Gutierrez v. phoenix/phoenix

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CUTBERTO GUTIERREZ, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CITY OF PHOENIX DBA CITY OF PHOENIX, Respondent Employer,

CITY OF PHOENIX, Respondent Carrier.

No. 1 CA-IC 24-0042
FILED 05-15-2025

Special Action - Industrial Commission
ICA Claim No. 20221640507
Carrier Claim No. 22G10K263381
The Honorable Paula R. Eaton, Administrative Law Judge

AFFIRMED

COUNSEL

Cutberto Gutierrez, Phoenix
Petitioner

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent
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Lundmark, Barberich, La Mont & Puig, P.C., Phoenix
By R. Todd Lundmark, David T. Lundmark
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael S. Catlett and Judge David D. Weinzweig joined.

K I L E Y, Judge:

¶1 Cutberto Gutierrez appeals an Industrial Commission of
Arizona (“ICA”) award affirming the closure of his claim. Because evidence
supports the conclusion reached by the Administrative Law Judge (“ALJ”),
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the evidence in the light most favorable to affirming
the award. Polanco v. Indus. Comm’n, 214 Ariz. 489, 490-91, ¶ 2 (App. 2007)
(citation omitted).

¶3 Gutierrez works for the City of Phoenix (“City”) as a heavy-
equipment operator. On May 3, 2022, Gutierrez twisted his right knee when
he missed a step while climbing down from a loader. Experiencing “a lot of
pain,” Gutierrez filed a claim for workers’ compensation, which was
accepted. Thomas Carter, M.D., and James Hutchison, P.A., treated
Gutierrez with a combination of medication and physical therapy.

¶4 In December 2022, David Bailie, M.D., who is board-certified
in orthopedic surgery, conducted an independent medical examination
(“IME”). Dr. Bailie’s IME report indicated that Guitierrez underwent
magnetic resonance imaging (“MRI”) of his right knee twice after the
accident, once in May 2022 and again in September 2022. After reviewing
the MRI results and other records and examining Gutierrez, Dr. Bailie
concluded that Gutierrez sustained a grade two medial collateral ligament
(“MCL”) tear of the right knee in the May 2022 accident, and that the tear
had “fully healed with trace laxity but ongoing symptoms.” Dr. Bailie also
determined that Gutierrez had a “pre-existing” posterior cruciate ligament
(“PCL”) injury, but concluded that the May 2022 accident did “not

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aggravate the PCL injury.” Concluding that Gutierrez had “reached
maximum medical improvement,” Dr. Bailie concluded that Gutierrez had
a 12% permanent impairment warranting “six months” of “[s]upportive
care” but “[n]o further active treatment.”

¶5 The City then issued a notice of claim status reflecting that it
would authorize six additional months of supportive care, issue a monetary
benefit for the permanent impairment, and close Gutierrez’s claim effective
December 21, 2022. Gutierrez requested a hearing to dispute the closure of
his claim.

¶6 At the hearing, Gutierrez stated that after the May 2022
accident he continued to work as a heavy-equipment operator while
receiving treatment. Gutierrez saw two different doctors before undergoing
the December 2022 IME. Gutierrez testified that, after his claim was closed,
he sought treatment from Michael Dersam, M.D., who performed a total
knee replacement in February 2023. Gutierrez then took part in physical
therapy and returned to work in May 2023.

¶7 Dr. Bailie testified about the IME he conducted and about his
review of Gutierrez’s medical records. He testified that the MRI Gutierrez
underwent “about two and a half weeks” after the May 2022 injury showed
a “grade two” MCL tear, and that the September 2022 MRI showed that the
MCL tear “was healed.” Dr. Bailie noted that both MRIs also showed a PCL
injury, but opined that the PCL injury was pre-existing. The PCL injury, he
explained, was not “consistent with” the kind of “twisting injury” that
Gutierrez sustained in May 2022. In any event, Dr. Bailie testified, he could
tell, from its “color” and “thickness,” that the PCL injury was pre-existing.

¶8 Dr. Bailie concluded his testimony by stating that, in his
opinion, Gutierrez suffered a “grade two MCL tear” as a result of the May
2022 accident, with no aggravation of the prior PCL injury. Dr. Bailie
testified that Gutierrez’s injury was medically stationary with 12%
permanent impairment. Dr. Bailie further testified that the knee
replacement that Gutierrez underwent in February 2023 may have been
necessitated by “osteoarthritis” or some other underlying condition, but
was not related to the May 2022 accident.

¶9 Dr. Dersam testified that Gutierrez’s PCL injury was not pre-
existing, but was caused by the May 2022 accident. Dr. Dersam reached that
conclusion, he explained, because he saw “no documentation of a prior
injury” and Gutierrez told him that “he did not have any knee pain prior”
to the May 2022 accident. He further testified that Gutierrez “started to

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develop arthritic changes in the knee” due to the PCL tear, and that he
performed the knee replacement in February 2023 “to try to stabilize
[Gutierrez’s] knee” and prevent further “degenerative changes.” Noting
the “possibility” that Gutierrez’s knee might require further treatment, Dr.
Dersam recommended that he receive continued care in the form of
“follow-up” and “X-rays” “one or two times a year.”

