highway/arch v. Quiroz ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
HIGHWAY TECHNOLOGY, Petitioner Employer,
ARCH INSURANCE CO C/O GALLAGHER BASSETT INSURANCE,
Petitioner Carrier,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
VINCENT QUIROZ, Respondent Employee.
No. 1 CA-IC 14-0020
FILED 1-13-2015
Special Action - Industrial Commission
ICA Claim No. 20080-560262
Allen B. Shayo, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By Scott H. Houston, Rae Richardson
Counsel for Petitioners Employer and Carrier
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Robert J. Hommel, P.C., Scottsdale
By Robert J. Hommel
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.
P O R T L E Y, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review granting the petitioner
carrier’s, Arch Insurance Company’s (“Arch’s”), motion to dismiss the
October 23, 2012 petition to reopen filed by respondent employee, Vincent
Quiroz. Arch presents two issues on appeal:
(1) whether the administrative law judge
(“ALJ”) abused his discretion by vacating his
January 23, 2014 award on administrative
review; and
(2) whether the ALJ’s dismissal of Quiroz’s
October 23, 2012 petition to reopen established
the comparative date for his September 6, 2013
petition to reopen.
Because we hold that the ALJ did not abuse his discretion on administrative
review and the question of comparative dates is premature, we affirm the
award.
JURISDICTION AND STANDARD OF REVIEW
¶2 This court has jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(2) (2003), 23-951(A), and Arizona
Rule 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,
1 We cite to the current version of statutes and rules unless otherwise
indicated.
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63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most
favorable to upholding the ALJ’s award. Lovitch v. Indus. Comm’n, 202 Ariz.
102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).
PROCEDURAL AND FACTUAL HISTORY
¶3 Quiroz was injured on February 13, 2008, when he was struck
by a car while performing his work as a highway barricade supervisor for
the petitioner employer, Highway Technology. He sustained a severe
traumatic brain injury and orthopedic injuries. He filed a workers’
compensation claim, which was accepted for benefits and eventually closed
with an unscheduled ten percent permanent partial impairment of the
whole person. At closure, Quiroz was found to have no loss of earning
capacity, because he had returned to work at Highway Technology and was
earning the same wage albeit for a different job.
¶4 Several years later, Quiroz filed a petition to reopen his claim.
He attached a prescription slip signed by a nurse practitioner which stated:
“Established care 8/27/12, unable to work or lift due to severe deg. disc
disease from MVA 2/13/2008. He also has an upcoming surgical
procedure.” His petition was denied for benefits, and he timely requested
an ICA hearing. Quiroz also filed a new injury claim for a gradual back
injury, which was denied for benefits. He retained counsel and timely
protested this denial. He requested a hearing and consolidation with the
hearing request on his petition to reopen. The ALJ issued a consolidated
notice of hearing.
¶5 Five ICA hearings were held for testimony from Quiroz and
four physicians. At the conclusion of the final hearing, Arch moved to
dismiss Quiroz’s petition to reopen:
MR. HOUSTON: Well, I think at this point in
time I think the Petition to Reopen the 2008
claim is actually subject to a Blickenstaff2 motion
because I don’t think he has presented any
evidence that his lumbar problems were caused
or contributed to by that [2/13/08] accident,
and that’s what he’s pursuing the Petition to
Reopen for is his lumbar complaints.
2See Blickenstaff v. Industrial Commission, 116 Ariz. 335, 569 P.2d 277 (App.
1977).
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JUDGE SHAYO: I’ll let you respond to that.
MR. HOMMEL: I agree with him. I think all
we’ve got in this case is a new injury. Now,
what the scope of that injury is may not be
resolved, but even Dr. Pitt says that there’s at
least a lumbar sprain/strain there. And he says
it could be an ongoing aggravation of his
arthropathy. No one has really evaluated that
question. I think that claim needs to be found
compensable and he needs to get that issue
evaluated.
JUDGE SHAYO: So, are you in a very lawyerly
way conceding that with respect to the Petition
to Reopen on the 2008 claim that there is
insufficient evidence to warrant a reopening on
that claim?
MR. HOMMEL: No, not even as the lawyer,
yeah.
MR. HOUSTON: If that’s the case, Judge, I’m
going to ask but for the purposes of you issuing
an award that you sever the two and
deconsolidate them just in case there’s some
appellate issue that arises on the 2002 claim . . . .
* * * *
JUDGE SHAYO: . . . And hearing no objection,
Mr. Houston, we’ll proceed on that basis and I
guess issue two awards.
¶6 Following the final hearing, the ALJ wrote to Quiroz’s
attorney to confirm “that you have agreed that there is insufficient evidence
to justify a reopening. . .” and “you have agreed to ‘deconsolidate’ this
matter from the compensability issue for the 7/10/12 date of injury
[gradual back injury claim].” The ALJ then authored a memo to the file
confirming the deconsolidation and entered an award dismissing Quiroz’s
hearing request on the petition to reopen.
