 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Brown v. Industrial Commission of Arizona2/27/2001
AWARD SET ASIDE
In this statutory special action, petitioner /employee Dennis Brown contends that the administrative law judge's (ALJ) award eliminating a previously awarded medication, Zocor, from Brown's supportive care benefits violates preclusion or estoppel principles or was unsupported by the evidence. Because we agree that the issue previously had been determined in Brown's favor and the respondents did not prove any material changes in Brown's medical condition, we set aside the award.
BACKGROUND
In 1993, Brown suffered a myocardial infarction (heart attack) while working for respondent/ employer Michael Nicholas, Inc. After a hearing on the compensability of the injury, an ALJ determined that Brown's injury was compensable because his employment was a "substan al contributing cause" of his heart attack. The ALJ entered an award for medical and temporary disability compensation.
In 1995, respondent insurer terminated Brown's temporary disability benefits, asserting the injury was stable and had resulted in some permanent disability. Brown requested a hearing to determine his permanent disability benefits and supportive care benefits. At the hearing, the primary issue regarding supportive care benefits was whether Brown was entitled to medication to prevent or r educe the continuing symptoms of his heart attack. Specifically, Brown sought prescription medication to treat his angina pectoris (chest pain) and his elevated low density lipoprotein (LDL) cholesterol.
The insurer's expert, Dr. Phibbs, testified that Brown's underlying condition, atherosclerosis, had caused his heart attack and his subsequent chest pain. He explained that a heart attack damages or destroys heart muscle and that the residual effects of a heart attack depend on the amount of heart muscle that has "died. " Dr. Phibbs testified that, if the amount of dead muscle is small, as in Brown's case, " there is no significant effect on the pumping action of the heart. " And, therefore, Brown did not need medication to treat his heart attack.
Dr. Phibbs also opined that the 1993 heart attack had not caused Brown's subsequent chest pain, but stated that Brown should receive pharmaceutical treatment for his underlying atherosclerosis, identifying beta blockers, aspirin, cholesterol-controlling medicine, and nitroglycerin as appropriate medications. In contrast, Brown's expert testified that Brown's chest pain was causally related to his heart attack and he needed calcium channel blockers and cholesterol-controlling medications because of the heart attack.
The ALJ resolved the conflict in medical testimony by adopting Dr. Phibbs's opinions, but nonetheless awarded Brown supportive care benefits that included " medications as recommended by Dr. Phibbs." T he ALJ did not explicitly state that the medications were required to treat Brown's heart attack. Neither Brown nor the insurer requested review, and the award became final.
For almost three years, the insurer provided Brown with supportive care benefits that included the prescription medications Zocor, for cholesterol contr ol, and Cardizem, a calcium channel blocker. The insurer then ar ranged for an independent medical examination of Brown, which was conducted on May 11, 1999, by Dr. Fenster, who also reported that Z ocor was not needed to treat the industrially related heart attack. The insurer thus terminated Brown's supportive care benefits, and Brown requested a hearing.
At the hearing, which was held before a different ALJ, both parties presented expert testimony. Brown's expert again testified that the medications were necessitated, at least in
Page 1 2 3 4 Arizona Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|