Trey v. airways/hampshire ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BRUCE TREY, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
US AIRWAYS, Respondent Employer,
NEW HAMPSHIRE INSURANCE COMPANY, Respondent Carrier.
No. 1 CA-IC 16-0065
FILED 4-4-2017
Special Action - Industrial Commission
ICA Claim No. 20151-350320
Carrier Claim No. 00572729
The Honorable Paula R. Eaton, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Bruce D. Trey, Scottsdale
Petitioner
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent
Lundmark Barberich La Mont & Slavin PC, Phoenix
By R. Todd Lundmark, Danielle Vukonich
Counsel for Respondent Employer and Respondent Carrier
TREY v. AIRWAYS/HAMPSHIRE
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Kent E. Cattani joined.
K E S S L E R, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for a continuing benefits
claim. Because we conclude the Administrative Law Judge (“ALJ”) did not
err in finding petitioner Bruce Trey’s injury medically stationary, we affirm
the award and decision upon review.
FACTUAL AND PROCEDURAL HISTORY
¶2 At the time of injury in February 2015, Trey worked as a
reservation agent for Respondent Employer, US Airways (“US Air”). Trey
was injured when the back of his chair fell away, causing him to hurt his
back. In April 2015, Trey’s injury was aggravated when the back of another
chair fell off. Trey’s injury was treated with a combination of medication
and four physical therapy sessions. In October 2015, Trey’s claim was
closed effective September 29, 2015 because he did not have a permanent
disability and he abandoned treatment. Trey timely protested the closing of
his claim and hearings were held to determine Trey’s medical status.
¶3 Dr. JB, Trey’s medical expert, testified that he did not
recommend new treatments until after an MRI could be completed. Dr. JB
noted that his findings were very limited and that, depending on the MRI
results, he might or might not recommend further treatment. US Air’s
medical expert, Dr. KL, observed that Trey did not seek medical care for his
back from April 2015 until Dr. KL saw Trey a year later. During his
examination of Trey, Dr. KL noted that Trey had no difficulty getting on
and off the exam table and could stand and sit without distress. Dr. KL did
not find any indication that further treatment or supportive care was
needed. In Dr. KL’s opinion, Trey’s claims of ongoing back pain “were in
the absence of any objective findings.”
¶4 The ALJ found Dr. KL’s opinion to be the most credible and
did not find Trey’s testimony to be credible. She held that Trey’s condition
2
TREY v. AIRWAYS/HAMPSHIRE
Decision of the Court
was medically stationary as of September 29, 2015. The decision was
affirmed upon review.
¶5 Trey timely filed a special action petition for review. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(2) (2016), 23-951(A) (2012), and Rule of Procedure for Special
Actions 10.1
DISCUSSION
¶6 Trey asserts three arguments on appeal: (1) the ALJ’s
credibility determination impermissibly considered physical characteristics
that resulted from his disabilities; (2) Dr. KL’s testimony is not credible
because of his professional disciplinary history; and (3) the ALJ incorrectly
prevented Trey from presenting one of his witnesses.
I. Standard of Review
¶7 When reviewing ICA awards and findings, we defer to the
ALJ’s factual findings but review questions of law de novo. Young v. Indus.
Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003) (citation omitted). Our review
is limited to “determining whether or not the commission acted without or
in excess of its power and, if findings of fact were made, whether or not
such findings of fact support the award, order or decision.” A.R.S. § 23-
951(B) (2012). We review the evidence only to determine if substantial
evidence supported the findings, Associated Grocers v. Indus. Comm’n, 133
Ariz. 421, 423-24 (App. 1982) (citation and quotation omitted), and we
consider the evidence in the light most favorable to upholding the ALJ’s
award, Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002)
(citation omitted). We must affirm an award if it can be supported by any
reasonable theory of evidence. Carousel Snack Bar v. Indus. Comm’n, 156 Ariz.
43, 46 (1988) (citation omitted). We defer to the ALJ for determinations of
credibility and to resolve any conflicts in expert testimony, and we will not
disturb the ALJ’s resolution of credibility issues and conflicting evidence
unless those conclusions are wholly unreasonable. Royal Globe Ins. Co. v.
