fry's/sedgwick v. Valencia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRY'S FOOD STORES OF AZ, INC.,
Petitioner Employer,

SEDGWICK CMS,
Petitioner Insurance Carrier,

v.

THE INDUSTRIAL COMMISSION
OF ARIZONA,
Respondent,

DEBBIE VALENCIA,
Respondent Employee.

No. 1 CA-IC 18-0003
FILED 12-6-2018

Special Action - Industrial Commission
ICA No. 20153-090295
INSCA No. 30154774831-0001
The Honorable Deborah Nye, Administrative Law Judge, Retired
The Honorable Gaetano J. Testini, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Lundmark, Barberich, LaMont & Slavin, PC, Phoenix
By Lisa M. LaMont, Danielle Vukonich
Counsel for Petitioners Employer/Carrier
Industrial Commission of Arizona, Phoenix
By Stacey Ann Rogan
Counsel for Respondent ICA

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.

J O H N S E N, Judge:

¶1 Fry's Food Stores of Arizona, Inc. and its insurance carrier
seek special action review of the decision of the Industrial Commission of
Arizona ("ICA") granting Debbie Valencia's petition to reopen her claim.
For the following reasons, we affirm.1

FACTS AND PROCEDURAL BACKGROUND

¶2 Valencia worked in the deli at a Fry's store. On October 22,
2015, Valencia slipped on some grease on the floor and fell, landing on her
left knee. A few days later, she went to an urgent care facility, complaining
of pain in her left leg and knee. The urgent care center noted Valencia had
joint tenderness, diagnosed her injury as a left knee strain, prescribed
ibuprofen and recommended work restrictions. She filed a worker's
compensation claim, which Fry's accepted.

¶3 Valencia continued treatment at urgent care, which allowed
her to return to work without restriction on November 24, 2015. On January
6, 2016, a nurse practitioner at the urgent care facility performed a
McMurray's test, which was negative, and noted Valencia did not have

1 Valencia did not file an answering brief, but we decline to treat her
failure as a confession of error. See Nydam v. Crawford, 181 Ariz. 101, 101
(App. 1994) (citation omitted).

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any pain or reduced range of movement.2 Fry's closed Valencia's claim on
January 6, 2016. At no point during any of her visits to the urgent care
facility was an MRI performed.

¶4 Valencia returned to urgent care on June 27, 2016,
complaining of increasing pain in her left knee. An examination revealed
increased pain, reduced range of motion and a positive McMurray's test.
Valencia then petitioned to reopen her worker's compensation claim. Fry's
denied the petition.

¶5 Before the resulting hearing, Dr. Anthony Theiler, an
orthopedic surgeon, evaluated Valencia at the request of Fry's and its
carrier. Theiler reviewed Valencia's work-injury history and prior medical
treatment and performed a physical examination, including a McMurray's
test, which was negative. Theiler did not order an MRI. He concluded that
Valencia likely suffered from a "degenerative medial meniscal tear with
medial compartment arthrosis" that was "unrelated to the industrial injury
in question and w[as] not aggravated by the industrial injury in question."

¶6 Meanwhile, Valencia consulted with Dr. Paul Pflueger, a
certified orthopedic surgeon. Pflueger ordered an MRI, which revealed a
tear in her medial meniscus. Pflueger's February 2, 2017 notes stated that
he personally reviewed the MRI and the tear was "consistent with a
trumatic [sic] injury" and was "totally consistent with [Valencia's] reported
work injury." Valencia submitted Pflueger's notes to the Administrative
Law Judge ("ALJ"), although she did not subpoena him to testify.

¶7 ALJ Deborah Nye presided over the hearing. Examined
about the urgent care facility's notes from January 2016, which stated that
she no longer felt pain and the injury was resolved, Valencia denied that
she had made those comments. She testified she had said only that her knee
"was getting better." Valencia added that she did not protest the closure of
her claim only because the urgent care facility told her that she could
"always reopen [it] at any time." Valencia also testified she had suffered no

2 A McMurray's test is performed by manipulating a patient's knee so
as to rotate the tibia on the femur; an audible click indicates "injury to
meniscal structures." See "McMurray's sign," Mosby's Dictionary of
Medicine, Nursing & Health Professions 1151 (8th ed. 2009); McMurrays
Test, Physiopedia, https://www.physio-pedia.com/McMurrays Test (last
visited Oct. 26, 2018).

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intervening injury between the closing of her claim and her June 27, 2016
return to urgent care.

¶8 Theiler testified that, as he stated in his report, the pain
Valencia was experiencing was not related to the incident at Fry's. When
the carrier's counsel described the MRI results to him, Theiler testified they
were consistent with degeneration rather than an acute event.

¶9 The ALJ granted Valencia's petition to reopen her claim,
finding that the positive McMurray's test in June 2016, contrasted with the
negative result of several months before, constituted comparative evidence
showing a physical change in her condition. The ALJ found Valencia was
credible when she testified that there was no intervening event that might
have caused the meniscus tear and that she was still feeling pain when her
claim was closed and during the period before June 2016. The ALJ found
that the "MRI demonstrate[d] a new condition, not previously diagnosed,"
and adopted as "more probably correct" Pflueger's opinion that the
meniscus tear was caused by Valencia's slip in the Fry's deli.

