Garcia v. dms/hartford ( 2017 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    MARIA DE LOS ANGELES GARCIA, Petitioner,
    v.
    THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
    DMS FACILITY SERVICES, Respondent Employer,
    HARTFORD ACCIDENT & INDEMNITY CO, Respondent Carrier.
    No. 1 CA-IC 16-0036
    FILED 4-18-2017
    Special Action - Industrial Commission
    ICA Claim No. 20120-330123
    Carrier Claim No. 12D48C129577
    Aryka S. Radke, Administrative Law Judge
    AWARD AFFIRMED
    COUNSEL
    Snow, Carpio & Weekley, PLC, Phoenix
    By Erica González-Meléndez
    Counsel for Petitioner Employee
    Industrial Commission of Arizona, Phoenix
    By Jason M. Porter
    Counsel for Respondent Industrial Commission of Arizona
    Lester, Norton & Brozina, P.C., Phoenix
    By Steven C. Lester, Christopher S. Norton, Rachel P. Brozina
    Counsel for Respondent Employer and Respondent Carrier
    MEMORANDUM DECISION
    Judge Lawrence F. Winthrop delivered the decision of the Court, in which
    Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
    W I N T H R O P, Judge:
    ¶1            This is a special action review of an Industrial Commission of
    Arizona (“ICA”) award and decision upon review for no loss of earning
    capacity (“LEC”). On appeal, the petitioner employee (“claimant”) argues
    that issue preclusion barred the administrative law judge (“ALJ”) from
    adopting independent medical examiner Dr. Gary Dilla’s recommended
    work restrictions because Dr. Dilla based his restrictions on the same
    diagnosis offered by Dr. John Beghin, which was rejected by a different ALJ
    in the 2013 continuing benefits litigation. Because we conclude issue
    preclusion did not apply, 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) (2016), 23-951(A) (2012), and
    Rule 10 of the Arizona Rules of Procedure for Special Actions. 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, 
    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).
    FACTS AND PROCEDURAL HISTORY
    ¶3            At the time of her industrial injury, the claimant worked as a
    custodian for the respondent employer, DMS Facility Services. In January
    2012, she was standing on a step stool, cleaning the top of lockers, when she
    fell and landed on her buttocks. She filed a workers’ compensation claim,
    which the respondent carrier accepted for benefits. The claimant received
    conservative medical treatment for injuries to her sacrum and coccyx.
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    GARCIA v. DMS/HARTFORD
    Decision of the Court
    Following an independent medical examination (“IME”) by Dr. Beghin, the
    claimant’s condition was found to be medically stationary and the
    respondent carrier closed her claim with a permanent impairment.
    ¶4            The claimant timely protested the closure and asserted that
    she needed continuing active medical care for her injuries. Administrative
    Law Judge Long held hearings and heard testimony from the claimant, her
    treating physician, Dr. Sanjay Patel, and independent medical examiner Dr.
    Beghin. Judge Long resolved the medical conflict in favor of Dr. Patel, and
    entered an award granting the claimant continuing active medical care.
    Eight months later, following a new IME by Dr. Matthew Holland, the
    respondent carrier closed the claim with an unscheduled permanent partial
    impairment. The ICA then entered its administrative findings and award,
    determining the claimant had no LEC.1
    ¶5            The claimant timely protested the ICA’s LEC determination
    and requested a hearing, asserting that she had sustained an LEC.
    Administrative Law Judge Radke held four hearings and heard testimony
    from the claimant, Dr. Patel, Dr. Dilla, and two labor market experts. Judge
    Radke adopted Dr. Dilla’s opinion as to the claimant’s work restrictions,
    and based on those restrictions, accepted Rebecca Lollich’s labor market
    opinion.
    ¶6            Relying on Dr. Dilla and Ms. Lollich, Judge Radke entered an
    award finding that the claimant had sustained no LEC. The claimant timely
    requested administrative review, and Judge Radke supplemented and
    affirmed the award.2 This appeal followed.
    1       The ICA makes the initial determination of whether an unscheduled
    permanent impairment has resulted in an LEC. See A.R.S. § 23-1047 (2016).
    If a claimant protests the ICA’s award, that administrative determination is
    rendered null and has no value in the subsequent LEC proceedings. LeDuc
    v. Indus. Comm’n, 
    116 Ariz. 95
    , 98, 
    567 P.2d 1224
    , 1227 (App. 1977).
    2      The ALJ incorporated by reference the respondent carrier’s response
    to the request for review. See generally Hester v. Indus. Comm’n, 
    178 Ariz. 587
    , 589-90, 
    875 P.2d 820
    , 822-23 (App. 1993) (stating the ALJ may
    incorporate a post-hearing memorandum in an award).
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    GARCIA v. DMS/HARTFORD
    Decision of the Court
    ANALYSIS
    ¶7            As a preliminary matter, the respondents assert that the
    claimant’s request for review was untimely, and the award became final. A
    request for review must be filed within thirty days of the mailing date of
    the decision upon hearing and findings and award. See A.R.S. ' 23-942(D)
    (2012).
