Torres v. canteen/transportation

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARY A. TORRES, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CANTEEN CORPORATION,

Respondent Employer,

TRANSPORTATION INSURANCE COMPANY,

Respondent Carrier.

No. 1 CA-IC 17-0053
FILED 7-17-2018

Special Action - Industrial Commission
ICA Claim No. 0000P060305
Carrier Claim No. 63267823 B2
The Honorable Rachel C. Morgan, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Mary A. Torres, Santa Fe, NM
Petitioner
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent, ICA

Jones Skelton & Hochuli PLC, Phoenix
By Gregory L. Folger, Jennifer B. Anderson
Counsel for Respondent Employer/Carrier

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge James P. Beene joined.

C A M P B E L L, Judge:

¶1 Mary Torres seeks review of an Industrial Commission of
Arizona (“Commission”) award dismissing her petition to reopen her
workers’ compensation claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mary Torres worked for Canteen Corporation (“Employer”)
as a janitor. On June 8, 1987, Torres was injured at work when she was
washing debris off floor mats at the back of a loading dock. She slipped and
fell, injuring her leg. She went to the emergency room where x-rays of her
left knee were taken. She was placed in a knee immobilizer and given
prescriptions for pain relievers.

¶3 Torres sought treatment from A.H. Scott, D.O., an orthopedic
surgeon, who treated Torres with pain relief medication and physical
therapy for her knee. Dr. Scott recommended Torres undergo an
arthroscopic examination of the knee, which revealed fraying and tearing
of her lateral meniscus and hypertrophic synovitis.1

1 “Hypertrophic” pertains to “hypertrophy,” which is “the
enlargement or overgrowth of an organ or part due to an increase in size of
its constituent cells.” Dorland’s Illustrated Medical Dictionary 745 (25th ed.
1974) (“Dorland’s”).

2
 TORRES v. CANTEEN/TRANSPORTATION
Decision of the Court

¶4 Post operation, Torres stated that her knee felt “somewhat
better,” although it still throbbed after sitting for an extended period of time
and swelled if she stood for too long. Dr. Scott released Torres to go back to
work with no restrictions. By January 1988, Torres denied having any pain
in her left knee, “although she [did] have popping and stiffness” at times
and reported “some swelling” and pain during periods of cold weather.

¶5 Jon Whisler, M.D., performed an independent medical
evaluation in December 1988 and determined Torres did not suffer any
further injuries in her knee, nor did she need any additional medical or
supportive care. Dr. Whisler determined Torres had a 10 percent permanent
physical impairment because of her industrial injury. Torres was
discharged on December 22, 1988.

¶6 Howard Sweeney, M.D., examined Torres and diagnosed her
with chondromalacia2 of the patella in March of 1988.3 Subsequent
orthopedic records between 1988 and 2004 indicated that Torres did not
have increased discomfort in her knee; her discomfort “remain[ed] about
the same” and her pain “did not significantly worsen or change” during
this time. Torres did not begin exhibiting knee pain again until June of 2004.
She now lived in New Mexico. She began feeling stiffness and popping in
her left knee with occasional locking when she sits and stands. Her doctor
at that time, Zachary Adler, M.D., diagnosed her with patellofemoral
chondromalacia in her left knee. Torres continued to receive physical
therapy and other treatments from another physician, Andrew J. Veitch,
M.D., for her knee pain through 2005 and reported that her pain was
somewhat improving.

¶7 Like Torres’ treating physicians in New Mexico, Dr. Veitch
diagnosed her with left patellofemoral chondromalacia and found that this
was a chronic condition. Torres had another MRI ordered by her doctor.
Upon review of the results, Dr. Veitch concluded Torres predominantly

“Synovitis” is “inflammation of a synovial membrane. It is usually painful,
particularly on motion, and is characterized by a fluctuating swelling.”
Dorland’s at 1530.
2 “Chondromalacia” is the softening of the cartilage. Dorland’s at 310.
3 Also called “Patellofemoral Chondromalacia” which is the
“premature degeneration of the patellar cartilage, the patellar margins
being tender so that pain is produced when the patella is pressed against
the femur.” Dorland’s at 310.

3
 TORRES v. CANTEEN/TRANSPORTATION
Decision of the Court

suffered from degenerative osteoarthrosis4 with diffuse thinning of the
articular cartilage, and bone marrow edema.5 Dr. Veitch recommended
conservative treatment and continued physical therapy. He determined
Torres’ issues will be “ongoing” but did not recommend surgical
interventions or any further injections.

