                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                      MARY ANN MUNOZ, Petitioner,

                                        v.

     THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                FRY’S FOOD STORES, Respondent Employer,

                    SEDGWICK CMS, Respondent Carrier.

                             No. 1 CA-IC 14-0006
                              FILED 09-23-2014


                 Special Action - Industrial Commission
                      ICA Claim No. 20082-960180
                   Carrier Claim No. 300810823530001
           Suzanne Scheiner Marwil, Administrative Law Judge

                            AWARD AFFIRMED


                                   COUNSEL

Taylor & Associates, PLLC, Phoenix
By Weston S. Montrose
Counsel for Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent ICA

Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By Scott H. Houston
Counsel for Respondents Employer/Carrier



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.


P O R T L E Y, Judge:

¶1             This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review denying reopening. One
issue is presented on appeal: whether the medical testimony relied on by
the administrative law judge (“ALJ”) was equivocal in the absence of a
specific credibility finding regarding the petitioner employee’s
(“claimant’s”) testimony. Because we find Dr. Theiler’s opinion legally
sufficient to support the ALJ’s award, we affirm.

            JURISDICTION AND STANDARD OF REVIEW

¶2            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 10.1 In reviewing findings and awards of
the ICA, 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). 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, 41 P.3d 640, 643 (App. 2002).




1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                     2
                     MUNOZ v. FRY’S/SEDGWICK
                        Decision of the Court

              PROCEDURAL AND FACTUAL HISTORY

¶3            Claimant worked for the respondent employer, Fry’s Food
Stores (“Fry’s”) as a general merchandise manager. She was injured on
October 15, 2008, while sitting on the floor stocking an end cap. As a
coworker operating a floor cleaning machine passed by claimant, the
machine struck the outside of claimant’s right leg. The force of the blow
rotated claimant on the floor allowing the machine to also strike her right
knee.

¶4             Claimant reported the incident to the store manager, who sent
her to Concentra Medical Center for treatment. Claimant filed a workers’
compensation claim accompanied by Concentra’s treatment record. Five
days later, claimant returned to Concentra for a follow-up appointment and
was released to return to her regular work. The respondent carrier,
Sedgwick CMS, accepted claimant’s claim as “no time . . . lost,”2 and closed
it with no permanent impairment. The closure became final without
protest.

¶5            Four years later, claimant filed a petition to reopen her 2008
claim for treatment of a labral tear in her right hip. It was denied for
benefits, and she timely requested an ICA hearing. The ALJ held three
hearings and heard testimony from claimant, one of her treating doctors,
Daniel J. Aschenbrener, D.O., and an independent medical examiner,
Anthony C. Theiler, M.D. The ALJ resolved the medical conflict in favor of
Dr. Theiler and entered an award denying the petition to reopen. Claimant
timely requested administrative review, but the ALJ summarily affirmed
her award. Claimant appealed.

                              DISCUSSION

¶6            The statutory requirements for reopening are found in A.R.S.
§ 23-1061(H):

                    [A]n employee may reopen the
             employee’s claim to secure . . . additional
             benefits by filing with the commission a petition


2 See generally A.R.S. § 23-1061(F), (M) (no compensation payable unless
claimant loses more than seven days from work); Arizona Workers’
Compensation Handbook (“Handbook”) § 9.4.1.3, at 9-11 (Ray J. Davis, et al.,
eds., 1992 and Supp. 2013).


                                     3
                      MUNOZ v. FRY’S/SEDGWICK
                         Decision of the Court

              requesting the reopening of the employee’s
              claim upon the basis of a new, additional or
              previously     undiscovered      temporary      or
              permanent condition, which petition shall be
              accompanied by a statement from a physician
              setting forth the physical condition of the
              employee relating to the claim. . . . A claim shall
              not be reopened because of increased subjective
              pain if the pain is not accompanied by a change
              in objective physical findings.

It is a claimant’s burden to present sufficient evidence to support
reopening. See Hopkins v. Indus. Comm'n, 176 Ariz. 173, 176, 859 P.2d 796,
799 (App. 1993). When the causal connection between the condition and
the prior industrial injury is not readily apparent, it must be established by
expert medical testimony. See Makinson v. Indus. Comm'n, 134 Ariz. 246, 248,
655 P.2d 366, 368 (App. 1982).

¶7             In this case, claimant needed to prove that the labral tear in
her right hip was causally related to her October 15, 2008 industrial injury.
She testified that she reported hip pain to both of the doctors that she saw
at Concentra. There is no mention of right hip complaints in the October
15, 2008 record, but the October 20, 2008 record notes a “hip strain,” and
physical examination of the right hip revealed: “There is no pain on passive
range of motion testing. Full range of motion. Popping associated with
circumduction of hip with ROM. No pain.” Claimant testified that,
although she returned to her regular work, the popping, clicking, and
pressure in her right hip continued, and over the ensuing four years became
unbearable. She sought treatment from Drs. Aschenbrener and Toth in
September 2012. She stated that injection therapy recommended by Dr.
Toth improved her pain for the first time since the industrial injury. An MR
arthrogram revealed a tear in the right hip labrum, which was surgically
repaired by Dr. Toth.

¶8            At the ICA hearing, claimant did not call Dr. Toth, but
presented testimony from Dr. Aschenbrener. He first saw claimant on
September 24, 2012, for right knee pain. When she mentioned hip pain to
him, he sent her for an MR arthrogram and referred her to his partner, Dr.
Toth, because Dr. Aschenbrener did not treat hips. At the ICA hearing, the
doctor was given a history on claimant’s hip strain and popping sensation,
development of “unbearable” hip pain over a four-year period, and relief
following hip injections.



