Pratt v. ICA/A & D

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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 RONNIE PRATT, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, A & D TRENCHING, INC., Respondent Employer, SCF ARIZONA, Respondent Carrier. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 10/25/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-IC 11-0003 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA CLAIM NO. 20092-290051 CARRIER CLAIM NO. 0833046 The Honorable Stephen W. Pogson, Administrative Law Judge AWARD SET ASIDE Taylor & Associates PLLC By Dennis R. Kurth Roger A. Schwartz Attorneys for Petitioner Phoenix Andrew Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix James B. Stabler, Chief Counsel State Compensation Fund By Brandyn L. Stewart Kenna L. Finch Attorneys for Respondent Employer and Carrier Phoenix T I M M E R, Presiding Judge ¶1 This is a special action review of an Industrial Commission of Arizona ( ICA ) award and decision upon review finding Ronnie Pratt stationary without permanent impairment. He argues the administrative law judge ( ALJ ) erred because the medical evidence stationary as established he required that his condition not surgery. arthroscopic was For the following reasons, we agree and therefore set aside the award. BACKGROUND ¶2 Pratt, a backhoe operator for approximately thirty years, filed a notice of claim for left-knee problems in August 2009. Dr. Raymond Roffi, Pratt s treating orthopedic surgeon, included in the claim a Physician s Initial Report diagnosing [p]robable medial and lateral meniscus tears that were [r]elated to running equipment at work, with further treatment undeterminable @ this ( SCF ) a notice issued date. of The claim State status accepting Pratt s claim with no time lost. 2 Compensation in September Fund 2009 The determination became final ninety days later with no objection. Ariz. Rev. Stat. ( A.R.S. ) § 23-947(A)-(B) (Supp. 2010). ¶3 After January 2010, examination Bailie s Dr. Roffi recommended arthroscopic SCF sent Pratt an with report orthopedist [could] for Dr. not David surgery independent Bailie. attribute in medical When [Pratt s] Dr. current condition to anything industrial related, SCF issued a notice of claim status in March 2010 terminating Pratt s treatment and compensation with no permanent disability. Pratt filed a timely hearing request, and hearings were held before the ALJ on only the issue of whether [Pratt] sustained a permanent impairment. 1 ¶4 The ALJ heard testimony from both Dr. Roffi and Dr. Bailie as medical experts. In his October 4 decision, the ALJ found an obvious difference of opinion between the doctors and accepted Dr. Bailie s opinion that [Pratt] s medial meniscus tear was degenerative in nature and the subject injury played no role in it. The ALJ issued an award declaring Pratt s condition stationary without permanent impairment as of February 25, 2010. After the ALJ affirmed the decision upon review, this timely special action followed. 1 The parties entered, and the ALJ approved, a stipulation pursuant to Arizona Administrative Code ( A.A.C. ) R20-5-152 disposing of two other unrelated issues, explicitly leaving as the sole issue for hearing whether [Pratt] s claim should remain closed without permanent impairment. 3 DISCUSSION ¶5 On special action review of a workers compensation award, we generally defer to the consider de novo questions of law. ALJ s factual findings but Young v. Indus. Comm n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). The ALJ has primary responsibility for resolving any conflict in the medical experts testimony. Stainless Specialty Mfg. Co. Comm n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985). v. Indus. We will not displace the ALJ s resolution of a conflict unless it is wholly unreasonable, id., or unless there is, in fact, no conflict in the testimony, see Walters v. Indus. Comm n, 134 Ariz. 597, 600 & n.1, 658 P.2d 250, 253 & n.1 (App. 1982). We will not set aside the award unless, viewing the evidence in the light most favorable to sustaining the award, there is no reasonable basis for the ALJ s determination. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). ¶6 Pratt advances a two-step argument for setting aside the October 4 award. First, he contends SCF is barred from relitigating the compensability of his knee injury because it accepted Pratt s September 2009. claim without protest or limitation in Second, he asserts that Dr. Bailie s medical opinion, when limited to addressing the need for surgery rather than the underlying compensability of Pratt s knee condition, is consistent with Dr. Roffi s opinion 4 that Pratt s condition requires surgery. The finding conflicting ALJ, medical he argues, opinions therefore and then erred crediting in Dr. Bailie s opinion that Pratt s medial meniscus tear was not work related. We address the contentions in turn. ¶7 Arizona s workers compensation system is designed to allow carriers to make unilateral benefit determinations, which are subject to the claimant s right to request a hearing. A.R.S. § 23-1061(F) (Supp. 2010); Nelson v. Indus. Comm n, 115 Ariz. 293, 295, 564 P.2d 1260, 1262 (App. 1977). If none of the parties requests a hearing, a notice of claim status becomes final and period. binding at the expiration of a ninety-day protest A.R.S. § 23-947(A)-(B) (Supp. 2010); Church of Jesus Christ of Latter Day Saints v. Indus. Comm n, 150 Ariz. 495, 498, 724 P.2d 581, 584 (App. 1986) (holding claimant may void the binding effect of notice of claim status by filing a hearing request, and carrier can do so by unilaterally issuing a new notice). treated the Once a notice of claim status becomes final, it is same as any other final ICA award. County of Maricopa v. Indus. Comm n, 134 Ariz. 159, 162, 654 P.2d 307, 310 (App. 1982). ¶8 A final ICA award 648 (App. 1993). 