Chan v. ICA/Torres/Special Fund

Annotate this Case

Download PDF

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 WEI OI CHAN, Petitioner Employer, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, JESUS TORRES, Respondent Employee, SPECIAL FUND DIVISION/NO INSURANCE SECTION, Respondent Party in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 05-27-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-IC 09-0073 DEPARTMENT A MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action-Industrial Commission ICA CLAIM NO. 20050-340339 CARRIER CLAIM No. None Administrative Law Judge Michael A. Mosesso AWARD SET ASIDE Cross & Lieberman, P.A. by Lawrence H. Lieberman Attorney for Petitioner Employer Phoenix Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix Industrial Commission of Arizona by Suzanne Scheiner Marwil Attorney for Respondent Party in Interest Phoenix B A R K E R, Judge ¶1 Wei O. Chan ( Chan ), the uninsured employer, contests the administrative law judge s ( ALJ s ) award granting Jesus Torres ( Torres ) benefits industrial injury. and supportive care following an For the following reasons, we set aside the award. Facts and Procedural History ¶2 On March 19, 2004, Torres, an employee of Chan s Chinese restaurant, suffered a lower back injury when he slipped and fell on stairs while making a food delivery. On August 30, 2007, the Industrial Commission of Arizona ( ICA ) found Torres sustained a compensable injury and awarded him benefits. Special Fund, uninsured which employers, pays then benefits began to injured processing employees Torres claim The of and allowed Torres to seek medical treatment with Dr. Bogdan Anghel in 2008. 2009) See Ariz. Rev. Stat. ( A.R.S. ) § 23-907(C) (Supp. (authorizing employees). reached care. Special Fund to pay benefits to injured On November 13, 2008, Dr. Anghel found Torres had maximum medical improvement but required supportive On November 20, 2008, the Special Fund issued a notice of determination terminating Torres 2 temporary compensation and active medical treatment on November 13, 2008, and finding the industrial injury resulted in no permanent disability. The Special Fund subsequently issued a notice of determination of supportive care benefits, which authorized Torres to have three office visits, twelve physical therapy visits, and three radio frequency injections. for a hearing condition On January 9, 2009, Chan filed a request regarding became the stationary determination and benefits arguing should Torres have been terminated long prior to the November Notice of Determination. At the subsequent hearing, Chan contended the effective date to terminate benefits should have been March 14, 2007, when Dr. Terry McLean conducted an independent medical examination of Torres and found him stationary and in no need of supportive care. ¶3 At the hearing, the ALJ heard testimony from Torres, Dr. McLean, and Dr. Anghel. Torres testified that the March 2004 fall caused the back injury that Dr. Anghel treated him for in 2008. Dr. McLean testified that to a reasonable degree of medical probability the fall did not cause the injury treated in 2008 and no supportive care was needed. Dr. Anghel initially testified that to a reasonable degree of medical probability the fall caused the injury he treated. However, after learning more information about Torres past medical visits and back injury 3 history, Dr. Anghel stated this new information puts a big question mark on his initial opinion that the fall caused the condition he was treating. ¶4 Torres On June 30, 2009, the ALJ issued a decision finding was entitled disability to compensation November 13, 2008. supportive benefits care from and March medical 19, 2004 and until In support of the award, the ALJ found [t]o the extent there is a conflict of expert medical opinion, the opinions and conclusions of Dr. Anghel are adopted herein as being most probably correct and well-founded. Chan filed a request for review of the June 30 award, arguing no competent medical testimony shows that the industrial injury caused the back pain treated by Dr. Anghel in 2008. decision upon review affirming the June The ALJ issued a 30 award. In this decision, the ALJ indicated that he deemed Torres credibility a material issue and found that [Torres ] explanation of the history of the industrial injury and the history of the nonindustrial events and the treatment for both the industrial injury and for those non-industrial events is reasonable and credible. ¶5 Chan timely filed this petition for special action. We 120.21(A)(2) have jurisdiction (2003), 23-951(A) pursuant (1995), Procedure for Special Actions 10. 4 to and A.R.S. Arizona §§ 12- Rule of Discussion ¶6 We defer to the ALJ s reasonable factual findings but review legal conclusions de novo. Young v. Indus. Comm n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We view the evidence in the light most favorable to sustaining the award and uphold the ALJ s findings if they are supported by reasonable evidence. Anton v. Indus. Comm n, 141 Ariz. 566, 569, 688 P.2d 192, 195 (App. 1984). ¶7 Chan argues competent medical testimony does not support the award because (1) Dr. Anghel expressed substantial doubt as to whether the March 2004 fall caused the back condition he treated in 2008 and (2) Torres testimony regarding his version of the events cannot establish medical causation. ¶8 The claimant bears the burden of establishing all elements of his claim throughout proceedings before the ICA. Lawler v. Indus. Comm n, 24 Ariz. App. 282, 284, 537 P.2d 1340, 1342 (1975). Medical causation is