Jaeger v. Banner Health

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GEORGE D. JAEGER,
Petitioner,

v.

THE INDUSTRIAL COMMISSION OF
ARIZONA,
Respondent,

BANNER HEALTH SYSTEM,
Respondent Employer,

BANNER HEALTH RISK MGMT,
Respondent Carrier.

No. 1 CA-IC 14-0032
FILED 1-6-2015

Special Action - Industrial Commission
ICA Claim No. 20113-060149
Carrier Claim No. 157149
The Honorable Deborah Nye, Administrative Law Judge

AWARD AFFIRMED
 COUNSEL

George D. Jaeger, San Diego, CA
Petitioner In Propria Persona

The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent

Jardine Baker Hickman & Houston, Phoenix
By Stephen Baker and John E. Drazkowski
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.

B R O W N, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona award and decision upon review awarding petitioner George D.
Jaeger (“Jaeger”) medical, surgical, and hospital benefits, temporary
disability benefits, and supportive care, but denying his request for
treatment of migraines and post-traumatic stress disorder (“PTSD”). Jaeger
contends the ALJ considered improper evidence and failed to consider
relevant medical expert testimony. For the following reasons, we affirm.

BACKGROUND

¶2 Jaeger worked for the respondent employer Banner Health
System (“Banner”)1 as a psychiatric nurse in its behavioral health hospital.
On October 14, 2011, a patient struck Jaeger in the face, resulting in a
laceration to his left lower lip and damage to his teeth. Jaeger was
transported to a hospital where he received sutures to repair the laceration.
Jaeger later underwent two reconstructive surgeries conducted by a plastic
surgeon and authorized by Banner.

1 Banner Health System is a self-insured employer. Thus, we refer to
the respondent employer and carrier simply as “Banner.”

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¶3 Banner also authorized six visits with Dr. James Youngjohn, a
neuropsychologist whom Jaeger visited twice before he and the doctor
determined further treatment was not necessary at that time. Because
Banner declined to provide additional psychological treatment when Jaeger
expressed his desire for more visits with Dr. Youngjohn, Jaeger used his
Employee Assistance Plan (“EAP”) to pay for visits with Dr. George Bluth,
a psychologist with whom Jaeger had been a patient seven years earlier.
Dr. Bluth diagnosed Jaeger with PTSD and Jaeger continued to see Dr. Bluth
until his EAP visits were exhausted. Jaeger filed a request to change doctors
from Dr. Youngjohn to Dr. Bluth, which the ALJ ultimately granted in
October 2012.

¶4 Because the ALJ’s decision did not address the duration of
Jaeger’s psychological treatment with Dr. Bluth, Banner scheduled an
Independent Medical Exam (“IME”) with Dr. Lauren Dawson to determine
how Jaeger was progressing with his psychological care. Also, because
Jaeger had been complaining of migraine headaches, Banner scheduled an
IME with a neurologist, Dr. Leo Kahn. Jaeger moved to “exclude” the
psychological IME with Dr. Dawson, asserting it was directly contrary to
Dr. Bluth’s therapeutic advice, but Banner cancelled the scheduled IME
before the ALJ could rule on the motion. The neurological IME proceeded
as scheduled on January 11, 2013, with Dr. Kahn concluding there was no
objective evidence of a neurological injury arising out of Jaeger’s industrial
incident and, “[f]rom a neurological perspective, Mr. Jaeger does not have
any ratable permanent impairment.”

¶5 On January 29, 2013, Banner issued a Notice of Claim Status
terminating Jaeger’s psychological and neurological care. In February 2013,
after complaining of “post-coital headaches” that had evolved into
migraines, Jaeger was referred by his primary care physician to Dr. Fern
Arlen, a neurologist, who diagnosed the migraines as “possibly related” to
Jaeger’s assault. Jaeger then requested a hearing on the grounds he was
entitled to neurological treatment for migraines arising out of the assault
and to continued psychological treatment for his PTSD.

¶6 Prior to the re-scheduled psychological IME with Dr.
Dawson, Jaeger filed a motion for protective order seeking, among other
things, to prevent Banner from requiring him to undergo the IME, which
would require him to “rehash” the details of the injury at the planned IME.
Jaeger asserted that any discussion of his previous trauma would violate
his prescribed course of treatment and could aggravate his PTSD
symptoms. The ALJ denied Jaeger’s motion for a protective order, but

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cautioned both Dr. Dawson and counsel for Banner with the “proviso” that
they “avoid exploration of the original trauma . . . in any depth.”

