Opinion
1 CA-IC 11-0065
03-20-2012
DONNA J. HAMILTON, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, LITTLETON SCHOOL DIST. 65, Respondent Employer, SCF ARIZONA, Respondent Carrier.
Donna J. Hamilton, Petitioner Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorneys for Respondent James B. Stabler, Chief Counsel State Compensation Fund By Philip D. Garrow Attorneys for Respondent Employer/Respondent Carrier
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Special Action - Industrial Commission
ICA Claim No. 20101-260227
Carrier Claim No. 1002913
J. Matthew Powell, Administrative Law Judge
AWARD AFFIRMED
Donna J. Hamilton, Petitioner
Goodyear
Andrew F. Wade, Chief Counsel
The Industrial Commission of Arizona
Attorneys for Respondent
Phoenix
James B. Stabler, Chief Counsel
State Compensation Fund
By Philip D. Garrow
Attorneys for Respondent Employer/Respondent Carrier
Phoenix NORRIS, Judge
¶1 In this special action review of an Industrial Commission of Arizona award and decision upon review, petitioner Donna J. Hamilton argues the administrative law judge ("ALJ") should not have found she had failed to carry her burden of proving she had sustained a cervical injury (either new or as an aggravation of a pre-existing cervical injury) causally related to the April 23, 2010 industrial incident. See generally Yates v. Indus. Comm'n, 116 Ariz. 125, 127, 568 P.2d 432, 434 (App. 1977) (citations omitted) (claimant must prove all elements of claim; elements include whether injury was causally related to industrial incident). We disagree.
Hamilton was injured at school when she tried to separate two scuffling seventh grade boys.
¶2 The ALJ found the medical evidence was "insufficient to establish that the incident at work caused or contributed to a cervical injury." The evidence presented to the ALJ reasonably supports this finding. See Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002) (citation omitted) (appellate court will affirm decision if it is reasonably supported by the evidence after reviewing evidence in light most favorable to sustaining award). As the ALJ explained in the award, Brian Steinke, M.D., an orthopedic spine surgeon and one of Hamilton's treating physicians, testified he did not "think" Hamilton's symptoms were "necessarily coming from [her] neck," and had not "pursued" her neck pain because he did not think her pain was "a recurrence of a neck problem." Although Dr. Steinke acknowledged neck pain can "be a problem in and of itself or it can be a problem related to a shoulder problem," he stated he would not consider treating Hamilton's neck pain unless she had residual symptoms after receiving treatment for her shoulder. Accordingly, he referred Hamilton to James Davidson, M.D., a physician specializing in shoulder and knee disorders. Dr. Davidson determined Hamilton was suffering from a "[l]eft shoulder rotator cuff tendinopathy and impingement sustained in an on-the-job injury."
¶3 Jon Zoltan, M.D., a board certified orthopedic surgeon, conducted an independent medical examination of Hamilton on May 25, 2010. Based on his examination and a review of her medical records generated before the April 23, 2010 incident, Dr. Zoltan reported Hamilton suffered from preexisting degenerative disc disease and degenerative joint disease of the cervical spine. But, he concluded her "ongoing symptomatology [was] reasonably related to [her] preexisting status" and she had not sustained a "permanent aggravation or exacerbation of the preexisting condition to [her] cervical spine" as a consequence of the industrial incident. Consistent with his report, Dr. Zoltan testified he was unable to relate Hamilton's symptomatology (neck and shoulder pain) or objective condition to the industrial incident. And, although on cross-examination by Hamilton he acknowledged it might be possible to "pinch [a] nerve" in attempting to lift a 130-pound boy, Dr. Zoltan explained "[p]ossibilities occur, but probabilities don't seem to occur if it's not associated with the correct subjective complaints and consistent objective physical findings to correlate with a suspected [disc] injury during that maneuver."
¶4 Based on this evidence, the ALJ reasonably determined that Hamilton had failed to show her compensable injury included "either a new cervical injury or an aggravation of her preexisting cervical injuries."
¶5 Finally, we acknowledge what we believe to be Hamilton's argument the ALJ should not have closed the cervical portion of her claim because it was "too early" to decide whether her symptoms were coming from her shoulder or her neck. As noted, however, a claimant bears the burden of showing that an industrial incident caused an injury or disabling condition. And, when the injury is not readily apparent to a layman, the claimant must also present medical testimony establishing the injury's causal relationship to the industrial incident. Yates, 116 Ariz. at 127, 568 P.2d at 434. Here, as the ALJ found, Hamilton failed to present medical evidence that showed the compensable injury she sustained as a consequence of the April 2010 industrial incident included either a new cervical injury or an aggravation of her pre-existing cervical injuries.
¶6 For the foregoing reasons, we affirm the award.
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PATRICIA K. NORRIS, Presiding Judge
CONCURRING:
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MARGARET H. DOWNIE, Judge
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PATRICIA A. OROZCO, Judge