Ruhe v. ICA/Hometown/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.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE JOHN R. RUHE, ) ) Petitioner, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) HOMETOWN FLOORING LLC, ) ) Respondent Employer, ) ) SCF ARIZONA, ) ) Respondent Carrier. ) ) DIVISION ONE FILED: 04-01-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-IC 09-0029 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action--Industrial Commission ICA CLAIM NO. 20080-500294 CARRIER NO. 0802358 Administrative Law Judge J. Matthew Powell AWARD AFFIRMED John R. Ruhe Petitioner in Propria Persona Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Chino Valley Phoenix James B. Stabler, Chief Counsel State Compensation Fund of Arizona by Deborah E. Mittelman Attorneys for Respondent Employer/Carrier Phoenix I R V I N E, Presiding Judge ¶1 Petitioner John R. Ruhe ( Ruhe ) seeks special action review of an Industrial Commission of Arizona ( ICA ) award and decision upon review of non-compensability for a right hip condition. For the following reasons, we affirm the award. JURISDICTION AND STANDARD OF REVIEW ¶2 This court has jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(2) (2003), 23951(A) (1995), and Rule 10 of the Arizona Rules of Procedure for Special Actions. In reviewing findings and awards of the ICA, we consider the evidence in the light most favorable to upholding the award. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). We will accept the administrative law judge s resolution of conflicting medical opinions unless it is not reasonably supported by the evidence. Fry s Food Stores v. Indus. Comm n, 161 Ariz. 119, 121, 776 P.2d 797, 799 (1989). FACTS AND PROCEDURAL HISTORY ¶3 industrial On January 5, 2008, Ruhe filed a claim for gradual injury. No specific traumatic injury occurred; he claimed his low back and hip pain was caused by forty-three years of installing floors. Floor covering installation includes moving heavy material, bending, and stooping. At the time of filing, he had been working as a floor covering installer for Respondent Employer for a little over two years. ¶4 On March 21, 2008, Respondent SCF Arizona ( Carrier ) accepted Ruhe s claim as a no loss claim and limited liability to a low back sprain/strain. Ruhe filed a Request for Hearing on May 12, 2008, stating that Carrier s liability should include the right hip. ¶5 On August 29, 2008, November 19, 2008, and December 1, 2008, the parties participated in formal hearings before the ALJ at the ICA. At the hearings, Ruhe testified that his hip and back pain was getting progressively worse in recent months. Ruhe s history included two industrial injuries to his lower back in 2004 and 2005. ¶6 Two doctors who examined Ruhe testified at the hearings. Dr. Daniel Burchfield, a board-certified orthopedic surgeon, examined Ruhe on April 2, 2008, and reviewed his xrays. He concluded that Ruhe s degenerated hip was caused by avascular necrosis, a condition that causes bone collapse and cartilage wear in the hip. collapse occurred but He could not say when the bone determined that Ruhe s only option to resolve the hip pain was hip replacement surgery. Dr. Burchfield was familiar with flooring installation work and concluded that work activities associated with it did not cause the avascular 3 necrosis. He explained that it is not known or recognized in the orthopedic community that [floor covering work] is a cause of avascular necrosis, nor is heavy manual labor necessarily associated with - typically with carpet installation . . . I m not familiar with any association between the flooring industry and avascular necrosis as a recognized industrial problem. ¶7 Dr. degeneration probably Burchfield of the progress hip faster stated caused in it by was possible necrosis avascular someone that would performing heavy manual labor as compared to someone working a desk job. He could not, however, agree or disagree with the second doctor s conclusion that Ruhe s work did not cause or contribute to Ruhe s hip degeneration. ¶8 A certified second doctor, orthopedic Dr. surgeon Anthony who Theiler, specialized a board- in joint replacements, examined Ruhe on July 31, 2008, and reviewed his x-rays. Dr. replacement Theiler condition surgery. was caused also Dr. by concluded Theiler a that concluded developmental Ruhe needed hip that Ruhe s hip disorder called dysplasia. He explained that developmental dysplasia is an early childhood congenital condition that prevents the hip from fully developing before the body reaches maturity. He concluded that Ruhe had severe dysplasia of the right hip and mild dysplasia of the left hip. 4 ¶9 Dr. Theiler said he was familiar with floor installing work and the work activities associated with it do not increase pressure across the hip joint. Ruhe was going to need a total hip replacement whether or not he did flooring. If