chas/liberty v. Lara

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHAS ROBERTS AIR CONDITIONING, Petitioner Employer,

LIBERTY MUTUAL FIRE INSURANCE COMPANY, Petitioner Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

FRANCISCO J. LARA, Respondent Employee.

No. 1 CA-IC 17-0029
FILED 2-6-2018

Special Action - Industrial Commission

ICA Claim No. 20150-990275
Carrier Claim No. WC608C25541
Marceline A. Lavelle, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix
By Kirk A. Barberich; Danielle S. Vukonich
Co-Counsel for Petitioners Employer and Carrier

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent
Law Offices of Robert E. Wisniewski, P.C., Phoenix
By Robert E. Wisniewski
Counsel for Respondent Employee

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.

B E E N E, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for continuing medical
benefits. One issue is presented on appeal: whether any reasonable theory
of the evidence supports the administrative law judge’s (“ALJ”) award.
Based on the ALJ’s resolution of the medical conflict, reasonable evidence
of record supports the award and we affirm.

JURISDICTION AND STANDARD OF REVIEW

¶2 We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(2), 23-951(A), and Arizona Rule of
Procedure for Special Actions 10. 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 (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 (App. 2002).

FACTS AND PROCEDURAL HISTORY

¶3 At the time of his industrial injury, the respondent employee
(“claimant”) worked as a residential HVAC technician for the petitioner
employer, Chas Roberts Air Conditioning (“Roberts”). He slipped while
descending an attic ladder, caught himself with his left arm, and injured his
left shoulder. The claimant filed a workers’ compensation claim, which was
accepted for benefits. He received both conservative and surgical medical
treatment for a torn left rotator cuff.

¶4 Following rehabilitation, the claimant’s surgeon, Steven R.
Kassman, M.D., found him medically stationary with no permanent
impairment, and no need for supportive medical care. Based on Dr.

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Kassman’s report, the petitioner carrier, Liberty Mutual Fire Insurance
Company (“Liberty Mutual”) issued a notice of claim status (“NCS”)
closing the claimant’s claim for active medical treatment and finding him
stationary with no permanent impairment. The claimant timely protested
and requested an ICA hearing.1 The ALJ held three hearings and heard
testimony from the claimant, Sanjay R. Patel, M.D., and Evan Lederman,
M.D.

¶5 The claimant testified that his left shoulder improved after
surgery but not completely. He stated that he was unable to keep his left
arm in one position or to use it repetitively without getting burning pain
that lasted all day. In addition, lifting his arm above shoulder level caused
pain. Although the claimant was able to return to full time light duty work
as a delivery driver for Roberts, he did not believe that he was physically
able to be an HVAC technician.2

¶6 The claimant testified that when he last saw Dr. Kassman in
December 2015, he told him about his ongoing left shoulder problems, but
the doctor reported that he could return to his regular work. The claimant
stated that he also described his shoulder symptoms to Dr. Lederman in
May 2016, but he also reported that he could return to regular work. When
the claimant saw Dr. Patel, Dr. Patel provided him with industrially-related
work restrictions. These included lifting limitations of 25 pounds from floor
to waist, 15 pounds from waist to shoulder, and no lifting above the
shoulder.

¶7 The claimant testified that he was in a motor vehicle accident
on October 2, 2015, and sustained a neck injury. He underwent MRI scans
of his neck, middle, and lower back and treated with a chiropractor. The
claimant stated that he did not injure his left shoulder in the accident, and
he is no longer receiving treatment for the neck injury.

¶8 Dr. Patel examined the claimant, authored a report, and
performed a physical capacities evaluation. He received a history of the

1 Prior to the hearing, the parties stipulated that the claimant had
sustained an industrially-related unscheduled permanent partial
impairment and that he was entitled to receive supportive medical
maintenance benefits. Therefore, the sole issue at hearing was whether the
claimant had industrially-related work restrictions.

