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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                      WILLIAM ANDERSON, Petitioner,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                  ALL ROCK SUPPLY, Respondent Employer,

     TWIN CITY FIRE INSURANCE COMPANY, Respondent Carrier.


                              No. 1 CA-IC 18-0023
                                FILED 1-29-2019


                Special Action - Industrial Commission
                     ICA Claim No. 20092-730103
                    Carrier Claim No. YKX67899C
     The Honorable C. Andrew Campbell, Administrative Law Judge

                                   REVERSED


                                    COUNSEL

Ely Bettini Ulman & Rosenblatt, Phoenix
By Joseph M. Bettini
Co-counsel for Petitioner

Law Office of Trace A. Bartlett, Tempe
By Trace A. Bartlett
Co-counsel for Petitioner
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent

Norton & Brozina PC, Phoenix
By Christopher S. Norton, Melinda K. Poppe
Counsel for Respondent Employer/Carrier




                       MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.


H O W E, Judge:

¶1             William Anderson appeals the Industrial Commission of
Arizona’s decision finding that he did not sustain a permanent impairment
to his cervical spine. For the following reasons, we reverse.

                 FACTS AND PROCEDURAL HISTORY

¶2             In September 2009, Anderson sustained injuries to his lower
back and cervical spine while working for All Rock Supply, Inc. (“All
Rock”). In August 2010, Anderson appeared before an administrative law
judge (“ALJ”) to determine whether he should receive benefits due to his
injuries. Anderson testified that he could not return to his former job
because he could not “handle the physical labor part of it[.]” He explained
that his job as a truck driver required him to climb in and out of his truck’s
cab, climb the side of the truck to pull a tarp to cover his load, and to inspect
his truck, which required him to crawl around his truck as well as lift the
hood. The ALJ accepted Anderson’s claim for benefits, and he received
medical treatment from Arizona Pain Treatment Centers. Twin City Fire
Insurance Company (“Twin City”) closed Anderson’s workers’
compensation claim without permanent impairment or disability effective
July 2016. Anderson requested a hearing, at which he claimed that he still




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                       Decision of the Court

required medical treatment for his cervical spine, or in the alternative, that
he had sustained a permanent impairment related to his cervical spine.1

¶3            At the hearing, the ALJ heard the opinions of several doctors,
including Dr. Azmi Nasser, who had been treating Anderson since January
2013. Dr. Nasser testified that when he first saw Anderson, he already had
diagnoses of cervical radiculopathy, cervical disc displacement, and
cervical facet syndrome. Dr. Nasser then explained that after examining
Anderson, he added diagnoses of degenerative compression, arthritis, and
multi-level cervical spondylosis. Dr. Nasser then stated that the diagnoses
have remained the same throughout Anderson’s treatment and that
Anderson’s cervical spine condition was related to the 2009 work incident.
Dr. Nasser opined that Anderson’s cervical spine condition was medically
stationary, but it required continued pain treatment with “periodic cervical
epidural steroid injections” and “radiofrequency ablations of the nerves
that go into [the facet] joints.” Dr. Nasser recommended that Anderson
continue his medication and receive regular “interventional pain
treatments.”

¶4             Concerning permanent impairment, Dr. Nasser testified the
following:

         Q. At—at this point—and I’m obviously referring to
         your most recent contact with [] Anderson—is either his
         low back condition or his neck condition a—an
         impairment to him as far as activities of daily living?

         A. I believe it would be.

         ...

         Q. Are you able to—I mean, if—it’s a—it’s a common
         type of inquiry in cases like this if you’re able to give us
         a—any percentage of impairment as regards the two
         parts of his body that are involved in this.

         A. Unfortunately, at this point, I cannot. I do not—I have
         not practiced giving impairment ratings so I don’t have


1      Anderson also asserted a lower back condition and a new mental or
psychological condition were related to the 2009 incident. He does not
challenge on appeal the ALJ’s conclusions about these conditions, so we
need not address them.


