Bayless v. Industrial Com'n of Arizona

• Court: Arizona Court of Appeals
• Writing for the Court: CONTRERAS; JACOBSON, P.J., and LANKFORD
• Citation: Bayless v. Industrial Com'n of Arizona, 880 P.2d 654, 179 Ariz. 434 (Ariz. App. 1993)
• Decision Date: 23 December 1993
• Docket Number: No. 1,CA-IC,1
• Parties: A.J. BAYLESS, Petitioner Employer, Argonaut Insurance Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION of ARIZONA, Respondent, Steve Erdos, Respondent Employee. 92-0147.

Page 654

880 P.2d 654

179 Ariz. 434

A.J. BAYLESS, Petitioner Employer Argonaut Insurance Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION of ARIZONA, Respondent Steve Erdos, Respondent Employee.

No. 1 CA-IC 92-0147.

Court of Appeals of Arizona Division 1, Department B.

Dec. 23, 1993.

Review Denied Sept. 20, 1994.

[179 Ariz. 435] Long, Lester & Lundmark, P.A. by Steven C. Lester, Phoenix, for petitioner employer and petitioner carrier.

Anita R. Valainis, Chief Counsel, the Indus. Com'n of Arizona, Phoenix, for respondent.

[179 Ariz. 436] Ronald M. Meitz, Phoenix, for respondent employee.

OPINION

CONTRERAS, Judge.

This is a review of an Arizona Industrial Commission award and decision upon review reopening a 1986 back injury claim based upon findings that subjective complaints had worsened, were related to the industrial injury, and required active care. The issues presented are (1) whether a previous award terminating the 1986 claim and a related 1984 back injury claim without permanent impairment precluded reopening; and (2) whether sufficient evidence supports reopening. We conclude that reopening is not precluded and that sufficient evidence supports reopening. Accordingly, the award is affirmed.

FACTUAL AND PROCEDURAL HISTORY

On November 17, 1984, respondent employee ("claimant"), a butcher, injured his lower back while lifting turkeys at work. After this injury, he complained of lower back and radiating left leg pain. A December 1984 CT scan revealed a central and left-sided disc bulge at L5-S1 with a partial compromise of the neural foramen. After several months of conservative care, claimant's family physician, William H. Devine, D.O., released him to regular work.

Despite ongoing symptoms, claimant returned to work for petitioner employer. On April 12, 1986, he again injured his lower back when he fell at work. Although the 1984 injury claim remained open, petitioner carrier ("Argonaut") paid all benefits under the second injury claim.

After the second injury, claimant complained of increased back and bilateral leg pain and never returned to work. A January 1987 myelogram and CT scan again revealed a central and left-sided disc bulge at L5-S1, which according to the radiologist "effac[ed] the thecal sac in the origin of the S1 rootlets, probably with no significant compromise."

In April 1987, Argonaut referred claimant to the Southwest Disability Evaluation Center for a group independent medical examination. The group, which included neurosurgeon Volker K.H. Sonntag, M.D., commented that the 1987 CT scan revealed a disc bulge that "did not seem to be remarkable and it was felt not to be of any significance." During the physical examination, claimant walked stiffly and slightly bent over with a waddling gait, and his range of motion was severely restricted. The consultants concluded that claimant was stationary without objective evidence of permanent impairment and that he could return to regular work.

Relying on this report, Argonaut terminated both the 1984 and the 1986 injury claims. Claimant requested a hearing. Pending the hearing, he saw, among others, orthopedic surgeon Stuart B. Phillips, M.D., and Dr. Sonntag reexamined him. Argonaut also placed claimant under surveillance and filmed him, among other things, bending, walking rapidly, running, and using his entire body to pull-start a boat motor, all without any apparent restriction.

At the ensuing hearings, the medical experts included Drs. Devine, Phillips, and Sonntag. Dr. Devine diagnosed a true radiculopathy related to the L5-S1 disc bulge. In his opinion, this condition was progressing toward surgery. Although Dr. Devine had not seen the surveillance films, he testified that "if someone suggested the man's malingering, it's because they didn't know him before and I want to tell you it's absolutely wrong and preposterous."

Dr. Phillips interpreted the 1984 CT scan to show that the disc bulge compromised the S1 nerve root, and he also diagnosed radiculopathy on this basis. He, however, conceded that his clinical findings were contradictory and that the surveillance films were inconsistent with claimant's altered gait and restricted motion during examination. He also agreed that the disc bulge could be a degenerative change that preexisted the industrial injuries and, therefore, that his opinion that the injuries contributed to the radiculopathy depended on the credibility of claimant's history.

