                                     IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                        JOSE AGUAYO, Petitioner,

                                       v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                       CEMEX, Respondent Employer,

         GALLAGHER BASSETT SERVICES, Respondent Carrier.

                            No. CA-IC 13-0048
                             FILED 08-12-2014


                 Special Action - Industrial Commission
                     ICA CLAIM NO. 20101-400068
               CARRIER CLAIM NO. 001151-011042-WC01

                Anthony Halas, Administrative Law Judge

                           AWARD AFFIRMED


                                 COUNSEL

Snow, Carpio & Weekley, PLC, Phoenix
By Chad T. Snow

Toby Zimbalist, Phoenix

Co-Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent

Jardine, Baker, Hickman & Houston, Phoenix
By Stephen Baker
Counsel for Respondents Employer and Carrier



                                OPINION

Judge Jon W. Thompson delivered the opinion of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


T H O M P S O N, Judge:

¶1            This is a special action review of an Industrial Commission
of Arizona (ICA) award and decision upon review for temporary
disability benefits. The petitioner employee (claimant) presents two issues
on appeal:

      (1) whether Edward J. Dohring, M.D.’s testimony was
      legally sufficient to support the award; and

      (2) whether the ICA’s May 13, 2011 award precluded the
      administrative law judge in the current proceedings from
      finding that the May 3, 2010 industrial injury caused only a
      temporary aggravation of the claimant’s L5-S1 disc
      protrusion.

Because we conclude that Dr. Dohring’s testimony was legally sufficient
to support the award and that preclusion does not apply, 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




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                         Opinion of the Court

Arizona Rules of Procedure for Special Actions 10 (2013).1 In reviewing
findings and awards of the ICA, we defer to the administrative law
judge’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 a light most favorable to upholding the
administrative law judge’s award. Lovitch v. Indus. Comm’n, 202 Ariz. 102,
105, ¶ 16, 41 P.3d 640, 643 (App. 2002).

                FACTUAL AND PROCEDURAL HISTORY

¶3           The claimant worked for the respondent employer, Cemex,
for more than twenty years. He sustained an industrial back injury on
July 20, 1990, and underwent two back surgeries for an L4-5 disc
herniation. This claim closed with a ten percent permanent impairment
and work restrictions, and the claimant returned to work at Cemex.

¶4             The claimant continued to perform his regular work until
May 3, 2010, when he sustained a new industrial injury to his back. He
filed a workers’ compensation claim, which was accepted for benefits, and
then closed following an independent medical examination (IME) by
James Maxwell, M.D. The claimant timely requested a hearing on the
closure of his claim, and he also petitioned to reopen his 1990 injury claim.

¶5           When the petition to reopen was denied for benefits, the
claimant requested another hearing. The closure and reopening issues
were consolidated for hearing, and administrative law judge Layna Taylor
(ALJ Taylor) heard testimony from the claimant, Brad S. Sorosky, M.D.,
Terry E. McLean, M.D., and James H. Maxwell, M.D. ALJ Taylor resolved
the medical conflicts in favor of Drs. Sorosky and McLean, and entered an
award denying the petition to reopen the 1990 injury claim and finding
that the May 3, 2010 injury was not stationary. This award became final.


¶6            The claimant continued to receive conservative treatment
from Dr. Sorosky, including prescription medication, an epidural steroid
injection, and electrodiagnostic testing (EMG). The EMG study was
abnormal and demonstrated a “chronic2 right L5 radiculopathy with no

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

2   Chronic was defined as anything over six months old.



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                  AGUAYO v. CEMEX/GALLAGHER
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active denervation.” In August 2011, following the epidural injection, the
claimant reported a fifty percent improvement in his pain and declined
additional treatment. In December 2011, the claimant returned to Dr.
Sorosky and reported that his pain was “worse than ever,” but he refused
an additional epidural injection.


¶7           On January 4, 2012, Dr. Dohring performed an IME of the
claimant and reported:

      The claimant’s current symptoms are consistent with lumbar
      disc degeneration and right lumbar radicular irritation. On
      a non-industrial basis, they may respond to further
      treatment. However, the claimant wants no further invasive
      treatment such as injections or surgery unless there is a 99%
      chance of success. He also displays multiple positive
      Waddell’s signs on examination and displays subjective
      complaints greater than would be expected for objective
      findings. Given the above, I would not recommend surgical
      intervention regardless of industrial claim status.

