Opinion
No. 1 CA-IC 20-0024
05-11-2021
RANDY ATKINSON, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, CAVE CREEK SAND & GRAVEL, Respondent Employer, COPPERPOINT MUTUAL INSURANCE COMPANY, Respondent Carrier.
COUNSEL Stillwell Law Office PLLC, Phoenix By Thomas R. Stillwell Counsel for Petitioner Employee Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent CopperPoint Insurance Company, Phoenix By Ronald C. Wills Counsel for Respondent Employer and Carrier
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Special Action - Industrial Commission
ICA Claim No. 88152-046477
Carrier Claim No. 8817558
The Honorable Michelle Bodi, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Stillwell Law Office PLLC, Phoenix
By Thomas R. Stillwell
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
CopperPoint Insurance Company, Phoenix
By Ronald C. Wills
Counsel for Respondent Employer and Carrier
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.
CATTANI, Judge:
¶1 Randy Atkinson challenges an Industrial Commission of Arizona award modifying his supportive care regimen to reduce the amount of narcotic drugs provided for pain management. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Atkinson lost his left arm and shoulder in an industrial accident while working for Cave Creek Sand & Gravel in 1988. His workers' compensation claim was accepted and then closed years ago with a permanent impairment.
¶3 Since then, Atkinson has contended with severe phantom limb pain due to nerve damage. Pain management specialist Dr. David Brosman has provided him treatment since 2008, prescribing various pain-management medications including fentanyl and oxycodone, two powerful narcotic (opioid) medications. Atkinson has a high tolerance to these drugs. While recent medical literature strongly discourages opioid use exceeding 90 MED (morphine equivalent dose) per day, Atkinson's regimen included a dose that far exceeded that amount. Atkinson and Dr. Brosman nevertheless believed that Atkinson tolerated the regimen well and that the exceptionally high dosage allowed him to function.
¶4 As relevant here, in March 2014, carrier CopperPoint Mutual Insurance Company issued a notice of supportive care that included the goal of weaning Atkinson off fentanyl. After Atkinson requested a hearing, the parties entered a stipulation that, among other things, reinstated authorization of the fentanyl as prescribed by Dr. Brosman. An administrative law judge ("ALJ") approved the stipulation and dismissed the case without a hearing.
¶5 In December 2018, at CopperPoint's request, Atkinson underwent an examination with Dr. Stephen Borowsky, an anesthesiologist who teaches a University of Arizona medical school class on opioid prescribing. Although Dr. Borowsky agreed that continued pain management was necessary, he noted a "significant concern" with the scale of Atkinson's opioid use and recommended a substantial change in medication management to reduce or eliminate reliance on these drugs. Dr. Borowsky specifically noted that the high dosage seemed to be contributing to other medical conditions and that Atkinson's records (including tests showing the presence of unprescribed drugs) indicated potentially problematic drug-related behaviors.
¶6 CopperPoint then modified Atkinson's supportive care coverage to attempt to reduce his use of opioids to the extent possible. Consistent with Dr. Borowsky's recommendations, the modification provided for continued pain management but also sought "more effective management" of Atkinson's use of opioid medications by "tapering and weaning" from the opioids through an inpatient rehab/detoxification program, including psychiatric monitoring, to begin withing 60 days. Atkinson would continue monthly visits with Dr. Brosman before starting the inpatient program to begin addressing "the presences of unprescribed medication (Hydrocodone)" in Atkinson's urine tests. The notice contemplated laboratory studies twice per year to assess developing medical concerns (associated with opioid use) including liver and kidney function and testosterone levels, and it provided for annual review of supportive care.
¶7 Atkinson requested review, arguing that the modification improperly denied him necessary care by ending the narcotic pain-management regimen he had been using for many years. See A.R.S. § 23-1061(J). Atkinson, Dr. Brosman, and Dr. Borowsky testified at the resulting hearing.
¶8 Dr. Brosman testified that he would like Atkinson to try a spinal infusion pump with non-narcotics for pain relief to lower his narcotics dosage. He described that prior attempts to take Atkinson off the narcotic pain medications (including one inpatient detoxification program) had been unsuccessful, leaving Atkinson unable to function. Dr. Brosman testified that Atkinson had not developed any adverse effects (including kidney and liver issues) resulting from the high dosages of narcotics, and although he acknowledged that Atkinson had liver disease, he did not consider it a significant concern. Additionally, Dr. Brosman saw no sign of
drug-seeking behavior or other indications that Atkinson was misusing the medication.
¶9 Dr. Brosman's opinion was undermined, however, by his inability to recall repeated anomalies in Atkinson's monthly urine drug screens showing the presence of an unprescribed narcotic, the absence of a prescribed narcotic (fentanyl), and sometimes both. Dr. Brosman acknowledged that he had not discussed these anomalies with Atkinson, although he explained that he might have prescribed Atkinson small amounts of another narcotic because of difficulties getting the fentanyl prescriptions filled on time.
