Dorsey v. Indus. Comm'n of Ariz.
| Decision Date | 28 July 2014 |
| Docket Number | No. 2 CA-IC 2013-0018,2 CA-IC 2013-0018 |
| Parties | SUSAN L. DORSEY, Petitioner/Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA Respondent, LA POSADA AT PARK CENTRE, INC., Respondent/Employer, LIBERTY MUTUAL FIRE INSURANCE COMPANY, Respondent Insurer. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES
NOT FOR PUBLICATION. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
SPECIAL ACTION - INDUSTRIAL COMMISSION ICA Claim No. 20111610095 Insurer No. WC197A13083
The Honorable LuAnn Haley, Administrative Law Judge
AFFIRMED
Tretschok, McNamara & Miller, P.C., Tucson By J. Patrick Butler Counsel for Petitioner/Employee
The Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent
Cross & Lieberman, P.A., Phoenix By Donald L. Cross Counsel for Respondents Employer and Insurer
Presiding Judge Miller authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brammer1 concurred.
¶ 1 In this statutory petition for special action, petitioner Susan L. Dorsey challenges the administrative law judge's (ALJ) findings and decision upon review that she was stable and stationary with no permanent injury. Dorsey contends the ALJ erred by accepting the opinion of the independent medical examiner and failing to consider when Liberty Mutual Fire Insurance Company (Liberty) made payment for court-ordered medical treatment. She also argues the ALJ's earlier finding of a compensable injury precluded Liberty from proving that Dorsey no longer required active care. Because the ALJ did not err, we affirm.
¶2 We view the evidence in the light most favorable to affirming the Industrial Commission's findings and award. Polanco v. Indus. Comm'n, 214 Ariz. 489, ¶ 2, 154 P.3d 391, 392-93 (App. 2007). In June 2011, Dorsey was working as a health aide at La Posada Park Centre, an elderly resident care facility, when she injured her wrist while assisting a patient. Dorsey filed a worker's compensation claim that was initially accepted, but in August 2011, Liberty rescinded approval because its independent medical examiner determined Dorsey's complaints were not causally related to the industrial injury. Dorsey requested a hearing on the issue of whether the injury was compensable.
¶3 At the hearing, Dorsey's expert testified that she suffered from Complex Regional Pain Syndrome (CRPS). The ALJ found the opinion of Dorsey's expert to be the most probably correct and well-founded and concluded the injury was compensable. Neither party sought review and the award became final. See A.R.S. § 23-942(D) ().
¶4 In November 2012, Dorsey filed a request for hearing pursuant to A.R.S. § 23-1061(J), claiming that Liberty had refused to pay her out-of-pocket medical and mileage expenses, refused to reimburse her insurance carrier for medical expenses already incurred, refused to pay for an evaluation by a physical therapist, and refused to authorize stellate ganglion block pain treatments. Several months later, Liberty closed Dorsey's claim, concluding she had no permanent disability. Dorsey filed another request for hearing, which the ALJ consolidated with the earlier hearing request. After three evidentiary hearings, the ALJ issued a decision finding Dorsey stable and stationary but entitled to supportive care consisting of four office visits with a pain management physician and prescription pain medication. The ALJ also ordered Liberty to reimburse Dorsey and her medical providers for all treatment provided since the date of the award, August 15, 2013.2 Dorsey fileda request for review, and the ALJ affirmed her award. This petition for special action followed.
¶5 Dorsey argues first that the testimony of Liberty's independent medical examiner (IME), Dr. Stephen Borowsky, was speculative and lacked foundation; therefore, the ALJ erred by relying on that testimony in support of its award and closure of the claim. Specifically, Dorsey contends Borowsky's conclusion that disuse caused her continuing pain and atrophy was "conjecture and speculation." She also contends his opinion that neither stellate ganglion blocks nor physical therapy were medically necessary lacked foundation. She makes the same objection to his conclusion that she did not suffer from CRPS.3
¶6 To support an award, a medical opinion must be based on a proper foundation. T.W.M. Custom Framing v. Indus. Comm'n, 198 Ariz. 41, ¶ 18, 6 P.3d 745, 751 (App. 2000). That foundation requires findings of medical fact, usually based on the patient's medical history, records, diagnostic tests, and examinations. Id. The ALJ may not rely on testimony based entirely on speculation and conjecture. Brown v. Indus. Comm'n, 20 Ariz. App. 486, 488, 513 P.2d 1369, 1371 (1973); see also Honeywell, Inc. v. Litchett, 146 Ariz. 328, 331,705 P.2d 1379, 1382 (App. 1985). Similarly, proof that an expert has relied on an inaccurate factual background can weaken medical testimony to such an extent that it cannot constitute "substantial evidence" to support an award. Desert Insulations, Inc. v. Indus. Comm'n, 134 Ariz. 148, 151, 654 P.2d 296, 299 (App. 1982). Where the expert's opinion has a proper foundation, however, we will not disturb the ALJ's finding adopting one expert opinion over another unless it is "'wholly unreasonable.'" See Gamez v. Indus. Comm'n, 213 Ariz. 314, ¶ 15, 141 P.3d 794, 796 (App. 2006), quoting Ortega v. Indus. Comm'n, 121 Ariz. 554, 557, 592 P.2d 388, 391 (App. 1979).