      In addition, unfortunately, he left his job with feelings of
      anger towards his employer and feeling that his employer
      treated him disrespectfully. This circumstance alone has
      been shown to be a powerfully negative prognostic indicator
      with regard to long-term functional outcome in patients with
      chronic pain.

It was Dr. Dohring’s opinion that the claimant was stationary with no
permanent impairment related to the May 3, 2010 industrial injury.

 ¶8           The respondent carrier, Gallagher Basssett, relied on Dr.
Dohring’s IME to find the claimant stationary with no permanent
impairment. The claimant timely protested the closure of his claim, and
administrative law judge Anthony Halas (ALJ Halas) scheduled an ICA
hearing for testimony from the claimant and Drs. Sorosky and Dohring.
Following the hearing, ALJ Halas entered an award for temporary
disability benefits.

 ¶9         ALJ Halas resolved the medical conflict in favor of Dr.
Dohring and found that preclusion did not prevent a finding that the
claimant’s May 3, 2010 industrial injury caused only a temporary




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aggravation of his preexisting back condition. In reaching this conclusion,
ALJ Halas recognized:

      In Finding No. 9 of her [2011] Decision, Judge Taylor found
      that Dr. Sorosky ‘…agreed with Dr. McLean’s assessment
      that the 2010 injury was a lumbosacral myoligamentous
      sprain/strain which aggravated the applicant’s preexisting
      lumbar spinal condition.’ In Finding No. 10, the judge found
      that Dr. McLean had ‘…concluded, based on the history
      given, his examination, and the findings on the June 2010
      MRI scan, that the May 2010 injury had resulted in an
      aggravation of the applicant’s preexisting condition,
      including a right L5-S1 disk protrusion.’

The claimant requested administrative review, but ALJ Halas summarily
affirmed the award. The claimant next brought this appeal.


                              DISCUSSION

¶10           The claimant first argues that ALJ Halas erred by relying on
Dr. Dohring’s foundationally inadequate opinion to deny continuing
benefits. In order to receive continuing benefits, the claimant 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, 537 P.2d 1340, 1342 (1975).
When this causal connection is not readily apparent, it must be established
by expert medical testimony. E.g., McNeely v. Indus. Comm’n, 108 Ariz.
453, 455, 501 P.2d 555, 557 (1972). Typically, back and spine injuries
require expert medical testimony to demonstrate the causal connection
between the claimant’s medical condition and the industrial accident.
Western Bonded Prods. v. Indus. Comm’n, 132 Ariz. 526, 527-28, 647 P.2d 657,
658-59 (App. 1982).

¶11           In this case, the claimant presented testimony from Dr.
Sorosky and Gallagher Bassett presented conflicting testimony from Dr.
Dohring. It is the administrative law judge’s duty to resolve all conflicts
in the evidence and to draw all warranted inferences. See, e.g., Malinski v.
Indus. Comm’n, 103 Ariz. 213, 217, 439 P.2d 485, 489 (1968). Here, ALJ
Halas resolved the medical conflict in favor of Dr. Dohring, and we
review his testimony to determine whether it supports the award.

¶12          This court has recognized that “medical testimony can be so


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                        Opinion of the Court

weakened by proof of an inaccurate factual background that the testimony
cannot be said to constitute ‘substantial evidence,’” but not every factual
inaccuracy will undermine a doctor’s opinion and warrant its disregard.
See Desert Insulations v. Indus. Comm’n, 134 Ariz. 148, 151, 654 P.2d 296, 299
(App. 1982) (citations omitted). Instead, the inaccuracy must be material
or significant to the doctor’s medical opinion. Fry’s Food Stores v. Indus.
Comm’n, 161 Ariz. 119, 122, 776 P.2d 797, 800 (1989).

