No. 2 CA-IC 2019-0006
COUNSEL Tretschok, McNamara, Miller & Feldman P.C., Tucson By Patrick R. McNamara Counsel for Petitioner Employee The Industrial Commission of Arizona, Phoenix Gaetano Testini, Chief Legal Counsel By Stacey Rogan, Assistant Chief Counsel Counsel for Respondent Lundmark, Barberich, La Mont & Slavin P.C., Phoenix By Javier A. Puig Counsel for Respondents Employer and Insurer
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Spec. Act. 10(k). Special Action - Industrial Commission
ICA Claim No. 20172360099
Insurer No. V10000127839
LuAnn Haley, Administrative Law Judge
COUNSEL Tretschok, McNamara, Miller & Feldman P.C., Tucson
By Patrick R. McNamara
Counsel for Petitioner Employee The Industrial Commission of Arizona, Phoenix
Gaetano Testini, Chief Legal Counsel
By Stacey Rogan, Assistant Chief Counsel
Counsel for Respondent Lundmark, Barberich, La Mont & Slavin P.C., Phoenix
By Javier A. Puig
Counsel for Respondents Employer and Insurer
Chief Judge Vásquez authored the decision of the Court, in which Judge Brearcliffe and Judge Espinosa concurred. VÁSQUEZ, Chief Judge:
¶1 In this statutory special action, petitioner Brandon Baier challenges the administrative law judge's (ALJ's) award denying his request for additional medical treatment and decision upon review affirming that denial. Baier argues the ALJ erred by failing to make a necessary finding of fact regarding his credibility, failing to order a diagnostic injection, and denying his timely request to subpoena a witness. He also argues the ALJ erred when she considered the Official Disability Guidelines (ODG) contrary to the parties' stipulation. For the following reasons, we affirm the award.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the award. See Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 2 (App. 2012). In August 2017, Baier was working at a Verizon Wireless store and injured his lower back while attempting to pull open a "jamm[ed]" steel gate. A coworker drove Baier to a medical center for treatment because he had pain so severe that he "could not stand up straight." The doctor recommended two weeks of physical therapy and follow-up care, which respondent employer, Verizon Wireless, and its insurer, New Hampshire Insurance Co. (collectively, Verizon Wireless), approved.
¶3 In September 2017, Dr. Thomas Coury, who specializes in physiatry, began treating Baier for his back pain. Coury recommended and performed several treatments, including muscle relaxants, continued physical therapy, and an epidural steroid injection at L4-L5. Despite the treatment, Baier's pain persisted and in some instances increased. Baier underwent several MRIs showing disc degeneration with a lack of nerve impingement.
¶4 Coury referred Baier for a neurosurgical evaluation by Dr. Kurt Schroeder, and Verizon Wireless requested Baier complete an independent medical examination by Dr. Raymond Schumacher. In April 2018, an EMG test showed "left L5 radiculopathy"; however, a follow-up study performed in December 2018 indicated the condition had improved since the April study and described a "normal study of [Baier's] left lower extremity."
¶5 In December 2018, Baier's care was transferred to Dr. Kai-Uwe Lewandrowski, an orthopedic spinal surgeon, who recommended a diagnostic epidural steroid injection at L5-S1 and, if the diagnostic injection was successful in reducing Baier's pain, a "Left L5/S1 Laminoforaminotomy Microdiscectomy." Following Lewandrowski's recommendation, however, Verizon Wireless requested that Baier undergo an independent medical examination by Dr. James Maxwell. Maxwell concluded that Baier had "achieved maximum medical improvement" and that "[n]o further treatment or tests [were] necessary." Verizon Wireless subsequently denied Baier's requested treatment and closed the claim.
¶6 Baier filed a request for hearing with the Industrial Commission, contesting the closure of his claim as he was "not medically stationary and [was] in need of ongoing treatment and continue[d] to be disabled." He further argued that due to the "current state of [his] spinal injury[,] he would have a permanent impairment or disability and would be entitled to supportive care." The ALJ heard testimony from Baier, Baier's wife, Lewandrowski, and Maxwell. After the hearing, the ALJ issued a Decision Upon Hearing and Findings and Award concluding that Verizon Wireless was "not required to authorize additional supportive or active care in this claim" and finding Baier "stationary without permanent impairment" as of December 18, 2018.
