Opinion
2 CA-IC 2024-0004
12-13-2024
City of Tucson, Petitioner Employer, v. The Industrial Commission of Arizona, Respondent, Tristar Risk Management, Petitioner Insurer, Tyler Spitzer, Respondent Employee.
Moeller Law Office P.C., Tucson By M. Ted Moeller and Trevor Hansen Counsel for Petitioners Employer and Insurer The Industrial Commission of Arizona, Phoenix By Afshan Peimani, Chief Legal Counsel Counsel for Respondent Tyler Spitzer, Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Special Action - Industrial Commission ICA Claim No. 20230330142 Insurer No. 231079672 Shelley Tolman, Administrative Law Judge. AWARD AFFIRMED
COUNSEL
Moeller Law Office P.C., Tucson By M. Ted Moeller and Trevor Hansen Counsel for Petitioners Employer and Insurer
The Industrial Commission of Arizona, Phoenix By Afshan Peimani, Chief Legal Counsel Counsel for Respondent
Tyler Spitzer, Tucson In Propria Persona
Judge Vasquez authored the decision of the Court, in which Presiding Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
Vasquez, Judge:
¶1 In this statutory special action, the City of Tucson and its insurance carrier, Tristar Risk Management (collectively, "the City") challenge the Industrial Commission of Arizona's (ICA's) decision upon review affirming the hearing and findings and award for Tyler Spitzer's compensable lumbar injury claim. On review, the City argues the evidence adopted by the administrative law judge (ALJ) was legally insufficient to sustain the award. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the ALJ's award and in doing so, defer to its factual findings. See Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 2 (App. 2012). On January 23, 2023, Spitzer was exercising during the morning of his shift as a firefighter for the City. Toward the end of his workout, while deadlifting, he "felt like something was wrong with [his] back" but could not "pinpoint what was going on." Spitzer decided to stop his workout because he did not "want to risk anything." Immediately following his workout his "overall body" was sore, but his "lower back was more sore." Spitzer worked the rest of his shift, during which his "back never hurt."
¶3 The next morning, Spitzer woke up with "intense chest pain, but [his] back didn't hurt," except for "a little bit" when lying on the bed. He saw his primary care doctor on January 25 because his chest pain got worse. She referred him to a cardiologist, restricted him to light-duty work status, and advised him to stay on bedrest for as long as he could. On January 27, Spitzer woke up with "intense pain" from his low back down his left leg, requiring him to return to his doctor. By January 29, the pain had become so intense that Spitzer's wife drove him to the emergency room, and while there he had an MRI completed, which revealed a "herniated disk" in his lower lumbar spine.
¶4 On January 30, Spitzer reported his back injury to his employer. In early February, Spitzer filed an industrial claim for his back injury. In mid-February, he went to Tucson Orthopedic Institute, where he and his provider discussed the option of surgery due to the "chronicity, duration, severity, [and] progression of symptoms." Dr. Gerard Jeong performed the surgery the next day. Shortly thereafter, Spitzer's claim was denied.
¶5 Spitzer challenged the denial and requested a hearing with the ICA. In June 2023, Spitzer attended an independent medical examination (IME) with Dr. Marjorie Eskay-Auerbach, who diagnosed him with a lumbar sprain. After conducting four evidentiary hearings, which included testimony from Spitzer, Dr. Jeong, and Dr. Eskay-Auerbach, the ALJ found Spitzer's lumbar claim compensable. The City sought review of the ALJ's award. The ALJ affirmed the award, and the City filed a petition for special action from that decision. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-948, and Rule 10, Ariz. R. P. Spec. Act.
At some point, Spitzer added a claim for a hiatal hernia, which the ALJ determined was not compensable. We do not address this claim because it is not at issue in this special action.