Dr. Sonntag, in contrast, testified that the diagnostic studies were either normal or inconclusive. He found no clinical evidence of radiculopathy and reiterated that claimant had no permanent impairment. After reviewing the surveillance films, he suggested that claimant had tried to "masquerade" during examination.

The Administrative Law Judge ("ALJ") in due course issued an award terminating both injury claims without permanent impairment. He relied on the surveillance films to find that claimant "when being examined was masquerading or feigning." He also concluded that the April 16, 1987 group report was "most likely correct." Without further explanation, the ALJ terminated both claims without permanent impairment from and after April 16, 1987, the date of the group examination.

On review, claimant argued that the more persuasive medical evidence established a permanent impairment related to the industrial injuries regardless of claimant's credibility. Argonaut responded by arguing that claimant could establish that the industrial injuries caused or aggravated the L5-S1 disc bulge only if the ALJ accepted claimant's history. The ALJ affirmed the award without modification, and the terminations became final.

Claimant continued treatment with Dr. Devine and complained of progressively worsening symptoms. In March 1989, claimant had a third CT scan. In an addendum, ¹ the radiologist reported a "[s]light accentuation of the central and right lateral posterior disc herniation or protrusion compared with the previous study." The comparison, however, was to the 1984 CT scan, not to the 1987 CT scan. On the face of this addendum, Dr. Devine wrote, "New Information: Condition has gotten worse on CT Scan! Clinical condition is worse."

Dr. Devine referred claimant to neurosurgeon William L. White, M.D., who examined him on August 15, 1989. On August 22, 1989, claimant filed a petition to reopen and subsequently filed the March 1989 addendum to support it. On September 7, 1989, the commission notified Argonaut of this petition.

Meanwhile, on September 6, 1989, claimant had another myelogram and CT scan. The radiologist reported that the bulge touched nerve rootlets but did not significantly compromise them. On September 14, 1989, Dr. White, assisted by Dr. Devine, performed lower back surgery on claimant. The pre- and post-operative diagnosis was a bilateral herniated L5-S1 disc. The operative findings, however, were a mild bulge of the L5-S1 disc on the left, a moderate bulge on the right, and a soft annulus. The body of the report does not expressly refer to decompression of any nerve roots.

On October 13, 1989, Argonaut denied reopening. Claimant requested a hearing. Pending the hearing, Argonaut raised the affirmative defense of res judicata (preclusion). Argonaut also referred claimant to Irwin Shapiro, M.D., for an independent medical examination.

At the ensuing hearings before a different ALJ, Drs. Devine, White, Shapiro, and Sonntag provided medical testimony. Dr. Devine testified that claimant's condition deteriorated to the degree that he walked with a stumbling gait and could not stand erect. In his opinion, surgery became necessary because of this worsened condition just as he had anticipated in 1987. Dr. Devine conceded, however, that he had no written record of neurologic changes since the claims were closed.

Dr. Devine related the surgery and the industrial injuries, but he acknowledged that his causation opinion was unchanged and presupposed that the industrial injuries permanently aggravated the disc pathology at L5-S1. Regarding the surgical findings, Dr. Devine testified that, "I assisted decompressing and I held back the dural sleeve as we took the disc off. The sleeve was pink, it was inflamed.... I've seen fresh herniated discs ... but this wasn't. It was dry disc and difficult to remove." He, however, acknowledged that the surgery had only partially relieved claimant's symptoms.

Dr. White testified that his examination findings were essentially the same as those of the group in 1987. Relying on Dr. Devine's history that claimant's condition had deteriorated, however, Dr. White agreed that claimant had worsened since 1987. Dr. White, however, could not explain these worsened symptoms. Although the 1989 addendum reported a slight accentuation of the disc bulge, Dr. White doubted the significance of this finding and acknowledged that the September 1989 myelogram and CT scan showed no change compared to the same studies in 1987. He also explained that his operative report used the term "herniation" synonymously with "bulge." The parties did not otherwise question Dr. White about his surgical findings.

Regarding causation, Dr. White acknowledged that his operative findings were consistent with degenerative disc disease and that any causal link between this disease and the industrial injuries depended on the credibility of claimant's history. He also stated that he disagreed with the 1987 group's conclusion. In his opinion, the industrial injuries permanently aggravated the disc bulge at L5-S1.

Dr. Shapiro testified that the September 1989 myelogram and CT scan revealed only a disc bulge without any nerve root compromise. He concluded that claimant had nothing new, additional or previously undiscovered compared to the findings and conclusions of the April 1987 group.

Dr. Sonntag reiterated his opinion that the 1987 CT scan and myelogram were essentially normal. He explained that the 1987 group...