SMITH v. ICA/HANDICAP/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 STEVE E. SMITH, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, HANDICAP VEHICLE SPECIALISTS INC., Respondent Employer, SCF ARIZONA, Respondent Carrier. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 10/23/2012 RUTH A. WILLINGHAM, CLERK BY: sls DIVISION ONE FILED: 10/23/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-IC 12-0003 DEPARTMENT C MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA CLAIM NO. 20100-600044 CARRIER CLAIM NO. 1001654 Deborah Nye, Administrative Law Judge AWARD AFFIRMED Steve E. Smith Petitioner in Propria Persona Phoenix James B. Stabler, Chief Counsel of SCF Arizona By Kenna L. Finch Attorneys for Respondent Employer/Carrier Phoenix H A L L, Judge ¶1 This Commission is of a special-action Arizona decision review affirming of the an Industrial decision upon hearing, findings, and award that Petitioner Steve E. Smith s industrial injury became medically stationary effective February 1, 2011, without permanent impairment or the need for supportive care. Because we find that the medical evidence of record supports the Administrative Law Judge s (ALJ) award, we affirm. BACKGROUND ¶2 working On February 10, 2010, Smith stated that he had been as a service installation technician for Respondent Employer Handicap Vehicle Specialists, Inc., when he was injured lifting a wheelchair from a table. As soon as he lifted the wheelchair, Smith felt a sharp pain down [his] left leg and fell onto the wheelchair, and then to the floor. Smith claimed he suffered an injury to his lower back and left leg as a result of the incident. On February 4, 2010, six days prior to this incident, Smith was injured in a non-industrial accident while being transported handcuffed in a police car. Smith stated that the police officer made a U-turn with the vehicle and Smith was thrown across the floor and [] hit the passenger door with [his] head. He sustained injuries to his neck and lower back. ¶3 May On 12, 2010, James Hawkins, M.D., a board- certified orthopedic surgeon, evaluated Smith and concluded that 2 Smith s magnetic resonance imaging (MRI) had an overall normal appearance and Smith did not need to change his work status. ¶4 time Smith reported that he was injured at work a second on September actually caused elaborated that 22, 2010 [him] on to that and be day that was considered he had been the injury disabled. installing that Smith a track underneath a transport van for a wheelchair, when his legs began hurting and he had to be extricated from underneath the van. Prior to the September 22 incident, Smith reported that the pain in his lower back was semi-constant, but after the incident, the pain was always there. Smith admitted that he failed to file a new claim for the September 22 incident, despite it being the injury that caused [him] to be considered disabled and required him to take time off work. Smith resigned from his position On February 14, 2011. ¶5 In December 2010, Vivek Gupta, M.D., a board-certified diagnostic radiologist, conducted a musculoskeletal sonography on Smith and found the sonograms normal and no abnormal mass or fluid collection and no evidence of muscular, tendinous or ligamentous injury. Also in December 2010, Michael Brown, M.D., conducted an electrophysiological nerve conduction study on Smith and found the results were normal and revealed no evidence of peripheral nerve dysfunction. 3 ¶6 The ALJ held a four-day hearing ending in November 2011 to determine whether Smith was entitled to any continuing active medical care. Gary Lee Wagoner, a chiropractic physician, testified that he examined Smith on June 12, 2010, and concluded that the injury to Smith s lumbar spine, a herniated disk, and left lower extremity were apportioned 100 percent to the February 10 industrial injury. recommended that Smith change his Dr. Wagoner occupation continued care to improve his situation. and receive Dr. Wagoner also wrote a letter on April 21, 2011 that Smith had not made a full and complete recovery and was still receiving treatment, primarily chiropractic and medicinal, for his injuries. ¶7 Terry E. McLean, M.D., a board-certified orthopedic spine surgeon, performed an independent (IME) on Smith on November 18, 2010. medical examination Dr. McLean found that Smith was embellish[ing] his symptoms and there was no causal relationship between his cervical complaints and the industrial episode of 02/10/2010. Dr. McLean testified that he disagreed with Dr. Wagoner s findings that Smith had a herniated disk. Dr. McLean stated that Smith had degenerative bulging and annular tears, which are part of the natural process of aging. He concluded that there were no objective findings that Smith s complaints pertained to the industrial injury and Smith permanent and stationary with a zero percent impairment. 