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Miller v. The Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

July 14, 2016

KEVIN MILLER, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, SUN DEVIL FIRE EQUIPMENT, Respondent Employer, AMERISURE INSURANCE, Respondent Carrier.

         Special Action - Industrial Commission ICA Claim No. 20121-450351 Carrier Claim No. 1272801 Aryka S. Radke, Administrative Law Judge

          Snow, Carpio & Weekley, P.L.C., Phoenix By Dennis R. Kurth Counsel for Petitioner Employee

          Industrial Commission of Arizona, Phoenix By Jason M. Porter Counsel for Respondent ICA

          Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix By Stephen C. Baker Counsel for Respondents Employer and Carrier

          Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Judge Patricia K. Norris and Judge Kenton D. Jones joined.

          OPINION

          WINTHROP, Presiding Judge.

         ¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review finding the back injury of the petitioner employee, Kevin Miller ("claimant"), medically stationary. The dispositive issue presented is whether the award of the administrative law judge ("ALJ") adopting the opinion of Edward J. Dohring, M.D., and terminating the claimant's active medical treatment violated principles of issue or claim preclusion. Because preclusion applies, the ALJ erred by adopting Dr. Dohring's opinion; accordingly, we set aside the award.

         I. PROCEDURAL AND FACTUAL HISTORY[1]

         ¶2 The claimant installed fire alarms and security systems for the respondent employer, Sun Devil Fire Equipment, Inc. ("Sun Devil"). In May 2012, the claimant sustained a back injury when the company vehicle he was driving was rear-ended. He filed a workers' compensation claim, which was accepted for benefits by the respondent carrier, Amerisure Insurance Company ("Amerisure"). The claimant received conservative medical treatment until his claim was closed following an independent medical examination ("IME") by John Beghin, M.D., a board-certified orthopedic spinal surgeon.

         ¶3 The claimant timely protested, and ALJ Robert F. Retzer heard testimony from the claimant; his treating orthopedic spinal surgeon, Michael Howard Winer, M.D.; and Dr. Beghin, the carrier's medical expert. In a December 2013 award, the ALJ adopted Dr. Winer's causation and treatment opinions and continued the claimant's medical benefits. That award became final, and the claimant continued to receive treatment from Dr. Winer. Amerisure later sent the claimant to Dr. Dohring, another spinal specialist, for a new IME, conducted on July 30, 2014. Based on Dr. Dohring's report, Amerisure again closed the claimant's claim for active medical treatment.

         ¶4 Again, the claimant timely protested. In 2015, a different ALJ, Aryka S. Radke, heard testimony from the claimant, Dr. Winer, and Dr. Dohring. In an August 2015 award, the ALJ adopted Dr. Dohring's opinion and not Dr. Winer's-whose opinion on the same issues had been earlier accepted by ALJ Retzer- and closed the claim for active medical treatment, allowing for only supportive care. The claimant timely requested administrative review, arguing in part the ALJ was precluded as a matter of law from relying on Dr. Dohring's opinion. The employer and carrier responded to the merits of that argument, and urged that the award be affirmed. After reviewing the memoranda of counsel and the file, the ALJ affirmed the award.

         ¶5 The claimant then timely brought this petition. We have jurisdiction pursuant to Arizona Revised Statutes sections 12-120.21(A)(2) (2016) and 23-951(A) (2012), and Rule 10 of the Arizona Rules of Procedure for Special Actions.

         II. ANALYSIS

         ¶6 The claimant argues that principles of preclusion should have prevented the ALJ from adopting Dr. Dohring's opinion and terminating his active medical benefits.[2]

         ¶7 Because workers' compensation claims are administered sequentially, phases of the process (e.g., compensability, average monthly wage, transfer from total temporary to partial disability status, medically stationary status, impairment rating, loss of earning capacity, award of permanent benefits, etc.) are resolved by a carrier's separate Notices of Claim Status, and if protested, by separate determinations by an ALJ. When any of these determinations, either by Notice of Claim Status or by ALJ decision, become final, they are entitled to preclusive effect. See, e.g., Hardware Mut. Cas. Co. v. Indus. Comm'n, 17 Ariz. App. 7, 9-10, 494 P.2d 1353, 1355-56 (1972) (recognizing that workers' compensation claims are administered through a progression of separate claim stages).

         ¶8 An ICA award has preclusive effect through application of principles of issue preclusion and claim preclusion. See Circle K Corp. v. Indus. Comm'n, 179 Ariz. 422, 428, 880 P.2d 642, 648 (App. 1993). Issue preclusion bars relitigation of an issue that was previously litigated, determined, and essential to a final judgment. Special Fund Div., Indus. Comm'n v. Tabor, 201 Ariz. 89, 92, ¶ 20, 32 P.3d 14, 17 (App. 2001) (citing Circle K Corp., 179 Ariz. at 425, 880 P.2d at 645); Red Bluff Mines, Inc. v. Indus. Comm'n, 144 Ariz. 199, 204-05, 696 P.2d 1348, 1353-54 (App. 1984). "[I]ssue preclusion may apply when successive claim stages have issues of fact or of law in common." Thomas M. Gordon and Melinda K. Poppe, Reopening, Rearrangement, and Settlement, Arizona Workers' Compensation Handbook § 11.4.2 (Ray J. Davis et al. eds., 1992). Claim preclusion bars relitigation of the same claim, i.e., preclusion of matters actually decided or that could have been decided after a timely protest. W. Cable v. Indus. Comm'n, 144 Ariz. 514, 518, 698 P.2d 759, 763 (App. 1985).

         ¶9 The applicability of preclusion to a workers' compensation matter is a mixed question of fact and law; accordingly, we apply a deferential standard of review to the determination of disputed facts supported by reasonable evidence, and apply an independent standard of review to the ultimate determination of whether these facts trigger preclusion. A.J. Bayless v. Indus. Comm'n, 179 Ariz. 434, 439, 880 P.2d 654, 659 (App. 1994); see also Aguayo v. Indus. Comm'n, 235 Ariz. 413, 417, ¶ 17, 333 P.3d 31, 35 (App. 2014) ("Unless the applicability of issue preclusion involves disputed questions of fact, its applicability is a question of law for this court to determine independently." (quoting Tabor, 201 Ariz. at 92, ¶ 20, 32 P.3d at 17)).

         ¶10 To determine whether preclusion applies, we examine the issues raised and the evidence presented at the 2013 and 2015 hearings.

         ¶11Pertinent pre-injury medical history for the claimant indicates he was in a 1999 motor vehicle accident that caused a burst fracture of his L4 disc and required a fusion with placement of rods and screws at the L2-L5 levels. After two years, however, ...


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