ARCHAMBEAULT v. INDEMNITY INSURANCE

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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 JOSEPH ARCHAMBEAULT, ) ) Petitioner Employee, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) BSG, ) ) Respondent Employer, ) ) ) INDEMNITY INSURANCE COMPANY OF ) NORTH AMERICA, ) ) Respondent Carrier. ) __________________________________) DIVISION ONE FILED: 12/4/2012 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-IC 12-0009 DEPARTMENT E MEMORNADUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action--Industrial Commission ICA CLAIM NO. 20110-840197 CARRIER NO. 684CBEFK0296A Administrative Law Judge Paula R. Eaton AWARD AFFIRMED Jerome, Gibson, Stewart, Stevenson, Engle & Runbeck, P.C. By James L. Stevenson Attorneys for Petitioner Employee Phoenix Klein, Doherty, Lundmark, Barberich & La Mont, P.C. By Lisa M. LaMont Attorney for Respondent Employer and Carrier Phoenix Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix G E M M I L L, Judge ¶1 Joseph Archambeault seeks special action review of an Industrial workers Commission compensation sustained while of Arizona benefits working for for ( ICA ) an Beauty decision injury Systems he denying alleges Group he ( BSG ). Because the record supports the credibility determination and ultimate conclusion of the Administrative Law Judge (ALJ), we affirm the award. FACTS AND PROCEDURAL HISTORY ¶2 Archambeault began work as a salon design consultant with BSG in 2006. On January 30, 2011, Archambeault was working a trade show in Long Beach, California, when he tripped and fell to the floor face-first. He claimed he hurt promptly reported the incident to his supervisor. his shift that day. 2 his back and He completed ¶3 On March 22, 2011, Archambeault filed a claim with BSG s workers compensation insurance carrier. On April 16, 2011, his claim was denied and he thereafter timely protested the denial and requested a hearing. ¶4 Archambeault had a preexisting lower back problem. sustained surgeries a previous before the injury date of and the had undergone current four incident. He back Several years preceding this incident, Archambeault had hardware placed in his back in conjunction with surgery to relieve pressure on a nerve at hardware the was L5-S1 level removed, to prevent Archambeault the began pain. After taking a the decreased amount of pain medication and testified he was doing really well emotionally. During the period immediately preceding this incident, Archambeault was walking up to 2 miles a day but said he still had very limited mobility due to the pain. fall, Archambeault began to take more pain After the medication and started running out of his pain medication between appointments. In May 2011, BSG terminated Archambeault for his failing to reach his sales goals. ¶5 After Archambeault returned to Phoenix following the accident, he saw his primary care physician, Dr. Craine, at a regularly scheduled visit on February 17, 2011. 2011, Archambeault again visited 3 Dr. Craine. On March 15, Archambeault failed to mention his fall at either of these visits. In fact, he did not mention his fall to Dr. Craine until his visit on April 14, 2011. examination prior to was the Dr. Craine essentially January 30, testified unchanged 2011 that from incident. Archambeault s his examinations During one visit, Archambeault complained specifically of increased pain down his right leg, but Dr. Craine clarified that he always ha[d] pain down his right leg . Dr. Craine put Archambeault on a new pain medication, but stopped the prescription within a month because it was ineffective. Dr. Craine additionally stated that Archambeault s fall, at most, caused a soft tissue injury that had resolved by April 14, 2011. ¶6 On August 4, 2011, Dr. Terry McLean conducted an independent medical examination of Archambeault at the request of BSG and its carrier. Following his examination of Archambeault and his review of available prior medical records, Dr. McLean testified that Archambeault did not exhibit any abnormal pain behaviors or Waddell signs of nonorganic signs . 1 Based on Archambeault s history and description of symptoms, Dr. McLean testified that Archambeault may have new pain in his right thigh after the incident, indicative of an injury at the 1 Waddell tests are conducted to determine whether the patient is malingering. 4 L4 level. Archambeault was ordered to undergo an electrodiagnostic study by Dr. Wolf, which further demonstrated some acute chronic changes or aggravation. However, the electrodiagnostic study was unable to verify that there were any nerve changes at L3 or L4, objective verifiable finding. regarding the validity of leaving Dr. McLean without any Dr. McLean acknowledged concern Archambeault s complaints since Archambeault did not promptly report the fall to his primary care physician, Dr. Craine. Based on the history provided by Archambeault, attributed Dr. McLean an aggravation Archambeault s prior symptoms to the recent fall. of At the same time, he did not find any reason to disagree with Dr. Craine s determination that Archambeault was back to his baseline status by his last visit on November 21, 2011. 2 Lastly, Dr. McLean confirmed that he relied upon the accuracy of Archambeault s history in rendering his opinions regarding the aggravation of symptoms. ¶7 The ALJ received testimony from Archambeault, Dr. Craine, and Dr. McLean on August 30, 2011, November 22, 2011, and December 6, 2011, respectively. 