Morales v. ICA/Milling/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 FERNANDO MORALES, ) ) Petitioner, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) MILLING MACHINERY INC., ) ) Respondent Employer, ) ) SCF ARIZONA, ) ) Respondent Carrier. ) __________________________________) DIVISION ONE FILED: 05-11-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-IC 09-0050 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 20062-780780 Carrier Claim No. 0639424 J. Matthew Powell, Administrative Law Judge AFFIRMED Fernando Morales Petitioner in propria persona Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Eloy Phoenix James B. Stabler, Chief Counsel State Compensation Fund of Arizona By Sharon M. Hensley Attorneys for Respondents Employer and Carrier Phoenix O R O Z C O, Judge ¶1 This is a special action review of the denial of a petition to reopen the worker s compensation claim brought by Fernando Morales (Claimant). For the following reasons, we affirm the Administrative Law Judge s (ALJ) decision. FACTS AND PROCEDURAL HISTORY ¶2 while On September working as a 21, 2006, Claimant welder for Respondent Machinery Inc. (Milling). installation of a suffered an Employer, injury Milling While Claimant was working on the catwalk, a crane handrails shifted unexpectedly. used to install catwalk The handrails the crane was lifting struck Claimant in his left flank region. ¶3 pain. Claimant was subsequently treated for back and rib Claimant filed a worker s compensation claim with the Industrial Commission of Arizona (ICA). Respondent Carrier, State Compensation Fund Arizona (SCF), was the insurance carrier for Milling when Claimant was injured. for benefits. opined that SCF accepted the claim On December 18, 2006, Charles G., D.O. (Dr. G.) Claimant had reached 2 a permanent and stationary status regarding his reported injury and that no further medical treatment was needed. SCF then terminated Claimant s temporary compensation and active medical treatment, effective December 18, 2006. Claimant requested a hearing regarding SCF s termination. During the hearing, Claimant and SCF stipulated to be the bound by opinions of Irwin S., M.D. (Dr. S.), who conducted an independent medical exam of Claimant on May 27, 2008. ¶4 Dr. S. agreed with Dr. G. s opinion that Claimant s status was probably stationary as of December 18, 2006. He also found no evidence of permanent injury that could be reasonably attributed to Claimant s September 21, 2006 industrial accident. ¶5 On January 18, 2008, the ALJ awarded Claimant benefits beginning September 21, 2006, and terminating December 18, 2006. On May 2, 2008, Claimant filed a petition to reopen his claim based on a new, additional, disability or condition. or previously undiscovered Formal hearings on Claimant s Petition to Reopen were held on September 9, 2008, December 8, 2008, and January 15, 2009. During the hearings, Dr. S. and Claimant s treating physician, Rubin W., M.D. (Dr. W.), testified. ¶6 Dr. W. testified that he had been treating Claimant for issues related to Claimant s neck and upper back area. He also stated that Claimant was suffering from a cervical and a 3 trapezius strain condition. condition a result However, was testifying. as more Dr. or of W. also less Additionally, he [Claimant s] stated static at testified work-related that the that Claimant s time since he he was began treating Claimant, he could not discern any material change in Claimant s medical condition. ¶7 any Dr. S. testified that Claimant was not suffering from new, related additional, to the or September previously 21, 2006 undiscovered industrial disagreed with part of Dr. W. s opinion. Claimant s disease, current which condition was not was related condition injury. He Dr. S. opined that due to degenerative to a traumatic disc injury. Additionally, Dr. S. testified that Claimant s tortuosity of the aorta was not related to a traumatic injury; rather, it only meant Claimant s aorta was curved. ¶8 On April 10, 2009, the ALJ denied Claimant s petition to reopen his claim. The ALJ found that to the extent there was conflict between the opinions of Dr. S. and Dr. W., he resolved that conflict in favor of Dr. S. s opinions as being the more probably correct. The ALJ further found that Claimant had no new, additional, or previously undiscovered conditions related to his September 21, 2006 industrial accident. 