Gilmore v. ica/phoenix ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARK A. GILMORE, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
CITY OF PHOENIX, Respondent Employer,
CITY OF PHOENIX, Respondent Carrier.
No. 1 CA-IC 16-0049
FILED 3-7-2017
ICA Claim No. 20092-460502
Carrier Claim No. 4440422
The Honorable Deborah A. Nye, Administrative Law Judge
AFFIRMED
COUNSEL
Mark A. Gilmore, Peoria
Petitioner
Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix
By K. Casey Kurth
Counsel for Respondent Employer
Counsel for Respondent Carrier
Gilmore v. ICA/Phoenix
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.
N O R R I S, Judge:
¶1 In this special action from an Industrial Commission of
Arizona (“ICA”) award and decision upon review, Petitioner, Mark A.
Gilmore, argues the Administrative Law Judge (“ALJ”) should have issued
an award reopening his prior industrial claim that had been previously
closed. Reviewing the ALJ’s decision and award under the applicable
standards of review, we disagree. See Young v. Indus. Comm’n, 204 Ariz. 267,
270, ¶ 14, 63 P.3d 298, 301 (App. 2003) (appellate court deferentially reviews
ALJ’s findings but reviews legal conclusions de novo) (citation omitted);
Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App.
2002) (appellate court views evidence in light most favorable to sustaining
the award) (citation omitted).
¶2 On September 1, 2009, Gilmore injured his right shoulder
while cleaning a ladder. Gilmore timely filed a workers’ compensation
claim, and the Respondent Carrier City of Phoenix (“Carrier”) eventually
issued a notice of claim dated April 15, 2010 accepting Gilmore’s claim and
closing it effective March 16, 2010 without permanent disability. Gilmore
did not protest the April 15, 2010 notice of claim, and it became final. In
November 2015, Gilmore petitioned to reopen his claim based on a new,
additional, or previously undiscovered disability or condition. The Carrier
denied his petition to reopen in December 2015. Gilmore timely requested
a hearing on the Carrier’s denial of his petition, which the ALJ held on June
2, 2016.
¶3 Gilmore did not, however, attend the hearing. The ALJ
considered the petition as submitted and issued an award on June 3, 2016,
finding Gilmore had failed to meet his burden of proving the existence of a
new, additional, or previously undiscovered disability or condition
causally related to his prior industrial injury pursuant to Arizona Revised
Statutes (“A.R.S.”) section 23-1061(H) (2016).
¶4 On June 6, 2016, Gilmore asked the ALJ to accept into
evidence an MRI report concerning his right shoulder dated May 23, 2016.
Then, on June 13, 2016, Gilmore timely requested administrative review of
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Gilmore v. ICA/Phoenix
Decision of the Court
the award. The ALJ subsequently affirmed the award, explaining she had
not considered the MRI report because Gilmore had submitted it after the
record in the matter had closed.
¶5 Restated for clarity, on appeal Gilmore argues the ALJ should
have considered the MRI report before denying his petition to reopen. We
reject this argument.
¶6 As the ALJ noted in the award, Gilmore did not attend the
June 2, 2016 hearing and she had not excused him from attending the
hearing. See Ariz. Admin. Code (“A.C.C.”) R20-5-149(A) (claimant shall
personally appear at any hearing unless excused by ALJ). Furthermore,
Gilmore did not submit the MRI report into evidence before the hearing.
See A.A.C. R20-5-155(A) (party shall submit medical report into evidence at
least 25 days before the first scheduled hearing). By the time Gilmore
submitted the MRI report, the record in the matter had closed. See A.A.C.
R20-5-159 (award shall be based upon record as it exists at conclusion of
hearing); see also Morris v. Indus. Comm’n, 3 Ariz. App. 393, 396, 414 P.2d
996, 999 (1966) (matters placed in record after hearing may not be
considered absent consent of all parties) (citation omitted). Therefore, the
ALJ properly issued its original decision and its decision upon review
without considering the MRI report.
¶7 Even if Gilmore had timely submitted the MRI report, he still
would not have met his burden of proving a new, additional, or previously
undiscovered disability or condition under A.R.S. § 23-1061(H). The MRI
report established that Gilmore was indeed experiencing symptoms
relating to his right shoulder. The MRI report, however, did not relate
Gilmore’s current symptoms to his initial industrial injury. See Blickenstaff
v. Indus. Comm’n, 116 Ariz. 335, 339, 569 P.2d 277, 281 (App. 1977) (petitioner
bears burden to offer comparative evidence). Therefore, the MRI report, by
itself, failed to establish a new, additional, or previously undiscovered
disability or condition causally related to his initial industrial injury.
¶8 For the foregoing reasons, we affirm the ALJ’s award.
AMY M. WOOD • Clerk of the Court
FILED: AA
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