Savin v. ica/assisted care/phx. Ins. Co. ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ZORICA SAVIN, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
ASSISTED CARE AT HOME, INC., Respondent Employer,
THE PHOENIX INSURANCE CO., Respondent Carrier.
No. 1 CA-IC 14-0043
FILED 3-12-2015
Special Action - Industrial Commission
ICA Claim No. 20122-080434
Carrier Claim No. 127-CB-EPE4290-E
The Honorable Paula R. Eaton, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Zorica Savin, Hallandale, FL
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Klein Doherty Lundmark Barberich & La Mont, PC, Tucson
By Eric W. Slavin
Counsel for Respondent Employer and Respondent Carrier
SAVIN v. ICA/ASSISTED CARE/PHX. INS. CO.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Chief Judge Diane M. Johnsen
joined.
C A T T A N I, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review by an administrative law
judge (“ALJ”) finding that Zorica Savin did not sustain a loss of earning
capacity resulting from an industrial injury to her right shoulder. For
reasons that follow, we affirm the award.
FACTS AND PROCEDURAL BACKGROUND
¶2 Savin, who worked as an in-home caregiver for senior citizens
and special needs patients, was injured at work in July 2012 when a
patient’s family member pushed her into a wall, resulting in a tear in the
rotator cuff of Savin’s right shoulder. At the time, Savin worked for three
different employers totaling over 80 hours each week. The carrier accepted
her claim for benefits.
¶3 Savin underwent surgery in November 2012 to repair the tear,
and by March 2013, the treating surgeon determined Savin had “achieved
maximal medical improvement” with a 4% permanent impairment and no
functional restrictions or limitations. On that basis, the ICA closed Savin’s
claim with no loss of earning capacity. Savin challenged that determination
and requested a hearing.
¶4 In May 2013, Savin was examined by Dr. Steve Fanto, a board-
certified physician in physical medicine, rehabilitation, and pain medicine.
Dr. Fanto noted that Savin suffered residual pain after the surgery and that
she had decreased strength and range of motion in her right shoulder.
Given these physical restrictions stemming from the industrial injury, Dr.
Fanto opined that, although Savin could perform 40 hours per week (or
more) of light duty or sedentary work, she would be limited to lifting a
maximum of 20 pounds (10 pounds with frequency) and no overhead
lifting. These restrictions would be incompatible with Savin’s pre-injury
employment, which required lifting 50 pounds or more.
2
SAVIN v. ICA/ASSISTED CARE/PHX. INS. CO.
Decision of the Court
¶5 In October 2013, the carrier sent Savin for an independent
medical evaluation (“IME”) with Dr. Amit Sahasrabudhe, a board-certified
orthopedic surgeon. Dr. Sahasrabudhe’s October report noted Savin’s
continued right shoulder pain and that this pain restricted Savin’s range of
motion. Based on Savin’s statements, her medical records, and the physical
examination, Dr. Sahasrabudhe opined that Savin could work over 40 hours
per week, but that Savin’s shoulder injury would limit her to lifting a
maximum of 20 pounds overhead (10 pounds with the right arm alone) and
40 pounds floor to waist. Accordingly, he concluded that Savin could no
longer perform her pre-injury job, which required 50 pounds’ overhead
lifting.
¶6 One month later, Dr. Sahasrabudhe filed a supplemental
report changing his opinion on the basis of additional medical records and
surveillance video showing, among other things, Savin at the beach with
her granddaughter. Dr. Sahasrabudhe explained that the surveillance
footage showed Savin lifting an approximately 25-pound child without any
apparent pain or difficulty, and it showed her reaching almost directly
overhead to close the tailgate of a vehicle. The video contradicted Savin’s
statements about shoulder pain, as well as the range of motion she had
shown during the IME. Based on this new information, Dr. Sahasrabudhe
opined that Savin could return to her pre-injury employment without any
restrictions.
¶7 At the hearing, Dr. Fanto testified that, although he had not
seen the surveillance video, the investigator’s report summarizing the
video did not refer to any activities (such as overhead lifting or lifting heavy
weights) that would have exceeded Savin’s lifting restrictions. His review
of the description of the video thus did not change his medical opinion. The
surveillance footage was provided to the ALJ as evidence.
¶8 In addition to Savin, Dr. Fanto, and Dr. Sahasrabudhe, two
labor market experts testified at the hearing before the ALJ. Savin’s expert
testified that, based on the restrictions noted by Dr. Fanto, Savin would be
entitled to a monthly award of $953.99 or $1,119.86 for loss of earning
capacity, depending on what kind of light duty job was considered. Savin’s
expert agreed that, if there were no medical restrictions, Savin would have
no loss of earning capacity as long as she could replicate her 80+ hour week
logistically. In contrast, the carrier’s labor market expert testified that,
absent medical restrictions, Savin’s shoulder injury did not result in any
loss of earning capacity.
3
SAVIN v. ICA/ASSISTED CARE/PHX. INS. CO.
Decision of the Court
¶9 The ALJ found Savin not credible and accepted Dr.
