Hackworth v. Indus. Comm'n of Arizona, 2 CA–IC 2011–0014.

• Decision Date: 07 May 2012
• Docket Number: No. 2 CA–IC 2011–0014.,2 CA–IC 2011–0014.
• Citation: 275 P.3d 638,634 Ariz. Adv. Rep. 47,229 Ariz. 339
• Parties: Gary D. HACKWORTH, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent,Atlas Copco North America, Respondent Employer,Liberty Mutual Insurance Group, Respondent Insurer.
• Court: Arizona Court of Appeals

229 Ariz. 339

275 P.3d 638

634 Ariz. Adv. Rep. 47

Gary D. HACKWORTH, Petitioner Employee,

v.The INDUSTRIAL COMMISSION OF ARIZONA, Respondent,Atlas Copco North America, Respondent Employer,Liberty Mutual Insurance Group, Respondent Insurer.

No. 2 CA–IC 2011–0014.

Court of Appeals of Arizona, Division 2, Department A.

May 7, 2012.

Tretschok, McNamara & Miller, P.C. By J. Patrick Butler, Tucson, Attorneys for Petitioner Employee.

The Industrial Commission of Arizona By Andrew F. Wade, Phoenix, Attorney for Respondent.

Klein, Lundmark, Barberich & La Mont, P.C. By Eric W. Slavin, Tucson, Attorneys for Respondents Employer and Insurer.ECKERSTROM, Presiding Judge.

¶ 1 In this statutory special action, petitioner employee Gary Hackworth challenges the ruling of the administrative law judge (ALJ) finding his foot injury was not compensable. On review, he argues the independent medical examiner's observation that his injury could have idiopathic causes was an insufficient evidentiary basis for the ALJ to find causation disputed and deny him compensation. We agree and therefore set aside the ALJ's award.

Factual and Procedural Background

¶ 2 On review, we consider the evidence in the light most favorable to upholding the award, Lovitch v. Indus. Comm'n, 202 Ariz. 102, ¶ 16, 41 P.3d 640, 643 (App.2002), and we deferentially review all factual findings made by the ALJ. PFS v. Indus. Comm'n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App.1997).

¶ 3 Hackworth worked as a warehouseman for the respondent employer, Atlas Copco North America, since 2005. His job required him to be on his feet for most of the work day and regularly involved lifting mining equipment that weighed over 200 pounds. In 2009, a physician diagnosed Hackworth with a Morton's neuroma in his right foot. Hackworth underwent surgery that year to remove the neuroma and again in 2010 to remove scar tissue and a recurrent neuroma mass. In July 2010, Hackworth filed an application for compensation claiming his work as a warehouseman had caused, contributed to, or aggravated his foot injury. When his claim was denied, Hackworth filed a timely request for a hearing.¹

¶ 4 At the hearing, the medical experts agreed Hackworth had a Morton's neuroma in his right foot. They also agreed that repetitive trauma or prolonged pressure on the foot, such as standing for extended periods of time, could cause the injury. Dr. Amram Dahukey, a board-certified podiatrist who had performed the second surgery on Hackworth's foot, testified there was a “reasonable medical probability” that Hackworth's work had contributed to his neuroma, meaning there was a “probability ... over 50 percent.”

¶ 5 But Dr. Roger Grimes, a board-certified orthopedic surgeon who served as the independent medical examiner in this case, offered a more tentative conclusion.² He testified it was “possible” the neuroma had been caused by Hackworth's employment, but Grimes added, “I can't state that to a probability” because “I just don't find a definite correlation.” At the conclusion of direct examination, Grimes then answered affirmatively when asked by the respondents whether “all of your opinions today [are] based on a reasonable degree of medical probability.”

¶ 6 The medical literature Hackworth introduced into evidence stated that a “Morton's neuroma is most likely a mechanically induced degenerative neuropathy” that results from “excessive motion” in parts of the foot and “excessive weightbearing stress on the forefoot, particularly by wearing pointed and high-heeled shoes.” When Dr. Grimes was questioned by the respondents about the “typical or usual etiology” for a neuroma such as the one Hackworth had suffered, he replied: “[M]ost often we don't know the reason for it. I think that on occasion poorly fitting footwear, sometimes prolonged walking on a hard surface might be associated with neuroma.” On cross-examination, Grimes elaborated on the topic of causation as follows:

Q: So then let's move on to the neuroma, which is a gradual onset claim. When you say that the possible causes—that it's possible that the heavy lifting and being on his feet all the time could possibly be a cause for the neuromas, what other conditions are you looking at that you're considering as causation factors?

A: Well, it's frequently [id]iopathic. We don't have a reason for it happening.

Q: You would agree that, in terms of the weight bearing and repetitive trauma, that lifting 200 pounds each day frequently would be severe stress on the feet—could cause severe stress on the feet?

A: The prolonged weight bearing I think is possible. The lifting, I think is certainly possible, but less likely.

....

Q: Why the lifting? Why do you think that's less possible?

A: Because I don't see that as producing—necessarily producing a stress on his foot.

Grimes acknowledged that Hackworth did not complain of foot problems in 2006 or early 2007, in his first years of work with Atlas, which led Grimes to conclude the neuroma had not resulted from a separate work injury Hackworth had sustained in that period. But Grimes offered no further testimony about the neuroma's causal connection to Hackworth's employment other than saying such a connection was “possible.”

