RURAL METRO/ACE v. CHAMNEY

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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, ) ) ACE AMERICAN INSURANCE COMPANY & ) GALLAGHER BASSETT SERVICES, ) ) Petitioner Carrier, ) ) v. ) THE INDUSTRIAL COMMISSION OF ARIZONA, ) ) ) Respondent, ) ) AARON G. CHAMNEY, ) ) Respondent Employee, ) RURAL METRO, DIVISION ONE FILED: 5/30/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-IC 12-0042 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 20111-450250 Carrier Claim No. 001881-032098-WC-01 Administrative Law Judge Michael A. Mosesso AWARD AFFIRMED Jardine, Baker, Hickman & Houston, PLLC By Stephen C. Baker Attorneys for Petitioners Employer and Carrier Phoenix Andrew Wade, Chief Counsel The Industrial Commission of Arizona Phoenix Attorney for Respondent Taylor & Associates, PLLC By Dennis R. Kurth Attorneys for Respondent Employee Phoenix T H O M P S O N, Presiding Judge ¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award and decision upon review for a compensable claim. The petitioner employer, Rural Metro, presents five issues on appeal: (1) whether the hypothetical question relied upon by Dr. Ghebleh for his causation opinion was so factually inaccurate as to render his opinion insufficient to support the award; (2) whether Dr. Ghebleh s medical opinion was equivocal and legally insufficient to support the award; (3) whether the administrative law judge (ALJ) ignored uncontroverted medical evidence when he found the respondent employee s (claimant s) claim compensable; (4) whether Rural Metro was prevented from receiving a fair hearing as a result of the ALJ s rulings on its objections; and (5) whether the ALJ committed legal error when he allowed the claimant to change his testifying medical expert. Because we sufficient find to that support Dr. the Ghebleh s ALJ s received a fair hearing, we affirm. 2 award, opinion and that was legally Rural Metro I. JURISDICTION AND STANDARD OF REVIEW ¶2 This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(2) (2003), 23-951(A) (2012), and Arizona Rule of Procedure for Special Actions 10. In reviewing findings and awards of the ICA, 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). favorable to We consider the evidence in a light most upholding the ALJ s award. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). II. PROCEDURAL AND FACTUAL HISTORY ¶3 The claimant was employed by Rural Metro as a fire captain and paramedic. He worked at Rural Metro seventeen years and became a captain in May 2009. for over In July 2010, the claimant contracted West Nile Virus and was off work until December 2010. He then returned to work until February 18, 2011, when he developed bilateral pneumonia and Valley Fever. The claimant was hospitalized and came under the care of Farid Ghebleh, M.D., board certified in internal medicine, pulmonary disease, and critical care. ¶4 for Dr. Ghebleh testified that he followed the claimant several treatment, months he after obtained his both hospitalization. X-rays 3 and CT During scans of his the claimant s chest and ribs. At his March 29, 2011 office visit, the doctor released the claimant to return to work on April 7, 2011. The claimant testified that he returned to work for one shift, but he had insufficient lung capacity to perform his job duties. ¶5 On April 22, 2011, the claimant had a CT scan of his ribs, which revealed healing left rib fractures. Dr. Ghebleh reportedly told the claimant that based on the CT scan, his pneumonia had improved but he had a small fracture of the 8th rib. The doctor s April 28, 2011 office note stated that the claimant was released to return to work again on May 4, 2011. ¶6 When the claimant contacted Rural Metro regarding his return to work, he was told that he would first need a fitnessfor-duty examination. The claimant testified that when he arrived at STI Physical Therapy & Rehabilitation (STI) for the examination, he felt anxious because he wanted to get back to work and he was concerned about his lung capacity after the April 7, 2011 shortness of breath. suffered from high blood pressure, He also stated that he but it was fine on the morning of the examination. ¶7 The claimant testified that examination consisted of four parts: the fitness for initial paperwork, range of motion testing, EMS station, and firefighting station. 