Opinion
No. 1 CA-IC 11-0005
02-16-2012
LANDMARK LAND MANAGEMENT, Petitioner Employer, WAUSAU UNDERWRITERS INSURANCE CO., Petitioner Carrier, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, JAVIER S. GALLARDO, Respondent Employee.
Cross & Lieberman P.A. By Donald L. Cross Attorneys for Petitioner Employer/Carrier Snow & Carpio P.L.C. By Chad T. Snow Attorneys for Respondent/Employee The Industrial Commission of Arizona By Andrew Wade, Chief Counsel Attorney for Respondent State Compensation Fund of Arizona By James B. Stabler, Chief Counsel Jean Kamm Gage Attorneys for State Compensation Fund of Arizona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Special Action - Industrial Commission
ICA Claim No. 20092-110315
Carrier Claim No. WC197-139119
Administrative Law Judge JoAnn C. Gaffaney
AWARD SET ASIDE
Cross & Lieberman P.A.
By Donald L. Cross
Attorneys for Petitioner Employer/Carrier
Phoenix
Snow & Carpio P.L.C.
By Chad T. Snow
Attorneys for Respondent/Employee
Phoenix
The Industrial Commission of Arizona
By Andrew Wade, Chief Counsel
Attorney for Respondent
Phoenix
State Compensation Fund of Arizona
By James B. Stabler, Chief Counsel
Jean Kamm Gage
Attorneys for State Compensation Fund of Arizona
Phoenix DOWNIE, Judge
¶1 This is a special review of an Industrial Commission of Arizona ("ICA") award and decision upon review, finding Javier Gallardo medically stationary with a 1% permanent impairment. Petitioners Landmark Land Management and Wausau Underwriters Insurance Company ("Petitioners") challenge the impairment rating. For the following reasons, we set aside the award.
FACTS AND PROCEDURAL HISTORY
¶2 Gallardo worked as a landscaper for Landmark Land Management. In July 2009, he injured his lower back and applied for benefits. He was diagnosed with sacroiliac strain, and was released to work on restricted duty. A few months later, Dr. Brad Sorosky, M.D., diagnosed Gallardo with discogenic low back pain. After Dr. Sorosky determined the injury was stationary, Gallardo's benefits were terminated with no permanent impairment. Gallardo requested a hearing.
¶3 Dr. Daniel Lieberman, a neurosurgeon, examined Gallardo at the insurance carrier's request. Dr. Lieberman testified that Gallardo's back condition was stationary and that, under the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition, (the "Guides") Gallardo had a 1% impairment rating. However, Dr. Lieberman opined that Gallardo's injury did not "actually cause[] permanent impairment." Dr. Lieberman explained that Gallardo's subjective pain complaints were exaggerated and that the 1% rating under the Guides was therefore inaccurate.
Dr. Lieberman testified that Gallardo's complaints were exaggerated because "he could stand up out of a chair and get up on the exam table without any difficulty, but then during the exam, was unable to move even two degrees without really significant pain." The doctor's examination report added that "Gallardo's observed function in the examination room today is much better than his reported level of functioning. He moved easily when he was thought to be unobserved between the exam table and the chair, took his shoes off and on without difficulty, and performed routine activities comfortably. By contrast, in his history, he reports near constant pain with bending, an inability to lift, and severe stiffness at all times. These findings were similar to those reported in the functional capacity evaluation . . . ."
¶4 The ALJ also heard testimony from Gallardo and Dr. Sorosky. In rendering her award, the ALJ stated:
The undersigned adopts the opinion of Dr. Lieberman as being more probably correct and well-founded that [Gallardo] sustained a one percent permanent impairment under the Sixth Edition of the AMA Guides.
¶5 Petitioners timely requested administrative review; the ALJ summarily affirmed the award. Petitioner timely sought review in this Court. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(2), 23-951, and Rule 10, Arizona Rules of Procedure for Special Actions.
DISCUSSION
Gallardo has not filed an answering brief, which we could treat as a confession of error. See Swift Transp. v. Indus. Comm'n, 189 Ariz. 10, 11, 938 P.2d 59, 60 (App. 1996) (citation omitted). In our discretion, though, we address petitioners' contentions on the merits. Id. (citation omitted).
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¶6 We view the evidence in the light most favorable to sustaining the award and "will affirm an award that is supported by any reasonable theory of the evidence." Simpson v. Indus. Comm'n, 189 Ariz. 340, 342, 942 P.2d 1172, 1174 (App. 1997) (citations omitted). 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, 63 P.3d 298, 301 (App. 2003) (citation omitted).
¶7 Petitioners contend the ALJ erred by adopting the Guides' impairment rating when Dr. Lieberman, whose testimony the ALJ labeled "more probably correct and well-founded," testified he did not believe the Guides accurately reflected Gallardo's status.
¶8 In Gutierrez v. Indus. Comm'n, 226 Ariz. 395, 249 P.3d 1095 (2011), the primary issue was which edition of the Guides the ICA should consider in rating a claimant's impairment. In addressing this question, the court made clear that application of the Guides is discretionary and that impairment may be established by other evidence. 226 Ariz. at 398, ¶ 13, 249 P.3d at 1098; see also W.A. Krueger v. Indus. Comm'n, 150 Ariz. 66, 68, 722 P.2d 234, 236 (1986) (ALJ properly rejected Guides' permanent impairment rating because both treating physicians testified they overstated the claimant's loss). The court reasoned that "[w]here . . . the evidence establishes that the Guides do not 'truly reflect the claimant's loss' or where the medical evidence is in conflict, the ALJ may use his discretion and make findings independent of the Guides' recommendations." Id.
¶9 Petitioners contend Gallardo suffered no impairment, notwithstanding the Guides' 1% impairment rating. As noted supra, Dr. Lieberman testified that the Guides overstated Gallardo's true status. Dr. Sorosky testified Gallardo's pain complaints were believable and that he had some degree of permanent impairment, though Dr. Sorosky would have to "re-read" the Guides to offer any impairment rating opinion.
¶10 If the award here reflected that the ALJ had weighed the conflicting evidence and found Dr. Sorosky to be more credible regarding the question of impairment, we would likely defer to such a finding and affirm the award. See Gamez v. Indus. Comm'n, 213 Ariz. 314, 316, ¶ 15, 141 P.3d 794, 796 (App. 2006) ("It is the ALJ's responsibility to resolve conflicts in the medical evidence, and we will not disturb that resolution unless it is 'wholly unreasonable.'") (citation omitted). However, we agree with Petitioners that the record instead suggests the ALJ felt bound by the Guides, even though she expressly adopted Dr. Lieberman's opinion as "more probably correct and well-founded."
¶11 We recognize that, at the time of her ruling, the ALJ did not have the benefit of Gutierrez and its clear pronouncement that the Guides are "discretionary" and "not to be blindly applied regardless of a claimant's actual physical condition." 226 Ariz. at 398, ¶ 13, 249 P.3d at 1098 (citations omitted). But in light of Gutierrez, we cannot reconcile the ALJ's express adoption of Dr. Lieberman's opinion and her application of the Guides' 1% impairment rating. Accordingly, we set aside the award.
CONCLUSION
¶12 For the reasons stated, we set aside the award.
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MARGARET H. DOWNIE, Judge
CONCURRING:
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PATRICIA K. NORRIS, Presiding Judge
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PHILIP HALL, Judge