Golan v. Lee & co/st Paul Fire

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MIKE GOLAN, Petitioner

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

LEE & CO., Respondent Employer,

ST. PAUL FIRE & MARINE INSURANCE CO., Respondent Carrier.

No. 1 CA-IC 14-0084
FILED 6-16-2015

Special Action - Industrial Commission

ICA Claim No. 96178-936687
Carrier Claim No. 127-CB-VMQ3069-T

Deborah A. Nye, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

Crossman Law Offices, P.C., Phoenix
By Avery N. Crossman
Counsel for Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent

Lester, Norton & Brozina, P.C., Phoenix
By Steven C. Lester, Christopher S. Norton, Rachel Parise Brozina
Counsel for Respondents Employer and Carrier

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Donn Kessler joined.

W I N T H R O P, Judge:

¶1 This is a special action review of an Industrial Commission of

Arizona (“ICA”) award and decision upon review denying a petition to

reopen. On appeal, the petitioner employee (“claimant”) argues that the

administrative law judge (“ALJ”) erred by finding that he had failed to

prove an objective worsening of his industrially-related condition. Because

the evidence as a whole establishes an objective worsening of claimant’s

condition, we set aside the award.

FACTS AND PROCEDURAL HISTORY

¶2 On November 27, 1979, the claimant was working as a

pipefitter for the respondent employer, Lee & Co. (“Lee”), when he slipped

and fell injuring his left ankle. He filed a workers’ compensation claim,

which was accepted for benefits by the respondent carrier, St. Paul Fire &

Marine Insurance Co. (“St. Paul”). Over the next thirty-five years, the

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claimant’s claim was reopened and closed numerous times for additional

testing and treatment, including multiple surgeries and an ankle fusion.

The most recent closure occurred on November 15, 2010, when the

claimant’s industrial condition was found to be medically stationary with a

51 percent scheduled permanent partial impairment of the left lower

extremity.

¶3 On September 6, 2013, the claimant filed a petition to reopen

his claim and attached Gary J. Schmidt, M.D.’s medical records

recommending a “total ankle arthroplasty.”1 St. Paul denied his claim for

benefits, and he timely requested an ICA hearing. The ALJ held three

hearings and heard testimony from the claimant, Dr. Schmidt, and

independent medical examiner, Anikar Chhabra, M.D. The ALJ then

entered an award denying the petition to reopen.

¶4 The award discussed the evidence received, which indicated

that the alternatives to claimant’s chronic pain were either ankle

replacement surgery or “a below-the-knee amputation.” In addressing Dr.

Schmidt’s testimony, the award states “[w]hen asked if there had been an

objective change to [claimant’s] condition since 2010 he replied that he

‘couldn’t objectively measure’ any change without seeing x-rays or CT

1 “Arthroplasty” is a surgical procedure to relieve pain and restore
range of motion by realigning or reconstructing a joint, including total joint
replacement with an artificial prosthesis.

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scans from 2010, though he imagined that [claimant] was worse now than

before.” The ALJ denied the application to reopen, concluding that “neither

doctor was able to confirm that [claimant] has objective evidence of a new,

additional or previously undiscove[re]d condition causally related to his

industrial injury or treatment sequelae.”

¶5 The claimant timely requested administrative review, but the

ALJ summarily affirmed the award. The claimant next timely sought

review by this court, which has jurisdiction pursuant to Arizona Revised

Statutes (“A.R.S.”) sections 12-120.21(A)(2) (2003), 23-951(A) (2012), and

Arizona Rules of Procedure for Special Actions 10 (2009).

ANALYSIS

¶6 The statutory requirements for reopening are found in A.R.S.

§ 23-1061(H):

[A]n employee may reopen the claim to secure
. . . additional benefits by filing with the
commission a petition requesting the reopening
of the employee’s claim upon the basis of a new,
additional or previously undiscovered temporary or
permanent condition, which petition shall be
accompanied by a statement from a physician
setting forth the physical condition of the
employee relating to the claim. . . . A claim shall
not be reopened because of increased subjective pain
if the pain is not accompanied by a change in
objective physical findings. (Emphasis added.)

It is the claimant’s burden to present sufficient evidence to support

reopening. See Hopkins v. Indus. Comm'n, 176 Ariz. 173, 176, 859 P.2d 796,

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799 (App. 1993). When the causal connection between the condition and

the prior industrial injury is not readily apparent, it must be established by

expert medical testimony. Makinson v. Indus. Comm’n, 134 Ariz. 246, 248,

655 P.2d 366, 368 (App. 1982).2

¶7 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). We consider

the evidence in a light most favorable to upholding the ALJ’s award. Lovitch

v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).

¶8 In this case, the ALJ found:

While the two doctors disagree whether an
ankle arthroplasty is in [claimant’s] best
interest, the undersigned finds it is unnecessary
to resolve that conflict at this time for the reason
that neither doctor was able to confirm that
applicant has objective evidence of a new,
additional or previously undiscove[re]d
condition causally related to his industrial
injury or treatment sequelae.

2 The Arizona Supreme Court has stated that to reopen a claim, a
claimant need only prove the existence of a new, additional, or previously
undiscovered condition, and not that the condition requires “active”
medical treatment. Sneed v. Indus. Comm’n, 124 Ariz. 357, 359, 604 P.2d 621,
623 (1979):
The medical benefits available or the appropriate treatment
for the new, additional or previously undiscovered condition,
as well as any adjustment or modification in the amount of
compensation payable, or degree of disability established, can
be appraised after the claim has been reopened.

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The claimant argues that the medical evidence established the requisite

objective change in condition to support reopening.3 In that regard, it is

necessary to carefully review the testimony of Drs. Schmidt and Chhabra.

