Opinion
No. 1 CA-IC 19-0042
04-01-2021
TANYA NUNES, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, BIG JIMMYS PIZZA, Respondent Employer, SPECIAL FUND DIVISION/NO INSURANCE SECTION, Respondent Party in Interest.
COUNSEL The Hassett Law Firm P.L.C., Phoenix By Jamie A. Glasser, Myles P. Hassett, David R. Seidman Counsel for Petitioner Employee Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent Industrial Commission of Arizona, Phoenix By Scott J. Cooley Counsel for Respondent Party in Interest
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. 20180-950433
Carrier Claim No. NONE
Paula R. Eaton, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
The Hassett Law Firm P.L.C., Phoenix
By Jamie A. Glasser, Myles P. Hassett, David R. Seidman
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Industrial Commission of Arizona, Phoenix
By Scott J. Cooley
Counsel for Respondent Party in Interest
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.
FURUYA, Judge:
¶1 Petitioner Tanya Nunes seeks review of the award and decision upon review affirming closure of her worker's compensation case effective August 6, 2018. Nunes argues that the administrative law judge's ("ALJ") decision was unreasonable and made insufficient or unsupported findings. For the following reasons, we affirm the award.
FACTS AND PROCEDURAL HISTORY
¶2 On March 11, 2018, Nunes was involved in a motor-vehicle accident and sustained a compensable industrial injury while delivering food for Big Jimmy's Pizza. Nunes injured her right upper back, right arm, right lower back, and right leg in the accident. Because Big Jimmy's Pizza had no workers' compensation coverage, the Special Fund Division/No Insurance Section ("Special Fund") was notified. After an administrative assessment of compensability, the Special Fund accepted Nunes' claim on May 18, 2018. On August 2, 2018, Nunes' treating physician, Dr. Tristan Pico, diagnosed her with complex regional pain syndrome ("CRPS"). On August 6, 2018, doctors for the Special Fund independently examined Nunes and determined that her industrial injuries were medically stationary with no permanent impairment. These doctors found no signs of CRPS, and concluded Nunes' nonindustrial psychiatric condition had been misinterpreted as a pain syndrome.
¶3 The Special Fund then closed Nunes' workers' compensation benefits effective August 6, 2018. Nunes challenged the closure of benefits, arguing that the pain she experiences was caused by CRPS, which developed from her industrial injury. Still experiencing pain, Nunes underwent surgery in late November 2018 to implant a spinal stimulator. At the hearing on Nunes' challenge, held in January, March, and May of 2019, the ALJ heard testimony from Nunes, Dr. Pico, and Dr. Dennis
Crandall, one of the medical doctors who performed an independent medical examination of Nunes. On May 22, 2019, the ALJ issued a decision and made the following findings:
Upon a review of the totality of the evidence, I find [Nunes] not credible. Accordingly, any conflicts in the evidence are resolved against [Nunes] . . . I find the opinions of Dr. Crandall to be more probably correct and well founded [than those of Dr. Pico]. Based upon the testimony of Dr. Crandall, I find that [Nunes]'s condition related to the industrial injury was medically stationary as of August 6, 2018 with no permanent impairment and no need for supportive care.
¶4 Following Nunes' Request for Review, the ALJ affirmed the findings and award, issuing a Decision Upon Review. We have jurisdiction over Nunes' challenge to that decision pursuant to Arizona Revised Statutes §§ 12-120.21(A)(2) and 23-951(A), and Arizona Rule of Procedure for Special Actions 10.
DISCUSSION
¶5 We review the ALJ's decision for an abuse of discretion. Martens v. Indus. Comm'n, 211 Ariz. 319, 322, ¶ 16 (App. 2005). An ALJ has the responsibility to resolve conflicting evidence (including disputed medical evidence), and the ALJ's resolution will not be set aside "unless it is wholly unreasonable." Ortega v. Indus. Comm'n, 121 Ariz. 554, 557 (App. 1979). "[W]e consider the evidence in the light most favorable to upholding the award," PF Chang's v. Indus. Comm'n, 216 Ariz. 344, 347, ¶ 13 (App. 2007), and "will not disturb an ALJ's findings of fact so long as [they are] substantiated by competent evidence," City of Tucson v. Indus. Comm'n, 236 Ariz. 52, 55, ¶ 6 (App. 2014).
¶6 Nunes first argues that the ALJ's decision is "wholly unreasonable" because the award determined Nunes' industrial injuries to be medically stationary on August 6, 2018, before her late November 2018 surgery, which she testified ultimately improved her pain symptoms. This position, however, is based on the assumption that Nunes' continuing pain was derivative from her industrial injury. But, the ALJ's decision negates that assumption.
¶7 At a determination of closure, an applicant bears the burden of proving that his or her physical condition was causally related to a compensable industrial injury and that he or she was not yet medically
stationary. See Aguayo v. Indus. Comm'n, 235 Ariz. 413, 415, ¶ 10 (App. 2014). Here, Nunes correctly observes that the ALJ's decision and both medical witnesses acknowledged Nunes was in pain until the November 2018 surgery, and further, that her pain improved after the surgery. The remaining issue, however, was whether her pain was causally related to her industrial injury. Id. Dr. Crandall testified that Nunes' pain was unrelated to her industrial injury, and the record contains medical evidence and testimony supporting that opinion. And although Nunes also presented evidence to establish the contrary, it is the province of the ALJ to consider and weigh the evidence and determine what is more persuasive. Walters v. Indus. Comm'n, 134 Ariz. 597, 599 (App. 1982) ("[T]he trier of fact, with live bodies before it, is in the most advantageous position to weigh the evidence, judge credibility, and evaluate the nuances of witness demeanor that adds up to a conviction that one witness' testimony is entitled to more weight than another."). After considering the evidence presented, the ALJ ultimately decided to adopt the opinions of Dr. Crandall as determinative regarding the causation question. And this Court views the record evidence in the light most favorable to upholding the award. PF Chang's, 216 Ariz. at 347, ¶ 13. The record supports the ALJ's award.
