Wells v. aps/pinnacle ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CEDRIC WELLS, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
ARIZONA PUBLIC SERVICE COMPANY, Respondent Employer,
PINNACLE WEST CAPITAL CORPORATION, Respondent Carrier.
No. 1 CA-IC 15-0085
FILED 9-27-2016
Special Action – Industrial Commission
ICA Claim No. 20011-420262
Carrier Claim No. WC 302001001431
The Honorable Michael A. Mosesso, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Cedric Wells, Holbrook
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Lundmark, Barberich, La Mont & Slavin, Phoenix
By Lisa M. La Mont
Counsel for Respondent Employer and Carrier
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.
K E S S L E R, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) Decision Upon Hearing and Findings and Award
Reopening Claim (“Decision”). We review the record to determine whether
the administrative law judge (“ALJ”) erred when he found that petitioner
employee Cedric Wells (“Claimant”) did not suffer the additional injury of
blood poisoning. Additionally, Claimant has requested that this court
reopen the claim due to new medical records. Because we find that the
record reasonably supports the ALJ’s finding, we affirm the decision.
FACTUAL AND PROCEDURAL HISTORY
¶2 On April 19, 2001, Claimant was employed by Arizona Public
Service (“APS”) at the Cholla Power Plant. Claimant was instructed to burn
a barrel labeled “used oil” and was wearing only safety goggles for
protection. During the burn, Claimant was exposed to high temperatures
and believes he was actually burning chemicals, not oil. Claimant suffered
burns to his face which were not treated for thirty-one days. Claimant
reported the incident to his employer and filed a workers’ compensation
claim. He received benefits and the claim was closed July 9, 2001. Claimant
also believes that he was exposed to heavy metals during the burn, causing
numerous other ailments that were not initially diagnosed, or diagnosable.
¶3 Claimant previously filed two requests to reopen the case,
each of which was denied and for each of which Claimant did not request
a hearing for review. On November 6, 2014, Claimant filed another request
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WELLS v. APS/PINNACLE WEST
Decision of the Court
to reopen the claim, listing post-inflammatory hyperpigmentation and
spinal stenosis as the reason. Claimant included medical records regarding
the hyperpigmentation from Dr. Knutson but did not include any records
regarding the spinal stenosis. The claim was denied and claimant
requested a hearing to review the decision.
¶4 On February 3, 2015, Claimant had an independent medical
exam performed by Dr. Selma Targovnik, a board certified dermatologist.
Dr. Targovnik was provided with records of lab tests from April 2002
through September 2005. Dr. Targovnik found that Claimant suffered from
post-inflammatory hyperpigmentation of the skin, causing some
disfigurement to the face. Dr. Targovnik also believed that claimant should
get a rating of eleven percent for a permanent facial disfigurement.
¶5 On March 24, 2015, Pinnacle West Capital Corporation
(“Respondent Carrier”) issued a notice accepting the reopening for
determination of permanent facial disfigurement, a notice of permanent
disability, and requested a determination of benefits regarding facial
disfigurement. However, Claimant still wished to have a hearing to discuss
additional health issues Claimant believed were related to the initial injury.
¶6 Formal hearings were held on May 5, 2015, and July 14, 2015.
At the July 14 hearing, Dr. Targovnik testified as to her findings from the
February 2, 2015 examination and her review of the 2002-2005 lab tests. Dr.
Targovnik was questioned about Claimant’s possible exposure to poisons
and testified she did not find any significant abnormalities and nothing in
the records provided specifically related to the skin. She also testified,
however, that blood poisoning and heavy metals were not her area of
expertise.
¶7 On September 2, 2015, the ALJ issued his Decision. The ALJ
ordered that the claim be reopened as of November 6, 2014, and awarded
Claimant medical and surgical benefits from November 6, 2014 through
May 4, 2015, and temporary total or temporary partial disability
compensation benefits from November 6, 2014 through May 4, 2015.