¶7 Baier requested a review of the ALJ's award. The ALJ affirmed the award, and Baier filed a petition for special action with this court. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10, Ariz. R. P. Spec. Act.
Standard of Review
¶8 Our review is limited to "determining whether or not the [Industrial Commission] acted without or in excess of its power" and whether the findings of fact support the award. § 23-951(B). When reviewing an award by an ALJ, we review questions of law de novo, see Hahn v. Indus. Comm'n, 227 Ariz. 72, ¶ 5 (App. 2011), and will not disturb an ALJ's findings of facts "unless they cannot be supported by any reasonable theory of the evidence," see Mustard v. Indus. Comm'n, 164 Ariz. 320, 321 (App. 1990). Thus, we will affirm an award so long as it is reasonably supported by the evidence. See Rutledge v. Indus. Comm'n, 108 Ariz. 61, 63 (1972). While we construe workers' compensation law liberally in light of its remedial purpose, see Fremont Indem. Co. v. Indus. Comm'n, 144 Ariz. 339, 345 (1985), we acknowledge it is Baier's burden to establish that his condition is not stationary or that he has sustained a permanent impairment, see Lawler v. Indus. Comm'n, 24 Ariz. App. 282, 284 (1975).
¶9 Baier argues the ALJ failed to make an explicit determination regarding his credibility, which "was squarely at issue" as "[h]is testimony was in direct conflict with Dr. Maxwell's testimony." He also argues that if he were found credible, then Maxwell's testimony "would lack the requisite foundation to have been adopted by the ALJ" and that a finding that he was not credible "would lack foundation."
¶10 It is the role of the ALJ to act as the factfinder and include findings of facts and conclusions of law to notify the appellate courts how the ALJ's conclusions were reached. See Post v. Indus. Comm'n, 160 Ariz. 4, 6-9 (1989); see also Flores v. Indus. Comm'n, 11 Ariz. App. 566, 568 (1970) ("The privilege and duty of resolving conflicts in evidence in compensation proceedings rests on [t]he Industrial Commission."). While an ALJ has a duty to resolve all conflicts in evidence with specificity, we will presume that the ALJ made the obvious factual findings necessary to support the stated legal conclusions and that the ALJ resolved any conflict when necessary. See Post, 160 Ariz. at 8; Sun Valley Masonry, Inc. v. Indus. Comm'n, 216 Ariz. 462, ¶ 27 (App. 2007) ("The ALJ is not required to make findings on all issues raised in a case, as long as [s]he resolves the ultimate issues."). If we can determine from the findings and conclusions that the ALJ performed the important functions of weighing the evidence and making credibility determinations, we do not require every determination to be explicitly stated in the decision. See Pearce Dev. v. Indus. Comm'n, 147 Ariz. 582, 583 (1985) (reasoning ALJ's acceptance of a testifying doctor was "implicit in the award"); Sun Valley Masonry, Inc., 216 Ariz. 462, ¶ 27.
¶11 On the first day of hearings, Baier testified that he had no "previous history of back problems" or injuries before the incident. He stated that after the incident, he was experiencing "muscle spasms," "tightness," and a "pins and needles" sensation in his foot. He further explained he was feeling "tension in [his] knee and to the left side of [his] shin," as well as "pressure" in his thigh, and a "numb" feeling in his left buttock, with "[t]he numbness and the tingling . . . extend[ing] up into [his] groin, and . . . wrapping around the front of [his] thigh." He described how the pain and symptoms have only "gotten worse," and increased when he walked.