¶13           The claimant argues that Dr. Dohring inaccurately ruled out
the May 3, 2010 injury as the cause of his radiculopathy because he
misinterpreted Banner’s medical records and assumed that the claimant’s
right radicular leg symptoms did not occur until six weeks after the injury.
He asserts that Banner’s May 10, 2010 record establishes that these
symptoms began within a week after the injury:


       HISTORY OF PRESENT ILLNESS: This is a follow-up visit
       for Jose Aguayo, a 47 year-old male, whose primary
       complaint is injury located in the low back. Unchanged
       essentially since last visit [5/5/10]. Perhaps slightly. Pain is
       maximal R lower back. Pain radiates down lateral L thigh at times,
       but not below knee. Hurts to move. Is on lite (sic) duty. No
       stiffness. Issue is pain only.

                                     ****

       PHYSICAL EXAMINATION: Lumbar Spine – Posture-
       stands and sits slumped somewhat forward. Gait slow.
       Palpation – no muscle spasm. Tenderness bilateral lower
       lumbar muscles. Straight leg raising on the L side increases the
       pain and when supine, hip rotation increases the pain. SLR on the
       R does cause more pain, hip rotation does not increase the
       pain. ROM:: flexion brings fingertips to knees only.
       Extension is unremarkable and lateral bending, causes some
       but not severe pain.

While this record establishes that the claimant had pain in his lumbar
spine, worse on the right than the left, the only reference to radicular pain
is down the left leg.

¶14           The first reference in Banner’s records to radicular pain into
the right leg occurs on June 3, 2010. Although Dr. Dohring testified that
the right radicular leg symptoms did not begin until six weeks after the


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                  AGUAYO v. CEMEX/GALLAGHER
                       Opinion of the Court

May 3, 2010 injury, according to this record, they began one month after
the injury. We find that this does not undermine Dr. Dohring’s opinion.
Further, when Dr. Dohring was asked to assume that the right leg
symptoms were related to the May 3, 2010 industrial injury, his opinion
remained that the claimant had significant preexisting degenerative
changes in his lumbar spine which were temporarily aggravated by the
May 3, 2010 strain/sprain injury.

¶15           The claimant also argues that Dr. Dohring’s opinion is
equivocal with regard to the MRI and EMG findings. See Rosarita Mexican
Foods v. Indus. Comm’n, 199 Ariz. 532, 536, ¶ 13, 19 P.3d 1248, 1252 (App.
2001) (an expert’s opinion is equivocal if it is subject to two or more
interpretations or the expert avoids committing to a particular opinion).
Dr. Dohring reviewed the medical records from both the June 10, 2010
MRI and August 17, 2011 EMG in his IME report:

      On 6/10/10, an MRI of the lumbar spine without contrast
      was performed and interpreted by the radiologist as
      showing L3-4 central disc protrusion with deformity of the
      thecal sac, L4-5 lumbar spondylolytic disease and
      postoperative changes with bilateral foraminal stenosis and
      compromise of the exiting nerve roots, L5-S1 degenerative
      disc disease with left greater than right foraminal stenosis.3

                                  ****

       8/17/11 / Desert Spine & Sports / Brad Sorosky, M.D. /
      EMG Evaluation / Results: Electrodiagnostic impression is
      abnormal study. There is evidence of chronic right L5
      radiculopathy with no active denervation. There is also
      evidence of generalized sensory peripheral neuropathy
      consistent with diabetic neuropathy.

¶16           During the hearing, Dr. Dohring testified about these
diagnostic studies:

             The EMG . . . shows a chronic radiculopathy, but
      does not date that to the more recent injury [May 3, 2010],
      but rather is unable to date it as opposed to – and given the

3L4-5 and L5-S1 are distinct disc levels in the lumbar spine. 38 Am. Jur.
Proof of Facts 2d § 6 fig. 5 (2014).



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                   AGUAYO v. CEMEX/GALLAGHER
                        Opinion of the Court

       need for surgery twenty years prior, in my opinion, is more
       probably than not related to that original surgery – related to
       the reasons for that surgery – in other words, the herniated
       disc pushing on the nerve and then causing problems twice
       in two years.

               And with regard to the MRI, the changes are all
       changes that can be chronic. Some of those changes could be
       somewhat possibly more acute, but there’s nothing on the
       MRI that – that can show us that the MRI done one month
       after the injury approximately, or five weeks after the injury
       is – has anything acute going on where something on that
       can definitely be said to be acute. In other words, there’s no
       edema or inflammation on the MRI that says this is
       something occurring recently, so we don’t have any – and
       nothing on exam also would have, or the documented exams
       that he was seen to have in the month or two following his
       injury – there’s no findings on there that are objective with
       regard to examination findings that would be acute.

