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Aguayo v. The Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

August 12, 2014

JOSE AGUAYO, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, CEMEX, Respondent Employer, GALLAGHER BASSETT SERVICES, Respondent Carrier.

Special Action - Industrial Commission ICA CLAIM NO. 20101-400068 CARRIER CLAIM NO. 001151-011042-WC01 Anthony Halas, Administrative Law Judge

Snow, Carpio & Weekley, PLC, Phoenix By Chad T. Snow Toby Zimbalist, Phoenix Co-Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Jardine, Baker, Hickman & Houston, Phoenix By Stephen Baker Counsel for Respondents Employer and Carrier

Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.

OPINION

JON W. THOMPSON, JUDGE:

¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award and decision upon review for temporary disability benefits. The petitioner employee (claimant) presents two issues on appeal:

(1) whether Edward J. Dohring, M.D.'s testimony was legally sufficient to support the award; and
(2) whether the ICA's May 13, 2011 award precluded the administrative law judge in the current proceedings from finding that the May 3, 2010 industrial injury caused only a temporary aggravation of the claimant's L5-S1 disc protrusion.

Because we conclude that Dr. Dohring's testimony was legally sufficient to support the award and that preclusion does not apply, we affirm.

JURISDICTION AND STANDARD OF REVIEW

¶2 This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(2) (2003), 23-951(A) (2012), and Arizona Rules of Procedure for Special Actions 10 (2013).[1] In reviewing findings and awards of the ICA, we defer to the administrative law judge's factual findings, but review questions of law de novo. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most favorable to upholding the administrative law judge's award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).

FACTUAL AND PROCEDURAL HISTORY

¶3 The claimant worked for the respondent employer, Cemex, for more than twenty years. He sustained an industrial back injury on July 20, 1990, and underwent two back surgeries for an L4-5 disc herniation. This claim closed with a ten percent permanent impairment and work restrictions, and the claimant returned to work at Cemex.

¶4 The claimant continued to perform his regular work until May 3, 2010, when he sustained a new industrial injury to his back. He filed a workers' compensation claim, which was accepted for benefits, and then closed following an independent medical examination (IME) by James Maxwell, M.D. The claimant timely requested a hearing on the ...


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