Begay v. ICA/Kinetics/Argonaut

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE HENDERSON BEGAY, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, KINETICS INTEL, Respondent Employer, ARGONAUT INSURANCE COMPANY, Respondent Carrier. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 01/14/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-IC 09-0038 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action--Industrial Commission ICA CLAIM NO. 20010-920628 CARRIER CLAIM NO. 73-123669 Robert F. Retzer, Administrative Law Judge AWARD AFFIRMED Henderson Begay In propria persona Chandler The Industrial Commission of Arizona By Andrew F. Wade, Chief Counsel Attorney for Respondent Phoenix Steven C. Lester, P.C. By Steven C. Lester Attorneys for Respondent Employer/Carrier Phoenix J O H N S E N, Judge ¶1 This is a special action review of a Decision Upon Hearing and Findings and Award Denying Reopening ( Decision ) by an Administrative Law Judge ( ALJ ) of a worker s compensation claim. Henderson reopened because attributable to Begay his a argues current new, his neck additional claim pain or should and headaches previously condition caused by his industrial injury. have been are undiscovered For the following reasons, we affirm the ALJ s decision. JURISDICTION AND STANDARD OF REVIEW ¶2 This court has jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(2) (2003), 23951(A) (1995) and Rule 10 of the Arizona Rules of Procedure for Special Actions. On review of a decision by the Industrial Commission of Arizona ( ICA ), we defer to the ALJ s factual findings but review questions of law de novo. Sun Valley Masonry, Inc. v. Indus. Comm n, 216 Ariz. 462, 463-64, ¶ 2, 167 P.3d 719, 720-21 (App. 2007). 2 Additionally, we view the evidence in the light most favorable to sustaining the award, id. at 464, ¶ 2, 167 P.3d at 721, and we will not set aside the award unless it is unsupported by any reasonable theory of the evidence, Phelps v. Indus. Comm n, 155 Ariz. 501, 506, 747 P.2d 1200, 1205 (1987). FACTUAL AND PROCEDURAL HISTORY A. The Original Injury. ¶3 On March 20, 2001, Begay was at work when a section of pipe broke free unconscious. and hit him in the face, knocking him The blow caused Begay to fall from a seven-foot- high platform and strike his head on a concrete floor. He was diagnosed with an avulsion fracture of a vertebra in his neck, which occurs when a ligament under stress pulls off a piece of the bone to which it is attached. ¶4 After the accident, Begay experienced head and neck pain and depression. He was treated with approximately six months of physical therapy, medication and injections. Begay received disability compensation and medical benefits from the time of the accident through October 27, 2001. an ALJ issued a Decision Upon Hearing On May 16, 2003, finding that Begay s medical condition became stationary as of October 27, 2001, with no permanent impairment, and awarded him the benefits he had already received. Begay did not seek review of the decision. 3 B. Petition to Reopen. ¶5 18, Begay petitioned to have his claim reopened on April 2008. hearing, The at petition which was testimony denied was and taken Begay from requested Begay; a Lonnie Harding, a physician s assistant; and Zorn Maric, an orthopaedic surgeon. ¶6 Begay testified worsened since 2001. intermittent in difficulties with living. his headaches He 2001, just stated it was regular that now day and while neck pain had the pain was giving him operations just constant, to day Begay added that his depression, too, had worsened since 2001. ¶7 Harding, a physician s assistant who had treated Begay in 2008, testified that Begay had complained of elbow pain and chronic neck pain and that Begay s magnetic resonance imaging ( MRI ) results showed small vessel eschemic changes and an asymmetric disc bulge with moderate to severe left-sided neural foraminal narrowing . . . . Begay s March 2001 injury, Because he was unfamiliar with however, Harding was unable to determine whether the pain or MRI results were attributable to the industrial accident. Maric testified he found [r]eally no significant change between Begay s 2001 MRI results and the results of a 2008 MRI. He noted that a left-sided disc slash 4 osteophyte - basically [a] bony spur looked smaller in the 2008 image but that it [c]ould be just a difference with the imaging technique. additional or related [the to Maric concluded that he found no new, previously March undiscovered 20, 2001] conditions incident. In causally addition to hearing testimony, the ALJ stated that before ruling, he would review the medical records Begay submitted. ¶8 In his Decision, the ALJ denied Begay s petition, finding that Begay failed to carry his burden of proving by a reasonable preponderance of the evidence, that he has a new, additional or previously undiscovered condition causally related to [the] request, March the 20, ALJ 2001 industrial reviewed the injury Decision, . but . . . again Upon denied reopening, concluding the original Decision was supported by the evidence. Begay appeals these decisions. DISCUSSION ¶9 In order to reopen a worker's compensation claim, the claimant must show that the original industrial injury has caused a new, additional or previously undiscovered condition. See A.R.S. § 23-1061(H) (Supp. 2009); Sun Valley, 216 Ariz. at 464-65, ¶ 11, 167 P.3d at 721-22. of presenting claim. Id. evidence at 465, ¶ The claimant bears the burden sufficient 11, 167 5 to P.3d support at 722. reopening If a the causal connection between the original injury and the condition is not readily apparent, testimony. because Id. of it must be established by