Verdugo v. Phoenix Union

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BARNEY C. VERDUGO,
Petitioner

v.

THE INDUSTRIAL COMMISSION OF ARIZONA,
Respondent,

PHOENIX UNION HIGH SCHOOL DISTRICT 210,
Respondent Employer,

ARIZONA SCHOOL ALLIANCE FOR
WORKERS COMPENSATION,
Respondent Carrier,

SPECIAL FUND DIVISION,
Respondent Party in Interest.

No. 1 CA-IC 16-0046
FILED 7-13-2017

Special Action - Industrial Commission
ICA Claim No. 20120400286
Carrier Claim No. 2011025619A
Rachel C. Morgan, Administrative Law Judge

AWARD AFFIRMED
 COUNSEL

Barney C. Verdugo, Phoenix
Petitioner

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent

Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix
By K. Casey Kurth
Counsel for Respondent Employer/Carrier

Special Fund Division, Phoenix
By Scott J. Cooley
Counsel for Respondent Party in Interest

MEMORANDUM DECISION

Acting Presiding Judge Michael J. Brown delivered the decision of the
Court, in which Judge Patricia A. Orozco and Judge Maurice Portley
joined.1

B R O W N, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision on review. Claimant Barney C.
Verdugo challenges the Administrative Law Judge’s (“ALJ”) decision
denying supportive care, finding no loss of earning capacity, and granting
apportionment based on a pre-existing condition. For the following
reasons, we affirm.

1 The Honorable Patricia A. Orozco and the Honorable Maurice
Portley, Retired Judges of the Court of Appeals, Division One, have been
authorized to sit in this matter pursuant to Article VI, Section 3 of the
Arizona Constitution.

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BACKGROUND

¶2 On January 23, 2012, while working as a custodian for
Phoenix Union High School District (“PUHSD”), Verdugo injured his left
arm and shoulder. He had propped open an exterior bathroom door while
he cleaned inside. When Verdugo exited, he kicked out the doorstop,
causing the heavy door to quickly close. The door struck his left arm, from
his forearm to near his shoulder. He immediately felt pain from just below
his left elbow to his shoulder and could not move his fingers.

¶3 Verdugo received treatment at an emergency room the day he
was injured, and about one week later began treatment with Dr. Michael
Steingart. An MRI showed a collateral ligament tear of his radial left elbow,
and Verdugo’s workers’ compensation claim was accepted for benefits. Dr.
Steingart surgically repaired the elbow in March 2012. In June, based on
Verdugo’s left shoulder complaints, Dr. Steingart ordered an MRI of that
area, which showed a “massive” rotator cuff tear.

¶4 Based on an independent medical examination (“IME”)
conducted in October 2012, Respondents (PUHSD and its carrier, the
Arizona School Alliance for Workers’ Compensation) closed Verdugo’s
claim without permanent impairment on October 22, 2012. Verdugo
protested closure and requested a hearing.

¶5 At the evidentiary hearing, Dr. Steingart opined, in part, that
Verdugo “more than likely” had a “preexisting asymptomatic injury,”
which was permanently aggravated by the industrial injury. Dr. Steingart
further opined that the shoulder required active treatment in the form of
medication, injections, and possible surgery.

¶6 Respondents’ IME doctor, Dr. Anthony Theiler, agreed with
Dr. Steingart that there were pre-existing tears in the left shoulder. But he
also described “a massive chronic rotator cuff tear with chronic tears of
essentially the whole rotator cuff muscle unit . . . [and] early degenerative
changes on the humeral joint with significant superior migration of the
humeral head which would go along with a chronic massive rotator cuff
tear.” Dr. Theiler disagreed with Dr. Steingart that the incident that injured
Verdugo could have significantly aggravated the already essentially fully-
torn rotator cuff muscle unit, calling the injury “simply a contusion.”

¶7 The ALJ resolved the conflicting medical evidence and
testimony in favor of Dr. Steingart, finding that Verdugo had “sustained an
aggravation of his pre-existing left shoulder condition as a result of the

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subject industrial injury” and awarding medical treatment and disability
benefits until the shoulder injury became medically stationary. Verdugo
returned to treatment with Dr. Steingart.

¶8 In April 2014, Respondents obtained another IME, from Dr.
Evan Lederman, who interpreted the June 2012 MRI as showing that
Verdugo had sustained a “sprain-strain” and that the damage could not
have occurred by the “minimal traumatic injury” he sustained. Dr.
Lederman could not relate Verdugo’s shoulder problems to the industrial
injury and opined that he suspected that Verdugo had aggravated an
“underlying chronic rotator cuff insufficiency of the left shoulder.” He
concluded that Verdugo did not need supportive care and recommended
no work restrictions. Respondents again closed Verdugo’s claim, effective
April 7, 2014.

