Frankel v. jpmorgan/new Hampshire ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IVY FRANKEL, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
JPMORGAN CHASE AND COMPANY, Respondent Employer,
NEW HAMPSHIRE INSURANCE COMPANY, Respondent Carrier.
No. 1 CA-IC 18-0058
FILED 6-4-2019
Special Action – Industrial Commission
ICA Claim No. 20152-090092
Carrier Claim No. 186921912-001
Rachel C. Morgan, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Ivy Frankel, Maricopa
Petitioner/Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Jardine Baker Hickman & Houston, P.L.L.C., Phoenix
By Charles G. Rehling, II
Counsel for Respondent Employer and Respondent Carrier
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Diane M. Johnsen joined.
W I N T H R O P, Judge:
¶1 Claimant Ivy Frankel appeals from an Industrial Commission
determination that she requires no further medical care and has no
permanent impairment as a result of an industrial injury she sustained in
2015. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2012, Claimant was injured in a serious car accident. She
received extensive medical treatment and took various painkillers after the
car accident. Physical examinations and medical imaging documented a
bulging disc, an annular tear (separation of the fibrous tissue encasing the
disc), and nerve damage, all of which caused persistent back and leg pain.
Claimant later argued that a surgical procedure in 2014 completely relieved
her symptoms; however, the medical records document chronic use of pain
medication even following that surgery. Claimant also had pre-existing
temporomandibular joint disorder (“TMJ”) and reported chronic
headaches.
¶3 In January 2015, while employed by JP Morgan Chase
(“Respondent Employer”), Claimant fell in the cafeteria at work when she
slipped on some clear liquid on the ceramic tile floor (the “industrial
accident”). Claimant testified that as a result of the fall, she injured the left
side of her face, her right arm and leg, her back, her neck, and the right side
of her torso. Claimant received immediate treatment from an on-site
medical provider and saw her pain management physician, Dr. Patel, three
days later. Claimant filed for and received medical benefits and temporary
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disability payments provided by the employer’s workers’ compensation
insurer, New Hampshire Insurance Company (“Respondent Carrier”).
¶4 Thereafter, Claimant continued to complain of persistent pain
in her back, legs, arms, and neck, as well as dental and jaw pain. She was
evaluated or treated by numerous medical providers, including the
following medical doctors and surgeons: Drs. Patel, McLean, Beghin, Bedi,
Ramachandran, Guidera, Kahn, and Borowsky. In addition, she was
evaluated or treated by dentists, orthodontists, and oral surgeons: Drs.
Nigam, Frost, Day, and Hood. And evaluated by a psychologist, Dr. Olin.
¶5 As noted, Claimant’s medical history prior to the industrial
accident in 2015 reflects she was diagnosed with TMJ in 2003 and bruxism
(teeth-grinding) in 2011. Nevertheless, Claimant asserted that her chronic
headaches and continuing problems with her teeth and jaw were caused by
the industrial accident.
¶6 Dr. Bedi performed surgery on Claimant’s back in December
2015. Although Dr. Bedi testified that the industrial accident “may have
exacerbated something that was already there,” he concluded that her
spinal condition was “likely due to a degenerative process, and there was
no evidence that there was any acute injury that would cause her”
symptoms. Claimant’s pain persisted after the operation, and she
continued to complain of the same severe pain in subsequent examinations.
She underwent another surgery in 2017 to address carpal tunnel syndrome
in her right arm.
¶7 The Respondent Carrier issued a notice of claim status in
August of 2015 that Claimant’s condition was medically stationary with no
permanent impairment attributable to the industrial accident. Claimant
protested that notice and requested a hearing based on her past surgeries,
persistent complaints of pain, her belief that she continues to need extensive
treatment and substantial prescriptions of pain medication, and her belief
that she has sustained permanent impairment as a result of the industrial
accident. Fourteen hearings were held between March 2017 and February
2018, during which Claimant and various medical providers presented
testimony and evidence. The administrative law judge (“ALJ”) rendered
her decision in April 2018, affirming the closure of Claimant’s case, and
affirmed that decision after considering Claimant’s Request for Review.
Claimant now seeks special action review. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) § 23-948.
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ANALYSIS
I. Sufficiency of Claimant’s Brief
¶8 Respondents ask us to find that Claimant’s briefs are factually
and substantively deficient and that she has, as a matter of law, waived all
arguments on appeal. ARCAP 13(a) requires petitioners on appeal to
submit briefs with citations to the record, with developed arguments, and
that provide references to the legal authority forming the basis of those
arguments. See also AMERCO v. Shoen, 184 Ariz. 150, 154 n.4 (App. 1995)
(stating failure to develop arguments or present supporting authority on
appeal waives the issue). Here, Claimant’s briefs do not cite to the record
nor to any legal authority. Furthermore, Claimant’s briefs lack properly
developed arguments.
¶9 Notwithstanding Claimant’s non-compliance with ARCAP
13(a), we exercise our discretion to consider her appeal on the merits. See,
e.g., Hill v. City of Phoenix, 193 Ariz. 570, 574, ¶ 18 (1999).
II. Whether the ALJ’s Findings Are Properly Supported by the
Evidence
¶10 Claimant primarily argues that the ALJ’s decision is
erroneous and is not supported by the record. On appeal from the
Industrial Commission “we defer to the ALJ’s determination of disputed
facts but review questions of law de novo.” Tapia v. Indus. Comm’n, 245 Ariz.
258, 260, ¶ 5 (App. 2018); see also Phelps v. Indus. Comm’n, 155 Ariz. 501, 506
(1987) (stating we will not overturn the ALJ’s findings and conclusions
unless they cannot be supported on any reasonable theory of the evidence).
