Opinion
No. 1 CA-IC 14-0093
12-08-2015
MARTHA J. DUNCAN, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, THE BABY'S ROOM, Respondent Employer, COPPERPOINT MUTUAL INSURANCE COMPANY, Respondent Carrier.
COUNSEL Martha J. Duncan, Phoenix Petitioner CopperPoint Mutual Insurance Company, Phoenix By Deborah E. Mittelman Counsel for Respondent Employer and Respondent Carrier
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Special Action - Industrial Commission
ICA Claim No. 0000P067184
Carrier Claim No. 8231343
The Honorable Layna Taylor, Administrative Law Judge
AFFIRMED
COUNSEL
Martha J. Duncan, Phoenix
Petitioner
CopperPoint Mutual Insurance Company, Phoenix
By Deborah E. Mittelman
Counsel for Respondent Employer and Respondent Carrier
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.
GOULD, Judge:
¶1 In 1983, Duncan was employed as a manager at "The Baby's Room", a baby furniture store. While at work she moved some furniture in the warehouse, twisted her lower back, and immediately experienced pain. Doctors initially attempted to treat her injury with conservative treatment. However, after months of no marked improvement, Duncan had surgery on her lower back. The surgery did not fix her back injury and, unfortunately she developed abdominal, urinary, and bladder problems as a result of the surgery. In 1985, an ALJ found her urinary problem compensable.
¶2 In 1988, Duncan's doctors recommended she undergo a second back surgery. This surgery proved to be more successful than her first, and her condition improved dramatically. However, during Duncan's recovery she "took a wrong step" and re-aggravated her back injury. As a result, at the end of 1989 she underwent a third back surgery.
¶3 In 1992, the State Compensation Fund attempted to close Duncan's claim, and, in response, she requested a hearing. Following the hearing, the Administrative Law Judge ("ALJ") entered an award essentially adopting the parties' stipulation that Duncan had bowel problems related to her industrial injury; her industrial injury was stationary effective December 7, 1992, with a permanent impairment; and that Duncan required supportive care for her back and urologic and bowel problems caused by her surgery.
¶4 In 1993, Duncan filed another petition to reopen her claim. The ALJ eventually entered a supportive care award continuing to provide benefits for Duncan's back, urologic and bowel conditions, and adding supportive care for headaches related to her industrial injury.
¶5 By 1995 it was clear that Duncan's 1989 surgery was not successful, and she would need a fourth surgery. During the fourth surgery, which occurred in October 1995, the surgeon made an incidental
Dural tear in Duncan's spine. The surgeon was later able to repair the tear; however, after the surgery Duncan developed headaches, dizziness, difficulty ambulating, and blurry vision.
¶6 In 1997, the State Compensation Fund requested Duncan participate in a group IME exam. Based on the IME, the State Compensation Fund attempted to close Duncan's claim; in response, Duncan requested a hearing.
¶7 In 1998, before the hearing, the parties entered a stipulation regarding Duncan's benefits. The ALJ approved the stipulation and entered an order (the "1998 Award") stating that Duncan would receive total disability compensation benefits and the following supportive care benefits:
A. 12 office visits per year with Bruce H. Shelton, M.D. and medications as recommended by that physician.
B. 3-4 office visits per year with Howard Ginsburg, M.D. and medication and diagnostic testing as recommended that physician (sic).
C. 12 office visits per year with John C. Porter, M.D. and medications, diagnostic testing, blocks, physical therapy, micro TENS or TENS units or combination thereof, home equipment, and a chronic pain out-patient program as recommended by that physician.
D. Psychological counseling with Gloria M. Malone, Ph.D. which shall consist of twice a week office visits.
E. A consultation with a neurologist and urologist and office visits, medications, supplies, and diagnostic testing as recommended by those physicians.
¶8 The 1998 Award also provided that "[t]he Defendants are not precluded from having the Applicant examined by a physician or physicians of their choice at any time regarding the propriety of any of the care awarded herein."
¶9 In 2012, the State Compensation Fund exercised its right under the 1998 Award to have Duncan examined, and without objection, she attended a group IME with six physicians. The IME physicians included neurologist Leo Kahn, M.D.; orthopedic spine surgeon, Paul
Palmer, M.D.; board-certified anesthesiologist and pain management specialist Carol Peairs, M.D.; urologist Andrew Presto, M.D.; internal medicine specialist Ernie Riffer, M.D.; and psychiatrist Mary M. Desch, M.D.
¶10 The IME doctors agreed with portions of Duncan's 1998 Award. However, the IME doctors also determined that several of her conditions and medications were unrelated to her back injury and related surgeries, and, as result, should not be included in her supportive care award.
