Opinion
2 CA-IC 2023-0001
06-10-2024
Leticia Galligan, Petitioner Employee, v. The Industrial Commission of Arizona, Respondent, Banner Health Systems dba Banner University Medical Center Tucson and Cornet Limited dba Ensign Svc., Respondent Employers, Banner Health and Safety National Casualty Corp., Respondent Insurers.
Law Office of Dix &Forman P.C., Tucson By J. Stephen Dix Counsel for Petitioner Employee. The Industrial Commission of Arizona, Phoenix Afshan Peimani, Chief Legal Counsel Counsel for Respondent. Ritsema Law, Phoenix By Kelly F. Kruegel Counsel for Respondents Employer Banner University Medical Center Tucson and Insurer Banner Health. Moeller Law Office P.C., Tucson By M. Ted Moeller and Trevor Hansen Counsel for Respondents Employer Ensign Svc. and Insurer Safety National Casualty Corp.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Special Action - Industrial Commission ICA Claim Nos. 20212380271 and 20181020397 (Consolidated) Insurer Nos. 90543 and 0543WC180000232 Cathleen Fuller, Administrative Law Judge.
Law Office of Dix &Forman P.C., Tucson By J. Stephen Dix Counsel for Petitioner Employee.
The Industrial Commission of Arizona, Phoenix Afshan Peimani, Chief Legal Counsel Counsel for Respondent.
Ritsema Law, Phoenix By Kelly F. Kruegel Counsel for Respondents Employer Banner University Medical Center Tucson and Insurer Banner Health.
Moeller Law Office P.C., Tucson By M. Ted Moeller and Trevor Hansen Counsel for Respondents Employer Ensign Svc. and Insurer Safety National Casualty Corp.
Vice Chief Judge Staring authored the decision of the Court, in which Judge O'Neil and Judge Brearcliffe concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE.
¶1 Leticia Galligan challenges the Administrative Law Judge's (ALJ) award and decision upon review affirming closure of her 2021 workers' compensation claim. 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 the ALJ's factual findings. Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 2 (App. 2012). In March 2018, while employed as a certified nursing assistant (CNA) by Emblem Hospice, Galligan fell and injured her right shoulder. Emblem's workers' compensation carrier accepted Galligan's claim for the injury, and she began seeing Dr. Dara Chafik, an orthopedic surgeon. The injury caused Galligan pain in the front of her shoulder and difficulty lifting her arm above her head, and she was removed from her work duty in October 2018.
¶3 In November 2018, Dr. Chafik performed surgery to repair a tear in Galligan's right rotator cuff as well as a biceps tenotomy. Dr. Chafik continued treating Galligan until December 2019. At that time, Galligan was close to being "symptom-free" and "was doing well enough to go back to regular duties." The next month, Galligan's claim was closed, and the accompanying documentation noted her injury had resulted in "no permanent disability."
¶4 Galligan subsequently returned to work as a CNA at Banner University Medical Center Tucson in February 2020. She continued working there without issue until July 2021, when she experienced pain in her neck and right shoulder and strain in her fingers while helping to reposition a patient. Galligan subsequently filed a workers' compensation claim. Banner's carrier accepted Galligan's claim, and, shortly thereafter, she saw Dr. Vernon Williams at Banner's Occupational Health Clinic. Dr. Williams diagnosed her with "[s]train of muscle, fascia and tendon of other parts of biceps, right arm" and put her on restricted work duty. He prescribed medication and physical therapy, and, by the end of August, he noted a substantial decrease in Galligan's pain. By the end of September, Dr. Williams reported Galligan's "pain level [wa]s 0" and cleared her to return to regular work duty at her request. He also referred Galligan to orthopedic care to address the "aching" she was still experiencing when attempting to move and reposition patients.
¶5 In October 2021, Galligan again saw Dr. Chafik, who ordered additional physical therapy sessions based on Galligan's continuing pain. At the end of November, Dr. Chafik noted Galligan "still had pain" in the area "where the prior surgical repair" had been done, as well as in her neck, upper trapezius, and upper shoulder. At her November visit, Galligan asked Dr. Chafik whether she could "go on permanent disability," and he noted that he would refer her to an independent medical examination (IME) physician for further follow-up. In December, Dr. Chafik gave Galligan a steroid injection for pain. Although the injection provided temporary relief, Galligan's pain returned by January 2022. In February, Dr. Chafik ordered additional scans to determine if Galligan's pain was related to her prior repair and placed her back on modified work duty with limitations.