5 Issue and by See Circle K Corp. v. Indus. Comm n, 179 Ariz. 422, 642, preclusion effect preclusion. P.2d issue judicata of 880 of res application 428, principles has preclusion claim bars relitigation of an issue of fact that is actually litigated and becomes essential to a final judgment. Red Bluff Mines, Inc. v. Indus. Comm n, 144 Ariz. 199, 204-05, 696 P.2d 1348, 1353-54 (App. 1984). Claim preclusion bars relitigation of the claim actually decided or that could have been decided after a timely protest. W. Cable v. Indus. Comm n, 144 Ariz. 514, 518, 698 P.2d 759, 763 (App. 1985). claim preclusion from Pratt argues that SCF was barred by relitigating the compensability of his meniscus tear because SCF accepted the claim in September 2009, and it became final and binding ninety days later. We thus turn to the ramifications of SCF s acceptance of the claim. ¶9 A claim is compensable if (1) the claimant suffered an injury and (2) the injury was caused by his work. Indus. Comm n, 1977). 116 Ariz. 125, 127, 568 P.2d 432, Yates v. 434 (App. Unless obvious to a lay person, medical evidence is necessary to establish these elements. Noble v. Indus. Comm n, 140 Ariz. 571, 574, 683 P.2d 1173, 1176 (App. 1984). Once the notice becomes final, however, the elements of a compensable claim may not be relitigated at a subsequent claim stage. Aldrich v. Indus. Comm n, 176 Ariz. 301, 307, 860 P.2d 1354, 1360 (App. 1993) (citation omitted). ¶10 to SCF accepted as compensable Pratt s claim for injury his left knee. The medical evidence establishing the elements of compensability was Dr. Roffi s report included in 6 Pratt s initial claim filing. This report described an injury: [p]robable medial, lateral meniscus tears . . . w/ articular cartilage defects & ACL injury in the left knee with [g]radually [increased] symptoms w/ activities @ work . It described of the requisite work-related causation: findings left knee problems [r]elated to running equipment at work and increasing with work activities. Dr. Roffi s notes attached to the report reflected that an MRI had revealed the tear and that a better MRI was recommended to determine the extent of injury and appropriate treatment. SCF had the opportunity to dispute that Pratt s knee injury, including the meniscus tear, was a work-related injury. compensable, however, issue. ¶11 Having SCF was accepted barred Pratt s from injury relitigating as that Aldrich, 176 Ariz. at 307, 860 P.2d at 1360. SCF argues that, because Pratt s August 2009 claim did not specify that surgery was needed, SCF was not precluded from later disputing that Pratt s meniscus tear was work related. SCF conflates two distinct issues: causation of the injury and appropriate treatment for the injury. Upon receipt of Pratt s claim, nothing prevented SCF from litigating whether the tear was caused by work regardless warranted in the future. of what treatment might be SCF was free, however, to dispute the need for surgery because the claim stated that treatment had not then been determined. Consequently, the need for surgery could 7 not have been litigated at the time of acceptance, and claim preclusion did not apply to bar litigation of that issue. Cable, 144 Ariz. at 518, 698 P.2d at 763. stipulation and the ALJ award W. Indeed, the parties accepting that stipulation reflected the viability of that issue. ¶12 For these reasons, we conclude SCF was precluded from relitigating whether Pratt s meniscus tear was work related. The ALJ therefore erred by adopting Dr. Bailee s opinion that the injury was not work related. ¶13 After discounting Dr. Bailee s opinion regarding causation, the remaining medical evidence fails to support the award. Both Drs. Roffi and Bailie agreed that Pratt s meniscus tear should be actively treated. 2 Thus, no conflict in the medical Pratt s evidence existed concerning 2 need for further SCF interprets Dr. Bailie s testimony concerning this issue as merely speculat[ion] as to the legal and/or administrative implications of SCF s acceptance of Pratt s claim, not as Dr. Bailie s expert medical opinion. Dr. Bailie testified: Well, if [SCF] accepted it, then yeah, it should be treated. I didn t find, based on his history, that there s anything in the history that led me to believe that his symptoms could have been caused by the injury that was claimed; but if it was already accepted, then yeah, it needs to be treated. Dr. Bailie himself expressly distinguished his medical opinion as to causation from his medical opinion as to need for treatment. He drew the same distinction in his written report, before he was informed SCF had accepted the claim: I do think an arthroscopy may be beneficial . . . . however [Pratt s] need for surgery would be non[-]industrial. The mere fact he used a legal term ( accepted ) while testifying does not convert his medical conclusion regarding treatment into a legal comment. 8 treatment, and the ALJ erred in the award. See Stainless Specialty, 144 Ariz. at 19, 695 P.2d at 268; Walters, 134 Ariz. at 600-01, 658 P.2d at 253-54; see also A.R.S. § 23-951(D) (Supp. 2010). CONCLUSION ¶14 For the foregoing reasons, we set aside the award. /s/ Ann A. Scott Timmer, Presiding Judge CONCURRING: /s/ Patrick Irvine, Judge /s/ Daniel A. Barker, Judge 9

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