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¶7 In response, Quiroz filed a motion to continue the hearings
for additional evidence regarding his deteriorating industrially-related
brain injuries.3 He explained that “[t]here is an argument, that should a
decision issue on the back injury, that award becomes the comparison date
for the brain injury.” He also filed a separate request for administrative
review. The ALJ vacated his award, and instead, he entered an award
granting Arch’s Blickenstaff motion to dismiss the petition to reopen for a
back injury. Arch next brought this appeal.
DISCUSSION
¶8 Arch first argues that the ALJ should have affirmed his initial
award that dismissed Quiroz’s hearing request for failure to meet his
burden of proof for reopening under A.R.S. § 23-1061(H). On
administrative review, an ALJ has very broad discretion to revise the
award, and he “may affirm, reverse, rescind, modify or supplement the
award and make such disposition of the case as is determined to be
appropriate.” A.R.S. § 23-943(F). In the absence of a clear abuse of
discretion, this court will not set aside an award by reason of the ALJ’s
decision in a request for review. Howard P. Foley Co. v. Indus. Comm’n, 120
Ariz. 325, 327, 585 P.2d 1237, 1239 (App. 1978).
¶9 At the close of the ICA hearings, Arch moved to dismiss
Quiroz’s October 23, 2012 petition to reopen for a new back injury. Arch
based its motion on Blickenstaff, when this court held that a petition to
reopen must be accompanied by a medical report that “must contain
sufficient medical facts which, if true, would constitute a prima facie
showing of entitlement to relief.” 116 Ariz. at 339, 569 P.2d at 281.
¶10 In this case, the ALJ narrowed his initial Award on
administrative review. Instead of dismissing Quiroz’s hearing request, he
granted Arch’s Blickenstaff motion to dismiss the petition to reopen. We
find no abuse of discretion in granting Arch the relief it requested.
¶11 Arch next argues that the ALJ’s dismissal of Quiroz’s October
23, 2012 petition to reopen should establish the comparative date for the
3 During the hearings on the initial petition to reopen his claim for a new
back injury, Quiroz filed a second petition to reopen his claim for worsening
brain injuries and attached recent neurological and neuropsychological
reports and test results.
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claimant’s September 6, 2013 petition to reopen for deteriorating brain
injuries. In his opening brief, Arch contends:
By dismissing the Petition to Reopen rather than
dismissing the request for hearing . . . the
Administrative Law Judge left it open for
Quiroz [claimant] to argue that the date of
comparison for Quiroz’s brain injury should be
September 10, 2009, the date the original claim
was closed as opposed to January 23, 2014, the
date Quiroz’s request for hearing on his Petition
to Reopen No. 1 was dismissed by the
Administrative Law Judge.
¶12 In order to reopen a workers’ compensation claim, the
claimant must establish the existence of a new, additional, or previously
undiscovered condition, and a causal relationship between that condition
and the prior industrial injury. See A.R.S. § 23-1061(H); e.g., Pascucci v.
Indus. Comm’n, 126 Ariz. 442, 444, 616 P.2d 902, 904 (App. 1980). It is
necessary to establish comparative dates in order to determine whether
there has been the statutorily required change in condition:
In cases involving a first petition to reopen, the
comparison points for establishing the
necessary change of condition are the date the
claim was closed and the date the petition to
reopen was filed. . . . In cases like the present
one, in which a petition to reopen is preceded
by an unprotested denial of a prior petition to
reopen, the comparison points are the date the
Notice of Claim Status denying the prior
petition was issued and the date the subsequent
petition to reopen was filed.
Cornelson v. Indus. Comm’n, 199 Ariz. 269, 271, 17 P.3d 114, 116 (App. 2001)
(emphasis in original) (citations omitted).
¶13 In this case, Quiroz argues that these rules for establishing
comparative dates do not apply because his two petitions to reopen are
directed to differing physical conditions. He cites no case law to support
this proposition nor are we aware of any. We also recognize the ALJ did
not address this issue in his award or decision upon review.
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¶14 Workers’ compensation claims are administered sequentially
through a progression of separate claim stages. See, e.g., Hardware Mutual
Casualty Co. v. Indus. Comm’n, 17 Ariz. App. 7, 9, 494 P.2d 1353, 1355 (1972).
At each stage, a notice of claim status is issued and will become final unless
it is timely protested. See A.R.S. § 23-947(A). A timely hearing request
opens all issues addressed by the notice of claim status for consideration at
hearing. See, e.g., Parkway Mfg. v. Indus. Comm’n, 128 Ariz. 448, 452, 626 P.2d
612, 616 (App. 1981). The hearing is generally limited to the issues
addressed in the notice of claim status unless the parties consent to litigate
additional issues in a single hearing. See, e.g., Arellano v. Indus. Comm’n, 25
Ariz. App. 598, 599-600, 545 P.2d 446, 447-48 (1976).
¶15 Only Quiroz’s initial petition to reopen for a back injury is
before us in this appeal. The parties have not agreed to litigate additional
issues outside the protested notice of claim status. For that reason, we need
not reach or address the merits of the appropriate comparative dates for the
second petition to reopen for deteriorating brain injuries. That issue is
premature at this time.
CONCLUSION
¶16 We affirm the ALJ’s decision upon review.
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