4 duty One portion of the range of motion testing required twisting the upper trunk of the body from the waist, first as far as possible to the left and then to the right. The claimant testified that he twisted to the left with no problem, but when he twisted to the right, about 120 degrees from facing forward to facing back, he felt a pop almost like a knuckle crack[ing]. claimant completed the range of motion testing. The But when the examiner took his vital signs in preparation for the functional portions of the exam, his blood pressure was elevated in excess of what STI would allow for testing and the exam was stopped. ¶8 The claimant testified that on the morning of the STI appointment he also was experiencing some tenderness and discomfort on the lower left side of his chest and rib cage. The paperwork symptoms. the claimant completed at STI reflected those The claimant stated that his blood pressure was still elevated when he got home, and he was sweating profusely. By late that afternoon, the claimant had developed an ache in his rib cage where he had felt the popping bedtime, the ache had become severe pain. sensation, and by He was unable to get comfortable or sleep that night, because it felt like bones moving together or something was rubbing. ¶9 The following day, the claimant saw Matthew Cockett, M.D., at Southwest Family Practice. 5 He told the doctor about a number of medical problems including: high blood pressure, a rash from one of the Valley Fever medications, excruciating left chest pain, and excessive sweating. Dr. Cockett sent the claimant for a full series of rib X-rays, which were performed immediately after his office appointment. The claimant testified that the X-ray technician told him, you need to go home, lay on your right side. Don t lay on your back . . . and if you start having trouble breathing, you probably punctured your lung. ¶10 The X-ray report stated: CLINICAL HISTORY: Coughing; history complaining of chest and left rib pain. COMPARISON: 04/22/11. Comparison is made with of a pneumonia; CT dated EXAM: PA view of the chest and multiple views of the left ribs. FINDINGS: Cardiomediastinal silhouette is within normal limits. No focal consolidations or pleural effusions. No pneumothorax. There is a 5 mm nodular density in the right lower lung which corresponds to a calcified granuloma seen on the CT. There is a displaced fracture involving the left ninth rib toward the lateral aspect which appears displaced by approximately one bone width (8mm). The displacement is new compared to the CT. Minimal, if any, callus formation at this location. Nondisplaced fracture with callus involving the left eighth rib corresponds to the CT finding. IMPRESSION: There is a displaced left ninth rib fracture. Fracture was present previously, displacement appears to be new. Healing left eight rib fracture in anatomic alignment with some callus formation noted. 6 ¶11 Dr. Cockett s office notes from the May 4, 2011 examination state: Chief Complaint and HPI: f/u pulmonologist/fracture rib/trouble breathing This patient is a 46 years old male here for a follow up from Pulm Dr. Ghebleh. [S]ays was admitted to WVH for 5 days in Feb. Was diagnosed with Valley Fever and given Diflucan. Says is off Diflucan for 6 days b/c is changing to new meds and developed rash to body. Rib fracture. Says during his admission suffered a rib fracture with forceful cough. HTN. Says has been taking Bystolic years. Prior cough with Lisinopril. 10mg for many Rash to arms and lower legs for 2 weeks. Dr Ghebleh felt that this may be due to Diflucan he s been taking for 2-3 months. Therefore, his med was stopped and a new med is getting auth. Works as Fire Fighter and has been off work for couple months. Needs to perform a Fire Performance test, but is in lots of pain with his rib fracture. Says unable to sleep on his back or on his left side. After Dr. Crockett reviewed the X-ray report, he added following notation: 5/6/2011 6:52:36 PM xray report reviewed. 8mm displaced fracture of 9th rib. Worse compared to CT scan in April. Callous to 8th rib. pt notified. Aware of xray findings. Still with chest pain. No difficulty breathing/SOB. Strict ED precautions given. pt expresses understanding of potential for Pneumothorax. Pt is off work until further notice. pt in agreement. 7 the will refer to chest surgery for further eval. ¶12 The claimant filed a workers compensation claim for the displaced 9th rib fracture. It was denied for benefits, and he timely requested an ICA hearing. 1 from the claimant, a former The ALJ heard testimony coworker, Mr. examiner, and Drs. Ghebleh and Zoltan. award for a compensable administrative review. claim, and Hyland, the STI The ALJ entered an Rural Metro requested The ALJ supplemented and affirmed his Award on administrative review, and Rural Metro brought this appeal. 2 III. DISCUSSION ¶13 Rural Metro argues that the ALJ erred by finding that the claimant s displaced rib fracture constituted a compensable industrial injury. Compensability requires an injury by accident arising out of and in the course of employment. See A.R.S. and § 23-1021(A) medical causation. (2012). This involves both legal DeSchaaf v. Indus. Comm n, 141 Ariz. 318, 320, 686 P.2d 1288, 1290 (App. 1984). It is the claimant s burden to prove all elements of a compensable claim. Toto v. 1 The Employer s Report of Injury stated that it doubted the validity of the claimant s claim due to previous condition and fx of 8th rib previous to this one. 2 The ALJ also amended his Award with two Orders Nunc Pro Tunc: May 14, 2012 and May 18, 2012. 