¶6 Dr. Chafik subsequently wrote an addendum to his February 2022 report, stating Galligan's "recurrent right shoulder pain is related to her prior injury" and surgery. He further noted there were two separate workers' compensation carriers but only Banner's carrier was involved at that time. Dr. Chafik wrote that he had received a request "to close the current case because the problem is related to [Galligan's] underlying condition and prior surgery." Dr. Chafik agreed it was "correct" to close the 2021 claim, noting Galligan "w[ould] have to re-instate and open[] up . . . the claim for the right shoulder with the company that was carrying and dealing with it in 2018 and 2019." Later that month, Banner's carrier closed Galligan's 2021 injury claim, finding that she had been discharged from "active medical treatment" and that her "[i]njury resulted in no permanent disability."
¶7 Galligan filed a petition to reopen her 2018 claim. Emblem's workers' compensation carrier denied the petition. In response, Galligan asked the Industrial Commission of Arizona to hold hearings on both the denial of her petition to reopen her 2018 claim and the closure of her 2021 claim, which she asserted were in error. With respect to her 2021 claim, Galligan asserted she had not been "medically stationary and/or ha[d] . . . a permanent impairment" as a result of her 2021 injury.
A claimant's medical condition typically becomes stationary when "the underlying condition, the permanent residuals causing the pain, is stable, although the intensity of the pain may not be stable." Janis v. Indus. Comm'n, 27 Ariz.App. 263, 265 (1976).
¶8 Galligan's claims were consolidated, and the ALJ held several hearings beginning in September 2022. Over the course of the hearings, three medical experts-Dr. John Klein, Dr. Peter Campbell, and Dr. Anthony Theiler-testified regarding IMEs they had conducted on Galligan in July and August 2022. The IME physicians generally agreed that Galligan had "impingement," but after examining Galligan and reviewing her records, including the results of a September 2022 MRI of Galligan's shoulder, they disagreed as to whether Galligan's pain was related to the 2018 or 2021 injury, whether she required continuing care for the 2021 injury, and whether her condition was medically stationary.
¶9 In May 2023, the ALJ denied Galligan's petition to reopen her 2018 claim, concluding Galligan "ha[d] not met her burden of proof" because she presented "[n]o evidence . . . establishing a new, additional or previously undiscovered condition related to the 2018 injury." As to Galligan's 2021 claim, the ALJ awarded her "medical, surgical and hospital benefits," as well as temporary disability compensation, "from July 22, 2021, through February 4, 2022," but concluded she was not entitled to further compensation based on her failure to "establish[] her need for active medical care."
¶10 Galligan requested review of the ALJ's decision, asserting her condition was not medically stationary as of February 2022, her 2021 claim should remain open, and the 2021 injury is the "responsible injury" under the successive injury doctrine. The ALJ affirmed her initial decision, stating it was "fully supported by the evidence and the law." Galligan initiated this statutory special action. We have jurisdiction under A.R.S. §§ 12-120.21(A)(2), 23-951(A), and 23-943(H) and Rule 10, Ariz. R. P. Spec. Act.
Discussion
¶11 Galligan argues the ALJ erred in concluding closure of her 2021 claim was appropriate. Our review is "limited to determining whether or not the [ALJ] acted without or in excess of [her] power" and whether any findings of fact support the award, order, or decision. § 23-951(B). An ALJ is responsible for resolving all conflicts in the evidence and determining witness credibility. Henderson-Jones v. Indus. Comm'n, 233 Ariz. 188, ¶ 9 (App. 2013). Thus, we will "uphold an ALJ's factual findings if they are reasonably supported by the evidence." Munoz v. Indus. Comm'n, 234 Ariz. 145, ¶ 9 (App. 2014). We review questions of law de novo. SCF Gen. Ins. Co. v. Indus. Comm'n, 236 Ariz. 545, ¶ 2 (App. 2015).
