CAMPBELL v. ICA/ALLEGIANT

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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 ) ) ) Petitioner Employee, ) ) v. ) THE INDUSTRIAL COMMISSION OF ARIZONA, ) ) ) Respondent, ) ) ALLEGIANT AIR, LLC, ) ) Respondent Employer, ) FEDERAL INSURANCE CO./CHUBB SERVICES ) ) CORP., ) ) Respondent Carrier. ) SUZANNE CAMPBELL, DIVISION ONE FILED: 06/21/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-IC 11-0086 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 20103-010206 Carrier Claim No. WC2010344884 Administrative Law Judge Joseph L. Moore AWARD AFFIRMED J. Wayne Turley, P.C. By J. Wayne Turley Attorney for Petitioner Employee Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Mesa Phoenix Goering, Roberts, Rubin, Brogna, Enos Tucson & Treadwell-Rubin, P.C. By Pamela A. Treadwell-Rubin and Elizabeth L. Warner Attorneys for Respondents Employer and Carrier B R O W N, Judge ¶1 This is a special action review of an Industrial Commission of Arizona ( ICA ) consolidated award and decision upon review denying benefits. The administrative reopening principal law judge not required to for issue temporary raised ( ALJ ) findings to support the award. was and made is disability whether legally the sufficient Because we conclude that the ALJ specifically explain his resolution of conflicting medical opinions, we affirm. BACKGROUND ¶2 Suzanne Campbell was a flight attendant for Allegiant Air. Her duties included heavy lifting of cases bottles and soda cans and totes full of beer and ice. no history of prior back injuries, although she of water She had had been diagnosed with scoliosis as a teenager and wore a girdle for several months. ¶3 while On October 23, 2007, Campbell sustained a back strain lifting beverages. She filed a workers compensation claim and received conservative medical treatment. A spinal injection completely relieved her pain, and she returned to her 2 regular work additional as a flight medical attendant. treatment and Campbell performed received her regular no work until she sustained a second industrial back injury. ¶4 Campbell testified that on September 24, 2010, she lifted a tote filled with 30 beers and felt a snap in her back followed by excruciating pain. She filed a new compensation claim, which was accepted for benefits. workers Following an independent medical examination ( IME ), her claim was closed with no permanent impairment. She timely requested a hearing and to asserted was entitled because benefits she receive her industrially-related continuing condition medical was not stationary. ¶5 Campbell also filed a petition to reopen her October 23, 2007 industrial injury claim. The petition to reopen was denied requested for benefits, and Campbell another hearing. The ALJ issued a consolidated notice of hearing on both the reopening and continuing benefits issues. ¶6 Three ICA hearings were held for testimony from the claimant, her treating physician, Mark Bradley Kabins, M.D., and the independent medical examiner, Paul Edgar Palmer, M.D. Following the hearings, the ALJ entered a consolidated decision denying reopening disability of benefits the on 2007 the 3 claim 2010 and claim. awarding temporary Campbell timely requested administrative review, and the ALJ summarily affirmed the award. Campbell challenging claim. the We then decision have brought only as jurisdiction to this the pursuant special September to action, 24, Arizona 2010 Revised Statutes ( A.R.S. ) sections 12-120.21(A)(2) (2003), 23-951(A) (2012), and Arizona Rule of Procedure for Special Actions 10. DISCUSSION ¶7 Campbell does not challenge the ALJ s denial of her petition to reopen her 2007 injury claim. Instead, she appeals only the resolution of the 2010 claim, asserting that the ALJ s findings supporting the award of temporary compensation benefits were legally insufficient. disability Specifically, Campbell argues that the ALJ s award fails to comply with the standard set forth in Post v. Indus. Comm n, 160 Ariz. 4, 770 P.2d 308 (1989), because the ALJ failed to explain why adopted the testimony of Dr. Palmer instead of Dr. Kabins. he In order to receive continuing medical benefits on her 2010 claim, Campbell had the burden of proving that her physical condition is causally related to her industrial injury and that she is not yet medically stationary. 24 Ariz. Establishing App. a 282, causal medical testimony. See, e.g., Lawler v. Indus. Comm n, 284, 537 P.2d relationship 1340, usually 1342 requires (1975). expert McNeely v. Indus. Comm n, 108 Ariz. 453, 4 455, 501 P.2d 555, 557 (1972). This is particularly true for back are and spine injuries which not apparent to laymen. Western Bonded Prods. v. Indus. Comm n, 132 Ariz. 526, 527-28, 647 P.2d 657, 658-59 (App. 1982). ¶8 In Post, the ALJ was presented with conflicting medical testimony regarding the claimant s work-related injury. 160 Ariz. at 5, 770 P.2d at 309. The ALJ made no factual findings of consequence, resolved no conflicts in the evidence, and set forth no conclusions applying law to fact. Id. The court therefore concluded that the ALJ s decision was deficient because it did not specify the basis for the disposition and the evidence supporting that basis. 