8 Indus. Comm n, 1985). Unless the industrial injury immediately causes injuries that are 144 required obvious to Ariz. to a 508, 512, layman, establish a 698 expert causal P.2d 753, medical relationship industrial injury and its alleged consequences. 757 (App. evidence between is the W. Bonded Prod. v. Indus. Comm n, 132 Ariz. 526, 527-28, 647 P.2d 657, 658-59 (App. 1982). ¶14 In this case, Rural Metro argues that the ALJ erred by relying on Dr. Ghebleh s opinion because it lacked an adequate factual foundation and was equivocal. based on findings of medical fact. Medical opinions must be See Royal Globe Ins. Co. v. Indus. Comm n, 20 Ariz. App. 432, 434, 513 P.2d 970, 972 (1973). These findings come from the claimant s records, diagnostic tests, and examinations. history, Id. medical This court has recognized that medical testimony can be so weakened by proof of an inaccurate factual background that the testimony cannot be said to constitute substantial evidence, but not every factual inaccuracy will undermine a doctor s opinion and warrant its disregard. Comm n, 134 (citations Ariz. See Desert Insulations, Inc. v. Indus. 148, omitted); see 151, 654 also P.2d Fry s 296, Food 299 (App. 1982) Stores v. Indus. Comm n, 161 Ariz. 119, 122, 776 P.2d 797, 800 (1989). 9 ¶15 Rural relied upon by Metro Dr. asserts Ghebleh that for his the hypothetical causation question opinion is so factually inaccurate that the doctor s opinion cannot support the Award. Q. [By Attorney Kurth] Now assume you were treating Aaron for this valley fever condition that he had. Assume that you had done a CT scan of his chest on April 22nd of 2011, and that CT of the chest showed healing left rib fractures. Assume that you saw him on April 28th of 2011, six days later and wrote that he could return to work as of May 4th. Now, assume that in the process of returning to work, he was sent by his employer to STI for a fitness-for-duty evaluation to see if he could physically return to work as a firefighter. * * * * Okay. Now, assume that when he got to that evaluation, it was done on May 3rd at STI. It started in the morning about 8:00 o clock or so. Assume at that point, he was only having intermittent pain in his left lower rib cage area from those healing fractures at what appears to be the eighth and ninth ribs. Now, assume that he had previous hypertension problems and that he was very anxious and hadn t sleep well the night before 3 but he starts this evaluation during which the therapists that are working with him have him do trunk rotation and that as he is turning sharply to the right with the trunk of his body, he says that he feels a knuckle, crack-like pop in the left lower rib cage area and feels weird and says he tells one of the therapists about it, but he doesn t 3 The claimant provided this history to the STI examiner during a discussion of his elevated blood pressure. 10 feel extreme pain; 4 although, he also took a hydrocodone pill before he started the evaluation that morning. Assume that immediately thereafter his blood pressure shoots up, and they stop the evaluation, and he stays at the facility while they monitor his blood pressure for another couple hours, and then he goes home, and as that hydrocodone pill wears off later in the afternoon, he starts to feel what becomes increasingly severe pain in his left lower rib cage. Assume that the very next doctor and the doctor does X-rays they find what they report as a displacement of the left ninth rib day, he goes to a of his rib cage, and new eight-millimeter fracture. If you assume that the facts I m telling you are true, would you have an opinion to a reasonable degree of medical probability as to whether the rotation of his trunk to the right, when he felt the pop in his left rib cage and a weird sensation, would you have an opinion to a reasonable degree of medical probability as to whether that motion would have displaced that fracture or would have caused that fracture of the ninth rib to become displaced? * * * * A. [Dr. Ghebleh] Yes. It is completely within reasonable probability that the movement, when a fractured rib is healing, could displace the fracture and open up the fracture again. ¶16 With regard to the hypothetical, Rural Metro first argues that Dr. Ghebleh was unaware the claimant suffered rib fractures during his February 2011 hospitalization. Although the claimant testified that coughing during his hospitalization 4 It was the claimant s testimony that he had continued to experience left-sided rib pain on a daily basis after his February 2011 hospitalization. 