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Sayegh v. Industrial Commission of Arizona

Court of Appeals of Arizona, First Division, Department B

October 10, 2013

HANNA SAYEGH, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, TECHNIQUEX, Respondent Employer, COLORADO CASUALTY, Respondent Carrier.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Special Action – Industrial Commission ICA Claim No. 20111-360704 Carrier Claim No. 504469010 Paula R. Eaton, Administrative Law Judge.

Hanna Sayegh, In Propria Persona

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

Klein, Doherty, Lundmark, Barberich & LaMont, P.C. R. Kent Klein Attorneys for Respondent Employer/Respondent Carrier.

MEMORANDUM DECISION

PATRICIA K. NORRIS, Judge.

¶1 In this special action review of an Industrial Commission of Arizona award and decision upon review, petitioner Hanna Sayegh argues the administrative law judge ("ALJ") should not have found his medical condition stationery with no permanent impairment effective August 29, 2011. In support of this argument, Sayegh first asserts the ALJ should not have accepted and relied on the testimony of Irwin Shapiro, M.D., a board-certified specialist in orthopedics, who evaluated him at the request of respondents, and instead, should have adopted and relied on the testimony of Sanjay Patel, M.D., a board-certified specialist in physical medicine and rehabilitation, who evaluated Sayegh at the request of his counsel. We disagree.

¶2 Dr. Shapiro examined Sayegh on August 1, 2011 and January 12, 2012. Based on his examinations of Sayegh and review of Sayegh's medical records, Dr. Shapiro diagnosed Sayegh with degenerative disc disease at multiple levels of the spine. At the hearing, he explained the industrial injury had temporarily aggravated the degenerative disc disease but it had resolved as of August 29, 2011 with no permanent impairment.

¶3 Although Dr. Patel disagreed with Dr. Shapiro's conclusions, when as here, an ALJ, charged with the responsibility of resolving conflicts in medical testimony, adopts one expert's opinion over another, we will not disturb that resolution unless it is "wholly unreasonable." Gamez v. Indus. Comm'n, 213 Ariz. 314, 316, 15, 141 P.3d 794, 796 (App. 2006) (citation omitted). When reviewing the appropriateness of an ALJ's ruling, we are not allowed to weigh the evidence; we are obligated to consider it in the light most favorable to sustaining the award. Perry v. Indus. Comm'n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975). Pursuant to these authorities, the ALJ's adoption of the medical evidence presented by respondents through Dr. Shapiro was not "wholly unreasonable, " and we are not at liberty to reject the ALJ's factual determinations.

¶4 Sayegh also appears to argue we should consider additional medical evidence which he appears to have submitted to the ALJ after the ALJ issued the award and decision upon review. This material is not properly before us, and our review is limited to the evidence presented to the ALJ at the hearing. Cf. Torres v. Indus. Comm'n, 16 Ariz.App. 404, 407, 493 P.2d 1209, 1212 (1972) (upon review, appellate court will not consider affidavit submitted after the close of evidence and not subject to cross-examination); Morris v. Indus. Comm'n, 3 Ariz.App. 393, 396, 414 P.2d 996, 999 (1966) ("[M]atters placed in the record after the hearing may not be considered by the Commission in reaching its decision based upon that hearing, absent the consent of all parties . . . .") .

¶5 Finally, Sayegh appears to argue we should set aside the award because the ALJ was not the same ALJ who decided he had sustained a compensable injury. Compensability and entitlement to benefits are separate issues and can be decided in separate proceedings before different ALJs. See Indus. Indem. Co. v. Indus. Comm'n, 162 Ariz. 503, 508, 784 P.2d 709, 714 (App. 1989).

¶6 For the foregoing reasons, we affirm the award.

CONCURRING: PETER B. SWANN, Presiding Judge, DONN KESSLER, Judge.


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