¶12 Additionally, Baier was asked about Maxwell's report, which was submitted to and considered by the ALJ. Baier specifically disagreed with the report regarding the lack of abnormalities in his gait, arguing that any description of his gait as "normal" was contradicted within the report. However, Maxwell's report only referred to Baier's gait as "normal" when summarizing his past medical records relating to his injury and specifically described his gait during the examination as "abnormal." Further, Baier explained that he believed the "knee jerks" reflex test results "w[ere not] the same"—as stated in the report—because his left leg "responded differently" than his right. He added that Maxwell had performed the reflex test twice and "ma[d]e a face each time." Baier testified that Maxwell had only spent approximately ten or fifteen minutes with him, had not performed a "leg raise" test or "take[n] a pinwheel and roll[ed] it down [Baier's] leg," and had seemed uninterested in "anything [Baier] had to say."
¶13 Maxwell's report concluded that further treatment or tests were not necessary, that Baier had "achieved maximum medical improvement," and that he could return to work "without restrictions." The report also stated that there was "no explanation for [Baier's] ongoing severe symptoms" and "[i]t [was] unclear on what basis Dr. Lewandrowski justifie[d] operative intervention for a man with a predominance of back pain and considerable functional overlay." The report also indicated that Lewandrowski's recommended treatment was unlikely to aid Baier, as "[h]is subjective complaints [were] not supported by dependable objective medical evidence" and the medical findings were not "consistent with a left L5 radiculopathy."
¶14 On the last day of hearings, Maxwell testified consistently with his report. He directly contradicted Lewandrowski's recommendation, as Baier had already received an injection and had "got[ten] worse." Maxwell hypothesized that Baier's reported symptoms could perhaps be attributable to a "psychogenic" or "psychosocial overlay." He explained that the worsening pain and symptoms were "not really explainable on the basis of a traditional musculoskeletal injury," Baier "ha[d] no findings . . . consistent with a left L-5 radiculopathy," and that both Schumacher and Coury, as well as himself, found Baier's pain to be "vastly out of proportion." He further explained that Baier's symptoms "fit no anatomic distribution" and recommended that treatment "is complete" with no supportive care.
¶15 The ALJ accepted Maxwell's opinion "as more probably correct where it differs from that of Dr. Lewandrowski." She supported her conclusion that Baier "is stationary and does not need an additional diagnostic injection nor surgery," on the basis of "Maxwell's reported exam findings regarding [Baier]" and "the support for his opinion that [Baier] is not a surgical candidate by Doctors Schroeder and Schumacher[,] as well as lack of evidence of L5-S1 radiculopathy as reported by multiple examiners."
¶16 Baier argues the ALJ failed to make a specific finding regarding his credibility and therefore the decision "lacks the requisite findings under Post." He maintains that if he were credible then "Maxwell's opinions would lack foundation," as there was a "direct conflict" between Maxwell's testimony and his own. And, he contends that any determination that he was not credible "would lack foundation" because "[his] testimony was credible and consistent with competent medical evidence."
¶17 Contrary to Baier's contention, it was not necessary for the ALJ to explicitly reject his testimony about his lack of prior symptoms or to expressly find his subjective complaints were not confirmed by Maxwell's medical conclusions and would not be resolved by the requested surgery. Based on our review of the record, we conclude the ALJ made findings "on all the case's material issues," such that we are able to "evaluat[e] the basis of the judge's award and . . . determine the factual support for, [and] the legal propriety of, h[er] conclusion." See Post, 160 Ariz. at 7. To the extent Baier's credibility was at issue, the ALJ implicitly resolved that issue through her explicit conclusions concerning Lewandrowski's and Maxwell's opinions in her findings of fact and conclusions of law. See Pearce Dev., 147 Ariz. at 583; Sun Valley Masonry, Inc., 216 Ariz. 462, ¶ 27. And based on the record, the ALJ's findings were supported by a "reasonable theory of the evidence," see Mustard, 164 Ariz. at 321, and she sufficiently notified us of how she reached her conclusions, see Post, 160 Ariz. at 7-9; see also Flores, 11 Ariz. App. at 568.
¶18 Baier also contends that the ALJ should have ordered the diagnostic injection to determine whether he was a "surgical candidate." We disagree.