¶11 After the Industrial Commission received the results of the IME, it reduced Duncan's supportive care benefits. In response, Duncan requested a hearing regarding the reduction in benefits. See A.R.S. § 23-1061(J). The ALJ granted Duncan's request, and an evidentiary hearing was conducted on six separate dates in 2013 and 2014. During the hearing, several physicians testified, including IME doctors Peairs, Kahn and Desch. In addition, Duncan's treating psychologist and her two treating physicians also testified.
¶12 Dr. Bruce Shelton, M.D., Duncan's long time treating physician, testified about her current overall medical condition, medications, and how they related to her industrial injury. Specifically, he testified that he prescribed Imitrex for her headaches; Soma for her muscle spasms and pain; Ativan to control her anxiety, hypertension, and pain; Cardizen for her hypertension; Nystatin for her chronic yeast problems; and Percocet to control her pain. Dr. Shelton testified that Duncan's conditions were caused by her industrial injury and related surgeries, and that each of the prescribed medications and dosages were reasonable and necessary to treat those conditions.
¶13 Dr. Peairs disagreed with some of Dr. Shelton's opinions. Specifically, she testified that Soma and Ativan were not appropriate treatment options for Duncan's chronic pain. Furthermore, she testified that no evidence of chronic yeast infections had been presented to her, and, as such, Nystatin was not medically necessary. Finally, although Dr. Peairs agreed that Duncan's condition required the use of Percocet, she believed Duncan's current dosage was too high and needed to be reduced.
¶14 John Porter, M.D., a board certified physician in physical medicine, rehabilitation, and pain management, who had treated Duncan for many years, also testified at the hearing. He explained that his main role in Duncan's long term care was to diagnose her physical therapy needs,
her durable medical equipment needs, and her other miscellaneous needs. Taking into account her medical history, he opined that Duncan might benefit from altering her pain medication regimen. Specifically, he opined Duncan could benefit from a decrease in her Tylenol consumption by replacing some of her Percocet with Oxycodone. He also stated that he might taper her Soma intake at some unspecified time in the future. Additionally, he recommended physical therapy to upgrade her mobility, improve her gait and instability, and for her to establish a home exercise program.
¶15 Dr. Kahn evaluated Duncan's headaches, dizziness, and the medications prescribed to treat those conditions. He testified that he did not believe her headaches were related to her industrial injury for two primary reasons. First, her original injury did not include a head injury. Second, the type of headaches Duncan described were not consistent with the type of headaches that would have been caused by her 1995 back surgery.
¶16 Gloria Malone, Ph.D., Duncan's treating psychologist, testified that Duncan had physical problems due to her back condition and related surgeries, PTSD, and increased stress from the hearing process. Dr. Malone recommended Duncan have psychological visits twice per week to deal with her condition.
¶17 Finally, Dr. Desch testified that Duncan met the diagnostic criteria for Pain Disorder with both Associated Psychological Factors and General Medical Conditions. However, contrary to Dr. Malone's diagnosis, Dr. Desch did not diagnose Duncan with PTSD. After considering Duncan's history and conducting a full examination, Dr. Desch concluded that Duncan did not need any further supportive psychological medical care.
¶18 At the conclusion of the hearing, the ALJ adopted the opinions of the IME doctors and modified Duncan's supportive care award as follows:
A. Percocet in a dosage not to exceed 2 grams per day, or an alternative pain medication regimen such as proposed by Dr. Porter in February 2013.
B. Laxatives to address constipation due to opioid medications.
C. A physical therapy program as described by Dr. Porter and under his direction and review, with such office visits with the applicant as are necessary to address her physical therapy needs and transition to a home program. The Caring Touch home physical therapy is a part of that program so long as Dr. Porter believes it is medically necessary.
D. Ativan and Soma are not medically necessary treatment for the industrial injury and Applicant is to be weaned as recommended by Dr. Desch and Dr. Peairs.
E. Applicant's present headaches are not due to the industrial injury and Imitrex is not an industrial responsibility.
F. Nystatin is not medically necessary treatment related to the industrial injury.
G. No further supportive care for psychological treatment.
In response to the ALJ's award, Duncan filed a Request for Review and attempted to provide the ALJ with additional letters from her doctors. The ALJ precluded the letters and affirmed the ALJ's supportive care award. See Epstein v. Indus. Comm'n, 154 Ariz. 189, 195 (App. 1987), citing Wood v. Indus. Comm'n, 126 Ariz. 259, 262 (App. 1980) ("As a general rule, the fact-finding process in workers' compensation claims ends at the conclusion of the last scheduled hearing."). Duncan timely petitioned for Special Action review.
