Marquez v. Tci trans/protective

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANKIE MARQUEZ, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

TCI TRANSPORTATION, Respondent Employer,

PROTECTIVE INSURANCE COMPANY, Respondent Carrier.

No. 1 CA-IC 19-0005
FILED 4-23-2020

Special Action – Industrial Commission
ICA Claim No. 20170-610364
Carrier Claim No. WC-00003174
The Honorable Rachel C. Morgan, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Snow Carpio & Weekley, PLC, Phoenix
By Chad T. Snow
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano Testini
Counsel for Respondent ICA

Jones, Skelton & Hochuli, PLC, Phoenix
By Gregory L. Folger, Eileen Dennis Gilbride
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Chief Judge Peter B. Swann joined.

C A T T A N I, Judge:

¶1 Frankie Marquez seeks special action review of an Industrial
Commission of Arizona award and decision upon review finding his
industrial injury to be medically stationary and closing his workers’
compensation claim. For reasons that follow, we affirm the award.

FACTS AND PROCEDURAL BACKGROUND

¶2 Marquez worked as a diesel-truck mechanic at
Transportation Commodities Incorporated. In October 2016, Marquez felt
pain on his right side while removing a battery from a vehicle. He promptly
sought medical care for right-side neck, arm, and leg pain and weakness.
Dr. Christopher Huston pursued conservative treatments including anti-
inflammatories and a therapeutic injection for radiculitis at the C5 vertebra.
When that treatment did not alleviate his pain, Marquez was referred to Dr.
William Stevens, a board-certified orthopedic spine surgeon. Dr. Stevens
diagnosed cervical stenosis with myelopathy (cord compression) at C3-4
and recommended cervical decompression and fusion surgery, although
Marquez was unable to undergo the surgery at that time.

¶3 In February 2017, Marquez filed a workers’ compensation
claim related to the October 2016 injury. The carrier initially denied
compensability, but Marquez challenged the denial, and an administrative
law judge (“ALJ”) ultimately rendered a decision in his favor. In that
November 2017 decision, the ALJ found that Marquez had sustained a
compensable injury and awarded benefits until the condition became
medically stationary.

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¶4 While the compensability litigation proceeded, the carrier
sent Marquez to be examined by Dr. Dennis Crandall, a board-certified
orthopedic spine surgeon. Dr. Crandall concluded that Marquez’s
industrial incident had resulted only in a cervical strain, and his
examination revealed no sign of radiculopathy or myelopathy. Dr.
Crandall diagnosed several other degenerative conditions of the spine
unrelated to the workplace injury, and he concluded that Marquez’s
condition resulting from the industrial injury had fully resolved and was
medically stationary with no permanent impairment as of his June 19, 2017
examination.

¶5 Marquez subsequently sought treatment from Dr. Kirk
Puttlitz, a pain management physician, who diagnosed a cervical disc
disorder with radiculopathy at C5-6 and myelopathy at C6-7 and attempted
pain management through injections and physical therapy.

¶6 In December 2017 (the month after the administrative
decision on compensability), the carrier closed Marquez’s claim effective
June 19, 2017 based on Dr. Crandall’s evaluation. Marquez challenged the
closure.

¶7 The carrier then sent Marquez for a follow-up examination
with Dr. Crandall, who reaffirmed his prior conclusions. The carrier also
sent Marquez to be examined by Dr. Leo Khan, a board-certified
neurologist, to assess Marquez’s reports of headaches. Dr. Khan concluded
that there was no causal relationship between Marquez’s headaches and his
industrial injury and that, neurologically, Marquez was medically
stationary with no permanent impairment. Dr. Khan further found no
evidence of cervical radiculopathy or myelopathy and concurred in Dr.
Crandall’s opinion that Marquez had most likely suffered a cervical strain
resulting from the industrial incident.

¶8 Around that time, Dr. Puttlitz referred Marquez to Dr. David
Jackson, a board-certified orthopedic spine surgeon. Dr. Jackson diagnosed
a cervical disc disorder with myelopathy and recommended cervical
decompression and fusion surgery to address cord compression at C3-4.
Dr. Jackson ultimately performed the surgery in May 2018.

¶9 Meanwhile, Marquez’s challenge to the carrier’s closure of his
claim proceeded to a hearing at which, in addition to considering
Marquez’s medical records and reports, the ALJ heard testimony from
Marquez, Dr. Jackson, Dr. Kahn, and Dr. Crandall.

