Labor/Fara v. ICA/Stewart

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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 Employer, ) ) FARA, ) ) Petitioner Carrier, ) ) v. ) THE INDUSTRIAL COMMISSION OF ARIZONA, ) ) Respondent, ) ) ) AUSTIN STEWART, ) ) Respondent Employee. ) LABOR FINDERS, DIVISION ONE FILED: 03/02/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-IC 09-0035 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 20073-600818 Carrier Claim No. 917340 Administrative Law Judge Deborah Nye AWARD SET ASIDE Moeller Law Office By M. Ted Moeller Attorney for Petitioners Employer and Carrier Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Tucson Phoenix Austin Stewart In Propria Persona Respondent Employee San Bernardino, CA K E S S L E R, Judge ¶1 This is a special action review of an Industrial Commission of Arizona ( ICA ) award and decision upon review for an unscheduled disability. Three issues are presented on appeal: (1) whether the administrative law judge ( ALJ ) erred by basing her finding that the respondent employee ( claimant ) had sustained a permanent impairment on a medical examination that predated the stationary date; (2) whether the ALJ erred by relying on a medical finding of permanent impairment that was not numerically rated pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment ( AMA Guides ); and (3) whether the ALJ selected an erroneous stationary date. Because we find that the ALJ erred by relying on a finding of permanent impairment which predated the selected stationary date, we set aside the award. I. ¶2 This JURISDICTION AND STANDARD OF REVIEW court has jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(2) (2003), 23951(A) (1995), Actions 10. and Arizona Rules of Procedure for Special In reviewing findings and awards of the ICA, we defer to the ALJ s factual findings, but review questions of law 2 de novo. Young v. Indus. Comm n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003) (citation omitted). We consider the evidence in a light most favorable to upholding the ALJ s award. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002) (citation omitted). II. ¶3 FACTUAL AND PROCEDURAL HISTORY On December 12, 2007, the claimant was employed by the petitioner employer, Labor Finders, and was assigned to work for a company that manufactured metal door guides. 1 While lifting door guides, the claimant sustained a low back strain. He filed a workers' compensation claim, which was accepted for benefits. Shortly after his injury, the claimant s family moved to California, where he continued to receive conservative medical treatment for his back injury. ¶4 On Moheimani, June M.D., Permanent And ruptured disc 5, for 2008, an Stationary L5-S1, the Initial claimant Orthopedic Report. and stated The the claimant lumbar epidural 1 blocks, A. Michael Consultation doctor that probability his injury is work related. saw in and diagnosed all a medical Dr. Moheimani offered which the claimant The record in this case is in two parts: the optical disk ( OD ) file, which is sequentially numbered in the upper right-hand corner of each page, and the ALJ hearing file, which is not numbered. Documents contained only in the ALJ hearing file are referred to in this draft by date and description alone. 3 declined. The doctor concluded that the claimant has reached maximal medical improvement as no additional treatment can be offered to alleviate his pain or cure him of the effects of his industrial injury. The doctor recommended supportive care and work restrictions of no lifting more than 20 pounds and no repetitive bending and stooping. Finally, he stated: APPORTIONMENT The patient gives no history of a previous disability regarding his back. Therefore, I would apportion 100 percent of his disability to work-related factors. PERMANENT AND STATIONARY The patient has reached maximal medical improvement as of the date of this evaluation, June 5, 2008. IMPAIRMENT It should be noted the patient reports that he had neurodiagnostic testing performed of the lower extremities. In reviewing the submitted medical records, I did not find one. I will hold off on giving the patient an impairment rating as it may be a difference between a Diagnosis Related Estimate category II or III based on the neurodiagnostic tests. (emphasis added). ¶5 Based petitioner on carrier, Dr. FARA, Moheimani s issued a medical notice of report, claim the status closing the claimant s claim with a permanent impairment. The claimant timely requested a hearing and submitted a narrative and medical records. Two ICA hearings were held with testimony from the claimant and independent medical examiner, Zoran Maric, M.D. Following the hearings, the ALJ entered an award finding 4 the FARA claimant timely stationary with requested administrative summarily affirmed her award. III. ¶6 a permanent partial review, impairment. and the ALJ FARA then brought this appeal. DISCUSSION FARA first argues that the ALJ committed reversible error by awarding the claimant a permanent impairment based on a medical report, stationary date. which was authored five months before In that regard, the ALJ found: 8. . . . Both Dr. Moheimani and Dr. Maric agree that applicant s injury is medically stationary and will not benefit from further active medical care. I find applicant s injury became medically stationary as of November 17, 2008. 9. The doctor s opinions conflict on the (a) diagnosis related to the industrial injury[;] (b) whether there is a permanent disability; and (c) whether applicant requires supportive care or permanent work restrictions. I resolve the conflicts in favor of Dr. Moheimani s opinions as more probably correct. I find that the applicant sustained a disc injury at L5-S1; that he should be given permanent work restrictions to include no lifting more than 20 lbs, and no repetitive bending or stooping; and that he is entitled to receive further evaluation and treatment if his condition flares up or his radicular pain reoccurs. In that vein, I find that applicant is entitled to supportive care to consist of three office visits annually with his treating doctor, and, if there are flare-ups applicant should be provided reasonable prescriptive medications, a series of epidural injections, and diagnostic testing, as prescribed for his lumbar spine injury. (emphasis added). 