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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                        CURT HEMMING, Petitioner,

                                        v.

     THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

      MCCARTHY BUILDING COMPANIES, Respondent Employer,

 ARCH INSURANCE CO/GALLAGHER BASSETT INS SVC, Respondent
                       Carrier.

                             No. 1 CA-IC 15-0042
                               FILED 5-17-2016


                  Special Action - Industrial Commission
                       ICA Claim No. 20141-260537
                 Carrier Claim No. 002125-001398-WC-01
               Rachel C. Morgan, Administrative Law Judge

                            AWARD AFFIRMED


                                   COUNSEL

Curt Hemming, Scottsdale
Petitioner

The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Jardine Baker Hickman & Houston PLLC, Phoenix
By Stephen C. Baker
Counsel for Respondents Employer and Carrier



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Lawrence F. Winthrop joined.


K E S S L E R, Judge:

¶1            This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for temporary total
and/or temporary partial disability benefits. We construe Petitioner
employee’s (“Hemming”) opening brief as contending that the
administrative law judge (“ALJ”) erred in resolving the conflict between
two medical experts to conclude that Hemming was not entitled to
continuing medical and disability benefits after May 19, 2014. Because we
find the ALJ’s award is supported by reasonable and substantial evidence,
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) (2016), 23-951(A) (2016), 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
(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 (App. 2002). We will affirm the ALJ’s award as long as it is supported
by reasonable and substantial evidence. See Hopper v. Indus. Comm’n, 27
Ariz. App. 732, 735 (App. 1976).
                  FACTUAL AND PROCEDURAL HISTORY
¶3          Hemming injured his back while working for McCarthy
Building Companies (“Respondent”) on February 27, 2014. After his injury,



1We cite to the current version of the relevant statutes unless revisions
material to this decision have occurred.


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                   HEMMING v. MCCARTHY/ARCH
                       Decision of the Court

Hemming continued to work regular duty until approximately May 9, 2014,
when he was laid off.

¶4             Shortly after the layoff, Hemming filed a claim for benefits.
Respondent’s insurance carrier issued a notice accepting the claim but
terminating benefits effective May 19, 2014, without permanent
impairment. Hemming filed a Request for Hearing before the ICA,
protesting the notice issued by Respondents. The ALJ scheduled hearings,
which included testimony from Hemming, lay witnesses Steven
Hollenbach and Craig Olson, and medical experts Marc Letellier, M.D.
(“Dr. Letellier”) and Dennis Crandall, M.D. (“Dr. Crandall”).

¶5             Dr. Crandall testified that he performed an independent
medical evaluation (“IME”) of Hemming on May 19, 2014. In addition to
the findings of his own physical examination, Dr. Crandall reviewed
Hemming’s medical records, including those from Hemming’s primary
care physician, Dr. Grace Haynes (“Dr. Haynes”). Informed by his review
of Hemming’s medical records, Dr. Crandall testified that Hemming had
back complaints and the need for medication for his back that pre-existed
the fall of February 27, 2014. Dr. Crandall also found Hemming’s complaint
of sacrum to coccyx pain consistent with the records of Hemming’s primary
care physician extending back to December 2013. Hemming’s December
2013 medical records also reported Hemming having back and tailbone
pain with Hemming’s lumbar spine showing degenerative change,
degenerative scoliosis, and several levels of arthritis. Dr. Crandall
concluded that the most appropriate diagnosis was that Hemming suffered
a “lumbar strain” and that Hemming’s condition was stationary effective
May 19, 2014, and without any ratable permanent impairment.2

¶6            Dr. Letellier testified that he saw Hemming for a surgical
consultation on June 11, 2014, and, to a reasonable degree of medical
probability, diagnosed Hemming with degenerative disc disease and a
small annular tear. Dr. Letellier rendered his diagnosis in reliance on
Hemming’s representation that he had no prior back problems before his
industrial incident. He did not review Dr. Crandall’s report or the

2 At the ICA hearing, Dr. Crandall stated that he made his conclusion
because he believed it to be consistent with the sixth edition of the American
Medical Association’s Guidelines for the Evaluation of Permanent
Impairment, which, according to him, does not attribute a ratable
impairment secondary to a lumbar strain. Thus, he determined that
Hemming’s lumbar strain required no supportive care.



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                      HEMMING v. MCCARTHY/ARCH
                          Decision of the Court

December 2013 medical treatment history or report by Dr. Haynes. In
arriving at his medical conclusion, Dr. Letellier assumed that the annular
tear resulted from the industrial incident.3 Dr. Letellier, therefore, made his
diagnosis based only upon his own examinations and Hemming’s
representations, but without knowledge of Hemming’s pre-existing back
pain complaints or medical treatment prior to the industrial fall.4 He
recommended that Hemming continue his work on light duty and be
treated with epidural steroid injections and/or facet injections.

¶7            In the award, the ALJ found a conflict in the medical evidence
and adopted Dr. Crandall’s medical conclusion that Hemming became
medically stationary without permanent impairment and without the need
for supportive care or work restrictions effective May 19, 2014. The ALJ
thus agreed with Dr. Crandall that Hemming’s industrial incident caused
only a temporary aggravation of Hemming’s pre-existing back condition,
which was sufficiently treated as of May 19, 2014. The ALJ accordingly
issued awards for medical, surgical, and hospital benefits as well as for
temporary total and/or temporary partial disability benefits from February
27, 2014, through May 19, 2014.

