REED v. LARRY MILLER/PINNACLE

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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 JAMES M. REED, ) ) Petitioner, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) LARRY MILLER DODGE, ) ) Respondent Employer, ) ) PINNACLE RISK MGMT, ) ) Respondent Carrier. ) __________________________________) No. 1 CA-IC 12-0017 DIVISION ONE FILED: 12/27/2012 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 20091-680089 Carrier Claim No. WCAWC2009564653 Administrative Law Judge James B. Long AWARD AFFIRMED James M. Reed in propria persona Petitioner Employee Andrew F. Wade, Chief Counsel, The Industrial Commission of Arizona Attorney for Respondent Tolleson Phoenix Klein, Doherty, Lundmark, Barberich & LaMont, P.C. by R. Todd Lundmark Attorneys for Respondent Employer/Carrier Phoenix S W A N N, Judge ¶1 This Commission of is a special Arizona action decision and review award of an Industrial denying petitioner James Reed s request to reopen his claim for benefits for his physical condition.1 Reed contends that the decision was not supported by sufficient evidence. We conclude that it was, and therefore affirm. FACTS AND PROCEDURAL HISTORY ¶2 he In June 2009, Reed suffered an industrial injury when fell down a flight of stairs. He filed a workers compensation claim, and his claim was accepted for benefits. In September 2010, the Administrative Law Judge ( ALJ ) entered a decision and award concluding that Reed continued to require treatment November 6, for his 2009, psychological his physical condition, condition was but, as of stationary and without permanent physical impairment caused by the industrial accident. Accordingly, the ALJ awarded continuing benefits for Reed s psychological condition but terminated benefits for his physical condition. On January 31, 2011, Reed filed a petition 1 Reed does not challenge the portion of the terminating benefits for his psychological condition. 2 decision to reopen his claim for benefits for his physical condition. In March to 2011, the respondent carrier denied the petition reopen, and terminated benefits for psychological care. ¶3 Reed protested the carrier s notices, and the matter proceeded to evidence was a consolidated presented. In hearing at October which 2009, the following neuropsychologist Dr. Lauren Dawson, Ph.D., evaluated and diagnosed Reed with a somatoform disorder because he was claiming physical symptoms when there is no underlying medical cause for those symptoms. At that time, Dr. Dawson concluded that the disorder was caused by a temporary exacerbation of Reed s preexisting anxiety, and she therefore recommended that he receive six to eight weeks of psychotherapy from clinical psychologist Dr. Jay Summers, Ph.D. Dr. Summers began treating Reed in January 2010, and continued to treat him as of the time of the consolidated hearing. At the hearing, Dr. Summers testified that he believed Reed required further treatment for depression, but Dr. Summers refused to give an opinion regarding whether the industrial accident was a substantial condition. contributing cause of Reed s psychological Dr. Dawson, however, opined that based on her review of Dr. Summers reports and her own reevaluation of Reed in February and March 2011, Reed did not require further psychotherapy for reasons related to the industrial accident. 3 Dr. Dawson become testified stationary that with she no believed permanent Reed s condition psychological had impairment from the accident. ¶4 With respect to Reed s physical condition, neurologist Dr. Daniel Torzala, M.D., opined that comparison of a September 2009 MRI image with an April 2010 MRI image showed worsening cervical disc Dr. Torzala herniation. referred Reed Because to of herniation, surgeon neurological the Dr. Daniel Lieberman, M.D., for a second opinion. Dr. Lieberman examined Reed of in July 2010, referred him to provided Reed found no evidence physiatrist with physical Dr. Dina radiculopathy, Zaza, therapy, but M.D. when and Dr. Zaza Dr. Lieberman examined Reed again in January 2011, he did not see the progress that would injury. be Dr. Lieberman degenerative industrial expected disc in a person opined that condition accident, but that also with Reed was a had musculoskeletal an underlying aggravated acknowledged that he by the had not reviewed any of Reed s records predating November 2009. ¶5 Neurologist Dr. John Powers, M.D., by contrast, had examined Reed before November 2009 and at that time had concluded that the industrial accident had caused soft-tissue injuries from which Reed had recovered, such that his condition was stationary with no permanent 4 physical impairment. Dr. Powers reexamined examination and his Reed review Drs. Torzala, Lieberman, evidence a of new, in June of and the Zaza, additional, 2011 and, based interval-care opined or that on that reports there was by no previously undisclosed condition attributable to the industrial accident. Dr. Powers testified that his review included the April 2010 MRI image, and that he believed the degeneration shown therein was age-related. ¶6 After