Sahasrabudhe’s medical opinion rather than Dr. Fanto’s conflicting
opinion. On that basis, the ALJ determined Savin was capable of returning
to her pre-injury employment and, accordingly, that the injury had not
caused a loss of earning capacity. After the ALJ affirmed the decision upon
review, this timely special action followed. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(2) and 23-951(A) and
Arizona Rule of Procedure for Special Actions 10.1
DISCUSSION
¶10 On review of a workers’ compensation award, we defer to the
ALJ’s factual findings, but consider questions of law de novo. Young v.
Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). The
ALJ has primary responsibility for resolving any conflict in the medical
experts’ testimony, and we will not disturb the ALJ’s resolution of a conflict
unless it is “wholly unreasonable.” Stainless Specialty Mfg. Co. v. Indus.
Comm’n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985). We will affirm the award
unless, viewing the evidence in the light most favorable to sustaining the
award, there is no reasonable basis for the ALJ’s decision. Lovitch v. Indus.
Comm’n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).
¶11 If an industrial injury causes a permanent partial disability,
the claimant is entitled to compensation for a resulting loss of earning
capacity. A.R.S. § 23-1044(C). The award is calculated based on the
difference between the claimant’s average monthly pre-injury wage and the
potential wage for “the type of work the injured employee is able to
perform subsequent to the injury.” A.R.S. § 23-1044(C)–(D). The claimant
has the burden to show any loss of earning capacity due to the injury.
Franco v. Indus. Comm’n, 130 Ariz. 37, 39, 633 P.2d 446, 448 (App. 1981).
¶12 Savin first argues that the ALJ erred by allowing the
surveillance video into evidence. A video recording may be admitted into
evidence if it reasonably and accurately portrays the matters recorded and
if it “[w]ill aid in the understanding of the issues.” Ariz. Admin. Code R20-
5-147(C). The ALJ has broad discretion in determining the admissibility of
evidence. Epperson v. Indus. Comm’n, 26 Ariz. App. 467, 471, 549 P.2d 247,
251 (App. 1976).
1 Absent material revisions after the relevant date, we cite a statute’s
current version.
4
SAVIN v. ICA/ASSISTED CARE/PHX. INS. CO.
Decision of the Court
¶13 Here, Savin did not object during the hearing to the ALJ
considering the video. Moreover, the video was relevant to the issue of loss
of earning capacity because it formed the basis of Dr. Sahasrabudhe’s
revised medical opinion that Savin could return to her pre-injury
employment without medical restrictions. Savin had adequate opportunity
to explain or respond to this evidence, both during her own testimony and
by eliciting Dr. Fanto’s opinion that the activities depicted were consistent
with Savin’s lifting restrictions. Accordingly, the ALJ did not err by
admitting and considering the surveillance video.
¶14 Savin also argues the ALJ’s decision—that she was medically
able to return to her prior employment and thus had not suffered a loss of
earning capacity—was not supported by the evidence. She claims that the
ALJ misinterpreted the activities shown in the surveillance video and
erroneously resolved the conflict in the medical evidence in favor of Dr.
Sahasrabudhe’s revised opinion.
¶15 Although much of the surveillance footage showed irrelevant
activities, the video also showed Savin extend her right arm vertically to
close the tailgate of a vehicle. Dr. Sahasrabudhe explained that this activity
involved Savin reaching upward with a range of motion around 170 or 180
degrees (as well as pulling the tailgate with her arm fully extended), which
contrasted with the restricted 130 degree active range of motion that Savin
displayed during the IME. Because the limitations on range of motion
during the IME were subjective—that is, limited by pain rather than
physical resistance in the shoulder—the footage showing Savin exceeding
these limitations without apparent discomfort called into question Dr.
Sahasrabudhe’s initial findings based on the IME and supported the
conclusion that Savin could return to her pre-injury employment without
any medical restriction.
¶16 Given this basis for Dr. Sahasrabudhe’s revised opinion, the
ALJ’s resolution of the conflict between the medical experts’ testimony in
favor of Dr. Sahasrabudhe’s opinion was not wholly unreasonable. See
Stainless Specialty, 144 Ariz. at 19, 695 P.2d at 268. Dr. Sahasrabudhe’s
opinion that Savin suffered no ongoing medical restriction associated with
the shoulder injury supports the ALJ’s conclusion that Savin could return
to her pre-injury employment without limitation, thus establishing no loss
of earning capacity. See A.R.S. § 23-1044(C)–(D) (loss of earning capacity
determined by difference between wage from pre-injury employment and
potential post-injury employment). Although Savin disputed Dr.
Sahasrabudhe’s characterization of her activities shown in the video, we
defer to the ALJ’s credibility determinations. See Royal Globe Ins. Co. v.
5
SAVIN v. ICA/ASSISTED CARE/PHX. INS. CO.
Decision of the Court
Indus. Comm’n, 20 Ariz. App. 432, 434, 513 P.2d 970, 972 (App. 1973). In
light of the reasonable basis for the ALJ’s decision, we affirm the award. See
Lovitch, 202 Ariz. at 105, ¶ 16, 41 P.3d at 643.
CONCLUSION
¶17 The award is affirmed.
:ama
6