Opinion
No. 1 CA-IC 16-0014
12-13-2016
KHAMME G. LAZAR, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, GOOD NEIGHBOR ASSISTED LIVING SERVICE, Respondent Employer, COPPERPOINT PREMIER INSURANCE COMPANY, Respondent Carrier.
COUNSEL Khamme G. Lazar, Surprise Petitioner CopperPoint Premier Insurance Company, Phoenix By Chiko F. Swiney Counsel for Respondent Employer/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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. 20113-270175
Carrier Claim No. 11P03936
The Honorable Karen Gianas, Administrative Law Judge
AFFIRMED
COUNSEL Khamme G. Lazar, Surprise
Petitioner CopperPoint Premier Insurance Company, Phoenix
By Chiko F. Swiney
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Randall M. Howe and Judge Donn Kessler joined. JONES, Judge:
¶1 Khamme Lazar seeks special action review of an Industrial Commission of Arizona (the Commission) decision upon review, in which the administrative law judge (ALJ) affirmed the decision upon hearing denying Lazar's request to reopen her claim. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to affirming the Commission's findings and awards. Polanco v. Indus. Comm'n, 214 Ariz. 489, 490-91, ¶ 2 (App. 2007) (quoting Roberts v. Indus. Comm'n, 162 Ariz. 108, 110 (1989)).
¶2 Lazar began working as a caregiver at Good Neighbor Assisted Living in 2009. In October 2011, Lazar had to physically support an elderly resident who had lost her balance in the shower. Lazar then helped the woman to her bed, but, when Lazar subsequently hoisted the woman's shower chair out of the shower, she suffered a back injury, causing pain in her lower back that radiated down her right leg. Copperpoint Insurance Company subsequently accepted Lazar's claim for workers' compensation benefits in November 2011.
¶3 A series of MRI examinations revealed Lazar had a disc herniation between her L4 and L5 vertebrae. Dr. Paul Gause performed a discectomy and laminectomy in April 2012. Multiple MRIs taken after the surgery showed postoperative changes to Lazar's lumbar spine that indicated neither nerve impingement nor "new disc protrusion."
¶4 Soon after the surgery and subsequent to a later fall she sustained at her physical rehabilitation facility, Lazar complained of pain and numbness along her right side, from "the top of [her] head" to her "right lower extremity." Several surgical, psychiatric, and neurological professionals, however, believed her symptoms were the subjective product of a conversion disorder. A month after surgery, Lazar's treating physician, Dr. Atul Patel, reported: "[T]here is nothing further to be offered. Unless there is a fundamental change in the patient's behavior and perception of her condition, it is unlikely that a significant functional improvement will be realized. She was reassured repeatedly that she will recover . . .."
Conversion disorder is a psychiatric condition in which a person has "[o]ne or more symptoms or deficits affecting voluntary motor or sensory function that suggest a neurological or other general medical condition . . . not intentionally produced or feigned" but which "cannot, after appropriate investigation, be fully explained by a general medical condition." Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders § 300.11, at 498 (4th ed. 2000).
¶5 In November 2012, Lazar had CT and MRI scans of her lumbar spine that failed to show an exacerbation of her disc herniation relative to postoperative imaging taken immediately after her April 2012 surgery. Additionally, Dr. Patel opined Lazar "was at maximum medical improvement." When Dr. Ali Araghi eventually took over Lazar's care, he determined she would not be a good candidate for further surgery. In January 2013, Lazar consulted Dr. Araghi's partner, Dr. Joshua Abrams, in regard to neck pain.
¶6 Drs. Dennis Crandall and Gary Dilla performed an independent medical evaluation on January 21, 2013. During the evaluation, Lazar "complained essentially of head to toe pain on the right side of her body." Both doctors found "insufficient medical record evidence to support any upper body injury, specifically, any injury to the head, neck or right upper limb, associated with the original industrial injury." They did "attribute disc herniation at L4-5 and the surgery for that disc herniation to be related to the industrial injury," though "[t]hings that weren't related include[d] everything else." The doctors concluded that Lazar had "reached permanent and stationary status as it relate[d] to [her] industrial injury" and suffered "a 12% whole person impairment," but did not require any physical work restrictions.
¶7 A second independent medical evaluation performed by a psychiatrist, Dr. Joel Parker, emphasized that "[n]umerous physicians have commented on their concerns about the physical legitimacy of [Lazar's] condition," and opined "her physical complaints have been far in excess of what would be expected from the history, physical examination, and laboratory findings." Effective January 25, 2013, Copperpoint Insurance closed Lazar's workers' compensation claim with a determination she suffered a 12% impairment and no loss of earning capacity.
¶8 In April 2013, Lazar protested the closure of her claim and requested a hearing. Before the hearing, Lazar again consulted Dr. Abrams in regard to her neck, though Dr. Abrams eventually assumed the care for her back as well. Dr. Abrams diagnosed Lazar with a recurrent disc herniation, and, in April 2013, performed an anterior interbody fusion of her L4-S1 vertebrae. Dr. Abrams also performed an anterior cervical fusion in Lazar's neck in September 2013.