¶8 In 2005, Torres filed a petition to reopen her claim, which was
denied. She requested a hearing on her petition. Before the hearing, an
independent medical examination was performed by Douglas W. Kelly,
M.D., who diagnosed Torres with status post partial lateral meniscectomy,
lateral compartment chondromalacia, and mild patellofemoral6 syndrome
of her left knee. Dr. Kelly opined, however, that Torres’ “lateral
compartment osteoarthritis appear[ed] to be a pre-existing condition” but
may have slightly worsened since her industrial injury. Dr. Kelly further
opined that Torres’ patellofemoral syndrome “appear[ed] to be mild and
unrelated” to her industrial injury. He also stated that Torres’ industrial
injury required “no further active medical treatment” but he does believe
that Torres should be considered for supportive care. The administrative
law judge (“ALJ”) issued a decision on March 10, 2006 and granted Torres
supportive care.

¶9 On September 9, 2016, Torres filed a second petition to reopen
because of a “new, additional, or previously undiscovered” condition or
disability, which “require[d] active treatment and surgery and is disabling”
as a proximate result of her industrial injury. She attached medical reports
from Dr. Veitch and Brad Cucchetti, D.O., who had both been treating her
for two years leading up to the filing of her petition. Her petition was
denied, and she requested a hearing, which was granted and took place in
February 2017.

¶10 At the hearing, Torres testified that both Dr. Veitch and
Dr. Cucchetti recommended she have “total knee replacement surgery.”
After conflicting expert medical testimony was given, the ALJ denied
Torres’ petition to reopen. Torres filed a request for review of the decision,
which was granted. The ALJ affirmed the decision on August 3, 2017. She

4 Osteoarthrosis is “chronic arthritis of noninflammatory character.”
Dorland’s at 1105.
5 Edema is the “presence of abnormally large amounts of fluid in the
intercellular tissue spaces of the body.” Dorland’s at 494.
6 Patellofemoral pertains to the patella and the femur. The patella is a
bone situated at the front of the knee and the femur is the bone that extends
from the pelvis to the knee. Dorland’s at 576, 1147.

4
 TORRES v. CANTEEN/TRANSPORTATION
Decision of the Court

timely sought special action review by this court on September 1, 2017. We
have jurisdiction under Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(2), 23-951(A), and Arizona Rule of Procedure for Special
Actions 10.

DISCUSSION

¶11 We defer to the Commission’s factual findings, but we review
questions of law de novo. Young v. Indus. Comm’n of Ariz., 204 Ariz. 267, 270,
¶ 14 (App. 2003). We view the evidence in the light most favorable to
sustaining the Commission’s award and will affirm its decision if we find
reasonable evidence supports its findings. Lovitch v. Indus. Comm’n of Ariz.,
202 Ariz. 102, 105, ¶ 16 (App. 2002).

¶12 Torres seems to suggest her claim should be reopened
because of inaccuracies in the expert medical testimony. She argues that the
ALJ erred by giving more weight to the medical testimony of David Bailie,
M.D., over that of Dr. Veitch. Additionally, she claims Dr. Bailie did not
take her “increased pain” into consideration.7

¶13 An applicant seeking to reopen their workers’ compensation
claim must prove, by a preponderance of the evidence: (1) the existence of
a “new, additional or previously undiscovered temporary or permanent
condition”; and (2) a causal relationship between that condition and the
prior industrial injury. A.R.S. § 23-1061(H); Stainless Specialty Mfg. Co. v.
Indus. Comm’n of Ariz., 144 Ariz. 12, 16, 19 (1985). To justify reopening her
claim, Torres bears this burden of proof on both factors. Lovitch, 202 Ariz.
at 105-06, ¶ 17. “A claim shall not be reopened because of increased
subjective pain if the pain is not accompanied by a change in objective
physical findings.” A.R.S. § 23-1061(H). “If the injury is not readily apparent
to a layman, the existence of a condition can be established only by expert
medical testimony.” Kaibab Indus. v. Indus. Comm’n of Ariz., 196 Ariz. 601,
608, ¶ 22 (App. 2000).

7 She also seems to argue the ALJ erred in denying her petition to
reopen because the expert medical testimony given is “lack[ing]
acknowledgment of [her] supportive award,” which was awarded by the
ALJ in her first petition to reopen, and that she has not been provided with
the appropriate supportive care. Torres waives this argument on appeal.
She did not cite to relevant supportive legal authority, and she did not
develop her legal argument. Cf. Ariz. R. Civ. App. P. 13(a)(7); See Polanco v.
Indus. Comm’n of Ariz., 214 Ariz. 489, 491 n. 2, ¶ 6 (App. 2007).