4 ¶9 On May 8, 2009, Claimant requested the ALJ review his April 10, 2009 decision. On May 22, 2009, the ALJ affirmed the April 10, 2009 decision. Claimant filed a timely petition for special action and Revised Statutes we have (A.R.S.) jurisdiction sections pursuant 12-120.21.A.2 to Arizona (2003), 23- 951.A (1995) and Rule 10 of the Arizona Rules of Procedure for Special Actions.1 DISCUSSION ¶10 On appeal, Claimant offers no legal argument to support his contention that the ALJ s decision denying reopening was entered in error. medical history decision. and Rather, Claimant simply restates his asks this Court to reexamine the ALJ s When reviewing an ICA award, we view the facts in the light most favorable to sustaining the decision and will not set it aside if it is reasonably supported by the evidence. Delgado v. Indus. Comm n of Ariz., 183 Ariz. 129, 131, 901 P.2d 1159, 1161 (App. 1994). 1 On June 22, 2009, Claimant filed a request for review of the ALJ s May 22, 2009 decision affirming the ALJ s April 10, 2009 decision. Because the ALJ no longer had jurisdiction over Claimant s action, see A.R.S. § 23-943.H (1995), Claimant s request for review was forwarded to this Court. Claimant s request for review was filed in this Court on June 29, 2009. Although Claimant s request for review was filed with this Court after the thirty-day filing deadline, Claimant s petition is nevertheless considered timely. See Martinez v. Indus. Comm n of Ariz., 213 Ariz. 531, 533, ¶ 8, 144 P.3d 1260, 1262 (App. 2006). 5 ¶11 In order to reopen a worker s compensation claim, a claimant must show that the original industrial injury has caused a new, additional or previously undiscovered medical condition. the A.R.S. § 23-1061.H (Supp. 2009). burden of proving the new, The claimant bears additional, or previously undiscovered condition and a causal relationship between that new condition and the prior industrial injury. Lovitch v. Indus. Comm n of Ariz., 202 Ariz. 102, 105-06, ¶ 17, 41 P.3d 640, 643-44 (App. 2002). When the causal connection between the condition and the prior industrial injury is not readily apparent, it must be established by expert medical testimony. Sun Valley Masonry, Inc. v. Indus. Comm n of Ariz., 216 Ariz. 462, 465, ¶ 11, 167 P.3d 719, 722 (App. 2007). in expert medical testimony exists, the Where a conflict ALJ has the responsibility of resolving the conflict, and we must uphold that resolution if the evidence reasonably supports it. Fry s Food Stores v. Indus. Comm n of Ariz., 161 Ariz. 119, 121, 776 P.2d 797, 799 (1989). Conflict in Expert Medical Testimony ¶12 Dr. W. testified that Claimant was suffering from a cervical and a trapezius strain as a result of [Claimant s] work-related condition. Although Dr. W. s diagnosis suggested a new condition, it conflicted with Dr. S. s diagnosis. 6 Dr. S. stated that Claimant s current condition was a result of degenerative disc disease, which was not related to a traumatic injury. ¶13 The ALJ resolved the conflict in favor of Dr. S. s opinions. We find the record reasonably supports the ALJ s resolution of the conflict between the opinions of Dr. W. and Dr. S. showed Id. Several magnetic resonance imaging (MRI) results Claimant suffered from mild degenerative present at the C5-C6 and C6-C7 levels. disc disease These results reasonably support Dr. S. s opinion that Claimant s condition was a product of degenerative disc disease. Moreover, the MRI results are inconsistent with Dr. W. s opinion that Claimant was suffering from a cervical and a trapezius [Claimant s] work-related condition. strain as a result of Accordingly, we do not disturb the ALJ s resolution of the conflict in expert medical testimony in favor of Dr. S. The Evidence Reasonably Supports the ALJ s Decision ¶14 Our review of the record indicates the ALJ correctly determined that Claimant failed to meet his burden of proving a new, additional, or previously undiscovered condition existed as a result of the September 21, 2006 industrial injury. 202 Ariz. at 105-06, ¶ 17, 41 P.3d at 643-44. Lovitch, It was not readily apparent that Claimant s condition was causally related 7 to his original industrial injury; thus, expert medical testimony was required to establish the causal connection. Sun Valley Masonry, Inc., 216 Ariz. at 465, ¶ 11, 167 P.3d at 722. Claimant s only evidence suggesting a new, additional, or previously undiscovered condition came from Dr. W. s testimony, which was in conflict with Dr. S. s opinion. However, the ALJ acted within his discretion in resolving the conflict in expert medical testimony in favor of Dr. S. Basing his opinion on Claimant s medical record, Dr. S. testified that Claimant was not suffering undiscovered from condition industrial injury. any new, related additional, to the or September previously 21, 2006 This testimony reasonably supports the ALJ s decision denying reopening. Accordingly, we do not disturb the decision. CONCLUSION ¶15 For the reasons previously stated, we affirm the ALJ s decision. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ DIANE M. JOHNSEN, Judge /S/ ____________________________________ JON W. THOMPSON, Judge 8

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