Milligan v. Argonaut Midwest ins/lusa Holdings

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ADAM MILLIGAN, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

LUSA HOLDINGS, LLC, dba LANDSCAPE USA, Respondent Employer,

ARGONAUT MIDWEST INSURANCE CO., Respondent Carrier.

No. 1 CA-IC 24-0033
FILED 03-06-2025

Special Action – Industrial Commission
ICA Claim No. 20212170033
Carrier Claim No. 40-221674
The Honorable Michelle Bodi, Administrative Law Judge

AFFIRMED

COUNSEL

Etoile Law, PLLC, Chandler
By Angelica Simpson
Counsel for Petitioner
The Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent

Jardine, Baker, Hickman & Houston, P.L.L.C, Phoenix
By Stephen C. Baker
Counsel for Respondent Employer & Carrier

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Angela K. Paton joined.

T H U M M A, Judge:

¶1 Petitioner Adam Milligan challenges an Industrial
Commission of Arizona (ICA) award finding Milligan failed to establish his
left knee injury resulted from an industrial accident. Milligan argues: (1) the
Administrative Law Judge (ALJ) erred in finding the medical evidence
presented supported the finding that his left knee issues were not the result
of an industrial injury to his right knee and (2) the evidence shows Milligan
met his burden to show his left knee issues are compensable. Because
Milligan has shown no reversible error, the award is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Milligan was injured on July 20, 2021 when he was thrown
from a lawn mower while working as a landscaper for Respondent
Employer Lusa Holdings LLC dba Landscape USA. That same day, he
sought medical treatment for his right knee and, claiming a right knee
injury, sought workers’ compensation benefits. Respondent Carrier
Argonaut Midwest Insurance Co. accepted his claim for benefits. Milligan
received physical therapy and, in 2021 and then again in February 2023, had
surgery on his right knee, including to repair a torn ACL and MCL.
Ultimately, in December 2023, Milligan was found to have a seven percent
permanent disability as a result of the July 2021 industrial accident to his
right knee.

¶3 Meanwhile, Milligan saw several medical doctors. Dr.
Matthew Hansen treated him shortly after the accident and also performed
the first surgery on his right knee in December 2021. No records from Dr.
Hansen were provided that indicated Milligan claimed left knee pain. Dr.

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Michael McGrath treated Milligan in the latter part of 2021 through March
2022. That treatment, however, apparently was for Milligan’s right knee,
with no reference to significant left knee issues.

¶4 Beginning in September 2022, Dr. Sumit Dewanjee was
Milligan’s treating physician. Dr. Dewanjee testified that Milligan did not
complain of left knee issues at the start of his treatment and that prior
medical records did not show complaints about left knee pain. Dr.
Dewanjee then performed a second surgery on Milligan’s right knee in
February 2023.

¶5 In 2022, Dr. David S. Bailie performed independent medical
examinations (IME) to determine whether Milligan had reached maximum
medical improvement. Dr. Bailie noted radiographs from October 2021
showed signs of ongoing degeneration in the left knee and that Milligan
complained of pain in the left knee and left hip, all of which Dr. Bailie
attributed to preexisting arthrosis.

¶6 In March 2023, Milligan reported constant pain and
discomfort in his left knee, hypothesizing the source of the pain as overuse
from compensation for the right knee injury. Later in March 2023, after the
denial by the Respondent Carrier, Milligan filed a request for investigation
regarding workers’ compensation benefits, alleging his issues with his left
knee were caused by the July 2021 industrial injury. See Ariz. Rev. Stat.
(A.R.S.) § 23-1061(J) (2025).1 After an X-ray and MRI in May 2023, Dr.
Dewanjee diagnosed a torn ACL and arthritis in Milligan’s left knee.

¶7 Dr. Bailie performed another IME in February 2024. Dr. Bailie
later testified that, during this IME, Milligan told Dr. Bailie he suffered from
the left knee injury since the incident and that he had told that to multiple
medical providers. Dr. Bailie reviewed the MRI of the left knee taken in May
2023 by Dr. Dewanjee and concluded the images indicated an intact left
knee PCL but a degenerative ACL that was completely absent and not
recently torn. Having conducted a physical exam, Dr. Bailie concluded the
left knee pain was consistent with arthritis.