¶7 Dr. Dawson conducted her IME on April 15, 2013. Her
examination consisted of a psychological assessment, a full review of
Jaeger’s medical records, and an interview with Jaeger. From her
examination, Dr. Dawson determined that Jaeger was psychologically
stationary as of the date of the IME. She opined nonetheless that Jaeger
would benefit from his final scheduled session with Dr. Bluth to facilitate
his discharge from treatment. On May 22, Banner issued a Notice of Claim
Status closing Jaeger’s claim, terminating active medical treatment, and
finding no permanent injury. However, Banner authorized one additional
visit with Dr. Bluth and two visits with a surgeon to remove Jaeger’s
inflamed salivary gland. Jaeger requested a hearing, seeking continuing
treatment for his “mild PTSD,” surgery, and dental repair.

¶8 The ALJ consolidated Jaeger’s hearing requests and heard
testimony from Jaeger and four doctors—Kahn, Bluth, Arlen, and
Dawson—over the course of three months. The ALJ found there was a
conflict in the expert medical opinions of Drs. Kahn and Fern regarding
Jaeger’s neurological care and of Drs. Dawson and Bluth regarding Jaeger’s
psychological care. The ALJ adopted the opinions of Drs. Kahn and
Dawson, and concluded that Jaeger’s injuries were medically stationary
without permanent impairment as of July 22, 2013. The ALJ awarded Jaeger
medical, surgical, and hospital benefits through July 22, 2013 and
supportive care consisting of one additional visit with Dr. Bluth, as well as
up to three visits with Dr. Berger, an oral surgeon in California, for the
salivary gland surgery which Banner had already agreed to provide. The
ALJ also ordered Banner to provide pre-authorization for the salivary gland
surgery.

¶9 Jaeger filed a request for review, and the ALJ summarily
affirmed her award. Jaeger timely appealed.

DISCUSSION

¶10 Jaeger first argues that the ALJ should not have considered
Dr. Dawson’s IME because it was conducted in violation of the “protective
order.” However, the ALJ expressly denied Jaeger’s March 2013 motion for
a protective order. The ALJ’s cautionary language regarding the scope of
Dr. Dawson’s inquiry was simply a “proviso” that encouraged Dr. Dawson
to “minimize the need for [Jaeger] to recount his original trauma.”

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¶11 In an Industrial Commission hearing, the ALJ has wide
latitude to admit evidence and is not strictly bound by the rules of evidence.
Fremont Indem. Co. v. Indus. Comm’n, 144 Ariz. 339, 345, 697 P.2d 1089, 1095
(1985). Jaeger cites no authority supporting his argument that testimony
arising out of an IME conducted beyond the scope of a suggested “proviso”
is inadmissible. Moreover, the evidence presented indicates that Dr.
Dawson complied with the ALJ’s limited directive “to avoid exploration of
the original trauma . . . in any depth.” Dr. Dawson testified that, although
Banner failed to provide the order to her before the IME, Jaeger voluntarily
provided her with the details of the incident after she cautioned him that
he did not need to give specific details of his incident. She wrote in her
examination report that “[d]espite warnings that talking about his assault
may cause him to relive his trauma and advice that he was not required to
discuss it, he spontaneously engaged in this topic and he was able to discuss
his experience in this regard with ease and no associated emotional
distress.” Thus, we find no abuse of discretion in the ALJ’s decision to
consider Dr. Dawson’s testimony and report.

¶12 Jaeger also argues the ALJ erred in adopting the opinions of
Drs. Dawson and Kahn because other experts testified that the migraines
he was experiencing may be the result of his industrial accident.
Specifically, Jaeger argues that the ALJ failed to consider relevant expert
testimony from his treating neurologist Dr. Arlen, which, if considered,
would have demonstrated the testimony from Dr. Kahn was “false.”2

¶13 Conflicts in medical evidence must be resolved by the trier of
fact. Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46, 749 P.2d 1364,
1367 (1988). In resolving such conflicts, the ALJ may consider “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.” Id. We will affirm
the ALJ’s resolution of conflicting evidence unless it is wholly
unreasonable. Stainless Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz. 12, 19,
695 P.2d 261, 268 (1985).