¶9 Hearings on Lazar's protest were held in February and June of 2014. Dr. Crandall, Dr. Abrams, and Lazar testified. In his testimony and an addendum to the January 2013 evaluation, Dr. Crandall responded to questioning regarding whether the two surgeries conducted by Dr. Abrams were medically necessary to address either Lazar's original industrial injury or her fall in rehab. Dr. Crandall stated:
Dr. Abrams must not have had any of the psychiatric records or neurological records available.Dr. Abrams, in turn, testified the April 2013 lumbar surgery he performed was related to Lazar's original industrial accident, and Lazar had "subjective weakness in her right upper extremity regarding her cervical spine." He could not recall if he had reviewed Dr. Parker's psychiatric examination.
. . .
[T]he L5-S1 segment . . . was a preexisting problem. . . . [T]o be just brutally honest and clear, the surgeries should never have been done. . . . [T]he surgery was not indicated on an industrial basis and it was not indicated on a medical basis.
¶10 The ALJ issued a decision upon hearing in July 2014 that found Lazar not credible and adopted Dr. Crandall's opinion that Lazar was medically stationary relative to the October 2011 injury, essentially closing Lazar's claim effective January 2013. Lazar petitioned to reopen her claim in December 2014. The petition was denied, but the Commission granted her request for a hearing protesting the denial of her petition to reopen.
¶11 At the November 2015 hearing, Dr. Abrams testified he had "no opinion" whether the symptoms Lazar had experienced since January 2013 were new, additional, previously undiscovered, or related to Lazar's original industrial injury. In December 2015, the ALJ denied Lazar's petition to reopen her claim. Lazar filed a request for review in January 2016, after which the ALJ affirmed his decision.
¶12 Lazar timely petitioned this Court for special action relief. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(2) and 23-951(A).
Absent material changes from the relevant date, we cite a statute's current version.
DISCUSSION
¶13 When reviewing a workers' compensation award, we defer to the factual determinations of the ALJ and will not set aside the ALJ's decision if the evidence reasonably supports it. Tabler v. Indus. Comm'n, 202 Ariz. 518, 522, ¶ 14 (App. 2002) (citing Vance Int'l v. Indus. Comm'n, 191 Ariz. 98, 100, ¶ 6 (App. 1998)); Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16 (App. 2002) (citing Salt River Project v. Indus. Comm'n, 128 Ariz. 541, 544-45 (1981)).
¶14 Lazar argues the ALJ erred in denying her petition to reopen her claim because she alleges she continues to experience back pain radiating into her right leg even after the April 2012 surgery, and, furthermore, has new medical records supporting her assertion. An applicant seeking to reopen an industrial claim has the burden of showing the presence of a new, additional, or previously undiscovered condition through objective physical findings; the applicant cannot rely solely on increased subjective pain. A.R.S. § 23-1061(H). Moreover, such an applicant must establish a causal relationship between the new, additional, or previously undiscovered condition and the prior industrial injury, see Sneed v. Indus. Comm'n, 124 Ariz. 357, 359 (1979) (citing Siqueiros v. Indus. Comm'n, 20 Ariz. App. 104, 106 (1973), and London v. Indus. Comm'n, 71 Ariz. 111, 116 (1950)), and if the causal relationship is not clearly apparent, the applicant must do so with expert medical testimony, Fry's Food Stores v. Indus. Comm'n, 161 Ariz. 119, 121 (1989) (citing W. Bonded Prods. v. Indus. Comm'n, 132 Ariz. 526, 527-28 (App. 1982)).
Much of the "new evidence" Lazar submitted with her petition for special action has already been reviewed and rejected by the ALJ, whose conclusions we will not disturb if supported by reasonable evidence, see supra ¶ 13, or was authored by Dr. Abrams, who specifically declined to comment on Lazar's condition at the most recent hearing. The remainder of Lazar's evidence was not contained in the Commission's record, and we do not consider it. See Lovitch, 202 Ariz. at 105, ¶ 15 (declining to consider evidence not previously presented to the ALJ) (citing Schultz v. Indus. Comm'n, 44 Ariz. 357, 361 (1934)). --------
¶15 The record reflects Lazar's original claim was closed in January 2013, and the Commission affirmed that closure in both July 2014 and December 2015. When the ALJ denied the reopening of her claim in December 2015, he specifically noted that the medical evidence Lazar presented to support her petition to reopen consisted of the medical records and November 2015 expert testimony of Dr. Abrams. Yet, in November 2015, Dr. Abrams testified he had no opinion as to whether Lazar had any new, additional, or previously undiscovered medical condition. The ALJ thereafter concluded, consistent with A.R.S. § 23-1061(H), that Lazar's "subjective report of increased pain, without more, is insufficient evidence that she has a new, additional, or previously undiscovered condition." This conclusion is consistent with the bulk of the evidence within the record, which indicates a substantial psychological component to Lazar's physical symptoms. The Commission's refusal to reopen Lazar's claim is supported by the evidence, and we find no abuse of discretion.
CONCLUSION
¶16 The ALJ's decision upon review is affirmed.