Tenet New Hampshire v. Klintz

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TENET HEALTH SYSTEM MEDICAL, Petitioner/Employer,

NEW HAMPSHIRE INSURANCE CO., Petitioner/Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

NICHOLAS KLINTZ, Respondent Employee.

No. 1 CA-IC 23-0026
FILED 05-21-2024

Special Action - Industrial Commission
ICA Claim No. 20211620309
Carrier Claim No. 30217412920-0001
The Honorable Colleen Marmor, Administrative Law Judge

AFFIRMED

COUNSEL

Pollart Miller, LLC, Phoenix
By Brad J. Miller, Jens D. Omdal
Counsel for Petitioners, Employer and Carrier

Industrial Commission of Arizona, Phoenix
By Afsham Peimani
Counsel for Respondent, ICA
Fendon Injury Law, PLLC, Phoenix
By Donna M. Fendon
Counsel for Respondent, Employee

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (ICA) award and decision upon review granting Nicholas Klintz
(Claimant) medical, surgical, and hospital workers’ compensation benefits
under A.R.S. § 23-1062(A). At issue is whether the administrative law judge
(ALJ) erred by determining that Claimant’s condition was not medically
stationary. Because sufficient evidence supports the ALJ’s findings and
award, we affirm.

BACKGROUND

¶2 On April 6, 2021, Claimant fell and was injured while working
as a pharmacy technician for Tenet Health System Medical (Employer).
Over the next few months, he received medical care, including diagnostic
imaging and physical therapy, for left leg and lower back pain. His doctors
concluded that the pain might stem from a nerve stretch injury or irritation.

¶3 In July 2021, Claimant submitted to an initial independent
medical examination (IME). The IME doctor recommended continued
conservative care for lumbar strain and lumbar sacral radiculopathy related
to the industrial accident.

¶4 Claimant returned to work not long after the IME, but with
significant restrictions. He continued to receive medical care but reported
no improvement.

¶5 In October 2021, Claimant switched his medical care to
neurosurgeon Dr. Abhishiek Sharma. Dr. Sharma saw Claimant six times
between October 2021 and May 2022, ultimately diagnosing him with
radiculitis caused by a nerve stretch injury and recommending that he
pursue surgery to implant a spinal-cord or nerve-specific stimulator.

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Dr. Sharma found that Claimant could not be considered medically
stationary until he received a trial stimulator and either (1) experienced
insufficient relief to justify the implantation of a permanent stimulator, or
(2) experienced sufficient relief to justify surgery to implant a permanent
stimulator. Dr. Sharma acknowledged that the Official Disability
Guidelines (which the ICA has adopted, see A.A.C. R20-5-1301) did not
support his surgical recommendation. However, he explained that the
Guidelines do not specifically address stretch injuries for radiculitis, that
the Guidelines lag behind Food and Drug Administration (FDA)
recommendations, and that his treatment plan was consistent with the FDA
recommendations and his practice. Surveillance records showing Claimant
lifting and bending did not change Dr. Sharma’s opinions.

¶6 Dr. Jon Zoltan, an orthopedic surgeon, conducted a
subsequent IME of Claimant in April 2022 and reached different
conclusions. Dr. Zoltan opined that the injuries Claimant sustained in the
industrial accident had resolved, that he had no nerve stretch injury, and
that he was medically stationary with a 3% permanent whole-person
impairment attributable to a lumbosacral strain. In Dr. Zoltan’s opinion,
nothing suggested that Claimant should pursue stimulator surgery. Based
on Dr. Zoltan’s IME, Employer’s insurance carrier, New Hampshire
Insurance Company (Carrier), closed Claimant’s workers’ compensation
claim with a permanent unscheduled disability.

¶7 At Claimant’s request, the ICA held a hearing on whether his
condition was medically stationary. After considering the conflicting
evidence, the ALJ adopted Dr. Sharma’s opinions and found that Claimant
had shown by a reasonable preponderance of credible evidence that he
needed further active medical care. Accordingly, the ALJ awarded
Claimant medical, surgical, and hospital workers’ compensation benefits.

