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Yuma Regional Medical Center v. Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

November 21, 2013


Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Special Action –Industrial Commission ICA Claim No. 20071-560305 Carrier Claim No. 1956660 The Honorable Layna Taylor, Administrative Law Judge.


Cross & Lieberman, P.A., Phoenix By Donald L. Cross Counsel for Petitioner Employer and Carrier.

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

Jerome, Gibson, Stewart, Friedman, Stevenson, Engle & Runbeck, P.C., Phoenix By James L. Stevenson Counsel for Respondent Employee.

Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Patricia A. Orozco joined.


THUMMA, Judge.

¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award and decision upon review awarding Michael Erwin surviving death benefits for the death of respondent employee Barbi Erwin. Petitioner employer Yuma Regional Medical Center (Yuma) raises three issues on appeal: (1) whether the record contains legally sufficient evidence to support the administrative law judge's (ALJ's) conclusion that the medications causing Ms. Erwin's death were prescribed for an industrially-related condition; (2) whether the ALJ properly resolved conflicting medical evidence and (3) whether Ms. Erwin's use of carisoprodol was a supervening cause making her death noncompensable. Finding no error, the ALJ's award is affirmed.


¶2 On May 22, 2007, Ms. Erwin worked for Yuma as a registered nurse and, while pushing a bed, felt a pull in her left calf muscle. After being seen in the hospital emergency room, Ms. Erwin was evaluated by orthopedic surgeon Alan Horowitch, M.D. Dr. Horowitch diagnosed a medial meniscus tear and a magnetic resonance imaging scan (MRI) confirmed the tear.

¶3 Ms. Erwin filed a workers' compensation claim, which was accepted for benefits. Following an independent medical examination (IME) confirming Dr. Horowitch's diagnosis, Ms. Erwin underwent arthroscopic surgery on August 10, 2007. On December 18, 2007, Dr. Horowitch concluded that Ms. Erwin had reached maximum medical improvement (MMI), despite ongoing pain along the lateral joint line of her left knee. He rated Ms. Erwin with a scheduled two percent permanent impairment. Based on Dr. Horowitch's report, Ms. Erwin's claim was closed with a two percent scheduled permanent impairment of the left lower extremity and an award of supportive care benefits.

¶4 In January 2008, Ms. Erwin's left knee gave out at work and she returned to Dr. Horowitch with ongoing complaints regarding the lateral aspect of her left knee. Dr. Horowitch obtained a new MRI scan and recommended a second arthroscopy. Petitioner carrier Safety National Casualty Corporation (Safety) sent Ms. Erwin to Neal L. Rockowitz, M.D., for an IME. Dr. Rockowitz opined that Ms. Erwin did not need surgery but recommended aggressive physical therapy for six to eight weeks for her "chronically deconditioned knee." Dr. Rockowitz stated that Ms. Erwin was not stationary at the time of his February 2008 IME.

¶5 Safety issued a notice of claim status denying additional knee surgery based on this IME, and Ms. Erwin timely requested a hearing. Following ICA hearings, where Ms. Erwin, Dr. Horowitch and Dr. Rockowitz testified, the ALJ found Ms. Erwin stationary as of June 11, 2008, with a five percent scheduled permanent partial impairment to the left lower extremity.

¶6 After her claim closed, Ms. Erwin continued to experience left knee pain and remained on light duty.[2] Dr. Horowitch continued to treat Ms. Erwin through late 2008, and he prescribed narcotic medication for her ongoing knee pain. Dr. Horowitch discharged Ms. Erwin when he closed his medical practice, and she then received treatment from Alaa Babiker, M.D., and Charles Olivera, M.D.

¶7 In December 2008, Dr. Babiker, an internist and Ms. Erwin's family physician, began prescribing a rapid acting hydrocodone with Tylenol. During this same period, Dr. Olivera, a board-certified neurologist and pain management specialist, began prescribing Oxycontin, a long acting narcotic pain medication. The medical records reflect ongoing knee pain related to Ms. Erwin's May 2007 industrial injury and gradually increasing doses of opioid medications prescribed for the pain.[3]

¶8 In August 2009, Ms. Erwin began to see Dr. Awar, M.D., who prescribed Vicoprofen, a narcotic medication with Motrin. On August 18, 2009, Ms. Erwin hit her left knee on a filing cabinet at work and an emergency room physician prescribed additional hydrocodone. As a result, Ms. Erwin filed a new workers' compensation claim, which was accepted for benefits but closed after her death.

¶9 On August 30, 2009, Ms. Erwin went to bed early because she was tired and did not feel well. Her husband Michael Erwin testified that he checked on her at 10 or 11 p.m., and she was fine. When he checked on her again between 3 and 4 a.m., she was not breathing. Following a 9-1-1 call, Ms. Erwin was taken to the hospital, where she was pronounced dead. At the time of her death, Ms. Erwin had an appointment to see an orthopedic surgeon for her ongoing left knee pain.

¶10 Mr. Erwin filed a claim for death benefits, which was denied. He timely requested a hearing, and three ICA hearings were held. After hearing testimony from Mr. Erwin, Ms. Biro, Dr. Genrich and Dr. Greenberg, the ALJ ...

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