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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                       DONNA L. CULLINS, Petitioner,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

           SEQUEL YOUTH AND FAMILY, Respondent Employer,

    PMA c/o GALLAGHER BASSETT SERVICES, Respondent Carrier.

                              No. 1 CA-IC 16-0022
                                FILED 4-18-2017


                   Special Action – Industrial Commission
                         ICA Claim No. 20130-500189
                   Carrier Claim No. 011975-079287-WC-01

                  Deborah Nye, Administrative Law Judge

                             AWARD AFFIRMED


                                    COUNSEL

Joel F. Friedman, PLLC, Phoenix
By Joel F. Friedman
Counsel for Petitioner

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent Industrial Commission of Arizona
Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix
By R. Todd Lundmark, Danielle S. Vukonich
Counsel for Respondent Employer and Respondent Carrier



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1             This is a special action review of an Industrial Commission of
Arizona award and decision upon review finding the petitioner employee,
Donna L. Cullins (“Cullins”) medically stationary with a ten percent
permanent impairment to the right lower extremity. The administrative
law judge (“ALJ”) resolved the issues in favor of the respondent employer,
Sequel Youth and Family (“Sequel”) and the respondent carrier,
Pennsylvania Manufacturers Association c/o Gallagher Bassett Services
(collectively, “Respondents”). Because the ALJ’s determinations are
reasonably supported by substantial evidence, we affirm the award and
decision upon review.

                 FACTS AND PROCEDURAL HISTORY

¶2             On February 12, 2013, Cullins injured her right ankle at work
while climbing the stairs. At the time of her injury, Cullins weighed over
300 pounds and was wearing a prescribed “boot” due to a prior industrial
injury to her right foot and ankle that occurred in December 2012.

¶3             After her February 2013 injury, Cullins filed a workers’
compensation claim, which the respondent carrier accepted. Dr. Stephen
Knecht ultimately performed a “complex reconstructive surgery” on
Cullins’ right ankle in August 2013. Before the surgery, Dr. Knecht
informed Cullins that her weight was “a significant factor [affecting] the
potential for a poor outcome after her surgery.”

¶4            After the surgery, Cullins continued to report significant pain
in her right ankle and foot. Dr. Knecht emphasized his concerns about
Cullins’ weight “as a potential limitation in further healing of her ankle soft
tissue reconstructions,” and he gave Cullins an informational flyer on
bariatric surgery.


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                          Decision of the Court

¶5           In May 2014, Cullins met with bariatric surgeon Dr. Kurt
Sprunger, who determined that Cullins was a candidate for bariatric
surgery because of her body mass index.1 Cullins also had multiple other
medical conditions that could affect the potential success of any surgery,
including hypertension, obstructive sleep apnea, prediabetes, and asthma.

¶6            Because Cullins’ health insurance required patients to
undergo six consecutive months of physician-supervised weight loss before
approving coverage for bariatric surgery, Dr. Knecht and Dr. Sprunger
provided written statements to expedite the approval process for Cullins.
Dr. Knecht’s letter stated that Cullins’ obesity was “contributing to a
significant amount of her ankle pain” and that “prolonging her [access to]
bariatric surgery will progressively injure her ankle and potentially may
create permanent issues not correctable by reconstructive ankle surgery in
the future.” Dr. Sprunger’s letter reiterated Dr. Knecht’s concerns and
requested the insurance company lift the six-month requirement so that
Cullins could undergo bariatric surgery “as soon as possible.”

¶7            In June 2014, Dr. Knecht recommended closing Cullins’
industrial case and transitioning her to supportive care status. He indicated
Cullins had sustained a permanent impairment rating of ten percent to the
lower extremity, but noted that “[t]he case will more than likely need to be
reopened once [Cullins] has completed her . . . bariatric procedure . . . to
discuss reconstruction of her ankle if the pain is not relieved with the
weight loss.”

¶8            In October 2014, Cullins attended an independent medical
exam (“IME”) conducted by Drs. Irwin Shapiro and Ernie Riffer. The
doctors’ IME report stated there was “absolutely no indication for further
surgery in regard to [Cullins’] right ankle related to the [industrial injury],”
and that Cullins was medically stationary.

¶9            The following month, Dr. Sprunger performed bariatric
surgery on Cullins. During the nine-month period after her surgery,
Cullins lost eighty-seven pounds, which represented forty-five percent of
her excess body weight. Dr. Sprunger testified that his average patient loses
sixty-four percent of excess weight within six months of bariatric surgery,




1     A patient’s body mass index is “a calculation based on the patient’s
weight taking into consideration their height.”



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                          Decision of the Court

and Cullins had “significantly less weight loss than the average for [his]
patients.”

¶10          In January 2015, the respondent carrier terminated Cullins’
temporary benefits effective December 16, 2014, assigning a ten percent
permanent impairment to her right lower extremity. Cullins timely
requested a hearing protesting the closure of her claim. She argued that she
required further care for her right ankle and that her bariatric surgery
should be covered as part of her workers’ compensation claim.

¶11            In September 2015, Cullins attended a second IME with Dr.
Shapiro. In his IME report, Dr. Shapiro opined that Cullins was medically
stationary and that “as long as [Cullins] remains in her present physical
state of obesity, it is highly improbable that any type of salvage procedure
[for her ankle] would be even a remote possibility.”

¶12          The ALJ held hearings in September 2015, January 2016, and
February 2016, and heard testimony from Cullins and Drs. Sprunger, Riffer,
Knecht, and Shapiro.

