Bowser v. ICA/Pulice/Allianz

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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 ROGER BOWSER, ) ) Petitioner, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) PULICE CONSTRUCTION, ) ) Respondent Employer,) ) ALLIANZ INSURANCE CO c/o GAB ) BUSINESS SVC., ) ) Respondent Carrier. ) ___________________________________) DIVISION ONE FILED: 05-11-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-IC 09-0063 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action--Industrial Commission ICA CLAIM NO. 89342-159283 CARRIER NO. 48846-48479 Robert F. Retzer, Administrative Law Judge AWARD AFFIRMED Roger Bowser In Propria Persona Petitioner Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Mesa Phoenix Klein Lundmark Barberich & LaMont, P.C. by R. Todd Lundmark Attorneys for Respondent Employer/Carrier Phoenix G E M M I L L, Judge ¶1 Petitioner employee Roger Bowser ( Bowser ) seeks special action review of an Industrial Commission of Arizona ( ICA ) award and decision upon review for scheduled permanent partial disability and supportive care. Bowser raises several issues on appeal, primarily arguing that the administrative law judge ( ALJ ) provided him with misleading advice that prevented him from being awarded medical treatment for his left knee and lower back. For the following reasons, we affirm. Facts and Procedural History ¶2 In September 1989, Bowser sustained an industrial injury when he injured the bottoms of his feet while working for respondent employer Pulice Construction. Since being injured, Bowser s industrial claim has been closed and opened a number of times. ¶3 In April 2007, Bowser s claim was reopened by respondent carrier Allianz Insurance Company c/o GAB Business Services ( Allianz ) so that Bowser could have surgery performed on his left foot. The surgery was performed the next month. In March 2008, Bowser began to experience pain in his lower back 2 and left knee, which he believed was related to the surgery. As a result, Bowser s podiatrist, Dr. Harrill, referred Bowser to an orthopedist and also ordered an MRI on Bowser s back. Allianz, however, declined to cover the referral and MRI. ¶4 On August 22, 2008, Allianz issued Bowser a notice of claim status terminating his active medical care and temporary compensation as of July 23, 2008. The claim was closed with a 15% scheduled permanent partial disability on Bowser s left leg, compensated at the 75% rate. This was the same award Bowser had previously received from the ICA in 1999. Bowser protested the closure of his claim and requested a hearing before the ICA, which was granted. ¶5 On January 20, 2009, the presiding ALJ, Bowser, and counsel for Allianz conference. participated According to in a Bowser, prehearing during the telephone telephone conference the ALJ advised Bowser that he only needed to call one doctor to testify during the hearing and that Bowser could choose which doctor he telephone conference was indicates that during wanted not the to testify. recorded, conference the the Although available ALJ the record suggested or encouraged Bowser that he limit the number of doctors he planned to call to testify during the hearings. ¶6 Formal hearings were held on February 20, 2009, April 3 20, 2009, and May 14, 2009. whether Bowser should The issues before the ALJ were receive continuing benefits and/or greater permanent disability and whether Bowser s low back and left knee conditions were related to Bowser s 1989 industrial injury. ¶7 During the hearings, the ALJ received expert medical testimony from Bowser s podiatrist, Dr. Harrill, and also from Dr. Douglas Kelly, an orthopedic surgeon who performed independent medical examination on Bowser in January 2009. an Dr. Kelly opined that Bowser s left foot was medically stationary at approximately a 15% permanent impairment, and that Bowser s low back and left knee symptoms were not related to the industrial injury. Dr. Harrill, on the other hand, opined that it was possible that Bowser s low back and left knee condition were related to his industrial injury. He also opined that Bowser s left foot was medically stable, stationary, and had obtained maximum medical improvement. ¶8 Following the hearings, the ALJ entered an award for scheduled permanent partial disability and for supportive care. In its opinions decision, were the most ALJ stated probably that it correct found and Dr. well Kelly s founded. Accordingly, the ALJ terminated Bowser s medical benefits and temporary compensation as of July 23, 2008. 