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Whitney v. Industrial Commission of Arizona

Court of Appeals of Arizona, Second Division

November 27, 2013

Jeffrey S. Whitney, Petitioner Employee,
The Industrial Commission of Arizona, Respondent, The Home Depot, Respondent Employer, Helmsman Management Services, Inc., Respondent Insurer.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

SPECIAL ACTION – INDUSTRIAL COMMISSION ICA Claim No. 20051290843 Insurer No. WC608-621644 The Honorable Gary M. Israel Administrative Law Judge

Jeffrey S. Whitney, Vail In Propria Persona The Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent.

Jardine, Baker, Hickman & Houston, PLLC, Phoenix By Charles G. Rehling Counsel for Respondents Employer and Insurer.

Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.



¶1 In this statutory special action, petitioner Jeffrey Whitney challenges the findings of the administrative law judge (ALJ) that he is capable of working ten hours per week and therefore entitled to partial disability benefits only. For the following reasons, we affirm the ALJ's findings and award.

Factual and Procedural Background

¶2 "We view the evidence in the light most favorable to sustaining an ALJ's award." Sw. Gas Corp. v. Indus. Comm'n, 200 Ariz. 292, 2, 25 P.3d 1164, 1166 (App. 2001). In January 2005, Whitney suffered a neck injury while working as a department supervisor for respondent employer. Respondent insurer accepted Whitney's claim for temporary disability, and his average monthly wage was set at $2, 400, an amount reflecting the statutory maximum at the time.

¶3 Approximately one year later, Whitney underwent cervical surgery to address his neck injury. In August 2009, he was determined to have reached maximum medical improvement, and his claim was closed by the insurer based on a determination of permanent partial disability. Thereafter, respondent Industrial Commission of Arizona (ICA) found that Whitney was entitled to a monthly award of $863.15 based on his ability to work ten hours per week. In March 2010, following a hearing requested by the insurer, ALJ Luann Haley affirmed the ICA's finding that Whitney was capable of working only ten hours per week.

¶4 In July 2012, Whitney filed a Petition for Rearrangement or Readjustment of Compensation pursuant to A.R.S. § 23-1044(F) alleging that his condition had worsened and that his disability status should be amended to reflect his total incapacity for employment. Based on Whitney's petition, the ICA issued a finding of total disability and awarded him $1, 600.08 per month. The employer and insurer then requested a review of the ICA's findings and award. Whitney, in turn, sought a hearing pursuant to A.R.S. § 23-1061(J) on his related request for additional neurological testing to determine whether a tremor he was experiencing was linked to his workplace injury. Both requests were heard before ALJ Gary Israel over three days in early 2013.

¶5 Dr. John Beghin, a board-certified orthopedic surgeon specializing in spinal surgery and spinal disorders, appeared at the ICA hearing. He testified that in addition to reviewing Whitney's medical records, he had performed two separate independent medical evaluations of Whitney's condition - one in February 2010 and one in December 2012. Based on these examinations, he concluded there was "no significant objective difference" between Whitney's condition in 2010 and his condition in 2012. He also compared the results of Whitney's most recent cervical MRI study, performed in September 2012, to an MRI study performed in 2009 and again found no objective change in Whitney's condition. In Beghin's opinion, there was "no medical necessity for restrictions" on Whitney's activity, and no objective basis to reduce his employment capacity determination from ten hours per week to unemployable. Beghin offered additional testimony regarding Whitney's tremor, which he characterized as a "non-spinal-cord type tremor" that had "nothing to do with" Whitney's workplace injury. Noting that it "would go away when [Whitney] relaxed, " Beghin concluded the tremor was driven by stress.

¶6 Respondents also introduced into evidence the report of Dr. Colin Bamford, [1] a board-certified neurologist who had examined Whitney in January 2013. Bamford diagnosed Whitney with a "benign essential tremor, " which, according to his report, is most commonly a hereditary condition. Like Dr. Beghin, Bamford stated without reservation that Whitney's tremor" would not have been caused by the trauma to the neck." He also echoed Beghin's conclusion that Whitney's tremor was attributable, at least in part, to anxiety.

¶7 In addition to testifying himself about his physical limitations and symptoms, Whitney called as a witness Dr. Hillel Baldwin, a board-certified neurosurgeon who had performed his cervical surgery. Baldwin testified that Whitney's condition had worsened over time and noted that his MRI and radiology reports confirmed his deterioration. However, when describing the nature of this decline, Baldwin focused almost exclusively on Whitney's tremor and cognitive state. Nevertheless, when asked to disregard any conditions that had ...

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