    ¶8            In this case, the claimant had to file the request for review by
    5:00 p.m. on April 13, 2016. See Arizona Administrative Code (“A.A.C.”)
    R20-5-102, -103. The ICA’s date and time stamp reveal that the claimant
    timely filed the request for review on April 13, 2016 at 4:43 p.m., but the
    claimant untimely filed the memorandum in support of the request at 11:52
    p.m. that same day. A memorandum of points and authorities is not
    required to obtain administrative review of an award. See A.R.S. § 23-
    943(A) (2012). For that reason, we conclude the claimant timely filed the
    request for review.3
    ¶9           On appeal, the claimant argues that Judge Radke should have
    rejected Dr. Dilla’s opinion regarding her work restrictions because the
    doctor’s opinion was based on the same diagnosis provided by Dr. Beghin
    and rejected by Judge Long in the 2013 litigation. For that reason, the
    claimant asserts that issue preclusion4 prevented Dr. Dilla from basing his
    opinions on a diagnosis that was inconsistent with Judge Long’s 2013
    findings.
    ¶10           Workers’ compensation claims are administered sequentially
    through a progression of separate claim stages. See, e.g., Hardware Mut. Cas.
    Co. v. Indus. Comm’n, 
    17 Ariz. App. 7
    , 9-10, 
    494 P.2d 1353
    , 1355-56 (App.
    1972). At each stage, a notice of claim status (“NCS”) is issued and becomes
    3     Recognizing the untimeliness of the memorandum of points and
    authorities, the ALJ did not consider it on administrative review.
    4       An ICA award has res judicata effect by application of principles of
    issue preclusion and claim preclusion. See Circle K Corp. v. Indus. Comm’n,
    
    179 Ariz. 422
    , 428, 
    880 P.2d 642
    , 648 (App. 1993). Issue preclusion occurs
    when the issue to be litigated was actually litigated in a prior proceeding
    and a final judgment was entered, the party against whom the doctrine is
    to be invoked had a full opportunity to litigate the issue, and the issue was
    essential to the final judgment. 
    Id. at 425,
    880 P.2d at 645.
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    GARCIA v. DMS/HARTFORD
    Decision of the Court
    final unless timely protested. See A.R.S. § 23-947(A) (2012). A timely
    hearing request opens all issues addressed by the NCS for consideration by
    the ALJ. See, e.g., Parkway Mfg. v. Indus. Comm’n, 
    128 Ariz. 448
    , 452, 
    626 P.2d 612
    , 616 (App. 1981). An ICA hearing is limited to the issues addressed in
    the protested notice 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 (App. 1976).
    ¶11           During the 2013 litigation, the sole issue in the instant case
    was whether the claimant needed active medical care and whether she was
    thus entitled to receive continuing benefits. To be entitled to continuing
    medical benefits, the claimant had the burden of proving that her physical
    condition was causally related to her industrial injury and that such
    condition was not yet medically stationary. See, e.g., Lawler v. Indus.
    Comm’n, 
    24 Ariz. App. 282
    , 284, 
    537 P.2d 1340
    , 1342 (App. 1975). Judge
    Long resolved the conflict in medical opinions between Drs. Beghin and
    Patel in favor of Dr. Patel. Judge Long then held that the claimant’s
    industrially-related medical condition was not yet stationary and that she
    was entitled to receive continuing active medical treatment until her
    condition became stationary.
    ¶12             A claimant becomes medically stationary when her
    industrially-related condition is not subject to further improvement. See
    Janis v. Indus. Comm’n, 
    27 Ariz. App. 263
    , 265, 
    553 P.2d 1248
    , 1250 (App.
    1976). When a doctor discharges a claimant from active medical treatment,
    the doctor is required to determine whether the claimant sustained any
    permanent impairment of function as a result of the industrial injury. See
    A.A.C. R20-5-113(B). If an unscheduled permanent impairment is awarded,
    the claimant proceeds to an LEC determination. See Cassey v. Indus.
    Comm'n, 
    152 Ariz. 280
    , 283, 
    731 P.2d 645
    , 648 (App. 1987) (explaining that
    an LEC is determined through a bifurcated procedure requiring a claimant
    to first establish a permanent impairment, and second, to establish that the
    impairment diminished the claimant’s earning capacity).
    ¶13            In this case, the claimant’s condition was not medically
    stationary at the time of the 2013 litigation. Consideration of permanent
    impairment or its effect on her earning capacity was not at issue, and any
    findings in that regard would have been premature. See A.R.S. § 23-1047(A)
    (stating the right to permanent disability benefits does not arise until after
    a claimant’s medical condition becomes stationary). For that reason, Judge
    Radke was not bound by Judge Long’s adoption of Dr. Patel’s opinion in
    the 2013 litigation relative to whether the claimant required further active
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    GARCIA v. DMS/HARTFORD
    Decision of the Court
    medical care, and issue preclusion did not bar Judge Radke from adopting
    Dr. Beghin’s opinion regarding work restrictions in the current LEC
    litigation.
    CONCLUSION
    ¶14          For the foregoing reasons, we affirm the award.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
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