NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

CURT HEMMING, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

MCCARTHY BUILDING COMPANIES, Respondent Employer,

ARCH INSURANCE CO/GALLAGHER BASSETT INS SVC, Respondent 

Carrier.

No. 1 CA-IC 15-0042

Special Action - Industrial Commission

ICA Claim No. 20141-260537

Carrier Claim No. 002125-001398-WC-01

Rachel C. Morgan, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Curt Hemming, Scottsdale

Petitioner

The Industrial Commission of Arizona, Phoenix

By Andrew F. Wade

Counsel for Respondent
2

Jardine Baker Hickman & Houston PLLC, Phoenix

By Stephen C. Baker

Counsel for Respondents Employer and Carrier

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Peter B. Swann and Judge Lawrence F. Winthrop joined.

K E S S L E R, Judge:

¶1 This is a special action review of an Industrial Commission of 

Arizona (“ICA”) award and decision upon review for temporary total 

and/or temporary partial disability benefits. We construe Petitioner 

employee’s (“Hemming”) opening brief as contending that the 

administrative law judge (“ALJ”) erred in resolving the conflict between 

two medical experts to conclude that Hemming was not entitled to 

continuing medical and disability benefits after May 19, 2014. Because we 

find the ALJ’s award is supported by reasonable and substantial evidence, 

we affirm.

JURISDICTION AND STANDARD OF REVIEW

¶2 This Court has jurisdiction pursuant to Arizona Revised 

Statutes (“A.R.S.”) sections 12-120.21(A)(2) (2016), 23-951(A) (2016), and 

Arizona Rules of Procedure for Special Actions 10.1 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

(App. 2003). 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 (App. 2002). We will affirm the ALJ’s award as long as it is supported 

by reasonable and substantial evidence. See Hopper v. Indus. Comm’n, 27 

Ariz. App. 732, 735 (App. 1976). 

FACTUAL AND PROCEDURAL HISTORY

¶3 Hemming injured his back while working for McCarthy 

Building Companies (“Respondent”) on February 27, 2014. After his injury, 

 

1 We cite to the current version of the relevant statutes unless revisions

material to this decision have occurred.
HEMMING v. MCCARTHY/ARCH

Decision of the Court

3

Hemming continued to work regular duty until approximately May 9, 2014,

when he was laid off. 

¶4 Shortly after the layoff, Hemming filed a claim for benefits.

Respondent’s insurance carrier issued a notice accepting the claim but

terminating benefits effective May 19, 2014, without permanent 

impairment. Hemming filed a Request for Hearing before the ICA,

protesting the notice issued by Respondents. The ALJ scheduled hearings,

which included testimony from Hemming, lay witnesses Steven 

Hollenbach and Craig Olson, and medical experts Marc Letellier, M.D. 

(“Dr. Letellier”) and Dennis Crandall, M.D. (“Dr. Crandall”). 

¶5 Dr. Crandall testified that he performed an independent 

medical evaluation (“IME”) of Hemming on May 19, 2014. In addition to 

the findings of his own physical examination, Dr. Crandall reviewed 

Hemming’s medical records, including those from Hemming’s primary 

care physician, Dr. Grace Haynes (“Dr. Haynes”). Informed by his review 

of Hemming’s medical records, Dr. Crandall testified that Hemming had 

back complaints and the need for medication for his back that pre-existed 

the fall of February 27, 2014. Dr. Crandall also found Hemming’s complaint 

of sacrum to coccyx pain consistent with the records of Hemming’s primary 

care physician extending back to December 2013. Hemming’s December 

2013 medical records also reported Hemming having back and tailbone 

pain with Hemming’s lumbar spine showing degenerative change, 

degenerative scoliosis, and several levels of arthritis. Dr. Crandall

concluded that the most appropriate diagnosis was that Hemming suffered 

a “lumbar strain” and that Hemming’s condition was stationary effective 

May 19, 2014, and without any ratable permanent impairment.