¶8 Next, Nunes questions the ALJ's finding that Dr. Crandall's opinions are "more probably correct and well founded," arguing that Dr. Crandall only examined Nunes once while Dr. Pico examined her on multiple occasions. Nunes' argument goes to the weight of medical evidence, and we do not reweigh the evidence on appeal. Jaramillo v. Indus. Comm'n, 203 Ariz. 594, 596, ¶ 6 (App. 2002).
¶9 Nunes further faults the ALJ's award because it is unclear to what extent it may have relied upon hearsay testimony. In support of this argument, Nunes cites to Wieseler v. Prins, 167 Ariz. 223, 227 (App. 1990) for the proposition that "hearsay cannot stand alone without the support of other reliable evidence." But Wieseler in fact held that "Reliable hearsay is admissible in administrative proceedings and may even be the only support for an administrative decision." Id. (citing Begay v. Arizona Dep't of Economic Sec., 128 Ariz. 407 (App. 1981). Thus, an ALJ does not err by allowing hearsay testimony, relying upon hearsay testimony, or not specifying to what extent he or she relied upon such hearsay testimony.
¶10 Nunes additionally maintains the award must be set aside because the ALJ did not make specific findings regarding Nunes' CRPS diagnosis and psychological condition. "[A]n ALJ must fulfill his [or her] statutory responsibility and make specific findings on all material issues and resolve all material conflicts in the evidence[.]" Aguirre v. Indus.
Comm'n, 247 Ariz. 75, 77, ¶ 12 (2019) (quotation omitted). This is especially important where conflicting expert medical testimony is involved. Post v. Indus. Comm'n, 160 Ariz. 4, 8 (1989). A lack of findings on a particular issue does not invalidate an award per se, but the ALJ must make findings on all material issues. Id. at 7.
¶11 Here, the material issues before the ALJ were whether Nunes' industrial injuries were medically stationary and whether any ongoing condition was causally related to a compensable industrial injury. The conflicting medical evidence centered on Nunes' CRPS diagnosis. The ALJ found that while Dr. Pico opined that the industrial injury "resulted in complex regional pain syndrome," Dr. Crandall opined only to "contusions and a sprain/strain as a result of the subject industrial injury." The ALJ's findings also noted that Dr. Pico recommended surgery to treat CRPS, while Dr. Crandall found Nunes' condition "stationary with no permanent impairment and no need for supportive care." The ALJ concluded that Dr. Crandall's opinions were "more probably correct and well founded" and that Nunes' industrial injury was medically stationary at the time Dr. Crandall examined her. These findings resolve the material issue before the ALJ and settle the contradictory medical evidence against Nunes. Therefore, again, we will not disturb those findings "so long as [they are] substantiated by competent evidence." City of Tucson, 236 Ariz. at 55, ¶ 6.
¶12 The record supports the ALJ's findings. Dr. Crandall, along with Dr. Stephen Borowsky, who did not testify but participated in the independent medical examination with Dr. Crandall, found no signs of CRPS during their August 6, 2018 examination. The doctors' report documentation supports their conclusion that "the most likely major impacting factor to the claimant's current symptoms are her underlying psychologic or psychiatric issues and these are not related to the industrial injury." Dr. Crandall testified that Nunes' pain was caused by a combination of arthritis and psychological issues. By contrast, when the ALJ asked Dr. Pico whether he thought Nunes' preexisting mental conditions were being misinterpreted as CRPS, Dr. Pico responded, "I would say in this case, no[.]" Presented with differing medical opinions, the ALJ was responsible for resolving the conflicting evidence. Ortega, 121 Ariz. at 557.
¶13 Nunes further argues that the ALJ's decision is legally deficient because it failed to make findings related to Nunes' psychological disorders. But Nunes concedes that both doctors agreed her psychological conditions affected how she perceives pain. With no conflict to resolve, specific findings regarding Nunes' psychological disorders were not
required. See Aguirre, 247 Ariz. at 77, ¶ 12; see also Post, 160 Ariz. at 7. Moreover, Nunes never argued that her psychological state was related to her industrial accident. Rather, Nunes herself testified to the contrary. Had Nunes wanted to argue that her psychological disorders were caused or exacerbated by her industrial injury, she bore the burden of proof to make that showing. See Aguayo, 235 Ariz. at 415, ¶ 10.
¶14 Finally, Nunes asserts that the award should be set aside because the ALJ's finding that Nunes was not credible is unexplained and unsupported. Nunes relies on Adams v. Indus. Comm'n, 147 Ariz. 418, 421 (App. 1985) to support her argument, but Adams is clearly distinguishable. In Adams, a successor ALJ reversed an award on review issued by a different ALJ without having personally observed any testimony. Id. at 419-20. Because there were no witnesses to the claimant's injury in Adams, "the credibility of the claimant was central to the determination of [Adams'] matter," and reversal without reopening the hearing was error. Id. at 422. Here, unlike in Adams, the ALJ was personally present to observe Nunes' testimony and argument at a hearing, and therefore, was in a proper position to assess her credibility. Therefore, Adams is inapposite, and we will not disturb "the deference we ordinarily give to an administrative law judge's assessment of credibility." Id. Accordingly, Nunes has shown no error.
CONCLUSION
¶15 Because Nunes has failed to establish any error, we affirm the award.