¶9 The ICA determined that Verdugo sustained a 1%
unscheduled permanent impairment based on the opinion of Dr. Lederman
but did not sustain a loss of earning capacity because no medical
contraindications would preclude him from returning to the same or
similar work as he was performing on the date of injury. Verdugo protested
the denial of unscheduled permanent partial disability benefits and sought
authorization for supportive care by Dr. Steingart pursuant to Arizona
Revised Statutes (“A.R.S.”) section 23-1061(J). Respondents asserted their
entitlement to apportionment pursuant to A.R.S. § 23-1065(C). The ALJ
consolidated the requests and held hearings over four days at which
Verdugo, Dr. Steingart, Dr. Lederman, and two labor-market consultants
testified.

¶10 In reaching a decision, the ALJ adopted the opinion of Dr.
Lederman, finding that Verdugo had not sustained a loss of earning
capacity and did not need supportive medical care. The ALJ also found that
the Special Fund Division (“Fund”) had stipulated to apportionment
pursuant to A.R.S. § 23-1065(C) based on Verdugo’s pre-existing diabetes.

¶11 Verdugo sought review of the decision in general and cited
specific inaccuracies. The ALJ issued a supplement reaffirming the
decision. Among other points, the ALJ clarified that Dr. Steingart had
opined that Verdugo had a 7% permanent impairment to the left shoulder,
but the ALJ resolved the conflicting evidence concerning the rating of
impairment in favor of Dr. Lederman’s opinion. Verdugo then filed this
special action.

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DISCUSSION

¶12 We review questions of law de novo and defer to the ALJ’s
factual findings. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App.
2003). We review the evidence in the light most favorable to sustaining the
award and will affirm if it is supported by reasonable evidence and no legal
error has occurred. Delgado v. Indus. Comm’n, 183 Ariz. 129, 131 (App. 1994).

¶13 Verdugo bears the burden of proving his need for supportive
medical care and entitlement to unscheduled permanent disability benefits
(based on loss of earning capacity) by a reasonable preponderance of the
evidence. Brooks v. Indus. Comm’n, 24 Ariz. App. 395, 399 (1975). If the
evidence conflicts, the ALJ resolves those conflicts. Perry v. Indus. Comm’n,
112 Ariz. 397, 398 (1975). We will not overturn an ALJ’s resolution of a
conflict in the medical evidence unless it is wholly unreasonable. Graver
Tank & Mfg. Co. v. Indus. Comm’n, 96 Ariz. 356, 360 (1964).

A. Supportive Care

¶14 Verdugo challenges the ALJ’s ruling denying his request for
supportive medical care based on his left shoulder issues. Supportive care
benefits are “designed to prevent or reduce the continuing symptoms of an
industrial injury after the injury has become stabilized.” Capuano v. Indus.
Comm’n, 150 Ariz. 224, 226 (App. 1986). Whether to provide such benefits
necessarily presents a transitory issue, based on a claimant’s evolving
physical condition in relation to his industrial injury. Brown v. Indus.
Comm’n, 199 Ariz. 521, 524, ¶ 14 (App. 2001).

¶15 Dr. Steingart, a board-certified orthopedic surgeon who
described his practice as focusing on minimally invasive spinal surgery and
sports medicine, recommended supportive care for Verdugo’s left shoulder
consisting of medications, injections, and office visits. He described
Verdugo as having suffered “a tremendous injury” to his left arm.

¶16 Dr. Lederman, a board-certified orthopedic surgeon who
described his practice as focusing on injuries to the shoulder, agreed that
Verdugo had a massive rotator cuff tear but testified that it was a chronic,
not an acute, tear. He opined that Verdugo did not need supportive
medical care resulting from the industrial injury because the rotator cuff
tear had been present for a long time. He testified that the diagnostic
studies documented that the left shoulder tendons were retracted, the
muscle bellies were atrophied and replaced by fat, and the greater
tuberosity was remodeled, which is evidence of a long-standing condition

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that is not amenable to surgery. He found no reason for Verdugo to be
taking narcotics as a supportive care regime.

¶17 The ALJ resolved the conflict between Dr. Steingart’s and Dr.
Lederman’s opinions about the need for supportive care benefits in favor
of Dr. Lederman’s opinion as being “more probably well-founded and
correct.”

¶18 Verdugo argues that the ALJ should not have adopted Dr.
Lederman’s opinion because Dr. Lederman met with him only once while
Dr. Steingart submitted “plenty” of evidence to support his need for
supportive care. He also disputes that he had a pre-existing rotator cuff
tear because he did not have shoulder pain prior to his injury and could
engage in heavy work. In response, Respondents submit that Dr.
Lederman’s opinion was based on his review of Verdugo’s medical records
as well as an IME and that it was not wholly unreasonable for the ALJ to
adopt Dr. Lederman’s opinion.