¶12 We first address Galligan's contention that the ALJ erred in affirming closure of her 2021 claim "despite the complete lack of any competent or credible medical evidence that [her] condition was medically stationary" as of February 2022. The ALJ concluded that, based on "the totality of the evidence," Galligan had failed to establish her need for active medical care. Specifically, the ALJ noted that "[n]either Dr. Chafik [n]or Dr. Klein testified as to [Galligan's] need for medical treatment," and "Dr. Theiler testified she was medically stationary." Although the ALJ acknowledged Dr. Campbell's testimony that Galligan required active medical care "related to the 2021 injury and biceps tendon," recommending that she have surgery to fully detach the biceps tendon, the ALJ noted this testimony conflicted with the testimony of Dr. Chafik and Dr. Theiler that Galligan's right biceps tendon was no longer attached following her 2018 surgery. The ALJ ultimately resolved this conflict in favor of Dr. Chafik's and Dr. Theiler's opinion "that no biceps tendon [wa]s present or could possibly be the source of [Galligan's] pain," as it was "more probably correct and well founded."
¶13 Galligan challenges the ALJ's reliance on Dr. Theiler's testimony that she was medically stationary as of February 2022 because Dr. Theiler had not examined her until more than six months later. Thus, she contends, because Dr. Theiler's "medical opinion" is not based on medical findings or facts, or even a review of records from that time period, it "does not provide any reasonable basis for the ALJ to conclude" her condition was medically stationary in February 2022. See Hemphill v. Indus. Comm'n, 91 Ariz. 322, 324-25 (1962) ("medical opinion alone is not enough upon which to base an award; the medical evidence must consist of findings of medical facts concerning the condition of the petitioner"). Instead, Galligan argues, Dr. Chafik's records indicate her condition was not medically stationary, pointing to the fact that he "had taken [her] off of work in January of 2022" and, in February, "was prescribing therapy for her and releasing her back to work" with "lifting restrictions."
¶14 Contrary to Galligan's assertion, Dr. Theiler testified that, based on his examination of Galligan and his review of her medical records, her condition had been medically stationary with respect to the 2021 claim since February 2022 and she had been "capable of working without restrictions" since that time. In any event, Dr. Theiler testified he agreed with Dr. Chafik that Galligan's symptoms were not related to the 2021 claim. As to the timing of Dr. Theiler's examination, Galligan cites no pertinent legal authority requiring an IME physician to have personally examined the patient at the precise time of claim closure to provide an opinion that closure had been appropriate as of that date. See Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007) (arguments not supported with authority are waived). To the extent she relies on Pais v. Industrial Commission and similar cases for this proposition, these cases are distinguishable. See 108 Ariz. 68, 70 (1972) (doctor's opinion based on examination of injured worker three years prior to industrial injury and review of ICA file insufficient to support ALJ's award). We cannot conclude Dr. Theiler's testimony lacked basis in medical fact.
¶15 Moreover, whether a claimant's condition is "stationary" as defined in workers' compensation law is determined by the status of the actual injury and not by the claimant's pain or other consequential medical difficulties resulting from the injury. See Janis v. Indus. Comm'n, 27 Ariz.App. 263, 265 (1976) (potential need for surgery in the future, as distinguished from present need for surgery based on claimant's current condition, and increased pain, which could be managed by physical therapy and pain medication, demonstrated condition was stationary despite ongoing need for treatment); Polanco, 214 Ariz. 489, ¶¶ 10-11 (condition stationary and claim not subject to reopening where reported increase in pain not accompanied by change in physical findings; subjective pain alone not compensable injury); Sandoval v. Indus. Comm'n, 114 Ariz. 132, 135 (App. 1976) (claimant's condition stationary where recommended treatment would only address pain). As such, Dr. Chafik's testimony that Galligan needed continuing physical therapy is not determinative.
