DRINKER v. SOWN/SCF

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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 LINDA F. DRINKER, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, SOWIN LOVE SHELTERS, Respondent Employer, SCF ARIZONA, Respondent Carrier. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 9/24/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-IC 12-0057 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action - Industrial Commission ICA Claim No.: 98365-402155 Carrier Claim No.: 9835466 The Honorable James B. Long, Administrative Law Judge AWARD AFFIRMED Linda F. Drinker Petitioner In Propria Persona Phoenix Andrew F. Wade, Chief Counsel Industrial Commission of Arizona Attorney for Respondent Phoenix James B. Stabler, Chief Counsel SCF Arizona By Ronald C. Willis Attorneys for Respondents Employer and Carrier Phoenix C A T T A N I, Judge ¶1 This Commission of administrative medical is a Arizona law contends reasonably 16 ALJ supported by of an decision upon ( ALJ ) finding Linda from percent erred review and resulting with the action award judge condition stationary, special by an entering the review ankle permanent Industrial F. injury award evidence. For to be Drinker that the an Drinker s impairment. an by is not following reasons, we affirm the ALJ s decision. FACTS AND PROCEDURAL BACKGROUND ¶2 Drinker worked as a child care counselor at the Sowin Love Shelters. In 1998, a child kicked Drinker s leg, injuring her right ankle. The workers compensation carrier accepted the claim as compensable. ¶3 Drinker sought treatment for subtalar joint fusion surgery in 2008. the injury, including In 2010 and 2011, in response to Drinker s complaints of chronic pain, the carrier sent Drinker for independent medical evaluations with Dr. William J. Leonetti, D.P.M., a board-certified physician in foot and ankle surgery. In 2010, Dr. Leonetti opined that the 2008 fusion attempt failed; had the 2 failed fusion was the direct cause of her chronic pain; and her right ankle required refusion. to In 2011, Dr. Leonetti noted that Drinker was unwilling participate in additional surgical procedures, recommended re-fusion of her right ankle joint. namely the With Drinker s only remaining option being palliative measures, Dr. Leonetti opined that award. from this could be provided under a supportive care Dr. Leonetti concluded that Drinker s condition arising the industrial accident was stationary, and she would remain on permanent work restrictions due to her loss of balance and an abnormal gait. percent impairment of Dr. Leonetti recommended awarding her 16 her right lower extremity based on American Medical Association Guidelines. ¶4 The carrier terminated Drinker s benefits on the basis of the 2011 evaluation, and Drinker challenged the termination, claiming a permanent continuing impairment was subsequently-scheduled her industrial need injury for ankle treatment more than 16 hearing, and and that her At the percent. Drinker testified that failed subtalar joint the due to fusion surgery, she suffers from various medical conditions, including: teeth and rheumatoid valgus hair loss, arthritis, (bunions), hypertension, congestive heart neurological bowing leg osteoarthritis, failure, disease, muscle, dysuria fibromyalgia, hallux diabetic (painful abducto mellitus, urination), allergies, migraines, gout, liver disease, anxiety, autoimmune 3 disease, chronic pain, permanent loss of balance, and altered body temperature. She argued that the surgeon who performed the 2008 fusion surgery put radium in her body and that she had developed 15 diseases from that alone. She submitted various medical records in support of her testimony. ¶5 The ALJ found that although Drinker submitted medical records that describe various medical conditions, she failed to prove a causal relationship industrial injury. from his Drinker 2011 the conditions and her The ALJ adopted Dr. Leonetti s conclusions evaluation medically between report and stationary issued with 16 impairment of her right lower extremity. an award percent finding permanent After Drinker sought reconsideration, the ALJ affirmed the decision upon review. ¶6 This jurisdiction sections timely pursuant special to action Arizona 12-120.21(A)(2) and followed. Revised 23-951(A) We Statutes and have ( A.R.S. ) Arizona Rule of Procedure for Special Actions 10. 