                          NOTICE: NOT FOR PUBLICATION.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


                        FLORIN COMAN, Petitioner,

                                        v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                 WILSON ELECTRIC, Respondent Employer,

ARCH INSURANCE CO C/O GALLAGHER BASSET, Respondent Carrier.

                                No. 1 CA-IC 13-0073
                                 FILED 06-05-2014


                  Special Action - Industrial Commission
                       ICA Claim No. 20121-280096
                  Carrier Claim No. 002656-001637-WC-01

                Deborah A. Nye, Administrative Law Judge

                                   AFFIRMED


                                    COUNSEL

Florin Coman, Phoenix
Petitioner in Propria Persona

Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By Terrance Kurth
Counsel for Respondent Employer/Carrier
                        COMAN v. WILSON/ARCH
                          Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Margaret H. Downie joined.


K E S S L E R, Judge:

¶1             This is a special action review of an Industrial Commission
of Arizona (the “Commission”) award and decision upon review denying
benefits without permanent disability to petitioner Florin Coman. Coman
raises three issues on appeal:

      (1) whether the Administrative Law Judge (“ALJ”) erred in
      adopting the opinion of John Beghin, M.D.;

      (2) whether the ALJ misinterpreted the testimony of Abram
      Burgher, M.D.; and

      (3) whether reasonable evidence in the record supports the
      ALJ‟s finding that Coman‟s condition is medically
      stationary.

Because we find the ALJ‟s award is legally sufficient and is reasonably
supported by the 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) (2003), 23-951(A) (2012), and
Arizona Rule of Procedure for Special Actions 10.1 In reviewing findings
and awards of the Commission, 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 the
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).




1      We cite the current version of the applicable statutes when no
revisions material to this decision have since occurred.



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                      COMAN v. WILSON/ARCH
                        Decision of the Court

              FACTUAL AND PROCEDURAL HISTORY

¶3            In March 2012, Coman, an electrician, sustained a thoracic
spinal injury while digging a trench for Respondent Employer, Wilson
Electric. His symptoms include back pain, burning in his spine, pain and
weakness in his legs, pain around his chest, pain in his arms, and
headaches. Five weeks after his injury, Coman returned to work in a light
duty job until he separated from employment in October 2012.

¶4            After litigating the claim, the ALJ found Coman‟s injury to
be compensable. The award was later affirmed, but supplemented to
explain that the nature and extent of the injury was reserved for future
determination.

¶5            Respondents issued a Notice of Claim Status terminating
Coman‟s benefits without permanent disability effective July 2012 based
on the medical report and opinion of Dr. Beghin, a board-certified
orthopedic surgeon. Dr. Beghin opined there was no objective evidence of
pathology corresponding with Coman‟s symptoms to warrant further
treatment, and he was stationary without permanent impairment. Coman
protested the termination of benefits and requested a hearing.

¶6            At the hearing, a second ALJ heard testimony from Coman,
Thomas Blankenbaker, D.C., an Arizona-licensed chiropractor who
treated Coman with physical rehabilitation, and Dr. Burgher, a board-
certified anesthesiologist and pain specialist who performed surgery on
Coman‟s spine in April 2013. In addition to the testimony, the ALJ
considered medical reports, including those generated by Dr. Beghin.

¶7            Based on the hearing evidence, there was a conflict in expert
medical opinions between Dr. Blankenbaker, whose testimony implied
that Coman‟s continued treatment, including his thoracic surgery, was
related to his industrial injury, Dr. Burgher, who testified that he could
not determine whether the surgery was necessitated by the industrial
injury or degenerative disc disease, and Dr. Beghin, who opined that
Coman suffered a stress disorder with physical manifestations and
remains stationary without permanent impairment.

¶8            The ALJ adopted the opinion of Dr. Beghin and concluded
that Coman failed to meet his burden of proof. As a result, she found that
Coman was entitled to benefits from March 2012 through July 2012, when
his industrial condition became medically stationary without permanent
impairment. Coman filed a request for review, but the ALJ affirmed the
termination of benefits, finding the decision was fully supported by the


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                       COMAN v. WILSON/ARCH
                         Decision of the Court

evidence. Coman next filed a timely petition seeking special action review
with this Court.

                               DISCUSSION

I.     The ALJ did not err in adopting the opinion of Dr. Beghin.

¶9          Coman argues that the ALJ erred in adopting the opinion of
Dr. Beghin. We disagree.

¶10            “In determining the facts, it is the ALJ, not this [C]ourt, who
has the responsibility of resolving conflicts in expert opinions, and we will
affirm an ALJ‟s resolution of conflicting opinions absent an abuse of
discretion.” Kaibab Indus. v. Indus. Comm’n, 196 Ariz. 601, 605, ¶ 10, 2 P.3d
691, 695 (App. 2000); see also Carousel Snack Bar v. Indus. Comm’n, 156 Ariz.
43, 46, 749 P.2d 1364, 1367 (1988) (“An award of the Commission will be
affirmed if it can be supported by any reasonable theory of evidence.”). In
reviewing the ruling, this Court does not “weigh the evidence but
considers it in the light most favorable to sustaining the award.” Perry v.
Indus. Comm’n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975).