Discussion
¶6 The City contends Dr. Jeong's testimony was "foundationally deficient" and should not have been used as competent medical evidence to support the ALJ's award of a compensable claim. We conclude otherwise. Jeong, Spitzer's surgeon, testified that the "deadlift episode" was "more likely than not" the cause of Spitzer's lumbar disk herniation. Dr. Eskay-Auerbach, the City's expert, opined that Spitzer's workout resulted in a "lumbar sprain" and noted that deadlifting is "not an activity that causes disk herniations." Eskay-Auerbach attributed Spitzer's disk herniation to "age related degenerative changes."
¶7 The ALJ resolved the conflicts in the medical evidence in favor of Dr. Jeong. It is the ALJ's duty to "resolve all conflicts in the evidence, especially when the conflicts involve expert medical testimony." Post v. Indus. Comm'n, 160 Ariz. 4, 8 (1989). We will sustain an award if it is reasonably supported by the evidence, Lawson v. Indus. Comm'n, 12 Ariz.App. 546, 547 (1970), and will not disturb an award based on conflicting medical evidence unless the ALJ's resolution of which expert is more probably correct is wholly unreasonable, Henderson-Jones v. Indus. Comm'n, 233 Ariz. 188, ¶ 9 (App. 2013); Kaibab Indus. v. Indus. Comm'n, 196 Ariz. 601, ¶ 25 (App. 2000); see A.R.S. § 23-951(B) (our review is limited to determining whether ICA acted "without or in excess of its power" and whether its "findings of fact support the award, order or decision").
¶8 The City argues that Dr. Jeong's opinion is not supported by the record because it was grounded on the assumption that Spitzer "had stiffness or acute severe low back pain" after his workout. When recounting the medical history Spitzer had provided during his initial appointment, Jeong recalled that Spitzer had reported "severe low back pain and radiating left leg pain" that "began a few weeks ago when he was working out." The City asserts this testimony was the basis for Jeong's opinion that the injury was work related. This misapprehends the record. Jeong's opinion was based on Spitzer experiencing symptoms "shortly . . . following the deadlift episode."
¶9 Immediately after Dr. Jeong provided this opinion, the ALJ asked him if he would relate the deadlifting to the herniated disk if, "[a]ssuming [as] true," Spitzer had testified that "he felt something off in his low back when he was performing the deadlift," immediately "felt a soreness in the low back," and did not have intense sciatica until around January 27. Jeong answered, "Yes," and explained that "from a time temporal relationship," having "dull mostly back pain" that progresses to sciatica is "a very common scenario." The City argues this exchange prevented Jeong from properly considering whether the herniated disk was work related because the ALJ's follow-up "misstate[d] the record" and posed a hypothetical that was "exclusively favorable to Spitzer's position."
¶10 The City maintains that Spitzer testified he had been completely symptom free for three days after the incident. To support this, it points to Spitzer's statement that his "back never hurt at all" and it "wasn't until [his] nerve was pinched," on January 27 that he had realized "something happened to [his] back." The City therefore argues the ALJ "breached the threshold of impartiality into advocacy for the claimant" because she did not also inform Dr. Jeong that the "soreness" Spitzer felt after his workout was not limited to his low back, but was "normal post-workout" body soreness that "quickly dissipated," leaving Spitzer "symptom free for several days."
To the extent the City is arguing that it did not receive a "fair and impartial hearing" because the ALJ infected the trial with bias, we find this argument unavailing. In view of the record, the ALJ's questions were not improper; rather, they aided in clarifying the experts' medical opinions. See Beiner v. Indus. Comm'n, 20 Ariz.App. 408, 410 (1973).
¶11 However, Spitzer consistently testified that his back was "sore" leading up to January 27 and differentiated that soreness from it being painful or hurting. For example, Spitzer explained that he did not report his back injury on the date it occurred because it was "sore and not hurt" and that the "soreness lined up with having done a workout." Therefore, the ALJ's follow-up accurately reflected the record. The ALJ did not err in finding Dr. Jeong's medical opinion more probably correct. Consequently, we conclude substantial evidence supports the ALJ's findings and award.
Disposition
¶12 The ICA's decision upon review affirming the ALJ's award is affirmed.