ROCKWELL v. PRESCOTT/SCF

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 JULIE E. ROCKWELL, ) ) Petitioner, ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) PRESCOTT UNIFIED SCHOOL DISTRICT, ) ) Respondent Employer, ) ) SCF WESTERN INSURANCE COMPANY, ) ) Respondent Carrier. ) ) DIVISION ONE FILED: 7/9/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-IC 12-0043 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action - Industrial Commission ICA Claim Nos. 20090-910402* and 20093-080157** Carrier Claim Nos. 0904724* and 09W00260** The Honorable Paula R. Eaton, Administrative Law Judge AWARD AFFIRMED Julie E. Rockwell Petitioner In Propria Persona The Industrial Commission of Arizona By Andrew F. Wade Attorney for Respondent Prescott Phoenix James B. Stabler, Chief Counsel SCF Arizona By Chiko Swiney Attorneys for Respondents Employer and Carrier Phoenix C A T T A N I, Judge ¶1 This Commission of administrative is a Arizona law additional the erred award judge workers ALJ special action and by decision ( ALJ ) compensation engaging review denying benefits. in of upon an Industrial review Julie by an E. Rockwell Rockwell contends prejudicial procedural irregularities and by finding that her industrial injuries were medically stationary following reasons, with we no permanent affirm the impairment. ALJ s decision For the denying additional benefits. FACTS AND PROCEDURAL BACKGROUND ¶2 Rockwell was a school teacher. On March 13, 2009, a student who was running in a hallway collided with her, knocking her to the floor and leaving her with loss of vision, blurred [vision] soreness. + double vision, severe neck pain and general The workers compensation carrier accepted this claim as compensable. ¶3 On October 20, 2009, Rockwell was again injured at work when shelves and their contents fell off a classroom wall, striking Rockwell s head. Rockwell experienced pain in the left 2 side of her head and jaw, and she had issues with her vision. The carrier also accepted this claim as compensable. ¶4 Rockwell continued to report various ongoing symptoms, including bilateral jaw pain, neck pain, pain across the bridge of her nose, numbness in her left cheek, and some numbness in her fingers. The carrier sent Rockwell for an independent medical evaluation ( IME ) on December 18, 2009 by Dr. Leo Kahn, a board-certified neurologist. Dr. Kahn concluded Rockwell s condition as it related to the workplace incident was stationary without permanent impairment. ¶5 The December 31, carrier 2009 closed and Rockwell s Rockwell s March October claim claim effective effective December 29, 2009, finding that neither accident resulted in permanent impairment. Rockwell challenged the termination of benefits as to both claims, and the cases were consolidated for hearing. ¶6 At the subsequently scheduled hearing, the parties presented testimony from Rockwell, two of Rockwell s treating physicians, and two independent medical evaluators. Rockwell described the March and October incidents, what treatment she had sought, and what workplace injuries. ongoing symptoms she attributed to the Rockwell testified twice, once initially and again after the case was reassigned to a different ALJ. 3 ¶7 Dr. Eric Baumann, a physician board-certified in physical medicine and rehabilitation as well as interventional spine and pain management, testified regarding his treatment of Rockwell following the March incident and continuing after the October incident. 1 myofascial pain Dr. Baumann initially diagnosed Rockwell with syndrome after the March incident. At the hearing, he recommended Rockwell receive one to two cervical epidurals to address her ongoing left neck and arm pain from the March incident. Dr. Baumann expressed no opinion regarding the October incident, and testified only that it is a possibility that Rockwell s ongoing symptoms are related to the March incident. ¶8 Dr. Reed Day, a board-certified oral and maxillofacial surgeon, began 2010. treating Rockwell s jaw condition in October He testified that Rockwell had a preexisting derangement of her temporomandibular joints and bite deformity and that the October incident had aggravated both conditions. Dr. Day stated Rockwell needed braces, jaw reconstruction surgery, and possibly future temporomandibular joint surgery resulting from the October incident. ¶9 a The carrier presented testimony from Dr. Gary Gradke, maxillofacial surgeon and board-certified 1 dentist, who Although Dr. Baumann testified before the case was reassigned, Rockwell through counsel