Rogers v. ICA/Complete/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 ROY A. ROGERS, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, COMPLETE CONSTRUCTION, Respondent Employer, SCF ARIZONA, Respondent Carrier. ) ) ) ) ) ) ) ) ) ) ) 1 CA-IC 09-0032 DIVISION ONE FILED: 03/02/2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) ) ) ) ) ) ) ) Special Action Industrial Commission ICA CLAIM NO. 98215-325992 CARRIER NO. 9186704 Anthony Halas, Administrative Law Judge AWARD AFFIRMED Roy A. Rogers In Propria Persona Phoenix Andrew Wade, Acting Chief Counsel, The Industrial Commission of Arizona Attorneys for Respondent Phoenix James B. Stabler, Chief Counsel, SCF Arizona Phoenix By Kenna L. Finch Attorneys for Respondents Employer and Carrier T H O M P S O N, Judge ¶1 Roy Commission A. of Rogers Arizona's (petitioner) decision appeals not to the reopen Industrial his case. Petitioner asserts that the Administrative Law Judge (ALJ) erred by (1) ending petitioner's inquiries at the hearing, (2) not allowing petitioner's expert to "phonetically testify" on his behalf, and (3) not allowing petitioner to question respondent's medical experts in the form of rebuttal. legal argument in his opening brief. Petitioner makes no For the following reasons, we affirm. ¶2 Petitioner sustained a compensable industrial injury while employed by Complete Construction (respondent employer), who was insured by SCF Arizona (respondent carrier). carrier later petitioner's issued temporary a notice of Respondent claim status terminating and medical treatment. compensation Years later, petitioner filed a petition to reopen his claim. Respondent carrier denied the petition. hearing. Petitioner requested a Petitioner testified in person, and the doctors did so telephonically. The ALJ issued a decision upon hearing and findings and award denying the petition to reopen, finding that there was undiscovered no objectively condition new, related to 2 additional, the or industrial previously injury and resolving the conflicts in the medical respondent-carrier's medical expert. records in favor of On review, the ALJ issued a decision upon review affirming his decision, and petitioner filed this special action. ¶3 We review factual issues in a light most favorable to sustaining the ALJ's award. See Micucci v. Indus. Comm'n, 108 Ariz. 194, 195, 494 P.2d 1324, 1325 (1972) (citations omitted). To be sustained, an ALJ's findings and award must be reasonably supported by the evidence. Nelson v. Indus. Comm'n, 24 Ariz. App. 94, 98, 536 P.2d 215, 219 (1975) (citation omitted). The claimant has the burden of proving, by a preponderance of the evidence, all elements of a claim for workers' compensation. Brooks v. Indus. Comm'n, 24 Ariz. App. 395, 399, 539 P.2d 199, 203 (1975). ¶4 Petitioner respondent argues carrier's that, medical after expert, he the began ALJ questioning considered the questioning to be argumentative, asked respondent's attorney if she had any further questions, and then "abruptly ended the entire phonetic argues that the [sic] ALJ testimonial denied him session." the Petitioner opportunity to respondent's medical expert in the form of rebuttal. also question According to petitioner, the ALJ prevented petitioner from being able to address all of his questions of the doctor. However, petitioner was able to address the expert doctor in question. 3 After a series of questions, questioning reopened. on the the ALJ issue tried of to whether focus the petitioner's claim should be The ALJ determined that the doctor had addressed that issue, and petitioner was able to continue his questioning. The ALJ later ended the questioning, finding that he had enough evidence to consider and, at that point, petitioner was just arguing with the doctor. We find no error because petitioner had ample opportunity to question the doctor, and the ALJ only stopped the questioning argumentative. 317-18, 458 when it became repetitive and See Pauley v. Indus. Comm'n, 10 Ariz. App. 315, P.2d 519, 521-22 (1969) (ALJ has discretion to regulate and control the cross-examination of witnesses, and an award will not be disturbed based on mere procedural error). ¶5 Next, petitioner asserts that the ALJ told petitioner that he could seek his own specialist in the proceedings and use his own medical insurance to cover the cost of the examination, even though the injury was work-related. Petitioner contends that, although the ALJ did "allow and consider" his podiatrist's written report, petitioner believed that the podiatrist would be allowed to testify on his behalf. As respondent carrier notes, however, petitioner did not request a subpoena under Arizona Workers' Compensation Practice and Procedure Rule 20-5- 141(A)(2), which provides that a "party may request a presiding administrative law judge to issue 4 a subpoena to compel the appearance of an expert medical witness by filing a written request with the presiding administrative law judge at least 20 days before the date of the first scheduled hearing." The ALJ must then issue the subpoena if the ALJ determines that the evidence is 141(A)(4). "material and necessary" to the case. Rule Because petitioner failed to request a subpoena for his podiatrist, there was no error. ¶6 Finally, petitioner asserts that he suffered an additional injury that supported the reopening of his claim. However, the evidence presented at the hearing established that petitioner's diabetes ALJ's medical rather finding previously than that complaints the there undiscovered at industrial was condition not that time injury a and new, related resulted to from supports the additional, or the industrial injury. ¶7 For the foregoing reasons, we affirm the award. ____/s/_______________ JON W. THOMPSON, Judge CONCURRING: ____/s/____________________________ PATRICIA A. OROZCO, Presiding Judge ____/s/____________________________ DIANE M. JOHNSEN, Judge 5

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