¶16 Because the record contains supporting evidence, we cannot say the ALJ acted in excess of her authority by determining Galligan had failed to establish her need for active medical care related to her 2021 injury. See § 23-951(B). To the extent Galligan asks us to reweigh the evidence, we will not do so. See Royal Globe Ins. v. Indus. Comm'n, 20 Ariz.App. 432, 435 (1973) (if witnesses make contradictory statements regarding material issues, ALJ may accept all of the witnesses' testimony, disregard entire testimony, or accept portions of testimony); Phelps v. Indus. Comm'n, 155 Ariz. 501, 506 (1987) (ALJ sole judge of witness credibility).
¶17 Galligan also argues the ALJ "unreasonably refused to apply the Successive Injury Doctrine to the facts of this case." She asserts that, although the ALJ cited case law regarding the successive injury doctrine in her decision, she failed to "analyze the relevant medical facts" as of February 4, 2022, to determine whether the doctrine was applicable.
To the extent Galligan argues the ALJ was required to make "findings necessary to determine whether this was an appropriate case" for application of the successive injury doctrine, such as "whether [Galligan] was symptomatic, whether she needed medical treatment or whether she was continuing to suffer a disability" in February 2022, we disagree. While an ALJ must consider all competent and relevant evidence, Slover Masonry, Inc. v. Indus. Comm'n, 158 Ariz. 131, 136 (1988), she is "not required to make findings on all issues raised in a case, as long as [s]he resolves the ultimate issues," Sun Valley Masonry, Inc. v. Indus. Comm'n, 216 Ariz. 462, ¶ 27 (App. 2007). As here, an award is sufficient when we can determine that the factual basis for the ALJ's conclusion is legally sound. See id.; Post v. Indus. Comm'n, 160 Ariz. 4, 7 (1989).
¶18 The successive injury doctrine applies when evidence establishes "the new injury is an independently compensable industrial injury" and "the old and new injuries have both contributed to the employee's current condition." Sw. Gas Corp. v. Indus. Comm'n, 200 Ariz. 292, ¶ 8 (App. 2001). Under this doctrine, if a claimant files both a claim to reopen an old injury and a new injury claim, and she satisfies the burden of proof on both claims, then the claim that is last in time is wholly responsible for workers' compensation benefits. Vishinskas v. Indus. Comm'n, 147 Ariz. 574, 575-76 (App. 1985). The claimant's underlying condition becomes the responsibility of the latter claim if the new injury caused an "organic change in the underlying condition" or "symptomatic aggravation . . . [that] requires treatment" or "causes additional disability." Indus. Indem. Co. v. Indus. Comm'n, 162 Ariz. 503, 508-09 (App. 1989). The claimant has the burden of presenting sufficient evidence of a "new, additional or previously undiscovered temporary or permanent condition" with a causal relationship to the previous injury. A.R.S. § 23-1061(H); Sun Valley Masonry, Inc. v. Indus. Comm'n, 216 Ariz. 462, ¶ 11 (App. 2007). If the causal connection between the previous injury and the condition "is not readily apparent, it must be established by expert medical testimony." Sun Valley, 216 Ariz. 462, ¶ 11.
¶19 Galligan appears to assert the ALJ failed to consider her "earning-capacity disability" and her need for medical treatment related to the 2021 injury in determining whether to apply the successive injury doctrine. But the ALJ found that Galligan had failed to provide any evidence "establishing a new, additional or previously undiscovered condition related to [Galligan's] 2018 injury," not that the 2021 injury was not an independently compensable industrial injury. See Sw. Gas, 200 Ariz. 292, ¶ 8. To the extent Galligan challenges this finding, we disagree. Although some evidence suggesting the 2018 and 2021 injuries were related was presented, the record also contains evidence supporting the ALJ's ultimate conclusion that the two injuries were unrelated. See Stainless Specialty Mfg. Co. v. Indus. Comm'n, 144 Ariz. 12, 19 (1985) ("Where there is a conflict in expert testimony, it is the responsibility of the administrative law judge to resolve it."); Sw. Desert Images, LLC v. Indus. Comm'n, 236 Ariz. 189, ¶ 13 (App. 2014) (We will not disturb the ALJ's resolution of conflicting medical evidence "unless it is 'wholly unreasonable.'" (quoting Stainless Specialty Mfg. Co., 144 Ariz. at 19)).
Disposition
¶20 For the foregoing reasons, we affirm the ALJ's award.