Garnica v. ICA/Peoria/SCF

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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 JOSEPH A GARNICA, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, CITY OF PEORIA, Respondent Employer, SCF ARIZONA, Respondent Carrier. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 01/19/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-IC 11-0038 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA CLAIM NO. 20032-2720215 CARRIER CLAIM NO. 0335149 The Honorable James B. Long, Administrative Law Judge AFFIRMED Ber & Associates PLLC By Hershel Ber Attorney for Petitioner Phoenix Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix James B. Stabler, Chief Counsel State Compensation Fund By Brandyn L. Stewart Attorney for Respondents Employer and Carrier Phoenix T I M M E R, Judge ¶1 This is a Commission of Joseph Garnica s argues A. the discretion special Arizona ( ICA ) petition administrative by not action review decision to upon an his judge a ( ALJ ) requested Industrial review reopen law subpoenaing of claim. denying Garnica abused witness. For his the following reasons, we disagree and therefore affirm. BACKGROUND ¶2 Garnica sustained a compensable injury ( original injury ) to his left lower extremity while working for the City of Peoria on September 19, 2003. SCF Arizona ( SCF ) closed Three months later, respondent his claim for active medical treatment without permanent disability. ¶3 which Garnica filed a petition to reopen his claim in 2004, SCF petition. denied. In 2005, He did Garnica not protest again the petitioned denial to of the reopen his claim, which SCF once again denied without protest by Garnica. He filed a third petition to reopen in May 2010, claiming he had pain related to the original injury. After petition, Garnica filed a hearing request. SCF denied the The ALJ scheduled a hearing and informed Garnica he must provide medical testimony 2 to support his alleged new condition 1 arising from the 2003 injury and, in order for a doctor to testify, he must file all subpoena requests at least twenty days before the first hearing. ¶4 Garnica filed a timely request for subpoenas to be issued to his treating physician, S.D. Steen Johnsen, as well as three of Garnica s co-workers. In a response letter, the ALJ explained the co-workers would not be subpoenaed as they could not offer medical testimony on which the case hinged. ¶5 At the beginning of the first hearing on September 21, 2010, Garnica stated he had seen other doctors and a physical therapist, and asked the ALJ to subpoena them to testify. After the ALJ responded that not all doctors seen by a claimant are needed to testify typically, Garnica replied he had seen Dr. Laureen Cota the previous week, and she would be willing to testify injury. that The the new condition ALJ concluded by was related saying he to would the original address what doctors are needed to appear after Garnica testified. ¶6 At the end of the day, the ALJ discussed the issue with Garnica and determined that Dr. Johnsen, a specialist in foot and ankle surgery, had provided the most treatment for Garnica s current condition, the doctor had reviewed Garnica s 1 To reopen a claim for benefits, a claimant must show a new, additional, or previously undiscovered condition or disability, a causal relationship between that condition and the industrial injury, and a change in condition since the last award. Ariz. Rev. Stat. ( A.R.S. ) § 23-1061(H) (Supp. 2010). 3 medical records, and Garnica had requested him to testify. The ALJ then explained he only needed one physician to testify in support of the petition and concluded Dr. Johnsen would be that physician. Garnica said he would prefer all his doctors testify, but acknowledged Dr. Johnsen was the main one. ¶7 Dr. Johnsen testified on October 7, the second day of the hearing, that Garnica s claim should be reopened because his new condition is contiguous to the original injury. He further testified, however, the new condition could be related to his original injury. He stated this connection was based on Garnica s statements to him about continued pain since 2003. On cross-examination, Dr. Johnsen noted it was possible the current condition could be based on a newer injury. ¶8 The employer/carrier elicited testimony on the third day of the hearing, October 18, from Dr. William Leonetti, a board certified examined physician Garnica. demonstrated there Dr. was in foot Leonetti no and ankle testified question surgery the Garnica had MRI who had records suffered a second injury unrelated to the original injury sometime between July 2004 and May 2009. one from July 2004 and He noted that two of Garnica s MRIs, a second from October 2007, were completely negative with no inflammation, but a third MRI from June 2009 showed significant soft tissue, ligamentous, tendinous pathology, suggesting a second injury. 