                                      4
                      MUNOZ v. FRY’S/SEDGWICK
                         Decision of the Court

              Q. [By Mr. Montrose] . . . If that’s the situation,
              do you think it’s probable or more likely than
              not that the industrial mechanism played at
              least some part in the hip pathology?

              A. [Dr. Aschenbrener] I mean once again, you’re
              not talking to the hip expert. I didn’t operate on
              her. So I’m not sure why my testimony is
              important in this matter. I’m a shoulder and
              knee surgeon.

                                     ****

              A. I mean it’s possible from a mechanical
              standpoint but, I mean I wasn’t in her hip
              operating. I didn’t see what . . . the extent of the
              tear was.

              JUDGE MARWIL: Are you able to say to a
              reasonable degree of medical certainty . . .
              which is simply 51 percent more likely than not
              that her hip problems are related to her
              industrial injury?

              THE WITNESS: I can’t.

Although the doctor’s testimony was insufficient to establish causation
between the accident and the labral tear, he went on to state that it was
“probable” that the 2008 injury “could have caused” the tear.3

¶9            By contrast, Dr. Theiler received a history of the 2008
industrial injury and reviewed claimant’s Concentra medical records; a
June 2009 emergency room visit record for right foot and leg pain; a January
2011 urgent care visit record for complaints of pain in the ankles, knees, and
hips; and Dr. Aschenbrener’s records. He opined the labral tear/hip
pathology was not related to the industrial injury.




3A claimant must establish his medical condition to a reasonable medical
probability. Honeywell v. Litchett, 146 Ariz. 328, 331, 705 P.2d 1379, 1382
(App. 1985). Probability is something more than fifty percent. State Comp.
Fund v. Indus. Comm’n, 24 Ariz. App. 31, 36, 535 P.2d 623, 628 (1975).


                                       5
                      MUNOZ v. FRY’S/SEDGWICK
                         Decision of the Court

              Q. [By Mr. Houston] And why is that?

              A. [Dr. Theiler] A couple of reasons. The
              mechanism of injury would not appear to
              support an acute right hip pain, although I fully
              acknowledge that the mechanism of injury was
              somewhat unusual. 2., she presented with
              initial complaints of ankle pain. No mention of
              hip pain.      Hip pain did not occur until
              significantly later. She did report some clicking
              in her hip which was non-painful. And there’s
              no mention of any significant primary hip pain
              complaints then until what appears to be a
              significant time later depending on which
              medical records are reviewed.

¶10          The ALJ is required to resolve all conflicts in the evidence and
to draw all warranted inferences. See Malinski v. Indus. Comm’n., 103 Ariz.
213, 217, 439 P.2d 485, 489 (1968). The Arizona Supreme Court has
recognized that:

              [m]any factors enter into a resolution of
              conflicting evidence, including whether or not
              the testimony is speculative, consideration of
              the diagnostic method used, qualifications
              [and] backgrounds of the expert witnesses and
              their experience in diagnosing the type of injury
              incurred.

Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367
(1988).

¶11           In this case, and to the extent that there was a conflict between
Dr. Aschenbrener and Dr. Theiler, the ALJ resolved the medical conflict in
favor of Dr. Theiler. Claimant argues, however, that Dr. Theiler’s opinion
was legally inadequate to support the Award, because his testimony was
equivocal. She bases her argument on the doctor’s responses to
hypothetical questions on cross-examination.

              JUDGE MARWIL: But the question was if you
              just assume that all we had was her testimony
              that she had suffered continuing unrelenting
              hip pain from the date of the injury until she


                                      6
                      MUNOZ v. FRY’S/SEDGWICK
                         Decision of the Court

              saw Dr. Toth, could you opine to a reasonable
              degree of medical probability regarding
              contribution or causation?

              THE WITNESS: If all I had was her testimony
              stating she had severe hip pain from the date of
              injury that persisted four years later, without
              any medical records available at all, one would
              have to assume that if an injury was accepted
              that the hip pain, it’s possible that the hip injury
              occurred at the time of the event.

              JUDGE MARWIL: Mr. Montrose?

              MR. MONTROSE: Thank you.                That was
              sufficient. Thank you.

¶12           Although Dr. Theiler initially resisted answering a
hypothetical question that was factually inconsistent with the
contemporaneous medical records, he did answer at the ALJ’s behest. His
answer was that it was “possible,” given the hypothetical facts, that the 2008
injury had caused the labral tear. Because his response to the hypothetical
did not rise to the requisite level of proof, it does not change the ultimate
result.

¶13           An ALJ is not required to make a specific finding on every
issue, as long as the ALJ resolves the ultimate issues in the case. See Cavco
Indus. v. Indus. Comm’n, 129 Ariz. 429, 435, 631 P.2d 1087, 1093 (1981). We
will not disturb the ALJ’s findings and conclusions, including the
assessment of the sufficiency of the medical opinion, unless they cannot be
supported on any reasonable theory of the evidence. See, e.g., Phelps v.
Indus. Comm’n, 155 Ariz. 501, 506, 747 P.2d 1200, 1205 (1987).

¶14            We find Dr. Theiler’s testimony unequivocal and legally
sufficient to support the Award. For that reason, we affirm.




                                     :gsh

                                       7
