Opinion
No. 1 CA-IC 11-0055
03-29-2012
NEUZIR GARRETT-URBANEK, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, JP MORGAN CHASE AND COMPANY, Respondent Employer, LIBERTY INSURANCE CORPORATION, Respondent Carrier.
J. Wayne Turley, P.C. By J. Wayne Turley Attorney for Petitioner Employee Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Jones, Skelton & Hochuli, P.C. By Charles G. Rehling, II Jonathan Paul Barnes, Jr. Attorneys for Respondents Employer and 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(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)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. 20101-650039
Carrier Claim No. WC608-655494
Administrative Law Judge Paula R. Eaton
AWARD AFFIRMED
J. Wayne Turley, P.C.
By J. Wayne Turley
Attorney for Petitioner Employee
Mesa
Andrew Wade, Chief Counsel
The Industrial Commission of Arizona
Attorney for Respondent
Phoenix
Jones, Skelton & Hochuli, P.C.
By Charles G. Rehling, II
Jonathan Paul Barnes, Jr.
Attorneys for Respondents Employer and Carrier
Phoenix DOWNIE, Judge
¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review for a noncompensable claim. The petitioner employee ("Claimant") presents one issue on appeal: whether the opinion of Dr. Paul Guidera was legally sufficient. We answer that question in the affirmative and therefore affirm the award.
I. JURISDICTION AND STANDARD OF REVIEW
¶2 This Court has jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(2), 23-951(A), and Rule 10, Arizona Rules of Procedure for Special Actions. In reviewing findings and awards of the ICA, we defer to the ALJ's factual findings, but review questions of law de novo. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in the light most favorable to upholding the ALJ's award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002) (citation omitted).
FACTS AND PROCEDURAL HISTORY
¶3 Claimant was employed as a mortgage modification specialist for the respondent employer, J.P. Morgan Chase and Company ("Chase"). She filed a workers' compensation claim for injuries to her right and left thumbs. Claimant reported a gradual inflammation of her thumb tendons from years of using a keyboard and mouse. Her claim was denied for benefits, and she timely requested a hearing.
¶4 The ALJ received testimony from Claimant, two of her Chase supervisors, her treating physician, Jeffrey Levine, M.D., and Dr. Guidera, the independent medical examiner. The ALJ entered an award for a noncompensable claim. The ALJ's determinative findings read:
A transcript of Claimant's deposition was also introduced into evidence.
9. Upon a review of the totality of the evidence, I find the applicant not credible. Accordingly, any conflicts in the evidence are resolved against the applicant.
10. The conflict in the medical evidence is resolved in favor of the opinions of Dr. Guidera as being more probably correct and well founded.
11. Based upon the applicant's lack of credibility and the testimony of Dr. Guidera, I find that the applicant did not sustain any compensable industrial injury on or about March 19, 2010.
¶5 Claimant timely requested administrative review, but the ALJ affirmed her award. Claimant next brought this timely appeal.
DISCUSSION
¶6 The statutory elements of compensability are an injury by accident arising out of and in the course of employment. See Ariz. Rev. Stat. ("A.R.S.") § 23-1021(A). Arizona has recognized that gradual injuries are accidents within the meaning of the statute. Reilly v. Indus. Comm'n, 1 Ariz. App. 12, 15, 398 P.2d 920, 923 (1965). A claimant has the burden of establishing all elements of a compensable gradual injury claim. Inglis v. Indus. Comm'n, 11 Ariz. App. 368, 369, 464 P.2d 814, 815 (1970).
¶7 Unless a claimant's physical condition and its causal relationship to the industrial injury are readily apparent, expert medical testimony is required. Cont'l Cas. Co. v. Indus. Comm'n, 15 Ariz. App. 565, 566, 489 P.2d 1267, 1268 (1971). A medical opinion must be based on findings of medical fact to support an award. Royal Globe Ins. Co. v. Indus. Comm'n, 20 Ariz. App. 432, 434, 513 P.2d 970, 972 (1973) . Such findings come from a claimant's history, medical records, diagnostic tests, and examinations. Id.
¶8 When expert medical testimony conflicts, it is the ALJ's duty to resolve those conflicts. Perry v. Indus. Comm'n, 112 Ariz. 397, 398, 545 P.2d 1096, 1097 (1975). In resolving conflicts, an ALJ is not required to give greater weight to the testimony of the treating physician over that of an independent medical examiner. See Walters v. Indus. Comm'n, 134 Ariz. 597, 599, 658 P.2d 250, 252 (App. 1982). We have recognized that exact knowledge of causation is not always possible, but such uncertainty does not prevent a physician from stating a legally sufficient opinion. See Harbor Ins. Co. v. Indus. Comm'n, 25 Ariz. App. 610, 612, 545 P.2d 458, 460 (1976) (citation omitted).
¶9 Claimant argues Dr. Guidera's testimony is legally insufficient to support the award because his "causation opinion is not based on the Petitioner's medical findings, history, records, diagnostic testing, or examinations. It is based on a statement from a book." The record, however, reflects that though Dr. Guidera relied in substantial part on a recognized medical treatise, he also considered other information in formulating his causation opinion.
¶10 Dr. Guidera is board certified in hand surgery and plastic surgery and is a certified independent medical examiner. He saw Claimant twice for independent medical examinations ("IME"). At the first examination in July 2010, Dr. Guidera received a history of Claimant's job duties during her tenure with Chase. Claimant described the gradual development of pain in her left wrist and thumb, beginning in September 2009. Claimant stated she eventually quit using her left hand and instead relied on her right hand. By January 2010, she had developed pain and swelling over her right thumb and pain in her right wrist.