¶8 At the hearings before the ALJ, Milligan and Doctors
Dewanjee and Bailie testified, with the doctors offering conflicting evidence
on whether the left knee issues, to a reasonable degree of medical
probability, resulted from the industrial injury.

1 Absent material revisions after the relevant dates, statutes cited refer to

the current version unless otherwise indicated.

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¶9 Milligan testified he landed on both knees during the
industrial accident; had no symptoms or surgeries to his left knee before the
incident; experienced “a little” pain and slight swelling in his left knee
which both increased the day after the accident, and continued to get worse
as the right knee improved, and continuously told medical personnel about
the pain in the left knee.

¶10 Dr. Dewanjee, Milligan’s treating physician, testified it was
likely the aggravated left knee condition resulted from the incident or from
compensating for the condition of the right knee injuries, but admitted “[i]t
would be difficult to ascertain” whether the injury predated or was caused
by the incident, adding “it is likely that [Milligan] tore his left knee ACL”
in the incident.

¶11 Dr. Bailie, Respondent Carrier’s expert, testified the left knee
injury was an extremely probable natural progression of underlying
degenerative arthritis and not related to the industrial accident:

I do not find any evidence in the records to
suggest adequate documentation to correlate
[Milligan’s] current left knee complaints with
the industrial event in question. It is likely he
has a chronic ACL deficient knee and clearly has
arthritis that has developed over a many year
period of time and that likely predates the
industrial event. One would expect clear
documentation of at least significant complaints
and objective findings even if it was never
treated if this is associated with the original
injury. Those records I have not seen to
corroborate that . . . . While [Milligan’s]
subjective complaints support there is some
relationship [between the incident and the left
knee injury], those are not substantiated by the
medical records.

Dr. Bailie added there was nothing objective to substantiate a relationship
between the left knee symptoms and the industrial accident.

¶12 After considering the medical records and conflicting
testimony, the ALJ resolved “the conflict in the medical evidence . . . in favor
of the opinions of Dr. Bailie as being more probably correct and well-
founded.” In doing so, the ALJ noted medical records in the months after

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the industrial accident documented only right knee pain, Milligan only
complained of right knee pain and Milligan denied any specific injury to
the left knee in March 2023. The ALJ weighed this evidence and concluded:

The prior medical records do not document any
left knee complaints so there is nothing
objective to indicate a relationship between the
industrial accident and [Milligan’s] left knee
condition. Medical literature does not support
an overuse syndrome and walking does not
constitute “overuse.” [It was] opined, to a
reasonable degree of medical probability, that
[Milligan’s] left knee condition was not caused
or aggravated by the [incident].

¶13 Finding Dr. Bailie’s testimony “as being more probably
correct and well-founded,” the ALJ concluded Milligan failed to prove all
material elements of the claim by a preponderance of the evidence and
denied his claim. The ALJ affirmed on review after considering Milligan’s
memorandum of points and authorities.

¶14 Milligan timely sought review by this court. This court has
jurisdiction over the timely request for review pursuant to A.R.S. §§ 12-
120.21(A)(2) and 23-951(A), and Arizona Rule of Procedure for Special
Actions 10 (2024).

DISCUSSION

¶15 Milligan appeals the ALJ’s denial of his request for
investigation regarding workers’ compensation benefits under A.R.S. § 23-
1061(J). To succeed on this investigation request, Milligan has the burden
to show by a preponderance of the evidence that he was entitled to benefits
related to the left knee and that his employer failed to provide those
benefits. See id.; Malinski v. Indus. Comm’n, 103 Ariz. 213, 216 (1968) (citing
cases); Brooks v. Indus. Comm’n, 24 Ariz. App. 395, 399 (1975) (citing cases).

