                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                       ROBERT W. MASCHE, Petitioner,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

     NORTHERN ARIZONA CONSOLIDATED FIRE DISTRICT #1,
                   Respondent Employer,

       COPPERPOINT MUTUAL INSURANCE, Respondent Carrier.

                              No. 1 CA-IC 14-0082
                                FILED 11-19-2015


                   Special Action - Industrial Commission
                        ICA Claim No. 20121-660224
                  Deborah Nye, Administrative Law Judge

                             AWARD AFFIRMED


                                    COUNSEL

Toby Zimbalist, Phoenix
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Copperpoint Mutual Insurance Company, Phoenix
By Sharon M. Hensley
Counsel for Respondents Employer and Carrier



                      MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.


G E M M I L L, Judge:

¶1            This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review denying the
petitioner/employee Robert Masche permanent disability benefits. Two
issues are presented on appeal:

      (1) whether the medical testimony adopted by the
      administrative law judge (“ALJ”) is based on an inaccurate
      factual foundation; and

      (2) whether the award is supported by legal and medical
      causation.

Because we find that the medical testimony is based on an adequate factual
foundation and the ALJ’s award is legally sufficient, we affirm.

                             BACKGROUND

¶2             Northern Arizona Consolidated Fire District #1 employed
Masche as a firefighter and paramedic. During annual fire hose testing on
June 7, 2012, a hose burst and struck Masche in the head. He lost
consciousness, fell backwards, struck his head on a concrete driveway, and
experienced an impact seizure. This incident was witnessed by other
firefighters, but Masche has no recollection of what happened before he
arrived at the Kingman Regional Medical Center emergency room. He
underwent diagnostic testing, including a CT scan of his head which
revealed no evidence of “acute intracranial pathology,” and he was
released.




                                     2
                  MASCHE v. NO AZ/COPPERPOINT
                       Decision of the Court

¶3            Masche filed a workers’ compensation claim that was
accepted for benefits by the respondent carrier Copperpoint Mutual
Insurance Company (“Copperpoint”). He gradually developed additional
symptoms including dizziness, headaches, nausea, vomiting, blurred
vision, and short-term memory loss. He saw a variety of medical specialists
and underwent repeated diagnostic testing, including additional CT scans
and MRIs.

¶4             In March 2013, Copperpoint sent Masche for two
independent medical examinations (“IMEs”). On March 1, Masche saw
Richard H. Daley, M.D., an orthopedist, Leo Kahn, M.D., a neurologist, and
Randy Oppenheimer, M.D., an otolaryngologist, for a group IME. The
doctors received a history of Masche’s industrial injury, reviewed his
industrially related medical records and diagnostic tests, and examined
him. Based on their findings, the doctors recommended additional
diagnostic testing, “vestibular testing as well as dynamic posturography,”
an “updated EEG,” and “a formal neuropsychological independent medical
examination.”1

¶5            Masche underwent the additional recommended diagnostic
testing. Dr. Kahn then performed a repeat IME. He found no neurological
basis for Masche’s symptoms and found his condition to be stationary, with
no permanent impairment related to the June 7, 2012 industrial injury.
Copperpoint issued a notice of claim status closing Masche’s claim with no
permanent impairment based on Dr. Kahn’s IME.

¶6           Masche timely protested the closure, and the ICA scheduled
a hearing. The ALJ heard testimony from Masche and Dr. Kahn as well as
another neurologist, M.A. Kazmi, M.D. Following the hearing, the ALJ
entered an award for temporary disability benefits. Masche timely
requested administrative review, but the ALJ summarily affirmed the
award. Masche next brought this appeal.

¶7           This court has jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(2), 23-951(A), and Arizona Rules
of Procedure for Special Actions 10.




1This IME was performed on November 7, 2013, by John T. Beck, Ph.D.,
and is summarized in the doctor’s twenty-four page report.

                                    3
                   MASCHE v. NO AZ/COPPERPOINT
                        Decision of the Court

                                 ANALYSIS

¶8            In reviewing findings and awards of the ICA, we defer to the
ALJ’s factual findings but review de novo questions of law. Young v. Indus.
Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). 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).