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                ANDERSON v. ALL ROCK/TWIN CITY
                      Decision of the Court

         the guidelines nor have I been practicing doing that. So
         I—I wouldn’t want to do that.

         Q. Is—in general, what type of activities would you
         recommend are okay for him and the type of activities,
         either in—either in kind or in degrees, would you
         recommend that he not be involved in?

         A. Well, he’s probably capable of sedentary and light
         activities. Pushing and pulling would easily and
         eventually aggravate his neck or his arm symptoms.
         Bending and twisting and lifting would aggravate his
         low back condition. . . . So based on his diagnoses and
         his—the objective findings on numerous studies, I think
         his activities would reasonably be expected to be
         limited.

¶5           Dr. James Maxwell also testified about Anderson’s cervical
spine condition. Dr. Maxwell opined that Anderson’s cervical spine was
medically stationary without permanent impairment and without
permanent work restrictions. He also opined that Anderson did not need
any supportive care.

¶6            The ALJ adopted Dr. Nasser’s opinions on Anderson’s
cervical spine condition, and he found that the condition was medically
stationary with no permanent impairment. Thereafter, with the exception
of supportive medical maintenance, the ALJ ordered all medical, surgical,
and hospital benefits and temporary disability benefits to terminate
effective July 2016, when Anderson’s cervical spine condition became
stationary. The ALJ ordered supportive medical maintenance benefits to
continue for one year, to be reviewed annually, which included one repeat
cervical epidural injection, one repeat radiofrequency ablation injection,
four office visits annually, and continuation of his medication. Anderson
requested review of the decision and argued that Dr. Nasser’s testimony
supported a finding of permanent impairment. He also argued a rating of
permanent impairment under the American Medical Association Guides to
the Evaluation of Permanent Impairment (“AMA Guides”) was
unnecessary for determining permanent impairment.

¶7             In his decision on review, the ALJ noted that Dr. Nasser did
not testify that the AMA Guides were inapplicable to Anderson’s medical
conditions or that a rating thereunder would not accurately reflect
Anderson’s condition. The ALJ concluded that “Arizona law provides that



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                        Decision of the Court

permanent impairment must be rated.” The ALJ also concluded that
insufficient evidence supported a finding that Anderson sustained a
permanent impairment, and he affirmed his decision. Anderson timely
appealed to this Court.

                                DISCUSSION

¶8            Anderson claims that the ALJ erred in finding that his cervical
spine condition was not a permanent impairment. He argues that the
medical evidence showed that he suffered a permanent impairment and
that the ALJ wrongly found no permanent impairment because the ALJ
erroneously believed that before an award may be given, a claimant had to
show either that the impairment was numerically rated under the AMA
Guides or that the Guides were inapplicable. In reviewing the ALJ’s
findings and award, we defer to the ALJ’s factual findings, but examine
questions of law de novo. Wozniak v. Indus. Comm’n, 238 Ariz. 270, 273 ¶ 7
(App. 2015). This Court considers the evidence in the light most favorable
to upholding the ALJ’s award. Id. We will affirm the ALJ’s decision if the
evidence reasonably supports it. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105
¶ 16 (App. 2002).

¶9           The ALJ found insufficient evidence of permanent
impairment because Dr. Nasser did not rate Anderson’s impairment under
the AMA Guides and did not state that the AMA Guides were inapplicable
to Anderson’s case. But such testimony was not required to allow the ALJ
to determine whether Anderson suffered permanent impairment.

¶10              In determining whether a claimant has sustained an
impairment from an industrial injury, physicians “should rate the
percentage of impairment” under the AMA Guides “if applicable.” A.A.C.
R20–5–113(B)(1). But the Arizona Supreme Court has long interpreted this
regulation to mean that use of the AMA Guides in determining impairment
is discretionary. Gutierrez v. Indus. Comm’n, 226 Ariz. 395, 398 ¶¶ 12–13
(2011) (collecting cases). Some impairments, such as pain that prevents a
claimant from continuing in his former occupation—as alleged in this
case—are compensable even in the absence of a rating under the AMA
Guides. See Smith v. Indus. Comm’n, 113 Ariz. 304, 307 (1976). Moreover, the
percentage of impairment provided in the AMA Guides is “relatively
unimportant” for unscheduled injuries—such as the pain alleged in this
case—that cause impairment. Id. at 307 n.4; see also Carousel Snack Bar v.
Indus. Comm’n, 156 Ariz. 43, 45 (App. 1988) (“The reason an unscheduled
injury need not be ‘rated’ so long as it results in some disability is that there
is often little relationship between the injury and the resulting disability. A


