Opinion
No. 1 CA-IC 18-0048
04-02-2019
SILVESTRE GALLEGOS, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, CAFÉ VALLEY, INC., Respondent Employer, COPPERPOINT INDEMNITY INSURANCE COMPANY, Respondent Carrier
COUNSEL Snow, Carpio & Weekley, PLC, Phoenix By Erica González-Meléndez Counsel for Petitioner Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Defendant/Appellee Copperpoint Indemnity Insurance Company, Phoenix By Ronald C. Wills Counsel for Respondent Employer and 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. 20171-170547
Carrier Claim No. 17I00716
The Honorable Michelle Bodi, Administrative Law Judge
AFFIRMED
COUNSEL Snow, Carpio & Weekley, PLC, Phoenix
By Erica González-Meléndez
Counsel for Petitioner Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Defendant/Appellee Copperpoint Indemnity Insurance Company, Phoenix
By Ronald C. Wills
Counsel for Respondent Employer and Carrier
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Acting Presiding Judge Randall M. Howe and Judge Jennifer B. Campbell joined. THUMMA, Chief Judge:
¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award and decision upon review by an administrative law judge (ALJ) for a claim found to be partially compensable. Claimant Silvestre Gallegos argues the ALJ's award was inconsistent and not supported by the evidence. Because Gallegos has shown no error, the award is affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the facts in the light most favorable to upholding the award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105 ¶ 16 (App. 2002).
¶2 Gallegos worked as a forklift operator for employer Café Valley Bakery, Inc. In April 2017, while transferring a heavy box from a pallet jack into the company store, Gallegos "heard a crack sound . . . [and] felt something pop" in his right arm. Gallegos continued working, but reported the injury to his shift lead when his arm started "hurting a little." When removing his jacket at the end of his shift, Gallegos noticed a "big bulge" in his right arm. Gallegos reported the injury to his supervisor, who completed an accident report.
¶3 Gallegos sought medical treatment at a health clinic as well as an emergency room that evening and was diagnosed with a bicep tendon disruption. Gallegos filed a workers' compensation claim, alleging the industrial incident caused the rupture. When the carrier denied his claim, Gallegos timely requested a hearing.
¶4 On various days from November 2017 to March 2018, the ALJ held an evidentiary hearing, where she heard testimony from Gallegos, Gallegos' supervisor, independent medical examiner Dr. John Bradway, and Gallegos' treating physician Dr. Greg Keller. The ALJ also received medical records from the emergency room, the health clinic and both doctors.
¶5 The evidence shows that, after the industrial incident, Gallegos sought treatment for the bicep tendon rupture from Dr. Keller. After reviewing an MRI of Gallegos' shoulder, Dr. Keller discovered a pre-existing rotator cuff tear in addition to the rupture. Because of this additional injury, Dr. Keller performed surgery on Gallegos' shoulder and testified that while doing so he saw the newer bicep tendon rupture as well as the "older rotator cuff tear." Dr. Keller testified the surgery primarily was to repair the rotator cuff tear and any extension caused by the industrial incident, and he acknowledged "the bicep[] tendon [rupture was] not critical to the strength of the shoulder, and [was] more of a cosmetic issue."
¶6 Dr. Keller testified Gallegos was credible and that his reports of a "sharp change in [] function" after the industrial incident indicated the incident had caused the bicep tendon rupture and accelerated the rotator cuff tear. Based on Gallegos' statements, what he saw during surgery and the fact that "the biceps tendon [and] rotator cuff commonly tear together or in sequence," Dr. Keller concluded, to a reasonable degree of medical certainty, that the incident caused the bicep tendon rupture and "accelerated or aggravated" the rotator cuff tear.
¶7 Dr. Bradway, who was selected by the carrier, conducted an independent medical examination of Gallegos and disagreed with Dr. Keller regarding causation. Dr. Bradway found it "difficult" to relate the bicep tendon rupture to the industrial incident because he found Gallegos' story to be "a little odd," and not "all that clear." Dr. Bradway also pointed out that medical records showed the self-reported "precipitating event" of Gallegos' shoulder pain was a car accident a week before the industrial incident. Based on an MRI and X-rays of Gallegos' shoulder, additional medical records and Dr. Keller's surgical report, Dr. Bradway found "no objective evidence that there [wa]s any progression [or] additional tear" of the rotator cuff caused by the industrial incident, but rather that the tear had "been there for likely many years." Accordingly, Dr. Bradway concluded, to a reasonable degree of medical certainty, that neither injury related to the industrial incident.