4 and ¶9 Recognizing the medical opinions differed, the ALJ resolved the conflict by accepting the opinion of Dr. Leonetti as more probably correct. The ALJ therefore found that Garnica had not proven he had suffered a new condition stemming from the original injury and denied the petition to reopen. Garnica filed a timely request for review, and the ALJ affirmed the previous decision. Garnica then filed this timely petition for special action. DISCUSSION ¶10 Garnica argues the ALJ erred by refusing to issue a subpoena for Dr. Cota. 2 The ICA has wide discretion to . . . control the witnesses who appear before it. Artis v. Indus. Comm'n, 164 Ariz. 452, 453, 793 P.2d 1119, 1120 (App. 1990). Thus, we review the ALJ s refusal to issue the subpoena for an abuse of discretion. K Mart Corp. v. Indus. Comm'n, 139 Ariz. 536, 539, 679 P.2d 559, 562 (App. 1984). ¶11 A party seeking to compel the appearance of a medical expert witness at a hearing must file a written request for a subpoena at least twenty days hearing. Ariz. Admin. Code ( A.A.C. ) R20-5-141(A)(2). 2 before the first scheduled The ALJ Garnica also contends the ALJ erred by failing to subpoena other witnesses. Because Garnica fails to develop this argument, he has waived it, and we do not consider it further. MT Builders, L.L.C. v. Fisher Roofing, Inc., 219 Ariz. 297, 304, ¶ 19 n.7, 197 P.3d 758, 765 n.7 (App. 2008) (arguments not developed on appeal are deemed waived). 5 must issue material the and subpoena if necessary. 3 the anticipated A.A.C. testimony R20-5-141(A)(4). is Garnica argues the ALJ erred by denying his subpoena request because Dr. Cota s anticipated demonstrated current injury. by condition testimony the is ALJ s not was material ultimate causally and finding related necessary, that to as Garnica s the original As a result, Garnica claims the ALJ denied him the fundamental right to present witnesses and frustrated the ends of justice. ¶12 a We disagree for two reasons. First, the ALJ was required to grant the subpoena for necessary and material witness requested it, which he did not do. only if Garnica timely A.A.C. R20-5-141(A)(2), (4). Garnica s request was untimely because he did not make it in writing at least twenty days before the first day of the hearing; he orally requested it on the first day of the hearing. Id. ¶13 Second, putting aside the timeliness of the request, the ALJ did not err by implicitly deciding Dr. Cota s testimony was not necessary because the subject matter of her anticipated expert opinion was addressed by Dr. Johnsen. 3 In compliance with The ALJ may decline to issue a subpoena for a witness whose testimony is material and necessary if the party failed to file a timely response to the ALJ s request for a written description of the witness s anticipated testimony and the party does not show good cause for failing to timely comply with the ALJ s request. A.A.C. R20-5-141(A)(4). The ALJ did not make such a request in this case, so this exception is not applicable. 6 A.R.S. § 23-1061(H), Garnica attached to his petition to reopen Dr. Johnsen s report to demonstrate that Garnica suffered from a new, additional or previously undiscovered condition related to the original injury. This document reflected Dr. Johnsen s opinion that Garnica s new condition is contiguous with his previous surgery and previous injury and that his case should be reopened because of this. Dr. Johnsen reiterated that opinion at the hearing, although he also stated the new condition could be related to the original injury. Although Garnica wanted to call all his physicians to testify, when the ALJ limited him to one physician, he agreed Dr. Johnsen was the main one to testify in support of the petition. ¶14 The ALJ was charged with authority to conduct the hearing in any manner that will achieve substantial justice. A.R.S. § 23-941(F) substantial (1995). justice because Garnica he was was able not to deprived elicit of opinion testimony from Dr. Johnsen about the causal relationship between his new condition and the original injury. Additional testimony from Dr. Cota on the same subject would have been cumulative and therefore unnecessary. See Ariz. R. Evid. 403 (authorizing exclusion of cumulative evidence); Ariz. R. Civ. P. 26(b)(4)(D) (providing each side is presumptively entitled to one expert per issue); see also W. Water Works v. Indus. Comm n, 213 Ariz. 521, 524, ¶ 14, 144 P.3d 535, 538 (App. 2006) (noting that although 7 the rules of evidence and civil procedure are inapplicable to industrial commission hearings, they provide guidance). Thus, this situation is markedly different from the one in K Mart, in which this court held the ALJ deprived an employer of its fundamental right to present witnesses by refusing to subpoena the employer s only medical expert witness who could counter the claimant s position psychiatric condition. that an industrial injury caused her 139 Ariz. at 538-39, 679 P.2d at 561-62. ¶15 In summary, the ALJ did not abuse his discretion by refusing to subpoena Dr. Cota to appear and give additional expert testimony on the issue of medical causation. Garnica s right to present witnesses was not frustrated but reasonably limited. The ALJ ensured substantial justice by hearing expert testimony from both Dr. Johnsen and Dr. Leonetti resolving the conflict between their opinions. CONCLUSION ¶16 For the foregoing reasons, we affirm. /s/ Ann A. Scott Timmer, Judge CONCURRING: /s/ Patricia K. Norris, Presiding Judge /s/ Margaret H. Downie, Judge 8 and then

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