marten/zurich v. Quercione ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MARTEN TRANSPORT, Petitioner Employer,
ZURICH AMERICAN INSURANCE COMPANY, Petitioner Carrier,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
BRIAN P. QUERCIONE, Respondent Employee.
No. 1 CA-IC 17-0041
FILED 3-6-2018
Special Action - Industrial Commission
ICA Claim No. 20160-220006
Carrier Claim No. 15D30G550393
Anthony F. Halas, Administrative Law Judge (Retired)
AWARD AFFIRMED
COUNSEL
Hoffman Kelley Lopez LLP, Scottsdale
By Michelle D. Lopez
Co-Counsel for Petitioner Employer and Petitioner Carrier
Norton & Brozina, P.C., Phoenix
By Christopher S. Norton
Co-Counsel for Petitioner Employer and Petitioner Carrier
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent
Snow, Carpio & Weekley, PLC, Phoenix
By Dennis R. Kurth
Counsel for Respondent Employee
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
W I N T H R O P, Presiding Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for a compensable claim.
One issue is presented on appeal: whether the administrative law judge
(“ALJ”) legally erred by adopting the opinion of Ralph Purcell, M.D., to
support the award for a compensable claim. Because the ALJ’s
determinations are reasonably supported by substantial evidence, we
affirm the award and decision upon review.
FACTS AND PROCEDURAL HISTORY1
¶2 At the time of his industrial injury, the respondent employee
(“the claimant”) worked as a truck driver for the petitioner employer,
Marten Transport (“Marten”). Before starting employment, the claimant
was administered an electrodiagnostic functional assessment (“EFA”)
examination, which measures and records the electrical activity produced
by skeletal muscles and other soft-tissue structures, both at rest and during
activity, and also provides a functional assessment with regard to lifting,
pulling, pushing, gripping, and pinch strength. The test is designed, in
part, to provide a “baseline” soft-tissue evaluation against which a
subsequent EFA can be measured after an alleged work-related injury.
1 In reviewing findings and awards of the ICA, we defer to the ALJ’s
factual findings but review questions of law de novo. See Young v. Indus.
Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We consider the evidence in
the light most favorable to upholding the award. Lovitch v. Indus. Comm’n,
202 Ariz. 102, 105, ¶ 16 (App. 2002).
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¶3 A few months later, while pulling himself up into a trailer, the
claimant felt a sharp stabbing pain in his left shoulder. He reported the
injury to his supervisor and, as directed, filed a workers’ compensation
claim. A follow-up EFA was performed and, based on the comparative
results, the claim was denied for benefits. The claimant timely requested
an ICA hearing, and the ALJ held hearings at which the claimant; his
treating orthopedic surgeon, Dr. Purcell; and an electrodiagnostic testing
expert, MaryRose Cusimano-Reaston, Ph.D., testified.
¶4 The claimant maintained he had sustained an injury to his
shoulder in the course and scope of his employment. Marten maintained
the claimant had an undisclosed, preexisting, symptomatic rotator cuff
injury, and his symptoms and medical findings were related to the
preexisting, non-work-related condition, which was not exacerbated by the
work event of pulling himself into the trailer.
¶5 The claimant testified he was hired by Marten in September
2015. As noted above, he underwent physical testing as part of the hiring
process, including the “baseline” EFA. The claimant testified that, before
the December 2015 industrial event, he had not experienced any problems
with his left shoulder.2 Following the shoulder injury, the claimant
received diagnostic and conservative care for his left shoulder from his
primary care physician and orthopedic specialists at the CORE Orthopedic
Institute (“CORE”).
¶6 Dr. Purcell, a board-certified orthopedic surgeon who is
fellowship trained in upper extremity surgery, testified regarding his
multiple evaluations of the claimant. The claimant provided a history of
the industrial injury and reported having had no prior shoulder problems.
Since the injury, the claimant reported having persistent pain in the front
and back of his left shoulder, with weakness and decreased sensation from
his left elbow down to his fifth finger.
¶7 On examination, Dr. Purcell documented weakness and
tenderness in the left shoulder, and diminished range of motion and
sensation in the ulnar nerve distribution. He stated that the claimant’s MRI
2 Marten later discovered through review of past medical records that
the claimant had in the past sustained other work-related injuries, which he
did not disclose in his employment application. His employment with
Marten was terminated on that basis.
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showed multiple abnormal findings, many of which preexisted the
industrial injury. Dr. Purcell opined that the claimant had an “acute on
chronic” rotator cuff tear, in which the industrial injury had worsened the
claimant’s preexisting asymptomatic rotator cuff tear and had caused it to
become significantly symptomatic.
¶8 Dr. Purcell was also asked about the claimant’s EFA testing.
He questioned the validity of EFA testing and its ability to extrapolate an
injury versus a non-injury based on electromyographic findings. More
importantly, Dr. Purcell explained there is nothing in the EFA study that
identifies an acute versus a chronic rotator cuff tear. The doctor noted that,
in his experience, rotator cuff tears are often asymptomatic for a period of
months or years before becoming symptomatic. Dr. Purcell opined that, to
a reasonable degree of medical probability, the claimant had a preexisting,
chronic rotator cuff tear in his left shoulder that became extended and
acutely symptomatic when he pulled himself into the trailer on the date in
question. Simply stated, it was Dr. Purcell’s opinion that the industrial
event constituted “the straw that broke the camel’s back.” Dr. Purcell also
noted that his opinion in this regard—that the claimant had sustained an
“acute on chronic” rotator cuff tear—was consistent with the diagnostic
opinion reached by the CORE orthopedic expert who evaluated the
claimant after the injury.
