Acuna v. sprouts/travelers

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MARTIN ACUNA, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

SPROUTS FARMER’S MARKET, LLC, Respondent Employer,

TRAVELERS INDEMNITY CO., Respondent Carrier.

No. 1 CA-IC 13-0049
FILED 03/13/2014

Special Action - Industrial Commission
ICA Claim No. 20121-560340
Carrier Claim No. 127CBEPE2878H

Michael A. Mosesso, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Snow, Carpio & Weekley, PLC, Phoenix
By Chad T. Snow

Toby Zimbalist, Attorney at Law, Phoenix
By Toby Zimbalist

Co-Counsel for Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade

Counsel for Respondent

Lester & Norton, PC, Phoenix
By Rachel Parise Brozina

Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Maurice Portley joined.

N O R R I S, Judge:

¶1 This is a special action review of an Industrial Commission
of Arizona (“ICA”) award and decision upon review denying the
compensability of an injury claim reported by Petitioner, Martin Acuna.
On appeal, Acuna argues he proved compensability of his claim through
medical evidence which Respondent Employer and Respondent Carrier
(collectively, “Respondents”) failed to controvert with legally sufficient
and unequivocal evidence. Because the evidence presented by
Respondents, however, was substantial, unequivocal, and supported the
administrative law judge’s (“ALJ”) finding of noncompensability, we
affirm the award. See Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16, 41
P.3d 640, 643 (App. 2002) (appellate court considers evidence in light most
favorable to upholding ALJ’s award).

FACTS AND PROCEDURAL HISTORY

¶2 Acuna worked as a produce clerk for Respondent Employer.
On May 28, 2012, while lifting a 40 pound box of apples, Acuna felt a pop
in his right shoulder. Acuna immediately informed the store manager of
the incident, and he sent Acuna to a health care provider (“provider”) for
treatment. Acuna reported to the provider severe burning and stabbing
pain in his right shoulder and a limp right arm with tingling down his
arm to his hand. At a follow up appointment with the provider on May
31, 2012, Acuna reported the same symptoms.

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¶3 Acuna filed a workers’ compensation claim, which the
respondent carrier denied. He timely requested a hearing, and the ALJ
held three hearings for testimony from Acuna, a co-worker, and two
board-certified orthopedic surgeons -- Jeffrey S. Levine, M.D., who had
examined Acuna at the request of Acuna’s attorney, and Anthony Carl
Theiler, M.D., who had examined Acuna at Respondents’ request.

¶4 At the ICA hearing, Acuna testified he had not recovered
from the May 28, 2012 injury and explained that from the date of the
alleged injury to June 21, 2012 he “[p]retty much” continued to have the
same problems and limited use of his right shoulder. He further testified
he was still having constant gnawing pain that precluded him from
activities above shoulder level, although he could perform “[r]elatively
normal” activities below shoulder level to a “certain extent.” Dr. Levine
testified Acuna had also reported severe pain and difficulty in using his
right arm. Based on what Acuna had told him, his own examination of
Acuna, and his review of a June 16, 2002 MRI, Dr. Levine testified Acuna
had sustained an industrial injury on May 28, 2012 and agreed it would be
expected that Acuna would “have difficulty using his right upper
extremity in doing activities of daily living.”

¶5 Relying on surveillance videos of Acuna obtained by
Respondents on June 9 and 11, 2012 that contradicted Acuna’s description
of the effects of his alleged shoulder injury, 1 the ALJ found Acuna “not
credible,” explaining Acuna “did not appear [in the video surveillance] on
June 9, 2012 or June 11, 2012 to be restricted in his movements in the use of
the right upper extremity.” Finding “this observation [was] the same Dr.
Theiler noted in his testimony,” the ALJ then concluded, “based upon this
and the adoption of Dr. Theiler’s opinions[,] no injury occurred.”

1In a surveillance video taken on June 9, 2012, Acuna could
be seen driving himself to the grocery store, pushing a grocery cart with
both arms, carrying keys in his right hand, and unlocking his car’s trunk
and loading groceries. In a June 11, 2012 surveillance video, Acuna could
be seen using his right arm to unlock, open, and close his car’s passenger
door, holding his cell phone to his right ear while driving, and vigorously
vacuuming the interior of his car. Respondents also introduced other
surveillance videos of Acuna taken on August 16 and 18, 2012.

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DISCUSSION

¶6 In addition to considering the surveillance evidence, which
the ALJ was entitled to rely on, see, e.g., 7 Arthur Larson and Lex K.
Larson, Larson’s Workers’ Compensation Law § 127.10, at 127-45 to -48 (rev.
ed. 2013), the ALJ, as noted above, adopted Dr. Theiler’s medical
testimony and opinions instead of the testimony and opinions of Dr.
Levine. Distancing himself from the surveillance evidence, Acuna first
argues on appeal that he presented legally competent medical evidence
from Dr. Levine, which the ALJ should have accepted because
Respondents’ opposing medical evidence -- presented through Dr.
Theiler -- was not based on medical facts and was, therefore, legally
insufficient to support the award. See generally W. Bonded Prods. v. Indus.
Comm’n, 132 Ariz. 526, 527-28, 647 P.2d 657, 658-59 (App. 1982) (unless
industrial accident causes injuries that are obvious to a layman, expert
medical evidence is required to establish causal relationship between the
accident and its alleged consequences); Royal Globe Ins. Co. v. Indus.
Comm'n, 20 Ariz. App. 432, 434, 513 P.2d 970, 972 (1973) (to support an
award, medical opinion must be based on findings of medical fact such as
claimant’s history, medical records, diagnostic tests, and examination).
We disagree; Dr. Theiler based his opinions on medical facts.