4 Bowser received 15% scheduled permanent partial disability of his left leg, compensated at the 75% rate, and work boot orthotics as needed, 3 office visits per year and medications including Ultracet and Ibuprofen and on rare occasions Percocet. ¶9 Bowser requested administrative summarily affirmed the award. action. Statutes We have sections and the ALJ Bowser next brought this special jurisdiction ( A.R.S. ) review pursuant to 12-120.21(A)(2) Arizona (2003) Revised and 23- 951(A) (1995) and Arizona Rule of Procedure for Special Actions 10. Analysis ¶10 The claimant has the burden proving all elements of a compensable claim. Toto v. Indus. Comm'n, 144 Ariz. 508, 512, 698 P.2d 753, 757 (App. 1985). legal and medical causation. Compensability requires both Grammatico v. Indus. Comm'n, 211 Ariz. 67, 71, ¶ 19, 117 P.3d 786, 790 (2005); DeSchaaf v. Indus. Comm'n, 141 Ariz. 318, 320, 686 P.2d 1288, 1290 (App. 1984). Medical causation is established by showing that the accident caused the injury. Grammatico, 211 Ariz. at 71, ¶ 20, 117 P.3d at 790; DeSchaaf, 141 Ariz. at 320, 686 P.2d at 1290. In this case, Bowser challenges the ALJ s decision regarding the absence of medical causation regarding symptoms. 5 his low back and left knee ¶11 We deferentially review the ALJ's factual findings but independently review his legal conclusions. Grammatico v. Indus. Comm'n, 208 Ariz. 10, 12, ¶ 6, 90 P.3d 211, 213 (App. 2004), aff d, 211 Ariz. 67, 117 P.3d 786 (2005). The ALJ determines the credibility of witnesses, Royal Globe Ins. Co. v. Indus. Comm'n, 20 Ariz. App. 432, 434, 513 P.2d 970, 972 (1973), and resolves conflicts in the evidence, Johnson-Manley Lumber v. Indus. Comm'n, 159 Ariz. 10, 13, 764 P.2d 745, 748 (App. 1988). When more than one inference may be drawn, the [ALJ] may choose either, and we will not reject that choice unless it is wholly unreasonable. Id. With these principles in mind, we address the issues Bowser raises on appeal. ¶12 First, Bowser asserts that during the January 20, 2008 telephone advice conference that the ultimately ALJ prevented active medical treatment. unable to conclude erroneous advice. recorded and we provided that Bowser Bowser with from misleading being awarded Based on the available record, we are Bowser was provided misleading or As already noted, the conference call was not have no evaluate Bowser s claim. transcript that would permit us to The transcript from the February 20, 2009 hearing includes some discussion between Bowser and the ALJ regarding the January 20 conference call, but that discussion does not reveal that the ALJ made 6 misleading statements to Bowser during the conference call. Bowser does not cite any portions of the record or other authority in support of his position that he received misleading advice during the January 20 conference call. Under these circumstances, we are unable to further consider Bowser s arguments concerning his conversation with the ALJ during the telephone conference. See State Farm Mut. Auto. Ins. Co. v. Novak, 167 Ariz. 363, 370, 807 P.2d 531, 538 (App. 1990) (declining to address arguments raised without citation to any authority or portions of the record ); see also ARCAP 13(a)(6); Ariz. R.P. Spec. Act. 7(e). ¶13 Bowser also claims that during the February 20, 2009 hearing, the ALJ advised Bowser that Dr. Harrill was acceptable to testify on the problems that [Bowser] was having with [his] lower back [and] left knee[,] even though the ALJ knew that a podiatrist was specialties. not qualified Specifically, to testify Bowser takes about orthopedic issue following exchange: JUDGE RETZER: Mr. Bowser, you have requested four different doctors and I think we discussed at the prehearing conference we try and narrow that down. MR. BOWSER: Yes; Yes, sir. JUDGE RETZER: As far as and I understand from what you told Mr. Lundmark and myself, Dr. Harrill H-a-r-r-i-l-l is recommending the MRI for your back and your 7 with the left leg. And is he also recommending continuing treatment for your left foot? MR. BOWSER: Yes, sir, and all my doc, Dr. Andrews has recommended an MRI for my lower back also. JUDGE RETZER: Okay. Okay. So really Dr. Harrill could cover all three MR. BOWSER: Easily. Based upon this portion of the record, we disagree with Bowser that the ALJ was suggesting that Dr. Harrill was qualified to testify about orthopedic specialties. Rather, given the information Bowser provided to the ALJ, it appears the ALJ was merely noting