C2 enterprises/berkshire v. Monge

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

C2 ENTERPRISES, LLC, Petitioner Employer,

BERKSHIRE HATHAWAY HOMESTATE COMPANIES, Petitioner
Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

NORMA MONGE, Respondent Employee.

No. 1 CA-IC 20-0023
FILED 3-16-2021

Special Action - Industrial Commission
ICA Claim No. 20173-400254
Carrier Claim No. 44035523
The Honorable Amy L. Foster, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Jardine, Baker, Hickman & Houston PLLC, Phoenix
By Stephen C. Baker
Counsel for Petitioner Employer and Carrier

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent, ICA
Barton Baker Attorney at Law, Yuma
By Barton L. Baker
Counsel for Respondent Employee

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

Respondents C2 Enterprises, LLC (“C2”) and Berkshire
Hathaway Homestead Companies (“Berkshire”) appeal an award of the
Industrial Commission of Arizona (“ICA”) rejecting closure of Petitioner
Norma Monge’s claim. The ICA found that Monge required surgery after
Berkshire closed the claim. Because evidence supports the ICA’s finding
that surgery was reasonably necessary, we affirm the award.

BACKGROUND

While working for C2 in October 2017, Monge sustained a
wrist injury when a cart she was pushing got out of her control, hit a wall,
and bounced backward. The cart handle struck her right hand,
hyperextending her wrist. For about a month, Monge treated the injury
herself, but she eventually sought medical help because it was not healing.
The ICA accepted her worker’s compensation claim. She was treated by
various doctors throughout 2018, transferring to the Arizona Center for
Hand to Shoulder Surgery (“the Center”), primarily under the care of
Dr. Mihn Nguyen, in November 2018. At that point, she had two
diagnostic assessments of her right arm: (1) complex tear of the triangular
fibrocartilage (“TFC” or “TFCC”) of the right wrist and (2) cubital tunnel
syndrome on the right arm, an elbow-related condition. Office visit notes
from January 2019 show that the TFCC condition was symptomatic at that
time.

In October 2018, just before she transferred care to the Center,
Peter Campbell, M.D., performed an Independent Medical Examination
(“IME”) of Monge at Berkshire’s request. Dr. Campbell is an orthopedic
surgeon with board certification in hand and upper extremity
reconstruction. Apart from examining Monge, Dr. Campbell also reviewed
her existing medical records. He found that her right wrist had suffered a

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contusion with “possible small TFC tear” and that she had “right cubital
tunnel syndrome.” He only related the TFC tear to the work injury and
concluded that the tear was “not significantly symptomatic at this time nor
hindering her activities” because it had “responded favorably to
conservative treatment.” He also concluded that additional treatment was
not needed unless her wrist symptoms worsened. In that event,
Dr. Campbell opined that “she would be a candidate for corticosteroid
injection or arthroscopic debridement of the TFC tear.” Given his findings,
Dr. Campbell concluded that Monge had no permanent impairment and no
need for work restrictions, and only recommended additional treatment for
the non-work-related cubital tunnel syndrome.

Based on the IME results, Berkshire closed the claim with no
permanent impairment as of October 2018. Challenging the closure, Monge
requested a hearing, asserting she needed further treatment.

In January 2019, Monge saw Dr. Nguyen. He noted that she
previously received an injection in the TFC area that improved her
symptoms but did not resolve them completely. Dr. Nguyen discussed
treatment alternatives with Monge, as reflected in his office-visit notes:

We discussed our options, which included conservative
management including some more therapy, nerve glides,
joint mobilization versus surgery. Surgery would entail
arthroscopy of the wrist. I would likely debride the radial-
sided tear to stable edges and still survey the remainder of the
ligaments [to] make sure there is nothing else that needs to be
done and then cubital tunnel release.

Monge agreed to undergo outpatient surgery, which took
place in April 2019, without coverage by Berkshire. Dr. Nguyen’s operative
note includes recitation of a discussion he had with Monge:

I discussed risks, benefits, and alternatives of surgical
intervention with the patient. I let her know that with a TFCC
tear, I am not sure if that is what is really causing her pain,
but because she has the pathology with the wrist pain and a
positive physical exam, since I was going to release her cubital
tunnel, I would also perform a wrist arthroscopy and likely
debride the radial-sided TFCC tear. I let her know I would
leave the possibility open to also repair it.

His operative notes show that he debrided the “full-thickness” TFC tear but
did not repair it.

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Beginning June 2019, Dr. Jonathan Yang at the Center took
over Monge’s care. He noted that she continued to have pain in her right
arm but could not conclusively attribute it to the work injury or the elbow
condition.

Dr. Campbell was the only medical expert witness to testify
at the hearing on the closure of Monge’s claim. He testified in support of
his IME, which was over a year out of date. He agreed with the cubital-
tunnel-syndrome diagnosis but opined that it was not related to the work
injury. He stated that the wrist injury was a sprain and TFC tear that had
resolved. Because he found the TFC tear to be asymptomatic at the time he
conducted the IME, he recommended no further treatment for the injury.
He testified that he reviewed the April 2019 operative report after issuing
the IME report, but his opinion had not changed. Concerning the TFC tear
surgery, the following exchange occurred with Dr. Campbell:

Q. And then what about the right wrist arthroscopy? Was that
reasonably necessary to treat the industrial injury?

A. That’s a reasonable surgical procedure for that diagnosis.
My only concern is that she truly was not significantly
symptomatic when I saw her, and I would not have suggested
surgery unless her symptoms became significantly worse in
the interval before Dr. Nguyen evaluated her.

