IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE

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1 NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c; ARCAP 28(c; Ariz. R. Crim. P IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DONALD E. PARSELS, 1 CA-IC Petitioner, DEPARTMENT C v. MEMORANDUM DECISION (Not for Publication - THE INDUSTRIAL COMMISSION OF ARIZONA, PRESTIGE HOMES, INC., Respondent Employer, WESTPORT INSURANCE C/O GALLAGHER BASSETT, Respondent Insurance Carrier. Rule 28, Arizona Rules of Civil Appellate Procedure Respondent, Special Action - Industrial Commission ICA Claim No Carrier Claim No WC01 Administrative Law Judge Stephen W. Pogson AWARD AFFIRMED Donald E. Parsels Petitioner Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Avoca, NY Phoenix

2 Klein Lundmark Barberich & LaMont PC By Kirk A. Barberich And Robert J. Mounts Attorneys for Respondent Employer and Respondent Carrier Phoenix S W A N N, Judge 1 This is a special action review of an Industrial Commission of Arizona ( ICA award and decision upon review regarding the scope of supportive medical maintenance benefits provided to Donald E. Parsels ( Claimant. At issue is whether the decision and award of the Administrative Law Judge ( ALJ, which provided only that Claimant was entitled to non-steroidal anti-inflammatory medications and sleep medications, was sufficiently supported by the evidence. Because we find that there was sufficient evidence to support the ALJ s findings and award, we affirm the award. JURISDICTION AND STANDARD OF REVIEW 2 We have jurisdiction pursuant to A.R.S (A(2 (2003 and (A (1995, and Ariz. R. P. Spec. Act. 10. In reviewing findings and awards of the ICA, we defer to the ALJ s factual findings but review questions of law de novo. Young v. Indus. Comm n, 204 Ariz. 267, 270, 14, 63 P.3d 298, 301 (App We consider the evidence in the light most favorable to upholding the ALJ s award. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, 16, 41 P.3d 640, 643 (App

3 FACTUAL AND PROCEDURAL HISTORY 3 On February 4, 2004, Claimant injured his back while performing work for the respondent employer. He received medical treatment for the injury and was referred to Dr. Ali Araghi, D.O. On May 18, 2004, Dr. Araghi performed an anterior diskectomy 1 at levels C4-5, C5-6, and C6-7 of Claimant s cervical vertebrae, with fusion and anterior plating. Claimant next came under the care of Dr. Zoran Maric, M.D. On November 24, 2004, Dr. Maric performed a bilateral laminectomy 2 at L5 of Claimant s lumbar vertebrae with posterior instrumentation and fusion of L5 with S1 of the sacral vertebrae. 4 By May 2005, Claimant s condition was medically stationary, and on July 28, 2005, the respondent insurance carrier closed Claimant s claim with an unscheduled permanent partial disability effective June 29, Also on July 28, 2005, the carrier issued a notice authorizing supportive medical maintenance benefits. The notice authorized [t]wo to three physician office visits per year, as well as prescriptions for nonsteroidal ant-inflammatory [sic] medications and x-rays, for a period of two years. The notice was amended on October 11, As amended, the notice authorized four physician visits 1 A diskectomy is the excision of an intervertebral disk. Dorland s Medical Dictionary 465 (25th ed A laminectomy is the excision of the posterior arch of a vertebra. Dorland s Medical Dictionary

4 per year for two years and two physician visits per year thereafter, probably for the rest of Claimant s life. The notice authorized [m]edication for sleep and experimentation with different anti-inflammatories, and noted that Claimant would need to be under the care of a pain control physician. 5 For his supportive care, Claimant came under the care of Dr. Michaela M. Skelly, M.D. On February 26, 2007, Dr. Skelly started Claimant on several prescription drugs, including fentanyl patches and Vicodin for his pain. The carrier paid for the prescriptions for the pain medications. 6 According to Claimant, he moved from Arizona to New York in April or May Claimant s request to transfer his supportive care to Dr. Anselmo Deasis, M.D., a New York doctor, was approved in July 2008 and Claimant began seeing Dr. Deasis then. According to Claimant, it was also in July 2008 that the carrier stopped paying for his fentanyl patches. Claimant successfully requested a hearing before the ICA regarding the carrier s responsibility to pay for the patches. During the course of the proceedings, the carrier asserted by letter addressed to the ALJ that it did not accept financial responsibility for either fentanyl patches or Vicodin. The carrier stated that although it had paid for Vicodin in the past, it would no longer continue to do so. 4

