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Garcia v. Industrial Commission of Arizona

Court of Appeals of Arizona, First Division, Department D

October 1, 2013

ERASMO GARCIA, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, SELLERS AND SONS INC., Respondent Employer, SCF WESTERN INSURANCE COMPANY, Respondent Carrier.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Special Action – Industrial Commission ICA Claim No. 20111-960359 Carrier Claim No. 11W01256 The Honorable James B. Long, Administrative Law Judge

Erasmo Garcia Mesa Petitioner In Propria Persona.

Andrew Wade, Chief Counsel Phoenix The Industrial Commission of Arizona Attorneys for Respondent.

James B. Stabler, Chief Counsel, SCF Arizona Phoenix By Sharon M. Hensley Attorneys for Respondent Employer/Carrier.

MEMORANDUM DECISION

MICHAEL J. BROWN, Judge.

¶1 Erasmo Garcia challenges an award of the Industrial Commission of Arizona ("ICA") finding (1) he was not entitled to continuing benefits and (2) the scope of his work-related injury did not include an alleged injury to his right shoulder. For the following reasons, we affirm.

BACKGROUND

¶2 On July 5, 2011, Garcia was working as a driver for Sellers and Sons, Inc. While parked on the edge of a street at a construction site, a ground plate beneath the left rear wheels of the truck collapsed. After the truck fell into the ground, Garcia was able to get out on his own. The following morning, Garcia received medical attention for the incident at Concentra Medical Centers Garcia claimed he was suffering from pain in his right knee, left knee, right shoulder, neck, rib, and hip. After Garcia described his symptoms, an x-ray and MRI were taken of his right knee, but did not display any broken bones. The treating physician at Concentra prescribed some medication and told Garcia there was nothing else wrong with him.

¶3 On July 18, 2011, Garcia was referred to Dr. Kassman, who concluded that Garcia had a torn muscle and needed surgery on his right knee, which was completed on August 18. On October 17, Garcia returned for a follow-up visit for his knee surgery, but his primary complaint during this examination involved right shoulder pain. An MRI scan of the right shoulder was performed at Surgical Specialty Hospital of Arizona on October 31. Dr. Kassman concluded from the MRI that it did not show any rotator cuff tear. Kassman's final recommendation to SCF was that "[a]ccording to the AMA guides to rating of permanent impairment [Garcia's] [f]inal impairment rating is 2% to the right lower extremity." Dr. Kassman found "no basis for impairment to the right shoulder or upper extremity."

¶4 Garcia's ICA claim was filed on July 14, 2011 and was accepted by the defendant insurance carrier, SCF Western Insurance Company ("SCF"). On December 1, 2011, SCF issued a notice of claim status terminating active care and temporary compensation benefits effective November 14, 2011, with a permanent disability. On that same date, SCF also issued a notice of permanent disability benefits, awarding Garcia a 2% functional loss of his right lower extremity.

¶5 Garcia timely protested SCF's determination, and three hearings were conducted over a four-month period in 2012 before an administrative law judge ("ALJ"). The issues at the hearing focused on whether continuing benefits were proper for the injuries Garcia sustained on July 5, 2011 and the extent of permanent disability of Garcia's right knee.

¶6 Scott Stratmann, a licensed chiropractor, testified that Garcia had sustained a right shoulder injury to his rotator cuff as a result of the accident on July 5, 2011. Dr. Stratmann reached this opinion based on the fact that Garcia had no right shoulder complaints prior to the accident, the shoulder pain began close to the time of injury, and an MRI displayed a torn rotator cuff. Therefore, Dr. Stratmann concluded that Garcia's condition needed treatment by an orthopedic surgeon.

¶7 Anthony Theiler, a board certified orthopedic surgeon, performed an independent medical examination of Garcia on February 21, 2012, and authored a report from this date. In conjunction with his physical examination, he reviewed relevant medical records and diagnostic studies. He opined that the rotator cuff pathology revealed on diagnostic studies was degenerative (age related) in nature and not a result of the industrial accident. Further, Dr. Theiler opined that Garcia's condition, relative to the industrial injury, was stationary with 2% impairment to his right lower extremity, with no work restrictions and no need ...


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