Sanders v. bowie/american

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BERNICE M. SANDERS, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

BOWIE INVESTMENT GROUP, INC., Respondent Employer,

AMERICAN LIBERTY INSURANCE COMPANY, Respondent Carrier.

No. 1 CA-IC 17-0011
FILED 11-14-2017

Special Action - Industrial Commission
ICA Claim No. 20143-530186
Carrier Claim No. 14562184

Deborah Nye, Administrative Law Judge (Retired)

AWARD AFFIRMED

COUNSEL

Bernice M. Sanders, Phoenix
Petitioner

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent ICA
Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix
By Kirk A. Barberich, Danielle S. Vukonich
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.

W I N T H R O P, Presiding Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review finding the claim of the
petitioner employee, Bernice M. Sanders, not compensable. The
administrative law judge (“ALJ”) resolved the issues in favor of the
respondent employer, Bowie Investment Group, Inc. (“Bowie”), and the
respondent carrier, American Liberty Insurance Co. (“ALI”) (collectively,
“Respondents”). Because the ALJ’s determinations are reasonably
supported by substantial evidence, we affirm the award and decision upon
review.

FACTS AND PROCEDURAL HISTORY1

¶2 Sanders was employed by Bowie as an in-home health care
worker when she allegedly sustained a gradual work injury to her right
shoulder. She first noticed shoulder pain in July 2013, and first mentioned
it in passing to her primary care physician, Dr. Baoan Andy G. Le, on March
12, 2014. Sanders initially received conservative treatment, but in August
2014, she went to the emergency room complaining of significant right
shoulder pain. Sanders underwent an MRI and was diagnosed with a
rotator cuff tear. On September 30, 2014, Dr. Phillip Bennion performed
surgery on Sanders’ right shoulder.

¶3 On December 17, 2014, Sanders filed a worker’s compensation
claim, and she underwent a follow-up right shoulder surgery in May 2015.
In the meantime, ALI issued a Notice of Claim Status denying Sanders’

1 We consider the facts and inferences therefrom in the light most
favorable to sustaining the award. See Malinski v. Indus. Comm’n, 103 Ariz.
213, 216 (1968).

2
 SANDERS v. BOWIE/AMERICAN
Decision of the Court

claim, and she timely requested a hearing with the ICA. Her request for
hearing was dismissed, however, after the ALJ found she had shown no
good cause for her failure to appear at a July 9, 2015 hearing2 and scheduled
independent medical examination (“IME”). Because the record failed to
show that Sanders had received notice of either the July 9 hearing or the
IME, however, this court set aside the award and decision upon review, and
remanded the case to the ICA for further proceedings. See Sanders v. Indus.
Comm’n, 1 CA-IC 15-0060, 2016 WL 2909377 (Ariz. App. May 19, 2016)
(mem. decision).

¶4 On remand, the ALJ held formal hearings on December 19
and 22, 2016, and January 17, 2017. Respondents raised additional
affirmative defenses of failure to forthwith report the injury and untimely
filing of a claim, see Ariz. Rev. Stat. (“A.R.S.”) §§ 23-908(E) (Supp. 2016),
-1061(A) (2016), and the ALJ heard testimony from (1) Sanders, (2) Horne,
(3) Dr. Le, and (4) Dr. Irwin Shapiro, who performed the IME.

¶5 Dr. Le, a board-certified family medicine physician, testified
that Sanders first came to him on March 12, 2014, after having been referred
by an urgent care provider for follow-up care for an injured foot. Sanders
complained of foot pain, right shoulder pain, a cough, and congestion.
Regarding the right shoulder, Sanders did not report any related accident
or work-related incident, and Dr. Le did not fill out an ICA physician report
of injury.3 Dr. Le did not know the onset of the shoulder problem, but
stated he was “under the impression” the pain was due to Sanders’ work,
and he believed the shoulder pain had been ongoing “for a few weeks.” On
examination, Dr. Le found Sanders’ right shoulder to be tender with a
decreased range of motion. Dr. Le initially ordered conservative treatment,
including some pain medicine and a referral for physical therapy. He later
ordered x-rays and treated Sanders with cortisone injections and continued
physical therapy. Following an MRI in September 2014, and an evaluation
by Dr. Bennion, Sanders was diagnosed with a rotator cuff tear. Dr. Le
testified that “[Sanders’] work might have contributed to the shoulder”
injury “through wear and tear and through heavy lifting,” and he noted
“that’s the only thing I could think of that is possibly a cause for her
shoulder injury.” Dr. Le also testified that he discussed with Sanders on

2 The ALJ had conducted an initial hearing on June 12, 2015, at which
Sanders and the assistant director at Bowie, Alicia Horne, testified.

