McAvoy v. Indus. Comm'n of Ariz.
| Decision Date | 20 July 2016 |
| Docket Number | No. 2 CA-IC 2015-0013,2 CA-IC 2015-0013 |
| Parties | STEVE MCAVOY Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, SENERGY PETROLEUM, LLC, Respondent Employer, COPPERPOINT AMERICAN 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NOT FOR PUBLICATION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(a)(1), (f); Ariz. R. Spec. Act. 10(k).
Special Action - Industrial Commission
LuAnn Haley, Administrative Law Judge
AWARD AFFIRMED
Brian Clymer, Tucson
Counsel for Petitioner
By Andrew F. Wade
Copperpoint American Insurance Company
Mark A. Kendall, Associate General Counsel
By Veronique Pardee, Tucson
Judge Espinosa authored the decision of the Court, in which Presiding Judge Howard and Judge Staring concurred.
¶1 In this statutory petition for special action, petitioner Steve McAvoy contends the administrative law judge (ALJ) erred as a matter of law in terminating treatment due to a lack of an objective change in his condition. He also argues there was no substantial evidence to support the ALJ's award of "Supportive Medical Maintenance Benefits." For the following reasons, we affirm.
¶2 We consider the evidence in the light most favorable to upholding the Industrial Commission's award. Polanco v. Indus. Comm'n, 214 Ariz. 489, ¶ 2, 154 P.3d 391, 392-93 (App. 2007). McAvoy sustained an industrial injury in February 2014, when he was "lifting [a] hose up [a] ladder" while employed as a truck driver for Senergy Petroleum. Shortly after the incident, he began experiencing pain in his left shoulder and the left side of his neck that required treatment. McAvoy filed a worker's compensation claim, which was accepted by Copperpoint, Senergy Petroleum's insurance carrier.
¶3 In April 2014, McAvoy began receiving treatment for headaches, which he attributed to his work injury. Despite extensive conservative care, he reported no improvement of his symptoms. In February 2015, Copperpoint issued a notice informing McAvoy that his temporary benefits and active medical treatment had been terminated. McAvoy requested a hearing, claiming his condition required further active treatment or, if it had stabilized, constituted a permanent impairment.
¶4 At the hearing, the ALJ heard testimony from one of McAvoy's treating physicians, Dr. Matthew Wilson, and the insurance company's medical expert, Dr. Marjorie Eskay-Auerbach. The physicians disagreed as to whether the industrial injury had exacerbated McAvoy's preexisting degenerative cervical disc disease to the extent that it continued to cause McAvoy's complaints of pain and headaches.
¶5 Dr. Wilson, a board-certified neurosurgeon, testified that McAvoy was referred to him in September 2014 "predominantly for neck pain and headaches." Upon physical examination, Wilson found "extreme spasm and discomfort in [McAvoy's] trapezius and rhomboids on the left side," and review of magnetic resonance imaging (MRI) and x-rays revealed "arthritic changes at multiple levels in his neck," "a malalignment of the bones" in the cervical area, and "severe degenerative disk disease" in the neck area. Wilson opined that the industrial injury "without question" was "something that caused [McAvoy's previously asymptomatic] degenerative disk disease to become symptomatic." He also disagreed with the independent medical examiners' report, which concluded McAvoy's ongoing "medical problems" were attributable to his preexisting disc disease and "pectus excavatum" condition, associated with shortness of breath that "likely" caused him to assume "abnormal postures."
¶6 Dr. Eskay-Auerbach, a board-certified orthopedic surgeon, testified on behalf of a group of three doctors who had evaluated McAvoy in January 2015. She stated the industrial injury had caused a "temporary exacerbation" of McAvoy's preexisting degenerative cervical condition, which had since become stationary,and opined that his ongoing complaints of neck pain and headaches were related to that condition. She further opined that the industrial injury did not permanently aggravate McAvoy's cervical condition, basing her opinion on the lack of any acute findings in McAvoy's diagnostic studies as well as a lack of evidence of cervical radiculopathy on his physical exam. In reaching that conclusion, Eskay-Auerbach also cited the definition of "aggravation" promulgated by the American Medical Association (AMA), noting that McAvoy's injury had not anatomically or objectively changed the preexisting cervical disc degeneration that was visible from MRI. She additionally testified that a mere change in symptoms based on subjective complaints would not qualify as a permanent aggravation unless they were also associated with objective findings.