5
 TORRES v. CANTEEN/TRANSPORTATION
Decision of the Court

¶14 Assessing the advisability of reopening a claim “mandates an
evaluative, comparative process.” Blickenstaff v. Indus. Comm’n of Ariz., 116
Ariz. 335, 339 (App. 1977). Here, the ALJ found that the appropriate dates
for comparative analysis were between August 23, 2005, when Torres’ last
petition to reopen was denied, and September 9, 2016, the date she filed her
current petition to reopen.

¶15 Dr. Veitch treated Torres from May 2010 through February 10,
2017. He testified that Torres has now developed bone-on-bone arthritis in
her lateral compartment and “some degeneration” in her kneecap, which
can be found in her May 2015 x-rays. Dr. Veitch also testified that due to
Torres’ inability to respond to nonoperative treatment, she would be a
candidate for knee replacement surgery. He opines that this potential
surgery is related to the original injury Torres sustained in 1987. He stated
that he made these determinations due to Torres developing
“posttraumatic osteoarthritis” as a result of her 1987 injury and the
subsequent surgery she underwent afterwards.

¶16 On the other hand, after reviewing Torres’ medical records,
Dr. Bailie, a board-certified orthopedic surgeon who specializes solely in
shoulder and knee problems, testified that he did not see bone-on-bone
arthritis in Torres’ 2016 x-rays. He opined, based on the new films, bone-
on-bone arthritis was not present. He further testified that Torres suffers
from obesity class 1 and degenerative arthritis in both knees, which is
formally called “chondrocalcinosis.” He stated that chondrocalcinosis is a
“metabolic problem,” meaning it is progressive and will necessitate a total
knee replacement in time. He opines that this metabolic problem has no
relation to the surgery that was done back in the “late ‘80s” after Torres
sustained her industrial injury. Dr. Bailie also stated that two or three
simple steroid injections per year, coupled with weight loss, may eliminate
the need for knee replacement surgery in the future. Moreover, he does not
believe knee replacement surgery is needed at this time and that more
conservative care should continue before proceeding with a total
replacement.

¶17 Dr. Bailie concluded that if total knee replacement surgery
became necessary, it will be necessitated by the occurrence of the
progressive degeneration, caused by the chondrocalcinosis. He opines that
the “chondrocalcinosis biologically essentially supersedes anything that
[Torres] had done previously because now she has [a] diffuse disease
throughout [her] knee” and thus the surgery is “really being done . . . for
that.” Hence, Dr. Bailie did not causally relate the need for the potential
knee replacement surgery with her industrial injury.

6
 TORRES v. CANTEEN/TRANSPORTATION
Decision of the Court

¶18 Where there is a conflict in expert medical testimony, “it is the
responsibility of the administrative law judge to resolve it.” Stainless
Specialty Mfg. Co., 144 Ariz. at 19. Moreover, it is the duty of the ALJ to
resolve such conflicts in the evidence and “determine which opinion is
more probably correct.” Kaibab Indus., 196 Ariz. at 609, ¶ 25. Only if an
award is “unsupported by any reasonable theory of evidence” will we
reverse the ALJ’s decision. Id.

¶19 The record shows that there is reasonable evidence to support
the ALJ’s decision denying Torres’ petition to reopen. After having
considered the testimony, qualifications, and experience of both Dr. Veitch
and Dr. Bailie, the ALJ adopted Dr. Bailie’s testimony as “more probably
correct” as Dr. Bailie based his findings and opinions on pertinent and
updated medical information.

¶20 This court will not disturb the ALJ’s findings unless those
findings cannot be supported by any reasonable theory of the evidence.
Phelps v. Indus. Comm’n of Ariz., 155 Ariz. 501, 506 (1987). Because the
conflict between the two medical experts’ testimony was resolved “in such
a way that [the ALJ’s] findings are reasonably supported by the evidence,”
we find no abuse of discretion. See Condos v. Indus. Comm’n, 92 Ariz. 299,
301-02 (1962). As this court has explained, even if the record supports
inconsistent conclusions, we may not “substitute our judgement for that of
the ALJ” because conflicting evidence may nonetheless be “substantial”
evidence. Shaffer v. Ariz. State Liquor Bd., 197 Ariz. 405, 409, ¶ 20 (App. 2000).

7
 TORRES v. CANTEEN/TRANSPORTATION
Decision of the Court

CONCLUSION

¶21 Because we find that the evidence of record reasonably
supports the ALJ’s award, we affirm.

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

8