4 was ¶8 Dr. McLean stated he had yellow flags with Smith given his review of the medical record showed that Dr. Hawkins examined Smith and found painless range of motion in the cervical lumbar spine and normal gait with only mild tenderness. Additionally, Dr. McLean noted that a report submitted by a neurologist found no neurological deficits or any physiological reason for the leg pain or limp. However, Smith presented to Dr. McLean with a moderate limp and voluntarily limited his range of motion conclude with a in his back. reasonable Thus, degree of Dr. McLean medical could certainty not that Smith s complaints were causally related to the February 10, 2010 injury. Dr. McLean authored several addenda to the IME, most recently on July 5, 2011, and his findings remained the same Smith was stationary effective February 1, 2011, with no permanent impairment, and did not require any working restrictions or supportive medical care based on the February 10, 2010 episode. ¶9 The ALJ concluded that Smith s industrial injury became medically stationary effective February 1, 2011, without permanent impairment or the need for supportive care. awarded Smith medical, surgical, and hospital The ALJ benefits from February 10, 2010, through February 1, 2011. Smith requested a review of the ALJ s findings and conclusions. The ALJ affirmed 5 the decision upon hearing and findings and award for non- compensable claim. ¶10 Smith timely appeals and argues the ALJ erred: (1) by not reviewing all relevant evidence; (2) because the findings are not supported by the evidence; (3) by not issuing a subpoena for Dr. Porter; and (4) by allowing Dr. McLean s reports into evidence. ¶11 We have jurisdiction pursuant to Arizona Revised Statutes sections 12-120.21(A)(2) (2003), 23-951(A) (2012), and Arizona Rule of Procedure for Special Actions 10. DISCUSSION ¶12 We consider the evidence in the light most favorable to upholding the award, Lovitch v. Industrial Commission, 202 Ariz. 102, deferentially 105 ¶ review 16, all 41 P.3d 640, factual 643 findings. (App. 2002), PFS v. and Indus. Comm n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App. 1997). ¶13 Smith has the burden of establishing that his condition is causally related to his industrial injury, that the injury has not become stationary and he is entitled continuing benefits, or that he has permanent impairments. to See, e.g., Spears v. Indus. Comm n, 20 Ariz.App. 406, 407, 513 P.2d 695, 696 (1973). In order to prevail, Smith must show: (1) an accident arose out of and in the course of the employment, (2) the accident resulted in an injury, and (3) that the injury was 6 caused by the conditions of the employment. Dunlap v. Indus. Comm n, 90 Ariz. 3, 6, 363 P.2d 600, 602 (1961). When the results of an injury are not apparent to a layman, the injury as well as its cause, and the need for further treatment or the existence of a permanent impairment competent medical evidence. must be established by Yates v. Indus. Comm n, 116 Ariz. 125, 127, 568 P.2d 432, 434 (App. 1977). ¶14 First, Smith argues that the ALJ failed to review all relevant evidence. We must presume that the judge considered . . evidence . all relevant of record, Tyree v. Industrial Commission, 159 Ariz. 92, 95, 764 P.2d 1151, 1154 (App. 1988), including the medical records, Smith s testimony detailing his ailments, the incidents that resulted in his injuries, and the experts testimony reasonable and resolution credibility. reports. of We conflicting also accept evidence the and ALJ s witness See Fry s Food Stores v. Indus. Comm n, 161 Ariz. 119, 121, 776 P.2d 797, 799 (1989); see also Phelps v. Indus. Comm n, 155 Ariz. 501, 505, 747 P.2d 1200, 1204 (1987) ( An [ALJ] has the prerogative to resolve conflicting medical opinions. ). The ALJ weighed the medical evidence of record and testimony the at industrial hearing, injury became and reasonably medically found that stationary Smith s effective February 1, 2011, without permanent impairment or the need for supportive care. We cannot say that the ALJ failed to consider 7 the relevant evidence based on our review of the entire record. See Stemkowski v. Indus. Comm n, 27 Ariz.App. 457, 460, 556 P.2d 11, 14 (1976). ¶15 Second, Smith contends that the ALJ s findings are not supported by the evidence. We disagree. This court will not disturb the ALJ's findings if the conclusion is supported by any reasonable theory of the evidence, even if this court would have reached a different conclusion. 