Yrc Inc v. Brent Bucher

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

YRC WORLDWIDE INC, Petitioner Employer,

SAFETY NATIONAL INSURANCE COMPANY c/o
SEDWICK CLAIMS MANAGEMENT SERVICES, INC, Petitioner Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

BRENT BUCHER, Respondent Employee.

No. 1 CA-IC 21-0001
FILED 9-30-2021

Special Action - Industrial Commission

ICA Claim No. 20121-090418
Carrier Claim No. 001033-348964-WC-01
The Honorable Paula R. Eaton, Administrative Law Judge

AFFIRMED

COUNSEL

Ritsema & Lyon, P.C., Tempe
By Danielle Vukonich
Counsel for Petitioners
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent

Taylor & Associates, P.L.L.C., Phoenix
By Nicholas C. Whitley, Thomas C. Whitley
Counsel for Respondent Employee

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the court, in which Presiding
Judge D. Steven Williams and Judge James B. Morse Jr. joined.

G A S S, Judge:

¶1 This case concerns whether the Administrative Law Judge
(ALJ) of the Industrial Commission of Arizona (IC) erred in reopening Brent
Bucher’s industrial claim. Safety National Insurance Company and
Sedwick Claims Management Insurance Company Inc. (collectively
insurer) and YRC Worldwide Inc. appeal the ALJ’s decision to reopen
Bucher’s claim and subsequent decision upon review. We affirm the order
because the ALJ’s decision to reopen was not wholly unreasonable.

FACTUAL AND PROCEDURAL HISTORY

¶2 Bucher worked as a trucker for YRC. In 2012, Bucher suffered
a work-related injury during a slip-and-fall incident. Bucher later received
medical treatment for his injury. In 2013, IC closed Bucher’s claim because
his condition became stationary. But Bucher’s symptoms later worsened,
and the shooting pain Bucher initially suffered in his right leg started to
travel down to his right foot.

¶3 Because Bucher’s symptoms changed, he filed a Petition to
Reopen in 2019. The insurer denied Bucher’s Petition to Reopen. Bucher
timely protested, and the IC held formal hearings.

¶4 Bucher testified his industrial injury occurred when he
slipped and fell while exiting his truck. Bucher testified the fall caused him
to suffer “shooting pain all the way up [his] back” and in his right leg.
Bucher testified he was given epidural shots in his back, pain medications,

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and chiropractic treatment to treat his symptoms. Further, Bucher testified
by 2020, “[t]he symptoms were getting worse” and he was having
“shooting pain and burning feeling in the bottom of [his] foot.”

¶5 Dr. Jeffery Douglas Scott, one of the doctors who treated
Bucher’s work-related injury, testified about Bucher’s treatment shortly
after the incident and Bucher’s 2020 visit to his office. According to Scott’s
testimony, after the case closed, Bucher’s condition “progress[ed] from
radiculitis to true radiculopathy.” Based on this progression, Scott felt
surgical intervention or epidural injections may be an appropriate
treatment.

¶6 Dr. Anthony Carl Theiler, the doctor who conducted the
independent medical examination (IME) for the insurer, testified regarding
his assessment of Bucher’s condition. At the hearing, Theiler suggested
Bucher should continue undergoing a supportive care treatment. Theiler
also testified, based on Bucher’s IME, Bucher’s symptoms and diagnosis
have been the same since his case closed in 2013.

¶7 In 2020, the ALJ reopened Bucher’s claim after concluding,
based on Scott’s testimony, Bucher had “a new, additional or previously
undiscovered condition causally related to his March 29, 2012, industrial
injury . . . .” In 2020, the ALJ affirmed its earlier decision, finding in favor of
Bucher.

¶8 YRC timely appealed. This court has jurisdiction under article
VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.2 and
23-951.A.

ANALYSIS

¶9 This court “will not disturb the resolution of the [ALJ] unless
it is wholly unreasonable.” Stainless Specialty Mfg. Co. v. Indus. Comm’n, 144
Ariz. 12, 19 (1985). This court “deferentially review[s] reasonably supported
factual findings but independently review[s] legal conclusions.” Warren v.
Indus. Comm’n, 202 Ariz. 10, 12, ¶ 12 (App. 2002). And this court “view[s]
the evidence in the light most favorable to sustaining the award.” Ortega v.
Indus. Comm’n, 121 Ariz. 554, 557 (App. 1979).