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                       Decision of the Court

small injury can result in total disability and a large injury can result in a
minimum of disability or loss of earning capacity.”). Consequently, the ALJ
erred in refusing to find impairment simply because no physician testified
that the AMA Guides could not be applied to Anderson’s case.

¶11            Without consideration of the AMA Guides, the evidence
showed that Anderson had suffered a permanent impairment. Permanent
impairment means “any anatomic or functional abnormality or loss” after
the condition has become medically stationary. Smith, 113 Ariz. at 305 n.1.
Unless apparent to a lay person, medical causation must be shown by
expert testimony and proved “to a reasonable degree of medical
probability.” Hackworth v. Indus. Comm’n, 229 Ariz. 339, 343 ¶ 9 (App. 2012)
(quoting Payne v. Indus. Comm’n, 136 Ariz. 105, 108 (1983)). The claimant has
the burden of showing impairment. Gutierrez v. Indus. Comm’n, 226 Ariz. 1,
3 ¶ 5 (App. 2010), aff’d in part, 226 Ariz. 395 (2011). A claimant can meet the
burden of proof in showing the existence of a permanent impairment
related to disabling pain if (1) the pain is caused by an industrial injury and
(2) results in a permanent inability to return to the former work. Cassey v.
Indus. Comm’n, 152 Ariz. 280, 283 (App. 1987); see Simpson v. Indus. Comm’n,
189 Ariz. 340, 346 (App. 1997) (applying the permanent impairment test
established in Cassey).

¶12            The ALJ had evidence that Anderson’s job as a truck driver
required him to climb in and out of his truck’s cab, climb the side of the
truck to pull a tarp to cover his load, and to inspect his truck, which
required him to crawl around his truck as well as lift the hood. Dr. Nasser
testified that “pushing and pulling would easily and eventually aggravate
his neck or arm symptoms” and that Anderson’s “activities would
reasonably be expected to be limited.” The ALJ consequently had sufficient
evidence to find that Anderson had suffered a permanent impairment to
his neck that prevented him from returning to his former job.

¶13           Beyond the issue of the AMA Guides, All Rock and Twin City
argue that Anderson did not present sufficient evidence of a permanent
impairment because Dr. Nasser’s testimony on that point was ambiguous.
They note that when asked if “either” Anderson’s lower back condition or
his cervical spine condition was an impairment in his daily activities, Dr.
Nasser answered, “I believe it would be,” without differentiating between
his lower back and cervical spine conditions. All Rock and Twin City also
argue that Dr. Nasser’s testimony regarding impairment did not satisfy the
impairment test used in Cassey because he did not explicitly state that
Anderson could not return to his former work.



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                 ANDERSON v. ALL ROCK/TWIN CITY
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¶14             Both arguments fail. Although Dr. Nasser’s response to the
referenced question did not discuss the conditions separately and he did
not expressly state that Anderson could not return to his former work, he
clearly testified that Anderson would need continued pain treatment and
that the work injury to Anderson’s neck limited his ability to push and pull
because those actions “would easily and eventually aggravate his neck[.]”
Because Anderson’s former job required him to climb his truck, lift the
truck’s hood, and pull a tarp to cover his load, the evidence showed that he
had suffered a permanent impairment that prevented him from returning
to his former work. Consequently, the ALJ erred in failing to find that
Anderson suffered a permanent impairment to his cervical spine, and we
reverse his contrary award.

                              CONCLUSION

¶15          For the foregoing reasons, we reverse.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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