¶9 Dr. Schmidt first saw the claimant on July 25, 2013, on a

referral because of his experience with “taking down ankle fusions and

placement of ankle arthroplasty.” He received a history of the claimant’s

work-related ankle fracture, post-traumatic arthritis, and fusion. The

claimant complained of increasing pain, and the doctor performed a

physical examination and obtained a CT scan.

¶10 As relevant here, Dr. Schmidt testified as follows:

Q. [Claimant’s Attorney] And are you able to
determine the cause of his pain?

A. [Dr. Schmidt] I think he’s getting pain from
his navicular cuneiform joints and his cuboid
metatarsal articulations, which are the next
joints down from the last ones he’s had fused.

...

Q. And is that uncommon for that to happen?

A. No. That is what you see. This is a natural
progression. As you keep fusing these joints, you

3 St. Paul argues that the ALJ rejected the credibility of claimant and,
by implication, Dr. Schmidt, and resolved the medical conflict in favor of
Dr. Chhabra. Our review of the Award reveals that the ALJ made neither
of these findings. This court will not imply the rejection of a claimant’s
credibility, Joplin v. Indus. Comm’n, 175 Ariz. 524, 528, 858 P.2d 669, 673
(App. 1993), and the resolution of conflicting medical evidence is the
province of the ALJ, Malinski v. Indus. Comm’n, 103 Ariz. 213, 217, 439 P.2d
485, 489 (1968).

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know, you have an ankle fusion, your subtalar joint
gets arthritic. You do a subtalar arthritic arthrodesis
or fusion, then the two joints in front of it, which are
the talonavicular and calcaneal cuboid, they get
arthritic, then you fuse those, well, now, the ones in
front of them get arthritic. . . .

Q. And back when his case was closed in 2010,
the doctor [Chhabra] reported minimal
arthrosis. Do you believe that there’s been a change
in his arthrosis?

A. It will progress. It always does, yeah.

Q. And was that confirmed on the CT scan?

A. Yes. . . .

Q. . . . And do you have an opinion to a
reasonable degree of medical probability
whether his physical condition has changed
since 2010, when his case was closed with no
further active medical treatment until today?

A. Well, one would - - as we talked about earlier,
the arthrosis is progressive in these cases, so I would
imagine, you know, he is worse now than he would
have been in 2010 or 4 years ago, yeah. (Emphasis
added.)

¶11 On cross-examination, Dr. Schmidt was asked whether there

had been a “significant change” in the claimant’s arthritic process between

2010 and 2014. He responded that it would be possible to measure the

cartilage if he had a 2010 CT scan for comparison.

Q. [Employer & Insurance Carrier’s Attorney]
So you’re speculating essentially that this is
following the natural progression, but you
haven’t actually seen any scans or objectively
confirmed that there’s a difference in the
arthrosis?

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A. [Dr. Schmidt] I don’t have the x-rays or CT from
2010, so I couldn’t objectively measure that cartilage
interval. Those may exist. I don’t know. However,
someone with a pantalar arthrodesis will develop this
arthritic change and it will get worse, so it is
somewhat speculative but on pretty strong ground.
(Emphasis added.)

¶12 Dr. Chhabra testified that he performed independent medical

examinations of the claimant on November 15, 2010 and April 24, 2014. He

agreed with Dr. Schmidt that the claimant had “adjacent joint disease” as a

result of the multiple, fused joints in his left foot. Dr. Chhabra also testified

that x-rays taken during his 2014 exam revealed “arthrosis in the mid foot

joints,” i.e., “the joints that are anterior to the fused joints.”4 But it was his

opinion that there was no “significant objective change based both on

physical exam or on radiographic findings from between 2010 and 2014.”

¶13 The claimant argues that Dr. Schmidt’s testimony establishes

that his traumatic arthritis has worsened, which satisfies the statutory

requirement for an objective change in condition. As Professors Larson

have recognized:

[t]he compensation process is not a game of ‘say
the magic word,’ in which the rights of injured
workers should depend on whether a witness
happens to choose a form of words prescribed
by a court or legislature. What counts is the real
substance of what the witness intended to
convey.

4 In this context, “arthrosis” means the presence of degenerative
arthritis in the ankle joint.

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12 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law

(“Larson”) § 130.06[2][e], at 130-75 (2014). This court quoted this aspect of

Larson in Skyview Cooling Co. v. Indus. Comm’n, where we recognized that

when “magic words” are not used by the medical expert in stating an

opinion, it is necessary for this court “to thoroughly and carefully review

such testimony” to see if the burden of proof is satisfied. 142 Ariz. 554, 559,

691 P.2d 320, 325 (App. 1984).

¶14 In this case, we have thoroughly and carefully reviewed the

medical records in the appellate record and the hearing testimony. We find

that the substance of Dr. Schmidt’s testimony conveyed his medical opinion

that the claimant’s degenerative arthritis in his ankle joint had, as was

predictable, naturally worsened between 2010 and 2014 and was at least in

part responsible for the claimant’s increased pain. Although Dr. Schmidt

conceded on cross-examination that his opinion was “somewhat

speculative,” this concession was directed to his present inability to

measure the actual “cartilage interval,” not his opinion that the claimant’s

arthritic changes had in fact progressed, and his medical condition

worsened.

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CONCLUSION

¶15 For all of the foregoing reasons, Dr. Schmidt’s testimony

satisfied the statutory requirement for an objective worsening of the

industrial injury. As a result, the sole evidentiary basis cited in the Award

does not support the legal conclusion in the Award and it cannot stand.

Accordingly, we set aside the Award.

:ama

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