¶11          Here, the ALJ was presented with conflicting expert medical
opinions and resolved the conflict by adopting the opinion of Dr. Beghin:

       The medical evidence between [Coman‟s] own experts[]
       conflicts if I infer that Dr. Blankenbaker believes that the
       continued treatment rendered for [Coman] after July 13,
       2012, is related to [Coman‟s] industrial accident. Dr.
       Burgher clearly stated he could not relate the need for
       surgery to the industrial accident. There are additional
       conflicts between Dr. Beghin, who thinks there was no
       pathology to be treated, regardless of causation, and that of
       Dr. Burgher, who at least felt [Coman] should be treated
       even as he could not render an opinion that the treatment
       was due to the industrial accident of March 14, 2012. To
       resolve the conflicts that are present, I adopt the opinion of
       Dr. Beghin as more probably correct.

¶12           In view of the Commission‟s discretion and the presumption
favoring its awards, we cannot say that the ALJ‟s resolution of this conflict
was wholly unreasonable. Dr. Beghin‟s opinions were based on two
physical examinations of Coman and a review of his medical records. See
Walters v. Indus. Comm’n, 134 Ariz. 597, 598-99, 658 P.2d 250, 251-52 (App.
1982) (recognizing that an ALJ is not required to give greater weight to the


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                        COMAN v. WILSON/ARCH
                          Decision of the Court

testimony of a treating physician over a doctor who has examined the
claimant only once). Although Coman maintains that his pain is directly
related to his industrial injury, the ALJ was at liberty to, and did not err in,
adopting Dr. Beghin‟s opinion. See Kaibab Indus., 196 Ariz. at 609, ¶ 25, 2
P.3d at 699 (“Only if the award is unsupported by any reasonable theory
of evidence will we reverse.”).

II.    The ALJ did not misinterpret the testimony of Dr. Burgher.

¶13          Coman argues that the ALJ misinterpreted the testimony of
Dr. Burgher, whose opinion was sufficient to support an award for
continuing benefits and/or permanent disability. We disagree.

¶14           At the hearing, Dr. Burgher testified that surgery was
necessary to provide Coman pain relief and improve his long-term quality
of life. He also testified, however, that he could not determine whether
the treatment for his pain was necessitated by the industrial injury or
degenerative disc disease:

              You know, it‟s difficult in a sense that, you know, the
       MRIs are just so difficult to interpret every time I‟m asked
       this question. I‟m sorry for that, but, you know, the findings
       that are seen on his MRI are consistent with normal patterns
       of degeneration that we see in everybody‟s spine as they get
       older. It‟s very difficult to relate a specific degenerative
       pattern like this to an incident or to just a normal process of
       wear and tear.

              And oftentimes what we see is that the normal
       process of wear and tear is ongoing and then some sort of
       accident/incident happens that seems to aggravate pain
       associated with normal wear and tear.

              So, the nuts and bolts—I can‟t differentiate from the
       MRI whether this is just normal pattern of wear and tear or
       whether there‟s been some injury that‟s caused—whether
       there‟s been some specific injury that‟s caused this pattern in
       here.

¶15           Coman claims that the ALJ incorrectly interpreted Dr.
Burgher‟s testimony as proof that the cause of the injury was a preexisting
degenerative condition. This interpretation is not apparent in the record.
Instead, the ALJ summarized Dr. Burgher‟s testimony, stating that “he
was unable to causally relate the disc protrusions or the need for surgery


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                       COMAN v. WILSON/ARCH
                         Decision of the Court

to the industrial accident,” and noting that Coman‟s condition “fit a
normal pattern of degenerative disc disease.” Ultimately, in comparing
the conflicting expert testimony, the ALJ explained that Dr. Burgher
clearly stated he could not render an opinion that any continued treatment
was due to the industrial accident. The ALJ did not, as Coman claims,
state that Dr. Burgher affirmatively linked the injury to normal bodily
wear and tear. Based on our review of the record, we find no error.2

III.   This Court does not reweigh evidence.

¶16           Coman argues that the evidence shows the best explanation
for his mid-thoracic pain is his industrial injury. He asks this Court to
reconsider the evidence as a whole and reverse the award and findings in
opposition to Dr. Beghin‟s opinion. As explained above, “it is the ALJ, not
this [C]ourt, who has the responsibility of resolving conflicts in expert
opinions.” Kaibab Indus., 196 Ariz. at 605, ¶ 10, 2 P.3d at 695. We therefore
decline to reweigh the evidence. See Pacific Fruit Exp. v. Indus. Comm’n,
153 Ariz. 210, 214, 735 P.2d 820, 824 (1987) (“We do not weigh the
evidence, but consider it in the light most favorable for sustaining the
award.”).

                              CONCLUSION

¶17          For the foregoing reasons, we affirm the Commission‟s
award.




                                     :gsh




2       Dr. Burgher‟s opinion would not have been sufficient to support an
award for continuing benefits because it was equivocal. “Testimony is
„equivocal‟ if it is subject to two or more interpretations or if the expert
avoided committing to a particular opinion.” Rosarita Mexican Foods v.
Indus. Comm’n, 199 Ariz. 532, 536, ¶ 13, 19 P.3d 1248, 1252 (App. 2001).
“„Equivocal‟ medical testimony cannot support a finding that a claimant‟s
condition is non-stationary.” Id. Additionally, although the ALJ inferred
from Dr. Blankenbaker‟s testimony that Coman‟s continued treatment was
related to the industrial accident, Dr. Blankenbaker never actually testified
as to causation or etiology.



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