Opinion
No. 2 CA-IC 2017-0014
07-27-2018
MARSHALL BRAMLETT, Petitioner/Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, STROM AVIATION, Respondent Employer, US FIRE INSURANCE DBA CRUM & FOSTER, Respondent Carrier.
COUNSEL Tretschok, McNamara, Miller & Feldman P.C., Tucson By Meghan McNamara Miller Counsel for Petitioner/Employee The Industrial Commission of Arizona, Phoenix By Jason M. Porter Counsel for Respondent Ritsema & Lyon P.C., Denver, Colorado By Kelly F. Kruegel Counsel for Respondent Employer/Carrier
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. Spec. Act. 10(k).
Special Action - Industrial Commission
ICA Claim No. 20140-150380
Insurer No. DWC00907761
Gary M. Israel, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Tretschok, McNamara, Miller & Feldman P.C., Tucson
By Meghan McNamara Miller
Counsel for Petitioner/Employee
The Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent
Ritsema & Lyon P.C., Denver, Colorado
By Kelly F. Kruegel
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred.
BREARCLIFFE, Judge:
¶1 Petitioner Marshall Bramlett challenges the Industrial Commission's September 26, 2017, award denying him supportive care and permanent compensation benefits for his industrial injury and its decision upon review affirming that award. We affirm.
Issues
¶2 Bramlett contends that the Administrative Law Judge (ALJ) was barred by issue preclusion from accepting the medical opinion of the independent medical examination (IME) physician and that, in any event, that physician's opinion was "legally insufficient." The employer, Strom Aviation ("Strom"), and its workers' compensation carrier, United States Fire Insurance Company ("USFIC"), contend that Bramlett waived any argument based on issue preclusion and that the IME physician's opinion was sufficient to support the award and decision on review.
Factual and Procedural History
¶3 We view the facts in the light most favorable to upholding the award. Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 2 (App. 2012). Strom employed Bramlett as a structural aviation mechanic. In December 2013, as Bramlett was performing maintenance on an aircraft, his co-worker lost control of and dropped a vertical stabilizer panel weighing approximately twenty-five to thirty pounds. That stabilizer ricocheted off the fuselage, hitting Bramlett's head and hands, causing injuries. Bramlett received medical treatment for his injuries and was eventually released to work without restrictions.
¶4 Bramlett filed a workers' compensation claim for his injuries in January 2014. USFIC accepted and serviced the claim. By Notice of Claim Status issued in December 2014, USFIC closed the claim, asserting that Bramlett had "no permanent disability." Bramlett objected to the closure by filing a Request for Hearing in March 2015.
¶5 During hearings held between June 2015 and January 2016, the ALJ took, among other evidence, competing testimony from Bramlett's treating physician, Dr. Gossler, and from Strom and USFIC's proffered IME physician, Dr. Maric. Dr. Gossler testified that Bramlett required continuing treatment and Dr. Maric testified that Bramlett was medically stationary with no permanent impairment, had no need for supportive care, and needed no work restrictions. After determining that the testimony conflicted, the ALJ adopted "the testimony, opinions and reports of Dr. Gossler as being most probably correct and well-founded." The ALJ determined that Dr. Gossler's opinions were consistent with Bramlett's "credible presentation." By its Decision Upon Hearing and Findings and Award dated February 25, 2016, the ALJ found that Bramlett was not medically stationary and that he was entitled to further treatment and workers' compensation benefits "until his cervical condition" related to the industrial injury "is determined to be medically stationary."
¶6 Bramlett received further treatment. By its Notice of Claim Status issued in October 2016, USFIC once again closed the claim, stating that Bramlett had "no permanent disability." Bramlett objected to this closure by filing a Request for Hearing. Hearings were then held between May and September 2017.
¶7 During the hearings, the ALJ took, among other evidence, competing medical testimony of Dr. Scott, Bramlett's treating physician and his expert, and Dr. Eskay-Auerbach, the IME physician presented by Strom
and USFIC. Dr. Scott testified that Bramlett no longer required active medical treatment, but that he required ongoing supportive care and that he could only work with weight restrictions on lifting. He assigned Bramlett a "one percent whole person impairment rating." Dr. Eskay-Auerbach testified that Bramlett's condition was medically stationary with no permanent impairment and that no permanent impairment rating was justified. She could not conclude that ongoing complaints reported by Bramlett and addressed by Dr. Scott—namely "C-8 radiculopathy" and "trigger points"—were causally related to the industrial accident "to any reasonable degree of medical probability." On cross-examination, Dr. Eskay-Auerbach testified that she agreed with Dr. Maric's opinion from the prior proceedings that Bramlett had no permanent impairment.
¶8 The ALJ issued the award at issue here, his Decision Upon Hearing and Findings and Award for Temporary Disability Benefits dated September 26, 2017. The ALJ concluded that the medical testimony was in conflict but adopted "the testimony, opinions and reports of Dr. Eskay-Auerbach as being most probably correct and well-founded." Consequently, the ALJ found that Bramlett was medically stationary and was not entitled to any supportive care or permanent compensation benefits related to the industrial accident.
