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. 31.24

Not for Publication Rule 28, Rules of Civil Appellate Procedure

MEMORANDUM DECISION

VÁSQUEZ, Presiding Judge.

¶1 In this statutory special action, petitioners Pima County and Tristar Risk Management challenge an Industrial Commission of Arizona award granting respondent Ernie Luna continuing medical, surgical, and hospital benefits. Petitioners argue we must set aside the award because the testimony of Luna's medical expert "lacked foundation" and was "legally insufficient." They also argue the Administrative Law Judge (ALJ) failed to consider medical reports in evidence and failed to make a finding of fact as to Luna's credibility. For the reasons set forth below, we affirm the award.

Factual Background and Procedural History

¶2 "We view the facts in the light most favorable to sustaining the award." Benafield v. Indus. Comm'n, 193 Ariz. 531, ¶ 2, 975 P.2d 121, 122 (App. 1998). In May 1995, Luna, who was employed by Pima County Wastewater Management, injured his back while working. After multiple lower-back surgeries in 1997 and 1998, Luna's claim was closed in July 1999 with a twenty-five percent permanent impairment. He returned to work with lifting restrictions.

¶3 In September 2009, Luna's claim was reopened and in September 2010, he underwent another lower-back surgery performed by Dr. Hillel Baldwin, a neurosurgeon.1 However, the surgery did not relieve Luna's symptoms and in the months that followed he slowly regressed "to the point [he] couldn't even walk anymore." He became heavily dependent upon narcotic drugs.

¶4 On March 30, 2011, Drs. Robert Dunn and Raymond Schumacher interviewed and examined Luna and issued a report in which they opined, "the medically stationary point of maximum medical improvement ha[d] been reached." In April 2011, a notice was issued closing Luna's claim effective March 31, 2011, with a permanent disability. Luna then filed a request for a hearing and, pursuant thereto, formal hearings were held on December 1, 2011, and March 6, 2012. Prior to the hearings, Luna underwent another lower-back surgery in August 2011—a sacroiliac (SI) joint fusion—at Baldwin's recommendation. At the subsequent hearings, the ALJ heard testimony from Luna, Baldwin, and Dunn, focusing on whether the surgery was reasonably required or whether Luna's injury was stable and stationary as of March 2011. In addition to the expert medical testimony, the ALJ also received several medical reports.

¶5 On March 9, 2012, the ALJ issued his decision upon hearing, awarding Luna continuing medical, surgical, and hospital benefits, finding Baldwin's opinion that the SI joint fusion surgery was reasonably required as "the mos[t] probably correct and well-founded." The ALJ's decision was affirmed on review. This statutory special action followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10, Ariz. R. P. Spec. Actions.

Discussion

¶6 The petitioners first argue the ALJ erred by accepting Baldwin's testimony as most probably correct because it "lacked foundation" and was "legally insufficient." Specifically, they contend "the answer to whether the surgery was reasonably necessary rest[ed] on the success of the surgery," and Baldwin's opinion the surgery was successful, even "miraculous," is "contradicted by medical records that prove that the surgery failed to relieve [Luna's] symptoms." We will sustain an Industrial Commission award if reasonably supported by the evidence, Lawson v. Indus. Comm'n, 12 Ariz.App. 546, 547, 473 P.2d 471, 472 (1970), and will not disturb an award based on conflicting medical evidence unless the ALJ's resolution of the conflict is "wholly unreasonable," Rosarita Mexican Foods v. Indus. Comm'n, 199 Ariz. 532, ¶ 10, 19 P.3d 1248, 1251 (App. 2001). "[T]he claimant has the burden of proof to establish all of the material elements of a compensable claim." Lapare v. Indus. Comm'n, 154 Ariz. 318, 319, 742 P.2d 819, 820 (App. 1987).

