Yuma Reg'l Med. Ctr. v. Indus. Comm'n of Ariz.
| Decision Date | 21 November 2013 |
| Docket Number | No. 1 CA-IC 13-0004,1 CA-IC 13-0004 |
| Parties | YUMA REGIONAL MEDICAL CENTER, Petitioner Employer, SAFETY NATIONAL CASUALTY CORP./MATRIX ABSENCE MANAGEMENT, INC., Petitioner Carrier, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, BARBI ERWIN, Respondent Employee. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR PUBLICATION.
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Special Action -Industrial Commission
ICA Claim No. 20071-560305 Carrier Claim No. 1956660
The Honorable Layna Taylor, Administrative Law Judge
Cross & Lieberman, P.A., Phoenix
By Donald L. Cross
Andrew Wade, Chief Counsel, Phoenix
The Industrial Commission of Arizona
Jerome, Gibson, Stewart, Friedman, Stevenson, Engle & Runbeck, P.C.,
Phoenix
By James L. Stevenson
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Patricia A. Orozco joined.
¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award and decision upon review awarding Michael Erwin surviving death benefits for the death of respondent employee Barbi Erwin. Petitioner employer Yuma Regional Medical Center (Yuma) raises three issues on appeal: (1) whether the record contains legally sufficient evidence to support the administrative law judge's (ALJ's) conclusion that the medications causing Ms. Erwin's death were prescribed for an industrially-related condition; (2) whether the ALJ properly resolved conflicting medical evidence and (3) whether Ms. Erwin's use of carisoprodol was a supervening cause making her death noncompensable. Finding no error, the ALJ's award is affirmed.
¶2 On May 22, 2007, Ms. Erwin worked for Yuma as a registered nurse and, while pushing a bed, felt a pull in her left calf muscle. After being seen in the hospital emergency room, Ms. Erwin was evaluated by orthopedic surgeon Alan Horowitch, M.D. Dr. Horowitchdiagnosed a medial meniscus tear and a magnetic resonance imaging scan (MRI) confirmed the tear.
¶3 Ms. Erwin filed a workers' compensation claim, which was accepted for benefits. Following an independent medical examination (IME) confirming Dr. Horowitch's diagnosis, Ms. Erwin underwent arthroscopic surgery on August 10, 2007. On December 18, 2007, Dr. Horowitch concluded that Ms. Erwin had reached maximum medical improvement (MMI), despite ongoing pain along the lateral joint line of her left knee. He rated Ms. Erwin with a scheduled two percent permanent impairment. Based on Dr. Horowitch's report, Ms. Erwin's claim was closed with a two percent scheduled permanent impairment of the left lower extremity and an award of supportive care benefits.
¶4 In January 2008, Ms. Erwin's left knee gave out at work and she returned to Dr. Horowitch with ongoing complaints regarding the lateral aspect of her left knee. Dr. Horowitch obtained a new MRI scan and recommended a second arthroscopy. Petitioner carrier Safety National Casualty Corporation (Safety) sent Ms. Erwin to Neal L. Rockowitz, M.D., for an IME. Dr. Rockowitz opined that Ms. Erwin did not need surgery but recommended aggressive physical therapy for six to eight weeks for her "chronically deconditioned knee." Dr. Rockowitz stated that Ms. Erwin was not stationary at the time of his February 2008 IME.
¶5 Safety issued a notice of claim status denying additional knee surgery based on this IME, and Ms. Erwin timely requested a hearing. Following ICA hearings, where Ms. Erwin, Dr. Horowitch and Dr. Rockowitz testified, the ALJ found Ms. Erwin stationary as of June 11, 2008, with a five percent scheduled permanent partial impairment to the left lower extremity.
¶6 After her claim closed, Ms. Erwin continued to experience left knee pain and remained on light duty.2 Dr. Horowitch continued to treat Ms. Erwin through late 2008, and he prescribed narcotic medication for her ongoing knee pain. Dr. Horowitch discharged Ms. Erwin when heclosed his medical practice, and she then received treatment from Alaa Babiker, M.D., and Charles Olivera, M.D.
¶7 In December 2008, Dr. Babiker, an internist and Ms. Erwin's family physician, began prescribing a rapid acting hydrocodone with Tylenol. During this same period, Dr. Olivera, a board-certified neurologist and pain management specialist, began prescribing Oxycontin, a long acting narcotic pain medication. The medical records reflect ongoing knee pain related to Ms. Erwin's May 2007 industrial injury and gradually increasing doses of opioid medications prescribed for the pain.3
¶8 In August 2009, Ms. Erwin began to see Dr. Awar, M.D., who prescribed Vicoprofen, a narcotic medication with Motrin. On August 18, 2009, Ms. Erwin hit her left knee on a filing cabinet at work and an emergency room physician prescribed additional hydrocodone. As a result, Ms. Erwin filed a new workers' compensation claim, which was accepted for benefits but closed after her death.