¶10 Atkinson testified that there were times that the pharmacy had trouble obtaining his prescribed fentanyl, leaving him without adequate pain-management medication. He also acknowledged sometimes taking more fentanyl pills per day than prescribed, which led to running out before the end of the prescription period. He would then use the emergency room for pain management or get a different narcotic from Dr. Brosman.
¶11 Dr. Borowsky testified that Atkinson's medical records (including those from Dr. Brosman) showed several health conditions, including kidney disease, that were related to narcotics use and that had not been present before 2014. He acknowledged that high doses of opioids for pain management could be acceptable, but clarified that such treatment must be closely monitored to watch for signs of abuse and addiction. Dr. Borowsky noted the inconsistencies in Atkinson's urine drug screens beginning in 2015—presence of an unprescribed narcotic and absence of prescribed fentanyl—and criticized the lack of follow-up with Atkinson about these warning signs for misuse of the narcotic medications.
¶12 The ALJ found Atkinson's testimony to be "unreliable," "inconsistent and vague," and resolved the conflicting medical evidence by giving Dr. Borowsky's opinion more weight than Dr. Brosman's. Finding that Atkinson's narcotic pain-management regimen had become ineffective, that the evidence showed he had been misusing his opioid medications, and that his medical condition had changed (including development of liver and kidney disease) since the time of the last stipulated supportive care award in 2014, the ALJ issued an award for supportive care of "an outpatient detoxification program under the supervision of an addiction psychiatrist, including withdrawal medications and screening tests, with the ultimate goal of improving [Atkinson's] chronic pain condition with the lowest MED/day possible."
¶13 The ALJ affirmed the award on administrative review, and Atkinson petitioned for review in this court. We have jurisdiction under A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10 of the Arizona Rules of Procedure for Special Actions.
DISCUSSION
¶14 Atkinson is entitled to "reasonably required" medical treatment, including supportive care. See A.R.S. § 23-1062(A); Capuano v. Indus. Comm'n, 150 Ariz. 224, 226 (App. 1986). On review of a workers' compensation award, we defer to the ALJ's factual findings but independently review legal conclusions. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We will affirm if, considering the evidence in the light most favorable to upholding the decision, reasonable evidence supports the award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16 (App. 2002). The ALJ has the primary responsibility to resolve conflicts in medical opinion evidence, Carousel Snack Bar v. Indus. Comm'n, 156 Ariz. 43, 46 (1988); Kaibab Indus. v. Indus. Comm'n, 196 Ariz. 601, 609, ¶ 25 (App. 2000), and we defer to the ALJ's resolution of conflicting evidence and those findings supported by the evidence. Perry v. Indus. Comm'n, 112 Ariz. 397, 398-99 (1975).
¶15 Atkinson argues that, in light of the parties' 2014 stipulation regarding supportive care, CopperPoint is now precluded from changing his supportive care program. Principles of preclusion generally apply to workers' compensation awards, prohibiting re-litigation of facts or claims that were actually litigated and determined by a valid final judgment. Circle K Corp. v. Indus. Comm'n, 179 Ariz. 422, 426-27 (App. 1993); Red Bluff Mines, Inc. v. Indus. Comm'n, 144 Ariz. 199, 203, 205 (App. 1984) (citation omitted). But preclusion operates more flexibly in the workers' compensation context to account for changed circumstances—whether a change in medical condition or in appropriate treatment for that condition—and facilitate an injured worker's rehabilitation. Stainless Specialty Mfg. Co. v. Indus. Comm'n, 144 Ariz. 12, 19 (1985). Thus, a supportive care award may be subject to preclusion, but only "absent some change in [the claimant's] physical condition or in medical procedures." Brown v. Indus. Comm'n, 199 Ariz. 521, 525 (App. 2001) (citing Stainless Specialty, 144 Ariz. at 16-19). Both circumstances are present here.
¶16 The ALJ found, and the record supports, that Atkinson developed liver and kidney disease that was not present at the time of the previous award in 2014, as well as insulin-dependent diabetes. Similarly, the record supports the ALJ's finding that inconsistencies in several of
Atkinson's drug-screening results after 2014 raised significant concerns about potential misuse of the medications and perhaps their effectiveness. Additionally, the medical community's knowledge about opioids and the associated risks of high-dosage use has caused changes in medical practice. These factors, substantiated by Atkinson's medical records and Dr. Borowsky's evaluation and opinion, provide sufficient support for the ALJ's decision to change Atkinson's supportive care award.
¶17 Atkinson's other claims of error are also unavailing. His argument that the award is "contradictory and contrary to law" is essentially a request to reassess witness credibility, which is beyond the scope of proper appellate review. See Carousel Snack Bar, 156 Ariz. at 46. And although he highlights potential logistical issues that may arise in carrying out the terms of the award, such potential logistical concerns do not render the award impermissibly ambiguous. Cf. Bernard v. Indus. Comm'n, 24 Ariz. App. 136, 137-39 (App. 1975) (setting aside denial of reopening based on an internally contradictory and thus fatally ambiguous notice of claim status).
CONCLUSION
¶18 The award is affirmed.