¶10 Fry's sought review, arguing that Valencia had failed to offer
comparative evidence to support her petition to reopen and that Theiler's
testimony was more probably correct. Shortly thereafter, ALJ Nye retired
and the case transferred to another ALJ, Gaetano Testini.

¶11 Valencia, Pflueger and Theiler testified at a second hearing.
Valencia testified as before. Pflueger testified Valencia "had a cartilage tear
that was almost certainly due to trauma" and that "the only trauma she told
me about is the injury at work." Moreover, Pflueger stated that Valencia
had had symptoms of the tear since the first injury but the tear was
undiscovered until the MRI was performed. Theiler stated that his opinion
remained unchanged, testifying that the tear was "a degenerative-type of
tear," unrelated to Valencia's work injury. Additionally, Theiler testified
there was no indication that Valencia's fall at Fry's caused the tear.

¶12 The ALJ affirmed the prior decision. Fry's timely sought
review in this court. We have jurisdiction pursuant to Article 6, Section 9,
of the Arizona Constitution, Arizona Revised Statutes ("A.R.S.") sections 12-
120.21(A)(2) (2018), 23-951(A) (2018) and Rule 10 of the Arizona Rules of
Procedure for Special Actions.3

3 Absent material revision after the relevant date, we cite the current
version of a statute or rule.

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DISCUSSION

¶13 Our review of an ICA award is "limited to determining
whether or not the [ICA] acted without or in excess of its power and . . .
whether . . . [its] findings of fact support the award, order or decision."
A.R.S. § 23-951(B) (2018). "[W]e defer to the ALJ's factual findings but
review questions of law de novo." Landon v. Indus. Comm'n, 240 Ariz. 21, 24,
¶ 9 (App. 2016). We view the evidence in the light most favorable to
upholding the award. Aguayo v. Indus. Comm'n, 235 Ariz. 413, 414, ¶ 2 (App.
2014).

¶14 A claimant may petition to reopen a claim "upon the basis of
a new, additional or previously undiscovered temporary or permanent
condition." A.R.S. § 23-1061(H) (2018); see Stainless Specialty Mfg. Co. v.
Indus. Comm'n, 144 Ariz. 12, 16 (1985). The claimant must prove by a
preponderance of the evidence both the existence of "any one of the three
conditions" and "a causal relation between that condition and the previous
industrial injury." Crocker v. Indus. Comm'n, 124 Ariz. 566, 568 (1980).
Although the claimant must use comparative evidence to prove a new or
additional condition, that requirement does not apply to previously
undiscovered conditions. See id. at 568; Perry v. Indus. Comm'n, 154 Ariz.
226, 229 (App. 1987). Instead, "[w]hen a disability in existence at the time
of the previous award has not been discovered at the time of the award the
claimant is entitled to a reopening upon discovery by the very terms of
A.R.S. § 23-1061(H)." Crocker, 124 Ariz. at 569 ("although claimant's
physicians were aware that he was suffering pain at the time his file was
closed, none diagnosed the underlying condition which caused his pain").

¶15 As for the statutory requirements to reopen a claim under §
23-1061(H), Fry's and the carrier argue only that Valencia failed to sustain
her burden because she did not provide comparative evidence to support a
new or additional injury. As noted above, however, the ALJ found that the
contrasting McMurray's test results constituted comparative evidence of a
new injury. A McMurray's test performed on January 6, 2016, the date
Valencia's claim was closed, was negative, while the same test performed
on June 26, 2016, was positive. The ALJ also found the tear was "not
previously diagnosed," a ground for reopening that would not require
comparative evidence. See Crocker, 124 Ariz. at 568; Perry, 154 Ariz. at 229.
The evidence also supported this finding: Although Valencia had pain even
after her claim was closed in January 2016, a possible meniscus tear was not
mentioned in any of the medical records until June 2016, and the January
2017 MRI finally revealed the tear definitively. As in Crocker, the evidence
supported a finding that the pain Valencia experienced after her claim was

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closed was "a symptom of an underlying physical condition" that had yet
to be diagnosed. 124 Ariz. at 567-68.

¶16 Fry's and its carrier also argue the ALJs exceeded their
authority in accepting Pflueger's opinion on causation over Theiler's. ALJ
Nye considered the respective physicians' opinions and found Pflueger's
opinion "more probably correct." After both experts testified at the second
hearing, ALJ Testini found that the evidence supported ALJ Nye's
determination. We agree the evidence supports the ALJs' findings of fact
and will not reweigh the evidence. See Carousel Snack Bar v. Indus. Comm'n,
156 Ariz. 43, 46 (1988) (ALJ resolves conflicting medical expert testimony);
Kaibab Indus. v. Indus. Comm'n, 196 Ariz. 601, 609, ¶ 25 (App. 2000).

CONCLUSION

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

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

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