¶7 Pursuant to A.R.S. § 23-1062(A), a claimant who suffers an industrial injury is entitled to "medical, surgical and hospital benefits or other treatment . . . reasonably required" during the period of his temporary disability. See also Carbajal v. Indus. Comm'n, 223 Ariz. 1, ¶ 8, 219 P.3d 211, 213 (2009) ("To be compensable, the services . . . must be `reasonably required.'"). Such benefits are not payable if the claimant's condition is medically stationary, that is, "when the physical condition of the employee resulting from the industrial injury has reached a relatively stable status so that nothing further in the way of medical treatment is indicated to improve that condition." Aragon v. Indus. Comm'n, 14 Ariz.App. 175, 176, 481 P.2d 545, 546 (1971); see also Johnson-Manley Lumber v. Indus. Comm'n, 159 Ariz. 10, 13, 764 P.2d 745, 748 (App. 1988) (need for active medical treatment aimed at improving employee's condition means condition not medically stationary). "Whether a particular type of treatment is reasonably required is a medical question and requires expert medical testimony." Patches v. Indus. Comm'n, 220 Ariz. 179, ¶ 6, 204 P.3d 437, 439 (App. 2009). If there is a conflict in the expert testimony, it is the duty of the ALJ to resolve it. Stainless Specialty Mfg. Co. v. Indus. Comm'n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985). On appeal, we will not reweigh the evidence or disturb the findings of the ALJ that are supported by sufficient, legally competent evidence. Brewer v. Indus. Comm'n, 9 Ariz.App. 319, 320, 451 P.2d 897, 898 (1969).

¶8 Here, Luna opted to proceed with surgery in August 2011 before hearings were held on the reasonable necessity of the contemplated procedure and the propriety of the petitioners' closure of his claim. In Baudanza v. Industrial Commission, this court held that a claimant can receive compensation for the costs of surgery obtained without prior approval, so long as he provides notice to the insurance carrier of his intent to proceed with the surgery, and the surgery is reasonably necessary. 149 Ariz. 509, 513, 720 P.2d 110, 114 (App. 1986). We cautioned that "a claimant who proceeds with treatment without the permission of the carrier or without a ruling from the Industrial Commission that the treatment is compensable does so at his own risk. If the treatment is ultimately found not to be reasonably required, it will not be compensable." Id.; see also Shockey v. Indus. Comm'n, 140 Ariz. 113, 118, 680 P.2d 823, 828 (App. 1983).

¶9 Petitioners do not argue that Luna failed to provide adequate notice of his intent to proceed with the surgery. Instead, citing Desert Insulations, Inc. v. Industrial Commission, 134 Ariz. 148, 654 P.2d 296 (App. 1982), and Hackworth v. Industrial Commission, 229 Ariz. 339, 275 P.3d 638 (App. 2012), they argue Baldwin's testimony that the surgery successfully relieved Luna's symptoms had no factual support, and, thus, the ALJ erred by accepting his opinion as most probably correct and well founded. They point to Baldwin's testimony that the surgery allowed Luna to stop taking morphine to manage his pain, which they maintain is negated by medical reports and drug test results indicating that Luna had continued to use narcotic drugs after the surgery. In response, Luna argues "[t]he fact that he wasn't `cured' or drug free at the time of the hearing does not mean that he was stable and stationary on March 31, 2011 or that the August 31, 2011 surgery wasn't reasonable and necessary."

¶10 Baldwin, a board-certified neurological surgeon who devotes seventy percent of his practice to spinal neurosurgery, testified on December 1, 2011. He had been treating Luna since the mid-1990s and had performed each of Luna's previous lower-back surgeries. Baldwin testified that in March 2011, he was "considering doing an L3-4 fusion for junctional stenosis," so he sent Luna to Dr. Reid Bullock for a discography, which showed that the L3-4 annulus was disrupted. However, the contemplated surgery was cancelled because pressurization of the disc did not reproduce Luna's symptoms. Baldwin stated that he later became aware of new medical research suggesting "problems with the SI joint" in patients that had received previous back fusion surgeries. He indicated the "test for that is to inject the SI joint" and conduct "a physical examination in the office where [the] patient has their pelvis rotated and manipulated." He testified that "[Luna] qualified for all of those signs and symptoms" and had "positive. . . clinical tests of pressurizing his pelvic joint and moving his legs and all the different signs and symptoms that reproduced his pain."