2 Delivery drivers earn $10 per hour versus $18 per hour for HVAC
technicians.

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industrial injury and reviewed the claimant’s industrially-related medical
records, although he did not receive Dr. Lederman’s independent medical
examination (“IME”) report. Dr. Patel recorded the claimant’s complaints
as left shoulder pain and burning that was worsened by repetitive or
overhead use of his left arm.

¶9 Dr. Patel’s physical examination of the claimant revealed
asymmetric shoulder heights and decreased strength and range of motion
in the left upper extremity. The doctor stated that the claimant’s complaints
and examination findings were consistent with the industrial injury and
failure of the arthroscopic surgery to restore the claimant to his pre-injury
state. It was his opinion that the claimant had permanent functional
restrictions of the left upper extremity including lifting limitations and
repetitive overhead use.

¶10 Dr. Patel was asked a number of questions regarding Dr.
Lederman’s IME report to ensure that he had all necessary information to
provide his opinion. On cross-examination, the doctor was asked about the
claimant’s cervical injury and its potential impact on his shoulder
complaints:

Q. [By Mr. Barbarich] And Dr. Lederman was concerned
about a cervical problem perhaps causing this gentleman’s
complaints. Did you have the opportunity to review any
cervical spine radiographs or MRIs?

A. [Dr. Patel] I did not, no.

Q. And he went on to say in his report that there was a motor
vehicle accident and that he elicited significant positive
cervical findings and that he thought that there was
documentation of herniated discs at multiple levels and
corresponding with the deterioration of his function.

Is it possible that at least some of his complaints and issues
involving the use of his left upper extremity could be related
to a cervical condition that you have not yet evaluated?

A. Certainly, you know, shoulder conditions, it can result
from, you know, undiagnosed, for example, radiculopathies
and things like that, so it is - - Again, I haven’t looked at the
cervical condition.

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He didn’t have any evidence of radiculopathy on my exam,
meaning his reflexes were good, his sensation was good in all
the distributions that I tested. So at least on my exam I didn’t
see evidence of cervical radiculopathy, but certainly an
undiagnosed cervical radiculopathy can cause ongoing issues
in an extremity.

¶11 Dr. Lederman, a board certified orthopedic surgeon who
limits his practice almost exclusively to the shoulder, testified regarding his
IME of the claimant. He received a history of the industrial injury, rotator
cuff tear, surgery, and rehabilitation. The doctor stated that the claimant
complained of “left shoulder pain, burning down the lateral aspect of his
arm, pain in the posterior scapular region, [and] weakness in his shoulder.”

¶12 On physical examination, Dr. Lederman found limited range
of motion in the cervical spine and left shoulder, pain with elevation and
abduction of the shoulder, grip strength weakness, and generalized
weakness below the shoulder. He noted both that most of the claimant’s
symptoms were subjective, and he thought that they could be related to a
spinal issue. The doctor testified that he was familiar with an HVAC
technician’s job duties, and it was his opinion that the claimant could return
to his regular work without restrictions.

¶13 Dr. Lederman testified that when he viewed the claimant’s
left shoulder MRI scans on the imaging facility’s website, he found that the
claimant appeared to have been in a motor vehicle accident and had
undergone MRI scans of his cervical, thoracic, and lumbar spine. When he
asked the claimant about this, the claimant was evasive and refused to
confirm that he had been in an accident or had scans performed. Dr.
Lederman stated that the cervical MRI showed significant degenerative
changes and a left-sided disc herniation at C5-6, where nerves go into the
shoulder. He noted that if these nerves were affected, it could cause
shoulder pain, medial scapular pain, arm pain, and decreased arm function.

¶14 Dr. Lederman testified that if the cervical MRI belonged to the
claimant, he should be evaluated by a cervical specialist, because the
cervical injury could be a major factor in his ongoing pain complaints.
Without this additional clinical evaluation, the doctor stated that he had
insufficient information to state whether the cervical injury is contributing
to the claimant’s ongoing arm pain.

