Villanueva v. Industrial Com'n of Arizona

• Decision Date: 26 November 1985
• Docket Number: CA-IC,No. 1,1
• Citation: 148 Ariz. 285,714 P.2d 455
• Parties: Eliseo VILLANUEVA, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Bechtel Power Corporation, Respondent Employer, Industrial Indemnity Company, Respondent Carrier. 3259.
• Court: Arizona Court of Appeals

Page 455

714 P.2d 455

148 Ariz. 285

Eliseo VILLANUEVA, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Bechtel Power Corporation, Respondent Employer, Industrial Indemnity Company, Respondent Carrier.

No. 1 CA-IC 3259.

Court of Appeals of Arizona,

Division 1, Department B.

Nov. 26, 1985.

Motion for Reconsideration Denied Jan. 24, 1986.

Lawrence P. Nicholls, P.C. by Lawrence P. Nicholls, Phoenix, for petitioner.

Dennis P. Kavanaugh, Chief Counsel, Indus. Com'n of Arizona, Phoenix, for respondent.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by Larry L. Smith and Donald L. Cross, Phoenix, for respondent Employer and respondent Carrier.

OPINION

CONTRERAS, Judge.

This review challenges an Industrial Commission decision and award denying the claimant's petition to reopen his worker's compensation claim. ¹ The denial was based on the administrative law judge's resolution of a conflict he found to exist in the medical evidence. The determinative question is whether a specific finding must be made by the administrative law judge regarding the claimant's credibility. Where, as in this case, the determination that a conflict in the medical evidence existed can only be supported if the claimant's testimony was not credible, we conclude that the claimant's credibility was a material issue and a specific finding is required. Since there was no specific finding, we set aside the Industrial Commission award.

The relevant facts follow. On June 16, 1982, claimant suffered an industrial injury to his right shoulder while working for Bechtel Power Company. He filed a claim for benefits which was accepted by the respondent carrier.

Claimant was referred to Robert S. Barbosa, D.O., for treatment of a possible rotator cuff tear. After performing an orthrogram, Dr. Barbosa diagnosed the injury as impingement syndrome of the right rotator cuff rather than a rotator cuff tear. The claimant received conservative treatment for the impingement syndrome. Dr. Barbosa's report of November 30, 1982 stated that claimant "is asymptomatic from his right shoulder discomfort at this point."

Dr. Barbosa released claimant from his care in February, 1983, noting "[h]e is totally asymptomatic from the right shoulder, and he is discharged from my care at this time with no evidence of permanent physical impairment." Claimant's claim for benefits was closed as of February 16, 1983, following a Notice of Claim Status issued by the respondent carrier.

After going swimming in June of 1983, claimant experienced pain in the same shoulder and returned to Dr. Barbosa for additional treatment. On July 1, 1983, claimant filed a petition to reopen his claim. The petition was denied by the respondent carrier on July 20, 1983, and claimant filed a timely request for hearing.

At Industrial Commission hearings, the claimant and two doctors testified. Dr. Barbosa, claimant's treating physician, opined that the claimant had sustained an exacerbation of the pre-existing impingement syndrome condition and that the exacerbation was directly related to the industrial injury of June, 1982. Prior to hearing and at the carrier's request, Dr. Irwin Shapiro examined claimant and wrote a medical report based on that examination. He also diagnosed claimant's condition as impingement syndrome. In Dr. Shapiro's opinion, the recurrence of petitioner's symptoms could not be attributed to the industrial injury of June, 1982. It is clear from the record that Dr. Shapiro based his opinion in part on Dr. Barbosa's determination that claimant was "asymptomatic" in February 1983 and on Dr. Shapiro's understanding that claimant had remained totally asymptomatic until his visit to Dr. Barbosa following the swimming incident approximately seven months later.

The administrative law judge concluded that a conflict in the medical evidence existed, resolved the conflict in favor of Dr. Shapiro's opinion, and denied the petition to reopen.

Although Dr. Shapiro testified at the hearing, Finding No. 9 of the Decision upon Hearing and Findings and Award Denying Reopening quotes directly from his previously issued written medical report based on his December 16, 1983 examination of claimant.

"After review of this gentleman's history and his physical examination, as well as his medical records, it appears the patient was asymptomatic with reference to his right shoulder from November all the way through until June. The pain in the shoulder only occurred following swimming.

It would be my impression that the patient's complaints are due to a mild impingement syndrome of the right shoulder. I cannot, however, attribute this present impingement to the incidents of June 16, 1982, but it certainly appears that he went approximately seven to seven and one-half months without pain and the symptoms only recurred after doing elevation of the right arm positioning in swimming that would cause a recurrence of his symptomatology.

Therefore, it would be my opinion that the patient's present complaints are related to the swimming episode rather than to the incident in question."

Claimant testified at the January 24, 1984 hearing that after his release from Dr. Barbosa's care in February, 1983:

"... I felt pretty good, and I could comb my hair. I could lift up my arm the way I am now. But occasionally, especially when I was in bed trying to go to sleep, that's when I would have some pain in my shoulder. And in all that time, that's the way I was feeling."

The hearing at which Drs. Barbosa and Shapiro testified took place on March 15, 1984. Based on claimant's previous testimony at the January hearing, the following cross-examination of Dr. Shapiro was conducted by claimant's counsel.

Q. Doctor, would your opinion change if you were informed that even after the time that Dr. Barbosa discharged him in February, 1983, that since that time and even until June when this arm really started hurting, that during that interval of time that occasionally, and especially when he was in bed trying to go to sleep, that he would have some pain in that same shoulder, and that this persisted from the time that he was released in February up until the June episode?

MR. CROSS: Object: foundation; contrary to the facts in evidence.

MR. NICHOLLS: It's not. I'm reading it right from the transcript on page 9.

JUDGE GHAREEB: He may answer.

THE WITNESS: If his discomfort was on a continuing basis from the time that he was--that I first had records that he was described as being asymptomatic, then I can only state that obviously he had ongoing persistent symptoms. But again, I'm relying on what the past medical records have stated from November of 1982.

Q. BY MR. NICHOLLS: I agree, Doctor. He didn't go in to the doctor or anything with these complaints, but those are the complaints he did have. Now, assuming that to be correct and true, that he was still having problems and bothered by this shoulder, and in fact didn't do any heavy work at all since the time of the injury, would your opinion then change as to whether or not his problems for which he was being treated in June of '83 were related to that original injury?

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THE WITNESS: If the patient had continuing symptoms consistent throughout the entire course of time, he did not have a period of seven and a half months, then I would have to say...