Opinion
No. 2 CA-IC 2018-0008
12-19-2018
JESSE COTA, Petitioner/Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, THE PRODUCE EXCHANGE, INC., Respondent Employer, TRAVELERS INDEMNITY COMPANY, Respondent Carrier.
COUNSEL Jesse Cota, Nogales In Propria Persona The Industrial Commission of Arizona, Phoenix By Stacey Rogan Counsel for Respondent Hoffman Kelley Lopez LLP, Scottsdale By Carolanne D. McCaskill Counsel for Respondent Employer/Carrier
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Spec. Act. 10(k).
Special Action - Industrial Commission
ICA Claim No. 20171-420182
Insurer No. 127-CB-E601344-M
Gary M. Israel, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Jesse Cota, Nogales
In Propria Persona
The Industrial Commission of Arizona, Phoenix
By Stacey Rogan
Counsel for Respondent
Hoffman Kelley Lopez LLP, Scottsdale
By Carolanne D. McCaskill
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred.
BREARCLIFFE, Judge:
¶1 In this statutory special action, petitioner Jesse Cota challenges the Industrial Commission's April 2, 2018 decision and award denying him supportive care and permanent compensation benefits for his industrial injury and its decision upon review affirming that decision and award. We affirm.
Issue
¶2 Cota contends that the Administrative Law Judge (ALJ) erred in denying him supportive care and permanent compensation benefits for an industrial injury that occurred in February 2017. His employer, The Produce Exchange, Inc. and its workers' compensation carrier, Travelers Indemnity Company, contend the ALJ's decision was reasonably supported by the evidence and Cota failed to meet his burden of proof. The issue is whether the ALJ's finding was reasonably supported by the evidence.
Factual and Procedural History
¶3 We view the facts in the light most favorable to upholding the award. Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 2 (App. 2012). On February 23, 2017, Cota sustained an industrial injury to his left wrist working for The Produce Exchange in its warehouse. Travelers Indemnity Company, which provides The Produce Exchange with its workers' compensation insurance, accepted Cota's claim for benefits. The claim was closed effective August 21, 2017, with a finding of no permanent injury. On
September 6, 2017, Cota requested a hearing. At the hearing, the ALJ heard testimony from Cota and his treating physician, Dr. Camela Pokhrel, as well as from Dr. Peter Campbell, who performed an independent medical examination (IME). The ALJ then determined the facts which follow.
¶4 Cota's injury occurred when he reached overhead for a thirty-pound box, slipped, and hyperextended his wrist. Cota first saw his primary care physician, Dr. Jeffrey Maudlin, who cleared him to return to work with the restriction that he lift no more than 20 pounds. Dr. Maudlin then referred him to Dr. Pokhrel, a board certified hand surgeon. Dr. Pokhrel diagnosed him with wrist pain, de Quervain's tenosynovitis in his left wrist, and carpal boss, and treated him with steroid injections. An MRI scan showed other injuries that Dr. Pokhrel could not conclude were causally related to the workplace accident. Dr. Pokhrel continued to treat Cota for several months and diagnosed his wrist pain and de Quervain's tenosynovitis medically stationary as of October 3, 2017.
¶5 Dr. Campbell, a board certified orthopedic surgeon, then examined Cota, and reviewed his medical records, MRI scan, and surveillance video of Cota. Dr. Campbell determined a causal relationship existed between the accident and Cota's de Quervain's tenosynovitis, which was resolved following the steroid injections. He determined that the carpal boss was a pre-existing condition and that there was no need for additional treatments or work restrictions based on the workplace accident. Dr. Campbell opined that Cota's continuing complaints were consistent with embellishment and not causally related to the workplace accident. Dr. Campbell reported that his review of the surveillance video, showing Cota not favoring his left hand but using it normally, was consistent with his concerns of "symptom magnification and functional embellishment." Dr. Pohkrel agreed with Dr. Campbell's opinion that Cota's de Quervain's tenosynovitis was medically stationary, and she otherwise "did not disagree with any of Dr. Campbell's opinions."
¶6 On April 3, 2018, the ALJ issued a Decision Upon Hearing and Findings and Award for Temporary Disability Benefits. The ALJ adopted the opinion of Dr. Campbell as "being the most probably correct and well-founded," also noting that the surveillance video supported the doctor's conclusion. The ALJ found Cota's left de Quervain's tenosynovitis, resulting from the workplace accident, "was medically stationary as of August 21, 2017 and there was no permanent impairment." The ALJ found Cota was entitled to "temporary total and/or temporary partial disability compensation and to medical, surgical, and/or hospital benefits, all to the extent provided by law, from February 25, 2017 through August 21, 2017,"
but not entitled to supportive care or permanent compensation benefits. Cota filed a request for review. The ALJ affirmed the award on May 25, 2018. This special action followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10, Ariz. R. P. Spec. Actions.
Analysis
¶7 "We will not disturb an ALJ's findings of fact [in a workers' compensation proceeding] so long as the findings are substantiated by competent evidence." City of Tucson v. Indus. Comm'n, 236 Ariz. 52, ¶ 6 (App. 2014). The ALJ, and not this court, is in the best position to resolve issues of credibility and consistency of evidence. S.L.C. Leasing v. Indus. Comm'n, 25 Ariz. App. 366, n.* (1975).
¶8 To receive continuing medical benefits, a claimant has the burden of proving that his physical condition is causally related to his industrial injury and that he was not yet medically stationary. Aguayo v. Indus. Comm'n, 235 Ariz. 413, ¶ 10 (App. 2014). Here, Cota has not shown the ALJ erred in finding he failed to meet his burden of proving that his unresolved injury—the carpal boss—is causally related to his industrial injury. In fact, Cota presented no evidence at all to that effect in the proceedings below. We have otherwise reviewed the record and conclude the ALJ correctly applied the facts to the law in its well-reasoned award, which we accordingly adopt. Cf. State v. Whipple, 177 Ariz. 272, 274 (App. 1993), see also Jesus M. v. Arizona Dep't of Econ. Sec., 203 Ariz. 278, ¶ 16 (App. 2002) (extending Whipple to juvenile dependency cases).
Disposition
¶9 For the aforementioned reasons, we affirm the ALJ's decision and award denying Cota supportive care and permanent compensation benefits for his industrial injury, as well as his decision after review affirming that award.