Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Special Action – Industrial Commission ICA Claim No. 0000P109976 Insurer No. 7941536 Gary M. Israel, Administrative Law Judge.
Tretschok, McNamara & Miller, P.C., Tucson By Patrick R. McNamara Counsel for Petitioner Employee.
The Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent.
CopperPoint Mutual Insurance Company, Tucson James B. Stabler, Chief Counsel By Veronique Pardee Counsel for Respondents Employer and Insurer.
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Miller and Judge Espinosa concurred.
ECKERSTROM, CHIEF JUDGE.
¶1 In this statutory special action, petitioner employee Carol Watson challenges the award of the administrative law judge (ALJ) denying her petition to reopen her claim. She contends the award is not supported by sufficient evidence and the ALJ erred in denying her request to subpoena her psychologist as a witness. We affirm for the reasons that follow.
Factual and Procedural Background
¶2 "On review, we consider the evidence in the light most favorable to upholding the award, and we deferentially review all factual findings made by the ALJ." Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 2, 275 P.3d 638, 640 (App. 2012) (citation omitted). In 1979, Watson suffered a femoral hernia as a result of a work-related accident. She underwent seven surgeries to correct the problem and its resulting complications from infections. She then had six more surgeries, one of which included an abdominal muscle graft to close her wound. When she later developed an incisional hernia, the wound reopened, and an additional muscle graft was required. In all, seventeen surgeries resulted from Watson's industrial accident, and her claim was accepted and closed with a permanent unscheduled disability in 2007.
¶3 After filing a petition to reopen that was denied on May 21, 2013, Watson again sought treatment in a hospital and filed another petition to reopen in March 2014. Her treating physician, Dr. John Corcoran, testified at the hearing on the petition that Watson's condition had changed since the 2013 decision, with Watson having active hernias, a partial bowel obstruction, and dysmotility syndrome related to her industrial accident.
¶4 Dr. Jolyon Schilling performed an independent medical examination in this case and disagreed with Dr. Corcoran. Schilling testified that the present hernia did not cause any bowel obstruction or pain, and it was "not . . . clinically significant." He found no objective evidence Watson had dysmotility syndrome or a bowel obstruction. To the extent she had any intra-abdominal adhesions, as Corcoran testified, Schilling believed these were more likely the result of a hysterectomy that preceded the industrial accident.
¶5 As a result of these findings, Dr. Schilling testified that Watson likely had a psychological condition known as factitious disorder, which is characterized by the falsification of signs or symptoms of injury or disease. The ALJ permitted Schilling to be cross-examined about factitious disorder and allowed evidence of it to be admitted into the record, including a report from Watson's treating psychologist, Dr. Steven Gurgevich. The ALJ denied Watson's request to subpoena this witness, however, explaining later that he did not rely on any testimony concerning Schilling's psychological diagnosis and believed it to be irrelevant to the issues presented.
¶6 The ALJ found Dr. Schilling's testimony concerning Watson's physical condition to be more likely correct and well-founded, and he consequently denied the petition to reopen. The ALJ affirmed the award after Watson filed a request for administrative review. We have jurisdiction to review these rulings pursuant to A.R.S. ...