¶13            On February 26, 2016, the ALJ issued her award, adopting the
opinion of Dr. Shapiro as more probably correct and concluding that
Cullins’ injury was “medically stationary with a 10% impairment and work
restrictions as set forth by Dr. Shapiro, and that [Cullins’] bariatric surgery
was not a compensable consequence of the industrial injury, nor was it
required to treat the injury.”

¶14           Cullins requested review of the ALJ’s award, and the ALJ
issued a decision upon review summarily affirming the award.

¶15           Cullins timely filed this petition for special action, and we
have jurisdiction pursuant to Arizona Revised Statutes sections 12-
120.21(A)(2) (2016) and 23-951(A) (2012), and Rule 10 of the Arizona Rules
of Procedure for Special Actions.

                                 ANALYSIS

       I.     Standard of Review

¶16          A claimant generally bears the burden of establishing the
material elements of her claim. See Estate of Bedwell v. Indus. Comm’n, 104
Ariz. 443, 444, 454 P.2d 985, 986 (1969). Where an injury is not readily
apparent to laymen, the need for further treatment and the existence of a
permanent impairment must be established by expert testimony. See Yates


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                           Decision of the Court

v. Indus. Comm’n, 116 Ariz. 125, 127, 568 P.2d 432, 434 (App. 1977); Norris v.
Indus. Comm’n, 11 Ariz. App. 50, 53, 461 P.2d 694, 697 (App. 1969). The ALJ
resolves conflicts in the medical evidence, draws warranted inferences, and
is the sole judge of the witnesses’ credibility. See Carousel Snack Bar v. Indus.
Comm’n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367 (1988); Malinski v. Indus.
Comm’n, 103 Ariz. 213, 217, 439 P.2d 485, 489 (1968).

       II.    Application of Beasley

¶17             Generally, employers are not liable for conditions that do not
result from the industrial injury. Beasley v. Indus. Comm’n, 175 Ariz. 521,
522, 858 P.2d 666, 667 (App. 1993). In Beasley, the claimant began suffering
from hyperparathyroidism (“PTH”) and kidney stones after his claim for
an industrially-related back injury was reopened. Id. A medical expert
testified that the claimant’s PTH was unrelated to his industrial injury, but
untreated PTH would worsen the claimant’s injured spine and prevent
further back surgery. Id. This court concluded that “the necessary causal
connection” between the claimant’s back injury and his PTH did not exist
because the PTH “require[d] treatment regardless of the industrial injury”
and any worsening of the back injury because of the PTH was “only a
coincidental effect.” Id. at 524, 858 P.2d at 669. Therefore, “even when an
unrelated condition will worsen an industrial injury, and even when the
industrial injury cannot be treated without first treating the unrelated
condition, the unrelated condition is not compensable without a causal
connection flowing from the industrial injury to the unrelated condition or
its treatment.” Id.

¶18           Cullins argues that her case is distinguishable from Beasley
because, unlike the claimant’s treatment for PTH in Beasley, Cullins’
bariatric surgery was not “independently necessary,” but rather directly
related to her ankle injury. She contends that Dr. Sprunger requested
expedited insurance authorization “only . . . because of Dr. Knecht’s
concerns about [the] effect of [her] obesity on her right ankle injury.”
However, Dr. Sprunger’s decision to request expedited authorization
because of Cullins’ ankle injury has no bearing on whether the surgery was
“independently necessary.” In fact, Dr. Sprunger testified that, had he seen
Cullins before her right ankle injury, her body mass index alone would have
led him to recommend bariatric surgery. Further, Dr. Knecht testified that
there was no specific surgical procedure he suggested for Cullins’ ankle
even if she successfully reduced her weight. Accordingly, we conclude that
any worsening of Cullins’ ankle condition resulting from her weight was
coincidental, and the ALJ did not err in finding that her bariatric surgery
was not compensable.


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                          Decision of the Court

       III.   Cullins’ Other Arguments

¶19           Cullins also contends the ALJ erred in adopting Dr. Shapiro’s
medical opinion. According to Cullins, the ALJ should have adopted the
opinion of Dr. Knecht, who “knew and understood and appreciated the full
extent of [Cullins’] injury,” but the ALJ instead “relied exclusively on what
Dr. Shapiro offered not as a medical opinion, but as a resolution of the
ultimate legal determination.” Our review of the record does not support
Cullins’ assertion that Dr. Shapiro offered any legal conclusions. Rather,
Dr. Shapiro testified as to his medical opinion that Cullins did not require
weight loss after her ankle surgery to enhance her response to that surgery,
and that, although “weight loss, from her general health standpoint,
w[ould] be beneficial,” it would not “increase the probability of a successful
outcome of another [ankle] operation[.]” After hearing the doctors’
testimony and reviewing the relevant evidence, the ALJ determined that
the opinion of Dr. Shapiro was more probably correct. Because “conflicts
in medical evidence must be resolved by the trier of fact,” Carousel Snack
Bar, 156 Ariz. at 46, 749 P.2d at 1367, the ALJ did not err in adopting the
opinion of Dr. Shapiro over that of Dr. Knecht.

¶20            Finally, Cullins argues the ALJ erred in considering
“information available only after the [bariatric] surgery,” rather than
medical opinions from experts before the surgery. Again, the record does
not support Cullins’ assertion in this regard. The ALJ’s decision specifically
references medical reports authored before Cullins’ bariatric surgery. The
ALJ also considered testimony from Drs. Knecht and Sprunger addressing
Cullins’ condition before the bariatric surgery. Accordingly, the ALJ did
not err in her consideration of the relevant medical evidence.

                              CONCLUSION

¶21          For the foregoing reasons, we affirm the ALJ’s award and
decision upon review. Respondents are awarded their taxable costs on
appeal, subject to compliance with Arizona Rule of Civil Appellate
Procedure 21.




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


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