Daniels v. ICA/Roosevelt/Arizona

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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 CORA M. DANIELS, ) ) Petitioner, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) ROOSEVELT ELEMENTARY SCHOOL ) DISTRICT *, **, ***, ) ) Respondent Employer, ) ) ARIZONA SCHOOL ALLIANCE *, **, ) ***, ) ) Respondent Carrier. ) __________________________________) 1 CA-IC 09-0079 DIVISION ONE FILED: 09/21/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH Department D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim Nos. 20063-460840*** 20082-670007* 20083-010463** Carrier Claim No. 2008015131 Deborah A. Nye, Administrative Law Judge AWARD AFFIRMED _______________________________________________________________ Cora M. Daniels, Petitioner In Propria Persona Phoenix Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorneys for Respondent Phoenix Steven C. Lester Phoenix Attorney for Respondent Employer/Respondent Insurance Carrier ________________________________________________________________ N O R R I S, Judge ¶1 This is a special action review of an Industrial Commission of Arizona Award and Decision upon Review denying reopening and compensability. Petitioner employee Cora M. Daniels argues the administrative law judge ( ALJ ) should not have, first, removed her left shoulder condition from the scope of her original November 7, 2006 claim in ruling on her petition to reopen that claim and, second, rejected medical evidence supporting both her petition to reopen and the compensability of two subsequent claims. legal error and, as As to the former, the record reflects no to the second, supported by reasonable evidence. the ALJ s decision was We therefore affirm the ALJ s decision. I. ¶2 had Removal of the Left Shoulder Injury from the Original November 7, 2006 Claim In November 2006, Daniels filed a claim alleging she suffered a work-related ( original injury ). injury on November 7, 2006 On September 13, 2007, an ALJ found she had sustained a gradual work-related injury while working for the Respondent Employer, Roosevelt Elementary School District. 2 Although the ALJ found Daniels had suffered a compensable injury, he did not specify the extent of her injuries and what injuries were compensable. Respondent Carrier Arizona School Alliance ( Carrier ) closed the original claim effective March 4, 2008, without permanent disability, and the closure eventually became final. ¶3 Daniels subsequently filed a petition to reopen the November 7, 2006 claim. At a consolidated hearing on this and two other subsequent claims, see infra ¶¶ 7-8, the ALJ correctly noted the original award Daniels s original injury. failed to specify the extent of The parties, represented by counsel, agreed the ALJ could determine the extent of the original injury and requested proceeding. Daniels s the ALJ review the records from the prior After reviewing these records, the ALJ concluded original injury resulted in pain to the right shoulder, back, right upper arm and left forearm, with the right shoulder being the predominant injury. making these Daniels s express assertion findings, the the original (Footnote omitted.) ALJ implicitly injury included In rejected her left shoulder. ¶4 On appeal, judicata barred the Daniels ALJ asserts from condition from the original injury. 3 the removing doctrine her We disagree. left of res shoulder ¶5 First, the doctrine of res judicata, or claim preclusion, prohibits a party from subsequently relitigating the same claim. W. Cable v. Indus. Comm n, 144 Ariz. 514, 518, 698 P.2d 759, 763 (App. 1985). Here, the ALJ was not redetermining Daniels s but original claim, rather determining a specific issue -- the extent of her original injury. ¶6 Second, even assuming the doctrine of res judicata is applicable, Daniels, through counsel, agreed the determine the extent of Daniels s original injury. ALJ should See Ariz. Admin. Code R. 20-5-152(A) (parties may stipulate to any fact or issue; stipulation may be in writing or made orally at the time of hearing). Daniels Having agreed the ALJ could determine this issue, cannot, on appeal, argue the ALJ was barred by res judicata from doing so. II. ¶7 Sufficiency of the Evidence Daniels next asserts the evidence failed to support the ALJ s determination she had not met her burden of proving the existence of a new, additional, or previously undiscovered condition causally related to the original injury. Similarly, she also argues the evidence failed to support the ALJ s factual determination she had not sustained compensable work-related injuries on July 31, 2008, or September 26, 2008 (collectively, the subsequent incidents ). We disagree with both assertions. 4 ¶8 At the consolidated hearing on the petition for review and the subsequent incidents, the parties presented the ALJ with conflicting Jeffrey medical Levine, testified the evidence. M.D., a original Daniels s treating board-certified injury had physician, orthopedic caused her surgeon, left shoulder injury, the subsequent incidents had caused and aggravated her left shoulder pathology, and the September 2008 incident had provoked her right shoulder symptoms. board-certified orthopedic surgeon, Neal Rockowitz, M.D., a examined Daniels twice at the request of the Carrier and testified, however, that when he first examined her on March 4, 2008, her pain complaints were unfocused and inconsistent and her injuries medically stationary without permanent impairment or the need for work restrictions, and when he examined her on February 5, 2009, her description of the subsequent characterized by incidents the ALJ, was vague without and, sufficient as correctly mention of a mechanism of injury that could have re-injured her shoulders. Based on his examinations of Daniels, review of MRIs taken after the subsequent incidents, and review of Dr. Levine s medical records since shoulder June conditions 2008, were Dr. not Rockowitz new, concluded additional, or Daniels s previously undiscovered conditions related to the original injury, and the subsequent incidents don t even equate to a shoulder event. I see no indication to link those 5 to any pathology in So the [right] shoulder [and] I don t think there was an injury [to her left shoulder]. So I don t see any reason to equate any pathology now to those so-called events. ¶9 When an ALJ, charged with the responsibility of resolving conflicts in medical testimony, adopts one expert s opinion over another, we will not unless it is wholly unreasonable. disturb that resolution Gamez v. Indus. Comm n, 213 Ariz. 314, 316, ¶ 15, 141 P.3d 794, 796 (App. 2006) (quoting Ortega v. Indus. Comm n, 121 Ariz. 554, 557, 592 P.2d 388, 391 (App. 1979)). Further, when reviewing the appropriateness of an ALJ s ruling, we are not allowed to weigh the evidence; we are obligated to consider sustaining the award. it in the ALJ s adoption most favorable to Perry v. Indus. Comm n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975). the light of Dr. Pursuant to these authorities, Rockowitz s opinions and her resolution of the conflict in the medical testimony were not wholly unreasonable, and we are not at liberty to reject her determinations. 1 1 The ALJ found Daniels s description of her injuries and the subsequent incidents to be unreliable and not credible. The ALJ, not this court, is in the best position to resolve issues of credibility and consistency. S.L.C. Leasing v. Indus. Comm n, 25 Ariz. App. 366, 367 n.*, 543 P.2d 795, 796 n.* (1975). 6 CONCLUSION ¶10 For the foregoing reasons, we affirm the ALJ s award denying Daniels s petition to reopen and determining she had failed to meet her burden of proving compensable injuries from the subsequent incidents. /s/ _____________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ _____________________________________ LAWRENCE F. WINTHROP, Presiding Judge /s/ _____________________________________ PATRICK IRVINE, Judge 7

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