¶19 Verdugo’s arguments essentially challenge the weight the
ALJ gave to Dr. Lederman’s opinion. The ALJ, however, was not required
to give greater weight to the opinion of Verdugo’s treating physician than
to the opinion of the IME doctor. See Walters v. Indus. Comm’n, 134 Ariz.
597, 599 (App. 1982). An ALJ assesses the weight of the evidence and
determines which of the conflicting testimony is more probably correct.
Perry, 112 Ariz. at 398. As such, the ALJ is the sole judge of witnesses’
credibility, meaning that the ALJ may reject any testimony, including the
claimant’s, if it is self-contradictory, inconsistent with other evidence, or
directly impeached. Holding v. Indus. Comm’n, 139 Ariz. 548, 551 (App.
1984). Here, the ALJ could properly decide how to interpret Verdugo’s
testimony about his lack of shoulder pain prior to the injury as well as the
fact that nothing in his prior medical records revealed shoulder problems.
In fact, both Dr. Lederman and Dr. Steingart at two different hearings
described how a pre-existing torn rotator cuff could have been
asymptomatic prior to Verdugo’s injury. Reasonable evidence supports the
ALJ’s decision to deny supportive medical care benefits. See Ortega v. Indus.
Comm’n, 121 Ariz. 554, 557 (App. 1979).

B. Loss of Earning Capacity

¶20 “Because an injured worker must seek to mitigate his
damages, a claimant has an affirmative burden to establish his inability to
return to date-of-injury employment and to make a good-faith effort to
obtain other suitable employment or to present testimony from a labor

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market expert to establish his residual earning capacity.” Kelly Servs. v.
Indus. Comm’n, 210 Ariz. 16, 18, ¶ 8 (App. 2005). If the worker meets this
initial burden of proof, the employer or carrier must then “go forward with
evidence demonstrating the availability of suitable employment and/or the
lack of a causal relationship between the claimed loss of earning capacity
and the injury.” Landon v. Indus. Comm’n, 240 Ariz. 21, 27, ¶ 18 (App. 2016).

¶21 Verdugo, age 67 at the time of the injury, had worked for
PUHSD since 2006. He is right-handed, graduated from high school and,
in addition to being able to read and write English, is fluent in Spanish. He
served in the military and has a service-related disability for insulin-
dependent diabetes because of exposure to Agent Orange.

¶22 A conflict in the medical evidence existed as to whether
Verdugo’s left shoulder injury required work restrictions.2 Dr. Steingart
testified that Verdugo “certainly cannot go back to being a custodian, unless
. . . given major modifications about lifting less than 10 pounds,” and
recommended no reaching, overhead activity, grasping, climbing ladders,
or repetitive movement. Dr. Lederman testified that he found “no reason
that based on the shoulder [Verdugo] should not be capable of doing the
same level of work he was doing” before the injury, and opined that no
restrictions were needed.

¶23 Both labor-market consultants testified regarding the physical
requirements of particular employment and the education or training
necessary, as well as the availability of positions. They conflicted, however,
on the types of jobs suitable for Verdugo.

¶24 Gretchen Bakkenson, on Verdugo’s behalf, testified that
based on the restrictions outlined by Dr. Steingart, Verdugo would be
unable to returned to his date-of-injury employment as a custodian.
Assuming Dr. Steingart’s restrictions, Verdugo would also be unable to
return to unskilled work, which requires individuals to use their upper
extremities frequently to continuously. Bakkenson further testified that
part-time employment as a parking lot cashier would be best, but she noted
that would be problematic because he would need to use his left arm and
shoulder to reach out to vehicles. On cross-examination, she acknowledged

2 Dr. Steingart testified that Verdugo had no impairment due to the
left elbow injury and the resulting surgery did not restrict his ability to
work.

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that if the ALJ adopted Dr. Lederman’s opinion, the jobs listed in Mark
Kelman’s report would be suitable and reasonably available.

¶25 Kelman, the Respondents’ labor-market consultant, opined
that, assuming Dr. Lederman’s opinion were adopted, Verdugo could
return to his former work at PUHSD and therefore not have a loss of
earning capacity. If work restrictions were adopted, Kelman opined that
Verdugo could work as a parking lot cashier. He disagreed with Bakkenson
that Verdugo’s left arm would prevent him from working in that job
because a worker’s dominant hand – right, in Verdugo’s case – is the
important physical factor.

¶26 The ALJ resolved the conflict in the medical evidence in favor
of Dr. Lederman’s opinion that no restrictions were needed, and adopted
Kelman’s opinion that assuming no work restrictions, Verdugo had no loss
of earning capacity.