¶ 7 The ALJ found there was a conflict in the medical testimony and accepted the opinion of Dr. Grimes as “most well-reasoned and correct.” ³ Because “Dr. Grimes opined that he cannot state to a probability that the applicant's industrial activity caused the right foot neuroma,” the ALJ concluded that “there [wa]s no medical basis for granting compensability.” The ALJ's decision denying compensation was affirmed after Hackworth filed a request for administrative review.⁴ We have jurisdiction to review the ALJ's ruling pursuant to A.R.S. §§ 12–120.21(A)(2), 23–951(A), and Rule 10, Ariz. R.P. Spec. Actions.

Discussion

¶ 8 Hackworth summarizes the foregoing by noting that the “uncontroverted medical literature in evidence states Morton's neuromas are caused by repetitive trauma to the foot.” Hackworth's treating specialist testified the right foot problem here was “caused or aggravated by [Hackworth's] job requiring him to be on his feet most of the day lifting heavy loads.” Dr. Grimes agreed it was possible the condition was caused by Hackworth's work duties and provided “no facts or evidence” to suggest it was not. Under these circumstances, Hackworth argues, the “doctor's generic opinion ..., unsupported by specific facts or medical literature, cannot reasonably be relied upon by the ALJ to support a finding of non-compensability.” We agree.

¶ 9 “To prove compensability, the claimant must establish all the elements of his claim,” including that he has “suffered an injury and that the injury was causally related to his employment.” W. Bonded Prods. v. Indus. Comm'n, 132 Ariz. 526, 527, 647 P.2d 657, 658 (App.1982). A claimant must prove both medical and legal causation to establish a compensable claim. Grammatico v. Indus. Comm'n, 208 Ariz. 10, ¶ 8, 90 P.3d 211, 213–14 (App.2004), aff'd, 211 Ariz. 67, 117 P.3d 786 (2005). Medical causation, which is at issue here,⁵ requires proof that the employment caused or contributed to the injury. See Ariz. Const. art. XVIII, § 8; A.R.S. §§ 23–901(13)(c), 23–901.01(A); Ford v. Indus. Comm'n, 145 Ariz. 509, 517–18, 703 P.2d 453, 461–62 (1985). When the cause of an injury is not apparent to a lay person, causation must be established by expert testimony, Fry's Food Stores v. Indus. Comm'n, 161 Ariz. 119, 121, 776 P.2d 797, 799 (1989); Phelps v. Indus., Comm'n, 155 Ariz. 501, 505, 747 P.2d 1200, 1204 (1987), and proven “to a reasonable degree of medical probability.” Payne v. Indus. Comm'n, 136 Ariz. 105, 108, 664 P.2d 649, 652 (1983). If no conflict exists in the medical testimony, the ALJ is bound to accept it. Crystal Bottled Waters v. Indus. Comm'n, 174 Ariz. 184, 185, 847 P.2d 1131, 1132 (App.1993). If medical testimony conflicts, however, the ALJ must resolve the conflict. Stainless Specialty Mfg. Co. v. Indus. Comm'n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985). We will not disturb the ALJ's resolution of such a conflict “unless it is wholly unreasonable.” Id.

¶ 10 Equivocal or speculative medical testimony is insufficient to support an award or to create a conflict in the evidence. See Rahar v. Indus. Comm'n, 94 Ariz. 170, 175, 382 P.2d 656, 658–59 (1963); Walters v. Indus. Comm'n, 134 Ariz. 597, 600, 658 P.2d 250, 253 (App.1982); Harbor Ins. Co. v. Indus. Comm'n, 25 Ariz.App. 610, 612, 545 P.2d 458, 460 (1976); Marquez v. Indus. Comm'n, 18 Ariz.App. 16, 18, 499 P.2d 747, 749 (1972). Medical testimony is equivocal when it is subject to more than one interpretation or when the expert avoids committing to a particular opinion. Rosarita Mexican Foods v. Indus. Comm'n, 199 Ariz. 532, ¶ 13, 19 P.3d 1248, 1252 (App.2001); State Comp. Fund v. Indus. Comm'n, 24 Ariz.App. 31, 36, 535 P.2d 623, 628 (1975).

¶ 11 Here, Dr. Grimes's testimony was equivocal. On direct examination, he appeared to make a strong statistical claim that a Morton's neuroma is “[m]ost often” due to an “idiopathic” cause, meaning it is “a disease of unknown cause.” Stedman's Medical Dictionary 617 (3d unabridged lawyers' ed. 1972).⁶ Taken literally, this claim would conflict with the medical literature admitted into evidence, which asserted a “Morton's neuroma is most likely a mechanically induced degenerative neuropathy” that “exhibits predilection for fashion-minded women ... who frequently wear pointed and high-heeled shoes.” When later pressed on the issue, however, Grimes appeared to make a weaker claim that idiopathic causes are “frequently” responsible for the condition—a tempered assertion not necessarily creating any conflict.

¶ 12 Similarly, when Dr. Grimes initially was asked about the strength of his opinion as to causation, he appeared to deny attributing any cause or drawing any probabilistic conclusion, explaining he “c[ould]n't state that to a...