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¶10 Dr. Jackson testified on Marquez’s behalf. Dr. Jackson
explained his finding that Marquez had a disc herniation with stenosis and
cord compression at C3-4, which required the fusion surgery he performed
in May 2018. Because Marquez’s right-side neck and arm symptoms began
soon after his industrial incident, Dr. Jackson opined that the industrial
event had caused Marquez’s ongoing symptoms. Dr. Jackson further
explained that the fusion surgery he performed was “more likely than not”
related to the industrial injury and was medically necessary to address
Marquez’s industrially caused symptoms.

¶11 The carrier presented testimony from Dr. Crandall and Dr.
Kahn. Dr. Crandall testified that, although Marquez’s imaging studies
showed degenerative changes of the spinal column, his physical exam
showed no signs of spinal cord irritation. He opined that the industrial
incident had caused a cervical strain that had resolved by the time of his
June 2017 exam and that Marquez’s other symptoms and conditions were
unrelated to the workplace injury. Dr. Crandall concluded that, as related
to the industrial injury, Marquez was medically stationary with no
impairment. Dr. Kahn testified that Marquez’s headaches were unrelated
to the industrial incident, and he further agreed with Dr. Crandall that
Marquez’s physical exam showed no sign of cervical radiculopathy or
myelopathy and that any disc issue at C3-4 was unrelated to the workplace
injury.

¶12 The ALJ considered the conflicting testimony, then found that
Marquez’s industrial injury was medically stationary without permanent
impairment as of June 19, 2017. Marquez requested administrative review,
and the ALJ affirmed the decision upon review.

¶13 Marquez timely filed this statutory special action, and we
have jurisdiction under A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10 of
the Arizona Rules of Procedure for Special Actions.

DISCUSSION

¶14 In reviewing workers’ compensation awards, we defer to the
ALJ’s factual findings but independently review the ALJ’s legal
conclusions. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003).
We will affirm an ALJ’s award “if it is reasonably supported by the evidence
after reviewing the evidence in a light most favorable to sustaining the
award.” Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).

¶15 For a workers’ compensation claim to be compensable, the
claimant must prove that his injury was causally connected to his

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employment. A.R.S. § 23-1021; Hypl v. Indus. Comm’n, 210 Ariz. 381, 383–
84, ¶ 6 (App. 2005). Similarly, the claimant must prove continuing effects
resulting from the industrial injury to support continuing benefits. Capuano
v. Indus. Comm’n, 150 Ariz. 224, 226 (App. 1986).

¶16 When a medical condition or its cause is not clearly apparent
to a lay person, the condition and its causal relationship to the industrial
injury must be established to a reasonable medical probability by expert
medical evidence. Payne v. Indus. Comm’n, 136 Ariz. 105, 108 (1983). The
ALJ has primary responsibility to resolve conflicts in medical opinion
evidence. Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988); Kaibab
Indus. v. Indus. Comm’n, 196 Ariz. 601, 609, ¶ 25 (App. 2000). We defer to
the ALJ’s resolution of conflicting evidence and will affirm the ALJ’s
findings if supported by any reasonable theory of the evidence. Perry v.
Indus. Comm’n, 112 Ariz. 397, 398–99 (1975).

¶17 Marquez argues that the ALJ erred by crediting the opinions
offered by Dr. Crandall and Dr. Kahn over what Marquez characterizes as
“the overwhelming weight of the medical evidence.” He asserts that four
doctors—Dr. Huston, Dr. Stevens, Dr. Puttlitz, and Dr. Jackson—diagnosed
severe cervical problems related to his workplace injury. But these
diagnoses were not uniform. Although both Dr. Stevens and Dr. Jackson
agreed that cord compression at C3-4 required fusion surgery, Dr. Huston
diagnosed a different condition (radiculitis) at a different vertebra (C5) and
Dr. Puttlitz diagnosed problems at still different locations (radiculopathy at
C5-6 and myelopathy at C6-7). Moreover, while Dr. Jackson testified that
the C3-4 issue was causally linked to Marquez’s industrial injury, none of
the other doctors squarely reached the issue of causation. Marquez’s
argument acknowledges as much by urging that all four doctors “implicitly
related” the cervical problems to the workplace injury.

¶18 Marquez further asserts the ALJ erred by failing to
acknowledge that Dr. Stevens’s diagnosis, rendered just a few months after
Marquez’s injury, corroborated Dr. Jackson’s later diagnosis. Not only do
we presume that the ALJ considers all relevant evidence, see Perry, 112 Ariz.
at 398, but here the ALJ expressly considered Dr. Stevens’s opinion, noting
the similarities in Marquez’s subjective complaints presented to both Dr.
Stevens and Dr. Jackson as well as the cervical decompression and fusion
surgery recommended by both.