3 Sanders testified that, when she went to Dr. Le, she did not inform
the doctor she had been injured at work because she did not believe she was
actually injured or associate any possible injury with her work.

3
 SANDERS v. BOWIE/AMERICAN
Decision of the Court

March 12, 2014, that her duties as a home health care aide “might” be
contributing to her shoulder condition.

¶6 Dr. Irwin Shapiro, a board-certified orthopedic surgeon,
testified that he conducted an IME of Sanders on November 23, 2016. Dr.
Shapiro testified that Sanders did not describe to him a specific injurious or
accidental event; instead, she described her various care-taking
responsibilities and the resulting “soreness” that followed. Dr. Shapiro also
stated he had reviewed Dr. Bennion’s September 30, 2014 operative report.
As noted in his records, Dr. Bennion had interpreted Sanders’ September
2014 MRI as showing a low-grade partial supraspinatus tear with rotator
cuff impingement and symptomatic AC joint arthrosis. Dr. Shapiro
summarized Dr. Bennion’s operative report as follows:

On 9/30/14 [Dr. Bennion’s] operative report indicated that he
was operating on [Sanders’] right shoulder specifically for
right AC joint arthrosis and subacromial impingement,
although his operative report indicated that there was some
minor fraying of the labrum, no full thickness tears were
noted, no high grade partial tears were noted. In fact, he
documented, “at most, 5 percent involvement of the articular
[side] of the rotator cuff,” indicating basically some fraying,
but it was rather insignificant, and he did a resection of the
AC joint.

Dr. Shapiro opined that Sanders’ work activities were not a contributing
factor to her impingement or AC joint arthrosis, or her need for treatment
and surgeries, and he testified that his opinions set forth in his IME report
and during his testimony were provided within a reasonable degree of
medical probability.

¶7 On January 24, 2017, the ALJ issued her award denying
Sanders’ claim. First, the ALJ found Sanders had timely filed her claim.
Second, the ALJ addressed the issue of compensability and, adopting the
opinions of Dr. Shapiro as more probably correct, concluded Sanders’
injury “was not by accident arising out of and in the course of her
employment.” Accordingly, the ALJ found the claim non-compensable.4

4 Having found the claim non-compensable, the ALJ declined to
address the second affirmative defense raised of failure to forthwith report,
after concluding “such a defense would only impose a penalty in the event
a compensable claim w[as] granted.”

4
 SANDERS v. BOWIE/AMERICAN
Decision of the Court

¶8 Sanders requested review of the award, and on February 9,
2017, the ALJ issued her decision upon review summarily affirming the
award. Sanders filed a timely petition for special action, and we have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2) (2016) and 23-951(A)
(2012), and Rule 10 of the Arizona Rules of Procedure for Special Actions.

ANALYSIS

I. Standard of Review

¶9 In general, the claimant bears the burden of establishing the
material elements of her claim, including that her condition is causally
related to a work-related injury. See In re Estate of Bedwell, 104 Ariz. 443, 444
(1969); T.W.M. Custom Framing v. Indus. Comm’n, 198 Ariz. 41, 45-46, ¶ 12
(App. 2000).

¶10 If it is not readily apparent to a layman, then the physical
condition of an injured employee after an industrial incident and the causal
relationship of the industrial incident to such condition must be answered
by expert medical evidence. See Yates v. Indus. Comm’n, 116 Ariz. 125, 127
(App. 1977); Eldorado Ins. Co. v. Indus. Comm’n, 27 Ariz. App. 667, 670 (1976);
Spears v. Indus. Comm’n, 20 Ariz. App. 406, 407 (1973). Generally, a medical
expert must state an opinion with a degree of medical probability, and
suggestions of possibilities are insufficient to sustain an award. See
Helmericks v. AiResearch Mfg. Co., 88 Ariz. 413, 416 (1960); Gronowski v. Indus.
Comm’n, 81 Ariz. 363, 366-67 (1957); Honeywell, Inc. v. Litchett, 146 Ariz. 328,
331 (App. 1985). The ALJ resolves conflicts in the medical evidence, draws
warranted inferences, and is the sole judge of witnesses’ credibility. See
Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988); Perry v. Indus.
Comm’n, 112 Ariz. 397, 398 (1975); Malinski, 103 Ariz. at 217; Holding v. Indus.
Comm’n, 139 Ariz. 548, 551 (App. 1984). An ALJ may reject testimony that
is inherently inconsistent and contradictory, or when inferences can be
drawn from other evidence that cast doubt upon its credibility. Wimmer v.
Indus. Comm’n, 15 Ariz. App. 543, 544 (1971).

