Santos v. Az Mini mix/bench

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JOSE SANTOS, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

AZ MINI MIX CONCRETE OF MESA, Respondent Employer,

BENCHMARK INSURANCE, Respondent Insurance Carrier.

No. 1 CA-IC 22-0037
FILED 4-25-2023

Special Action - Industrial Commission
ICA Claim No. 20173000200
Carrier Claim No. 6567442
The Honorable Janet Weinstein, Administrative Law Judge

AFFIRMED

COUNSEL

Jose Antonio Santos Meza, Phoenix
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Norton & Brozina PC, Phoenix
By Rachel Parise Brozina
Counsel for Respondent Employer and Insurance Carrier

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Anni Hill Foster joined.

T H U M M A, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (ICA) award finding Jose Santos has no permanent impairment
from an industrial injury and needs no supportive care because his injury
is medically stationary. Because the award is supported by the record, it is
affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Santos was injured in October 2017 while working as a diesel
mechanic/maintenance technician for Az Mini Mix Concrete of Mesa. A
large, heavy object hit Santos in the head while he was working on a truck,
causing post-concussive syndrome. His workers’ compensation claim was
accepted, and he was treated for chronic migraine management through the
end of 2020.

¶3 In January 2021, Santos began treatment with neurologist Dr.
Luay Shayya, who diagnosed posttraumatic headaches leading to chronic
migraines. In June 2021, Dr. Shayya concluded that Santos was medically
stationary with a 5% permanent impairment. Dr. Shayya recommended
supportive care but no work restrictions. In July 2021, based on an
independent medical examination (IME) by neurologist Dr. J. Michael
Powers, carrier Benchmark Insurance closed the claim without permanent
impairment. Santos requested a hearing challenging that decision.

¶4 At that hearing, the parties agreed that Santos was medically
stationary. The only disputed issues were whether he suffered permanent
impairment and needed supportive care. Dr. Shayya testified that he based
his permanent impairment rating on a questionnaire Santos completed
called a Migraine Disability Assessment Test (MIDAS). MIDAS asks about
how migraine headaches may interfere with a person’s ability to function.

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Decision of the Court

Dr. Shayya assigned the 5% permanent impairment based on Santos’
MIDAS score. Dr. Shayya also testified that Santos had no work restrictions
as long as he takes his current medications. Dr. Shayya opined Santos needs
supportive care to manage those medications.

¶5 Dr. Powers testified that Santos has health problems,
including diabetes and coronary artery disease, that significantly affect his
condition. Based on his IME and record review, however, Dr. Powers could
not find “anything leftover” from the 2017 industrial injury. He assessed
Santos with chronic daily headaches that did not meet the criteria for
migraines and stated that Santos’ description of his headaches was not
typical for migraines. He emphasized that Santos has used multiple drugs
that should help with migraines. Finally, Dr. Powers pointed out that a 2019
neuropsychological evaluation showed that Santos “significantly” over-
reported symptoms. Thus, Dr. Powers did not believe that the MIDAS
score, which is the result of a self-reporting test, was a reliable assessment
of impairment. He concluded that for a “general posttraumatic headache,”
he could find nothing “that would be fairly relatable to his industrial
injury.” Dr. Powers found no basis for a permanent impairment rating and
no need for supportive care for the 2017 industrial injury.

¶6 Faced with this competing medical testimony, the ICA
Administrative Law Judge (ALJ) issued an award that found Dr. Powers’
opinions well-founded and “more probably correct.” The ALJ concluded
that Santos had no permanent impairment and required no supportive care.
After an administrative review affirmed the award, Santos timely filed this
special action. This court has jurisdiction under A.R.S. §§ 12-120.21(A)(2)
and 23-951(A) and Arizona Rule of Procedure for Special Actions 10.

DISCUSSION

¶7 This court views the evidence in the light most favorable to
upholding the award. Avila v. Indus. Comm’n, 219 Ariz. 56, 57 ¶ 2 (App.
2008). The ALJ has the primary responsibility to resolve conflicts in medical
opinion evidence. Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46
(1988). This court defers to the ALJ’s resolution of conflicting evidence and
affirms the ALJ’s findings if any reasonable theory of evidence supports
them. Perry v. Indus. Comm’n, 112 Ariz. 397, 398–99 (1975).

¶8 The burden of proof is on the injured worker to show that a
claim should not be closed; specifically, that the medical condition resulting
from the injury has not become stationary and that continuing benefits are
necessary. Stephens v. Indus. Comm’n, 114 Ariz. 92, 94 (App. 1977). Because

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Decision of the Court

Santos conceded that his condition had become stationary, he needed to
show that he had a permanent impairment and needed supportive care.
When an issue is peculiarly within the knowledge of medical doctors,
medical testimony is necessary to prove it. Rosarita Mexican Foods v. Indus.
Comm’n, 199 Ariz. 532, 535 (2001). When an injury is not apparent to a
layperson, expert medical testimony must establish “not only the causal
connection between a claimant’s medical condition and the industrial
accident but also the existence and extent of any permanent impairment.”
Gutierrez v. Indus. Comm’n, 226 Ariz. 1, 3 ¶ 5 (App. 2010), aff’d in part, 226
Ariz. 395 (2011). Where evidence conflicts or allows different inferences, the
ALJ has the discretion to resolve those conflicts and choose either inference.
See Waller v. Indus. Comm’n, 99 Ariz. 15, 18 (1965).

¶9 Here, the ALJ considered two competing medical opinions.
Santos has not shown that the ALJ’s decision to give more weight to Dr.
Powers’ opinions was unreasonable or error. Dr. Power’s opinion was
based on the relevant evidence and his expertise. Santos disagrees with the
weight the ALJ gave his evidence, but this court does not reweigh evidence
on appeal. See Simpson v. Indus. Comm’n, 189 Ariz. 340, 342 (App. 1997).
Instead, the question is whether the record supports the award. After a
thorough review, the record supports the ALJ’s award.

CONCLUSION

¶10 The ALJ’s award is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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