elected not to recall him to testify before the new ALJ. 4 performed an independent medical evaluation of Rockwell in July 2011. As part of the evaluation, Dr. Gradke took Rockwell s medical history, treatment considered following the Rockwell s March and medical October records from incidents, and conducted a physical examination with radiographic imaging. Dr. Gradke acknowledged hypothetically that trauma to certain parts of the skull and jaw could possib[ly] (but [n]ot probab[ly] ) cause symptoms comparable to those Rockwell reported. Given the manner of the October incident, however, Dr. Gradke testified the shelf incident could have caused [Rockwell] to have some generalized jaw achiness for a few days to a couple of weeks, but that it preexisting was [a]t most a temporomandibular temporary joint aggravation condition. Dr. of her Gradke concluded that Rockwell had no ongoing condition or need for treatment causally related to either the March or October incidents. ¶10 The carrier also presented based on the December 2009 IME. took Rockwell s neurological records records. medical examination, related to the Rockwell s testimony from Dr. Kahn During the evaluation, Dr. Kahn history, performed a physical and reviewed Rockwell s medical October incident, as earlier neurological examination well was as normal and MRIs of Rockwell s brain and cervical spine from December 2, 2009 similarly showed no abnormalities. 5 Dr. Kahn concluded there was no objective basis for any ongoing symptoms related to the workplace incidents, and he testified that both the March and October impairment. records, injuries were stationary without permanent Dr. Kahn further suggested, based on his review of that Rockwell s continuing symptoms might be psychologically rather than physically based. ¶11 The ALJ found Rockwell s testimony not to be credible, found a conflict between the doctors opinions, determined Dr. Gradke s and Dr. Kahn s opinions to be more probably correct and well founded, and issued awards finding Rockwell medically stationary without permanent impairment injuries. After the ALJ affirmed the decision upon review, this timely special action followed. as to both workplace We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21 and 23-951(A) and Arizona Rule of Procedure for Special Actions 10. 2 DISCUSSION ¶12 On special action review of a workers compensation award, we consider questions of law de novo but defer to the ALJ s factual findings. 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, Perry v. Indus. Comm n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975), 2 Absent material revisions after the relevant date, we refer to a statute s current version. 6 and will set aside the award only if it has no reasonable basis. Ortega v. Indus. Comm n, 121 Ariz. 554, 557, 592 P.2d 388, 391 (App. 1979). I. Procedural Claims. ¶13 court Rockwell first argues that the ALJ improperly violated rules and court orders, effectively meaningful opportunity to present her case. denying her a Rockwell claims the ALJ impermissibly allowed the carrier -- but not Rockwell -- to add additional witnesses after ordering no further changes to the witness list as of January 19, 2011. To the contrary, after the case was reassigned to a different ALJ as of May 2011, the newly assigned ALJ allowed both parties, not just the carrier, to submit medical evidence and request medical subpoenas anew. ¶14 her Rockwell also contends the ALJ erred by not allowing to undergo a psychological evaluation to psychological evidence presented by the carrier. fact issued an order allowing testimony rebut any The ALJ in from Rockwell s psychologist Dr. Karen Sullivan, but Rockwell through counsel withdrew Rockwell s the request decision to not call to Dr. call Sullivan. Dr. Sullivan, In the light of carrier withdrew its request for testimony from IME psychologist Dr. Patricia Johnson. Although Dr. Johnson s report was entered into the the evidence record, presented was only Dr. arguably Kahn s 7 relevant suggestion psychological that, because Rockwell s continuing symptoms were not physically caused, they might be psychological in origin. opportunity to rebut this The ALJ gave Rockwell the suggestion with testimony, but Rockwell chose not to do so. Dr. Sullivan s In any event, the ALJ s decision relied directly on Dr. Kahn s medical causation opinion, not on his alternative suggestion symptoms may be psychologically based. that Rockwell s The ALJ did not thereby err. II. Sufficiency of the Evidence. ¶15 Rockwell argues