770 P.2d at 311. resolve all Id. at 7, The court further stated that the judge must conflicts in the evidence, especially conflicts involve expert medical testimony. at 312. ultimate when the Id. at 8, 770 P.2d The court went on to state that this does not mean a lack of findings on a particular issue . . . invalidate[s] an award se[.] per Id. at 7, 770 P.2d at 311. But if the appellate court must speculate about the basis for the award or assume a factfinder s role, then the award must be set aside because it is so lacking in specificity that we cannot review it. ¶9 Id. at 7, 9, 770 P.2d at 311, 313. In this case, the ALJ heard medical testimony from 5 Drs. Kabins and Palmer. Dr. Kabins, a board certified orthopedic surgeon, first saw Campbell on a referral on December 14, 2007. 1 He took a history, performed an examination, and reviewed X-ray and MRI films. degenerative scoliosis and The doctor diagnosed preexisting the 2007 industrial injury with resultant back pain and right lower extremity radiculopathy. He recommended conservative treatment. ¶10 her Dr. Kabins next saw Campbell on November 5, 2010, for September 2010 industrial injury. history and reexamined Campbell. He took an interim He found that her objective findings of abnormality had changed significantly between his examinations, and he concluded that the October 2010 injury had aggravated testified Campbell s that preexisting Campbell s condition scoliosis. continued The to doctor deteriorate, and he performed a three-stage surgery in March and April 2011 to improve her pain and function by stabilizing her spine and preventing opined future that the progression September of 2010 the curvature. industrial injury Dr. Kabins aggravated Campbell s preexisting condition and contributed to the need for surgery. ¶11 Dr. Palmer testified 1 that he is a board certified On cross-examination, Dr. Kabins testified that he had a felony conviction in January 2010 for misprision of a felony, but that he currently was licensed in Arizona and in good standing. 6 orthopedic surgeon, and he has diagnosed and treated scoliosis patients for over forty years. He is also a member of the Scoliosis Research Society, an international group of doctors involved with spinal deformities. for IMEs. of Dr. Palmer saw Campbell twice On February 26, 2008, Dr. Palmer received a history Campbell s preexisting scoliosis and her October 2007 industrial injury, and he reviewed her X-ray and MRI films. testified that the industrial injury caused a He sprain/strain superimposed on the preexisting scoliosis. ¶12 Dr. Palmer reexamined Campbell on January 11, 2011, and reviewed her interim medical history. He testified that his opinion there remained unchanged and that had aggravation of Campbell s underlying scoliosis. that neither of her industrial magnitude to cause an aggravation. aggravation caused permanent. He by found injuries been no He explained was of sufficient Further, he stated that any the injuries no objective was temporary evidence and that not Campbell required active medical care or surgery. ¶13 It is the ALJ s duty to resolve all conflicts in the medical evidence and to draw warranted inferences. Royal Globe Ins. Co. v. Indus. Comm n, 20 Ariz. App. 432, 434, 513 P.2d 970, 972 (1973). consider the In resolving medical qualifications and 7 conflicts, backgrounds of the the ALJ may expert witnesses and their experience in diagnosing the type of injury incurred. Carousel Snack Bar v. Indus. Comm n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367 (1988). Further, the testimony of the treating physician is not entitled to greater weight than that of an independent medical examiner. See Walters v. Indus. Comm n, 134 Ariz. 597, 599, 658 P.2d 250, 252 (App. 1982). ¶14 In this case, the ALJ entered an eight-page award with ten separate findings of fact. In his decision, he summarized the testimony of both Drs. Kabins and Palmer and reviewed both of their medical records and reports. The ALJ then acknowledged his responsibility to resolve the experts conflicting opinions and found Dr. Palmer s opinions to be more well-founded and more probably correct. We find that this finding complies with the specificity required under Post. ALJ to state findings of fact Although Post requires an that support his ultimate conclusion, an ALJ is not required to set forth his reasons for rejecting competing evidence. 12. See Post at 7-8, 770 P.2d at 311- Nor is an ALJ required to make a specific finding on every issue, as long as he resolves the ultimate issues in the case. See Cavco Indus. v. Indus. Comm n, 129 Ariz. 429, 435, 631 P.2d 1087, 1093 helpful for (1981). the ALJ Therefore, to explain although why he it might found Dr. have been Palmer s testimony more persuasive than Dr. Kabin s, he was not required 8 to do so. ¶15 Campbell testimony was should required be also taken argues that telephonically, of the ALJ. because more This the medical thorough findings court previously has addressed and accepted the adequacy of telephonic versus inperson testimony. See T.W.M. Custom Framing v. Indus. Comm n, 198 Ariz. 41, 48, 6 P.3d 745, 752 (App. 2000). In addition, ALJs will may conduct hearings in any manner that achieve substantial justice, and they are not bound by common law or statutory rules of evidence or by technical or formal rules of procedure. A.R.S. § 23-941(F) (2012). Therefore, the ALJ did not err in accepting the doctors testimonies telephonically and was not required to make further findings because he did so. CONCLUSION ¶16 For the foregoing reasons, we affirm the ALJ s award of temporary disability compensation benefits. /S/ ________________________________ MICHAEL J. BROWN, JUDGE CONCURRING: /S/ ________________________________ MAURICE PORTLEY, PRESIDING JUDGE /S/ ________________________________ PHILIP HALL, JUDGE 9

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