Based on a complete reading of the doctor’s records and testimony, we do
not find his opinion equivocal. See Perry v. Indus. Comm’n, 112 Ariz. 397,
398, 542 P.2d 1096, 1097 (1975) (administrative law judge considers all
relevant evidence, both testamentary and documentary).

¶17           The claimant last argues that ALJ Halas erred by failing to
preclude Dr. Dohring’s testimony that his May 3, 2010 injury caused only
a temporary aggravation of his preexisting back condition. Issue
preclusion occurs when the issue to be litigated was actually litigated in a
prior proceeding and a final judgment was entered, the party against
whom the doctrine is to be invoked had a full opportunity to litigate the
issue, and the issue was essential to the final judgment. Circle K Corp. v.
Indus. Comm’n, 179 Ariz. 422, 425, 880 P.2d 642, 645 (App. 1993). “Unless
the applicability of issue preclusion involves disputed questions of fact, its
applicability is a question of law for this court to determine
independently.” Special Fund Div., Indus. Comm’n v. Tabor, 201 Ariz. 89, 92,
¶ 20, 32 P.3d 14, 17 (App. 2001) (citation omitted).

¶18          The 2011 award determined two issues: (1) whether the
claimant’s 1990 claim should be reopened, and (2) whether his 2010 injury
was medically stationary. ALJ Taylor denied reopening but found that
the 2010 injury was not medically stationary, and that claimant was



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                   AGUAYO v. CEMEX/GALLAGHER
                        Opinion of the Court

entitled to continuing benefits to treat the aggravation of his preexisting
back condition. Because the aggravation was not yet stationary, it was not
known whether it would be temporary or permanent.4

¶19           The claimant asserts that Dr. McLean’s testimony, adopted
in the 2011 award, conclusively established that the May 3, 2010 injury
caused the L5-S1 disc protrusion. With regard to Dr. McLean’s testimony,
ALJ Taylor found that, “He concluded, based on the history given, his
examination, and the findings on the June 2010 MRI scan, that the May
2010 injury had resulted in an aggravation of the applicant’s preexisting
condition, including a right L5-S1 disk protrusion.” ALJ Taylor adopted
the opinions of Drs. Sorosky and McLean to find that the claimant’s
condition in 2011 was not stationary and that he required additional
diagnostic testing and epidural injections to treat the 2010 injury.

¶20           The issue in the current proceedings was whether the
claimant’s 2010 injury was medically stationary, and if so, whether he had
sustained a permanent impairment. We have reviewed the testimony
from the 2011 hearing and conclude that neither Dr. McLean’s testimony
nor the 2011 award established anything other than that the claimant’s
preexisting degenerative back condition was aggravated by the 2010
injury and had not yet become stationary. More is required to show
permanent disability than merely establishing an aggravation of a
preexisting disease or infirmity and thereafter the claimant’s inability to
work. Arellano v. Indus. Comm’n, 25 Ariz. App. 598, 603-04, 545 P.2d 446,
451-52 (1976). The claimant must establish that his “claimed permanent
disability was in fact caused, ‘triggered’ or contributed to by the industrial
injury, and was not merely the result of the natural progression of the
preexisting disease.” Id. at 604, 545 P.2d at 452. The evidence supports
ALJ Halas’s conclusion that the temporary aggravation of the claimant’s
preexisting back condition had become stationary with no permanent
impairment, and we determine that issue preclusion does not apply.

4 Workers' compensation claims are administered through a progression
of separate claim stages. See, e.g., Hardware Mut. Cas. Co. v. Indus. Comm'n,
17 Ariz. App. 7, 9, 494 P.2d 1353, 1355 (1972). Where applicable, after
compensability is established, a claimant typically passes through three
claim stages: temporary total disability, during which he is unable to
work; temporary partial disability, during which he may engage in some
work but continues to need active medical treatment; and permanent
disability, after his condition has become medically stationary. Id.




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           AGUAYO v. CEMEX/GALLAGHER
                Opinion of the Court



                     CONCLUSION

¶21   For all of the foregoing reasons, we affirm the award.




                        :gsh




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