the ALJ erred by adopting the medical opinions of Drs. Gradke and Kahn over those offered by Drs. Baumann and Day. A claimant bears the burden of proving her condition is causally related to the workplace injury and that it either is not stationary or resulted in permanent impairment. E.g., Lawler v. Indus. Comm n, 24 Ariz. App. 282, 284, 537 P.2d 1340, 1342 (1975). Unless an injury is readily apparent to a lay person, medical expert testimony is necessary to establish the injury s existence, resulting impairment. causation, needed treatment, and Yates v. Indus. Comm n, 116 Ariz. 125, 127, 568 P.2d 432, 434 (App. 1977). ¶16 conflicts The in ALJ has medical primary responsibility evidence, and we resolution unless it is wholly unreasonable. at 398-99, 542 P.2d at 1097-98. 8 to will resolve accept any that Perry, 112 Ariz. When resolving a conflict in medical evidence, the ALJ may consider many factors, including whether or not the testimony is speculative, consideration of the diagnostic method used, qualifications in backgrounds of the expert witnesses and their experience in diagnosing the type of injury incurred. Carousel Snack Bar v. Indus. Comm n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367 (1988). ¶17 Rockwell equivocal argues opinion. that Dr. Dr. Although Gradke offered Gradke only an acknowledged a possibility (although not a probability) that some kind of blow to the head and jaw could produce symptoms similar to those reported by Rockwell, he opined that the type and location of blow actually Rockwell s described jaw problems temporomandibular that none of by joint Rockwell and noted problems. Rockwell s would He ongoing not have Rockwell s preexisting unequivocally symptoms caused were concluded related to Rockwell s March or October workplace incidents. ¶18 dispute Rockwell and, requisite parties the expertise dispute medically continuing developing incidents to also extent to as stationary and offer to that it a was, required the But the opinion. injuries causation of to that the treatment, March thus in lacked workplace argued related 9 Gradke never the on further Dr. was the Rockwell were causation causation whether centered symptoms: symptoms claims were Rockwell s her and ongoing, October precluding a stationary finding, whereas the carrier asserted the continuing symptoms were unrelated to the industrial injuries. As a board- certified maxillofacial surgeon, Dr. Gradke had the requisite medical expertise under Arizona law to opine on the cause of Rockwell s jaw condition. See W. Bonded Prods. v. Indus. Comm n, 132 Ariz. 526, 527, 647 P.2d 657, 658 (App. 1982). ¶19 Rockwell further contends both Drs. Gradke and Kahn lacked adequate foundation for their medical opinions, arguing their failure to review all medical records reviewed by Dr. Day fatally undermines their conclusions. The record reflects that both all Drs. Gradke Rockwell s and treatment incidents. Dr. Kahn Kahn after also reviewed the March reviewed predating the March incident. medical and records October addition of workplace medical records Rockwell does not specify what additional records were provided to Dr. Day or how additional pre-incident medical records would be critical to determine industrial causation of her ongoing symptoms. ¶20 the As Rockwell notes, Dr. Kahn could not have reviewed later-conducted December 2010 MRI of Rockwell s temporomandibular joints when he first rendered an opinion in December 2009. Dr. Kahn did, however, review Rockwell s December 2, 2009 brain and cervical spine MRIs, which showed no abnormalities. Additionally, Dr. Gradke, who had expertise relevant to the jaw condition, reviewed the December 2010 MRI 10 and concluded the damage to Rockwell s jaw joints was unrelated to the workplace incidents. ¶21 The ALJ s resolution of the conflict testimony has a reasonable basis in the record. Ariz. at 398-99, 542 P.2d at 1097-98. in medical See Perry, 112 Because the decision is supported by reasonable evidence, the ALJ did not err. See, e.g., Stainless Specialty Mfg. Co. v. Indus. Comm n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985). CONCLUSION ¶22 For the foregoing reasons, we affirm the award. 3 /S/ KENT E. CATTANI, Judge CONCURRING: /S/ JON W. THOMPSON, Presiding Judge /S/ PATRICIA K. NORRIS, Judge 3 On April 26, 2013, Rockwell filed a Motion to Correct Record with Missing Documents. Because the record already includes all of the documents Rockwell seeks to add, we deny that motion as moot. 11

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.