Opinion
No. 2 CA-IC 2020-0004
10-27-2020
G4S SECURE SOLUTIONS, Petitioner Employer, NEW HAMPSHIRE INS., CO., Petitioner Insurer, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, DORA PUENTE, Respondent Employee.
COUNSEL Wright Welker & Pauole PLC, Phoenix By Linnette R. Flanigan and Shannon A. Lindner Counsel for Petitioners Employer and Insurer The Industrial Commission of Arizona, Phoenix By Gaetano Testini Counsel for Respondent Brian Clymer Attorney at Law, Tucson By Laura Clymer Counsel for Respondent Employee
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NOT FOR PUBLICATION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. 20173-470456
Insurer No. 000891-103916-WC-01
Gary M. Israel, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Wright Welker & Pauole PLC, Phoenix
By Linnette R. Flanigan and Shannon A. Lindner
Counsel for Petitioners Employer and Insurer
The Industrial Commission of Arizona, Phoenix
By Gaetano Testini
Counsel for Respondent
Brian Clymer Attorney at Law, Tucson
By Laura Clymer
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred.
BREARCLIFFE, Judge:
¶1 In this statutory special action, petitioners G4S Secure Solutions and its workers' compensation insurer, New Hampshire Insurance Company (collectively "G4S"), challenge the award of the administrative law judge (ALJ) granting respondent Dora Puente's request for reimbursement of certain medical expenses. G4S contends that the ALJ: (1) arbitrarily found Puente's medical treatment causally related to the industrial incident; (2) "erred by accepting foundationally flawed medical testimony"; and (3) erred in finding G4S was precluded from denying liability for Puente's surgery. For the following reasons, we affirm the award.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to affirming the ALJ's findings and award. Polanco v. Indus. Comm'n, 214 Ariz. 489, ¶ 2 (App. 2007). In November 2017, Puente fell and injured her knees while working for G4S. Her claim for workers' compensation benefits was accepted. Puente underwent physical therapy before she was referred to Dr. James Hess for an orthopedic evaluation because she continued to suffer significant, ongoing pain. Hess examined Puente in January 2018 and his medical impression was that she suffered from acute aggravation of underlying degenerative joint disease. He ordered Puente to resume physical therapy, gave her a steroid injection in her left knee, and prescribed a topical analgesic. Hess also instructed Puente to "[a]void
stairs, ladders, deep knee bends and squats" and "prolonged standing over 15 to 20 minutes" at work.
¶3 Dr. Hess saw Puente again the following month. Citing the physical therapist's comment that he had "maxed out" what he could do for Puente and her continuing pain, Hess recommended an arthroscopy of her left knee. Puente underwent the arthroscopy on March 20, 2018. Hess's post-operative diagnosis was "[g]rade 3, early grade 4 chondromalacia, weightbearing surface, medial femoral condyle, proximal medial tibial plateau" and an "[i]ntact medial meniscus." In April 2018, two weeks after the surgery, G4S issued a Notice of Claim Status ("NCS") which accepted the claim, enclosed a check as compensation for the period of March 20, 2018 through April 2, 2018, and determined Puente's average monthly wage.
¶4 Puente followed up with Dr. Hess after the surgery and Hess released her to "light duty" work beginning on April 12, 2018, although he still instructed her to avoid stairs, ladders, deep-knee bends, and squats. G4S then issued another NCS reflecting the change to "light duty" work. Puente continued her follow-up care with Hess from May 2018 through January 2019.
¶5 At an October 2018 appointment, Dr. Hess documented Puente's injury as "stable and stationary" with no "significant impairment," noted "a lot of preexisting issues," and released her to regular duty at work. Hess also noted that Puente would "probably eventually . . . need a total knee replacement." Following this appointment, G4S issued two additional notices; one, an NCS, closed Puente's claim for active medical treatment with no permanent disability, and the other provided notice of supportive medical maintenance benefits, authorizing three office visits, two steroid injections, and prescription refills. Puente protested the claim closure, stating she had suffered permanent impairment from the injury and required further active medical treatment, and requested a hearing with the Industrial Commission pursuant to A.R.S. §§ 23-941 and 23-947.