considering the evidence, the ALJ entered a decision and award concluding that Reed had not shown that his claim should be reopened with respect to his physical condition. The ALJ explained that he resolved the conflict between the opinions of Drs. Lieberman and Powers by accepting Dr. Powers opinion as being more probably well-founded and correct. ¶7 Reed requested review of the decision and award, and the ALJ affirmed upon review. Reed then brought this special action. JURISDICTION AND STANDARD OF REVIEW ¶8 We have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 23-951(A), and Ariz. R.P. Spec. Act. 10. We defer to the ALJ s factual findings but review questions of law de novo. Young v. Indus. Comm n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in the light most 5 favorable to upholding the ALJ s decision. Lovich v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). DISCUSSION I. DENIAL OF PETITION TO REOPEN REGARDING PHYSICAL CONDITION ¶9 A.R.S. § 23-1061(H) provides that a claimant may reopen his workers compensation claim to secure an increase or rearrangement of compensation or additional benefits . . . upon the basis of a new, additional or previously temporary or permanent condition . . . . undiscovered In cases involving a first petition to reopen, the relevant comparison points for showing a changed condition are the dates of the claim s closure and the petition s filing. Ariz. 269, 271, ¶ 14, 17 Cornelson v. Indus. Comm n, 199 P.3d 114, 116 (App. 2001). The claimant must show, by a preponderance of the evidence, both (1) the existence of a new, additional or previously undiscovered condition, and (2) a causal relationship between that condition and the prior industrial injury. Sneed v. Indus. Comm n, 124 Ariz. 357, 359, 604 P.2d 621, 623 (1979). When the causal and relationship between the changed condition the industrial injury is not apparent to a lay person, that showing must be established by expert medical testimony. Stainless Specialty Mfg. v. Indus. Comm n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985). 6 ¶10 Here, Drs. Lieberman and Powers offered conflicting medical opinions degeneration Reed was contends considered. regarding causally that whether related Dr. Powers to Reed s the opinion intervertebral industrial should not injury. have been Specifically, Reed contends that Dr. Powers could not have reviewed the April 2010 MRI image because Reed did not authorize Dr. Powers to receive a copy of the image, and contends that Dr. Powers therefore testified untruthfully when he stated that he had received the image on a disk and viewed it. Reed is correct that a medical opinion premised on an inaccurate or incomplete factual background may not constitute substantial evidence. Ariz. App. 432, Royal Globe Ins. Co. v. Indus. Comm n, 20 434, 513 P.2d 970, 972 (1973); Desert Insulations, Inc. v. Indus. Comm n, 134 Ariz. 148, 151, 654 P.2d 296, 299 (App. 1982). But on this record, the ALJ reasonably concluded that the factual background for Dr. Powers opinion was accurate and complete. ¶11 In support of his argument, Reed identifies a facsimile transmittal sheet -- which he provided to the ALJ at or before the hearing -- sent to him by the imaging provider. The narrative typed on the sheet states that Reed was the only person who requested the image from the provider. But Reed testified that after the provider gave him the disk containing 7 the image, he passed it on to Dr. Torzala -- and no evidence was presented record, regarding it was what not Dr. Torzala unreasonable did for with the it. ALJ On to this accept Dr. Powers testimony that he had received a disk containing the image and (as he also noted in his written report) reviewed the image. Though the ALJ could also have reached a different conclusion, such credibility determinations are for the ALJ and fall outside the scope of our review. Royal Globe, 20 Ariz. App. at 434, 513 P.2d at 972. ¶12 that Dr. Powers provided conclusions. opinion sufficient The constituted support conflict for between substantial the ALJ s findings and Dr. Powers opinion and Dr. Lieberman s opinion was for the ALJ to resolve. Specialty, 144 Ariz. at 19, 695 P.2d at 268. the evidence. evidence Stainless We do not reweigh Perry v. Indus. Comm n, 112 Ariz. 397, 398-99, 542 P.2d 1096, 1097-98 (1975). The ALJ did not err by denying Reed s petition to reopen. II. ¶13 TERMINATION OF BENEFITS FOR PSYCHOLOGICAL CONDITION Reed does not challenge the termination of benefits for his psychological condition. that issue. We therefore need not consider See Polanco v. Indus. Comm n, 214 Ariz. 489, 492 n.2, ¶ 6, 154 P.3d 391, 394 n.2 (App. 2007). We note, however, that the only relevant medical opinion offered on the issue was 8 Dr. Dawson s, and her opinion supported the ALJ s findings and conclusions. CONCLUSION ¶14 award. Sufficient evidence supported the ALJ s decision and We therefore affirm. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PHILIP HALL, Presiding Judge /s/ ____________________________________ SAMUEL A. THUMMA, Judge 9

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