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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KIMBERLE SPENCER, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

LIFETOUCH NATIONAL SCHOOL, Respondent Employer,

NEW HAMPSHIRE INSURANCE COMPANY C/O CCMSI,

Respondent Carrier.

No. 1 CA-IC 14-0085

Petition for Special Action from the Industrial Commission

ICA Claim No. 20122-910033

Carrier Claim No. 12D28C327130

The Honorable Joseph L. Moore, Administrative Law Judge

AFFIRMED

COUNSEL

Kimberle Spencer, Mesa

Petitioner

Industrial Commission of Arizona, Phoenix

By Andrew F. Wade

Counsel for Respondent ICA
SPENCER v. LIFETOUCH

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Jardin, Baker, Hickman & Houston, P.L.L.C.

By K. Casey Kurth

Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding 

Judge Kenton D. Jones and Judge Samuel A. Thumma joined.

S W A N N, Judge:

¶1 Kimberle Spencer appeals by special action an Industrial 

Commission of Arizona (“ICA”) decision that her industrial injury had 

become medically stationary and was non-permanent and that she was no 

longer entitled to benefits. At issue is whether the Administrative Law 

Judge (“ALJ”) properly resolved the conflict in medical opinions in favor of 

the Independent Medical Examination (“IME”) doctors. The ALJ 

considered evidence from all parties’ experts and concluded that the IME 

opinions were better-founded based on the testimony and evidence in the 

record. We therefore affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 Spencer worked as a production specialist and photographer 

for Lifetouch National School (“Lifetouch”). She had a personal medical 

history of back and spine injuries and surgeries. On October 9, 2012, she 

slipped on nylon bags lying on the floor under her desk, twisting her back 

to keep herself from falling. She did not initially experience much pain but 

by the next day reported severe pain in her lower back, left hip and left 

knee. On October 11, the initial examination concluded that she had lower 

back pain and muscle spasms. The examining doctor prescribed antiinflammatory drugs, gave her work restrictions and recommended icing 

her back. In November, Spencer underwent an IME. The examining doctor 

determined that, though she had a pre-existing back condition, her current 

symptoms were likely related to her accident; he recommended “aggressive 

physical therapy” to treat her. The ICA awarded temporary benefits 

effective October 11, 2012.

¶3 An adjuster recommended her personal physician, Dr. 

Christopher Huston, for follow-up care, and he referred Spencer for several

weeks of physical therapy. During physical therapy in February 2013, 
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Spencer experienced a sharp pain in her neck, which sent her to urgent care 

and eventually the emergency room. She was diagnosed with neck strain, 

but a CT scan and an MRI both showed no abnormal results. Dr. Huston 

then gave Spencer trigger-point injections, which she reported made her 

feel “[t]en times worse.” Dr. Huston believed that her poor response to the

trigger-point injections indicated her current pain was unrelated to her 

industrial accident and released her from care in April 2013.

¶4 In April, Spencer underwent IMEs with Dr. John Beghin, Dr. 

Leo Khan, and Dr. Carol Peairs to determine if she needed to continue 

medical care for her October 2012 industrial injury. Drs. Beghin and Khan 

were of the opinion that Spencer had reached maximum medical 

improvement for her industrial injury and any ongoing symptoms were the 

result of her history of fibromyalgia, anxiety and depression; Dr. Peairs 

agreed that Spencer had reached maximum improvement, and similarly 

noted her history of fibromyalgia. The doctors did not recommend any 

ongoing treatment. The ICA notified Spencer that her temporary 

compensation and active medical treatment terminated as of April 30, 2013.

Spencer requested a hearing on the termination, asserting that her injury 

was not stationary or that if it was stationary, it resulted in permanent 

disability.

¶5 In May 2013, Spencer moved to Ohio to help care for her 

mother. Because she was still experiencing neck, back and knee pain, she

visited Dr. Philip Minella, a board-certified neurosurgeon, who had 

performed her previous back and spine surgeries. He recommended 

surgery for her neck condition, which he then performed in August 2013.

Spencer believed that this surgery was a necessary part of treatment for her 

injury and should have been covered. At her November 2013 hearing on 

benefits termination, she testified that, contrary to the IME opinion, she did 

not believe that fibromyalgia caused her pain; her symptoms were the 

result of the injury. The ALJ scheduled additional hearings for June 2014 to 

allow testimony from Dr. Minella and Dr. Beghin. 