¶8 After considering the testimony and exhibits, the ALJ adopted Dr. Keller's opinion that the bicep tendon rupture was related to the industrial incident, found that injury compensable and awarded Gallegos temporary disability compensation benefits. The ALJ then adopted Dr. Bradway's opinion that the rotator cuff tear had not been "caused, accelerated, or aggravated by the industrial incident," found the tear not compensable and denied benefits for the related surgery.
¶9 Gallegos requested administrative review. After briefing, the ALJ issued a Decision Upon Review affirming the earlier award and explaining in more detail the basis for her partial adoption of each expert's opinion. Gallegos timely filed a request for special action review, over which this court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(2) and 23-951(A) (2019) and Arizona Rule of Procedure for Special Actions 10.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. --------
DISCUSSION
¶10 Gallegos argues the ALJ's finding "that the biceps tendon tear was compensable while finding that the right rotator cuff tear was not compensable, is an inconsistent result and therefore renders the" ALJ's award unreasonable.
¶11 This court defers to the ALJ's factual findings but reviews de novo questions of law. Young v. Indus. Comm'n, 204 Ariz. 267, 270 ¶ 14 (App. 2003). This court will affirm the ALJ's decision if it is reasonably supported by the evidence, Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105 ¶ 16 (App. 2002), and "where two inferences may be drawn, the [ICA] is at liberty to choose either, and its conclusion will not be disturbed unless it is wholly unreasonable," Muchmore v. Indus. Comm'n, 81 Ariz. 345, 351-52 (1957).
¶12 Gallegos bears the burden of proving the causal relationship between the industrial incident and each injury for which he seeks compensation. Raymer v. Indus. Comm'n, 18 Ariz. App. 184, 186 (1972). If not apparent to a layperson, "causation must be proved by opinion evidence from a competent medical witness." Id. An ALJ need not adopt a medical expert's testimony in its entirety but is instead free to "put together parts of expert testimony in a reasonable manner." Fry's Food Stores v. Indus. Comm'n, 161 Ariz. 119, 123 (1989).
¶13 The ALJ acknowledged the "conflict in the medical evidence as to whether the biceps tendon rupture resulted from the . . . industrial incident, and whether [Gallegos'] chronic rotator cuff was aggravated or accelerated by" the incident. The ALJ detailed the evidence relied upon by each doctor and noted each doctor's opinion as to each injury. The ALJ then adopted each opinion in part, finding Dr. Keller's opinion regarding the bicep tendon rupture was "more probably correct and well founded" and Dr. Bradway's opinion regarding the rotator cuff tear was "more probably correct and well founded." Accordingly, the ALJ found that the bicep tendon rupture was compensable, but that the rotator cuff tear was not. Because both doctors agreed that the bicep tendon rupture did not necessitate medical intervention, and because the ALJ found the industrial incident did not cause the rotator cuff tear, the ALJ found Gallegos' surgery to repair the tear was unrelated to the industrial claim and therefore not compensable.
¶14 In the Decision Upon Review, the ALJ explained more precisely her decision to adopt portions of each doctor's opinion:
Because Dr. Keller visualized the biceps tendon and saw acute injury, the undersigned found Dr. Keller's opinion related to the biceps tendon rupture to be more probably correct and well founded . . .
Regarding the rotator cuff tear, Dr. Bradway reviewed the MRI and saw fatty atrophy (which takes years to appear) and no signs of acute-on-chronic change in the rotator cuff . . . Dr. Keller's opinion that the rotator cuff tear was aggravated by the industrial injury was based on [Gallegos'] complaints. The medical records demonstrate that [Gallegos'] right shoulder complaints started before the industrial injury, specifically when [Gallegos] was involved in a motor vehicle accident close-in-time to the industrial injury . . . Thus, the undersigned found Dr. Bradway's opinion regarding the rotator cuff tear to be more probably correct and well founded.
¶15 The ALJ was not bound to "accept or reject an expert's entire opinion," and this record shows the ALJ properly "put together parts of expert testimony in a reasonable manner." Fry's Food Stores, 161 Ariz. at 123. The evidence reasonably supported either doctor's opinion as relied upon by the ALJ, and Gallegos has not shown the ALJ acted unreasonably by finding the rupture, but not the tear, compensable. Muchmore, 81 Ariz. at 351-52 ("[W]here two inferences may be drawn, the [ICA] is at liberty to choose either, and its conclusion will not be disturbed unless it is wholly unreasonable . . . ."). Accordingly, Gallegos has failed to show the ALJ abused her discretion in finding Gallegos' injuries only partially compensable.
CONCLUSION
¶16 Because Gallegos has shown no error, the award is affirmed.