Tyree v. banner/banner

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES TYREE (PATRICIA A. TYREE, GUARDIAN AD LITEM),
Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

BANNER HEALTH SYSTEM, Respondent Employer,

BANNER HEALTH, Respondent Carrier.

No. 1 CA-IC 24-0051
FILED 5-22-2025

Special Action - Industrial Commission
ICA Claim No. 20210480120
Carrier Claim No. 88124
The Honorable Robert E. Trop, Administrative Law Judge

AWARD AND DECISION UPON REVIEW AFFIRMED

COUNSEL

James Tyree, New Hartford, NY
Petitioner

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

Ruegsegger Simons & Stern, LLC, Denver, CO
By Vito A. Racanelli
Counsel for Respondent Employer and Carrier
 TYREE v. BANNER/BANNER
Decision of the Court

MEMORANDUM DECISION

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

B A I L E Y, Judge:

¶1 The Industrial Commission of Arizona (“ICA”) has been
adjudicating a series of issues related to Petitioner James Tyree’s claim for
benefits from an October 2020 industrial injury. In this case, he appeals an
award and decision upon review finding he is not entitled to permanent
disability benefits because the injury did not cause him to lose earning
capacity.1 Because he failed to make a prima facie case, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Tyree, a physical therapist who worked for Banner, was
injured when he received a mandatory flu shot that gave him a rare
condition called Guillain-Barre Syndrome (“Guillain-Barre”). Guillain-
Barre (also known as acute inflammatory demyelinating polyneuropathy)
is an acute condition in which antibodies attack the myelin sheath of nerves.
It normally runs its course within a year. Guillain-Barre can cause serious
breathing problems mandating use of a respirator, which happened to
Tyree in late 2020, leading to a short hospitalization.

¶3 Tyree received temporary benefits and active medical
treatment until his claim was closed in October 2022. In December 2022,
the ICA issued an Award for Unscheduled Permanent Partial Disability
finding Tyree had a 100% general physical functional disability and had
sustained a 100% loss of earning capacity (“LEC”).

¶4 Banner, a self-insured employer, protested the award,
arguing Tyree had lost no earning capacity or, if he did, had not lost all

1 The award also determined the amount of a credit to Respondent Banner

Health System (“Banner”) for an independent medical examination
(“IME”) appointment Tyree failed to attend. Because Tyree makes no
arguments related to that ruling, we do not address it. See generally Meiners
v. Indus. Comm’n, 213 Ariz. 536, 538, ¶ 8 n.2 (App. 2006).

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earning capacity. Banner submitted a labor market expert written report
that concluded Tyree had no LEC caused by the industrial injury.

¶5 An ICA Administrative Law Judge (“ALJ”) conducted a
hearing to determine whether Tyree’s work injury had caused him to lose
earning capacity. Banner called no witnesses. Tyree called three witnesses:
himself and two medical experts, a neurologist and an internist, who had
performed an IME of him in January 2023. The IME included physical
examinations, for which Tyree appeared in a wheelchair, insisting he “had
to go everywhere in [it].” The neurologist, Dr. Leo Kahn, concluded that
Tyree was not giving his best efforts at the examination. In addition, based
on surveillance video of Tyree independently getting in and out of a car,
walking outside to place trash in a bin, and engaging in other activities, Dr.
Kahn concluded Tyree had “a much greater functional capability when
observed outside of a medical setting than when formally examined.”

¶6 Dr. John Schaller, a board-certified internist, testified that
when he examined Tyree for the IME in January 2023, Tyree had no ongoing
issues or residual effects caused by Guillain-Barre. He concluded Tyree
was malingering at the exam and had not been truthful about his functional
abilities. Both IME doctors agreed Tyree has no work restrictions
attributable to Guillain-Barre. Indeed, Tyree testified that none of his
treating doctors have given him work restrictions.

¶7 Tyree represented himself at the hearing. He spent much of
his testimony explaining he has CIDP (chronic inflammatory
demyelinating polyneuropathy) resulting from Guillain-Barre and
attempting to discredit the surveillance video. He testified that many of his
treating physicians were treating him for CIDP, but he did not call any of
them to testify his CIDP diagnosis was causally related to the work injury.
Both testifying medical experts denied Tyree had CIDP or that evidence in
the medical records supported such a finding. Dr. Kahn testified it was
extremely unusual for someone to develop CIDP following Guillain-Barre
and that Tyree’s electrodiagnostic studies results were inconsistent with
that diagnosis.