established by showing that the accident caused the injury. Keovorabouth v. Indus. Comm n, 222 Ariz. 378, 381, ¶ 7, 214 P.3d 1019, 1022 (App. 2009). ¶9 are When medical conditions, like Torres back complaints, peculiarly ALJ s within determination testimony. the must knowledge be of supported medical by doctors, competent the medical Stephens v. Indus. Comm n, 114 Ariz. 92, 95, 559 5 P.2d 212, 215 (App. 1977). Medical testimony is sufficient when shown to a reasonable medical probability that the industrial accident caused the injury. Nelson v. Indus. Comm n, 24 Ariz. App. 94, 96, 536 P.2d 215, 217 (1975). When the only expert testimony touching the problem of causation is impregnated with substantial uncertainty and * * * as a whole it is susceptible of an interpretation possibilities require the than that the doctor probabilities, commission to find a is speaking appellate fact courts on more of cannot possibilities. Helmericks v. AiResearch Mfg. Co. of Ariz., 88 Ariz. 413, 416, 357 P.2d 152, 154 (1960) (quoting Gronowski v. Indus. Comm n, 81 Ariz. 363, 366, 306 P.2d 285, 287 (1957)); see also In re Bedwell s Estate, 104 Ariz. 443, 445, 454 P.2d 985, 987 (1969) (finding the expert medical testimony was so fraught with uncertainty that there was a reasonable basis for the ALJ to deny death benefits); Russell v. Indus. Comm n, 98 Ariz. 138, 143, 402 P.2d 561, 564 (1965) (construing its decision in Helmericks as holding that possibilities are not sufficient to show causal relationship ). possible adduced causes to establish possibilities, proof. for then a Thus, if there are two or more disability causality the is and claimant the couched has not medical testimony only terms of burden of met in his Employers Mut. Liab. Ins. Co. of Wis. v. Indus. Comm n, 6 17 Ariz. App. 516, 519, 498 P.2d 590, 593 (1972). ¶10 When viewed in its entirety, Dr. Anghel s testimony is impregnated with substantial uncertainty and falls short of the reasonable medical probability required to establish medical causation. On direct examination, the Special Fund s attorney and Dr. Anghel had the following exchange: Q. Yes. Did Mr. Torres give you any history that led you to make any nonindustrial diagnoses? A. No, he prior injuries. did not report any other . . . . Q. In your opinion and to a reasonable degree of medical certainty, were the symptoms Mr. Torres related to you consistent with a slip and fall injury that would have occurred back in March of 2004? A. With a reasonable medical probability, yes. degree of Q. And in your opinion, were the injections that you provided to Mr. Torres reasonably necessary to treat the March 19th, 2004, injury? A. Well, the patient experienced adequate satisfaction following the treatment and adequate analgesic response, so yes. Standing alone, this medical testimony sufficiently supports the ALJ s award. is unequivocal and See Rosarita Mexican Foods v. Indus. Comm n, 199 Ariz. 532, 536, ¶ 13, 19 P.3d 1248, 7 1252 (App. 2001) ( Testimony is equivocal if it is subject to two or more interpretations or if the expert avoided committing to a particular opinion. ). However, after learning additional information about Torres medical history on cross-examination, Dr. Anghel significantly retreated from his initial opinion on causation and cast substantial doubt on his diagnosis of the lower back injury. First, Dr. Anghel testified that he diagnoses the cause of injuries based on the accuracy of the history he receives from the patient. He further explained: So, in other words, let s say the patient never had never - prior to that accident never had any complaints of back pain and never had any prior treatments for back pain, I would just state with a reasonable degree of medical probability that those symptoms are related to the respective accident. However, if prior to that accident the patient displayed similar symptoms and receive [sic] treatment, then that statement could be flawed. So you just to have [sic] take it with a grain of salt, you know. This explanation was consistent with Dr. Anghel s initial opinion because he testified on direct examination that Torres reported no other prior injuries. ¶11 However, Chan s attorney questioned Dr. Anghel about Torres apparently undisputed medical history, which was largely unknown to Dr. Anghel at the time Torres. The following exchange took place: 8 he treated and diagnosed Q. Okay. Now, let me give you some additional facts and if you aren t aware of them tell me. Did you know that this injury - well, you know that this injury occurred in March of 2004. Did you know that the patient did not seek medical treatment until January 31st, 2005? A. No, I didn t know that. Q. Okay. Did you know when he sought medical treatment on January 31st, 2005, which was, let s see, about a year or less than a year, nine months from his injury, his chief complaint was -- at Clinica Arizona was back pain times one and a half years, which would have placed it back in 2003. A. Okay. Q. You didn t know that, correct? A. No. So, in other words, if he received treatment prior to this incident, obviously then he must have had a history of back problems. Q. Well, I ll get to that. I ll get to that, Doctor. Did you know that when he was seen on January 31st, 05, which is nine months or so after this injury he gave a history of alcoholism, vomiting, excessive hunger, liver problems and mumps, but there was no history of this slip and fall we re concerned about today? A. No, I m not aware of that. Q. You didn t know that. And that s the first time he sought medical treatment after the injury. Did you know