11 caused rib fractures, Dr. Ghebleh was his treating physician during that period and he stated that fractures during the hospitalization. there were no rib No documentary evidence was presented to contradict the doctor s statement. This fact was not part of the hypothetical question and the fractures were reflected on the April 2011 imaging study that was used in the hypothetical. ¶17 Rural Metro next argues that Dr. Ghebleh did not know which of the claimant s ribs were fractured after May 3, 2011. Dr. Cockett saw the claimant the day after the STI exam. Ghebleh did not see the claimant until June 2011, and Dr. this information was provided to the doctor by hypothetical. We note that not the purpose of the hypothetical question was to determine which ribs were fractured, but whether the claimant s work-related activities had caused a displaced rib fracture. We further recognize that the context of the testimony was that Dr. Ghebleh was at the hospital, on his cell phone, without his copies of the medical records, which therefore required the use of the hypothetical question by claimant s counsel. ¶18 In reaching an award, the ALJ considers all relevant evidence, both testamentary and documentary. Perry v. Indus. Comm n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975). An ALJ is not bound to accept or reject an expert s entire opinion, but 12 instead, he is free to combine portions of the expert testimony in a reasonable manner. 800-01. Fry s, 161 Ariz. at 122-23, 776 P.2d at In this case, the hypothetical question answered by Dr. Ghebleh appropriately included medical information from other treating physicians. ¶19 Rural Metro next argues that the hypothetical question erroneously stated that the claimant made a sharp movement during his trunk rotation testing. Although the claimant does not specifically state that his movement was sharp, it was not an unreasonable supposition in light of the claimant s testimony that he felt a cracking/popping sensation while performing the maneuver. The nature of the description is also supported by the May 4th X-rays which revealed a new displaced rib fracture. ¶20 Rural Metro erroneous because claimant s blood testing. blood it argues includes pressure shot both before the up and first hypothetical supposition after after the that trunk is the rotation the range of motion with his blood He testified that based on his pressure it prior to the range of motion testing. the the The claimant testified he was an EMT in the habit of taking his own blood pressure. experience that The STI examiner testified that he took the claimant s pressure testing. also time his blood pressure 13 did not feel elevated Claimant testified that was taken at STI was immediately following the range of motion testing. that the reading was so high that the He testified examiners then tried taking his blood pressure on his other arm and with a different device. It is undisputed that after the range of motion testing, claimant s blood pressure was elevated to a point at which the examination had to be stopped. ¶21 The ALJ is the sole judge of witness credibility. Holding v. Indus. Comm n, 139 Ariz. 548, 551, 679 P.2d 571, 574 (App. 1984). It is the ALJ s duty to resolve all conflicts in the evidence and to draw all warranted inferences. Malinski v. Indus. Comm n, 103 Ariz. 213, 217, 439 P.2d 485, 489 (1968). Where more than one inference may be drawn, the ALJ is at liberty to choose either and this court will not disturb his conclusion unless it is wholly unreasonable. Id. In this case, the ALJ resolved all conflicts in the evidence, including the issue over blood pressure changes, in the favor of the claimant whom he explicitly found credible. ¶22 because Rural Metro also argues the hypothetical was erroneous Dr. Ghebleh was asked to assume that a single hydrocodone pill on the morning of the examination could mask the symptoms of a displaced rib fracture. doctor was asked to claimant s symptoms. assume that the We disagree that the medication masked the The hypothetical question did include the 14 claimant s statement that he had taken a hydrocodone pill on the morning of the examination and his attorney s supposition that the pain would become more apparent as the medication waned. But as a medical professional, we believe Dr. Ghebleh would draw his own conclusions from this information and would have so stated if he found the proposition untenable. ¶23 Many factors enter into a resolution of conflicting evidence, including whether or not the testimony is speculative, consideration of the diagnostic method used, qualifications and backgrounds of the expert witnesses and diagnosing the type of injury incurred. their experience in Carousel Snack Bar v. Indus. Comm n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367 (1988). In this case, the ALJ explicitly