Spielman v. Industrial Commission

788 P.2d 1244, 163 Ariz. 493, 50 Ariz. Adv. Rep. 48, 1989 Ariz. App. LEXIS 371
CourtCourt of Appeals of Arizona
DecidedDecember 26, 1989
DocketNo. 1 CA-IC 89-047
StatusPublished
Cited by8 cases

This text of 788 P.2d 1244 (Spielman v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spielman v. Industrial Commission, 788 P.2d 1244, 163 Ariz. 493, 50 Ariz. Adv. Rep. 48, 1989 Ariz. App. LEXIS 371 (Ark. Ct. App. 1989).

Opinions

EUBANK, Judge.

This is a special action review of an Industrial Commission award denying a petition to reopen. The sole issue preserved for review is the sufficiency of the evidence to support this denial. Because the evidence is sufficient, we affirm the award.

Petitioner employee (claimant), while working as a drywaller in June 1979, suffered a compensable left shoulder injury.1 He underwent surgery in July 1979 for an impingement of the anterior lateral aspect of the acromion and the coracoacromial ligament. A small rotator cuff tear was also discovered and repaired. After this surgery, there was no detectable impingement.2

Claimant was independently evaluated in February 1981. He then complained of constant left shoulder pain but had good range of motion (170 degrees abduction and flexion). The consultants concluded that the industrial injury was stationary with a 10% permanent impairment. The claim was subsequently closed with an unscheduled disability. Claimant was disabled from returning to drywalling, but he was rehabilitated as a respiratory therapist and was awarded permanent disability benefits for the difference in his earning capacity.

In August 1988, claimant filed a petition to reopen, which alleged that “[m]y shoulders have deteriorated to the point they are so painful I can’t use them.” He supported this petition with an August 15,1988 report of a left shoulder arthrogram, which indicated that no evidence of capsulitis or rota-tor cuff tear was discovered.

Claimant’s treating physician, Mark Zachary, M.D., performed surgery on August 25, 1988 for a left shoulder impingement. Dr. Zachary excised a large osteo-phyte (bony outgrowth) and a thickened bursal sack, released the coraco-acromial ligament, and removed additional bone from the front of the scapula.

Respondent carrier (SCF) denied reopening. Claimant requested a hearing, and one was subsequently scheduled. Pending the hearing, orthopedic surgeon, Gerald C. Moczynski, M.D., examined claimant at the carrier’s request.

At the hearing, claimant, his wife, and Drs. Zachary and Moczynski appeared. Claimant testified that his left shoulder was stable for several years and then began progressively to deteriorate. He had increased pain and decreased range of motion. According to claimant, he saw Dr. Fisler, who provided injections and physical therapy. This gradual progression continued until August 1988, when claimant awoke in acute pain and was unable to move his shoulder. Claimant then saw Dr. Zachary, who subsequently performed the second surgery. Claimant testified that this surgery had not improved his left shoulder condition. He continued to see Dr. Zachary for conservative care, and Dr. Zachary had restricted him from working in December 1988. Claimant’s wife, a physical therapist, corroborated this history of progressive worsening culminating in an acute condition in August 1988.

Dr. Zachary first saw claimant on August 5, 1988. Claimant then complained of severe left shoulder pain developing a few days before. Claimant reported having had surgery about five years previously for dislocations of his shoulders and having suffered a recent “twisting injury.” Regarding this recent history, Dr. Zachary testified that he could

not recall exactly how the twisting injury might have happened. To my recollection, [claimant] has had shoulder pain on and off, and that has been treated by Dr. Fisler, and he was still symptomatic even [495]*495prior to that sudden onset of shoulder pain.
... He might have turned his shoulder the wrong way, tried to reach for something. I do not recall him saying that he had what I would call a traumatic injury where if something fell on him, or he jumped from whatever. But from my recollection this is the best I can tell you.

Regarding causation in general, Dr. Zachary testified that an impingement syndrome could recur without an intervening injury. Although such a recurrence would be rare, it is more likely if a patient does repetitive overhead motions. Regarding the cause of claimant’s impingement syndrome in particular, Dr. Zachary testified as follows:

As I compared my operative report with Dr. Gardner’s [the first surgeon] I saw that it’s basically the same condition and the same diagnosis. How that relates to his industrial injury, I feel is something for you to resolve. It is my opinion, it is basically the same condition that [claimant] had suffered from five years ago and is basically the same condition that I have treated a few months ago and am still treating. (Emphasis added).

Dr. Zachary was not asked to explain his surgical findings or why the second surgery had failed to release the impingement. He did confirm that claimant remained symptomatic and was currently disabled from working as a respiratory therapist.

Dr. Moczynski testified that claimant’s restricted range of motion was not improved by the second surgery. He also confirmed that the range of motion had significantly diminished since the February 1981 independent medical evaluation. Dr. Moczynski diagnosed claimant’s current condition to be a tendonitis impingement. In his opinion, this condition was unrelated to the industrial injury. He testified that a recurrence was unlikely because the first surgery had removed the anterior/interior portion of the acromion, which eliminated the anatomic cause for a compression syndrome. Furthermore, given the sudden onset of pain in August 1988 and Dr. Zachary’s history of a twisting injury, Dr. Moc-zynski concluded that a sudden change of condition was more likely. Dr. Moczynski also assumed that claimant had been asymptomatic over a long period and had not needed medical treatment. He had not been provided a history of the treatment by Dr. Fisler or with Dr. Fisler’s medical records, nor was he asked how this history would affect his opinion.

The administrative law judge (A.L.J.) then issued the award. He noted the history of the twisting injury, Dr. Zachary’s inability to provide any factual detail concerning it, and claimant’s denial that an injury had occurred. He also noted that Dr. Moczynski had testified that some intervening injury had probably caused claimant’s current condition. But the A.L. J.’s dispositive findings were that medical evidence was necessary to establish a causal connection and that Dr. Zachary’s testimony was insufficient to satisfy claimant’s burden of proof:

9. While it is clear, according to medical evidence, that applicant had a similar type problem in 1988 to that which he had in 1988 [sic], an impingement syndrome in left shoulder, the testimony of Dr. Zachery [sic] is insufficient to establish that worsening of applicant’s condition in August 1988 and subsequent surgery was related to applicant’s 1979 injury and/or surgery of 1979. It is deemed Dr. Zachery’s [sic] testimony is insufficient to establish a conflict with that of Dr. Moczynski who indicated applicant’s condition in 1988 was unrelated to injury and surgery of 1979. See the following from Dr. Zachery’s [sic] testimony on page 19, lines 13-25, TR. February 24, 1989, reading as follows:
“Q. Doctor, do you have—having read the record of Dr. Gardner and having seen his shoulder—examined his shoidder, do you have an opinion as to whether or not this condition you found was connected with or a continuation of the pre-existing injury which he had?
[496]*496“A.

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Cite This Page — Counsel Stack

Bluebook (online)
788 P.2d 1244, 163 Ariz. 493, 50 Ariz. Adv. Rep. 48, 1989 Ariz. App. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spielman-v-industrial-commission-arizctapp-1989.