MacPhee v. ICA/Life Care/National Union

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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 CRAIG MACPHEE, ) ) Petitioner, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) LIFE CARESERVICES*/FRIENDSHIP ) VILLAGE**, ) ) Respondent Employer, ) ) NATIONAL UNION FIRE INSURANCE ) CO.*/ BROADSPIRE, INC.,**, ) ) Respondent Carrier. ) __________________________________) DIVISION ONE FILED: 03/01/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-IC 10-0034 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County ICA Claim 20021-990054** and 20032-610012* Carrier Claim 717204926001* and UNKNOWN** Administrative Law Judge Karen G. Calderon AFFIRMED _________________________________________________________________ Craig MacPhee Appellant Phoenix Andrew F. Wade, Chief Counsel Industrial Commission of Arizona Attorneys for Respondent Phoenix Klein Lundmark Barberich & LaMont, P.C. Phoenix By Kirk A. Barberich Attorneys for Respondent Employer and Respondent Carrier ________________________________________________________________ O R O Z C O, Judge ¶1 Craig MacPhee (MacPhee) appeals from the denial of his petition to reopen two claims by the Industrial Commission of Arizona (the ICA). ¶2 Finding no error, we affirm. In March 2002, MacPhee, while working, was cleaning a loading dock and was injured.1 and was able experience to some return pain. to In June 2002, MacPhee had surgery work MacPhee even filed though a he workers continued to compensation claim in July 2002 (the 2002 claim), which was denied. ¶3 MacPhee alleges that in August 2003 he was attempting to lift a garbage can with a co-worker, and began to experience a recurrence of his back and leg pain In November 2003, after filing a second workers compensation claim (2003 Claim), MacPhee was referred to Dr. Maric for an independent medical examination. Dr. Maric opined that MacPhee s MRI did not indicate an injury of significance as a result of the August 2003 incident. Based on this report the 2003 claim was closed that December. 1 MacPhee injured. has provided several 2 versions of how he was ¶4 In January MacPhee filed a request for hearing on the 2003 claim. In March 2004, MacPhee filed a request for hearing on the 2002 claim. The ICA set the matter for a consolidated hearing on the two claims for May 2004. However, in April 2004 MacPhee withdrew his request and the hearing scheduled for the consolidated cases was cancelled. ¶5 Five years later, MacPhee filed petitions to reopen both claims, which were subsequently denied. MacPhee protested the ICA s denial to reopen his 2002 and 2003 claims. ¶6 MacPhee submitted to a psychological evaluation by G.M. Reyes, Ph.D. in November 2008. Dr. Reyes wrote a report based on that evaluation (Psychological Evaluation). MacPhee submitted the Psychological Evaluation to the ICA with his request for hearing. The administrative law judge (ALJ) found that MacPhee had not presented sufficient new evidence regarding his injuries to reopen the claims. ¶7 Appellant jurisdiction filed pursuant to this special Arizona action. Revised Statutes We have (A.R.S.) sections 23-120.21.A.1, -951.A (2003). DISCUSSION ¶8 Workers compensation decisions are reviewed light most favorable to sustaining the ICA s decision. in the Lovitch v. Indus. Comm n of Ariz., 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). We defer to the ALJ s findings of fact, but 3 review questions of law de novo. Young v. Indus. Comm n of Ariz., 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). Denial to Reopen Claims ¶9 On appeal, MacPhee claims the ALJ committed error by refusing to reopen his consolidated ICA claims. a Commission evidence. decision if it is reasonably We will affirm supported by the Lovitch, 202 Ariz. at 105, ¶ 16, 41 P.3d at 643. [An appellant] has the burden to prove [his] entitlement to reopen [his] claim by showing a new, additional, or previously undiscovered condition and a causal relationship between that new condition and the prior industrial injury. 41 P.3d 643-44. Id. at 105-06, ¶ 17, In other words, MacPhee must present competent evidence that he has developed a new or previously undiscovered condition and that the new condition is causally related to his prior industrial injuries. ¶10 MacPhee is correct in stating the 2002 claim was never fully litigated, in the sense that testimony was not taken or a decision on the merits rendered. However, by withdrawing his request to reopen the 2002 claim, MacPhee lost his opportunity to fully litigate that claim. The ALJ determined that in November 2003, Dr. Maric found significant disc degeneration and related it to the 2002 accident. Dr. Maric s findings were available to MacPhee at the time he withdrew his claims in April 2004. MacPhee s request was properly 4 denied because he Thus, failed to present evidence of a new or previously undiscovered condition that was not available to him after he withdrew his claims in April 2004. ¶11 In regards to reopening the 2003 claim, the ALJ stated, Dr. Maric did not find an actual injury occurred on August 25, 2003 and found no permanent impairment, no work restrictions and no need for supportive care. evidence to show that he MacPhee has not presented any has developed a new or previously undiscovered condition that has a causal relationship with the 2003 claim. ¶12 Therefore, we find the ALJ s decision to deny the reopening of both claims to be sufficiently supported by the record. Discussion of Psychological Evaluation ¶13 On appeal, MacPhee claims the ICA erred by not considering the Psychological Evaluation of Dr. Reyes as a valid assessment of his injuries under A.R.S. § 23-1061. Furthermore, he challenges the interpretation of the medical evidence. ¶14 the This court deferentially reviews factual findings of ALJ, but independently reviews any legal Young, 204 Ariz. at 270, ¶ 14, 63 P.3d at 301. responsibility of the ALJ to resolve any conclusions. It is the sole medical conflicts. Stainless Specialty Mfg. Co. v. Indus. Comm n of Ariz., 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985). 5 ¶15 The Evaluation MacPhee s ALJ in did its not findings. previous medical injuries were outlined. did not contain mention any The MacPhee s ALJ s evaluations Psychological findings wherein did his discuss physical However, the Psychological Evaluation new or previously undiscovered medical evidence that was causally related to MacPhee s prior injuries. Instead the only mention of MacPhee s physical condition was MacPhee s own account as to the cause of his physical injuries. Because the Psychological Evaluation did not present any new or additional evidence of MacPhee s injury related to his condition, we find no error in the absence of any mention of MacPhee s Psychological Evaluation in the ALJ s decision. CONCLUSION ¶16 For the above stated reasons, we affirm the ALJ s decision to deny the reopening of MacPhee s consolidated claims. /S/ ___________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /S/ ____________________________________ JOHN C. GEMMILL, Judge 6

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