¶8          Hemming filed a Request for Review. The ALJ issued a
Decision Upon Review Affirming Decision upon Hearing and Findings and


3   When asked about his diagnosis, Dr. Letellier testified as follows:

“[T]o me most of this would have been pre-existing except for maybe
the annular disruption, the annular tear . . . I don’t think that you can
say 100 percent that this is all preexisting just because of the annular
tear, but I don’t know if the annular tear is necessarily the cause of
this patient’s discomfort or clinical situation. . . . I always go on the
history that the patient presents to us, and in this case he had no
problems prior [to the accident,] so I’m going to say that no matter
what if the preexisting condition that we see on the MRI is chronic
or degenerative, and nobody will say that this is acute, the history
seems to indicate that the patient’s problem is due to the accident.”
4 When Respondent’s counsel disclosed to Dr. Letellier the medical
information in Dr. Haynes’s December 2013 report, Dr. Letellier expressed
that he would not have changed his medical conclusions if he had reviewed
the report prior to his diagnosis because Hemming’s main complaint at the
time of Dr. Haynes’s report was his prostate check, which, unlike the injury
from the industrial incident, did not stop Hemming from working.



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                    HEMMING v. MCCARTHY/ARCH
                        Decision of the Court

Award (Temporary Benefits) affirming her prior decision. Hemming
subsequently and timely filed this special action. He now seeks disability
benefits, at his average monthly wage of $3,250.86, extending from May 20,
2014, through the date of appeal.
                                    DISCUSSION
¶9             Hemming argues that the ALJ’s award should be reversed,
because it is legally improper and one-sided as the ALJ erred in adopting
the opinion of one medical expert over another in support of that award.
Hemming thus argues that rather than the ALJ’s award for temporary
medical care and an amount in earnings for the period of February 27, 2014,
through May 19, 2014, he is entitled to full earnings compensation from
May 20, 2014, through the date of appeal.5

¶10              Typically, back and spine injuries require expert medical
testimony to demonstrate the causal connection between the claimant’s
medical condition and the industrial incident. W. Bonded Prod. v. Indus.
Comm’n, 132 Ariz. 526, 527-28 (App. 1982). When expert medical evidence
conflicts, it is the ALJ’s duty to resolve the conflicts. Perry v. Indus. Comm’n,
112 Ariz. 397, 398 (1975); Masters v. Indus. Comm’n, 15 Ariz. App. 512, 514
(App. 1971).

¶11           An ALJ can adopt one physician’s opinion over another when
the latter opinion is grounded on insufficient information. This Court has
recognized that “medical testimony can be so weakened by proof of
inaccurate factual background that the testimony cannot be said to
constitute ‘substantial evidence.’ ” See Desert Insul. v. Indus. Comm’n, 134
Ariz. 148, 151 (App. 1982). While not every factual inaccuracy will

5 Respondents argue that Hemming’s opening brief fails to clearly identify
or discuss any specific legal grounds or arguments for vacating the ALJ’s
decision and fails to include citations to the record. This lack of reference
to legal authority and failure to cite the record could be considered
abandonment and waiver of his claim. See ARCAP 13(a)(7)(A) (requiring
appellant’s brief to contain arguments that include “citations of legal
authorities and appropriate references to the portions of the record on
which the appellant relies.”); State v. Carver, 160 Ariz. 167, 175 (1989)
(“Failure to argue a claim usually constitutes abandonment and waiver of
that claim.”). However, in our discretion, we decide this appeal on its
merits based on our own review of the record. See Adams v. Valley Nat’l
Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (recognizing that courts prefer
to decide each case upon its merits rather than dismissing on procedural
grounds).


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                    HEMMING v. MCCARTHY/ARCH
                        Decision of the Court

undermine a doctor’s opinion and warrant its disregard, the doctor’s
opinion is compromised where the factual inaccuracy is material or
significant to the doctor’s medical opinion—such as in the subject case. See
Fry’s Food Stores v. Indus. Comm’n, 161 Ariz. 119, 122 (1989).

¶12           As noted above, Dr. Crandall’s medical testimony concluded
that Hemming’s condition, with regard to his industrial injury, became
medically stationary without permanent impairment and without the need
of supportive care or work restrictions as of May 19, 2014. As described
above, we see substantial evidence supporting Dr. Crandall’s medical
testimony and factual conclusions.

¶13           In contrast, Dr. Letellier’s medical testimony is undermined
by the inaccurate and insufficient information on which it is based. Thus,
the ALJ was entitled to give greater weight to Dr. Crandall’s medical
testimony. Furthermore, because it is the duty of the ALJ to resolve
conflicts in evidence, we defer to the ALJ’s factual findings if they are
substantiated by competent evidence. Preuss v. Indus. Comm’n, 15 Ariz.
App. 515, 516-17 (App. 1971). Because the ALJ is free to adopt opinions that
have a reasonable basis, Rent A Ctr. v. Indus. Comm’n, 191 Ariz. 406, 408, ¶
6 (App. 1988), we find no error with the ALJ’s adoption of Dr. Crandall’s
opinions over those of Dr. Letellier.

¶14             Hemming had the burden to prove that his physical condition
was causally related to his industrial injury and that he was not yet
medically stationary. See, e.g., Lawler v. Indus. Comm’n, 24 Ariz. App. 282,
284 (App. 1975). Substantial evidence supports the ALJ’s conclusion that
Hemming failed to prove that any persisting back problem is causally
related to his industrial injury of February 27, 2014. In deferring to the ALJ’s
factual findings, we hold the ALJ did not err in concluding that Hemming
was not entitled to continuing medical benefits after May 19, 2014.
                                  CONCLUSION
¶15          Because the evidence in the record supports the ALJ’s award
and decision upon review, we affirm.




                                    :ama

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