Sambrano v. Kr Capital ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MARIA G. SAMBRANO, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
KR CAPITAL, LLC., Respondent Employer,
EMPLOYERS COMPENSATION INSURANCE COMPANY, Respondent
Carrier.
No. 1 CA-IC 14-0008
FILED 11-13-2014
Special Action – Industrial Commission
ICA Claim No. 20120-900270
Carrier Claim No. 2012163269
The Honorable Layna Taylor, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Maria G. Sambrano, Phoenix
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Jones Skelton & Hochuli PLC, Phoenix
By Gregory L. Folger, Jennifer B. Anderson
Counsel for Respondent Employer and Respondent Carrier
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.
N O R R I S, Judge:
¶1 In this special action review of an Industrial Commission of
Arizona award and decision upon review, Petitioner Maria G. Sambrano
argues the Administrative Law Judge (“ALJ”) failed to consider medical
records she submitted “on time” in denying her request for additional
supportive care under Arizona Revised Statutes section 23-1061(J) (Supp.
2014).1 The record before us, however, does not support Sambrano’s
argument.
¶2 Before the hearing on her request for additional supportive
care, Sambrano submitted medical records from her treating physicians.
With one exception, these records did not support her claim for additional
supportive care. The one exception was a March 15, 2013 progress report
by her treating hand surgeon, Mark J. Leber, M.D., in which he stated “we
will resume supportive care for [an] additional 3 months to allow for
evaluation of repeat electrodiagnostic studies to assure that there is no
worsening of her carpel tunnel syndrome.” At the hearing, however, the
Respondent Employer and Respondent Carrier (collectively
1Although the Arizona Legislature amended this statute after
Sambrano initiated her claim, the revision is immaterial to the resolution of
this appeal. Thus, we cite to the current version of the statute.
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Decision of the Court
“Respondents”) introduced an April 12, 2013 progress report from Dr.
Leber returning Sambrano to “[r]egular work status from a hand
standpoint” with no additional recommendation for supportive care.
Respondents also introduced into evidence a report by Neal L. Rockowitz,
M.D., a board-certified orthopedic surgeon, who examined Sambrano at
their request. Dr. Rockowitz’s report stated Sambrano was stationery
without impairment regarding her “shoulder claim,” and that supportive
care was unwarranted.
¶3 As the ALJ correctly noted in the award, Sambrano as the
claimant bore the burden of proving her claim for supportive care benefits
by a preponderance of the evidence. See Malinski v. Indus. Comm’n, 103 Ariz.
213, 216, 439 P.2d 485, 488 (1968). And, Sambrano also bore the
responsibility of showing that such care was causally related to her
industrial injury. See Capuano v. Indus. Comm’n, 150 Ariz. 224, 226-27, 722
P.2d 392, 394-95 (App. 1986). Further, the causal nexus between a medical
condition and an industrial injury must generally be established by expert
medical testimony. Eldorado Ins. Co. v. Indus. Comm’n, 27 Ariz. App. 667,
670, 558 P.2d 32, 35 (1976).
¶4 Here, the ALJ essentially found Sambrano had failed to meet
these requirements, stating “[t]he applicant has not submitted any medical
evidence supporting her claim that she needs additional supportive care for
symptoms which are related to her industrial injury.” The ALJ’s factual
finding is supported by the evidence presented at the hearing, and as a
reviewing court, we are obligated to consider the evidence in the light most
favorable to sustaining the ALJ’s award and will not re-weigh it. Perry v.
Indus. Comm’n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975).
¶5 After the ALJ issued the award, the ALJ reviewed the award
at Sambrano’s request. In doing so, the ALJ considered medical records
and other information submitted by Sambrano with her request for review.
With one exception, these materials consisted of materials Sambrano had
previously submitted to the ALJ before the hearing and which were
considered by the ALJ before she issued the award. The one exception was
a letter from Cheryl Villamor-Nierva, M.D. The ALJ refused to consider
this letter, correctly explaining the record on review was limited to the
evidence presented before the conclusion of the final hearing. Epstein v.
Indus. Comm’n, 154 Ariz. 189, 195, 741 P.2d 322, 328 (App. 1987)
(administrative review of award is restricted to the record in existence at
the conclusion of the last scheduled hearing).
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SAMBRANO v. KR CAPITAL
Decision of the Court
¶6 For the foregoing reasons, we affirm the ALJ’s award.
:gsh
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