¶9 Dr. Cusimano-Reaston testified she is a psychologist with a
certificate in electrodiagnostic testing and is “the inventor and hold[s] the
FDA registration for the technology and the predicate technology” for the
EFA.3 She has worked on the EFA’s development for approximately twenty
years.
¶10 Dr. Cusimano-Reaston testified that the EFA is a combination
of an electromyography, range of motion testing, and a functional
assessment. She stated that 35,000 to 40,000 EFA tests have been performed
and the EFA has proven to be reliable, and characterized the EFA as “the
gold standard” for determining the nature and extent of physical injuries.
She stated it is not necessary for a physician to examine a patient to obtain
3 A non-medical witness may offer expert testimony if he or she
possesses the necessary qualifications to be deemed an expert on the
subject. Madison Granite Co. v. Indus. Comm’n, 138 Ariz. 573, 577-78 (App.
1983). In Madison Granite, this court held that the weight to be given the
testimony of an expert witness who is not a medical doctor is solely within
the discretion of the ALJ. Id. at 577 n.3.
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an accurate EFA test. Instead, the test can be performed by a trained
technician.
¶11 Dr. Cusimano-Reaston further testified that, in this case, she
had reviewed the claimant’s EFA test results with a board-certified
neurosurgeon. Based on her comparison of the claimant’s pre-employment
and post-injury EFA test results, she opined that it was highly unlikely the
claimant was, as he claimed, asymptomatic before the industrial injury. In
Dr. Cusimano-Reaston’s opinion, not only did the claimant’s condition exist
before his employment with Marten, but the post-event EFA study
indicated the condition of the left rotator cuff area had improved rather
than worsened.
¶12 The ALJ resolved the conflict in medical opinion and entered
an award for a compensable claim. The ALJ specifically found the claimant
credible, and he adopted Dr. Purcell’s testimony. Marten timely requested
administrative review, but the ALJ summarily affirmed the award.
¶13 Marten next brought this timely petition for special action.
We have jurisdiction pursuant to Arizona Revised Statutes sections 12-
120.21(A)(2) (2016) and 23-951(A) (2012), and Rule 10 of the Arizona Rules
of Procedure for Special Actions.
ANALYSIS
¶14 On appeal, Marten argues the ALJ erred by finding a
compensable claim because the claimant’s EFA testing “clearly showed” no
additional injury to his left shoulder following the industrial incident. It is
the claimant’s burden to prove all elements of a compensable claim. Toto v.
Indus. Comm’n, 144 Ariz. 508, 512 (App. 1985).
¶15 An employer must take an employee “with whatever peculiar
vulnerabilities to injury the employee may have.” Murphy v. Indus. Comm’n,
160 Ariz. 482, 486 (1989) (quoting Kelly’s Case, 477 N.E.2d 582, 584 (Mass.
1985), superseded by statute as stated in Tennaro v. Ryder Sys., Inc., 832 F. Supp.
494, 500 (D. Mass. 1993)). A symptomatic aggravation of a preexisting
condition that requires additional medical treatment or results in additional
disability can constitute a compensable claim. See Indus. Indem. Co. v. Indus.
Comm’n, 152 Ariz. 195, 199 (App. 1986).
¶16 If the result of an industrial injury is not clearly apparent to a
layman, expert medical testimony is required. W. Bonded Prods. v. Indus.
Comm’n, 132 Ariz. 526, 527 (App. 1982). A medical opinion must be based
on findings of medical fact to support an award. Royal Globe Ins. Co. v. Indus.
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Comm’n, 20 Ariz. App. 432, 434 (1973). These findings may come from the
claimant’s history, medical records, diagnostic tests, and examinations. See
id.; see also Spector v. Spector, 17 Ariz. App. 221, 226 (1972) (recognizing that
a physician may also base an opinion entirely on a personal examination
and observation of a patient, or in part on the history as related to the
physician by the patient).
¶17 The ALJ “is the sole judge of witness credibility.” Holding v.
Indus. Comm’n, 139 Ariz. 548, 551 (App. 1984). It is the ALJ’s duty to resolve
all conflicts in the evidence and draw all warranted inferences. Malinski v.
Indus. Comm’n, 103 Ariz. 213, 217 (1968) (citation omitted). In resolving
medical conflicts, the ALJ may consider the qualifications and backgrounds
of the expert witnesses and their experience in diagnosing the type of injury
incurred, as well as the diagnostic methods used. Carousel Snack Bar v.
Indus. Comm’n, 156 Ariz. 43, 46 (1988). This court has generally declined to
dictate what diagnostic tools a physician must use in reaching his or her
opinion. See Castillo v. Indus. Comm’n, 24 Ariz. App. 315, 316 (1975).
¶18 In this case, the ALJ explicitly found the claimant credible. As
it relates to the validity of the medical opinion adopted by the ALJ, the
record reflects that Dr. Purcell relied on the claimant’s history, performed
multiple physical examinations, and reviewed the claimant’s industrially
related diagnostic and treatment records, which provided him with an
adequate foundation for his opinion. We need not decide whether a
comparative pre-employment and post-industrial-event EFA analysis is a
reliable way to evaluate medical causation or compensability, or is a better
diagnostic tool than the more traditional medical evaluations performed by
Dr. Purcell and the other physicians who diagnosed an underlying but
essentially asymptomatic condition that was aggravated and became
symptomatic due to the industrial event. The ALJ resolved the medical
conflict in favor of the claimant, and the ALJ’s determinations are
reasonably supported by substantial evidence.
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CONCLUSION
¶19 We affirm the ALJ’s award and decision upon review finding
the claimant’s claim compensable.
AMY M. WOOD • Clerk of the Court
FILED: AA
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