Indus. Comm’n, 20 Ariz. App. 432, 434 (1973) (citations omitted); Stainless
Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz. 12, 19 (1985) (citation omitted).
1 We cite to the current version of statutes unless changes material to
this decision have occurred.
3
TREY v. AIRWAYS/HAMPSHIRE
Decision of the Court
II. Credibility Determination Based on Disability
¶8 Trey claims the ALJ impermissibly based her credibility
determinations on the grounds of his disability. It appears Trey interpreted
the ALJ’s citation to Adams v. Indus. Comm’n, 147 Ariz. 418 (App. 1985),
regarding credibility factors the ALJ is in a position to consider that a
reviewing court cannot see, as a literal statement of what the ALJ
considered in finding Trey not credible.2 We construe Trey’s argument to
be that since those factors include conditions that he claims might be related
to a disability, consideration of those factors amounts to unlawful
discrimination. But there is nothing in the record that suggests that the ALJ
was aware of or considered any type of disability unrelated to the work
injury in assessing Trey’s credibility. The ALJ simply found that, upon a
review of the totality of the evidence, Trey’s testimony was not credible. We
find reasonable evidence supports the ALJ’s credibility determination and
there is no indication of discrimination against Trey.
III. Dr. KL’s Testimony
¶9 Trey argues that the ALJ erred by finding Dr. KL’s testimony
to be more credible than Dr. JB’s because Dr. KL had been subject to
disciplinary hearings in both Pennsylvania and Arizona due to chemical
dependency. We disagree.
¶10 The ALJ correctly noted that Dr. KL is qualified to testify as
an expert because he is licensed to practice in Arizona and that any concerns
about his disciplinary history go to the weight of his testimony, not its
admissibility.3 Webb v. Omni Block, Inc., 216 Ariz. 349, 352-53, ¶ 10 (App.
2 The ALJ is better suited to consider factors such as “the tone of voice
in which a witness’s statement is made, the hesitation or readiness with
which his answers are given, the look of the witness, his carriage, his
evidences of surprise, his gestures, his zeal, his bearing, his expression, his
yawns, the use of his eyes, his furtive or meaning glances, or his shrugs, the
pitch of his voice, his self-possession or embarrassment, his air of candor or
of seeming levity.” Adams v. Indus. Comm’n, 147 Ariz. 418, 421 (App. 1985)
(citation omitted).
3 We note that Dr. KL was the subject of an Arizona Medical Board
disciplinary action but was reinstated to practice in 2012 subject to the
Physician Health Program, a monitoring and rehabilitative program for
physicians with addictions. There is no evidence that Dr. KL’s diagnosis
and opinion were affected by any conduct related to the discipline.
4
TREY v. AIRWAYS/HAMPSHIRE
Decision of the Court
2007) (citation and quotation omitted) (noting the degree of qualification of
an expert goes to the weight of his or her testimony, not its admissibility).
Furthermore, it was reasonable for the ALJ to give greater credit to Dr. KL’s
opinion. Dr. JB only opined that it was possible Trey needed more
treatment, but that an MRI was required to make any such diagnosis. In
contrast, Dr. KL made more extensive findings and stated a diagnosis with
reasonable medical certainty. Reasonable evidence supports the ALJ’s
credibility determination.
IV. Denied Witness
¶11 Trey asserts the ALJ refused to allow JL, a witness present at
Dr. KL’s examination, to testify regarding Dr. KL’s behavior. However, the
record reflects that Trey decided not to call JL. The ALJ informed Trey at
the first hearing that because she received his subpoena requests only three
days before the hearing, she was not able to issue subpoenas for those
witnesses. During Trey’s cross-examination of Dr. KL at the third hearing,
the ALJ stated that Trey could not reference statements by a witness he did
not disclose and who did not testify. Trey admitted that he “should have
brought [JL] around,” but did not request a continuance or another hearing
in which to take his testimony. The ALJ asked Trey twice if he intended to
call JL as a witness, and Trey indicated he did not.
CONCLUSION
¶12 For the foregoing reasons, we affirm the ALJ’s award and
decision upon review.
AMY M. WOOD • Clerk of the Court
FILED: AA
5