¶8 As to the video, Tyree introduced a report authored by a
“digital forensic examiner.” That report concluded the surveillance video
was “compilations composed of segments combined from 2 or more other
videos.” Tyree testified the video was cobbled together and that sometimes
it showed a person who was him and other times it showed someone who
was not him. He repeatedly sought to exclude the video, to no avail.

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¶9 In the weeks before Dr. Schaller, the final witness, was
scheduled to testify, Tyree filed numerous motions seeking to: (1) exclude
Dr. Kahn’s IME addendum based on his review of the surveillance video;
(2) hold Dr. Kahn in contempt; (3) recall Dr. Kahn for testimony; (4) remove
the ALJ for cause; and (5) postpone Dr. Schaller’s testimony until Tyree
could obtain a transcript of Dr. Kahn’s testimony, who had testified only a
week before the motion to postpone. The ALJ denied every motion.

¶10 Two days before Dr. Schaller’s scheduled testimony, an
unsigned, typewritten letter entitled “To whom it made [sic] concern” was
filed stating Tyree had been placed under a guardianship in Pinal County.
The letter further stated, “[Tyree] has been determined to be incapable of
handling his own legal matters,” and the ICA hearing process “broke
[Tyree’s] ability to participate in this hearing.” The letter concluded by
stating that Tyree “is now legally removed from any further participation”
in the case.

¶11 Early on the day scheduled for Dr. Schaller to testify, someone
filed with the ICA another unsigned document from an unidentified person
written in the style and formatting of Tyree’s prior filings. The document
stated that Tyree was under temporary guardianship and none of his family
or friends would take part in the ICA hearing process. The letter proposed
two outcomes: (1) “drop the hearing” and allow the claim to move forward
under the 100% LEC first found by the ICA; or (2) have a probate court
representative “assume the representation” of Tyree. The letter provided
copies of Pinal County Superior Court documents finding Tyree
incapacitated and ordering a temporary guardianship effective several
days before Dr. Schaller’s scheduled testimony.2 The ICA appointed
Tyree’s mother as guardian ad litem under Arizona Revised Statutes
(“A.R.S.”) section 23-1066.

¶12 Tyree did not appear at the time set for Dr. Schaller’s
testimony. The ALJ called Tyree’s contact number and, getting no response,
left a message. Banner’s counsel stated that Tyree had filed a document
with the ICA just a few days before mentioning a guardianship. The ALJ
noted there was “nothing filed in the [ICA] portal” and “nothing in the
[ICA] portal regarding any alleged guardianship motion.” The ALJ then
took testimony from Dr. Schaller without Tyree present.

2 Tyree signed and filed with the ICA a Petition for Rearrangement or

Readjustment of Compensation the same day and continued to file other
protests and hearing requests over the next several months.

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¶13 The ALJ issued an award concluding Tyree failed to prove he
lost earning capacity due to his work injury. The ALJ noted Tyree had not
“established that [he] could not return to the date-of-injury employer, there
was no good faith search for work, and there was no testimony from a labor
market expert.” The ALJ found Tyree was not a credible witness. He also
concluded the surveillance video depicted Tyree and corroborated Drs.
Kahn and Schaller’s conclusions that Tyree was capable of more activity
than he was claiming at the IME. In short, Tyree had failed to make a prima
facie case.

¶14 In response, Tyree filed an almost sixty-page request for
review alleging various errors that were either requests to re-weigh the
evidence or claimed procedural errors. The ALJ reconsidered the record
and summarily affirmed the award.

¶15 We have jurisdiction over this statutory special action under
A.R.S. §§ 12-120.21(A)(2) and 23-951(A), and Arizona Rules of Procedure
for Special Actions 21 through 26.

DISCUSSION

¶16 When reviewing an ICA award, we defer to the ALJ’s factual
findings but review legal questions de novo. Young v. Indus. Comm’n, 204
Ariz. 267, 270, ¶ 14 (App. 2003). Viewing the evidence in the light most
favorable to sustaining an award, we will affirm if the decision is
reasonably supported by the evidence. Lovitch v. Indus. Comm’n, 202 Ariz.
102, 105, ¶ 16 (App. 2002). The ALJ is empowered to resolve all conflicts in
the medical evidence, draw warranted inferences, and judge witness
credibility. See Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988);
Malinski v. Indus. Comm’n, 103 Ariz. 213, 217 (1968). An ALJ may reject
testimony that is inherently inconsistent and contradictory, or when
inferences can be drawn from other evidence that cast doubt upon the
credibility of such testimony. Wimmer v. Indus. Comm’n, 15 Ariz. App. 543,
544 (1971).