that he went to the emergency room at Maricopa Medical Center on March 4th, 2005, and his chief complaint was 9 back pain since yesterday. In portion of the examination the complaints in the upper back since the motor vehicle accident the written patient had off and on in 2001. A. Oh, great, so he had vehicle accident on top of that. a motor Q. And it goes on to say the patient complained of worsening pain times two and was unsure if he was injured but was unable to work as a cook since January - this is in March of 05 -- because of pain with his back. Again, no mention of any lower back pain or an industrial episode of March 2004. I take it you were unaware of that as well? A. Sure, I haven t records in that regard. received any Q. Well, now my question is: Considering these two visits I ve just talked about, one at Clinica Arizona and one at Maricopa Hospital in which he did not give any history of this fall at work, does that cause you to question your previous conclusion that to a reasonable medical probability the back pain that you treated was due to the injury of March 2004? A. Yeah, mark on it. ¶12 On redirect, that Dr. puts Anghel a big testified question that he treated Torres only for lower back pain and that he would expect that a slip and fall where someone fell on their buttocks would cause lower back pain. Dr. Anghel acknowledged that Torres could have sustained two separate back injuries because his upper back pain from the 2001 car accident did not preclude him from having lower back pain from the March 2004 fall. 10 Dr. Anghel also testified that it is common for patients to report what bothers them when they seek medical treatment and it was reasonable for Torres to only give [] a history about what he thought was wrong with his lower back. ¶13 This substantial testimony, doubt Dr. however, Anghel diagnosing Torres injury. does cast on not the methodology his overcome for Dr. Anghel initially opined to a reasonable degree of medical probability that the March 2004 fall caused reported no the lower other back prior injury he injuries. treated Upon because learning Torres Torres additional medical history, Dr. Anghel significantly questioned whether the fall caused the lower back injury. His statements on redirect only identify the March 2004 fall as one of the possible causes of Torres lower back condition in 2008. Moreover, although Dr. Anghel stated that the information he learned during cross-examination about Torres upper back would not have changed the course of treatment he administered to Torres, this statement offered no opinion on the cause of the condition. After receiving the new information about Torres medical history, earlier testimony Dr. Anghel that to did a not opine reasonable or reconfirm degree of his medical probability Torres lower back pain in 2008 was caused by the March 2004 fall. His concluding 11 statement as to medical causation, and his only statement after receiving the additional history, was that there was a big question mark. On this record, Dr. Anghel s testimony was impregnated with substantial uncertainty and resulted in the March 2004 fall being a possible, not probable, cause of Torres lower back condition. ¶14 Equivocal medical testimony, insufficient to uphold an ICA. award. like Dr. Anghel s, is Marquez v. Indus. Comm n, 18 Ariz. App. 16, 18, 499 P.2d 747, 749 (1972); see also Harbor Ins. Co. v. Indus. Comm n, 25 Ariz. App. 610, 612, 545 P.2d 458, 460 (1976) (stating that equivocal testimony cannot create a conflict testimony in the from evidence ). Dr. Anghel Here, and Dr. the ALJ heard McLean. medical Dr. McLean unequivocally stated to a reasonable medical probability that (1) the March 2004 fall did not cause the lower back condition treated by Dr. Anghel in 2008, and (2) Torres did not require supportive care due to the March 2004 fall. Although Torres testified that the condition treated the medical causation. 12, 19 P.3d at March by 2004 fall Dr. Anghel, his caused testimony lower cannot back prove Rosarita Mexican Foods, 199 Ariz. at 535, ¶ 1251 (stating we will uphold the ALJ s determination about a matter peculiarly within the knowledge of medical doctors so long as supported that determination ). 12 competent medical testimony Accordingly, because the ALJ expressly relied on Dr. Anghel s testimony 1 and that testimony is equivocal as to medical causation the ALJ erred. The June 30 award is not, on this record, supported by competent medical testimony. That the ALJ found Torres testimony credible is of no consequence when the opining doctor concluded the additional history put medical causation in doubt. 2 Conclusion ¶15 For the foregoing reasons, we set aside the award. /s/ ____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ _________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ _________________________________ LAWRENCE F. WINTHROP, Judge 1 The ALJ stated, To the extent there is a conflict of expert medical opinion, the opinions and conclusions of Dr. Anghel are adopted herein as being most probably correct and well-founded. 2 The Special Fund contends that the compensability finding barred Chan from arguing the 2004 fall did not cause the injury treated by Dr. Anghel in 2008. This argument is misplaced because there must be competent medical evidence that the industrial injury caused the condition for which the claimant received treatment. Here, the 2008 treatment rendered by Dr. Anghel had not occurred and therefore was not at issue when the ICA found Torres sustained a compensable injury. 13

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.