Discussion
¶19 On appeal, the parties agree that based on the evidence presented at the hearing, Duncan requires ongoing, supportive care. The parties disagree, however, about what the evidence shows regarding the level of care that Duncan needs and the relationship between her conditions and her industrial injury.
¶20 We view the evidence and all reasonable inferences therefrom "in the light most favorable to sustaining the findings and award if it is based upon any reasonable interpretation of the evidence." Rent A Ctr. v. Indus. Comm'n, 191 Ariz. 406, 407 (App. 1998); Carousel Snack Bar v. Indus. Comm'n, 156 Ariz. 43, 46 (1988). We will uphold the ALJ's decision absent an abuse of discretion. Ford v. Indus. Comm'n, 145 Ariz. 509, 519 (1985).
¶21 When an industrial injury occurs, the injury is treated with an active care award, a supportive care award, or both. An active care award provides "treatment for a non-stationary condition that will improve that condition." Tarpy v. Indus. Comm'n, 138 Ariz. 395, 397 n.1 (App. 1983). A supportive care award prevents or reduces "the continuing symptoms of an industrial injury after the injury has become stabilized." Brown v. Indus. Comm'n, 199 Ariz. 521, 524 ¶ 14 (App. 2001). "The Arizona Workers' Compensation Act does not specifically authorize awards of supportive medical benefits . . . Nonetheless, the propriety of granting such benefits has been recognized where a continuing need for such care is causally related to the industrial injury." Capuano v. Indus. Comm'n, 150 Ariz. 224, 226 (App. 1986).
¶22 However, before the claimant can receive a supportive care award, they must prove all of the elements of their claim by a preponderance of the evidence. Emp'rs Mut. Liab. Ins. Co. v. Indus. Comm'n, 115 Ariz. 439, 443 (App. 1997). Additionally, ". . . the claimant ha[s] the burden of proving the continuing industrial effect upon the condition in order to be entitled to future [supportive care] benefits." Capuano, 150 Ariz. at 226. A carrier's voluntary payment of supportive care benefits does not bar its request for a later determination whether a claimant's current condition is still causally related to the industrial injury. Id. at 227.
¶23 Thus, a claimant is entitled to request a hearing pursuant to A.R.S. § 23-1061(J) when the carrier reduces or denies her supportive care benefits, and at that hearing the burden is on the claimant to establish that she is still entitled to receive those benefits. A.R.S. § 23-1061(J). In proving a claim for supportive care, if the condition at issue is not readily apparent to laymen, the existence of the condition and its causation are issues that require expert medical testimony. Yates v. Indus. Comm'n, 116 Ariz. 125, 128 (1977). Additionally, we must affirm the ALJ's resolution of conflicting medical testimony if it is reasonably supported by the evidence. Carousel Snack Bar v. Indus. Comm'n, 156 Ariz. 43, 46 (1988).
¶24 At the hearing, each party presented expert medical testimony regarding Duncan's current condition, her treatment needs, and how her current condition relates to her industrial injury and subsequent corrective surgeries. Based on the evidence presented at the hearing, the ALJ adopted the opinions of the IME doctors and reduced Duncan's supportive care award. Our review of the record shows that the ALJ's findings are supported by the record. Accordingly, we affirm the ALJ's award.
¶25 We recognize that Duncan did not have the benefit of counsel at the hearing, and that she has suffered for many years from severe pain that has, tragically, greatly reduced her quality of life. However, we cannot substitute our judgment for the ALJ's and reweigh the evidence regarding her supportive care. We do note, however, that if, under the current supportive care award, Duncan experiences "new, additional or previously undiscovered" conditions that are accompanied by "objective physical findings," she may seek to reopen her claim pursuant to A.R.S. § 23-1061(H). Additionally, with an appropriate medical report, Duncan can request additional supportive care benefits by requesting a hearing under A.R.S. § 23-1061(J).
¶26 Finally, the current award does not expressly address all of the supportive care listed in the 1998 Award. The current award focuses on reducing the narcotics Duncan was taking for pain; it also discontinues her psychological treatments. The current award also authorizes continued treatment with Dr. Porter for the purpose of overseeing her "alternative pain medication regimen" and addressing "her physical therapy needs." However, it is silent regarding some of the other supportive care listed in the 1998 Award. For the reasons above, we affirm the award to the extent it supersedes the 1998 award.
Conclusion
¶27 For the reasons above, we affirm.