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Deleon v. Industrial Commission of Arizona

Court of Appeals of Arizona, First Division, Department B

August 22, 2013

FLORENTINO DELEON, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, ALBERTSON'S, Respondent Employer, SPECIALTY RISK SERVICES, Respondent Carrier.

Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure

Special Action – Industrial Commission ICA Claim No. 20111-080392 Carrier Claim No. YME36762C Administrative Law Judge Karen Gianas

Thomas C. Wilmer, P.C. Phoenix By Thomas C. Wilmer Attorney for Petitioner Employee

Andrew F. Wade, Chief Counsel Phoenix The Industrial Commission of Arizona Attorney for Respondent

Klein, Doherty, Lundmark, Barberich & La Mont, P.C. Phoenix by Julie A. Doherty Christopher D. Hill Attorneys for Respondents Employer and Carrier

MEMORANDUM DECISION

SAMUEL A. THUMMA, Judge

¶1 This is a statutory special action review of an Industrial Commission of Arizona (ICA) award and decision upon review for a scheduled permanent impairment. Three issues are raised with this court:

(1) whether reasonable evidence of record supports the administrative law judge's (ALJ) finding that the petitioner employee (Claimant) is medically stationary;
(2) whether the ALJ's award is internally inconsistent by relying on portions of medical opinions provided by two doctors; and
(3) whether the ALJ's finding that the Claimant is medically stationary can be sustained in the absence of a medical examination.

Because the record reasonably supports the ALJ's conclusion that Claimant's condition is medically stationary, and because there is no improper inconsistency in the ALJ's adoption of portions of medical opinions from two doctors, the award is affirmed.

FACTUAL AND PROCEDURAL HISTORY

¶2 On April 8, 2011, while working as a baker for respondent employer Albertson's, Claimant injured his left knee when he slipped and fell. Claimant filed a workers' compensation claim, which was accepted for benefits. Claimant then had arthroscopic surgery on his left knee and his claim was closed with a scheduled permanent partial impairment. Claimant timely protested and requested an ICA hearing.

¶3 The ALJ heard testimony from Claimant and medical doctors Richard A. Peairs and Anikar Chhabra. On the evidence presented, the ALJ entered an award for a scheduled permanent partial ...


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