¶19 As discussed above, ALJs are responsible for resolving conflicts in the medical evidence and testimony, which will not be disturbed unless the resolution is "wholly unreasonable." See Gamez v. Indus. Comm'n, 213 Ariz. 314, ¶ 15 (App. 2006) (quoting Ortega v. Indus. Comm'n, 121 Ariz. 554, 557 (App. 1979)). "A presiding administrative law judge may, on the judge's own motion . . . order further examinations or investigations that the judge determines are warranted." A.A.C. R20-5-156(D); see Rosarita Mexican Foods v. Indus. Comm'n, 199 Ariz. 532, ¶¶ 11, 17, 24 (App. 2001) (holding the ALJ did not err when awarding myelogram CT scan in face of conflicting medical testimony).
¶20 In January 2018, Coury treated Baier with an epidural steroid injection at L4-L5. Baier reported and testified that the injection did not provide him with any relief. At the hearing, Lewandrowski recommended Baier undergo an epidural steroid injection at L5-S1, below L4-L5, because the "diagnostic value" was "highly sensitive [and] highly specific." Lewandrowski stated that his research demonstrated that if the injection did not produce a "positive response" it would not "suggest a favorable outcome" for surgery at that location. He conceded, however, that he had not read a complete copy of Baier's medical record relating to his back pain, nor did he explain why the previous epidural injection from Coury was insufficient. Maxwell disagreed with Lewandrowski's opinion and explained that the specific injection site was unimportant as "the [injections] drift down" to L5-S1 and that the injection performed by Coury "would have been diagnostic."
¶21 Baier argues that the ALJ should have ordered the epidural steroid injection at L5-S1 as it "would have resolved the conflict . . . between the parties." Baier further asserts that denial of the injection "cut short the search for the truth that all injured workers are afforded under Arizona worker's compensation law."
¶22 The record shows that the injection Baier requested is similar, if not identical in terms of diagnostic value, to the epidural steroid injection performed by Coury. Maxwell, who the ALJ "accepted as more correct," explained that the injection from Coury would have been diagnostic as the effects would have "drift[ed] down" to the L5-S1. Lewandrowski did not explain why the injection by Coury was insufficient, even when given the opportunity. Accordingly, Baier did not establish that the requested injection was warranted or that the ALJ erred by not deeming it as such. See Lawler, 24 Ariz. App. at 284; see also R20-5-156(D); Rosarita Mexican Foods, 199 Ariz. 532, ¶¶ 11, 17, 24. The ALJ's decision to not order a similar test that Baier had already undergone and instead to rely on Maxwell's conclusion that the test was unnecessary were not "wholly unreasonable" and sufficiently supported by the evidence. See Rutledge, 108 Ariz. at 63; Gamez, 213 Ariz. 314, ¶ 15 (quoting Ortega, 121 Ariz. at 557).
¶23 Baier contends the ALJ erred by "failing to honor a timely subpoena request" for Dr. Christopher Puca who would have "corroborat[ed] evidence as to the authenticity of his pain complaints and their relationship." Baier also contends that his "right to a fundamentally fair hearing" was violated by the denial of the subpoena. We review an ALJ's refusal to issue a subpoena for an abuse of discretion. See K Mart Corp. v. Indus. Comm'n, 139 Ariz. 536, 539 (App. 1984).
¶24 Parties before the Industrial Commission have a "fundamental right to present witnesses." Id.; see also Benafield v. Indus. Comm'n, 193 Ariz. 531, ¶ 26 (App. 1998) (explaining "the right to present witnesses on one's own behalf, although certainly not absolute, is a fundamental tenet of due process to which an ALJ generally must adhere [to] in order to 'achieve substantial justice.'" (quoting A.R.S. § 23-941(F))). Yet, an ALJ "has wide discretion to regulate and control the witnesses who appear." See Artis v. Indus. Comm'n, 164 Ariz. 452, 453 (App. 1990). Additionally, a party seeking to compel the appearance of a medical professional at a hearing must file a written request for a subpoena at least twenty days before the first scheduled hearing. A.C.C. R20-5-141(A)(2). And an ALJ "shall issue a subpoena requested under this Section if the judge determines that the testimony of the witness is material and necessary." R20-5-141(A)(4); see also Reinprecht v. Indus. Comm'n, 27 Ariz. App. 7, 10 (1976) (clarifying that testimony that is "merely redundant" to medical report is not material or necessary).
