Lizarraga v. southern/hartford

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DANIEL LIZARRAGA, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
SOUTHERN WINE & SPIRITS, Respondent Employer,
HARTFORD CASUALTY INSURANCE CO., Respondent Carrier.
No. 1 CA-IC 16-0075
FILED 10-26-2017
Special Action - Industrial Commission
ICA Claim No. 20130-510417
Carrier Claim No. 30130271581-001
Paula R. Eaton, Administrative Law Judge
AWARD SET ASIDE
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
Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By Stephen M. Venezia
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge Maurice Portley 1 delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Peter B. Swann 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 finding the petitioner
employee’s (“claimant’s”) back injury to be medically stationary. One issue
is presented on appeal: whether the administrative law judge (“ALJ”)
legally erred by adopting Stephen Borowsky, M.D.’s opinion. Because we
agree that the ALJ erred by adopting Dr. Borowsky’s opinion, we set aside
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), 23-951(A), and Arizona Rule of
Procedure for Special Actions 10. 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).
PROCEDURAL AND FACTUAL HISTORY
1 The Honorable Maurice Portley, retired Judge of the Arizona Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3, of the Arizona Constitution.
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LIZARRAGA v. SOUTHERN/HARTFORD
Decision of the Court
¶3 The claimant worked for the respondent employer, Southern
Wine & Spirits (“Southern”), delivering alcoholic beverages. While lifting
a case of wine, he felt a pop in his back and experienced pain and numbness
in his left lower back and down his left leg. He filed a workers’
compensation claim, and the respondent carrier, Hartford Casualty
Insurance Company (“Hartford”) denied it for benefits. Compensability
was litigated, and the claim was found compensable.
¶4 Less than two weeks later, the claim was closed with no permanent
impairment based on an independent medical examination (“IME”)
conducted by Ronald M. Lampert, M.D. The claimant timely protested
closure, and the ICA held hearings for testimony from the claimant, his
treating physician, Sanjay R. Patel, M.D., and Dr. Lampert. The ALJ
resolved the medical conflict in favor of Dr. Patel and awarded the claimant
continuing medical benefits. He found the “[claimant’s] condition is not
yet medically stationary: he should be provided a short and uninterrupted
course of physical therapy and trigger point injections per Dr. Patel’s
recommendation.” Hartford allowed this award to become final on March
25, 2015. See A.R.S. § 23-942(D) (request for review must be filed within
thirty days).
¶5 On June 26, 2015, Hartford issued a notice of claim status
(“NCS”) again closing the claimant’s claim by relying on a new IME by
Stephen Borowsky, M.D., and finding him stationary on May 18, 2015.
Hartford also issued a notice of supportive medical maintenance benefits:
The employee is awarded three physician visits, six physical
therapy visits, and three trigger point injections, over six
months, under the medical management of Dr. Sanjay Patel.
The award expires on 12/18/15.
The claimant timely requested a hearing. He asserted that he was not
medically stationary, or in the alternative, that the supportive care award
was insufficient.
¶6 The ICA held three hearings for testimony from the claimant
and Drs. Patel and Borowsky. 2 Following these hearings, the ALJ entered
an award adopting Dr. Borowsky’s opinion, closing the claim for active
medical treatment, and awarding supportive care of “six visits of physical
2A fourth hearing was convened on February 19, 2016, but no testimony
was taken.
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LIZARRAGA v. SOUTHERN/HARTFORD
Decision of the Court
therapy.” The claimant timely requested administrative review, but the
ALJ summarily affirmed the award. The claimant next brought this appeal.
DISCUSSION
¶7 The claimant argues that principles of preclusion should have
prevented the ALJ from adopting Dr. Borowsky’s opinion and terminating
his active medical benefits. Hartford does not respond to the preclusion
argument. Instead, it asserts that this case involved a simple medical
conflict.
¶8 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 bars relitigating an issue of fact that was actually litigated, and
was essential to a final judgment. Red Bluff Mines, Inc. v. Indus. Comm’n, 144
Ariz. 199, 204–05, 696 P.2d 1348, 1353–54 (App. 1984). Claim preclusion
bars relitigating the same claim, i.e., a claim actually decided, or that could
have been decided, after a timely protest. W. Cable v. Indus. Comm’n, 144
Ariz. 514, 518, 698 P.2d 759, 763 (App. 1985).