2 The ALJ issued a Decision Dr. McLean testified that: So, as we look at the overall picture, certainly I believe that this particular episode caused a temporary aggravation and, as Dr. Craine pointed out, the claimant was back to his baseline, so I believe it was just a temporary aggravation and not a permanent aggravation. 5 Upon Hearing and Findings and Award on December 20, 2011. The ALJ found Archambeault not credible and accepted the testimony of Dr. McLean as more probably correct and well-founded. On January 11, 2012, Archambeault filed a request for review with the ICA. On January 24, 2012, the ALJ affirmed her prior decision. ¶8 Archambeault timely appeals to this Court. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2) (2003), 23951(A) (2012), 3 and Arizona Rule of Procedure for Special Actions 10. ANALYSIS ¶9 This court deferentially reviews factual findings of the ICA, but independently reviews its legal conclusions. PFS v. Indus. Comm n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App. 1997). We affirm an ICA decision if it is reasonably supported by the evidence after reviewing the evidence in a light most favorable to sustaining the award. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.2d 640, 643 (App. 2002). ¶10 was The ALJ s finding that Archambeault was not credible reasonably supported by the evidence. The ALJ is responsible for weighing the evidence and making findings on 3 We cite the current versions of statutes when no material revisions have occurred since the events in question. 6 questions of fact, which include the credibility of witnesses. Villanueva v. Indus. Comm'n, 148 Ariz. 285, 288, 714 P.2d 455, 458 (App. 1985). contradictory, When the inconsistent testimony with other of the evidence, impeached, the ALJ can reject the testimony. claimant or is directly Holding v. Indus. Comm'n, 139 Ariz. 548, 551, 679 P.2d 571, 574 (App. 1984). ¶11 Archambeault s testimony appears inconsistent with the testimony of his physician. Archambeault testified that the injury sustained on January 30, 2011 caused him increased back pain and required him to take more medication. However, despite his alleged increased pain, he also testified that he failed to mention the incident to his primary care physician for months. He saw Dr. Craine, his primary care physician, two separate times before mentioning his accident on the third visit. Craine testified essentially that unchanged Archambeault s during these condition visits and that Dr. remained he, at most, sustained a soft tissue aggravation that resolved itself shortly after. Additionally, Dr. Craine testified that Archambeault s pain medication remained essentially the same. Although Archambeault complained of decreased mobility following the accident, Dr. Craine did not notice any new problems during Archambeault s visits. ¶12 Dr. McLean also expressed concern with the validity of 7 Archambeault s complaints. When asked if Dr. Craine s testimony caused him concern, Dr. McLean stated: Certainly it causes concern with respect to the validity of complaint then, in that we have an individual who s been treating with this particular physician for many, many years for pain management, and who s also very in tune with respect to his back and other things because he s had this chronically for many years, and yet he does not mention any potential aggravating factor to his pain management position. 4 So, yeah, that does create some concern with respect to the validity of the complaints. ¶13 Archambeault also admitted to having performance issues at his sales position with BSG, where he was given a termination notice four days before he told his physician of the incident. On this record, the ALJ s adverse finding regarding Archambeault s credibility was supported by reasonable evidence. ¶14 Archambeault asserts that the ALJ exceeded authority by disregarding the opinions of medical experts. her He claims the ALJ not only failed to discern the opinions of the medical experts instead. but We disagree. alternatively substituted her opinion It is the duty of the ALJ to resolve conflicts in the evidence and to determine which opinion is more probably correct. 601, 4 609, ¶ 25, Kaibab Indus. v. Indus. Comm n, 196 Ariz. 2 P.3d 691, 699 (App. 2000). Further, Although the transcript says position, we suspect Dr. McLean said physician. 8 [n]othing binds the fact-finder to accept or reject an expert s entire opinion. Fry's Food Stores v. Indus. Comm'n, 161 Ariz. 119, 123, 776 P.2d 797, 801 (1989); State v. Cano, 103 Ariz. 37, 41, 436 P.2d 586, 590 (1968) (expert testimony is merely evidence the trier of fact considers and weighs). ¶15 In her finding, the more probably correct. testimony as testified that Archambeault s verifiable and that his aggravation of symptoms Archambeault s history. ALJ accepted Ultimately, aggravation medical was Dr. was not opinion dependent upon McLean s Dr. McLean objectively regarding the accuracy the of Dr. McLean s testimony, understood in conjunction with the ALJ s finding that Archambeault was not credible, supports Therefore, we the reject ALJ s decision Archambeault s to deny contention the that claim. the ALJ disregarded expert opinions and exceeded her authority. ¶16 Archambeault also asserts that the ALJ failed to make sufficient findings to conflicting findings resolving causation. We disagree, explain what he characterized the material issue however, because the adequate to allow us to review the ALJ s decision. 9 of as medical findings are CONCLUSION ¶17 The award is affirmed. ____/s/_____________________ JOHN C. GEMMILL, Judge CONCURRING: ______/s/________________________ DIANE M. JOHNSEN, Presiding Judge ______/s/________________________ JON W. THOMPSON, Judge 10

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