Action - Industrial Commission ICA Claim No. 20121-450351
Carrier Claim No. 1272801 Aryka S. Radke, Administrative Law
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.
WINTHROP, Presiding Judge.
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.
PROCEDURAL AND FACTUAL HISTORY
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.
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
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.
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.
The claimant argues that principles of preclusion should have
prevented the ALJ from adopting Dr. Dohring's opinion and
terminating his active medical benefits.
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
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).
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)).
To determine whether preclusion applies, we examine the
issues raised and the evidence presented at the 2013 and 2015
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, ...