¶9 On August 30, 2009, Ms. Erwin went to bed early because she was tired and did not feel well. Her husband Michael Erwin testified that he checked on her at 10 or 11 p.m., and she was fine. When he checked on her again between 3 and 4 a.m., she was not breathing. Following a 9-1-1 call, Ms. Erwin was taken to the hospital, where she was pronounced dead. At the time of her death, Ms. Erwin had an appointment to see an orthopedic surgeon for her ongoing left knee pain.
¶10 Mr. Erwin filed a claim for death benefits, which was denied. He timely requested a hearing, and three ICA hearings were held. After hearing testimony from Mr. Erwin, Ms. Biro, Dr. Genrich and Dr. Greenberg, the ALJ awarded compensable death benefits. The ALJ found:
8. While the factual details of this case cannot be determined because they are known only to [Ms. Erwin], resulting in a more complex case than even the typical death benefits case, the legal standard to be applied is the same, and a simple one, as set forth in ReynoldsMetals [Co. v. Industrial Commission, 22 Ariz. App. 349, 527 P.2d 308 (App. 1974)]. The medical records, despite the lack of physical examinations or extensive workup, establish that the opioid medications and the Lexapro were prescribed for knee pain and the depression related thereto. . . . [Mr. Erwin] credibly testified that [Ms. Erwin] was in pain on a daily basis. Medical records from when the claim was open describe the chronic atrophy around the affected knee. The fact that the Soma [carisoprodol] was never prescribed does not make it a supervening cause, as it is only "a" cause of the poly drug overdose described by Dr. Greenberg. Neither doctor opined that the Soma [carisoprodol] by itself would have caused [Ms. Erwin's] death. [Ms. Erwin] had been taking Lortab even before the claim was closed.
9. The evidence of record, including the medical opinions of both Drs. Genrich and Greenberg, establish that medication prescribed for pain resulting from the 2007 knee injury and its sequelae was "a" cause of [Ms. Erwin's] death. Reynolds Metals Co. v. Industrial Commission, 22 Ariz. App. 349, 527 P.2d 308 (App. 1974). Therefore, the application for dependents' benefits is approved.
Yuma timely requested administrative review, and the ALJ summarily affirmed the award. Yuma then sought special action review. This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(2), 23-951(A) (2013) and Arizona Rule of Procedure for Special Actions 10.4
¶11 In reviewing findings and awards of the ICA, this court defers to the ALJ's factual findings, but reviews questions of law de novo. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003).
¶12 Yuma first argues that there is legally insufficient evidence to show a causal connection between Ms. Erwin's industrial injuries (on May 22, 2007 and August 18, 2009) and her death. A dependent of an employee killed as a result of a compensable industrial injury is entitled to receive death benefits pursuant to the Arizona Workers' Compensation Act. A.R.S. § 23-1021. The applicant must prove all elements of a compensable claim, typically: (1) an injury and (2) medical evidence that causally relates the injury to the industrial incident. Toto v. Indus. Comm'n, 144 Ariz. 508, 512, 698 P.2d 753, 757 (App. 1985); Yates v. Indus. Comm'n, 116 Ariz. 125, 127, 568 P.2d 432, 434 (App. 1977).
¶13 A dependent filing for death benefits resulting from an industrial injury must show that the death resulted from an accident arising out of, and in the course of, employment. Gaumer v. Indus. Comm'n, 94 Ariz. 195, 198, 382 P.2d 673, 674 (1963). An "injury by accident" occurs when either the "external cause or the resulting injury itself is unexpected or accidental." Paulley v. Indus. Comm'n, 91 Ariz. 266, 272, 371 P.2d 888, 893 (1962). To be compensable, the industrial injury needs only have contributed to or be "a" cause of the employee's death (and does not have to be the sole or only cause). Reynolds Metals Co. v. Indus. Comm'n, 22 Ariz. App. 349, 352, 527 P.2d 308, 311 (1974).
¶14 Where the result of an industrial injury is not clearly apparent to a layperson, expert medical testimony is required. W. Bonded Prods. v. Indus. Comm'n, 132 Ariz. 526, 527, 647 P.2d 657, 658 (App. 1982). The qualifications and backgrounds of expert witnesses and their experience in diagnosing the relevant type of injury may be considered in resolving conflicting evidence. Carousel Snack Bar v. Indus. Comm'n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367 (1988). The ALJ is the sole judge of witness credibility and is to resolve all conflicts in the evidence and draw warranted inferences from that evidence. Malinski v. Indus. Comm'n, 103 Ariz. 213, 217, 439 P.2d 485, 489 (1968).
¶15 As applied, Mr. Erwin had the burden of...
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