Jackson v. Ssp america/north River Ins

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH JACKSON, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

SSP AMERICA, Respondent Employer,

NORTH RIVER INSURANCE CO, Respondent Carrier.

No. 1 CA-IC 20-0028
FILED 4-1-2021

Special Action - Industrial Commission
ICA Claim No. 20182-400221
Carrier Claim No. DWC00166668
The Honorable Jeanne Steiner, Administrative Law Judge

AFFIRMED

COUNSEL

Kenneth Jackson, Chandler
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Quintairos, Prieto, Wood & Boyer, P.A., Scottsdale
By Terence N. Cushing, Rita J. Bustos
Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

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

P E R K I N S, Judge:

¶1 Kenneth Jackson appeals an award of the Industrial
Commission of Arizona (“ICA”) denying him cervical epidural injections
because he failed to prove that such treatment would address a work-
related injury. We affirm the ICA denial.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In August 2018, at 61 years of age and while working for SSP
America, Jackson slipped and injured his right shoulder. North River
Insurance Co. (“North River”) accepted Jackson’s shoulder injury as a
work-related injury, eventually resulting in right shoulder surgery for a
partially torn rotator cuff in early 2019. In March 2019, Jackson began
treatment with Dr. Jeffrey Scott, a physiatrist. Scott recommended cervical
injections for treatment of right arm pain and other symptoms that he
determined were coming from a pinched nerve in Jackson’s neck. North
River denied coverage for the requested treatment, and Jackson requested
a hearing under A.R.S. § 23-1061(J).

¶3 At the hearing, Scott testified in support of the requested
treatment. He testified that Jackson’s work injury aggravated an already
narrow opening in the foramen from the spinal cord where nerves pass
through to the right arm. He further opined that the fall at work made
Jackson’s “fragile” foramen symptomatic and that epidural injections could
relieve his symptoms.

¶4 Dr. Zoran Maric, an orthopedic surgeon, performed an
Independent Medical Examination (“IME”) in October 2019. He reviewed
medical records and physically examined Jackson. He testified that no

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Decision of the Court

objective orthopedic or neurological finding warranted epidural injections.
He found no link between Jackson’s ongoing neck-related complaints and
the work injury. He testified that, at most, Jackson suffered a neck sprain or
strain that healed long ago. Maric also criticized Scott’s record of Jackson’s
examination for being “grossly incomplete.”

¶5 The administrative law judge found Maric’s medical opinion
carried more weight than Scott’s and issued an award denying the
requested injections. Jackson brings this special action to appeal that award.

DISCUSSION

¶6 As someone with an open worker’s compensation claim,
Jackson is entitled to “reasonably required” medical treatment. See
A.R.S. § 23-1062(A). He may challenge a denial of requested treatment and
receive a hearing under A.R.S. § 23-1061(J). At that hearing, he bears the
burden of showing that the requested treatment is related to the industrial
injury. Kaibab Indus. v. Indus. Comm’n, 196 Ariz. 601, 608, ¶ 23 (App. 2000).
On review, we defer to the administrative law judge’s factual findings but
independently review legal conclusions. Young v. Indus. Comm’n, 204 Ariz.
267, 270, ¶ 14 (App. 2003). We will affirm an 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). 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); see also Kaibab Indus., 196
Ariz. at 609, ¶ 25. We defer to the administrative law judge’s resolution of
conflicting evidence and affirm findings if they are supported by any
reasonable theory of the evidence. Perry v. Indus. Comm’n, 112 Ariz. 397,
398–99 (1975). An award based on conflicting medical testimony will not be
disturbed. Smiles v. Indus. Comm’n, 2 Ariz. App. 167, 168 (App. 1965).

¶7 Here, the testimony contained conflicting opinions about the
cause of Jackson’s complaints related to his neck. The administrative law
judge resolved those conflicts in favor of Maric’s view, and there is evidence
in the record to support that opinion. We will not disturb the administrative
law judge’s resolution of the conflict.

¶8 Jackson’s opening brief mainly argues that the evidence
shows he reported pain in his neck from the beginning of his injury. That
fact, however, is not contested. Our review of the record reveals that neither
Scott nor Maric questioned whether Jackson reported pain in his right
shoulder, neck, and arm during his initial treatment. They instead disputed

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Decision of the Court

whether Jackson’s neck-related symptoms were causally related to the
work injury. Maric testified that they were not, gave reasons for his opinion,
and the administrative law judge agreed.

CONCLUSION

¶9 We affirm the award.

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

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