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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HARVEST MADISON MEADOWS, Petitioner Employer, 

LIBERTY MUTUAL FIRE INSURANCE COMPANY, Petitioner Insurance

Carrier

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, 

BENJAMIN TAFT, Respondent Employee. 

 No. 1 CA-IC 19-0023 

Special Action - Industrial Commission

ICA Claim No. 20170-650216 

Carrier Claim No. WC608-C88253 

The Honorable Michelle Bodi, Administrative Law Judge

AFFIRMED

COUNSEL

Lundmark, Barberich, La Mont & Slavin P.C., Phoenix

By Lisa M. LaMont, Danielle S. Vukonich

Petitioner Employer 

Industrial Commission of Arizona, Phoenix

By Gaetano J. Testini

Counsel for Respondent

FILED 2-13-2020 
2 

Taylor & Associates, P.L.L.C., Phoenix

By Chris Gulinson

Counsel for Respondent Employee 

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in 

which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani

joined.

M c M U R D I E, Judge:

¶1 Petitioners Harvest Madison Meadows (“Harvest”) and 

Liberty Mutual Fire Insurance Company (“Liberty Mutual”) seek review of 

an Industrial Commission of Arizona (“ICA”) Award finding that 

Respondent Benjamin Taft’s 2017 lower-back injury was not medically 

stationary. Petitioners argue that the Administrative Law Judge (“ALJ”) 

should not have relied on Taft’s medical expert witness because his opinion

lacked foundation. Petitioners also argue that Taft failed to prove a 

necessary element of his claim—an organic change in his underlying back 

condition. Because we do not find support for Petitioners’ arguments in 

either the factual record or caselaw, we affirm the award. 

FACTS AND PROCEDURAL BACKGROUND

¶2 At the time of injury, Taft worked as an executive chef for 

Harvest. In 2015, while working for a prior employer, Taft injured his lower 

back at work. This industrial injury resulted in a 7% permanent impairment 

of Taft’s lower back. That claim was closed in 2016 after a finding that the 

injury had become medically stationary, but Taft continued to suffer from 

lower-back and right-leg pain of varying intensities.

¶3 On January 16, 2017, while moving heavy items in a walk-in 

freezer for Harvest, Taft’s back froze up, and he could not move without 

pain. Others had to help him out of the freezer to a place where he could 

rest and recover. He sought medical treatment and filed a claim for benefits. 

He received epidural steroid injections in his back, physical therapy, and 

medications. These treatments helped, but he was not able to get back to 

the condition he was in before the 2017 accident. 
HARVEST MADISON/LIBERTY v. TAFT

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¶4 In February 2018, Harvest and workers’ compensation 

insurance carrier Liberty Mutual issued a Notice of Claim Status accepting 

Taft’s claim and closing it as of February 15, 2018, without permanent 

impairment. The Notice of Claim Status was based on an Independent 

Medical Examination (“IME”) that found Taft’s back condition to be 

medically stationary. Taft challenged that finding by requesting a hearing.

¶5 The ALJ heard testimony from Taft, a supervisor, and two 

medical experts. In his testimony, Taft described his back condition before 

the 2017 incident. He stated that his back was “holding up” from the 2015 

injury, meaning that he was managing the back pain by trading shifts when 

needed and staying off his feet as much as he could by doing paperwork 

and other non-physical tasks as much as possible. He testified that on 

January 16, 2017, he was loading heavy items onto shelves in the freezer

when his back gave out. He testified that after the incident, he has not been 

able to get back to where he was before it happened. He returned to

working as a sous chef. He puts ice on his back “two or three times a day”

and uses medical marijuana to help with the pain. The ALJ also heard 

testimony from Taft’s current supervisor, Chris Falconer, a person that Taft 

had worked for before the 2017 incident. Falconer testified that Taft is a 

hard worker but is more limited by his back condition now than he was 

before the 2017 injury. 

¶6 As noted, two medical experts testified, one called by Taft and 

the other by Harvest and Liberty Mutual. Taft’s expert, Dr. Daniel 

Lieberman, a neurosurgeon, testified that he performed a telephonic 

interview with Taft and reviewed medical records to give his opinion. He 

testified that Taft’s description of how the injury occurred and Taft’s 

reaction were typical of a further injury at the same place as the prior injury.