¶11 We deferentially review the ALJ’s factual findings, but
independently review any legal conclusions. Young v. Indus. Comm’n, 204
Ariz. 267, 270, ¶ 14 (App. 2003). We will uphold the ALJ’s findings if
reasonably supported by substantial evidence. See generally Carousel Snack
Bar, 156 Ariz. at 46; Malinski, 103 Ariz. at 216-17.

5
 SANDERS v. BOWIE/AMERICAN
Decision of the Court

II. The Merits

¶12 Sanders argues the ALJ’s award should be vacated and the
matter remanded for a new hearing. The ALJ was asked to resolve a conflict
in the medical evidence regarding whether Sanders’ right shoulder
condition was causally related to a work-related injury, and the ALJ
resolved the conflict in favor of Respondents, finding the opinion of Dr.
Shapiro more probably correct than that of Dr. Le. Finding no abuse of the
ALJ’s discretion, and concluding the ALJ’s award is reasonably supported
by substantial evidence, we affirm the award.

¶13 In this case, Dr. Le opined that Sanders’ work “might” have
contributed to her shoulder condition. Dr. Le’s opinions were rendered
only as possibilities, and were not offered within a reasonable degree of
medical probability, the standard required for admissible expert medical
opinion. See Helmericks, 88 Ariz. at 416; Gronowski, 81 Ariz. at 366-67;
Honeywell, 146 Ariz. at 331. Dr. Shapiro, on the other hand, opined within
a reasonable degree of medical probability that Sanders’ work activities did
not cause or contribute to the condition for which Sanders underwent
treatment and, ultimately, two surgeries. To the extent there was a conflict
in the admissible expert testimony, the ALJ resolved the conflict in favor of
Dr. Shapiro, and on this record, did not abuse her discretion in finding Dr.
Shapiro’s opinion to be more probably correct and well-founded regarding
Sanders’ condition. On appeal, Sanders fails to demonstrate that the ALJ
erred in finding Dr. Shapiro more probably correct and her claim non-
compensable.

¶14 Sanders also argues that she requested—both in her answers
to interrogatories and at the close of evidence at the January 17, 2017
hearing—that she be allowed to subpoena Dr. Bennion and her physical
therapist to testify on her behalf. Under Arizona Administrative Code
(“A.A.C.”) R20-5-141(A)(2), “[a] party may request a presiding
administrative law judge to issue a subpoena to compel the appearance of
an expert medical witness by filing a written request with the presiding
administrative law judge at least 20 days before the date of the first
scheduled hearing.” The record does not reflect that Sanders followed this
procedure, and she made no offer of proof before the ALJ as to what
material, admissible, and necessary testimony she believed Dr. Bennion or
her physical therapist would provide. See generally A.A.C. R20-5-141(A)(3).
Moreover, at this stage of the proceedings (compensability), the ALJ was
not deciding the extent of Sanders’ alleged injury, but rather whether it
arose out of her employment. As submitted to the ALJ, Dr. Bennion’s
records, including his September 30, 2014 operative report, provide no

6
 SANDERS v. BOWIE/AMERICAN
Decision of the Court

suggestion that Sanders’ work activities were causally related to the right
shoulder condition for which she underwent surgery. On this record, the
ALJ did not abuse her discretion in declining to grant a continued hearing
and issue a subpoena for Dr. Bennion or Sanders’ physical therapist.

¶15 Sanders also suggests the witnesses who testified in
opposition to her claim were untruthful. Resolution of conflicts in the
evidence and the credibility of the witnesses was for the ALJ, not this court,
to decide. See Carousel Snack Bar, 156 Ariz. at 46; Perry, 112 Ariz. at 398;
Malinski, 103 Ariz. at 217; Holding, 139 Ariz. at 551. Moreover, although
Sanders challenges the testimony of Horne and Dr. Shapiro, she had the
opportunity to address any alleged errors in their testimony through cross-
examination and by presenting any additional medical reports and/or
qualified admissible expert testimony contradicting Dr. Shapiro’s
testimony at the hearing.

¶16 Finally, Sanders suggests the ALJ was biased against her and
conducted some questioning of witnesses herself. The transcripts provided
do not reflect the bias claimed by Sanders. Moreover, “[a] trial judge is
more than an umpire, and may participate in the examination of witnesses
to clarify evidence, confine counsel to evidentiary rulings, ensure the
orderly presentation of evidence, and prevent undue repetition.” United
States v. Nash, 115 F.3d 1431, 1440 (9th Cir. 1997) (citation omitted). The
questioning by the ALJ in this case was not improper.

CONCLUSION

¶17 We affirm the ALJ’s award and decision upon review finding
Sanders’ claim not compensable.

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

7