulder injury was not specifically related to the industrial injury. Finally, Dr. Nauman believed that Claimant did not suffer from carpal tunnel syndrome, and if he did, it was not casually related to the industrial injury suffered by Claimant. ¶11 Faced experts, the with ALJ is conflicting charged with opinions from resolving the testimony and is in the best position to do so. the medical conflicting See Kaibab Indus. v. Indus. Comm'n, 196 Ariz. 601, 605, ¶ 10, 2 P.3d 691, 695 (App. 2000) ( it is the ALJ, not this court, who has the responsibility of resolving conflicts in expert opinions, and we will affirm an ALJ's resolution of conflicting opinions absent an abuse of his discretion ). All testifying doctors evaluated 5 Claimant personally. from other They also reviewed various medical reports professionals as well as MRIs, x-rays, and other records. ¶12 Based on this record and our standard of review, we conclude there findings. that was sufficient evidence to support the ALJ s The ALJ did not abuse her discretion by determining Claimant s injuries did not warrant a permanent injury finding and that Claimant s injuries were not causally related to his on-the-job fall on September 21, 2009. In short, we find no error. CONCLUSION ¶13 For the foregoing reasons, we affirm the ALJ s findings and award because they were sufficiently supported by the evidence. ____/s/___________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ____/s/__________________________ PETER B. SWANN, Judge ____/s/__________________________ ANDREW W. GOULD, Judge 6

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