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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
VERONICA ROBINSON, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
SOUTHWEST AIRLINES, Respondent Employer,
INDEMNITY INSURANCE COMPANY OF NORTH
AMERICA, Respondent Carrier.
No. 1 CA-IC 17-0021
FILED 3-20-2018
Special Action - Industrial Commission
ICA Claim No. 20151-730148
Carrier Claim No. 1538937W001
The Honorable Gaetano J. Testini, Administrative Law Judge
AFFIRMED
COUNSEL
Veronica Robinson, Phoenix
Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent
Lundmark Barberich La Mont & Slavin, P.C., Phoenix
By R. Todd Lundmark, Danielle Vukonich
Counsel for Respondent Employer and Carrier
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Paul J. McMurdie joined.
C A M P B E L, Judge:
¶1 Veronica Robinson seeks special action review of an
Industrial Commission of Arizona (“ICA”) award and decision closing her
industrial claim without finding permanent impairment. She argues the
administrative law judge (“ALJ”) erred in assessing the evidence presented.
For the following reasons, we affirm the award and the decision upon
review.
FACTS AND PROCEDURAL BACKGROUND
¶2 On June 13, 2015, Robinson sustained an industrial injury—a
minor closed-head injury—when a parking lot gate came down on the top
of her head. At the time of the accident, Robinson worked as a customer
service representative for Southwest Airlines. After accepting her claim, the
respondent-carrier issued a notice of claim status, closing her claim without
finding permanent impairment, effective August 24, 2015. In October 2015,
Robinson filed a request for hearing.
¶3 After hearing testimony from Robinson and two medical
experts, the ALJ issued findings and an award for temporary disability
finding Robinson required no further active medical care, and had not
sustained permanent impairment because of the industrial accident.
¶4 Robinson timely requested administrative review, but the
ALJ affirmed the award. Robinson timely sought special action review by
this court. We have jurisdiction under Arizona Revised Statutes (“A.R.S.”)
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Decision of the Court
sections 12-120.21(A)(2), 23-951(A), and Arizona Rule of Procedure for
Special Actions 10.
DISCUSSION
¶5 When reviewing the ICA’s findings and award, we defer to
the ALJ’s factual findings, and consider the evidence in the light most
favorable to upholding the award, but review questions of law de novo.
Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003); Lovitch v. Indus.
Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).
¶6 Robinson argues the ALJ’s decision was not supported by the
evidence. She asserts the ALJ disregarded the testimony of her expert, Dr.
Hemant Pandey and the Independent Medical Examination (“IME”)
performed by Dr. Kerry Knievel. Accordingly, she argues the ALJ
incorrectly determined that she was medically stationary.
¶7 The ALJ is the sole judge of witness credibility. Holding v.
Indus. Comm’n, 139 Ariz. 548, 551 (App. 1984). It is the ALJ’s duty to “resolve
all conflicts in the evidence, and draw warranted inferences.” Malinski v.
Indus. Comm’n, 103 Ariz. 213, 217 (1968) (citations omitted). When more
than one inference may be drawn, the ALJ is at liberty to choose either, and
we will not disturb that conclusion unless it is wholly unreasonable. Id. We
presume the ALJ considered all relevant evidence in the absence of a reason
in the record to conclude otherwise. See Perry v. Indus. Comm’n, 112 Ariz.
397, 398 (1975). Robinson has not overcome that presumption; the record
demonstrates the ALJ’s findings were supported by competent evidence,
including expert testimony and medical records.
¶8 At the evidentiary hearing, the ALJ heard testimony from two
medical experts, Dr. John Michael Powers and Dr. Hemant Pandey, both
board certified neurologists. Dr. Powers testified that he examined
Robinson on August 29, 2016. During the examination, he obtained a verbal
medical history, including details about the industrial injury, and reviewed
her medical records from other physicians. Dr. Powers found nothing
abnormal in his neurologic examination, and found no evidence of occipital
neuralgia, trigeminal neuralgia, or any objective evidence of a neurologic
deficit of any kind.
¶9 Dr. Powers opined that in her accident, Robinson had
suffered mild head trauma that did not cause her prolonged occipital
neuralgia. He noted that “when I read the records immediately preceding
this injury, she is describing exactly the same headache that . . . [we are]
dealing with now,” and “there’s no reason to believe that the blow to the
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Decision of the Court
top of the head would have caused this problem.” He explained that
Robinson had been treated by Dr. Patrick Chang for headaches since 2014,
and was prescribed and using Vicodin before the accident. He testified that
Robinson regularly consumed four Vicodin a day before the accident for
frequent headaches. Finally, regarding the accident, he opined that
Robinson’s condition was stationary, she required no further treatment,
and she had not sustained a permanent impairment.
¶10 Dr. Pandey examined Robinson in June, July, and September
2016, and opined that Robinson would benefit from ongoing treatment. He
also testified that because she reported an increase in the frequency of her
headaches after the accident, her “current condition” was related to the
industrial injury. Dr. Pandey admitted, however, that he did not have the
specific information about the mechanism of injury in his records, and
could not testify about the details of what happened on the date of the
injury. He testified that he had not reviewed any prior medical records or
diagnostics, and did not perform any diagnostics of his own. He
acknowledged that Robinson had a long-standing problem with headaches
and trigeminal neuralgia prior to the industrial accident, and admitted he
did not know if there was an actual change in the type of headaches
Robinson was experiencing since the industrial accident.
¶11 When expert medical testimony conflicts, it is the ALJ’s duty
to resolve the conflict and “to determine which opinion is more probably
correct.” Kaibab Indus. v. Indus. Comm’n, 196 Ariz. 601, 609, ¶ 25 (App. 2000)
(citation omitted); see also Fry’s Food Stores v. Indus. Comm’n, 161 Ariz. 119,
121 (1989). In this case, Dr. Pandey based his opinion on incomplete
information not supported by the evidence of record. Dr. Pandey testified
he had considered neither Robinson’s past medical records documenting a
history of frequent headaches, nor the mechanics of the injury itself when
he made his conclusions. The ALJ found Dr. Powers’s testimony was
demonstrably “well founded,” as he based his opinions on pertinent
medical information in addition to his own examination. Thus, after having
considered the testimony, qualifications, and experience of both experts, see
Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988), the ALJ adopted
the testimony of Dr. Powers as “most probably correct.” Robinson has
shown no error in the ALJ declining to accept Dr. Pandey’s opinion and
determining Dr. Powers’s testimony and opinion were more credible.
¶12 This court will not disturb the ALJ’s conclusion unless it
cannot be supported by any reasonable theory of the evidence. Phelps v.
Indus. Comm’n, 155 Ariz. 501, 506 (1987). Because the conflict between the
two medical experts’ testimony was resolved “in such a way that [the ALJ’s]
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Decision of the Court
findings are reasonably supported by the evidence,” we find no abuse of
discretion. See Condos v. Indus. Comm’n, 92 Ariz. 299, 301–02 (1962). As this
court has explained, conflicting evidence may nonetheless be substantial
evidence. Shaffer v. Ariz. State Liquor Bd., 197 Ariz. 405, 409, ¶ 20 (App. 2000).
CONCLUSION
¶13 We affirm the award and decision upon review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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