¶25 Approximately ten days before the first hearing, Baier requested that the ALJ issue a subpoena for Puca, his primary care physician. At that hearing, Baier reasserted his request, explaining Puca would "support [his] position." The ALJ denied the request and determined that Puca's "testimony would be cumulative" to Lewandrowski's. The ALJ continued to explain that if Lewandrowski's testimony "d[id not] support what you[ had] indicated," then she would "reconsider" issuing the subpoena. The ALJ also directed Baier to submit a "corroborating report from Dr. Puca." The following day, Baier provided the ALJ with Puca's patient records for Baier, which spanned from February to March 2019. Those records indicated that Baier suffered from a left lumbar radiculopathy with "weak Motor strength in [the] left L4 and L 5" and provided the history of Baier's treatment, which included a referral to Lewandrowski for a neurosurgery consultation. At the second hearing, Lewandrowski testified that Baier suffered from a "verifiable radiculopathy" with "left-leg pain" and "an extruded disc herniation at L5-S1" and explained Baier's treatment history. At no time thereafter did Baier reassert his request, nor was Puca subpoenaed to testify. We see no error for several reasons.
Although Baier did not reassert this claim within his request for review, it is preserved for our review as Baier sufficiently raised the issue below. See Obersteiner v. Indus. Comm'n, 161 Ariz. 547, 549 (App. 1989) (explaining issue "extant" in record preserved even if omitted from request for review).
¶26 First, Baier's request for a subpoena for Puca was untimely, as it was filed later than twenty days before the first hearing; therefore, the ALJ was not obligated to issue it. See R20-5-141(A)(2), (4). Second, even assuming the request were timely, Puca's testimony was not necessary because other admitted evidence corroborated Lewandrowski's testimony, rendering it cumulative. See Felipe v. Theme Tech Corp., 235 Ariz. 520, ¶ 22 (App. 2014) ("Arizona case law has defined 'cumulative evidence' as evidence that 'augments or tends to establish a point already proved by other evidence.'" (quoting State v. Kennedy, 122 Ariz. 22, 26 (App. 1979))). The ALJ, therefore, did not deny Baier a "fundamentally fair hearing" as she considered Puca's records and heard testimony from Lewandrowski, as well as Maxwell, Baier, and Baier's wife, and resolved the conflict between all of their opinions. Nor did she abuse her discretion by refusing to subpoena Puca as Baier's request was untimely and the proposed testimony would have been cumulative to other admitted evidence. See K Mart Corp., 139 Ariz. at 539.
Official Disability Guidelines (ODG)
¶27 Baier argues that the ALJ abused her discretion by rejecting the parties' stipulation and applying the (ODG). He reasons that the ODG is "a tool," not "a mandate," as "there is no provision mandating that the ALJ adhere to the [guidelines]—especially in the face of the parties' stipulation that the ODG is inapplicable."
¶28 After Lewandrowski testified, Baier's counsel informed the ALJ that he and Verizon Wireless's counsel had "discussed that the ODG does not really come into play with regard to this case in terms of the treatment." He further clarified that the parties believed "the ODG d[id] not control" because it was "a pure medical conflict between their doctor and our doctor." Verizon Wireless's counsel agreed. Later, Verizon Wireless withdrew from the stipulation.
¶29 The ALJ informed the parties that pursuant to A.A.C. R20-5-1301 she would apply the ODG in this matter and that the regulation "d[id] not provide the option for the parties to determine or stipulate that the ODG d[id] not apply to any medical treatment for an injured worker after October 1, 2018." We agree.