He also found it significant that Taft had not returned to the condition he 

was in before the 2017 injury. He recommended additional active medical 

care, including further diagnostic treatments, steroid injections, and a 

possible surgical procedure. 

¶7 Harvest’s expert, Dr. Terry McLean, an orthopedic spine 

surgeon, testified that he performed an IME on Taft in August 2018, which 

included reviewing medical records. He opined that the 2017 injury caused 

a lumbar strain and temporary worsening of the pre-existing injury but was 

medically stationary as of the IME with no need for further treatment, 

maintenance, or work restrictions, and no greater permanent impairment

of the lower back.
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¶8 The ALJ determined that Dr. Lieberman’s testimony was 

more probably correct and well-founded, and issued an award accordingly. 

She concluded that Taft was not medically stationary and awarded 

continuing active medical and disability benefits. Harvest and Liberty 

Mutual requested an administrative review, arguing that Dr. Lieberman’s 

medical opinion was flawed because he did not physically examine Taft, 

relied on Taft’s credibility in describing his symptoms, and did not review 

both pre-injury and post-injury MRIs. Petitioners also argued that a 

pre-existing condition becomes the responsibility of an employer only if

work activity causes an organic change in the underlying condition. The 

ALJ reviewed the evidence, and summarily affirmed her decision.

¶9 Petitioners then sought review. We have the authority to 

review an award of the ICA under Arizona Revised Statutes (“A.R.S.”) 

sections 12-120.21(B) and 23-951 and Rule 10 of the Arizona Rules of 

Procedure for Special Actions. 

DISCUSSION

¶10 In reviewing a workers’ compensation award, 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). The burden is on the injured

employee to establish each element of a claim. Yates v. Indus. Comm’n, 116 

Ariz. 125, 127 (App. 1977). When an injury would not be apparent to a

layperson, expert medical testimony is required to establish “not only the

causal connection between a claimant’s medical condition and the

industrial accident, but also the existence and extent of any permanent

impairment.” Gutierrez v. Indus. Comm’n, 226 Ariz. 1, 3, ¶ 5 (App. 2010), aff’d

in part, 226 Ariz. 395 (2011). When a conflict in medical expert testimony

arises, it is the responsibility of the ALJ to resolve it, and we will not disturb

that resolution unless it is “wholly unreasonable.” Stainless Specialty Mfg. 

Co. v. Indus. Comm’n, 144 Ariz. 12, 19 (1985). Viewing the evidence in the

light most favorable to sustaining an award, we will affirm the ALJ’s

decision unless there is no reasonable basis for it. Lovitch v. Indus. Comm’n, 

202 Ariz. 102, 105, ¶ 16 (App. 2002). 

¶11 Petitioners first argue that because Dr. Lieberman’s opinion

lacked foundation, it was error for the ALJ to rely on it. Contrary to 

Petitioners’ assertion, the record provides ample foundation. Dr. 

Lieberman reviewed medical records of treatment Taft received after the 

2017 injury. He considered an MRI from May 2017. He also took a medical 

history from Taft and interviewed him. Based on that evidence, he made 

his diagnosis and recommended active treatment. Petitioners’ criticisms of 
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Dr. Lieberman’s opinion because he did not perform a physical 

examination or compare the 2015 MRI with the 2017 MRI goes to the weight 

of Dr. Lieberman’s opinion. Petitioners had the opportunity to argue to the 

ALJ why their expert’s opinion was more credible. We will not re-weigh the 

evidence. Jaramillo v. Indus. Comm’n, 203 Ariz. 594, 596, ¶ 6 (App. 2002)

(“[W]e view factual determinations in the light most favorable to affirming 

the award. . . . [and do] not [re]weigh the evidence . . . .”). The record 

contains evidence to support the ALJ’s conclusion that Dr. Lieberman’s 

medical opinion was more probably correct and consistent with the 

evidence. 

¶12 Petitioner’s second argument is that a pre-existing condition 

becomes the responsibility of an employer only if the work activity causes 

an organic change in the underlying condition. A review of the caselaw 

cited by Petitioners is instructive and does not support their assertion. In 

Caganich v. Industrial Commission, 108 Ariz. 580 (1972), an injured worker

had a previous arm injury from 1958 when, in 1968, he was lifting a heavy 

object and injured his arm again. The “unequivocal” medical testimony was 

that the new event produced “a mere extension of the old injury.” Id. at 581. 