¶6 The Industrial Commission hearing on Puente's claim was held on May 14 and August 28, 2019. Each side presented medical testimony. Dr. John Meaney, an orthopedic surgeon, testified that he had examined Puente on February 5, 2019. Based on his examination and review of Puente's medical records, Meaney opined that Puente had pre-existing arthritis that was "definitely aggravated by [the industrial] injury." Additionally, Meaney testified that Dr. Hess performed the March 2018
surgery after all prior conservative treatment options had failed to treat Puente's injury. Because that surgery was unsuccessful as well, Meaney said the only remaining option was a total knee replacement.
¶7 Dr. Amit Sahasrabudhe—also an orthopedic surgeon—conducted an independent medical exam ("IME") on Puente in April 2019. Based on his IME and review of her medical records, Sahasrabudhe concluded that Puente's fall resulted in a "temporary exacerbation of an underlying pre-existing severe arthritic condition." Sahasrabudhe testified that Dr. Hess's arthroscopy was unnecessary and unrelated to the treatment of Puente's industrial injury. Further, Sahasrabudhe stated that, while he would need more information to give an opinion on whether Puente needed a total knee replacement, he would be "extremely hesitant to recommend a total knee arthroplasty" because the "exam findings [were] somewhat questionable."
¶8 The ALJ closed the record at the conclusion of the August 2019 hearing. In his November 2019 Decision Upon Hearing, the ALJ found Dr. Meaney's reports and opinions "most probably correct and well-founded." The ALJ also found that Dr. Hess's surgery was "causally related" to the industrial accident in light of G4S's issued NCS's, which precluded G4S from denying liability. The ALJ awarded continuing medical and compensation benefits until Puente's knee condition is determined to be medically stationary.
¶9 In December 2019, G4S filed a Request for Review. In his January 2020 Decision Upon Review, the ALJ affirmed the findings and award. 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. Act.
Analysis
Causation
¶10 G4S first contends the ALJ arbitrarily found Puente's arthroscopic surgery by Dr. Hess to be causally related to the industrial incident. "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). "Claimants bear the burden of establishing all material elements of their claim, including causation and, in [Industrial Commission] cases, the necessary connection to a work-related
injury." T.W.M. Custom Framing v. Indus. Comm'n, 198 Ariz. 41, ¶ 12 (App. 2000).
¶11 G4S argues the ALJ's decision was arbitrary because the only evidence the ALJ had regarding the arthroscopic surgery was Dr. Sahasrabudhe's testimony that the surgery and the industrial injury were not causally related. And, because Sahasrabudhe's testimony was uncontroverted, G4S asserts the ALJ arbitrarily found a causal relationship. However, there was conflicting medical testimony regarding causation. While Sahasrabudhe opined that the surgery was not causally related to the industrial injury, Dr. Meaney testified that the industrial injury and the subsequent surgery related to that injury contributed to the aggravation of Puente's arthritis. The ALJ concluded that Meaney's opinion was "probably correct and well-founded," taking into consideration that "Meaney relie[d] on the effect of the Dr. Hess surgery, as well as the industrial injury itself" in making his conclusion, while Sahasrabudhe "seemed to rely in part on the lack of causal relationship of Dr. Hess's surgery."
¶12 It is the ALJ's responsibility to resolve conflicting medical evidence, and the ALJ's determination will only be set aside if it is wholly unreasonable. Ortega v. Indus. Comm'n, 121 Ariz. 554, 557 (App. 1979). An "[ALJ] is the sole judge of witness credibility." Holding v. Indus. Comm'n, 139 Ariz. 548, 551 (App. 1984). The ALJ here resolved the conflicting medical evidence regarding Puente's arthroscopic surgery by weighing the credibility of the witnesses' testimony and considering evidence in the record. To the extent G4S is asking us to reweigh the evidence, we will not. See Simpson v. Indus. Comm'n, 189 Ariz. 340, 342 (App. 1997). The ALJ's findings of fact are supported by competent evidence in the record, and therefore we affirm. See City of Tucson, 236 Ariz. 52, ¶ 6.
Foundation for Medical Testimony
¶13 In a related argument, G4S contends that Dr. Meaney "lacked a complete factual background and based his opinion on inaccurate information," and thus the ALJ erred by accepting "foundationally flawed medical testimony." We disagree.