¶7 Borowsky conducted two independent medical examinations and prepared two separate reports. The first report was for the initial compensability hearing. In that report, he concluded Dorsey suffered from "[a] mild resolving CRPS/RSD [reflex sympathetic dystrophy], probably self-imposed by disuse, related to the injury of 6/03/2011, with findings of color and swelling changes, with limitations in range of motion of fingers, wrist, elbow and shoulder." He found a triple phase bone scan to be "suggestive, but not diagnostic" of CRPS, and recommended further treatment from a hand therapist, but he advised against stellate ganglion blocks for pain relief. In her decision on compensability, the ALJ accepted the opinion of Dorsey's treating physician, who had diagnosed Dorsey with CRPS caused by the industrial injury, as the "most probably correct and well founded," but also noted that Borowsky had corroborated that opinion.
¶8 After Dorsey made her § 1061(J) request, Borowsky conducted another examination and drafted another report. In the second report, he concluded, "The diagnosis of CRPS/RSD even though entertained in the past does not appear to be an active diagnosis or finding at this time and . . . most of the presentation appears to be that of disuse." He noted in the report and in his testimony that one of the symptoms he did observe, a difference in the measurements of her hands, was related to disuse and the dominance of the uninjured hand. Similarly, he stated disuse would cause the swelling he observed in her fingers. He testified that, overall, there were fewer findings supporting a diagnosis of CRPS than had existed during the first examination. Regarding treatmentof the pain, Borowsky concluded the stellate ganglion blocks were not warranted because the recent blocks had not helped, and stellate ganglion blocks are supposed to provide long-lasting relief and progressive improvement in function. He also stated it was "hard to even recommend therapy" because her past participation in therapy had been limited by complaints of pain.
¶9 Dorsey first argues that Borowsky's testimony was speculative because she could not voluntarily cause all of her symptoms, namely swelling, atrophy, and contractures, as well as the results of a bone scan. She cites Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 10, 275 P.3d 638, 642 (App. 2012) for support. But Hackworth does not support Dorsey's contention. In that case, the experts had agreed on the petitioner's diagnosis and the only question was whether the petitioner's employment was the cause. Id. ¶¶ 4-5. The IME had testified it was possible Hackworth's injury had been caused by his employment, but he did not find a definite correlation, essentially refusing to take a position on causation. Id. ¶¶ 5, 14. This court concluded, "A medical examiner's unwillingness to assent to a conclusion about medical causation, based exclusively on the speculative possibility of unknown causes of an injury, cannot be the basis for denying an otherwise compensable claim." Id. ¶ 20.
¶10 Unlike the medical examiner in Hackworth, Borowsky testified Dorsey's symptoms were caused by voluntary disuse; further, she did not have enough symptoms to warrant a CRPS finding. He attributed the atrophy and swelling to disuse and right-hand dominance. He was not "unwilling[] to assent" to a CRPS diagnosis, id. ¶ 20; rather, he disagreed with it and offered a different diagnosis. Hackworth is inapposite.
¶11 Dorsey next contends Borowsky lacked factual foundation for his conclusions about CRPS and the medical necessity of stellate ganglion blocks or physical therapy. Dorsey does not cite any case law in this section of her argument. She appears to rely on broad statements of law cited earlier in her brief, which require that medical conclusions be based on examinations and medical records and hold that conclusions based on factual inaccuracies are inadequate. See T.W.M. Custom Framing, 198 Ariz.41, ¶ 18, 6 P.3d at 751; Desert Insulations, 134 Ariz. at 151, 654 P.2d at 299.
¶12 Dorsey attacks Borowsky's stellate ganglion blocks opinion because he did not rely on her doctor's detailed records of how they were administered and he ignored the improvements she had made after earlier blocks. But there is no indication in the record that...
To continue reading
Request your trial