¶7 Dr. Theiler reviewed the provider’s records, the MRI, the
surveillance videos, and examined Acuna on November 12, 2012. And, by
the time of his hearing testimony, Dr. Theiler had also reviewed Dr.
Levine’s report. Based on the medical facts he obtained from his review of
these materials and through his own examination of Acuna, Dr. Theiler
testified Acuna exhibited extreme pain behavior during his examination,
which was completely inconsistent with his behavior as shown on the
surveillance videos and further agreed Acuna’s actions as shown on the
videos were “at odds” with what Acuna had reported to the provider. Dr.
Theiler testified there was a “complete disconnect between the physical
exam findings [made by the provider], the medical records, [his own]
evaluation, and the activity performed [by Acuna] in a nonclinical
setting.” He concluded there was no “significant injury that [he] could
relate to the incident described on [May 28, 2012].” 2

2An “incident” is not synonymous with an “injury” for
purposes of establishing a compensable claim. See Yates v. Indus. Comm’n,
116 Ariz. 125, 127, 568 P.2d 432, 434 (App. 1977).

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¶8 Acuna next argues the ALJ should have adopted Dr.
Levine’s medical testimony and opinions because Dr. Theiler’s testimony
was equivocal and, therefore, legally insufficient to support the award.
See generally Rosarita Mexican Foods v. Indus. Comm’n, 199 Ariz. 532, 535-36,
¶¶ 10, 13, 19 P.3d 1248, 1251-52 (App. 2001) (equivocal medical testimony
will not support award; testimony is equivocal when subject to two or
more interpretations or doctor avoids committing to a particular opinion).
We disagree. 3

¶9 First, contrary to Acuna’s argument on appeal, Dr. Theiler
was not equivocal in discussing the MRI based on what Acuna argues
were inconsistencies between his report and hearing testimony. In his
report, Dr. Theiler quoted the MRI findings:

The radiologist’s impression is as follows:

....

4. Severe tendinosis of rotator cuff tendons
with moderate grade articular surface partial
tearing of the supraspinatus, low-grade
articular surface and interstitial tears of the
infraspinatus and subscapularis tendons

Dr. Theiler then discussed those findings in his report in light of his own
review of the MRI. He reported, “[t]here is tendinosis of the
supraspinatus and infraspinatus tendons, but there is no significant
partial-thickness tearing of either tendon,” and “[t]here appears to be
significant tendinosis of the long head of the biceps tendon with some
partial tearing of the subscapularis tendon as well.” At the hearing, Dr.
Theiler testified, “[t]here was tendonosis, but there was no significant
partial tearing or full-thickness tears.” (Emphasis added). Both in his

3Respondents argue Acuna failed to raise this issue on
administrative review, so he waived it on appeal. Although Acuna did not
specifically mention equivocation in his request for review, he did
question the adequacy of Dr. Theiler’s opinion. Regardless, we review the
accepted evidence of record to ascertain whether it supports the award.
See Stephens v. Indus. Comm’n, 114 Ariz. 92, 95, 559 P.2d 212, 215 (App.
1977) (in absence of specific request for review, appellate court limits
review to matters extant in the record and the sufficiency of the evidence
to support the award).

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report and in his testimony, he concluded the MRI demonstrated only
preexisting degenerative changes in the right shoulder. Dr. Theiler was,
thus, not equivocal in discussing the MRI.

¶10 Similarly, Dr. Theiler was not equivocal as to whether any of
the MRI findings regarding Acuna’s rotator cuff and biceps tendon were
acute. Although Dr. Theiler stated in his report it was “impossible to state
whether any of the findings involving the rotator cuff and biceps tendon
[were] acute,” he also reported “the general appearance of the MRI scan of
Mr. Acuna’s right shoulder [was] chronic and degenerative in nature, and
repeatedly emphasized the general appearance of the MRI scan was
“chronic in nature.” And, at the hearing, he confirmed his view that the
MRI evidenced degenerative changes.

¶11 Finally, Acuna argues the ALJ should have accepted Dr.
Levine’s testimony and opinions because Dr. Theiler misstated the
mechanism of injury in both his report and testimony. Again, we
disagree. Acuna testified he had been injured when he lifted a 40 pound
box of apples to place on a cart. In his report, Dr. Theiler reported Acuna
had told him he had been injured when he lifted a 40 pound box of apples.
At the hearing, Dr. Theiler explained that even assuming Acuna had lifted
the crate of apples from the floor there was “nothing on the MRI scan that
would correlate with the severity of the subjective complaints.”

¶12 For the foregoing reasons, we affirm the award.

:gsh

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