I.     Foundation of Medical Testimony

¶9             Masche argues the medical testimony adopted by the ALJ to
support the award is based on a factually inaccurate foundation, making it
legally insufficient to support the award. Masche asserts that Dr. Kahn’s
opinion is based on an outmoded medical premise, i.e., that the persistence
of his symptomatology is inconsistent with the injury he sustained, or, as
Dr. Beck stated in his neuropsychological report, “no one . . . who suffers a
mild concussion can have ANY neurological consequence to this brief,
rapidly reversing metabolic event.”

¶10             In response, Copperpoint argues first that Masche failed to
raise the issue of “alleged inadequate factual foundation either at hearing
or on administrative review.” In general, this court will not consider an
issue on appeal that was not raised before the ALJ. See T.W.M. Custom
Framing v. Indus. Comm’n, 198 Ariz. 41, 44, ¶ 4 (App. 2000). This rule stems
in part from the requirement that a party must develop its factual record
before the agency and give the ALJ an opportunity to correct any errors.
See id.; see also Kessen v. Stewart, 195 Ariz. 488, 493, ¶ 19 (App. 1999). It is
also consistent with the general principle that a petitioner should exhaust
administrative remedies before seeking judicial review. Teller v. Indus.
Comm’n, 179 Ariz. 367, 371–72 (App. 1994).

¶11           Our review of Masche’s request for review reveals that
although he did not expressly argue during the ICA proceeding that Dr.
Kahn’s and Dr. Beck’s medical opinions were foundationally deficient, he
did raise questions regarding the foundational accuracy of those opinions.
For this reason, we address the merits of Masche’s argument.

¶12           Masche argues that Dr. Kahn’s and Dr. Beck’s opinions are
discredited by the controversy currently surrounding head injuries, and
specifically the National Football League’s (NFL’s) investigation and
research regarding traumatic brain injuries (TBIs). Masche asks this court
to take judicial notice of this controversy, and points to the NFL’s



                                       4
                   MASCHE v. NO AZ/COPPERPOINT
                        Decision of the Court

acknowledgement that “concussions can have lasting consequences.” This
court has recognized that

       ‘[b]efore a court or . . . the Industrial Commission, can take
       judicial notice of a fact, the basic requirement must be met . .
       . . A fact to be judicially noticed must be certain and
       indisputable, requiring no proof, and no evidence may be
       received to refute it.’

Town of El Mirage v. Indus. Comm’n, 127 Ariz. 377, 382 (App. 1980) (quoting
Utah Construction Co. v. Berg, 68 Ariz. 285, 291 (1949)); see also Ariz. R. Evid.
201(b).

¶13           Although there is substantial medical discussion directed
toward the cause and effect of TBIs, we cannot conclude that this discussion
has reached a definitive conclusion or otherwise requires medical experts
(or ALJs) to subscribe to any particular viewpoint. See, e.g., Jack Hubbard
et. al, A Traumatic Brain Injury is a Headache in Both Medical & Legal Circles,
50 Tort Trial & Ins. Prac. L.J. 809 (Spring-Summer 2015). In other words,
the issues as to which Masche seeks judicial notice are not sufficiently
certain and indisputable to require the factfinder to take a particular
viewpoint regarding the lasting effects of concussion injuries in this case.

¶14            Furthermore, to resolve conflicts in medical testimony, the
ALJ may consider the qualifications and backgrounds of the expert
witnesses, their experience in diagnosing the type of injury incurred, and
the diagnostic methods used. Carousel Snack Bar v. Indus. Comm’n, 156 Ariz.
43, 46 (1988); see also Castillo v. Indus. Comm’n, 24 Ariz. App. 315, 316 (App.
1975) (declining to dictate what diagnostic tools a physician must use in
reaching his opinion). Additionally, an ALJ may piece together portions of
expert testimony from different witnesses in a reasonable way by choosing
to “accept part of the testimony of a witness and reject other parts.” Fry’s
Food Stores v. Indus. Comm’n, 161 Ariz. 119, 122–23 (1989).

