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Lopez v. Industrial Commission of Arizona

Court of Appeals of Arizona, Second Division, Department A

September 19, 2013

CARLOS ALBERTO LOPEZ, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, G HING FOOD SERVICE, INC., Respondent Employer, SCF ARIZONA, Respondent Insurer

Not for Publication Rule 28, Rules of Civil Appellate Procedure

SPECIAL ACTION - INDUSTRIAL COMMISSION ICA Claim No. 20092380334 Insurer No. 0913713 Gary M. Israel, Administrative Law Judge

Carlos Alberto Lopez, In Propria Persona

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

James B. Stabler, Chief Counsel SCF Arizona, Joseph N. Lodge, Attorneys for Respondent Insurer

MEMORANDUM DECISION

MICHAEL MILLER, Judge

¶1 In this statutory special action, petitioner Carlos Lopez contends the administrative law judge (ALJ) erred in dismissing his petition to reopen his workers' compensation claim for knee pain. The ALJ determined Lopez's claim was barred by the principle of issue preclusion. For the reasons given below, we affirm the award dismissing Lopez's petition to reopen.

Factual and Procedural Background

¶2 On review, we consider the evidence in the light most favorable to upholding the ALJ's findings and award. Polanco v. Indus. Comm'n, 214 Ariz. 489, ¶ 2, 154 P.3d 391, 392-93 (App. 2007). On August 12, 2009, Lopez was injured while working as a delivery driver for G Hing Food Service, Inc. ("G Hing"). His truck rolled over, pinning him into the truck's cab by the steering wheel, and injuring his back, head, right hand, and right leg. G Hing's insurance carrier, SCF Arizona, accepted Lopez's claim for workers' compensation benefits. Lopez's doctor cleared him to return to work on September 10, 2009. SCF closed Lopez's claim on November 7, 2009, with a finding of no permanent disability.

¶3 Lopez petitioned to reopen his claim in January 2012, claiming right leg pain and a limp. SCF denied the petition. Lopez requested a hearing, arguing he had a new additional or previously undiscovered knee condition. ALJ LuAnn Haley reviewed medical records and heard testimony from Lopez's treating physician and an independent medical expert.[1] Lopez's physician said Lopez had a tear in the cartilage or meniscus of his knee, and concluded the injury was new and had been caused by the industrial accident. The independent medical examiner opined the knee pain was the result of a preexisting degenerative hip condition that could not have been aggravated by the industrial accident. ALJ Haley accepted the independent medical examiner's opinion as "most probably correct and well founded, " further concluding that Lopez did not have a new condition related to the 2009 industrial injury. Lopez did not protest ALJ Haley's decision and it became final. A.R.S. § 23-942(D) (award final when entered unless party files request for review).

¶4 In October 2012, Lopez filed a new petition to reopen, claiming increased knee and hip problems. SCF denied Lopez's petition, and he filed a request for hearing. G Hing and SCF moved to dismiss Lopez's petition to reopen, arguing the claim was barred by res judicata and Blickenstaff v. Indus. Comm'n, 116 Ariz. 335, 339, 569 P.2d 277, 281 (App. 1977), which requires a petition to reopen be accompanied by a physician's report containing "sufficient medical facts which, if true, would constitute a prima facie showing of entitlement to relief." After reviewing the file and records, but without holding a hearing, ALJ Gary M. Israel dismissed the petition. He concluded that issue preclusion principles did not allow Lopez to relitigate the claim. Lopez filed a request for review, which was summarily denied. He then filed a timely petition for special action. We have jurisdiction to review ALJ Israel's award pursuant to A.R.S. §§ 12-120.21(A)(2) and 23-951(A).

Discussion

¶5 We defer to the ALJ's findings of fact, but independently review questions of law, including issue preclusion. See Special Fund Div., Indus. Comm'n v. Tabor, 201 Ariz. 89, ¶ 20, 32 P.3d 14, 17 (App. 2001); Polanco v. Indus. Comm'n, 214 Ariz. 489, ¶ 6, 154 P.3d 391, 393-94 (App. 2007). Issue preclusion forecloses a party from litigating an issue actually litigated in a prior proceeding that resulted in a final judgment. Circle K Corp. v. Indus. Comm'n, 179 Ariz. 422, 425, 880 P.2d 642, 645 (App. 1993). The party against whom the doctrine will be used must have had an opportunity to litigate the issue and must have actually litigated it. Id Further, the issue must have been essential to the final judgment. Id.

¶6 The workers' compensation statutes provide an exception to the general principles of claim and issue preclusion in industrial commission cases. Stainless Specialty Mfg. Co. v. Indus. Comm'n, 144 Ariz. 12, 15, 695 P.2d 261, 264 (1985). Section 23-1061(H), A.R.S., allows claims to be reopened to address changed circumstances when an employee can prove a "new, additional or previously undiscovered temporary or permanent condition." Polanco, 214 Ariz. 489, ¶ 6, 154 P.3d at 393. A new diagnosis may satisfy the requirements and allow reopening. See Stainless, 144 Ariz. at 19, 695 P.2d at 268. Reopening is not allowed, ...


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