¶10 On cross-examination, Dr. Dersam testified that he agreed
with Dr. Bailie’s opinion that an MCL tear alone would not cause or
contribute to the need for a total knee replacement. Dr. Dersam also
acknowledged that an MRI of a recent PCL injury would “typically” show
“more edema or more swelling” than appeared on the MRI that Gutierrez
underwent in May 2022.

¶11 Following the hearing, the ALJ entered an award upholding
the closure of Gutierrez’s claim. The ALJ found “the opinions of Dr. Bailie
to be more probably correct and well founded” and determined that
Gutierrez’s injury “was medically stationary with a twelve percent
permanent impairment of his right lower extremity effective December 21,
2022.” Gutierrez filed a request for review, and the award was affirmed.
Gutierrez then brought this statutory petition for special action. We have
jurisdiction under A.R.S. §§ 12-120.21(B), 23-951(A).

DISCUSSION

¶12 Gutierrez disputes the closure of his claim.1 In reviewing a
workers’ compensation award, we defer to the ALJ’s findings of fact if they
are reasonably supported by the evidence, and absent an abuse of discretion
we affirm the “ALJ’s resolution of conflicting opinions.” Kaibab Indus. v.
Indus. Comm’n, 196 Ariz. 601, 605, ¶ 10 (App. 2000) (citation omitted).

¶13 A claimant seeking continued benefits bears the burden to
prove that his or her medical condition is not stationary. Stephens v. Indus.
Comm’n, 114 Ariz. 92, 94 (App. 1977) (citations omitted). A medical

1 Gutierrez’s opening and reply briefs cite neither the record nor legal
authorities in support of his arguments and so do not comply with
applicable rules. See ARCAP 13(a)(4)-(5), (7). Although the deficiencies in
Gutierrez’s briefing could support a finding of waiver, see Polanco v. Indus.
Comm’n, 214 Ariz. 489, 491, ¶ 6 n.2 (App. 2007) (citations omitted), our
preference for resolving cases on their merits leads us to exercise our
discretion to address his arguments. See Adams v. Valley Nat’l Bank of Ariz.,
139 Ariz. 340, 342 (App. 1984) (citation omitted).

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condition is “stationary” when it “has reached a relatively stable status so
that nothing further in the way of medical treatment is indicated to improve
that condition.” Aragon v. Indus. Comm’n, 14 Ariz. App. 175, 176 (1971).
Competent medical testimony is required to determine whether a medical
condition is stationary. Rosarita Mexican Foods v. Indus. Comm’n, 199 Ariz.
532, 535-36, ¶ 12 (2001) (citation omitted).

¶14 Gutierrez asserts that the ALJ erred in determining Dr.
Bailie’s opinions to be “more likely correct” because Dr. Bailie performed a
“cursory physical exam” and mainly relied on the records of Gutierrez’s
previous providers. Gutierrez denies that he had any pre-existing PCL
injury, insisting that Dr. Bailie’s determination to the contrary was based
on a misinterpretation of his medical records.

¶15 The hearing on Gutierrez’s claim gave rise to conflicting
medical evidence. Dr. Bailie testified that Gutierrez’s MCL injury was
stationary as of December 2022, and that his need for a knee replacement in
February 2023 was unrelated to the May 2022 accident. In contrast, Dr.
Dersom testified that the February 2023 knee replacement was reasonably
necessary to treat the injury sustained in May 2022. Dr. Dersom opined that
Gutierrez sustained the PCL injury as a result of the May 2022 accident, but
admitted that the MRI taken shortly after the accident did not show the
amount of “edema or . . . swelling” that is “typically” found in a recent PCL
injury. The ALJ has a “duty to resolve all conflicts in the evidence and to
draw all warranted inferences.” Spec. Fund Div. v. Indus. Comm’n, 252 Ariz.
267, 269-70, ¶ 10 (App. 2021) (quotation omitted). Where two inferences
may be drawn from the evidence, the ALJ may choose either inference; we
will not disturb that choice unless it is “wholly unreasonable.” Waller v.
Indus. Comm’n, 99 Ariz. 15, 18 (1965) (citations omitted). Although Gutierrez
argues that Dr. Dersom’s opinion was more persuasive than Dr. Bailie’s, he
has not shown that the ALJ’s contrary determination was “wholly
unreasonable.” See id. Because we will not re-weigh evidence, Kaibab, 196
Ariz. at 608, ¶ 21, we accept, as supported by competent expert testimony,
the ALJ’s determination that Gutierrez’s condition was stationary as of
December 2022.

¶16 Gutierrez also argues that another doctor whom he briefly
saw for treatment improperly shared his medical records in violation of his
medical privacy rights under the Health Insurance Portability and
Accountability Act (“HIPAA”). This argument was neither raised at the
hearing nor in Gutierrez’s request to the ICA for review. This argument is
therefore waived, and we decline to address it. See Larson v. Indus. Comm’n,
114 Ariz. 155, 158 (App. 1976) (“We will not consider on review an issue not

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raised before the Industrial Commission where the petitioner has had an
opportunity to do so.” (citation omitted)).

CONCLUSION

¶17 We affirm the award.

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

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