1 DISCUSSION ¶7 award, On special action review of a workers compensation we defer to the ALJ s questions of law de novo. factual findings, but consider Young v. Indus. Comm n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). 1 We view the Absent material revisions after the relevant date, we refer to a statute s current version. 4 evidence in the light most favorable to sustaining the award and will affirm the award unless there is no reasonable basis for the ALJ s decision. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). ¶8 and Drinker argues that her condition is not stationary her permanent impairment is more than 16 percent. An applicant has the burden to prove her claim by a preponderance of the evidence. Brooks v. Indus. Comm n, 24 Ariz. App. 395, 399, 539 P.2d 199, 203 (1975). To receive continuing benefits, an applicant must establish that it is more likely than not that the condition is not medically stationary, or, if the condition is stationary, she has sustained a permanent impairment. Timmons v. Indus. Comm n, 83 Ariz. 74, 79, 316 P.2d 935, 938 (1957). ¶9 During the hearing before the ALJ, Drinker claimed that she needed additional benefits because she is very sick. She acknowledged Dr. Leonetti s recommendation that she undergo a re-fusion surgery, but reiterated her unwillingness to attempt further surgical treatment of her right ankle. provided medical records to the ALJ, none of Although she these records support her contentions that her condition is not stationary or that her permanent impairment is greater than 16 percent. ¶10 Drinker asserts that she suffers from numerous other medical conditions as a result of her industrial injury or the 5 treatment thereof. For a claim to be compensable, the applicant must not only suffer an injury, but must show that the current medical condition was caused by the industrial injury. Indus. Comm n, 116 Ariz. 125, 127, 568 P.2d Yates v. 432, 434 (App. 1977). The causal relationship must be established by expert medical testimony Although when Drinker s not medical apparent to a layperson. records describe some Id. of the conditions she attributes to the workplace injury, 2 the records do not establish a causal relationship conditions and her industrial injury. between her medical See W. Bonded Prods. v. Indus. Comm n, 132 Ariz. 526, 527, 647 P.2d 657, 658 (App. 1982) (noting that a layperson lacks the required knowledge to make an accurate diagnosis or to describe a condition s etiology, making expert medical testimony establishing causation indispensible). ¶11 ankle In Drinker s opening brief, she argues that her right is internal not stationary hardware. She as she did not, requires however, surgery to remove raise this issue before the ALJ and provided no medical evidence to support her 2 The Heart & Vascular Center of Arizona records for a February 20, 2012 visit indicate that Drinker suffers from chest pain, dyspnea (shortness of breath), abnormal electrocardiogram, fibromyalgia, migraines, degenerative joint disease, gout, abnormal liver function tests, and anxiety. Contrary to Drinker s assertion, there is no evidence reflecting the use of radium in her medical treatment or of the existence of conditions caused by exposure to radium. 6 contention. 2010 and Her assertion is also contrary to Dr. Leonetti s 2011 appropriate reports surgical that recommended option, which re-fusion Drinker has as the repeatedly rejected. ¶12 ALJ s Dr. Leonetti s decision. 2011 Drinker s evaluation right ankle report has supports reached the maximum medical improvement, without additional surgery, which she has rejected. Thus, stationary. Leonetti In properly Guidelines, see her right lower determining followed Ariz. the the Admin. extremity degree American Code of work injury impairment, Medical is Dr. Association R20-5-113(B)(1), recommended a 16 percent permanent impairment award. and Because the ALJ s decision is supported by reasonable evidence, the ALJ did not err. See Lovitch, 202 Ariz. at 105, ¶ 16, 41 P.3d at 643. CONCLUSION ¶13 For the foregoing reasons, we affirm the award. /S/ KENT E. CATTANI, Judge CONCURRING: /S/ MAURICE PORTLEY, Presiding Judge /S/ JOHN C. GEMMILL, Judge 7

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