¶6 Dr. Minella testified that he was not in a position to know 

whether Spencer’s condition had become stationary after he last saw her in 

late September 2013. But it was his opinion within a reasonable degree of 

medical probability that “as best I can tell, the combination of the workrelated injury and the injury while she was receiving therapy was the cause 

for her symptoms and the subsequent treatment that she received.” Dr. 

Beghin, a board-certified orthopedic surgeon specializing in spinal surgery, 

testified based on the report he authored with Dr. Khan and the report 

authored by Dr. Peairs, both from April 2013, that Spencer’s pain symptoms 
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were functional and non-organic, consistent with fibromyalgia, anxiety and 

depression, not the industrial injury. His opinion was that the injury was 

medically stationary and not a permanent disability and that she would not 

benefit from any further treatment.

¶7 The ALJ resolved the conflicts in opinion between Dr. Minella 

and Drs. Beghin, Khan and Peairs in favor of Drs. Beghin, Khan and Peairs,

as he believed their opinions were “more well-founded and more probably 

correct” than Dr. Minella’s opinion. The ALJ consequently ruled that 

Spencer’s industrial injury became medically stationary and was not a 

permanent disability as of April 30, 2013, and he awarded her temporary 

compensation and medical benefits from October 9, 2012 to April 30, 2013.

Spencer requested review of the decision, but the ALJ affirmed the award 

decision. Spencer now seeks review.

DISCUSSION

¶8 We defer to the ALJ’s findings of fact, but review questions of 

law de novo. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). 

We must affirm if the decision “is reasonably supported by the evidence 

after viewing the evidence in a light most favorable to sustaining the 

award.” Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002). 

¶9 The petitioner bears the burden of proving that either her 

condition is not stationary or she is permanently disabled as a result of her 

industrial accident. Lawler v. Indus. Comm’n, 24 Ariz. App. 282, 284 (1975).

Back and spine injuries usually require expert medical testimony to show 

the cause and extent of impairment, including whether the injury is 

stationary or permanent. Gutierrez v. Indus. Comm’n, 226 Ariz. 1, 3, ¶ 5

(App. 2010); see also W. Bonded Prods. v. Indus. Comm’n, 132 Ariz. 526, 528 

(App. 1982) (“While there may be . . . injuries that are readily apparent to a 

layman, typical conditions of the back and spine clearly are not.”). 

¶10 In case of conflicting expert testimony, the ALJ resolves the 

conflict. Perry v. Indus. Comm’n, 112 Ariz. 397, 398 (1975); Walters v. Indus.

Comm’n, 134 Ariz. 597, 599 (App. 1982) (“[T]he trier of fact, with live bodies 

before it, is in the most advantageous position to weigh the evidence, judge 

credibility, and evaluate the nuances of witness demeanor that adds up to 

a conviction that one witness’ testimony is entitled to more weight than 

another.”). To resolve conflicting evidence, the ALJ may consider the 

background and experience of the witnesses, Carousel Snack Bar v. Indus.

Comm’n, 156 Ariz. 43, 46 (1988), as well as biases which might affect their

credibility, see Walters, 134 Ariz. at 599.
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¶11 Dr. Minella testified that it was his opinion, to a reasonable 

degree of medical probability, that the industrial injury and the resulting 

physical therapy injury were the cause of Spencer’s ongoing symptoms. Dr. 

Minella relied on his own examination and, in part, Spencer’s report of the 

accident in forming his opinion. Though he later stated his opinion more 

emphatically, he initially hedged on the connection between Spencer’s 

accident and her symptoms by prefacing his opinion with “as best I can 

tell.” He further testified that he was not able to give an opinion on whether 

her condition had become medically stationary.

¶12 In contrast, Dr. Beghin testified that, to a reasonable degree of 

medical certainty, Spencer’s injury was stationary and without permanent 

impairment as of April 2013. His testimony was based on his review of 

Spencer’s entire file, his own examination, his report with Dr. Khan, and

Dr. Peairs’s report.

¶13 The ALJ resolved the conflict of opinions, and concluded on 

the basis of their testimony and the record that Spencer’s injuries were 

causally related to her industrial injury, but those injuries had become 

medically stationary as of April 30, 2013 and did not cause permanent 

impairment. This conclusion was reasonable based on the evidence in the 

record. Accordingly, Spencer has not shown the ALJ erred.

CONCLUSION

¶14 For the foregoing reasons, the award is affirmed.