Additionally, the ALJ found Claimant was entitled to benefits pursuant to
Arizona Revised Statutes (“A.R.S.”) section 23-1044 for a scheduled
permanent partial disability to be determined by the Industrial
Commission Claims Division through its administrative process regarding
facial disfigurement.
¶8 Claimant accepted the awards for the facial injury and
disfigurement but filed a request for review and provided the ALJ with
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WELLS v. APS/PINNACLE WEST
Decision of the Court
medical records from a September 9, 2015 medical appointment. The ALJ
affirmed his decision. Claimant timely appealed. This court has
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2) (2016), 23-951(A) (2012),
and Rule of Procedure for Special Actions 10.
DISCUSSION
¶9 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) (citation omitted). 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) (citation
omitted), and we review the evidence only to determine if substantial
evidence supported the findings, Associated Grocers v. Indus. Comm’n, 133
Ariz. 421, 423-24 (App. 1982) (citation omitted). We must affirm an award
if any reasonable theory of evidence can support it. Carousel Snack Bar v.
Indus. Comm’n, 156 Ariz. 43, 46 (1988) (citation omitted). Our review is
limited to “determining whether or not the commission acted without or in
excess of its power and, if findings of fact were made, whether or not such
findings of fact support the award, order or decision.” A.R.S. § 23-951(B)
(2016).
¶10 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) (2015); see also Pascucci v. Indus.
Comm’n, 126 Ariz. 442, 444 (App. 1980) (citation omitted). The claimant has
the burden to present sufficient evidence to support reopening. Hopkins v.
Indus. Comm’n, 176 Ariz. 173, 176 (App. 1993) (citation omitted). When the
causal connection between the condition and the prior industrial injury is
not readily apparent, it must be established by expert medical testimony.
Eldorado Ins. Co. v. Indus. Comm’n, 27 Ariz. App. 667, 670 (1976) (citations
omitted); Makinson v. Indus. Comm’n, 134 Ariz. 246, 248 (App. 1982) (citation
omitted).
¶11 Claimant believes that he was exposed to hazardous
chemicals when he sustained the industrial injury on April 19, 2001, and as
a result has heavy metals in his blood. Although he provided the ALJ with
lab tests performed between 2002 and 2005, he did not provide the ALJ a
medical professional to interpret the tests. Dr. Targovnik was the only
medical professional to testify, and she reported that she did not find
significant abnormalities in the lab tests, nor did she find a relationship
between the lab records and Claimant’s other conditions.
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WELLS v. APS/PINNACLE WEST
Decision of the Court
¶12 Based on the testimony and records provided by Dr.
Targovnik, the ALJ found that the claim should be reopened for a
permanent impairment rating and supportive care for the facial
disfigurement only. We do not find that the ALJ abused his discretion in
his award to Claimant.
¶13 Claimant submitted with his request for review additional
medical records for the ALJ to consider, and again submitted with his
opening brief copies of medical records dated after the ALJ issued his
decision. However, the fact-finding process in workers’ compensation
proceedings ends at the conclusion of the last scheduled hearing. Sw.
Nurseries v. Indus. Comm’n, 133 Ariz. 171, 174 (App. 1982) (citation omitted).
Additionally, any records not considered by the ALJ below are not properly
part of the certified record on appeal, and this court will not consider
documents on appeal that are not part of the certified record.1 See, e.g., Wood
v. Indus. Comm’n, 126 Ariz. 259, 261-62 (App. 1980); Shockey v. Indus.
Comm’n, 140 Ariz. 113, 116 n.1 (App. 1983).
CONCLUSION
¶14 For the foregoing reasons, we affirm the ALJ’s Decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 Although this court will not consider the new medical records, this
should not be construed to mean that Claimant cannot request a reopening
of the claim with ICA if he believes a new, additional, or previously
undiscovered condition exists, and there is a causal relationship between
that condition and the prior industrial injury. See A.R.S. § 23-1061(H) (2015).
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