It is the realm of the ALJ to assess the evidence and testimony. Jaramillo v.
Indus. Comm’n, 203 Ariz. 594, 596, ¶ 6 (App. 2002) (“[W]e view factual
determinations in the light most favorable to affirming the award . . . [and
do] not [re]weigh the evidence . . . .”) (citations omitted). This includes the
veracity of testimony given or evidence presented by medical experts.
Walters v. Indus. Comm’n, 134 Ariz. 597, 599 (App. 1982). It is Claimant’s
burden to establish before the ALJ that her medical condition is causally
related to the industrial accident, and that the condition is either not
medically stationary, or is stationary but resulted in permanent
impairment. Spears v. Indus. Comm’n, 20 Ariz. App. 406, 406 (1973) (citation
omitted).
¶11 In her decision, the ALJ noted Claimant suffered a severe back
injury in her car accident in 2012, after which she experienced neck, back,
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and leg pain that persists to the present day. Claimant contends that her
surgery in 2014 alleviated her symptoms from the car accident; the medical
records, however, document that she requested prescriptions for various
pain medications, which she has taken regularly since 2012. Those records
also reflect that Claimant’s pre-existing TMJ, dental issues, and chronic
headaches also persist. To the extent this medical evidence conflicts with
Claimant’s testimony, it was the role of the ALJ to resolve such conflict, and
we will not disturb that exercise of discretion.
¶12 Drs. Patel and Bedi, who treated Claimant after her industrial
accident, both reported that in light of her history, it was likely that the
industrial accident was at most a temporary aggravation of a pre-existing
condition. Dr. Beghin testified that during his medical evaluation of
Claimant, she was not cooperative and essentially would not allow him to
examine her. Dr. Beghin further testified that Claimant’s medical records
reflected that other doctors had concluded Claimant’s pain was
nonorganic,1 and that Claimant presented with no significant neurological
disorder. In that regard, Dr. Beghin specifically noted a report by Dr. Kahn
detailing an examination where Claimant reported “significant pain with
any attempted movement of her right arm, but at the end of the exam
[Claimant] started gesturing freely with her right arm.” Dr. Beghin
concluded that Claimant presents no “objective evidence of an injury to the
cervical spine or the lumbar spine,” that she “presents with a nonorganic
disorder, and that’s why all of the treatment has failed to date.”
¶13 Dr. Parker diagnosed Claimant with “Somatic Symptom
Disorder with Predominant Pain,”2 noting her subjective symptoms “have
not been supported by objective criteria.” Dr. Parker also noted the
1 “Nonorganic findings are physical findings that do not have a direct
anatomical cause and are distinct from physical findings of organic
pathology.” Laura Jensen, MD, Nonorganic Findings—What Are They?, 51
British Columbia Med. J. 106, https://www.bcmj.org/icbc/nonorganic-
findings—what-are-they.
2 The American Psychiatric Association defines Somatic Symptom
Disorder as “involv[ing] a person having a significant focus on physical
symptoms, such as pain . . . that results in major distress and/or problems
functioning. The individual has excessive thoughts, feelings and behaviors
relating to the physical symptoms.”
What Is Somatic Symptom Disorder?, AMERICAN PSYCHIATRIC ASSOCIATION,
https://www.psychiatry.org/patients-families/somatic-symptom-
disorder/what-is-somatic-symptom-disorder.
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consensus among Drs. Beghin, Kahn, Guidera, Borowsky, and Hood, each
of whom “found [Claimant’s] symptoms to be excessive, and to have no
relationship to the subject industrial injury.”
¶14 Regarding Claimant’s alleged dental issues, Dr. Hood
testified that Claimant was diagnosed in 2003 with TMJ, which can cause
headaches and a sore jaw, and she was diagnosed in 2011 with bruxism—
grinding and clenching of the teeth, which can cause fractured teeth, broken
crowns, and headaches. Dr. Hood further testified the fact that Claimant’s
teeth had shifted from a normal anatomical position was almost certainly a
result of tongue-thrusting—the pushing of the tongue against the back of
one’s teeth—which results in long-term shifting of the affected teeth. Dr.
Hood concluded that the industrial accident resulted in no dental trauma
to Claimant.
¶15 In her decision, the ALJ cited the reports and/or testimony of
each of the medical professionals discussed in the preceding paragraphs,
and noted the consistent observation by these specialists that Claimant’s
complaints “are not medically verifiable.” The ALJ noted that there was
some conflicting medical evidence, but gave greater weight to and adopted
the opinions of Drs. Beghin, Kahn, Guidera, Borowsky, Hood, and Parker,
finding that “their collective findings and conclusions [are] more probably
correct and well-founded.” This conclusion was well within the ALJ’s
discretion, Walters, 134 Ariz. at 599, and our review of the record supports
such a finding. Accordingly, we conclude that the ALJ’s decision is
sufficiently supported by the record and is therefore proper.
¶16 Finally, we note Claimant’s contentions that her counsel
failed to introduce certain evidence,3 that opposing counsel acted
improperly in the handling and presentation of the evidence, and that
reports resulting from certain medical examinations of Claimant contained
misstatements and inaccuracies. Because these issues are either not
properly before us, or because Claimant has failed to develop these
arguments, and because our independent review of the record reveals no
support for these allegations, we decline to address them further.
AMERCO, 184 Ariz. at 154 n.4.
3 To the extent Claimant is arguing her counsel fell below the standard
of care or provided ineffective assistance of counsel, those issues are not
properly before us and we do not consider them.
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CONCLUSION
¶17 Finding no error in the ALJ’s decision, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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