¶16 This court defers to an ALJ’s factual findings and reviews
questions of law de novo. Young v. Indus. Comm’n of Ariz., 204 Ariz. 267, 270
¶ 14 (App. 2003) (citing cases). This court will uphold ICA decisions
supported by any rational interpretation of the facts. See Kaibab Indus. v.
Indus. Comm’n of Ariz., 196 Ariz. 601, 605 ¶ 10 (App. 2000) (citing cases). This
court considers the record in the light most favorable to upholding the
ALJ’s award. Lovitch v. Indus. Comm’n of Ariz., 202 Ariz. 102, 105 ¶ 16 (App.
2002) (citing cases).

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I. Milligan Has Shown No Error in the ALJ’s Recitation and
Application of the Law.

¶17 Milligan argues the ALJ erred by not considering whether the
incident was “a proximate cause” of the left knee injury that “combine[d]
with a pre-existing condition to cause a further injurious result.” But the
ALJ expressly found the industrial accident did not cause injury to
Milligan’s left knee or aggravate a pre-existing condition.

¶18 An industrial accident “need not be the sole cause” of an
injury if, “in a natural and continuous sequence, unbroken by any efficient
intervening cause,” it produces the injury, and that injury would not have
occurred without the industrial accident. See Murray v. Indus. Comm’n, 87
Ariz. 190, 199 (1960). While Milligan accurately notes compensable
workers’ compensation injuries include aggravations of a previous injury,
e.g., id.; Div. of Vocational Rehab. v. Indus. Comm’n, 125 Ariz. 585, 588 (App.
1980) (citation omitted) (“The employer takes the employee as he finds
him”), Milligan fails to show how the ALJ did not consider whether the
industrial accident proximately caused his left knee issues. Indeed, the ALJ
weighed the evidence and found the industrial accident did not aggravate
the left knee at all. For this reason, Milligan has shown no error in the ALJ’s
recitation and application of the law.

II. The Record Supports the ALJ’s Findings of Fact.

¶19 Milligan argues the record does not support the ALJ’s
adoption of Dr. Bailie’s opinion over Dr. Dewanjee’s, contending Dr.
Bailie’s testimony was “speculative at best.” In a case like this, expert
medical testimony must be expressed in terms of “probabilities,” as medical
testimony which is in terms of “possibilities” only is not sufficient to sustain
an award. See Bell Rd. Mini Storage v. Indus. Comm’n, 124 Ariz. 493, 495
(1980). Still, Milligan fails to show how the expert medical evidence
presented by Dr. Bailie was not expressed in terms of probabilities.

¶20 In addition, Milligan’s counsel cross-examined Dr. Bailie
during the hearing before the ALJ. Milligan and Dr. Dewanjee also testified,
seeking to call into question Dr. Bailie’s findings. Accordingly, Milligan had
a full and fair opportunity to call into question Dr. Bailie’s findings or seek
additional clarification with regard to the doctor’s findings. The ALJ
considered all the evidence provided, including the conflicting testimony,
and rejected Milligan’s claim.

¶21 The ALJ acts as the factfinder, see Post v. Indus. Comm’n, 160
Ariz. 4, 7 (1989) (citing cases), weighing and resolving any conflicting

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evidence, see Stainless Specialty Mfg. Co. v. Indus. Comm’n of Ariz., 144 Ariz.
12, 19 (1985) (citing cases). This court does not re-weigh evidence and, when
reasonable evidence supports an ALJ’s factual finding, it will be affirmed.
Kaibab Indus., 197 Ariz. at 608–609, ¶¶ 21, 25 (citing cases); see also Royal
Globe Ins. Co. v. Indus. Comm’n., 20 Ariz. App. 432, 434 (1973).

¶22 Here, the testimony of both Dr. Dewanjee and Dr. Bailie was
supported by objective medical evidence, including medical records and
imaging studies, scientific data and physical examination. The ALJ noted
the conflict in the evidence presented in relation to the need for treatment
of the left knee as it related to the industrial accident. Considering all of the
evidence, the ALJ acted as factfinder to resolve that conflict and found Dr.
Bailie’s testimony more probably correct. Therefore, recognizing the
conflicting testimony by Dr. Bailie and Dr. Dewanjee, Milligan has shown
no abuse of discretion in the ALJ’s factual findings. The ALJ’s adoption of
Dr. Bailie’s opinion over Dr. Dewanjee’s was not error.

CONCLUSION

¶23 The award is affirmed.

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

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