¶27 Verdugo contends that Bakkenson, to whom he paid $500,
never testified. The record reflects, however, that she testified substantively
on Verdugo’s behalf and prepared a report submitted into evidence by his
counsel. Verdugo also argues that many of the available jobs Kelman cited
require two arms, but he cannot use his left arm. Verdugo’s objection to
Kelman’s testimony goes to the weight the ALJ accorded it. As the trier of
fact, the ALJ could properly weight the testimony of the labor-market
consultants as deemed appropriate. Le Duc v. Indus. Comm’n, 116 Ariz. 95,
98 (App. 1977). And, as with the medical opinions, the ALJ was obligated
to resolve all conflicts in the evidence and draw all warranted inferences.
See Malinski v. Indus. Comm’n, 103 Ariz. 213, 217 (1968).

¶28 Finally, Verdugo’s criticism of Kelman’s assessment of
available jobs is unavailing. Dr. Steingart opined that Verdugo needed
work restrictions but he did not testify that those work restrictions included
jobs that required Verdugo to use only one arm. Bakkenson based her
opinion on work restrictions Dr. Steingart had outlined in his December 26,
2013 progress notes. Those restrictions included working at a “one-handed
job” and carrying/lifting limits of five pounds. Dr. Steingart’s testimony
focused on less stringent work restrictions than he had previously outlined.

¶29 Given the conflicting medical evidence, as well as the
conflicting testimony from the labor-market consultants, the ALJ’s
determination that Verdugo did not sustain a loss of earning capacity is not
wholly unreasonable. We acknowledge that Verdugo’s previously
asymptomatic rotator cuff tear, which the industrial injury temporarily

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aggravated, effectively means he may not be able to return to his pre-injury
employment. Stated differently, Verdugo’s temporary exacerbation of the
rotator cuff tear undoubtedly caused certain work restrictions, but as the
ALJ implicitly determined, those restrictions are not medically related to
the industrial injury.

C. Apportionment

¶30 We do not construe Verdugo’s challenge to the award finding
apportionment as contesting the technicalities or legitimacy of
apportionment under A.R.S. § 23-1065 (C), but rather that he believes the
ALJ attributed his shoulder problems to his diabetes. The pre-existing
diabetes diagnosis, however, related to Verdugo’s employability for
application of the apportionment statute. The ALJ did not attribute his
shoulder problems to diabetes.

¶31 The apportionment statute, A.R.S. § 23-1065, promotes the
hiring and retention of disabled or handicapped workers. Special Fund Div.
v. Indus. Comm’n, 224 Ariz. 29, 32, ¶ 10 (App. 2010). Section 23-1065
provides for reimbursement from the Fund for one-half the amount of
compensation for loss of earning capacity or permanent total disability, see
§ 23–1065 (C)(4), when an employer has knowingly employed or retained a
person with a qualifying impairment who later suffers an industrial injury.
Special Fund Div., 224 Ariz. at 31, ¶ 3; A.R.S. § 23-1065 (C) (listing diabetes
among the “qualifying impairments”).

¶32 In this case, the Fund stipulated that apportionment is
appropriate. The evidence shows that the respondent carrier qualified for
reimbursement under A.R.S. § 23-1065 (C) because, in part, Verdugo was
diagnosed with diabetes prior to his industrial injury; PUHSD knew about
the condition prior to his injury, as he discussed it with his supervisor; and
Kelman, one of the labor-market consultants, concluded that Verdugo’s
diabetes constituted an obstacle or hindrance to employment for purposes
of apportionment.

¶33 Moreover, Verdugo lacks standing to contest apportionment.
Apportionment is a matter between the employer’s carrier and the Fund.
See Schuff Steel Co. v. Indus. Comm’n, 181 Ariz. 435, 437 n.1 (App. 1994)
(noting that although claimant was a party to the special action, he had not
actively participated in it “because the apportionment dispute is between
the employer’s carrier and the Special Fund Division); Madrid v. Indus.
Comm’n, 178 Ariz. 606, 610 (App. 1994) (concluding that claimant had no
standing to question how the compensation is paid and that “the only party

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aggrieved by the apportionment is the Fund, which has acquiesced in the
current award apportioning claimant’s disability compensation in part to
the Fund.”).3

CONCLUSION

¶34 Because we find that the evidence of record reasonably
supports the ALJ’s award and decision upon review, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

3 Verdugo also asserts that the Veterans’ Administration should not
be obligated to pay for his care when he was injured on the job, that the
workers’ compensation system treated him unfairly and is prejudiced
against him, and that his lawyer, who terminated representation after the
ALJ issued the December 2, 2015 decision, “worked for ICA, not his client.”
Verdugo has waived these issues because he does not develop any of them
nor point to any evidence in the record that addresses them. Polanco v.
Indus. Comm’n, 214 Ariz. 489, 491 n.2 (App. 2007) (holding that appellant’s
failure to develop and support argument waives issue on appeal). Waiver
aside, the record does not support his assertions.

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