flooring work was responsible for Ruhe s problems, Dr. Theiler would expect to see severe degeneration of both hips. In this case, he concluded, Ruhe s everyday activities would have caused the hip degeneration because his hip did not fully develop. Dr. Theiler explained that Ruhe s work might have aggravated the symptoms but did not cause or contribute to the need for hip replacement surgery. ¶10 The ALJ issued his Decision Upon Hearing and Findings and Award Regarding Benefits on February 18, 2009. He concluded that based on the medical evidence, including testimony, records from the healthcare installer two testifying providers, did not surgery. He applicant s cause condition in his left 1 doctors, or and reports activities contribute to as the from a other flooring degenerative hip or his need for total hip replacement determined that to the extent their opinions differ, Dr. Theiler s were probably more correct than those of Dr. Burchfield. Therefore, Ruhe s industrial claim coverage was limited to his low back condition. 1 The ALJ later issued an Order Nunc Pro Tunc to replace all references to left hip with right hip. 5 ¶11 Ruhe timely requested administrative review, and the ALJ summarily affirmed his award. Ruhe subsequently brought this appeal. DISCUSSION ¶12 Ruhe argues that there is no proof for the doctors conclusions that a pre-existing condition caused the degeneration of his right hip. He also contends that the parties and doctors only focused on one part of the work performed by a floor coverer. Moreover, he argues, the doctors have no firsthand experience with the floor covering trade nor have they ever experienced long term load bearing stress on their joints. I. Substantial Evidence ¶13 [A]n appellate court will affirm an award of the Industrial Commission when there is substantial evidence to support the Commission s decision. See Price v. Indus. Comm n, 23 Ariz. App. 1, 4, 529 P.2d 1210, 1213 (1975). In this case, Ruhe needed to present expert medical testimony to establish a causal connection between his injury and work activity to a reasonable degree of medical certainty. See Payne v. Indus. Comm n, 136 Ariz. 105, 108, 664 P.2d 649, 652 (1983). ¶14 Ruhe did not establish with reasonable medical certainty that his years of work as a floor coverer caused his hip condition. Although the two 6 doctors differed on the condition that caused the hip degeneration, neither concluded that it was caused by floor covering work. Dr. Theiler, whose opinion was ultimately accepted by the ALJ, was familiar with Ruhe s line of work. After careful review, he concluded that Ruhe s hip condition was entirely attributable to developmental dysplasia. Although Dr. Burchfield s testimony was equivocal 2 as to whether the work activity contributed to the degeneration of the hip, he was unable to state with a reasonable degree of medical certainty that Ruhe s work activities caused the hip condition. At best, Dr. Burchfield determined it was possible that heavy manual labor aggravated the condition. Therefore, substantial evidence was presented to support the ALJ s decision that Ruhe s work as a floor coverer did not cause or contribute to his need for hip replacement surgery. II. Medical Conflict ¶15 Ruhe also argues that both doctors offer far different unproven theories pointing to an unproven pre-existing condition petitioner administrative law never judge had. to It resolve is all the duty of the conflicts in the evidence and to draw inferences from that evidence. When more than one inference may be drawn, the administrative law judge 2 Testimony is equivocal if it is subject to two or more interpretations or if the expert avoided committing to a particular opinion. Rosarita Mexican Foods v. Indus. Comm n, 199 Ariz. 532, 536, ¶ 13, 19 P.3d 1248, 1252 (App. 2001). 7 may choose either, and we will not reject that choice unless it is wholly unreasonable. Johnson-Manley Lumber v. Indus. Comm n, 159 Ariz. 10, 13, 764 P.2d 745, 748 (App. 1988). ¶16 Both doctors agreed that Ruhe had end-state degeneration in his right hip that would require hip replacement surgery. They both agreed that a pre-existing condition, not Ruhe s work activities, caused the degeneration. They differed, however, on the specific pre-existing condition as well as whether Ruhe s work activities contributed to the hip condition. The ALJ determined Dr. Theiler s opinion that Ruhe s work neither caused nor contributed to the condition to be correct. This conclusion was not wholly unreasonable based on the evidence. Therefore, we affirm. CONCLUSION ¶17 For the foregoing reasons, we affirm the ALJ s award and decision upon review. /s/ _________________________________ PATRICK IRVINE, Presiding Judge CONCURRING: /s/ _________________________________ MICHAEL J. BROWN, Judge /s/ _________________________________ DONN KESSLER, Judge 8

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