¶15            In this case, Dr. Kahn and Dr. Beck subscribed to one view of
head injuries, while Dr. Kazmi subscribed to another, with Dr. Kazmi
concluding that nerve tissue in Masche’s brain was damaged during the
industrial injury and that currently available testing is inadequate to
measure this damage. It was the ALJ’s duty to resolve these conflicts in the
evidence, Perry v. Indus. Comm’n, 112 Ariz. 397, 398 (1975), and she did so
in favor of the opinions of Dr. Kahn and Dr. Beck. Those opinions were not
legally insufficient on the basis that they failed to adopt the still-



                                       5
                   MASCHE v. NO AZ/COPPERPOINT
                        Decision of the Court

inconclusive findings of the NFL concussion studies. See supra ¶ 13.
Because Dr. Kahn and Dr. Beck had adequate foundations for their medical
opinions, the ALJ did not abuse her discretion by relying on those opinions.
We find no error.

II.    Legal and Medical Causation

¶16            Masche next argues the ALJ failed to recognize that Dr. Beck’s
report established a compensable psychological impairment. In addition to
his physical symptoms, Masche also complains of mental and emotional
impairments, including post-traumatic headaches, depression, memory
loss, and loss of concentration. Because Dr. Beck’s report noted Masche had
no mental condition or symptoms prior to the accident, Masche argues the
report necessarily establishes the accident as the cause of his current
psychological impairment. He also claims Dr. Beck’s report establishes that
Masche had preexisting emotional and mental conditions that were
exacerbated by the accident, making the physical manifestation of his
injuries more severe. Accordingly, Masche argues the ALJ erred by failing
to differentiate between legal and medical causation, and the award should
be set aside.

¶17           Workers’ compensation claims for mental injuries are
governed by A.R.S. § 23-1043.01(B), which states that a mental or psychotic
injury is not compensable “unless . . . some physical injury related to the
employment was a substantial contributing cause of the mental injury,
illness or condition.” In order to recover for a mental injury, a claimant
“must show that each and every link in the causal chain between the
physical injury and the mental injury is a substantial contributing cause of
each succeeding link.” Toto v. Indus. Comm’n, 144 Ariz. 508, 513 (App. 1985).

¶18           When a preexisting condition is aggravated by or combines
with an industrial injury to create “a further injurious result,” the condition
may be compensable. See Kentucky Fried Chicken v. Indus. Comm’n, 141 Ariz.
561, 564 (App. 1984); see also Dugan v. Am. Exp. Travel Related Servs. Co., Inc.,
185 Ariz. 93, 100 (App. 1995). But in this case, Masche did not present any
psychological testimony, nor did he assert he had sustained a mental injury
until his request for review. The only neuropsychological testimony
presented was Dr. Beck’s IME report. Masche is correct that Dr. Beck’s
findings acknowledge that a preexisting mental condition may have been a
contributing factor to Masche’s current symptoms. Dr. Beck’s report does
not, however, compel this conclusion, nor does it necessarily establish that
any mental impairment was a consequence of the industrial injury. Instead,



                                       6
                   MASCHE v. NO AZ/COPPERPOINT
                        Decision of the Court

Dr. Beck points to preexisting conditions as one of several possible
explanations for Masche’s current impairment. Dr. Beck also explains that
Masche’s symptoms may be the result of medication side effects, chronic
pain, conscious and unconscious malingering, or the stress of litigation.

¶19           Accordingly, the ALJ was not required to credit Dr. Beck’s
report as conclusively establishing that the accident, and all related events
thereafter, were substantial contributing causes of Masche’s mental injury.
Nor was the ALJ bound by the report to conclude that Masche’s injuries
were made worse because he suffered from a preexisting mental condition.
In resolving the conflicting medical opinions in the testimony and reports,
it was within the ALJ’s discretion to reject portions of the Beck report while
accepting other portions. See Fry’s Food Stores, 161 Ariz. at 122–23. We
conclude, therefore, that the ALJ did not abuse her discretion by entering
the award.

                              CONCLUSON

¶20           For these reasons, we affirm the award.




                                  :ama




                                      7