that Dr. Harrill and Dr. Andrews, Bowser s family doctor, were both going to testify that they recommended an MRI on Bowser s back and, therefore, Dr. Andrew s testimony would be cumulative. It is not uncommon for the ALJs in these proceedings to encourage the parties to limit the number of doctors who must be called for live testimony, especially when the medical records and reports of non-testifying available for review. doctors are being admitted and On this record, we do not find the ALJ s comments misleading or improper. ¶14 It appears from Bowser s arguments that he is assuming that the ALJ chose Dr. Kelly s testimony over Dr. Harrill s because Dr. podiatrist. Kelly is an orthopedist and Dr. Harrill But such an assumption may not be correct. 8 is a In the award, the testimony ALJ of does Dr. Harrill Harrill testified Bowser s original problems, not that state there Dr. he he is a possible because industrial whereas that was accident Kelly is a and discounting podiatrist. his testified link back the Dr. between and unequivocally knee that Bowser s low back and left knee symptoms were not related to the industrial Kelly s injury. testimony forcefully and conclusions.1 The over more ALJ Dr. may have Harrill s persuasively chosen because expressed to credit Dr. Dr. Kelly more and explained his Additionally, the ALJ noted that he had reviewed the various medical reports and records contained in the ICA file and the ALJ s findings were presumably based in part on these records as well as the doctors testimony. ¶15 Bowser also asserts that Allianz should not have denied him coverage for treatment on his lower back and left knee. The decision issued by the ALJ terminated medical and temporary compensation benefits. 1 Bowser s In the decision, We also note that medical conclusions regarding causation must be based upon probabilities rather than upon possibilities. Employers Mut. Liab. Ins. Co. of Wisconsin v. Indus. Comm'n, 17 Ariz. App. 516, 519, 498 P.2d 590, 593 (1972). Accordingly, medical opinions should ordinarily be stated to a reasonable medical probability. See Olivas v. Indus. Comm n, 16 Ariz. App. 543, 546, 494 P.2d 743, 746 (1972). The failure to use these magic words, however, is not necessarily fatal. See Skyview Cooling Co. v. Indus. Comm n, 142 Ariz. 554, 559, 691 P.2d 320, 325 (App. 1984). 9 the ALJ noted that Dr. Harrill opined it was possible that Bowser s knee and back complaints were related to the industrial injury. that The ALJ also summarized Dr. Kelly s opinions and noted Dr. Kelly opined that Bowser s left knee and low back complaints were not related to his 1989 industrial injury. The AlJ found Dr. Kelly s opinions to be most probably correct and well founded. conflict in It was the ALJ's responsibility to resolve this the medical evidence and evidence supporting his resolution. there was reasonable Accordingly, we will not disturb the ALJ s finding that Dr. Kelly s opinions were most probably correct. See Gamez v. Indus. Comm'n, 213 Ariz. 314, 316, ¶ 15, 141 P.3d 794, 796 (App. 2006) (citing Ortega v. Indus. Comm'n, 121 Ariz. 554, 557, 592 P.2d 388, 391 (App. 1979)); see also Kaibab Indus. v. Indus. Comm'n, 196 Ariz. 601, 609, ¶ 25, 2 P.3d 691, 699 (App. 2000) ( When reasonable evidence exists to support the ALJ's conclusion, we are bound by his resolution of conflicting testimony. Indeed, it is the duty of the ALJ to resolve conflicts in the evidence and to determine which opinion is more probably correct. ) (citation omitted). ¶16 Finally, we address Bowser s concern that the portion of the ALJ s decision awarding Bowser work boot orthotics as needed is unclear. We agree with Bowser that this portion of the award should be interpreted as work boots with orthotics. 10 The ALJ s award was in agreement with Allianz s notice of claim status and notice of supportive medical maintenance benefits. The notice of supportive medical maintenance benefits provided Bowser with 1 set of work boots with orthotics per year, based on continued need. We also note that Allianz did not respond to this issue in its answering brief. Conclusion ¶17 The award and decision upon review are affirmed. supportive care award for work boots orthotics should The be understood as meaning work boots with orthotics. __/s/_______________________ JOHN C. GEMMILL, Judge CONCURRING: ____/s/_____________________________ SHELDON H. WEISBERG, Presiding Judge ____/s/_____________________________ PHILIP HALL, Judge 11

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