747 P.2d at 1205. See Phelps, 155 Ariz. at 506, 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. Johnson Manley Lumber v. Indus. Comm'n, 159 Ariz. 10, 13, 764 P.2d 745, 748 (App. 1988). The record decision: is replete with evidence Dr. Hawkins found Smith s supporting MRI normal; the ALJ s Dr. Gupta concluded that Smith s sonograms were normal; Dr. Brown opined that Smith s tests were normal; and Dr. McLean concluded that there were no objective findings that Smith s complaints were related to the industrial injury and that Smith was permanent and stationary with a zero percent impairment. We therefore discern no error. ¶16 Third, Smith maintains the ALJ erred by not issuing a subpoena for Dr. regulate and control Porter. the The ALJ witnesses has who wide appear discretion before to her. Artis v. Indus. Comm'n, 164 Ariz. 452, 453, 793 P.2d 1119, 1120 8 (App. 1990). We review an ALJ's denial of a request to issue a subpoena for an abuse of discretion. K Mart Corp. v. Indus. Comm'n, 139 Ariz. 536, 539, 679 P.2d 559, 562 (App. 1984). ¶17 Here, Smith requested the ALJ issue a subpoena for Dr. Porter to testify, and the ALJ denied the request, explaining that [t]reating doctors and other specialists routinely rely upon and testify about the significance conducted by specialists like Dr. Porter. of EMG/NCS tests Provide Dr. Wagoner a copy of Dr. Porter s tests before he testifies, so you can ask him about the test results and their significance. While answering questions from the ALJ, Dr. Wagoner testified about the contents of Dr. Porter s report. Smith, however, failed to ask Dr. Wagoner about Dr. Porter s report. We detect no error, let alone prejudice. ¶18 Dr. Porter s report was admitted into evidence and Dr. Wagoner testified about the contents of Dr. Porter s report. Dr. Porter s report concluded that [a]ll nerve conduction studies . . . were within normal limits, there was no active radiculopathy in the lower extremities, no active neuropathy or myopathy, and there are subtle findings to suggest in the EMG and NCS of a possible established L4/5 involvement with the left being more involved than the right. Thus, Dr. Porter s report did not support Smith s claim of permanent impairment due to an industrial injury. Finally, the ALJ stated that the tests and 9 findings performed by Dr. Porter were routinely testified about by other doctors and it was not necessary for Dr. Porter to testify himself as to those results. See Ariz. Admin. Code R20- 5-141(A)(4) ( A presiding administrative law judge shall issue a subpoena requested . . . if the judge determines that the testimony of the witness is material and necessary ); see also K Mart Corp., 139 Ariz. at 539, 679 P.2d at 562 (ALJ can deny request for subpoena when it is clearly shown in the statement itself that the solicited testimony would not be material and necessary. ). and Because Dr. Porter s testimony was not material necessary and the report as well as his findings were introduced into evidence and explained at the hearing, the ALJ did not abuse her discretion by denying Smith s request to subpoena Dr. Porter and Smith was not prejudiced by the ALJ s denial. ¶19 Last, Smith argues that the ALJ erred by allowing Dr. McLean s reports into evidence because the reports did not contain Dr. McLean s signatures and therefore did not comply with Arizona Administrative Code R20-5-113. failed to present this argument to the ALJ. Smith, however, Smith s failure to raise the issue with the ALJ precludes him from doing so before this court on appeal. See Releford v. Indus. Comm n, 120 Ariz. 75, 78, 584 P.2d 56, 59 (App. 1978). 10 CONCLUSION ¶20 For the foregoing reasons, we affirm. _/s/______________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/____________________________________ PETER B. SWANN, Judge _/s/____________________________________ SAMUEL A. THUMMA, Judge 11

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