Olsen v. amazon/american

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SUSAN OLSEN, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

AMAZON.COM, Respondent Employer,

AMERICAN ZURICH INSURANCE CO, Respondent Insurance Carrier.

No. 1 CA-IC 21-0051
FILED 8-2-2022

Special Action - Industrial Commission
ICA Claim No. 20203430189
Carrier Claim No. 40201133G2F-0001
The Honorable Rachel C. Morgan, Administrative Law Judge

AWARD AFFIRMED

APPEARANCES

Susan Olsen, Sahuarita
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Jardine Baker Hickman & Houston PLLC, Phoenix
By Stephen M. Venezia
Counsel for Respondent Employer and Insurance Carrier

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Susan Olsen appeals an Industrial Commission of Arizona
(ICA) award affirming the closure of her claim with no further benefits.
Because there is evidence to support the administrative law judge’s (ALJ)
conclusion―Olsen is no longer in need of active medical care, she does not
need supportive care, and she does not have a permanent impairment―we
affirm.

BACKGROUND

¶2 In November 2020, Olsen began working in an Amazon
Fulfillment Center warehouse. On her second day of work, she felt pain in
her lower back on the left side as she lifted a package, placing it on an
overhead shelf. She finished her shift but had trouble getting out of bed the
next day because of the pain in her back. She did not return to work.

¶3 Amazon sent her to Ryan Zate, D.O., a board-certified
physical medicine and rehabilitation specialist. Dr. Zate obtained MRIs of
Olsen’s back in November and December 2020 and diagnosed a
compression fracture. He initially gave Olsen medial branch block
injections. When that treatment did not provide relief, he performed a
vertebral augmentation called “kyphoplasty” that “cement[ed]” the
fractured area to help it to heal. The kyphoplasty, performed in January
2021, provided her relief from the back pain. Amazon and its carrier,
American Zurich Insurance Co., accepted Olsen’s workers’ compensation
claim but denied coverage for the kyphoplasty procedure. Olsen used
private insurance to cover the procedure.

¶4 Dr. Zoran Maric, M.D., a board-certified orthopedic surgeon,
conducted an Independent Medical Examination (IME) of Olsen in January
2021, prior to the kyphoplasty procedure. The IME included a review of

2
 OLSEN v. AMAZON/AMERICAN
Decision of the Court

medical records, including the MRIs, and a physical examination of Olsen.
Dr. Zoran inquired about Olsen’s history of back pain, and she told him that
she had previously injured her back two to three years ago from jumping
on a trampoline. During his physical examination, Olsen had a normal
range of motion in her lumbar spine, which he said is not consistent with
someone with a spinal fracture. She also did not experience pain during a
physical test as he would expect in someone with an injured spine.

¶5 The carrier then issued a notice closing the claim without
permanent impairment, which Olsen challenged. The ICA held several
hearings and received testimony from Olsen, Dr. Zate, and Dr. Maric. Olsen
testified about how she was injured and the treatments that followed, as
recounted above.

¶6 Dr. Zate testified that he saw evidence of a compression
fracture on the MRIs and confirmed that he performed kyphoplasty at the
fractured area in January 2021. He stated that he was not aware of any
history of right side back pain from a preexisting condition before Olsen’s
November injury. Dr. Zate provided his opinion that Olsen needed
supportive care such as physical therapy, medications, and periodic office
visits. It was his opinion that Olsen had reached maximum medical
improvement in mid-February 2021, and that she had some level of
permanent impairment due to her injury.

¶7 Dr. Maric had a different view. He opined that Olsen had
experienced a lower back sprain/strain that had resolved when he
examined her in early January 2021. He testified that her explanation of how
she was injured was inconsistent with the mechanism of injury that would
cause a compression fracture. Such a mechanism would entail movement
that would compress the spine, such as jumping up and down. Instead,
Olsen lifted a box and put it on an overhead shelf at the time of injury,
which he identified as an extension load, a decompression rather than a
compression of the discs. Dr. Maric also explained that after he reviewed
the MRI images, he did not see any evidence of fracture. Instead, in his
opinion, the images showed a “Modic end-plate reactive change” that he
described as a degenerative condition. In his view, the MRIs showed the
presence of “bony spurs” that take years to develop, thus confirming his
conclusion that Olsen has a degenerative spinal condition. Dr. Maric
concluded that Olsen had strained her back and that it had healed by early
January 2021, with no need for further treatment and no permanent
impairment.

3
 OLSEN v. AMAZON/AMERICAN
Decision of the Court

¶8 After weighing the evidence, the ALJ found Dr. Maric’s
testimony “more probably correct and well-founded to a reasonable
medical probability.” The ALJ concluded that Olsen had reached maximum
medical improvement and needed no further care, either active or
supportive, and that Olsen suffered no permanent impairment. Olsen filed
a request for review of the decision, arguing that the ALJ should have given
Dr. Zate’s opinion more weight than Dr. Maric’s because Dr. Zate was the
treating physician. The ALJ reviewed the record and remained convinced
that Dr. Maric’s opinion was more credible. Olsen now brings this special
action review.

DISCUSSION

¶9 In reviewing the findings and awards of the ICA, we defer to
the ALJ’s factual findings. Avila v. Indus. Comm’n, 219 Ariz. 56, 57, ¶ 2 (App.
2008). On appeal, we view the evidence in the light most favorable to
upholding the award. Id. The ALJ has the primary responsibility to resolve
conflicts in medical opinion evidence. See Carousel Snack Bar v. Indus.
Comm’n, 156 Ariz. 43, 46 (1988); see also Kaibab Indus. v. Indus. Comm’n, 196
Ariz. 601, 609, ¶ 25 (App. 2000). We defer to the ALJ’s resolution of
conflicting evidence and affirm the ALJ’s 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).

¶10 Here, the ALJ was presented with two conflicting medical
opinions about the nature and extent of Olsen’s back injury. The ALJ
ultimately concluded that Dr. Maric’s testimony and opinion were
consistent with the evidence and presented a reasonable theory of the
nature and extent of the injury. His opinion was based on his review of the
MRIs and his physical examination of Olsen before the kyphoplasty was
performed. Although Olsen believes the ALJ should have given more
weight to Dr. Zate’s opinion as her treating physician, the ALJ was not
compelled to do so. We will not disturb her resolution of the conflicting
medical evidence. Where two different inferences may be drawn from the
evidence, the ALJ has the discretion to resolve those conflicts and choose
either inference; a reviewing court will not disturb that choice unless it is
wholly unreasonable. Waller v. Indus. Comm’n, 99 Ariz. 15, 18 (1965).

4
 OLSEN v. AMAZON/AMERICAN
Decision of the Court

CONCLUSION

¶11 We affirm the award.

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

5