2

¶6 Dr. Letellier testified that he saw Hemming for a surgical 

consultation on June 11, 2014, and, to a reasonable degree of medical 

probability, diagnosed Hemming with degenerative disc disease and a 

small annular tear. Dr. Letellier rendered his diagnosis in reliance on 

Hemming’s representation that he had no prior back problems before his 

industrial incident. He did not review Dr. Crandall’s report or the 

 

2 At the ICA hearing, Dr. Crandall stated that he made his conclusion 

because he believed it to be consistent with the sixth edition of the American 

Medical Association’s Guidelines for the Evaluation of Permanent 

Impairment, which, according to him, does not attribute a ratable 

impairment secondary to a lumbar strain. Thus, he determined that

Hemming’s lumbar strain required no supportive care.
HEMMING v. MCCARTHY/ARCH

Decision of the Court

4

December 2013 medical treatment history or report by Dr. Haynes. In 

arriving at his medical conclusion, Dr. Letellier assumed that the annular

tear resulted from the industrial incident.3 Dr. Letellier, therefore, made his 

diagnosis based only upon his own examinations and Hemming’s 

representations, but without knowledge of Hemming’s pre-existing back 

pain complaints or medical treatment prior to the industrial fall.4 He 

recommended that Hemming continue his work on light duty and be 

treated with epidural steroid injections and/or facet injections.

¶7 In the award, the ALJ found a conflict in the medical evidence 

and adopted Dr. Crandall’s medical conclusion that Hemming became 

medically stationary without permanent impairment and without the need 

for supportive care or work restrictions effective May 19, 2014. The ALJ 

thus agreed with Dr. Crandall that Hemming’s industrial incident caused 

only a temporary aggravation of Hemming’s pre-existing back condition,

which was sufficiently treated as of May 19, 2014. The ALJ accordingly 

issued awards for medical, surgical, and hospital benefits as well as for 

temporary total and/or temporary partial disability benefits from February 

27, 2014, through May 19, 2014. 

¶8 Hemming filed a Request for Review. The ALJ issued a 

Decision Upon Review Affirming Decision upon Hearing and Findings and 

 

3 When asked about his diagnosis, Dr. Letellier testified as follows: 

“[T]o me most of this would have been pre-existing except for maybe 

the annular disruption, the annular tear . . . I don’t think that you can 

say 100 percent that this is all preexisting just because of the annular 

tear, but I don’t know if the annular tear is necessarily the cause of 

this patient’s discomfort or clinical situation. . . . I always go on the 

history that the patient presents to us, and in this case he had no 

problems prior [to the accident,] so I’m going to say that no matter 

what if the preexisting condition that we see on the MRI is chronic 

or degenerative, and nobody will say that this is acute, the history 

seems to indicate that the patient’s problem is due to the accident.”

4 When Respondent’s counsel disclosed to Dr. Letellier the medical 

information in Dr. Haynes’s December 2013 report, Dr. Letellier expressed 

that he would not have changed his medical conclusions if he had reviewed 

the report prior to his diagnosis because Hemming’s main complaint at the 

time of Dr. Haynes’s report was his prostate check, which, unlike the injury 

from the industrial incident, did not stop Hemming from working.
HEMMING v. MCCARTHY/ARCH

Decision of the Court

5

Award (Temporary Benefits) affirming her prior decision. Hemming 

subsequently and timely filed this special action. He now seeks disability 

benefits, at his average monthly wage of $3,250.86, extending from May 20, 

2014, through the date of appeal. 

DISCUSSION

¶9 Hemming argues that the ALJ’s award should be reversed,

because it is legally improper and one-sided as the ALJ erred in adopting

the opinion of one medical expert over another in support of that award. 

Hemming thus argues that rather than the ALJ’s award for temporary 

medical care and an amount in earnings for the period of February 27, 2014,

through May 19, 2014, he is entitled to full earnings compensation from 

May 20, 2014, through the date of appeal.