expert medical Finally, [a] claim shall not be reopened increased subjective pain if the pain is accompanied by a change in objective physical findings. not A.R.S. § 23-1061(H). ¶10 Our review of the record shows that the ALJ correctly determined that Begay failed to meet his burden of proving the existence of a new, condition related to additional his or previously industrial injury. undiscovered Though Begay testified to increased pain, no witness testified to a change in objective physical findings. See A.R.S. § 23-1061(H) (increased subjective pain insufficient to reopen claim absent change in objective physical findings ). To the contrary, Maric testified that after examining Begay and viewing Begay s records, he failed to find any significant change in Begay s condition since his claim was closed. Even assuming the medical records Begay submitted to the ALJ showed the existence of a new, additional or previously undiscovered condition, Begay presented no expert medical testimony connection to his industrial injury. at 465, ¶ 11, 167 P.3d at 722. demonstrating a causal See Sun Valley, 216 Ariz. Begay s only medical witness, Harding, was unfamiliar with the original injury and therefore 6 was unable to opine as to whether Begay s current condition reflected injury. any change or was attributable to the industrial As a result, viewing the evidence in the light most favorable to sustaining the award, we conclude the ALJ correctly decided that Begay failed to meet his burden and did not err in denying the petition to reopen. 1 ¶11 Upon Begay also contends that the May 16, 2003 Decision Hearing wrongly finding decided. his Issue condition medically preclusion bars stationary relitigation of was an issue if the issue was previously litigated, determined, and necessary to final judgment. Special Fund Div. v. Tabor, 201 Ariz. 89, 92, ¶ 20, 32 P.3d 14, 17 (App. 2001). Unless disputed issues of fact exist as to its applicability, issue preclusion is an issue of law. Id. The issue of whether Begay s condition was medically stationary was litigated in his 2003 hearing and was decided against him, and Begay did not appeal the award. Therefore, Begay is precluded from relitigating the findings of 1 Begay submitted with his opening brief additional evidence he contends shows the existence of a new, additional or previously undiscovered condition. On appeal, however, we review only the evidence that was before the ALJ, and do not consider new evidence. See Epstein v. Indus. Comm'n, 154 Ariz. 189, 195, 741 P.2d 322, 328 (App. 1987). Review of administrative awards is restricted to the record. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 15, 41 P.3d 640, 643 (App. 2002). 7 the 2003 Decision Upon Review. See Lovitch v. Indus. Comm n, 202 Ariz. 102, 107, ¶ 23, 41 P.3d 640, 645 (App. 2002). ¶12 Finally, Begay argues on appeal that the ALJ improperly excluded physicians who could have testified on his behalf. The record does not show that the ALJ excluded any physicians from testifying. To procure a subpoena for a medical expert witness, a claimant must file a written request with the ALJ at least 20 days before the first scheduled hearing. Ariz. Admin. Code section R20-5-141(A)(2); see also Fidelity & Guar. Ins. Co. v. Indus. Comm n, 129 Ariz. 342, 346, 631 P.2d 124, 128 (App. 1981) witness for ( In order testimony, to a assure party the presence desiring the of a medical issuance of a subpoena must make the request for a subpoena in writing to the administrative law judge . . . . ). ¶13 Begay submitted to the ALJ a letter listing the names of witnesses that I would like to testify on my behalf. The letter listed four medical professionals, one of whom was said to be a registered nurse practitioner, and two of whom were said to be medical doctors. No designation was listed for the third individual. Harding was not on the list, and Begay did not request ALJ the individuals. to issue a subpoena to any of the four At the first hearing date, the ALJ asked Begay for the name of a doctor that could testify that Begay had a new or 8 previously undiscovered condition. Begay named Harding and Craig Fujii, a nurse practitioner who had treated Begay, but stated that Fujii had left the Indian Health Service, where he had treated Begay, and that he did not know how to contact him. The ALJ told Begay he would set an additional hearing date for Harding s testimony. and the ALJ During a lengthy discussion between Begay regarding what medical witnesses Begay provide, he repeatedly named only Harding and Fujii. could At no point during the proceedings did Begay mention the additional witnesses appearing on his list or ask that they be subpoenaed to testify on his behalf. ¶14 Arguments not raised before the ALJ generally are waived on appeal. See T.W.M. Custom Framing v. Indus. Comm'n, 198 Ariz. 41, 44, ¶ 4, 6 P.3d 745, 748 (App. 2000); Kessen v. Stewart, 195 Ariz. 488, 493, ¶ 19, 990 P.2d 689, 694 (App. 1999). Though Begay submitted a list of witnesses to the ALJ, he mentioned only Harding and Fujii in response to the ALJ s queries regarding his medical witnesses, and at no point during the hearing or in his request for review did he mention the additional witnesses or complain that they did not testify. Therefore, because the issue of additional witnesses was not raised before the ALJ, it is waived on appeal. Framing, 198 Ariz. at 44, ¶ 4, 6 P.3d at 748. 9 T.W.M. Custom CONCLUSION ¶15 Because the record supports the ALJ s decision, affirm. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ PATRICIA A. OROZCO, Presiding Judge /s/ JON W. THOMPSON, Judge 10 we

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