¶14 G4S claims Dr. Meaney did not review Puente's medical records from Arizona Community Physicians or Tucson Orthopaedic Institute, or "the actual MRI images" from December 2016. G4S further claims that he relied on Puente's statement that "she was asymptomatic at the time of the industrial injury." The record demonstrates that Meaney
relied on the notes from a doctor who had treated Puente earlier, Dr. Hess's operative report and office notes, an MRI and x-rays of Puente's knee, Dr. Sahasrabudhe's IME report, and his own physical examination of Puente in February 2019.
¶15 As stated above, the ALJ is the "sole judge of witness credibility," Holding, 139 Ariz. at 551, and his resolution of any conflicting medical evidence is only set aside if "wholly unreasonable," Ortega, 121 Ariz. at 557. We do not find it wholly unreasonable that the ALJ determined Dr. Meaney's testimony, and the information he based his testimony on, to be "well-founded" and "probably correct." We cannot therefore conclude that the ALJ erred in relying on Meaney's medical testimony.
Claim Preclusion
¶16 G4S finally contends the ALJ erred in finding it was precluded from denying liability for the arthroscopic surgery because its NCS served as an acceptance of the claim. "[T]he applicability of preclusion is a mixed question of fact and law." Bayless v. Indus. Comm'n, 179 Ariz. 434, 439 (App. 1993). We "apply a deferential standard of review to the determination of disputed facts supported by reasonable evidence, and apply an independent standard of review to the ultimate determination of whether these facts trigger preclusion." Miller v. Indus. Comm'n, 240 Ariz. 257, ¶ 9 (App. 2016); see also Bayless, 179 Ariz. at 439.
¶17 "'Claim preclusion' occurs when a party has brought an action and a final, valid judgment is entered after adjudication or default." Circle K Corp. v. Indus. Comm'n, 179 Ariz. 422, 425 (App. 1993). This will bar relitigation of "issues that could have been litigated," as well as issues that have been litigated. Aldrich v. Indus. Comm'n, 176 Ariz. 301, 307 (App. 1993); see also Miller, 240 Ariz. 257, ¶ 8 ("Claim preclusion bars relitigation of the same claim, i.e., preclusion of matters actually decided or that could have been decided after a timely protest."). In workers' compensation proceedings, carriers are precluded from contesting elements of a claim once there has been a final acceptance of the claim. See Aldrich, 176 Ariz. at 307 (insurance company could not contest compensability after accepting claim in NCS when it could have denied claim). Preclusion allows for finality. See Circle K Corp., 179 Ariz. at 426 (one purpose of claim preclusion in workers' compensation is "finality in litigation"). "[T]he determination by the commission, insurance carrier or self-insuring employer is final and res judicata to all parties" if a request for a hearing is not filed within ninety days of the NCS being issued. See A.R.S. § 23-947.
¶18 G4S claims it should not have been precluded from contesting liability for the surgery based on its issued NCS's because neither of the NCS's explicitly accepted liability for Puente's surgery. G4S claims that the two "[NCS's] are res judicata only to the issues addressed therein," and "nothing in the notices accepts liability for the Hess arthroscopy."
¶19 Puente only requested a hearing as to the November 2018 NCS closing her claim. Because no request for hearing was filed regarding the April 2018 NCS related to the arthroscopic surgery, that NCS was final pursuant to § 23-947(B). We are not persuaded by G4S's argument that claim preclusion only applies to the issues expressly addressed in the NCS. Claim preclusion applies to both matters that have been and that could have been decided. See Miller, 240 Ariz. 257, ¶ 8. Rather than issuing the April NCS, G4S could have denied Puente's claim or, at a minimum, undertaken an investigation into the causal relationship between the surgery and the industrial injury. However, it did not do so. Instead, it accepted Puente's claim with the date of the surgery encompassed within the time period for which Puente would be compensated. Because the April 2018 NCS was final under § 23-947(B), and G4S could have litigated liability for the surgery but did not do so, claim preclusion applied and the ALJ did not err.
Disposition
¶20 For the foregoing reasons, we affirm the award.