¶30 The legislature directed the Industrial Commission to create and implement "a process for the use of evidence-based medical treatment guidelines." See A.R.S. § 23-1062.03. Accordingly, the Industrial Commission adopted the ODG as "the standard reference" for medical treatment. See R20-5-1301(A). Specifically, the code provides that "the guidelines shall apply to all body parts and conditions." R20-5-1301(B). It further provides that "[t]he guidelines shall apply prospectively," to "medical treatment or services occurring on or after October 1, 2018," R20-5-1301(E), and "to all claims filed with the Commission," R20-5-1301(F). There is also a rebuttable presumption that the care described in the ODG is reasonable and to deviate from the ODG, "the provider must produce documentation and justification that demonstrates by a preponderance of credible medical evidence a medical basis for departing from the guidelines." R20-5-1301(H).
¶31 The code uses mandatory language when outlining the applicability of the ODG to all claims after October 1, 2018. See R20-5-1301(B), (E). "'[S]hall' generally indicates a mandatory provision." City of Chandler v. Ariz. Dep't of Transp., 216 Ariz. 435, ¶ 10 (App. 2007) (quoting Walter v. Wilkinson, 198 Ariz. 431, ¶ 7 (App. 2000)); HCZ Constr., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361, ¶ 11 (App. 2001) (reading "shall" to ordinarily impose a mandatory obligation). Additionally, the requirements for deviating from the ODG found in R20-5-1301(H) do not include a stipulation to ignore the ODG. We agree with the ALJ that she was required to apply the ODG. See R20-5-1301(B), (E), (H).
¶32 Baier suggests that the ALJ failed to inform the parties that she had rejected the stipulation and as a result, he "was deprived the opportunity to present credible medical testimony that would justify deviating from the guidelines" as "a cold document is no substitute for live testimony." Specifically, he maintains the ALJ's consideration of the ODG "deprived [him] of his opportunity to present testimony, through his expert, Dr. Lewandrowski, as to why the ODG supported his position or was inapplicable."
¶33 First, to the extent the parties had a stipulation, Verizon Wireless maintains it no longer applied after Lewandrowski "indicated that, rather than immediate surgery, he wanted to perform an [epidural] injection as a diagnostic tool," and the ALJ rejected the stipulation thereby relieving the parties from it. See Pulliam v. Pulliam, 139 Ariz. 343, 345 (App. 1984) ("[P]arties are bound by their stipulation unless relieved therefrom by the court."). Second, the parties could not stipulate as to the applicable law and so bind the ALJ. See Sherman v. First Am. Title Ins. Co., 201 Ariz. 564, n.3 (App. 2002) ("Parties cannot stipulate as to the law applicable to a given state of facts and bind the court." (quoting Word v. Motorola, Inc., 135 Ariz. 517, 520 (1983))).
¶34 And contrary to Baier's contention, the ALJ notified the parties that it was applying the ODG with sufficient time to afford them the opportunity to present evidence regarding whether the ODG supported the treatment plan or if it did not, why the ALJ should deviate from it. See Reinprecht, 27 Ariz. App. at 10 (acknowledging limitations in petitioner's right to present testimony when it is immaterial, unnecessary, or redundant). Indeed, Baier requested, and was granted, leave to submit a report by Lewandrowski "address[ing] the ODG['s] applicability to the recommendations for treatment in this case." Baier filed the report, which the ALJ considered. The following day, Baier was able to cross-examine Maxwell, which included questioning him about the ODG's applicability to the requested treatment. In the ALJ's decision, she relied on § 23-1062.03 and R20-5-1301 in concluding that she "must consider the ODG when considering whether the treatment may be ordered in this case." The ALJ determined that the ODG did not support an additional epidural steroid injection.
¶35 Baier has not argued, much less shown, that if given an opportunity Lewandrowski would have presented necessary testimony regarding the ODG's applicability in this case. Baier cross-examined Maxwell regarding the ODG and provided the ALJ with a report from Lewandrowski regarding the ODG's applicability. Additionally, Baier did not request to recall Lewandrowski or otherwise present live testimony regarding the ODG; his only request on the matter—to file a report from Lewandrowski—was granted. Accordingly, we conclude that the ALJ did not err in considering the ODG, as she was obligated to do so, and that her application of the ODG was supported by the record. See Rutledge, 108 Ariz. at 63.
¶36 For the foregoing reasons, the award is affirmed.