¶11 Dunn and Schumacher conducted an independent medical evaluation (IME) on March 30, 2011. In their report, they opined "that the medically stationary point of maximum medical improvement ha[d] been reached" and they "d[id] not recommend lumbar surgical intervention." In an addendum to the IME, Dunn and Schumacher responded to Baldwin's recommendation of an SI joint fusion surgery, indicating they found no evidence of sacroiliac disease and "continue[d] to find it unlikely" that Luna would benefit from surgery. At the March 6, 2012 hearing, Dunn similarly testified that in March 2011 he and Schumacher found no objective evidence indicating additional surgery was warranted. He admitted, however, that he was not familiar with the indications for, and had never performed, an SI joint fusion surgery. He testified that in March 2011 he had no opinion about whether the SI joint fusion surgery was appropriate or not and conceded that "if it works, it's fine."

¶12 In his decision upon hearing, the ALJ found, "[i]t does not appear there is a material conflict in the opinions of Drs. Dunn and Baldwin that the sacroiliac fusion was necessary treatment since Dr. Dunn did not have an opinion." He continued, "assuming arguendo that Dr. Dunn did have an opinion to a reasonable medical probability that the treatment was not appropriate, then the opinions of Dr. Baldwin are adopted as the more probably correct and well-founded."

¶13 There is no basis for this court to disturb the ALJ's findings. See Brewer, 9 Ariz. App. at 320, 451 P.2d at 898. First, we agree with the ALJ that Dunn's opinion was equivocal and insufficient to create a conflict in the evidence. See Hackworth, 229 Ariz. 339, ¶ 10, 275 P.3d at 642. "Medical testimony is equivocal when it is subject to more than one interpretation or when the expert avoids committing to a particular opinion." Id. Here, although Dunn testified he found no objective indications that surgery was warranted, he also stated that he was not familiar with the indications for, and had not ever performed, SI joint fusion surgery. He had no opinion about whether the surgery was appropriate, and it must have been something "in [Baldwin's] experience" that made him think it was appropriate. Thus, Baldwin's testimony regarding the reasonable necessity of the surgery was largely uncontradicted and the ALJ was bound to accept it. See Crystal Bottled Waters v. Indus. Comm'n, 174 Ariz. 184, 185, 847 P.2d 1131, 1132 (App. 1993).

¶14 Even assuming Dunn's testimony together with the IME and other medical reports in the file were sufficient to create a conflict in the evidence as to the necessity of the surgery, the ALJ's finding that Baldwin's testimony was "more probably correct and well-founded" was not "wholly unreasonable." Rosarita Mexican Foods, 199 Ariz. 532, ¶ 10, 19 P.3d at 1251. Baldwin had ordered and performed diagnostic testing prior to the surgery confirming his theory that the SI joint was the source of Luna's pain. And Baldwin testified that although progress from the August 2011 surgery was slow at first, after November 2011 "[i]t was as if [Luna] was transformed. . . . He had felt better than he had ever felt in years. He was walking more." Similarly, Luna testified that at first he was not happy with the outcome of the surgery, but since mid-November he had been doing "[m]uch better"; he was walking, attending physical therapy and doctor's appointments, and "not sleeping at all during the day" as he had been. Thus, while we agree with petitioners that Luna's post-surgical improvement, or lack thereof, is a relevant factor in determining whether the surgery was reasonably required and therefore compensable, see, e.g., Linn Care Ctr. v. Cannon, 704 P.2d 539, 540 (Or. Ct. App. 1985), we disagree there was no evidence of improvement. We also disagree with petitioners' suggestion that "the answer to whether the surgery was reasonably necessary rests on the success of the surgery." An award approving a surgical procedure is not unreasonable "simply because there are no guarantees of success." Johnson-Manley Lumber, 159 Ariz. at 13, 764 P.2d at 748.

¶15 Petitioners nevertheless argue that Baldwin's testimony regarding Luna's successful recovery from surgery had no factual support, pointing to reports prepared at their request by Dr. Randall Prust, a pain management specialist, and Dr. Joel Parker, a psychiatrist, indicating that in the months after the surgery Luna was depressed and despondent and, contrary to the testimony of both Baldwin and Luna, still heavily dependent on narcotic drugs. However, Baldwin admitted in his testimony that Luna was admitted to the hospital for morphine dependence in November 2011 and still was experiencing pain after the surgery. He explained that although he tries to keep track of Luna's medicines, it is very difficult to do so because Baldwin does not manage them. He also explained that it would take "a good six months" after the surgery before the extent of Luna's recovery was known. Thus, Baldwin's testimony was not based on an inaccurate assessment of the facts, and we reject the petitioners' argument that it did not constitute substantial evidence.