¶9 Bramlett filed a Request for Review, arguing for the first time that the ALJ erred by adopting Dr. Eskay-Auerbach's opinions due to issue preclusion, in accordance with Miller v. Industrial Commission, 240 Ariz. 257 (App. 2016), and because they were "speculation" and "skepticism." Strom and USFIC opposed any rehearing, arguing that the ALJ correctly adopted Dr. Eskay-Auerbach's opinions and that Bramlett had waived any affirmative defense of issue preclusion under Miller by failing to raise it during the proceedings. The ALJ affirmed the award in its Decision Upon Review dated November 9, 2017.
Analysis
Issue Preclusion
¶10 Issue preclusion "bars relitigation of an issue that was previously litigated, determined, and essential to a final judgment." Miller, 240 Ariz. 257, ¶ 8. Issue preclusion "can be applied to factual issues decided by an administrative agency acting in its judicial capacity." Casillas v. Ariz. Dep't of Econ. Sec., 153 Ariz. 579, 581 (App. 1986). When a party provides timely notice of an affirmative defense, it provides the ALJ with the chance to address the issue, and also allows both parties the essential step of
developing the record concerning the issue. See, e.g., Priedigkeit v. Indus. Comm'n, 20 Ariz. App. 594, 598 (1973) (parties need to raise issues as early as possible to allow for detailed consideration). Generally, if not timely raised before the ALJ and referenced in the award, the affirmative defense of issue preclusion is considered waived. See Miller, 240 Ariz. 257, n.2.
¶11 Nothing in the record indicates that Bramlett raised issue preclusion in objection to Dr. Eskay-Auerbach's testimony until his Request for Review filed after the proceedings and after the ALJ issued the Decision and Award. The ALJ did not refer to any such affirmative defense in the Decision and Award. Certainly, Strom and USFIC opposed the issue being considered on review because it was not raised before the ALJ earlier. Bramlett has waived any argument of issue preclusion, and we will not consider it.
Sufficiency of Medical Opinion
¶12 Bramlett also argues that the medical opinion of Dr. Eskay-Auerbach was insufficient to support the award because it was "speculative" and "equivocal." We "will not disturb an ALJ's findings of fact [in a workers' compensation proceeding] so long as the findings are substantiated by competent evidence." City of Tucson v. Indus. Comm'n, 236 Ariz. 52, ¶ 6 (App. 2014). If medical "testimony sufficiently established a conflict in the medical evidence, we will not disturb the ALJ's resolution of this conflict unless it is 'wholly unreasonable.'" Rosarita Mexican Foods v. Indus. Comm'n, 199 Ariz. 532, ¶ 10 (App. 2001), quoting Stainless Specialty Mfg. Co. v. Indus. Comm'n, 144 Ariz. 12, 19-20 (1985). The ALJ, and not this court, is in the best position to resolve issues of credibility and consistency of evidence. S.L.C. Leasing v. Indus. Comm'n, 25 Ariz. App. 366, n. (1975).
¶13 Bramlett cites to Hackworth v. Industrial Commission, 229 Ariz. 339 (App. 2012), for his argument that Dr. Eskay-Auerbach's opinion was legally insufficient because it was "equivocal and speculative," merely "skepticism," and was not, in fact, an opinion at all. Though Bramlett is correct that equivocal or speculative medical testimony is insufficient to support an award, he is incorrect that Dr. Eskay-Auerbach's testimony was equivocal. Medical 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, 199 Ariz. 532, ¶ 10.
¶14 Dr. Eskay-Auerbach opined that she could not relate any "C8 radiculopathy" or "trigger points" addressed by Dr. Scott to the industrial accident to any reasonable degree of medical probability, and that
Bramlett's condition was medically stationary with no permanent impairment. This testimony was not equivocal or subject to more than one interpretation and Dr. Eskay-Auerbach clearly committed to her opinion. Dr. Scott and Dr. Eskay-Auerbach disagreed on diagnosis and prognosis, and the ALJ found that each physician based his or her opinions on medical records, subjective reports, and objective medical findings. It is the role of the ALJ to resolve issues where there is conflicting evidence and divergent medical opinion. Ortega v. Indus. Comm'n, 121 Ariz. 554, 557 (App. 1979). The ALJ's award recited the correct legal standard by which he was to evaluate competing medical testimony, and there is nothing in the record showing that he did not properly apply that standard here. We will not disturb the ALJ's resolution of conflicts in medical testimony. S.L.C. Leasing, 25 Ariz. App. at 368.
Disposition
¶15 Bramlett waived any argument of issue preclusion by not timely raising it in the proceedings below so that it could be addressed by the ALJ in the award. The ALJ's award was sufficiently supported by unequivocal medical opinion and there was no basis to disturb it on review. For those reasons, we affirm the award and decision upon review.