Q. Looking at Dr. Nguyen’s records and the records from
Dr. Yang, who took over her care, do you -- does it – do these
records change your opinion at all as to whether or not she
was stationary when you saw her?

A. No. She was stationary when I saw her.

Thus, Dr. Campbell opined that the surgery Dr. Nguyen
performed was reasonable if Monge was “significantly symptomatic.” This
opinion is consistent with his IME report, in which he stated that TFC tear
surgery would be indicated if her symptoms worsened. At the hearing, he
testified specifically that Monge was asymptomatic when he examined her
in October 2018, almost 18 months before.

The administrative law judge issued an award rejecting the
October 2018 closure of the claim because Monge required the surgery
performed in April 2019:

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Dr. Campbell related the TFCC tear to the industrial injury
and noted that treatment may be necessary if it becomes
symptomatic in the future. The ulnar injury at the elbow is not
related. Dr. [Nguyen]’s notes indicate that [Monge] was
having symptoms in the ulnar side of her wrist that was
relieved somewhat by an injection. He therefore proceeded
with surgery in the area. Dr. [Nguyen]’s notes do not discuss
the relationship between the surgery and the industrial
injury. To the extent that there is a conflict in the medical
records, Dr. Campbell’s opinions and conclusion are adopted
as more probably correct. However, Dr. [Nguyen]’s opinion
that the TFCC tear required surgery is adopted as more
probably correct. As [Monge] has not yet fully recovered from
the surgery, the claim must remain open.[1]

When all of the evidence is considered in its entirety and upon
a resolution of the conflicts in the evidence it is found herein
that [Monge] has established by preponderance of the
evidence the need for further active medical care and the need
for surgery on the TFCC tear. The ulnar nerve damage at the
elbow is not related to the industrial injury. [Monge] is thus
entitled to benefits pursuant to the Workers’ Compensation
Act of the State of Arizona.

Respondents requested administrative review and, when that
review affirmed the award, filed a special-action appeal to this court,
arguing that the evidence does not support the finding that the TFC tear
surgery was required.

DISCUSSION

Closure of a claim is appropriate when a claimant’s condition
has become stationary. Home Ins. Co. v. Indus. Comm’n, 23 Ariz. App. 90, 92
(1975). A claimant’s condition is stationary when “the physical condition
. . . resulting from the industrial injury has reached a relatively stable status
so that nothing further in the way of medical treatment is indicated to
improve that condition.” Aragon v. Indus. Comm’n, 14 Ariz. App. 175, 176,
(1971).

1 We interpret the references to Dr. Yang to include the Center’s other
physician, Dr. Nguyen, who performed Monge’s surgery.

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We will affirm an award if the evidence reasonably supports
it 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). The
administrative law judge has the 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 administrative law judge’s resolution of conflicting
evidence and affirm findings if any reasonable theory of the evidence
supports them. Perry v. Indus. Comm’n, 112 Ariz. 397, 398–99 (1975). An
award based on conflicting medical testimony will not be disturbed. See
Smiles v. Indus. Comm’n, 2 Ariz. App. 167, 168 (1965).

As reflected in the record, the administrative law judge
accepted Dr. Campbell’s opinion but found that Monge experienced
worsening symptoms related to the work injury after the October 2018 IME,
such that the TFC surgery was necessary under the parameters set out in
Dr. Campbell’s testimony. Accordingly, the administrative law judge
concluded that Monge’s injury was not stationary during the months
preceding the surgery. In a light most favorable to upholding the award,
we find that view to be a reasonable theory of the evidence.

Although Dr. Campbell testified that the existence of
“significant symptoms” warranted surgery, he did not elaborate on what
“significant symptoms” meant and did not specifically testify that
Dr. Nguyen’s records showed no significant symptoms were present
following his IME. In January 2019, Dr. Nguyen noted that surgery was
considered and adopted as a treatment plan because Monge was
experiencing symptoms in her wrist at that time. He further noted that she
had received an injection that had improved the symptoms but had not
eradicated them. This evidence supports his determination that surgery
was necessary to alleviate Monge’s pain. Dr. Nguyen stated in his operative
notes that the TFC tear had been symptomatic before surgery. Again, when
viewed in a light most favorable to upholding the award, and applying
Dr. Campbell’s criterion set out in his testimony, this is evidence that
Monge had ongoing symptoms of the work-related injury for which
surgery was necessary to correct.

Respondents argue that there is no testimony to establish that
the industrial injury necessitated the surgery. We disagree. Dr. Campbell
testified if Monge were “significantly symptomatic” from the industrial
injury tear, surgery would be indicated. There was no dispute that the wrist
TFC tear was an industrial injury. When asked whether he reviewed
Dr. Nguyen’s records, Dr. Campbell acknowledged that he had, but he was

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only asked if Monge was stationary when he saw her in October 2018,
almost 18 months prior to his testimony. In other words, he was not asked
to evaluate Dr. Nguyen’s records specifically for significant symptoms
before the surgery. He did not describe what “worsened symptoms” looked
like, nor did he state an opinion regarding whether the records of the
treating physician demonstrated significant symptoms before the surgery.
He merely said that Dr. Nguyen’s records did not change his IME
conclusions. Therefore, it was not unreasonable for the administrative law
judge to find that Monge’s symptoms persisted or re-emerged after October
2018, becoming worse up to the time of surgery.

CONCLUSION

There being a reasonable theory of the evidence that supports
the administrative law judge’s findings, we affirm the award.

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

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