Opinion
No. 1 CA-IC 20-0033
03-09-2021
NADA DIRANI, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, OREGANOS PIZZA BISTRO, Respondent Employer, REPUBLIC INDEMNITY CO OF AMERICA, Respondent Carrier.
COUNSEL Nada Dirani, Mesa Petitioner Employee Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent Lundmark Barberich LaMont & Slavin PC, Phoenix By R. Todd Lundmark, Eric W. Slavin Counsel for Respondent Employer and Carrier
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Special Action - Industrial Commission
ICA Claim No. 20141-770397
Carrier Claim No. R00035940
The Honorable Colleen Marmor, Administrative Law Judge
AFFIRMED
COUNSEL
Nada Dirani, Mesa
Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Lundmark Barberich LaMont & Slavin PC, Phoenix
By R. Todd Lundmark, Eric W. Slavin
Counsel for Respondent Employer and Carrier
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge D. Steven Williams and Judge Jennifer B. Campbell joined.
MORSE, Judge:
¶1 Petitioner Nada Dirani appeals from an Industrial Commission of Arizona ("ICA") award denying a petition to reopen her claim because she did not prove a new, additional, or previously undiscovered condition resulting from her industrial injury. Although the administrative process was unusual, Dirani has shown no error. While we do not doubt Dirani's claims regarding the pain she suffers, because there is evidence to support the denial, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In May 2014, Dirani was working for Respondent Oregano's Pizza Bistro. As she was sweeping the outside patio, another worker was nearby taking down large patio umbrellas. The worker lost control of an umbrella, which fell and struck Dirani in the upper-right scapular region of her back. Dirani experienced lingering pain and sought medical treatment two weeks after the accident. Respondent Republic Indemnity Co. of America ("Respondent Republic") accepted her worker's compensation claim. She was treated for a contusion over the next months with physical therapy and trigger point injections. Dirani stated the treatment did not provide any benefit but her claim was closed in March 2015 after an Independent Medical Examination ("IME") by Dr. Leo Kahn found her to be medically stationary and not in need of further active treatment. Dirani did not challenge the 2015 closure.
¶3 Dirani filed a petition to reopen her claim in November 2018. Respondent Republic denied the petition, and Dirani requested a hearing and obtained counsel. At the hearing, Dirani called her treating physician, Katherine Worden, D.O., to testify. Dr. Worden is board-certified in family medicine as a specialist in neuromusculoskeletal medicine and cranial
osteopathy. She is a professor of osteopathic manipulative medicine at Midwestern University and has been in practice for 35 years. Dr. Worden first treated Dirani in May 2016, when Dirani experienced pain in her back and right side and wanted to get her worker's compensation case reopened. Dr. Worden diagnosed Dirani with an initial ligament sprain in the thoracic spine, muscle spasms in the back, an autonomic nervous system disorder, chronic pain syndrome, neuropathic pain, and somatic dysfunctions of numerous areas on the body. In an August 2014 MRI that other reviewers had found unremarkable, Dr. Wooden found support for several of her clinical findings, especially in a "black void" area, which she suspected was a ligament tear. She recommended "gentle osteopathic manipulative treatment" along with pain management. Dr. Worden testified that her clinical findings were causally related to Dirani's workplace injury. Dr. Worden continued to treat Dirani for several years without much success. In January 2019, Dr. Worden concluded that Dirani had reached maximum medical improvement and that her prognosis was "very poor." She opined that the "seemingly small injury" from the workplace accident had "triggered a cascade of other medical conditions" that led to Dirani's current condition. When asked whether Dirani has a permanent impairment, Dr. Worden admitted that she had not reviewed the standards for that analysis.
¶4 Leo Kahn, M.D., a board-certified neurologist, also testified. Dr. Kahn examined Dirani in 2015 and 2019 and reviewed her medical records. He testified that he could not find any objective evidence showing that Dirani has a new, additional, or previously undiscovered condition caused by the workplace injury. He opined the injury was a simple contusion and had fully healed. He also testified that Dr. Worden's opinion was "not . . . fundamentally medically grounded" because there was no "objective organic evidence of an injury to the spine." He further testified that Dirani did not have a ratable impairment under the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Sixth Edition.