¶11 Claimant initially sought treatment from her primary care physician, who obtained x-rays and an ultrasound before referring her to a hand surgeon. In June 2010, Claimant had surgery on her right wrist to release the first dorsal compartment. She described her current symptoms as unbearable pain in her right wrist at night and an inability to use her left wrist.
¶12 Dr. Guidera performed a physical examination, which included "measurements for . . . elbow range of motion, forearm rotation left and right, and [] active wrist motion left and right." When he attempted to obtain "circumferential measurements of [Claimant's] wrist . . . she withdrew her hands and complained of severe pain." Dr. Guidera noted that Claimant could fully flex her thumb to the base of her little finger, which was inconsistent with a diagnosis of de Quervain's disease. At that time, he diagnosed bilateral wrist pain, post right first dorsal compartment release, history of a mass on the right thumb joint, and probable complex regional pain syndrome. Dr. Guidera recommended a three-phase bone scan to evaluate for possible reflex sympathetic dystrophy and an MRI of the left wrist before any treatment.
¶13 Claimant returned to Dr. Guidera in November for a follow-up IME. The doctor again elicited a detailed history, which was similar to the one obtained at the first examination. The only addition was that Claimant mentioned using a three-hole punch to assemble files, requiring the use of both palms to press it down. Dr. Guidera also received an interim medical history, which included a normal MRI of Claimant's left wrist and Dr. Levine's June 2010 diagnosis of left de Quervain's syndrome and his October 2010 decompression of the first dorsal compartment in the left wrist. Claimant reported that her left wrist was doing well after surgery but that her right wrist remained problematic, with weakness and popping. She also continued to have pain in both wrists.
¶14 Dr. Guidera examined Claimant's wrists and hands. He found decreased range of motion in her left wrist, full range of motion in all fingers with the exception of the right index finger, and a negative Finkelstein's test bilaterally -- one of the indicators for de Quervain's disease. The doctor diagnosed post-bilateral releases of the first dorsal compartments and recommended physical therapy.
¶15 It was Dr. Guidera's opinion that there was no causal relationship between Claimant's work and her hand and wrist conditions. Dr. Guidera explained that the 1998 publication Dr. Levine relied on for his causation opinion was no longer authoritative, having been replaced by a newer American Medical Association ("AMA") publication. In 2007, the AMA published "Guides to the Evaluation of Disease and Injury Causation" ("Guides"). Dr. Guidera testified the Guides were based on a rigorous review of all studies and literature through 2007, and based on that information, concluded computer use alone has not been shown to cause de Quervain's tenosynovitis. The Guides note that causally-related activities for de Quervain's tenosynovitis include sustained forceful gripping, awkward wrist postures, constant heavy lifting, and vibration. On cross-examination, Dr. Guidera agreed that one of the difficulties with the current literature is that there have been insufficient studies performed to determine if computer use alone can cause de Quervain's tenosynovitis.
Guide to the Diagnosis of Work-Related Musculoskeletal Disorders.
Chapter 9, which addresses de Quervain's disease, is part of the record.
With regard to Claimant's de Quervain's tenosynovitis diagnosis in her right wrist, Dr. Guidera agreed that Dr. Sheridan's June 2010 surgery was appropriate to treat the anatomic variant found in the first dorsal compartment of her right wrist.
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¶16 "Many factors enter into a resolution of conflicting [medical] evidence, including whether or not the testimony is speculative, consideration of the diagnostic method used, qualifications and backgrounds of the expert witnesses and their experience in diagnosing the type of injury incurred." Carousel Snack Bar v. Indus. Comm'n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367 (1988) (citations omitted). By his own admission, Dr. Guidera relied "to large extent" on the AMA's most recent publication on recognized causal factors for de Quervain's tenosynovitis. Additionally, though, he received a detailed history of Claimant's work activities and physical complaints, reviewed her medical, surgical, and diagnostic testing records, and examined her. Indeed, in cross-examining Dr. Guidera, Claimant's counsel noted at the outset that the doctor's opinion was based on both his "clinical exam and a review of the literature."
¶17 Claimant understandably focuses on perceived deficiencies with the Guides' conclusions, including inadequate research data relating to computer use. But though such shortcomings might affect the weight a trier of fact chooses to give Dr. Guidera's testimony, they do not vitiate the legal sufficiency of his opinion.
¶18 The cases relied on by Claimant are distinguishable. In Aguair v. Industrial Commission, 165 Ariz. 172, 797 P.2d 711 (App. 1990), the ALJ relied on a cardiologist's opinion to find that the claimant's heart attack was not industrially related because it was the result of his regular work activities. On appeal, this Court set aside the award and held that the medical opinion the ALJ relied on was legally insufficient because it was inconsistent with the statutory presumption set forth in A.R.S. § 23-1043.01. Id. at 172, 797 P.2d at 711. In this case, there is no statutory presumption with regard to a causal relationship between keyboard work and wrist injuries.
¶19 Claimant also cites several out-of-state cases that found a causal relationship between keyboard use and hand and wrist injuries. This case, however, presents a conflict in medical opinion by two qualified experts. One found a causal connection, and the other did not. When expert medical testimony conflicts, it is the ALJ's duty to resolve those conflicts. Perry, 112 Ariz. at 398, 545 P.2d at 1097. In resolving such conflicts, the ALJ is not required to give greater weight to the testimony of a treating physician over that of an independent medical examiner. See Walters, 134 Ariz. at 599, 658 P.2d at 252. Based on the evidence presented, the ALJ acted within her discretion in concluding that Dr. Guidera's opinions were "more probably correct and well founded."
CONCLUSION
¶20 For the reasons stated, we affirm the award.
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MARGARET H. DOWNIE, Judge
CONCURRING:
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PATRICIA K. NORRIS, Presiding Judge
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LAWRENCE F. WINTHROP, Chief Judge