                          NOTICE: NOT FOR PUBLICATION.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


                     RUBEN A. GOMEZ, JR., Petitioner,

                                        v.

     THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                          TRW, Respondent Employer,

      AIG CASUALTY CO, C/O BROADSPIRE, Respondent Carrier.

                             No. 1 CA-IC 14-0023
                              FILED 12-18-2014


                   Special Action - Industrial Commission
                        ICA Claim No. 20122-410614
                       Carrier Claim No. 9000894544

               J. Matthew Powell, Administrative Law Judge

                            AWARD AFFIRMED


                                   COUNSEL

Taylor & Associates, PLLC, Phoenix
By Weston S. Montrose
Counsel for Petitioner

The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent ICA
                           GOMEZ v. TRW/AIG
                           Decision of the Court

Jones, Skelton & Hochuli, PLC, Phoenix
By Gregory L. Folger, Jennifer B. Anderson
Co-Counsel for Respondent Employer and Carrier


                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.


W I N T H R O P, Judge:

¶1             This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for temporary disability
benefits. One issue is presented on appeal: whether the opinion offered by
Terry McLean, M.D. on the lack of permanent impairment was legally
sufficient, and whether the administrative law judge (“ALJ”) erred by
adopting such opinion. Because we find Dr. McLean’s opinion legally
sufficient to support the 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) (2003), 23-951(A) (2012), and
Arizona Rules of Procedure for Special Actions 10 (2009).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 a 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).

               PROCEDURAL AND FACTUAL HISTORY

¶3          The petitioner employee (“claimant”) had worked for the
respondent employer TRW for eighteen years. On August 17, 2012, he was
working as a laser technician repairing and refurbishing equipment on a



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




                                     2
                          GOMEZ v. TRW/AIG
                          Decision of the Court

production line. In order to remove a ground strap from his boot,2 the
claimant placed his left foot on the second rung of an A-frame ladder. He
stated that when he bent forward, he immediately felt a pop in his back
followed by a stabbing, burning pain from his left lower back all the way
down his legs.

¶4             Paramedics took the claimant to the hospital where he
received an injection and pain medication and was released to follow-up at
Concentra. He filed a workers’ compensation claim, which was accepted
for benefits. Claimant was thus eligible to receive temporary disability and
medical benefits. Concentra provided the claimant with pain medication,
anti-inflammatories, and physical therapy. At his October 17, 2012
appointment, the claimant was released to light duty. The respondent
carrier, AIG Casualty Company (“AIG”), then sent the claimant to Atul
Patel, M.D., for an independent medical examination (“IME”). Based on
Dr. Patel’s reports,3 AIG issued a notice of claim status (“NCS”) closing the
claimant’s claim with no permanent impairment.

¶5            The claimant timely requested an ICA hearing. Three
hearings were held, and the ALJ heard testimony from the claimant, a
coworker, Michael Winer, M.D., and Dr. McLean. The doctors did not agree
regarding whether the industrial incident aggravated a preexisting injury,
thereby contributing to the need of continued medical care. The ALJ
resolved the medical opinion conflict in favor of Dr. McLean and Dr. Patel,
indicating their opinions were “probably more correct in this instance than
those of Dr. Winer.” The ALJ further stated, “both Dr. McLean and Dr.
Patel concluded that the applicant’s condition relative to the industrial
injury was stationary with no permanent impairment and without a need
for work restrictions or supportive medical care by October 31, 2012.”
Accordingly, the ALJ entered an award finding the claimant stationary with
no permanent impairment. The claimant timely requested administrative
review, but the ALJ summarily affirmed his award. The claimant next
brought this appeal.
                                ANALYSIS

¶6         The claimant argues that the ALJ erred by relying on Dr.
McLean’s medical opinion to deny him continuing medical benefits,


2      The claimant testified that these straps are used to prevent static
build up.
3      Dr. Patel authored an IME report on October 31, 2012, and a
supplemental report on November 19, 2012.


                                     3
                            GOMEZ v. TRW/AIG
                            Decision of the Court

because such opinion lacked a legally sufficient foundation. The alleged
foundational deficiency is Dr. McLean’s purported refusal to accept that the
claimant sustained an industrial injury on August 17, 2012. Because this
fact was previously established and became final, Dr. McLean could not
disregard it. See Aldrich v. Indus. Comm’n, 176 Ariz. 301, 306, 860 P.2d 1354,
1359 (App. 1993) (stating a final NCS accepting compensability triggers
preclusion).

¶7            In order to be entitled to receive continuing medical benefits,
the claimant had the burden of proving that his physical condition was
causally related to the industrial injury and that he was not yet medically
stationary. See, e.g., Lawler v. Indus. Comm’n, 24 Ariz. App. 282, 284, 537 P.2d
1340, 1342 (1975). Back and spine injuries typically require expert medical
testimony to demonstrate the causal connection between the claimant’s
medical condition and the industrial accident. Western Bonded Prod. v.
Indus. Comm’n, 132 Ariz. 526, 527-28, 647 P.2d 657, 658-59 (App. 1982).

¶8            This court has recognized that “medical testimony can be so
weakened by proof of an inaccurate factual background that the testimony
cannot be said to constitute ‘substantial evidence,’” but not every factual
inaccuracy will undermine a doctor’s opinion and warrant its disregard.
See Desert Insulations v. Indus. Comm’n, 134 Ariz. 148, 151, 654 P.2d 296, 299
(App. 1982) (citations omitted); see also Fry’s Food Stores v. Indus. Comm’n,
161 Ariz. 119, 122, 776 P.2d 797, 800 (1989).