¶8 On review, the ALJ corrected typographical errors but
otherwise affirmed the previous ruling. Employer and Carrier then brought
this special action.

DISCUSSION

¶9 Under A.R.S. § 23-1062(A), an employee injured in an
industrial accident is entitled to medical, surgical, and hospital workers’
compensation benefits reasonably required at the time of the injury and
during the period of disability. Those benefits cease, however, when the
claimant’s condition becomes medically stationary. See Tsosie v. Indus.
Comm’n, 183 Ariz. 539, 540 (App. 1995). A claimant has the burden to prove,

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by a preponderance of the evidence, a continued entitlement to benefits.
Brooks v. Indus. Comm’n, 24 Ariz. App. 395, 399 (1975).

¶10 A claimant’s condition is stationary if no further medical
treatment would improve his or her condition. Tsosie, 183 Ariz. at 541. The
inquiry focuses not on whether the claimant’s pain is stable or whether the
claimant needs supportive care, but on whether the underlying physical
condition can be changed. Cont’l Cas. Co. v. Indus. Comm’n, 23 Ariz. App.
294, 296 (1975). Equivocal medical testimony—that is, testimony that is
ambiguous or noncommittal—cannot support a finding that the claimant’s
condition is non-stationary. Rosarita Mexican Foods v. Indus. Comm’n, 199
Ariz. 532, 536, ¶ 13 (App. 2001). The ALJ may disregard medical testimony
indicating that further treatment is merely possible rather than required.
See Janis v. Indus. Comm’n, 27 Ariz. App. 263, 265 (1976).

¶11 It is the ALJ’s duty to resolve conflicts in the medical
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 factual findings, viewing the evidence in the light most
favorable to affirming. Avila v. Indus. Comm’n, 219 Ariz. 56, 57, ¶ 2 (App.
2008). We will reverse only if the ALJ’s decision is unsupported by any
reasonable theory of the evidence. Carousel Snack Bar, 156 Ariz. at 46.

¶12 The ALJ was presented with two conflicting medical opinions
regarding whether Claimant was medically stationary, and, in resolving
that conflict, adopted Dr. Sharma’s opinion instead of Dr. Zoltan’s.
Employer and Carrier argue that Dr. Sharma’s opinion is based on
subjective complaints and inconclusive diagnostic exams. Evidence belies
this argument. Dr. Sharma (unlike Dr. Zoltan) examined Claimant multiple
times, personally reviewed his diagnostic imaging, used medical
intervention and symptomology to rule out alternate diagnoses, and
ultimately arrived at a diagnosis similar to that hypothesized by previous
providers. This includes the doctor who conducted the July 2021 IME.

¶13 Though Employer and Carrier emphasize that Dr. Sharma’s
treatment recommendation was not in the Guidelines, Dr. Sharma—an
experienced neurosurgeon—explained that this was because the
Guidelines do not address Claimant’s type of injury. He then explained that
his recommendation was supported by the FDA and his practice.

¶14 The Guidelines create a presumption of what constitutes
reasonable medical care, but that presumption may be rebutted by
documentation and justification that shows by a preponderance of credible

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medical evidence—which may include clinical expertise and
judgment—that there is a medical basis for a deviation. A.A.C. R20-5-
1301(H). On this record, inconsistency with the Guidelines did not render
Dr. Sharma’s opinions inherently unreasonable. The ALJ did not err by
adopting those opinions.

¶15 Employer and Carrier argue that Dr. Sharma’s
recommendation to pursue surgery was equivocal and described only a
possible intervention, not required treatment. That argument is contrary to
the evidence. Dr. Sharma testified unambiguously that he recommended
pursuing surgery because he believed it was Claimant’s only option to
reach a medically stationary state. The ALJ did not err by concluding that
Claimant had proved by a preponderance of the evidence his continued
entitlement to benefits under A.R.S. § 23-1062(A).

CONCLUSION

¶16 We affirm the ICA award as corrected upon review. In our
discretion, we deny Claimant’s request for attorney’s fees under A.R.S.
§ 12-349.

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

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