5 the ¶7 Workers' compensation claims are administered through a progression of separate claim stages. E.g., Hardware Mutual Cas. Co. v. Indus. Comm'n, 17 Ariz. App. 7, 9, 494 P.2d 1353, 1355 (1972). After compensability is established, a claimant typically passes through three claim stages: temporary total disability, during which he is unable to work; temporary partial disability, during which he may engage in some work but continues to need active medical treatment; and permanent total or partial disability, after his condition has become medically stationary. Id. ¶8 claimant A condition is not becomes subject to stationary further when improvement discharged from active medical treatment. his and medical he is See Janis v. Indus. Comm'n, 27 Ariz. App. 263, 265, 553 P.2d 1248, 1250 (App. 1976). Once a claimant s condition becomes stationary, he is no longer entitled to receive temporary disability benefits, but he may be entitled to receive permanent disability benefits, if he can show entitlement. See Cont l Cas. Co. v. Indus. Comm'n, 23 Ariz. App. 294, 296, 532 P.2d 869, 871 (1975). 2 On the date the injury becomes stationary, the carrier is no longer required to 2 When a physician discharges a claimant from treatment, she is required to determine whether the claimant has sustained any permanent impairment of function resulting from the industrial injury. See Arizona Administrative Code ( A.A.C. ) R20-5-113(B). 6 pay temporary disability benefits, and instead, the ICA required to compute permanent disability benefits, if any. is See A.R.S. § 23-1047(A) (Supp. 2009); Minton v. Indus. Comm'n, 90 Ariz. 254, 258, 367 P.2d 274, 277 (1961). ¶9 This court applied these provisions in Hecla Mining Co. v. Indus. Comm n, 119 Ariz. 313, 580 P.2d 774 (App. 1978). In Hecla, the claimant sustained a low back injury. treatment, he underwent ( IME ). The IME an found independent the claimant medical Following examination stationary with no permanent impairment as of the June 22, 1976 examination. The carrier finding the on IME then issued a of closing claim his claim status claimant stationary report. The claimant timely protested, and an ICA hearing was held. and notice based the The claimant s treating physician testified that when he last saw the claimant on May 19, 1976, he was stationary with a permanent impairment. The ALJ then entered an award finding the claimant stationary on June 22, 1976, but awarding a permanent impairment based on the May 19, 1976 evaluation. ¶10 On appeal, this court set aside the award. We held that [t]hese findings are fatal to the award. Having adopted June 22, 1976 as the stationary date, the hearing officer committed error in accepting Dr. Busenkell s opinion of permanent disability based on the May 19, 1976 valuation. Furthermore, Dr. 7 Busenkell testified that when he last examined [claimant] he expected his condition to improve. 119 Ariz. at 314, 580 P.2d at 775 (citations omitted). ¶11 We have the same problem in this case as recognized in Hecla. The ALJ awarded the claimant temporary disability benefits through the date of Dr. Maric s addendum medical report on November 17, 2008, i.e., the stationary date, but she awarded the claimant permanent disability benefits pursuant to a medical report authored five months earlier, on June 5, 2008, before the claimant became medically stationary. According to Hecla, this is a fatal error. ¶12 By definition, the right to an evaluation of permanent impairment does not arise medically stationary. until Permanent after a impairment claimant and becomes permanent disability are often used interchangeably, which is imprecise. The Arizona Supreme Court addressed this issue in Smith v. Indus. Comm'n, 113 Ariz. 304, 305-06 n.1, 552 P.2d 1198, 1199200 n.1 (1976): We adopt the definitions of the terms permanent impairment and permanent disability found in the Preface to the AMA Guides: (1) Permanent Impairment. - This is a purely medical condition. Permanent impairment is any anatomic or functional abnormality or loss after maximal medical rehabilitation has been achieved, which abnormality or loss the physician considers stable or non-progressive at the time evaluation is made. It is always a basic 8 consideration disability. in the evaluation of permanent (2) Permanent Disability. - This is not a purely medical condition. A patient is permanently disabled or under a permanent disability when his actual or presumed ability to engage in gainful activity is reduced or absent because of impairment which, in turn, may or may not be combined with other factors. . . . For that reason, the ALJ cannot rely on a finding of permanent impairment made before she concludes that the claimant is stationary. IV. CONCLUSION ¶13 For the foregoing reasons, we set aside the award. Based on our resolution of the initial issue, it is unnecessary to address the remaining issues raised on appeal. Nothing in this decision, however, precludes the ALJ from making a new decision on remand which would reconcile the conflict between the stationary date and the date 9 of the award of permanent impairment. See A.A.C. R20-5-152(A); Employers Mut. Liab. Ins. Co. of Wis. v. Indus. Comm n, 115 Ariz. 439, 442, 565 P.2d 1300, 1303 (App. 1977) (effect of setting aside an award on appeal). /s/ DONN KESSLER, Judge CONCURRING: /s/ PATRICK IRVINE, Presiding Judge /s/ MICHAEL J. BROWN, Judge 10

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