¶9             In reaching an ICA award, the ALJ considers all relevant
evidence, both testamentary and documentary. See Perry v. Indus. Comm’n,
112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975). In this case, Dr. McLean
authored two written reports, which were placed in evidence, and he
testified at an ICA hearing. The claimant argues that Dr. McLean’s opinion
is undermined by the following testimony on cross-examination:

       [Claimant’s Attorney:] Okay. So it seems like you’re having a
       semantic struggle with calling [bending over to remove a
       strap] an injury. Is that what you’re saying?

       [Dr. McLean:] Well, yeah. In my opinion, I don’t think it
       constitutes an injury.

¶10          On direct examination, Dr. McLean noted that diagnostic
studies of the claimant’s lumbar spine revealed multi-level preexisting
degenerative changes. He testified that the described mechanism of injury,
“simply putting your foot on the second rung of a ladder and undoing a


                                       4
                           GOMEZ v. TRW/AIG
                           Decision of the Court

Velcro strap,” had insufficient biomechanical force to cause all of the
claimant’s “significant subjective complaints” or “any permanent
aggravation” of the claimant’s preexisting degenerative condition.

¶11           The doctor’s hearing testimony is consistent with his IME
report and addendum. Dr. McLean noted that the claimant’s August 22,
2012 lumbar MRI scan revealed “multilevel degenerative changes,” and “all
of the findings on all of his MRI scans were preexisting . . . .” Dr. McLean
further stated:

       In addition, as I had pointed out, as well as Dr. Patel pointed
       out his mechanism of injury what would be described as a
       trivial mechanism of injury. That is to say, it does not cause
       any significant biomechanical stress upon the lumbar spine
       that would have permanently aggravated his preexisting
       severe facet arthropathy.

¶12           A symptomatic aggravation of a preexisting condition, which
requires additional medical treatment or results in additional disability, can
constitute a compensable claim. See Indus. Indem. Co. v. Indus. Comm’n, 152
Ariz. 195, 199, 731 P.2d 90, 94 (App. 1986); Mandex, Inc. v. Indus. Comm’n,
151 Ariz. 567, 570, 729 P.2d 921, 924 (App. 1986). But to establish a
permanent impairment of a preexisting condition, the claimant has the
burden of showing more than a temporary aggravation of the underlying
condition; he must show that the industrial injury caused an aggravation
which has not terminated and continues to contribute to his ongoing
disability. Arellano v. Indus. Comm’n, 25 Ariz. App. 598, 604, 545 P.2d 446,
452 (1976).

¶13           If Dr. McLean had been asked for an opinion as to whether
the claimant sustained an industrial injury on August 17, 2012, he may have
said no. But compensability was not at issue when he testified. Instead, he
was asked if the claimant’s industrial injury required additional active
medical treatment, and if not, whether it had resulted in a permanent
impairment. In that regard, he testified:

             [Defendant’s Attorney:] … [W]hat is your assessment
       with respect to the existence, number one, of a
       spondylolisthesis, and number two, whether that, in terms of
       medical probability, could have been aggravated on a
       permanent basis . . . ?




                                      5
                          GOMEZ v. TRW/AIG
                          Decision of the Court

              [Dr. McLean:] Well, again, as I pointed out, I felt that
      the mechanism of injury was what I would describe as trivial
      and without any substantial biomechanical forces of
      significance that would cause any permanent aggravation of
      any condition. That’s number one.

              Number two, there was evidence of some degenerative
      spondylolisthesis at L4-5. It was minimal. It was only two or
      three millimeters. And did not find -- at L5-S1 there was
      foraminal stenosis bilaterally but it was without any
      significant L5 root compression. . . .

            So this is a case, as Dr. Patel had mentioned, that the
      Claimant’s presentation is not consistent with the
      radiographic findings nor of any permanent aggravation. . . .

             ....

             [Defendant’s Attorney:] So do you have an opinion,
      after you’ve reviewed everything now, as to whether or not
      [the claimant] was medically stationary as of the date Dr.
      Patel saw him?

             [Dr. McLean:] I still believe that he was medically
      stationary at the time of Dr. Patel’s IME.

            [Defendant’s Attorney:] And was there any ratable
      impairment resulting from this incident?

             [Dr. McLean:] No, there was not. Not in my opinion.

¶14           Although Dr. Winer testified that the claimant’s condition
was not stationary, the ALJ resolved the medical conflict in favor of Drs.
McLean and Patel. Dr. Patel also examined the claimant and reviewed his
industrially related treatment records and diagnostic tests. He opined that
the claimant’s industrially-related condition was permanent and stationary,
with no permanent impairment, and that he could return to his regular
employment. “[T]here is no basis from the standpoint of the work related
incident that any further treatment is clinically indicated.”

¶15            In considering Dr. McLean’s testimony and reports, we
conclude that his pertinent opinions — that the claimant was stationary as
of October 31, 2012, and had not sustained any permanent injury causally
related to an industrial event — are not fatally undermined by his statement


                                     6
                          GOMEZ v. TRW/AIG
                          Decision of the Court

that he did not consider this event to be an “injury.” Similarly, the ALJ
reasonably determined in his decision upon hearing that “both Dr. McLean
and Dr. Patel concluded that the applicant’s condition relative to the
industrial injury was stationary with no permanent impairment and
without a need for work restrictions or supportive medical care by October
31, 2012.” This court has previously recognized that an ALJ is not bound to
accept or reject an expert’s entire opinion, but instead, is free to combine
portions of the expert testimony in a reasonable manner. Fry’s Food Stores
v. Indus. Comm’n, 161 Ariz. 119, 123, 776 P.2d 797, 801 (1989).

                             CONCLUSION

¶16           For all of the foregoing reasons, we affirm the award.




                                 :gsh




                                        7
