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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


           XANTERRA PARKS & RESORTS, Petitioner Employer,

                     SEDGWICK CMS, Petitioner Carrier,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                  WILLIAM BROWN, Respondent Employee.

                              No. 1 CA-IC 16-0066
                                FILED 5-30-2017


                Special Action – Industrial Commission
                      ICA Claim No. 20111-110227
                  Carrier Claim No. 30110427569-0001
       The Honorable J. Matthew Powell, Administrative Law Judge

                             AWARD AFFIRMED


                                    COUNSEL

Lester, Norton & Brozina, P.C., Phoenix
By Rachel P. Brozina
Counsel for Petitioner Employer and Petitioner Carrier

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent
Fendon Law Firm, P.C., Phoenix
By Matt C. Fendon
Counsel for Respondent Employee



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer B. Campbell joined.


N O R R I S, Judge:

¶1            In this special action from an Industrial Commission of
Arizona (“ICA”) award and decision upon review, Petitioner Employer,
Xanterra Parks & Resorts, and Petitioner Carrier, Sedgwick CMS
(collectively “Carrier”), argue the Administrative Law Judge (“ALJ”)
should not have modified Respondent Employee, William Brown’s,
supportive care award. Reviewing the ALJ’s award under the governing
standards of review, we disagree. See Young v. Indus. Comm’n, 204 Ariz. 267,
270, ¶ 14, 63 P.3d 298, 301 (App. 2003) (appellate court defers to ALJ’s
factual findings but reviews legal issues de novo) (citation omitted); Lovitch
v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002)
(appellate court views evidence in light most favorable to sustaining award
and will affirm award if reasonably supported by evidence) (citations
omitted).

           BACKGROUND AND PROCEDURAL HISTORY

¶2             In April 2011, Brown sustained an industrial injury to his
lower back. In March 2013, an ALJ found Brown was stationary with ten
percent permanent impairment following disc replacement surgery. The
ALJ awarded Brown unscheduled permanent partial disability benefits to
be determined by the ICA. The parties eventually stipulated to Brown’s loss
of earning capacity and the amount Brown should receive in permanent
partial disability benefits.

¶3            In November 2013, Brown requested a hearing pursuant to
Arizona Revised Statutes (“A.R.S.”) section 23-1061(J) (2016) (ICA shall
investigate and review claim that claimant has not been granted benefits to
which he is entitled), alleging the Carrier had improperly denied Brown’s




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                   XANTERRA/SEDGWICK v. BROWN
                        Decision of the Court
request for supportive care.1 In March 2014, before the ICA could hold a
hearing on his request, the parties resolved Brown’s request, and the
Carrier issued a “Notice of Supportive Medical Maintenance Benefits” (the
“March Award”). The March Award authorized Brown to receive four
office visits per year, oxycodone, and cyclobenzaprine. The March Award
stated the award of supportive care would be reviewed annually.

¶4            In October 2014, Brown requested a hearing pursuant to
A.R.S. § 23-1061(J) to modify the March Award, explaining his treating
physician, Steven Beck, M.D., recommended monitoring Brown every four
to six weeks to properly manage his pain. The parties resolved Brown’s
request by stipulation and the Carrier authorized up to eight visits per year
with Dr. Beck. The stipulation made no other modifications to the March
Award. An ALJ approved the stipulation modifying the March Award in
November 2014 (the “November Award”).

¶5             Roughly one month later, in December 2014, Brown
requested a hearing pursuant to A.R.S. § 23-1061(J) to modify his supportive
care, requesting additional medication, coverage for a MRI, and epidural
steroid injections. An ALJ held a hearing on Brown’s request. After
considering the evidence, the ALJ issued an award modifying Brown’s
supportive care to include additional medication, a MRI, and epidural
steroid injections.

                               DISCUSSION

¶6            The Carrier argues, first, issue preclusion barred Brown’s
December 2014 request to modify the March Award, as modified by the
November Award, and, second, Brown failed to establish a qualitative
change in his condition to warrant expanding the November Award.
Although the Carrier frames these as separate issues, resolution of these
arguments turns on whether Brown established he had experienced a
qualitative change in his physical condition. See Brown v. Indus. Comm’n, 199
Ariz. 521, 524, ¶ 14, 19 P.3d 1237, 1240 (App. 2001) (when a party moves to
change supportive care award, issue preclusion applies in absence of
evidence that party’s physical condition or medical procedures are
qualitatively different from prior proceeding) (citation omitted). The ALJ
found Brown experienced a qualitative change in his physical condition

              1A  supportive care award is similar to that awarded to a
claimant who has a temporary disability due to an industrial aggravation
of a preexisting condition; in that case, the claimant is entitled to benefits
until the aggravation becomes stationary. Capuano v. Indus. Comm’n, 150
Ariz. 224, 226, 722 P.2d 392, 394 (App. 1986) (citation omitted).


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                   XANTERRA/SEDGWICK v. BROWN
                        Decision of the Court
and, as we discuss below, the ALJ’s finding was supported by reasonable
evidence.

¶7            At the beginning of the hearing before the ALJ, the parties
agreed that if Brown had experienced a “qualitatively-different change” in
care from the November Award, a change in his supportive care award
would be appropriate pursuant to Brown. Dr. Beck testified that since the
November Award, “there could be something developing above or below
[the site of Brown’s disc replacement surgery] and . . . it made sense to
investigate that.” When asked about Brown’s pain, Dr. Beck responded,
“the amount of leg pain and intensity that he reports to me has increased
and has on a fairly consistent basis.” In discussing Brown’s treatment, Dr.
Beck explained, “the reason that I’ve made the changes [to Brown’s
treatment regimen] and recommended the epidurals and the MRIs recently
is because we’ve moved . . . into a period where he’s functioning less.”
Finally, Brown’s counsel asked Dr. Beck, “Has [Brown’s] condition changed
significantly since November 2014?” Dr. Beck testified in the affirmative,
explaining:

              Well, I think that his, that the radiculopathy, the
              amount of leg pain and intensity that he reports
              to me has increased and has on a fairly
              consistent basis. He was a little bit weaker in the
              left lower leg and seemed to be getting less out
              of treatment.

¶8            Stephen Borowsky, M.D., who examined Brown at the
Carrier’s request, testified Brown had received injections in the past and
“there was no reason to reproduce those.” He testified Brown’s medications
should “not escalate until we could determine whether there is a physical
orthopedic spine problem that warrants treatment.” He added Brown was
not responding to an increase in medications and “[h]e was really no better”
from the increased medication.

¶9            Jason Datta, M.D. also examined Brown at the Carrier’s
request. Dr. Datta reported Brown “has significant functional overlay” and
“has demonstrated typical findings for prolonged chronic opioid usage
with a tolerance developing and a necessity for feeling of needing more
pain medication for pain control not necessarily worsening symptoms.”
Therefore, he did not recommend a change in Brown’s care.

¶10          We acknowledge the conflicts between Dr. Beck’s opinions
and the opinions of Drs. Borowsky and Datta. Conflicts in evidence,
however, are resolved by the ALJ sitting as the trier of fact, not this court.


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                   XANTERRA/SEDGWICK v. BROWN
                        Decision of the Court
Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367
(1988) (citation omitted). Given Dr. Beck’s testimony, reasonable evidence
supports the ALJ’s conclusion Brown had experienced a qualitative change
in his physical condition from the November Award, and we must affirm
the ALJ’s modification of supportive care. See Lovitch, 202 Ariz. at 105, ¶ 16,
41 P.3d at 643.

                              CONCLUSION

¶11          For the foregoing reasons, we affirm the ALJ’s award and
decision upon review.




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




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