¶14 Acknowledging her duty to resolve conflicting expert
medical evidence, the ALJ adopted the opinions of Drs. Kahn and Dawson

2 In his briefing, Jaeger makes several references to the “expert
testimony” of Dr. Sam Chong. In fact, Jaeger is referring to a printout of an
article on post-traumatic headaches authored by Dr. Chong that was
included with Jaeger’s request for review. Dr. Chong was not a treating
physician of Jaeger and did not testify at any of the hearings.

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as “more probably correct.” In so doing, the ALJ considered the testimony
of all four medical experts, as well as Jaeger’s own testimony regarding his
neurological and psychological condition. As to Jaeger’s neurological care,
the ALJ found that Dr. Arlen had not reviewed Jaeger’s medical records,
but speculated that there was at least a temporal relationship between the
onset of Jaeger’s headaches and his industrial accident. By contrast, Dr.
Kahn conducted a full record review and neurological exam, and reported
in January 2013 that there was “no neurological basis to relate [Jaeger’s]
current reports of headaches to the . . . industrial injury.” Dr. Kahn testified
that post-coital migraines are not correlated with head trauma, no medical
evidence indicated that Jaeger sustained a brain injury from the assault, and
Jaeger’s condition was medically stationary without impairment.

¶15 As to Jaeger’s psychological condition, the ALJ found Jaeger
was a patient of Dr. Bluth prior to the industrial incident, that he never
conducted a psychological assessment of Jaeger, and that he diagnosed
Jaeger with moderate post-traumatic stress syndrome arising out of the
assault. Dr. Bluth also testified that while he had only seen Jaeger once
since the claim closed in July 2013, he did not think Jaeger was medically
stationary as of early 2013 and Jaeger would benefit from five additional
visits. The ALJ also found that Dr. Dawson conducted a record review and
psychological evaluation of Jaeger in April 2013, and recommended
supportive care in the form of one, but not six, additional visit with Dr.
Bluth because Jaeger’s psychological condition was medically stationary.

¶16 By arguing he presented evidence that “clearly prove[d]” the
testimony of Banner’s medical experts to be false, Jaeger essentially asks us
to reweigh the evidence on appeal, which we will not do. See Pac. Fruit
Express v. Indus. Comm’n, 153 Ariz. 210, 214, 735 P.2d 820, 824 (1987) (“We
do not weigh the evidence, but consider it in the light most favorable for
sustaining the award.”). Because the ALJ’s resolution of the conflict in
medical testimony has a reasonable basis in the record, we find no error.
See Perry v. Indus. Comm’n, 112 Ariz. 397, 398-99, 542 P.2d 1096, 1097-98
(1975).

¶17 In a third, seemingly hybrid argument, Jaeger asserts that Dr.
Dawson’s alleged violation of the protective order caused him “direct
harm” and that the ALJ should have awarded him “due compensation,”
presumably in the form of additional supportive care. From what we can
understand, this argument is largely a restatement of Jaeger’s first
argument, in which he contested the admissibility of evidence arising out
of his psychological IME. Jaeger also suggests that Dr. Dawson’s IME
caused his migraines and PTSD symptoms to worsen, and that Banner

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intended for the IME to cause such harm by failing to provide the court
order that cautioned Dr. Dawson not to delve too deeply into Jaeger’s
incident. However, Jaeger presents no evidence to support his argument,
and the record does not reflect, that the IME was conducted with the intent
to harass or cause him additional harm.

¶18 In support of his argument that the ALJ erred in failing to
award “due compensation,” Jaeger quotes from Dr. Bluth’s hearing
testimony, in which he opined “I think [the IME] destabilized [Jaeger] and
brought an increase in the symptoms.” To the extent that Jaeger argues that
the ALJ should have adopted Dr. Bluth’s expert testimony, this is a
reiteration of his second argument—that the ALJ should have given more
weight to Dr. Bluth’s and Dr. Arlen’s testimony regarding his need for
continuing supportive care. However, Drs. Kahn and Dawson opined that
Jaeger’s neurological and psychological conditions were medically
stationary and the ALJ adopted those opinions, finding that Jaeger was
medically stationary as of July 22, 2013 and awarding him benefits through
that date. The ALJ’s resolution of the conflicting medical opinion testimony
has a reasonable basis in the record and we will not reweigh the evidence
on appeal. See Pac. Fruit Express, 153 Ariz. at 214, 735 P.2d at 824.

CONCLUSION

¶19 For the foregoing reasons, we affirm the award and decision
upon review.

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