The Arizona Supreme Court had to determine whether the 1968 event was 

an “exacerbation” of the prior injury or a new injury. The court found that 

it was a new injury because the new incident involved an accident in which 

“a sudden change in [the worker’s] arm” occurred as a result of his attempt

to lift the object. Id. The court distinguished between medical causation and 

legal causation, noting that in workers’ compensation law the employer 

takes the employee as is. Id. at 582. The court concluded: “In legal 

contemplation, if an injury, operating on an existing bodily condition or 

predisposition, produces a further injurious result, that result is caused by 

the injury.” Id. (quoting Murray v. Indus. Comm’n, 87 Ariz. 190, 195 (1960)). 

Thus, if the second event produces an injury arising by accident out of and 

in the course of employment, it is a covered injury. See A.R.S. § 23-1021 

(“[e]very employee . . . who is injured . . . by accident arising out of and in 

the course of his employment” is entitled to workers’ compensation

benefits). 

¶13 The question in some instances, however, is whether the 

second event produced a new injury or was merely a manifestation of 

symptoms from the prior injury. This question was addressed in New Pueblo 

Constructors v. Industrial Commission, 115 Ariz. 236 (App. 1977). There, a 

construction worker hurt his lower back twice, first in September 1974 after 

loading items onto a truck when he felt a “stiffness” in his back, and then 

in the following month when, after assisting in the lifting and moving of a 

beam, he could not straighten up. Id. at 236–37. The ICA found that the first 
HARVEST MADISON/LIBERTY v. TAFT

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injury was not compensable but that the second injury was compensable 

because his work activity aggravated a pre-existing back condition and 

resulted in a herniated disc. Id. at 237. Three medical experts testified. One 

could not give an opinion on causation, and another was not sure which of 

the two events produced the injury. Id. at 237–38. The third medical expert 

testified that the first incident, a non-industrial injury, caused a disc 

extrusion and the second incident merely involved bodily movement by the 

worker that manifested symptoms of pain related to that earlier injury. Id.

at 238. Therefore, the evidence did not support a conclusion that there was 

an injury produced by the second event.

¶14 The final case presented to us by Petitioners on this issue is 

this court’s decision in Industrial Indemnity Co. v Industrial Commission, 152 

Ariz. 195 (App. 1986). In that case, the court addressed the question of 

“whether there is a new injury if the sole effect of recent work activity is to 

exacerbate the symptoms of an already symptomatic back condition, but 

where this exacerbation requires new medical treatment and causes 

increased disability.” Id. at 196. Under the facts in that case, the worsening 

was a new injury. Id. The facts involved a carpet-layer who hurt his back in 

1975 under the responsibility of one carrier and then again in 1984 under a 

different carrier. The first carrier urged this court to apply the “successive 

injury doctrine,” which is “a rule of liability preference: as between two or 

more potentially liable parties, the last in the chain is liable for the whole 

injury.” Pearce Dev. v. Indus. Comm’n, 147 Ariz. 598, 602 (App. 1985), opinion 

adopted in part, vacated in part, 147 Ariz. 582 (1985) (successive injury 

doctrine adopted). Concerning the issue of whether the exacerbation of 

symptoms constituted a new injury, we agreed with the first carrier that “if 

recent work activity causes the need for new medical treatment or increased

disability, there is a new injury.” Indus. Indem. Co., 152 Ariz. at 198–99. We 

explicitly found that neither a specific incident nor an organic change was 

required to show a new injury, although showing either one would be 

sufficient. Id. at 199. We stated that a gradual injury could be a compensable

injury and, even without an organic change, a worsening of symptoms can 

be a compensable consequence of recent work activity. Id. We applied the 

successive injury doctrine, thereby making the second carrier responsible

because we found that the injured worker had increased disability after the 

second event. Id. at 200. No organic change was required.

¶15 Applying these principles to the facts before us, we conclude 

that Dr. Lieberman’s medical opinion supports the ALJ’s finding of an 

injury for which medical care is correctly placed on Petitioners. 
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7 

CONCLUSION

¶16 The award is affirmed.