found the claimant credible and resolved the medical conflict in favor of Dr. Ghebleh. not find that any of the alleged inadequacies We do in the hypothetical question were sufficient to undermine Dr. Ghebleh s causation opinion. See Aguiar v. Indus. Comm n, 165 Ariz. 172, 173-74, 797 P.2d 711, 712-13 (App. 1990). ¶24 Rural Metro next argues that Dr. Ghebleh s opinion was equivocal, and therefore, legally insufficient to support the Award. Equivocal . . . refers to that which is subject to two or more interpretations ; to equivocate means to avoid committing one s self in what one says . Arizona case law is consistent with such definitions 15 of equivocal , and the rule that equivocal testimony cannot create a conflict is not necessarily applied merely because testimony is couched in terms of possibility . State Comp. Fund v. Indus. Comm n, 24 Ariz. App. 31, 36, 535 P.2d 623, 628 (1975). This rule is recited in instances in which the doctor keeps changing his mind, i.e., expresses one opinion, reverses himself, retreats to his initial position, and then states he needs to conduct further examination. ¶25 In this case, Dr. Ghebleh Id. responded to the hypothetical question regarding causation on direct examination and stated that it was within reasonable medical probability that the claimant s rotation movement during the STI exam could have displaced his healing rib fracture. We have reviewed the cross-examination and from the ICA hearing, we do not find anything that would constitute equivocation or undermine this opinion. For that reason, we find Dr. Ghebleh s opinion legally sufficient. ¶26 Rural Metro next argues that the ALJ ignored uncontroverted testimony from its medical expert, Jon Zoltan, M.D., that a displaced rib fracture would have caused immediate pain. 5 We do not believe that this opinion from the doctor 5 When medical evidence is uncontroverted and based on matters peculiarly within the realm of medical knowledge, the findings are binding on the ALJ. Cammeron v. Indus. Comm n, 98 Ariz. 366, 371, 405 P.2d 802, 805 (1965). 16 constitutes a medical fact or uncontroverted could not be rejected by the ALJ. evidence which Instead, this was a part of Dr. Zoltan s opinion, which the ALJ rejected in favor of Dr. Ghebleh s opinion. We believe that it was reasonable for Dr. Ghebleh to have a different opinion regarding the onset of pain following a displaced rib fracture. ¶27 Rural Metro next argues that it failed to receive a fair ICA hearing as a result of the ALJ s evidentiary rulings given counsel s leading questions and speaking objections. hearings are to be conducted substantial accomplishing this a A.R.S. justice. in § objective, the manner so as 23-941(F) ALJ is to achieve (2012). not bound ICA by In the technical rules of evidence and procedure which normally govern judicial proceedings. Nolden v. Indus. Comm n, 127 Ariz. 501, 503, 622 P.2d 60, 62 (App. 1980). We have carefully reviewed the transcripts of the hearings conducted in this case, and we do not believe that the ALJ s rulings precluded Rural Metro from receiving a fair hearing. ¶28 Rural Metro last argues that the ALJ abused his discretion by allowing the claimant to substitute Dr. Ghebleh for Dr. Amabile as his testifying medical witness at the ICA hearing. Commission, To this end, Rural Metro cites Amey v. Industrial for the proposition 17 that the ALJ should have undertaken to inquire more about the substitution. 390, 752 P.2d 43 (App. 1988). We disagree. 156 Ariz. Dr. Ghebleh was listed in the claimant s September 12, 2011 Rule 41 statement 6 as a potential witness. Dr. Amabile s medical records were in evidence and available to Dr. Zoltan and Rural Metro s counsel, and the 2012. two discussed Claimant was Dr. Amabile s forthright opinions regarding the on January reason for 27, the change from Dr. Amabile to Dr. Ghebleh and we find Rural Metro did not incur any additional costs or prejudice from the switch. The ALJ was not under a duty to make further inquiries into the change. ¶29 The ALJ has broad discretion to regulate and control the witnesses appearing before him. See Travelers Ins. Co. v. Indus. Comm n, 18 Ariz. App. 28, 30, 499 P.2d 759, 761 (1972). In ICA proceedings, there is also a preference for matters to be decided on the merits and not on procedural technicalities. In re Trull, 21 Ariz. App. 511, 513, 520 P.2d 1188, 1190 (1974). In this case, we find no abuse of discretion. 6 See Arizona Administrative Code R20-5-141.A.2 (procedure to subpoena medical witnesses). 18 ¶30 For all of the foregoing reasons, the award affirmed. /s/ ________________________________ JON W. THOMPSON, Presiding Judge CONCURRING: /s/ _______________________________ DONN KESSLER, Judge /s/ _______________________________ PATRICIA K. NORRIS, Judge 19 is

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