¶15 Following the hearings, the ALJ entered an award for
continuing benefits. Liberty Mutual timely requested administrative

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review, but the ALJ summarily affirmed the award. Liberty Mutual next
brought this appeal.

DISCUSSION

¶16 The issue on appeal is whether the ALJ erred by finding that
the claimant had industrially-related physical limitations that precluded his
return to his regular work. In that regard, the ALJ adopted Dr. Patel’s
medical opinion and his recommended limitations for the claimant. Liberty
Mutual argues that the ALJ committed reversible error because she found
Dr. Lederman’s opinion legally insufficient to establish a causal
relationship between the claimant’s symptoms and the nonindustrial motor
vehicle accident.

¶17 Medical opinions must be stated to a reasonable medical
probability. Olivas v. Indus. Comm’n, 16 Ariz. App. 543, 546 (1972).
Probability has been defined to be something more than fifty percent. See,
e.g., State Comp. Fund v. Indus. Comm’n, 24 Ariz. App. 31, 36 (1975). An
award cannot be “based solely upon possibilities and speculative
testimony.” Id. at 37. The failure to use “magic words” will not necessarily
be fatal to a doctor’s opinion, but in the absence of such direct testimony,
we will thoroughly and carefully review the medical testimony for its
meaning. Skyview Cooling Co. v. Indus. Comm’n, 142 Ariz. 554, 559 (App.
1984).

¶18 In this case, Dr. Lederman stated on several occasions that the
claimant’s cervical injury could be responsible for some of his ongoing
complaints of pain, but declined to make this connection without an
additional evaluation by a cervical spine specialist.

Q. [By Mr. Barbarich] You think that it’s medically probable
that his ongoing problems or at least some of his ongoing
problems are related to the cervical spine?

A. [Dr. Lederman] If, in fact, that scan is his, then he has a
cervical spine issue that should be evaluated by a cervical
specialist.

* * * *

Q. [By Mr. Puig] Dr. Lederman, you are not able to say here
to a reasonable degree of medical probability that there is a
cervical condition causing the symptoms presented to you; is
that correct?

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A. [Dr. Lederman] Well, it depends on whether this is truly
his MRI or not. He has very positive findings. I was
concerned based on his limited cervical spine range of motion
on my examination, and his weakness . . . in muscles that
don’t involve the shoulder, and my impression was that he
might have a cervical spine condition and should be
evaluated.

I - - I don’t know how to process the fact that he was not
forthcoming with me about whether or not it was his. I think
it would be very easy to deny it if it wasn’t his. But they were
very evasive about these questions, which brings in - - his
entire subjective complaints of pain into question.

So I’m looking for you gentlemen to tell me whether that was
his scan or not. If it is, he’s got a problem and he should be
evaluated for it. And that may very well be a major factor in
why he’s having subjective complaints of pain.

We read the doctor’s testimony to mean that without having a specialist
evaluate the claimant’s cervical spine, he has insufficient information to
allow him to causally relate the claimant’s pain complaints to his neck
injury. While we agree that Dr. Lederman testified that he had expressed
his opinions to a reasonable medical probability, he refused to express any
opinion on this particular issue.

¶19 Conversely, Dr. Patel opined that the claimant had
industrially-related physical restrictions that precluded his return to his
regular work. When asked about whether the claimant’s symptoms could
be related to an undiagnosed cervical radiculopathy, the doctor
acknowledged that it was possible, but he went on to state that he found no
evidence of radiculopathy during his physical examination.

¶20 Unless the claimant’s physical condition and its causal
relationship to the industrial injury are readily apparent, it must be
established by expert medical testimony. Cont’l Cas. Co. v. Indus. Comm’n,
15 Ariz. App. 565, 566 (1971). When expert medical testimony conflicts, it
is the ALJ’s duty to resolve those conflicts. See Perry v. Indus. Comm’n, 112
Ariz. 397, 398 (1975). Here, the ALJ adopted Dr. Patel’s testimony, and we
perceive no basis to disturb that finding.

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CONCLUSION

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

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

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