DUSTIN v. US AIRWAYS/CHARTIS

Annotate this Case

Download PDF

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 ) ) Petitioner, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) US AIRWAYS, ) ) Respondent Employer, ) ) NEW HAMPSHIRE INSURANCE ) CO/CHARTIS CLAIMS INC, ) ) Respondent Carrier. ______________________________________ ) ANGELA DUSTIN, 1 CA-IC 12-0026 DIVISION ONE FILED: 12/20/2012 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT E MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. IC 20103-350310 Carrier Claim No. 710728613 The Honorable Deborah A. Nye, Administrative Law Judge AWARD AFFIRMED Angela Dustin, Petitioner In Propria Persona Mesa Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix Klein, Doherty, Lundmark, Barberich & LaMont PC By Julie A. Doherty Attorneys for Respondent Employer/Respondent Carrier Phoenix 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 Angela Dustin argues the administrative law judge ( ALJ ) should not have found (collectively, the respondent Respondents ) were employer only and for liable carrier benefits limited to a temporary aggravation of her pre-existing right knee condition, which the ALJ also found had become medically stationary effective May 13, 2011 without permanent impairment. ¶2 In support of this argument, Dustin first asserts the ALJ should not have accepted and relied on the medical reports and opinions rendered by three doctors, Neal L. Rockowitz, M.D., Paul M. Guidera, M.D., and Irwin Shapiro, M.D., who evaluated Dustin at the request of the Respondents, because their reports contained misleading and incorrect information and because she was not allowed to cross-examine them. As the Respondents point out, and the record reflects, even though the ALJ invited Dustin to file a statement identifying any perceived inaccuracies in their reports, inaccuracies. the statement Further, she under filed the failed rules to list any applicable to proceedings before the Industrial Commission, a party who wishes 2 to cross-examine the author of a medical report filed into evidence must request a subpoena, and if the party fails to timely request a subpoena, the party waives the right to crossexamine the author of the report and the ALJ shall admit the medical report in evidence. Ariz. Admin. Code R20-5-155(G). As the Respondents point out, and as the record also confirms, Dustin did not request the ALJ to subpoena the doctors for cross-examination. ¶3 Dustin next argues the ALJ should not have excluded the report issued by Kenneth D. Osorio, M.D., supporting her assertion that she had sustained a venous insufficiency causally related to the industrial injury. reflects, the ALJ granted Dustin We disagree. an extension As the record of time to January 5, 2012 to obtain and file a report from Dr. Osorio. Dustin, however, did not attempt to file a report from him until January 26, 2012. The ALJ properly excluded the explaining: As you know, medical reports are by rule to be filed no later than 25 days before the hearing. This is to provide both parties ample time to prepare to meet the evidence offered by the other side. In this case, I . . . extended the deadline for filing medical reports to January 5, 2012, or more than two weeks past the initial hearing. In other words, January 5th was the last date for accepting your medical reports in evidence. 3 report, Unfortunately, you missed that deadline by three weeks. I cannot in good conscience permit this late filing. ¶4 Finally, Dustin argues the ALJ should have relied on and adopted the testimony offered by her treating physician, Charles Matthews, M.D. The ALJ rejected Dr. Matthews testimony because he failed to express an opinion that it was medically probable that a causal relationship existed between Dustin s extensive spinal osteoarthritis and the industrial injury. See Honeywell, Inc. v. Litchett, 146 Ariz. 328, 331, 705 P.2d 1379, 1382 (App. 1985) (standard of sufficiency for medical evidence is reasonable medical probability) (citation omitted). Further, when an ALJ, charged with responsibility of resolving conflicts in medical testimony, adopts one expert s opinion over another, we will not disturb that resolution unless unreasonable. Gamez v. Indus. Comm n, ¶ 15, 794, 796 (App. 2006). 141 P.3d 213 it is Ariz. When wholly 314, reviewing 316, the appropriateness of an ALJ s ruling, we are not allowed to weigh the evidence; we are obligated to consider it in the light most favorable to sustaining the award. Perry v. Indus. Comm n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975). Pursuant to these authorities, medical the ALJ s adoption of the evidence presented by Respondents was not wholly unreasonable, and we are not at liberty to reject her determinations. 4 CONCLUSION ¶5 For the foregoing reasons, we affirm the ALJ s award. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ DIANE M. JOHNSEN, Judge /s/ JON W. THOMPSON, Judge 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.