¶17 The injured employee bears the burden of establishing each
element of a claim. Yates v. Indus. Comm’n, 116 Ariz. 125, 127 (App. 1977).
Generally, when an injury would not be apparent to a layperson, expert
medical testimony must establish a causal connection between the accident
and the employee’s medical condition. Gutierrez v. Indus. Comm’n, 226 Ariz.
1, 3, ¶ 5 (App. 2010), aff’d in part, 226 Ariz. 395 (2011). To prevail on appeal,
Tyree must show no reasonable basis exists for the ALJ’s findings and the

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ALJ’s credibility determinations were wholly unreasonable. He has not
done this.

¶18 Once a permanent impairment is established, the ICA must
make an initial determination whether the injury has caused LEC. See
A.R.S. § 23-1047(A)-(B). If this determination is protested, the ICA’s initial
determination becomes a nullity and is of no evidentiary value. Le Duc v.
Indus. Comm’n, 116 Ariz. 95, 98 (App. 1977). The burden of proving LEC is
on a claimant, who must show an inability to return to the same work they
were doing on the date of injury. Landon v. Indus. Comm’n, 240 Ariz. 21, 26-
27, ¶ 18 (App. 2016). Once a claimant demonstrates that inability, the
claimant must then show that a good-faith effort was made to obtain other
suitable work or present testimony from a labor market expert establishing
the claimant’s earning capacity. Id. Having done that, the claimant has
made a prima facie case, and the employer must then go forward with
evidence showing the availability of suitable employment or a lack of causal
relationship between any LEC and the injury. Id. at 27, ¶ 18.

¶19 When determining LEC, “consideration shall be given,
among other things, to any previous disability, the occupational history of
the injured employee, the nature and extent of the physical disability, the
type of work the injured employee is able to perform after the injury, any
wages received for work performed after the injury and the age of the
employee at the time of injury.” A.R.S. § 23-1044(D). Medical expert
testimony is relevant to the causal relationship between an injury and the
resulting disability. Adkins v. Indus. Comm’n, 95 Ariz. 239, 243 (1964). But
medical experts cannot opine about whether a claimant is able to carry out
the skills of a particular job. Id. For that, a party must present a labor
market expert. See Tucson Steel Div. v. Indus. Comm’n, 154 Ariz. 550, 556
(App. 1987) (holding that a medical report provided medical input that
enabled the labor market expert to match more recent physical tolerances
from a medical condition with the requirements of specific jobs in the open
labor market, a match that constituted “suitability,” one of the elements of
earning capacity). These experts assist the ALJ in properly considering the
statutory factors and determining how the impairment affects earning
capacity.

¶20 We agree with the ALJ that Tyree failed to show the prima
facie elements of a claim for LEC. He offered no testimony about his efforts
after the closure of his claim to return to the same work he had been doing
at the time of his injury, either with or without accommodations. The
record contains medical records describing work restrictions for Tyree after
closure of the claim, but these descriptions do not causally relate the

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restrictions to the work injury. Without further foundation and explanation
from an expert, and in the face of contrary testimony from two expert
witnesses, these documents cannot support a conclusion that Tyree could
not work due to his work injury. A claimant must show that any LEC
results from the industrial injury and not some other condition. See Payton
v. Indus. Comm’n, 27 Ariz. App. 92, 95 (1976) (“The difficulty with this
contention is that there is no evidence which would support a finding that
any part of petitioner’s post-July 8, 1973 disability was actually caused by
the prior industrial injury.”). And Tyree offered no testimony about good-
faith efforts to return to some type of work upon closure of his claim.
Without that evidence, or a labor market expert to testify to his earning
capacity, his case fails as a matter of law.

¶21 Because the record shows Tyree failed to make a prima facie
case that he has an LEC, we need not address his many claimed errors on
appeal. Arizona Revised Statutes § 23-941(F) exempts ICA hearings from
formal rules of evidence or procedure, requiring only that the hearing
process achieve “substantial justice.” We have reviewed the record and see
no denial of substantial justice. Although Tyree alleges procedural errors
in the ICA proceedings, he raises no issue on appeal about the testimony of
Dr. Schaller proceeding in his absence. The ALJ also limited use of the
video surveillance footage, for which Tyree spends much energy in an
impeachment attempt, to corroborate the IME doctors’ conclusions that
Tyree was capable of more effort than he showed during the exam, a
conclusion they had reached independently from the video. We will not
reweigh the evidence. Wal-Mart v. Indus. Comm’n, 183 Ariz. 145, 146–47
(App. 1995). The award is supported by evidence in the record.

CONCLUSION

¶22 We affirm the award and decision upon review.

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

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