¶5 The ICA administrative law judge ("ALJ") issued an initial decision mostly in favor of Dirani. Relying on the opinion of Dr. Kahn, the ALJ found that Dirani did not have a ratable permanent impairment. However, the ALJ afforded greater weight to Dr. Worden's testimony and opinion about reopening the claim:
Based on the totality of the evidence presented, the conflict in the medical evidence as to whether Applicant has a new, additional or previously undiscovered condition, the undersigned resolves the conflict in favor of the opinions and
conclusions of Dr. Worden as being more probably correct and well founded. The May 22, 2016 diagnosis of [tendonitis], MRI findings consistent with a ligamentous tear and symptoms consistent with right thoracic outlet syndrome are objective evidence of additional conditions that allow Applicant to reopen her claim on a supportive care basis.
The ICA issued an award ordering supportive care for Dirani. Respondents asked for administrative review, arguing the evidence did not support Dr. Worden's opinions and conclusions. The ALJ issued a Decision Upon Review that reversed her initial determination, this time finding that Dr. Kahn's opinion was more credible and entitled to greater weight than Dr. Worden's:
Dr. Worden's interpretation of Applicant's August 20, 2014 thoracic MRI is in stark contrast with the opinions of Dr. Jeffrey Scott and Dr. Leo Kahn, who found that that MRI scan was unremarkable. Dr. Worden's opinions and conclusions do not support a reopening of Applicant's claim. Dr. Kahn concluded that Applicant had suffered a right upper thoracic contusion, and that Applicant had fully recovered. He opined that there is no objective evidence of a new, additional or previously undiscovered condition that pertained to Applicant's 2014 injury.
Thus, the ICA ultimately denied Dirani's petition to reopen. Dirani timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(B) and 23-951(A).
DISCUSSION
¶6 In her briefing on appeal, Dirani requests that we review the ICA record for error. She also expresses confusion regarding why the ALJ's decision changed so drastically.
¶7 ALJs are provided a chance to reconsider their decisions before judicial review so that they may correct errors and ensure they have properly weighed the evidence. The ALJ's initial award found Dr. Worden's opinion that a suspected ligament tear triggered a cascade of conditions to be more credible than the position put forward by Respondents. But an initial award is not final if a review is requested. A.R.S. § 23-942(D).
¶8 A party to a worker's compensation claim may file a request for administrative review of the award. A.R.S. § 23-943. The review must
be performed by the ALJ who presided over the hearing and must be based on the record and memoranda submitted by the parties. A.R.S. § 23-943(E). The review includes a reconsideration of the evidence, and the ALJ may reweigh the evidence and come to a different conclusion. See Shockey v. Indus. Comm'n, 140 Ariz. 113, 118 (App. 1983) (affirming ALJ decision on review that reversed prior resolution of the conflict between medical experts).
¶9 Respondents requested review and argued that the ALJ should reweigh the evidence, reconsidering Dr. Kahn's testimony and the evidence supporting his opinion. Upon such reconsideration and reweighing, the ALJ reversed her decision and found that Dr. Kahn's view was entitled to greater weight. Although it is unusual for an ALJ to change her mind upon reconsideration, there is no error in doing so if there is evidence to support the decision upon review. In reviewing worker's compensation awards, we defer to the ALJ's factual findings but independently review legal conclusions. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We will affirm an award "if it is reasonably supported by the evidence after reviewing the evidence in a light most favorable to sustaining the award." Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16 (App. 2002). The ALJ has the primary responsibility to resolve conflicts in medical opinion evidence. Carousel Snack Bar v. Indus. Comm'n, 156 Ariz. 43, 46 (1988); Kaibab Indus. v. Indus. Comm'n, 196 Ariz. 601, 609, ¶ 25 (App. 2000). We defer to the ALJ's resolution of conflicting evidence and affirm findings if they are supported by any reasonable theory of the evidence. Perry v. Indus. Comm'n, 112 Ariz. 397, 398-99 (1975). An award based on conflicting medical testimony will not be disturbed. Smiles v. Indus. Comm'n, 2 Ariz. App. 167, 168 (1965).
¶10 Dirani argues that Dr. Worden's testimony was more persuasive than Dr. Kahn's. Upon reconsideration, the ALJ found otherwise. We will not disturb a resolution of the medical conflict if it is supported by reasonable evidence in the record. See Shockey, 140 Ariz. at 118. There is evidence to support Dr. Kahn's opinion, just as there was evidence to support Dr. Worden's. The ALJ ultimately found Dr. Kahn's view more persuasive, and Dirani has shown no grounds to overturn that conclusion.
CONCLUSION
¶11 We affirm the decision upon review denying the petition to reopen the claim.