¶10 To reopen a closed claim to secure a change in compensation
or additional benefits under Arizona’s Worker’s Compensation Act, a
claimant must show a “new, additional or previously undiscovered
temporary or permanent condition.” A.R.S. § 23-1061.H; see also Stainless
Specialty, 144 Ariz. at 15. To reopen, the claimant also must show a causal

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connection between the need for new or additional treatment and the
original industrial injury. Stainless Specialty, 144 Ariz. at 19.

¶11 YRC and the insurer first argue the ALJ erred in deciding to
reopen Bucher’s claim because Bucher provided no comparative evidence
showing a change in his condition. YRC and the insurer also argue “Scott
failed to point to any diagnostics or any comparative evidence to establish
that Bucher has in fact ‘progressed from radiculitis to radiculopathy.’” We
disagree.

¶12 The insurer is correct “[e]vidence establishing a change in
condition must be comparative, not absolute, in nature.” See Ariz. State
Welfare Dep’t v. Indus. Comm’n, 25 Ariz. App. 6, 8 (1975); see also Scroggins v.
Indus. Comm’n, 123 Ariz. 35, 36–37 (App. 1979) (explaining a claimant did
not present comparative evidence because he did not present “new,
additional, or previously undiscovered” evidence showing a change in his
neck and shoulder injury after his claim closed).

¶13 But here, Bucher showed a change in his condition since his
case closed in 2013. Scott diagnosed Bucher as having progressed “from
radiculitis to true radiculopathy.” Bucher testified his injury-related pain
spread to new, previously unaffected parts of his body, namely his right
foot. And Scott’s testimony regarding the radiculopathy diagnosis was
comparative because he, in making the diagnosis, compared Bucher’s
condition in 2020 with Bucher’s condition shortly after the accident—when
Scott had classified Bucher as having reached maximum medical
improvement and his condition as being stationary.

¶14 Next, YRC and the insurer argue Bucher cannot reopen his
claim for a change in condition when his application to reopen is based
solely on subjective pain. This court has recognized subjective pain cannot
be the basis for reopening a worker’s compensation claim “if the pain is not
accompanied by a change in objective physical findings.” Polanco v. Indus.
Comm’n, 214 Ariz. 489, 491, ¶ 6 (App. 2007) (quoting 1999 Ariz. Sess. Laws,
ch. 331, § 9) (affirming an ALJ’s decision to deny a claimant’s application to
reopen his case when he could not show a change in his work-related injury
other than increased back pain).

¶15 Bucher testified his subjective pain increased since his claim
closed. But Bucher also testified the pain “is located in different places[,]”
including his right foot. Bucher’s testimony regarding his pain was also
supported by Scott’s diagnosis of a change in condition from radiculitis to

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radiculopathy. Accordingly, reasonable evidence supported the ALJ’s
finding of an objective change.

¶16 Finally, YRC and the insurer argue insufficient evidence
supported the ALJ’s reliance on Scott’s diagnosis of Bucher’s condition as a
progression from radiculitis to radiculopathy, requiring the need for
additional treatment. YRC and the insurer argue Bucher’s condition has
been consistent with both radiculitis and radiculopathy since his case
closed. Bucher, however, testified his condition changed when his pain
traveled to other, previously unaffected parts of his body, like his right foot.
Scott based his diagnosis of Bucher’s progression from radiculitis to
radiculopathy, in part, on his past treatment of Bucher, including treatment
from around the time Bucher’s case closed. Based on Scott’s finding of
Bucher’s progression from radiculitis to radiculopathy, Scott recommended
Bucher repeat an MRI and seek either additional epidural treatments or
surgery.

¶17 The ALJ’s decision to rely on Scott’s diagnosis was not wholly
unreasonable. See Stainless Specialty, 144 Ariz. at 19. The ALJ’s decision was
based on evidence of a change in condition—specifically, Bucher’s
testimony regarding a change in his symptoms and Scott’s testimony
regarding a new diagnosis and a recommendation for new or additional
treatment. See id. at 20 (explaining an ALJ’s finding of change in condition
is properly supported when testimonial evidence supports an “evolution of
medical opinion” regarding the treatment of an industrial injury).

CONCLUSION

¶18 We affirm the ALJ’s 2020 orders granting Bucher’s application
to reopen his claim and the subsequent decision upon review.

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

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