¶7 The ALJ accepted Dr. Eskay-Auerbach's opinion as the "most probably correct and well founded," determining that McAvoy's condition was stationary without impairment. The ALJ nonetheless authorized supportive care for up to one year "to treat Mr. McAvoy's ongoing subjective pain complaints." McAvoy timely requested administrative review, and the ALJ summarily affirmed the award. This petition for special action followed; we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10, Ariz. R. P. Spec. Act.
¶8 We deferentially review an ALJ's factual findings, but review her legal conclusions de novo. See PFS v. Indus. Comm'n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App. 1997). We will not disturb the ALJ's resolution of any conflicts in the medical evidence unless "wholly unreasonable." 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).
¶9 McAvoy first contends the ALJ erred as a matter of law in terminating "active treatment without a permanent impairment" due to a lack of an objective change in McAvoy's preexisting cervicaldegenerative disc disease. He argues the ALJ "ignored Arizona case law" by "requir[ing] an objective worsening of a pre-existing condition" in order to prove legal causation and "adopted a legally deficient medical opinion" that "misapplied the law by misreading the AMA Impairment Guides's definition of aggravation." Copperpoint responds that the ALJ's decision to terminate treatment was not solely based on a lack of "organic change to his condition," and instead contends it was merely one factor considered and the ALJ correctly based its decision on the "totality of the evidence."
¶10 To receive continuing medical benefits, a claimant has the burden of proving that his physical condition is causally related to his industrial injury and that he was not yet medically stationary. Aguayo v. Indus. Comm'n, 235 Ariz. 413, ¶ 10, 333 P.3d 31, 33 (App. 2014); see also W. Bonded Prods. v. Indus. Comm'n, 132 Ariz. 526, 527, 647 P.2d 657, 658 (App. 1982). A symptomatic aggravation of a preexisting condition that requires additional medical treatment is compensable, see Mandex, Inc. v. Indus. Comm'n, 151 Ariz. 567, 570, 729 P.2d 921, 924 (App. 1986), but a claimant must do more "than merely establish[] an aggravation of a preexisting disease or infirmity" and an inability to work, Arellano v. Indus. Comm'n, 25 Ariz. App. 598, 603-04, 545 P.2d 446, 451-52 (App. 1976). He must also establish a causal connection between the industrial injury and subsequent symptomatology. Id. at 604, 545 P.2d at 452.
¶11 McAvoy argues the ALJ erred in applying Arellano to the facts of his case because, unlike the claimant in that case, he is "not trying to establish a 'permanent impairment.'" He maintains Schreven v. Indus. Comm'n, 96 Ariz. 143, 393 P.2d 150 (1964), controls instead, arguing that, like the claimant in Schreven, he is seeking "further active treatment" to improve the "[s]ymptomatic aggravation of [his] pre-existing" degenerative condition. Copperpoint contends the ALJ "correctly relied" on Arellano, a case "more closely aligned with the facts presented" here, and asserts that Schreven is distinguishable because there was no conflicting medical evidence in that case.
¶12 Arellano involved a laborer with no history of back problems who was unable to return to work after sustaining an industrial back injury while operating a jackhammer. 25 Ariz. App. at 599-600, 545 P.2d at 447-48. Following hearings, the ALJ resolved a conflict in the medical testimony in favor of the carrier, whose medical expert testified the claimant's industrial injury had resolved and any continuing symptomatology was attributable to the claimant's preexisting degenerative arthritis. See id. at 600-02, 545 P.2d at 448-50. In affirming the ALJ, this court concluded the claimant had not shown his industrial injury caused an aggravation of his degenerative arthritis that had not terminated and continued to contribute to his ongoing pain. Id. at 600, 603-04, 545 P.2d at 448, 451-52.
¶13 The claimant in Schreven was a bricklayer with a preexisting "asymptomatic, nondisabling congenital deformity of the spine" that became symptomatic after he sustained a lumbosacral strain at work. 96 Ariz. at 143, 393 P.2d at 143. He tried returning to work after the strain resolved, but it caused him severe back pain. Id. At a hearing on the matter, the only medical witness testified the medical cause of Schreven's injury was his congenital abnormality, but concluded the industrial injury triggered his back pain. Id. at 144-45, 393 P.2d at 152. The ALJ refused to authorize rehabilitation on the grounds that the industrial injury was not the cause of Schreven's disability. See id. Our supreme court reversed, noting...
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