5 7 In anticipation of the proceedings, the carrier requested an independent medical examination ( IME of Claimant. Dr. John Beghin, M.D., performed the IME and wrote a report. In his report, Dr. Beghin observed: [I]t would be logical to conclude that the... introduction of narcotics have not been of benefit to the claimant in terms of function and ultimate relief of symptoms. Therefore, in my opinion the use of narcotics should be titrated to a minimal amount and the claimant probably does not require the use of [a] fentanyl patch. Dr. Beghin did not testify, but his report was filed and considered by the ALJ. 8 Dr. Deasis, Claimant s doctor, did testify. Dr. Deasis testified that he saw Claimant a total of four times from July 2008 to October 2008 and during that period observed no change in Claimant s condition. He stated that in his opinion, Claimant probably did not need either fentanyl patches or Vicodin. He explained that those medications are not indicated for chronic pain such as Claimant s, and stated that other medications could be used instead. He suggested the use of less habit-forming opioids or non-steroidal anti-inflammatories as preferable alternatives to fentanyl patches, and said that non-steroidal anti-inflammatories could also substitute for Vicodin. Dr. Deasis expressed his willingness to continue to monitor Claimant s medications. 5

6 9 The ALJ found that the proper scope of Claimant s supportive care was undisputed, and found that Claimant was entitled only to non-steroidal anti-inflammatory medications as well as sleep medications prescribed by Dr. Deasis. The ALJ entered an award in accordance with the findings. Upon review, the ALJ affirmed, and Claimant brought this special action. DISCUSSION 10 In this special action, Claimant appears to contend that there was insufficient evidence to support the ALJ s exclusion of fentanyl patches and Vicodin from Claimant s supportive medical maintenance benefits. We will affirm the ALJ s decision if it is reasonably supported by the evidence. Salt River Project v. Indus. Comm n, 128 Ariz. 541, 544, 627 P.2d 692, 695 (1981. Where the evidence is in conflict or where different inferences may be drawn from the evidence, we will not disturb the ALJ s findings of fact unless they are wholly unreasonable. Books v. Indus. Comm n, 92 Ariz. 302, 304, 376 P.2d 769, 770 ( Claimant appears to argue that because the carrier paid for fentanyl patches and Vicodin in the past, it was obligated to continue paying for those medications. But the amended notice authorizing supportive medical maintenance benefits specified 6

7 only anti-inflammatories and sleep medications. 3 The fact that the carrier nevertheless paid for Claimant s fentanyl patches and Vicodin until July 2008 is not conclusive of the carrier s acceptance of continuing liability for those medications. Capuano v. Indus. Comm n, 150 Ariz. 224, 227, 722 P.2d 392, 395 (App But moreover, the determination of supportive care benefits is necessarily a transitory issue, based on a claimant s evolving physical condition in relation to his industrial injury. Brown v. Indus. Comm n, 199 Ariz. 521, 524, 14, 19 P.3d 1237, 1240 (App Here, Dr. Beghin stated in his IME report that he did not believe that narcotic medications had benefited Claimant. Dr. Beghin opined that Claimant s use of narcotics should be titrated to a minimal amount and that Claimant probably does not require the use of [a] fentanyl patch. Dr. Deasis, Claimant s supportive care doctor, testified that he had observed no change in Claimant s condition since taking over his care, and did not believe that Claimant needed either fentanyl patches or Vicodin. Dr. Deasis suggested non-steroidal antiinflammatories as preferable alternatives. Dr. Beghin s report and Dr. Deasis s testimony provided a reasonable basis for the ALJ s finding that the proper scope of Claimant s supportive care 3 The original notice authorized only non-steroidal antiinflammatory medications. 7

8 benefits was undisputed, and that the care included only nonsteroidal anti-inflammatory medications and sleep medications. CONCLUSION 13 For the reasons set forth above, we affirm the award. /S/ PETER B. SWANN, Presiding Judge CONCURRING: /S/ LAWRENCE F. WINTHROP, Judge /S/ MICHAEL J. BROWN, Judge 8