5

¶10 Typically, back and spine injuries require expert medical 

testimony to demonstrate the causal connection between the claimant’s

medical condition and the industrial incident. W. Bonded Prod. v. Indus. 

Comm’n, 132 Ariz. 526, 527-28 (App. 1982). When expert medical evidence 

conflicts, it is the ALJ’s duty to resolve the conflicts. Perry v. Indus. Comm’n, 

112 Ariz. 397, 398 (1975); Masters v. Indus. Comm’n, 15 Ariz. App. 512, 514

(App. 1971). 

¶11 An ALJ can adopt one physician’s opinion over another when 

the latter opinion is grounded on insufficient information. This Court has 

recognized that “medical testimony can be so weakened by proof of 

inaccurate factual background that the testimony cannot be said to 

constitute ‘substantial evidence.’ ” See Desert Insul. v. Indus. Comm’n, 134 

Ariz. 148, 151 (App. 1982). While not every factual inaccuracy will 

 

5 Respondents argue that Hemming’s opening brief fails to clearly identify 

or discuss any specific legal grounds or arguments for vacating the ALJ’s 

decision and fails to include citations to the record. This lack of reference 

to legal authority and failure to cite the record could be considered

abandonment and waiver of his claim. See ARCAP 13(a)(7)(A) (requiring 

appellant’s brief to contain arguments that include “citations of legal 

authorities and appropriate references to the portions of the record on 

which the appellant relies.”); State v. Carver, 160 Ariz. 167, 175 (1989) 

(“Failure to argue a claim usually constitutes abandonment and waiver of 

that claim.”). However, in our discretion, we decide this appeal on its 

merits based on our own review of the record. See Adams v. Valley Nat’l 

Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (recognizing that courts prefer 

to decide each case upon its merits rather than dismissing on procedural 

grounds).
HEMMING v. MCCARTHY/ARCH

Decision of the Court

6

undermine a doctor’s opinion and warrant its disregard, the doctor’s 

opinion is compromised where the factual inaccuracy is material or 

significant to the doctor’s medical opinion—such as in the subject case. See 

Fry’s Food Stores v. Indus. Comm’n, 161 Ariz. 119, 122 (1989).

¶12 As noted above, Dr. Crandall’s medical testimony concluded 

that Hemming’s condition, with regard to his industrial injury, became 

medically stationary without permanent impairment and without the need 

of supportive care or work restrictions as of May 19, 2014. As described 

above, we see substantial evidence supporting Dr. Crandall’s medical 

testimony and factual conclusions. 

¶13 In contrast, Dr. Letellier’s medical testimony is undermined 

by the inaccurate and insufficient information on which it is based. Thus, 

the ALJ was entitled to give greater weight to Dr. Crandall’s medical 

testimony. Furthermore, because it is the duty of the ALJ to resolve 

conflicts in evidence, we defer to the ALJ’s factual findings if they are 

substantiated by competent evidence. Preuss v. Indus. Comm’n, 15 Ariz.

App. 515, 516-17 (App. 1971). Because the ALJ is free to adopt opinions that 

have a reasonable basis, Rent A Ctr. v. Indus. Comm’n, 191 Ariz. 406, 408, ¶ 

6 (App. 1988), we find no error with the ALJ’s adoption of Dr. Crandall’s 

opinions over those of Dr. Letellier. 

¶14 Hemming had the burden to prove that his physical condition 

was causally related to his industrial injury and that he was not yet 

medically stationary. See, e.g., Lawler v. Indus. Comm’n, 24 Ariz. App. 282, 

284 (App. 1975). Substantial evidence supports the ALJ’s conclusion that 

Hemming failed to prove that any persisting back problem is causally 

related to his industrial injury of February 27, 2014. In deferring to the ALJ’s 

factual findings, we hold the ALJ did not err in concluding that Hemming 

was not entitled to continuing medical benefits after May 19, 2014.

CONCLUSION

¶15 Because the evidence in the record supports the ALJ’s award 

and decision upon review, we affirm.