Bowser v. pulice/argonaut

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROGER BOWSER, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

PULICE CONSTRUCTION, INC., Respondent Employer,

ARGONAUT INSURANCE CO, ARGO GROUP US, Respondent Carrier.

No. 1 CA-IC 23-0033
FILED 03-04-2025

Petition for Special Action from the Superior Court in Maricopa County
ICA Claim No. 20022530322
Carrier Claim No. 40-410071
The Honorable Amy L. Foster, Administrative Law Judge

AFFIRMED

COUNSEL

Roger Bowser, Mesa
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent

Jardine Baker Hickman & Houston PLLC, Phoenix
By K. Casey Kurth
Counsel for Respondent Employer/Carrier
 BOWSER v. PULICE/ARGONAUT
Decision of the Court

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Vice Chief Judge Randall M. Howe
joined.

J A C O B S, Judge:

¶1 Petitioner, Roger Bowser, challenges an Industrial
Commission of Arizona (“ICA”) award terminating his long-term dental
care that flowed from a 2002 industrial injury. Bowser argues the
Administrative Law Judge (“ALJ”) erred in concluding that he is not
entitled to continued benefits because his injury is medically stationary, he
is not permanently impaired, and any further treatment he desires is thus
unrelated to the industrial injury. Because sufficient evidence supports the
award, we affirm.

FACTS AND PROCEDURAL HISTORY

A. Bowser Is Injured at Work and Receives Dental Benefits for
20 Years.

¶2 In 2002, Bowser was working as a foreman on a curb crew
when a coworker struck him in the face. Bowser’s face was bruised and cut,
and several teeth were chipped and dislodged.

¶3 Over the next 20 years, Bowser had four root canals, and two
crowns placed on the teeth damaged by the injury and wore retainers or
aligners to hold the damaged teeth in place.

¶4 Bowser also experienced significant jaw problems which his
providers described as temporomandibular disorder (“TMD”). These
issues continued until 2022 when Bowser had a severe face cramp when
removing his aligners, after which the symptoms stopped. Bowser saw a
jaw expert for the first time in 2023. The expert opined to Bowser that his
jaw was likely out of place for 20 years until it self-corrected in this incident.
Despite the self-correction, the expert told Bowser he would need
continued treatment to keep his jaw stable.

¶5 Bowser’s claim was accepted in September 2002, and he
received benefits until October 2, 2022, when Argonaut Insurance

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Decision of the Court

Company stopped paying for Bowser’s dental care. In response, Bowser
requested a hearing to clarify what treatment he was entitled to under the
original ICA award. Argonaut and Bowser’s former employer, Pulice
Construction Inc., argued Bowser was only entitled to a “bi-annual retainer
replacement under supportive care.”

B. The ALJ Holds Hearings and Terminates Bowser’s Benefits.

¶6 At the ALJ hearing, the issues were (1) whether Bowser’s
injury was stationary, (2) whether there was permanent impairment, and
(3) what supportive care Bowser needed.

¶7 Bowser alleged the judge overseeing the criminal assault trial
arising from the injury promised him “lifetime dental care[,]” and that
Argonaut then verbally confirmed he would receive it. Bowser clarified he
was seeking that “continuation of [his] dental coverage that [he has] had for
the last 20-some years[.]” To that end, he asked the court to approve dental
care for the teeth injured in the 2002 incident, Invisalign, and a jaw
appliance.

¶8 Bowser described his prior dental and jaw issues and the
proposed treatment plans for them. He reported having no jaw issues since
his jaw reset itself in 2022. Yet because the jaw unset repeatedly over the
last 20 years, he wanted to prevent that from recurring. He testified he is
not currently experiencing any dental pain or issues but has several crowns
nearing the end of their lifespan.

¶9 At later hearings, the ALJ heard conflicting testimony from
Dr. Tipton, Bowser’s former treating orthodontist and expert, and Dr.
Kootman, the opposing expert. Dr. Tipton testified he treated Bowser from
2005 to 2020 and recommended implants or bridges throughout that time.
He did not specifically treat TMD symptoms other than recommending
replacing teeth “to give [Bowser] a stable occlusion” because “you don’t
treat TMD until you have a stable occlusion.” When told of Bowser’s
testimony about his jaw going back into place, Dr. Tipton testified Bowser
would still need implants to obtain a stable occlusion and avoid recurring
TMD symptoms, explaining “[s]ometimes it’s never fully resolved.”