¶19 Marquez also contends that the ALJ erred by giving too much
weight to Dr. Crandall’s opinion. He urges that Dr. Crandall’s testimony
was undermined by a critical factual inaccuracy regarding the other

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doctors’ findings and diagnoses. Dr. Crandall testified that Dr. Jackson’s
“entire history and physical exam expressly states [Marquez] doesn’t have
myelopathy” and that Dr. Stevens’s records reflect that “he didn’t find any
symptoms or signs of myelopathy either.” However, Dr. Jackson and Dr.
Stevens diagnosed a “cervical disc disorder with myelopathy” and “other
spondylosis with myelopathy,” respectively.

¶20 But Dr. Crandall’s testimony arguably did not mistake Dr.
Jackson’s and Dr. Stevens’s diagnoses, but rather focused on whether their
reports noted findings from physical examinations (rather than imaging
studies) that would support those myelopathy diagnoses. Additionally,
although in some circumstances “medical testimony can be so weakened
by proof of an inaccurate factual background that the testimony cannot be
said to constitute ‘substantial evidence,’” Desert Insul. v. Indus. Comm’n, 134
Ariz. 148, 151 (App. 1982) (citation omitted), medical testimony is only
compromised if the factual inaccuracy is material or significant to the
doctor’s medical opinion. See Fry’s Food Stores v. Indus. Comm’n, 161 Ariz.
119, 122 (1989). And here, Dr. Crandall testified that he developed his
medical opinion based on his own examination of Marquez, and that his
retroactive review of other doctors’ reports did not affect his medical
opinion.

¶21 Marquez also suggests that the ALJ erroneously sustained
objections to his counsel’s cross-examination of Dr. Crandall, preventing
him from highlighting that Dr. Crandall’s opinions lacked foundation. But
Marquez neither specifies any objections that should have been overruled
nor describes what evidence would otherwise have come to light.
Moreover, the record shows that the ALJ afforded Marquez substantial
latitude to explore Dr. Crandall’s familiarity with and impression of Dr.
Stevens’s report and diagnosis, even after sustaining objections to requests
that Dr. Crandall weigh in on Dr. Stevens’s competence. Marquez has not
shown that the ALJ abused her discretion in deciding evidentiary matters.
See Toto v. Indus. Comm’n, 144 Ariz. 508, 514 (App. 1985).

¶22 At its core, Marquez’s argument simply asks this court to
reweigh the medical evidence, but we defer to the ALJ’s resolution of
conflicting medical opinions. See Perry, 112 Ariz. at 398–99. Dr. Crandall
and Dr. Kahn opined that Marquez’s industrial incident resulted only in a
cervical strain that had since resolved, leaving him medically stationary
with no permanent impairment. Although Marquez presented contrary
medical evidence, the ALJ’s adoption of Dr. Crandall and Dr. Kahn’s
opinions instead was not “wholly unreasonable,” so we will not displace

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the ALJ’s assessment. See Stainless Specialty Mfg. Co. v. Indus. Comm’n, 144
Ariz. 12, 19 (1985).

¶23 Finally, Marquez asserts that the ALJ erred by ignoring the
res judicata effect of the November 2017 decision as to the nature and extent
of his injury. Although a final workers’ compensation award has both issue
and claim preclusive effect, see Circle K Corp. v. Indus. Comm’n, 179 Ariz. 422,
428 (App. 1993), here, the November 2017 award decided compensability—
i.e., that Marquez suffered an injury and that the injury was caused by his
work, see Yates v. Indus. Comm’n, 116 Ariz. 125, 127 (App. 1977)—but did
not reach the extent or permanence of the harm caused. Even Dr. Crandall’s
opinion presupposed an industrial injury but determined that the incident
only resulted in a temporary cervical strain, not a more serious or
permanent condition. And Marquez’s reliance on an implicit finding of his
credibility in the November 2017 decision does not undermine the ALJ’s
assessment in this proceeding of conflicting medical opinions regarding
matters lying peculiarly within the knowledge of medical doctors. See
Stephens v. Indus. Comm’n, 114 Ariz. 92, 95 (App. 1977). Thus, the November
2017 decision addressed different issues and did not resolve medical
questions presented in the current proceeding about the extent of
Marquez’s injury or his need for ongoing treatment. Cf. Capuano, 150 Ariz.
at 226.

CONCLUSION

¶24 For the foregoing reasons, we affirm.

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

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