Opinion
No. 2 CA-IC 2018-0010
02-01-2019
BRIAN K. HALL, Petitioner/Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, SKANSKA CIVIL WEST ROCKY MOUNTAIN DISTRICT, Respondent Employer, ZURICH AMERICAN, Respondent Carrier.
COUNSEL Law Office of Eric C. Awerkamp, Mesa By Eric C. Awerkamp Counsel for Petitioner Employee The Industrial Commission of Arizona, Phoenix By Stacey Rogan Counsel for Respondent Norton & Brozina P.C., Phoenix By Rachel P. Brozina and Melinda K. Poppe 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NOT FOR PUBLICATION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. 20131-960043
Insurer No. 2010226163001
Gaetano J. Testini, Administrative Law Judge
AWARD AFFIRMED
COUNSEL Law Office of Eric C. Awerkamp, Mesa
By Eric C. Awerkamp
Counsel for Petitioner Employee The Industrial Commission of Arizona, Phoenix
By Stacey Rogan
Counsel for Respondent Norton & Brozina P.C., Phoenix
By Rachel P. Brozina and Melinda K. Poppe
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 In this statutory special action, petitioner Brian Hall challenges the Industrial Commission Administrative Law Judge's (ALJ) May 18, 2018 decision and award denying him supportive medical maintenance benefits for his industrial injury and the ALJ's decision upon review affirming that decision and award. We affirm.
Issue
¶2 Hall contends that the ALJ erred in denying him supportive medical maintenance benefits—namely, radiofrequency ablation (RFA) treatment for his back—related to an industrial injury that occurred in June 2013. His employer, Skanska Civil West Rocky Mountain District (Skanska), and its workers' compensation carrier, Zurich American Insurance Company (Zurich), contend the ALJ's decision was reasonably supported by the evidence. The issue is whether the ALJ's finding was reasonably supported by the evidence.
The parties filed a joint motion in which Hall withdrew his first argument on appeal that the ALJ had erred by denying previously approved RFA treatments.
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 June 24, 2013, Hall sustained injuries to his back and left knee when he became pinned between three steel beams weighing 3,500 pounds each. His injuries included compression fractures to his T12 and L1 vertebra. Zurich, which provides his employer, Skanska, with its workers' compensation insurance, accepted Hall's claim for benefits. In September 2014, Zurich issued a Notice of Claim Status closing his claim for active and temporary medical care effective August 5, 2014 with a permanent disability. The same day, Zurich issued a Notice of Supportive Medical Maintenance Benefits, which stated that the award of supportive medical maintenance benefits would expire in September 2016.
¶4 In February 2016, Hall requested a hearing on Zurich's denial of his physician's request for RFA treatment. In August 2016, an ALJ approved the parties' stipulation to an award of supportive care for two RFA treatments per year through September 2017.
¶5 In October 2017, Hall requested a hearing regarding Zurich's denial of continued supportive care. At the hearing, Hall argued that his supportive care should be renewed to allow for continued RFA treatments. Hall testified that, without the benefit of RFA treatment, the severity of pain in his lower back is substantially higher than with RFA treatment. Hall further testified that relief from RFA treatment lasts five to six months.
¶6 Dr. Edward Dohring, Hall's treating physician for his low back condition, testified that, based on Hall's report that previous RFA treatments had "help[ed] significantly," he agreed that the RFA procedure should be repeated. However, because Hall did not follow up with Dr. Dohring after he received the RFA treatment, it was "very difficult" for Dr. Dohring to recommend additional RFA treatments. Dr. Dohring testified that if Hall's statements about the relief he received from the RFA treatment were "true," he would consider the treatment successful.
¶7 Dr. Leon Ensalada, a board certified anesthesiologist and pain medicine specialist, examined Hall and reviewed the medical records as part of an independent medical evaluation. Dr. Ensalada testified that his "diagnosis was that [Hall] had chronic low back syndrome, but his objective lumbar spine examination was normal and his objective neurologic examination was normal." Dr. Ensalada also testified about a 2017 study published in the Journal of the American Medical Association, which determined that RFA treatment had "no treatment effect" on chronic low back pain like Hall's. Dr. Ensalada went on to testify that RFA treatments "are neither medically necessary nor clinically appropriate for Hall."
¶8 In May 2018, the ALJ issued his decision, denying an award of supportive medical maintenance benefits. In that decision, the ALJ found:
While the applicant did report relief, the testimony showed that he received an RFA on November 6, 2015, and on Dr. Scott's February 2, 2016 visit he reported 6 out of 10 pain in his back, but on June 28, 2016, without another RFA being performed, the applicant reported 4 out of 10 pain. Based on these medical records I find the applicant's report of relief not credible, and therefore to the extent there is a conflict of expert medical opinion the opinions and conclusion of Dr. Ensalada are adopted herein as being most probably correct and well-founded.In June 2018, Hall requested a review of this decision, and the ALJ affirmed his earlier decision.
¶9 In July 2018, Hall filed a statutory special action. This court has jurisdiction to consider this statutory special action pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A) and Rule 10, Ariz. R. P. Spec. Act.
Analysis
¶10 "We will not disturb an ALJ's findings of fact [in a workers' compensation proceeding] so long as [they] 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).
¶11 "The essential question in determining supportive care benefits is whether the employee needs ongoing treatment 'to prevent or reduce the continuing symptoms of an industrial injury after the injury has become stab[il]ized.'" Brown v. Indus. Comm'n, 199 Ariz. 521 ¶ 14 (App. 2001) (quoting Capuano v. Indus. Comm'n, 150 Ariz. 224, 226 (App. 1986)). "Claimants bear the burden of establishing all material elements of their claim, including causation and, in IC cases, the necessary connection to a work-related injury." T.W.M. Custom Framing v. Indus. Comm'n, 198 Ariz. 41, ¶ 12 (App. 2000). Hall argues that there was "no competent medical evidence for the ALJ to rely upon in denying the requested RFA" treatment. Hall, however, has not shown that the ALJ erred in finding he failed to meet his burden of proving that the use of RFA treatment is necessary to prevent or reduce the continuing symptoms of his industrial injury.
¶12 Hall argues that the ALJ's award is erroneous because Dr. Ensalada's testimony "misrepresent[ed] the record to confuse and misguide the ALJ." To the extent that Dr. Ensalada may have made errors in his testimony regarding Hall's reported pain, Hall provides no evidence that such testimony affected the ALJ's award. In fact, the ALJ independently reviewed and cited to the medical records, noting the records reflected that Hall had reported increased pain after a recent RFA treatment, and then reduced pain without the benefit of the RFA treatment. It was on this basis that the ALJ found Hall's testimony not credible, and we will not gainsay that assessment. See Segovia v. Indus. Comm'n, 119 Ariz. 231, 232 (App. 1978) (stating that the ALJ "may properly reject a claimant's testimony where it is inherently inconsistent and contradictory and where inferences can be drawn from other testimony which cast doubt upon its credibility"). As such, we find no error.
¶13 Finally, Hall argues the ALJ's award is erroneous because Dr. Ensalada relied on and cited "an unproduced study." However, during the April, 19, 2018 hearing, when Dr. Ensalada was asked about the study, Hall did not object. As such, Hall has not preserved this issue for appellate review. See Ariz. State Welfare Dep't v. Indus. Comm'n, 25 Ariz. App. 6, 9 (1975) (failure to object to testimony at hearing constituted waiver on review).
¶14 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
¶15 For the aforementioned reasons, we affirm the ALJ's decision and award denying Hall supportive care benefits for his industrial injury, as well as his decision after review affirming that award.