¶16 The petitioners next argue the ALJ erred by "refusing to consider medical records" in evidence at the conclusion of the hearings. They maintain medical reports prepared by Prust, Parker, Dunn, and Schumacher were in the file and contradicted Baldwin and Luna, but the ALJ erroneously refused to consider the reports because he believed he could consider only testimony presented at the hearings.

¶17 An ALJ must consider all competent and relevant evidence in establishing an award for workers' compensation benefits. See Slover Masonry, Inc. v. Indus. Comm'n, 158 Ariz. 131, 136, 761 P.2d 1035, 1040 (1988) (ALJ must consider all competent and relevant evidence in establishing an accurate functional impairment rating). The award must be based on "[t]he record as it exists at the conclusion of the hearings." Ariz. Admin. Code R20-5-159(1). If the ALJ's findings indicate he failed to consider all competent, relevant evidence, we must set aside the award. State Comp. Fund v. Indus. Comm'n, 24 Ariz.App. 31, 37, 535 P.2d 623, 629 (1975). However, this court presumes an ALJ considers all the evidence in reaching his decision. Tyree v. Indus. Comm'n, 159 Ariz. 92, 95, 764 P.2d 1151, 1154 (App. 1988).

¶18 Here, we are unpersuaded by the petitioners' argument that the ALJ failed to consider all the evidence. In his decision upon hearing, the ALJ stated he had considered "the file, record and all matters hereunto appertaining," and noted that "[c]ontained in the record are various medical reports, including those of . . . Prust, . . . Schumacher, . . . and Robert Rogers, M.D." The ALJ similarly stated that he had considered the entire record in reaching his decision upon review. We believe the petitioners read too literally the ALJ's statement that he "must base his determinations on the evidence presented at [the] hearing," which in context was simply the ALJ's rejection of petitioners' argument on review.2

¶19 Finally, petitioners argue the ALJ "failed to make a factual finding on the credibility of [Luna]." They argue this failure violated Post v. Industrial Commission, in which our supreme court reiterated that to facilitate appellate review, an ALJ must make findings on all of a case's material issues. 160 Ariz. 4, 7, 770 P.2d 308, 311 (1989).

¶20 In Post, the ALJ was presented with conflicting medical testimony regarding the claimant's work-related injury. 160 Ariz. at 5-6, 770 P.2d at 309-10. The ALJ "made no factual findings of consequence, resolved no conflicts in the evidence, and set forth no conclusions applying law to fact." Id. at 5, 770 P.2d at 309. Our supreme court therefore concluded that the ALJ's decision was deficient because it did not specify the basis for the ultimate disposition and the evidence supporting it. Id. at 7, 770 P.2d at 311. The court further stated that "the judge must resolve all conflicts in the evidence, especially when the conflicts involve expert medical testimony." Id. at 8, 770 P.2d at 312. The court pointed out that this does not mean a "lack of findings on a particular issue . . . invalidate[s] an award per se," id. at 7, 770 P.2d at 311, but if the appellate court must "speculate" about the basis for the award or "assume a factfinder role," then the award must be set aside because it is "so lacking in specificity that we cannot review it," id. at 7, 9, 770 P.2d at 311, 313.

¶21 Here, in his decision, the ALJ recited the relevant evidence, law, and authority upon which he relied, and he made sufficient findings and conclusions to resolve the issues in the case. Although Post requires an ALJ to state findings of fact that support his ultimate conclusion, id. at 7-8, 770 P.2d at 311-12, an ALJ is not required to set forth his reasons for rejecting competing evidence. Nor is an ALJ required to make a specific finding on every issue, as long as he resolves the ultimate issues in the case. See Cavco Indus. v. Indus. Comm'n, 129 Ariz. 429, 435, 631 P.2d 1087, 1093 (1981). The ALJ therefore did not err by failing to make a specific finding as to Luna's credibility.

Disposition

¶22 For the reasons stated above, the award is affirmed.

VIRGINIA C. KELLY, Judge, PHILIP G. ESPINOSA, Judge, concurring.