¶10 Dr. Tipton testified he had no strong opinion on whether
Bowser’s dental problems related to the original 2002 industrial injury. He
allowed that they “may have been related to the industrial injury, as well
as any joint problems he was having.” He explained that the jaw issues or
TMD Bowser experienced at that time “very likely could have been a result
of . . . injury and trauma to the jaws.” Dr. Tipton could not opine on

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Decision of the Court

whether Bowser’s current dental problems more likely than not related to
the industrial injury because he did not have documents describing the
original jaw issues, but clarified that “a lot of times TMD symptoms are
related to injury.” If Bowser’s jaw was dislocated during the injury, he
opined, then it would be very likely that his TMD symptoms were caused
by the industrial injury. He was not aware that Bowser was missing two
teeth before the injury.

¶11 Dr. Kootman testified that recent repairs to Bowser’s injured
teeth were not related to his industrial injury “at all” and that if a piece of
the tooth were to break, it would break at the time of injury, not 20 years
later. Similarly, he testified that injury to the teeth in 2002 would “definitely
not . . . cause [Bowser] to have a crown and a root canal” 20 years later
because the decay would appear within six to twelve months, not 20 years.
Thus, he concluded that treatments to teeth numbered 2, 14, and 31 were
not related to the industrial injury. He also testified that Bowser had good
oral hygiene.

¶12 Dr. Kootman testified that when he examined Bowser,
Bowser could open and move his jaw well without problems. He
questioned whether Bowser really had TMD for 20 years, because he did
not see it documented until 2022. He explained that he generally disagrees
with the use of Invisalign to obtain stable occlusion and treat jaw issues. He
therefore concluded Bowser did not need a retainer or other active medical
treatment for his teeth or jaw. He concluded Bowser had reached
maximum medical improvement and was stable, so nothing was left to be
done related to the industrial injury.

¶13 Dr. Kootman was not provided the original police report that
described the injuries and did not have the reports from the jaw specialist
or Dr. Tipton. He also testified he was familiar with some of Bowser’s
providers and did not find them credible.

¶14 The ALJ found Dr. Kootman more credible and adopted his
opinions as those most-probably correct and well-founded. The ALJ
concluded that Bowser “ha[d] not established by preponderance of the
evidence the need for further active medical care as a result of the industrial
episode[]” and that treatment for particular teeth and a retainer were “not
related to the industrial injury.” The ALJ ordered Bowser’s ICA file closed
and awarded benefits from August 29, 2002 through January 9, 2023.

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 BOWSER v. PULICE/ARGONAUT
Decision of the Court

¶15 Bowser filed a request for review, and the ALJ affirmed the
decision. This statutory special action followed. We have jurisdiction.
Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(2), 23-951(A).

DISCUSSION

¶16 An applicant has the burden to show he is entitled to
continued workers’ compensation benefits. Stephens v. Indus. Comm’n, 114
Ariz. 92, 94 (App. 1977). This Court considers the evidence presented in the
light most favorable to upholding the ALJ’s decision and must affirm if the
decision is “reasonably supported by the evidence.” Lovitch v. Indus.
Comm’n, 202 Ariz. 102, 105 ¶ 16 (App. 2002). To allow for meaningful
appellate review, an ALJ must “make specific findings on all material issues
and resolve all material ‘conflicts in the evidence, especially when the
conflicts involve expert medical testimony.’” Aguirre v. Indus. Comm'n, 247
Ariz. 75, 77 ¶ 12 (2019) (quoting Post v. Indus. Comm'n, 160 Ariz. 4, 8 (1989)).

¶17 Bowser argues the ALJ’s decision is not supported by the
evidence. But the record evidence was conflicting about whether Bowser
had permanent impairment, whether his injuries were medically stable,
and whether he would need future supportive care. Dr. Kootman
concluded that Bowser’s teeth and jaw reached maximum medical
improvement, so he needed no further treatment related to the industrial
accident, and that he was not permanently impaired. Dr. Tipton, by
contrast, concluded that Bowser would need continued treatment to
maintain a stable occlusion and prevent his jaw from dislocating.

¶18 The ALJ explicitly found Dr. Kootman’s testimony more
credible and probably correct and adopted his conclusions. Dr. Kootman
adequately explained that Bowser did not have any current jaw pain or
restricted movement, and any tooth fracture or necrosis caused by the
injury would have occurred within a year of the injury, so the injury would
not have created a need for a crown or root canal 20 years later. He also
explained his view that aligners are an overused and ineffective treatment
for jaw issues and Bowser could wear them for orthodontic purposes if he
wanted, but it would not be needed to stabilize his jaw. While Bowser
disagrees with Dr. Kootman’s conclusions and the ALJ’s finding that Dr.
Kootman was more credible, Bowser has not shown these conclusions are
not “reasonably supported on any reasonable theory of the evidence.”
Perry v. Indus. Comm'n, 112 Ariz. 397, 398-99 (1975). The ALJ’s decision is
thus supported by reasonable evidence. Lovitch, 202 Ariz. at 105 ¶ 16.

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Decision of the Court

CONCLUSION

¶19 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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