¶9 To ascertain whether preclusion applies in this case, it is
necessary to compare the issues raised and the evidence presented at the
2014 hearings before ALJ Halas and at the 2015 hearings before ALJ Eaton.
In 2014, Hartford closed the claimant’s claim for active medical treatment
based on Dr. Lampert’s IME. Dr. Lampert found that the claimant only
sustained a lumbar strain and sprain in the industrial injury, and that his
injury had become stationary with no permanent impairment or need for
supportive care.
¶10 At the ICA hearings, the claimant presented testimony from
his treating physician, Dr. Patel. Dr. Patel testified that he first saw the
claimant on March 18, 2014, and received a history of his lifting injury at
work. The claimant’s primary complaints were left-sided low back pain
and left lower leg pain. On examination, the doctor found “diffuse
tenderness in his left lower lumbar region, some palpable spasms, a
restriction with extension and rotation with range of motion, particularly
on the left side . . . .” A March 26, 2014 MRI revealed preexisting
degenerative changes at L3-4 and L5-S1. Dr. Patel diagnosed lumbosacral
strain/sprain, non-verifiable radiculopathy, and an aggravation of
preexisting degenerative disc disease. He recommended “reengaging
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LIZARRAGA v. SOUTHERN/HARTFORD
Decision of the Court
[claimant] in a course of physical therapy for a month or two, performing
some trigger point injections . . . .”
¶11 The ALJ adopted Dr. Patel’s opinion and awarded the
claimant ongoing active medical treatment as recommended by Dr. Patel.
Hartford did not protest this award, but instead, immediately obtained a
new IME. It then reclosed the claimant’s claim based on Dr. Borowsky’s
report. For that reason, the claimant was unable to obtain the medical
treatment recommended by Dr. Patel and awarded by ALJ Halas.
¶12 The claimant protested the reclosure, and at the ICA hearings,
Dr. Patel reiterated his previous opinion and treatment recommendations.
He stated that the claimant was not stationary, and in the two years that the
claimant had been his patient, he had been unable to complete a course of
treatment for him. It was his opinion that the claimant continued to require
four to six weeks of physical therapy in combination with one or two sets
of trigger point injections administered during the course of physical
therapy.
¶13 Dr. Borowsky testified regarding his May 19, 2015 IME. He
reviewed the claimant’s industrially-related medical records, including the
March 2014 MRI, and diagnosed a lumbar strain/sprain overlying a
degenerative spine. He stated that the claimant’s condition was stationary
without permanent impairment, and that there was no indication for
trigger point injections. Because it appeared that physical therapy had been
restarted, the doctor testified that the claimant should be allowed to finish
that therapy. On cross-examination, Dr. Borowsky conceded that trigger
point injections do work best when administered in conjunction with
physical therapy.
¶14 After reviewing Dr. Borowsky’s testimony and IME report,
we find that he reviewed the same medical information and reached the
same opinion as Dr. Lampert. We find guidance in this situation in the
reopening case law. While reopening is not permitted for a mere change in
medical opinion, Stainless Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz. 12,
19, 695 P.2d 261, 268 (1985), it is allowed when the evidence presented at
the current proceeding is qualitatively different from the evidence
presented at the prior proceeding and “could not have been presented at
the first hearing.” Bayless v. Indus. Comm’n, 179 Ariz. 434, 441, 880 P.2d 654,
661 (App. 1993).
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LIZARRAGA v. SOUTHERN/HARTFORD
Decision of the Court
¶15 In this case, the 2014 and 2015 ICA hearings both addressed
the claimant’s entitlement to continuing active medical treatment for his
industrial injuries. Dr. Patel’s opinion and treatment recommendations
remained the same at both sets of hearings. The opinion of Hartford’s expert
also remained the same although provided by different doctors. Because
the claimant’s entitlement to the active medical treatment recommended by
Dr. Patel became final with ALJ Halas’s February 23, 2015 continuing
benefits award, it was subject to preclusion. For that reason, ALJ Eaton was
precluded from adopting Dr. Borowsky’s opinion which was not
qualitatively different than Dr. Lampert’s rejected opinion.
CONCLUSION
¶16 Because the ALJ legally erred by adopting Dr. Borowsky’s
opinion, we set aside the award.
AMY M. WOOD • Clerk of the Court
FILED: AA
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