NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JOSE L. REYES, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
PINNACLE PEAK COUNTRY CLUB, Respondent Employer,
THE STANDARD FIRE INSURANCE COMPANY, Respondent Carrier.
No. 1 CA-IC 17-0005
FILED 9-21-2017
Special Action - Industrial Commission
ICA Claim No. 20103-140200
Carrier Claim No. 127-CB-A7N9837-K
The Honorable C. Andrew Campbell, Administrative Law Judge
AFFIRMED
APPEARANCES
Jose L. Reyes, Phoenix
Petitioner Pro Se
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent ICA
Lundmark, Barberich, La Mont & Slavin, P.C.
By R. Todd Lundmark and Danielle S. Vukonich
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Maurice Portley 1 joined.
M c M U R D I E, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) decision denying Jose L. Reyes his petition to reopen an
industrial injury claim. For the following reasons, we affirm the decision of
the Administrative Law Judge (“ALJ”).
FACTS AND PROCEDURAL BACKGROUND
¶2 Reyes worked as a groundskeeper for Pinnacle Peak Country
Club since 2002. On November 4, 2010, Reyes injured his left hand when
his thumb got caught in the handle of a lawnmower. Reyes’s claim was
accepted as arising out of his employment and he received compensation
for his injury effective November 4, 2010. On December 15, 2010, Dr.
Beauchene performed a trigger finger release surgery on his left thumb.
Reyes was initially placed on full duty effective March 31, 2011, but
reverted to light duty on April 15, 2011. In June 2011, Reyes was examined
by Dr. Peter J. Campbell, who opined Reyes “reached a permanent and
stationary status [if the MRI recommended “to rule out any pathology”
should prove negative]” and “no physical therapy would be considered
warranted at this time.”
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
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REYES v. PINNACLE PEAK CC/STANDARD FIRE
Decision of the Court
¶3 Reyes was discharged from his employment on January 11,
2012, and his claim was closed. 2 In his January 2012 medical report, Dr.
Campbell noted Reyes’s “traumatic stenosing tenosynovitis of the
thumb . . . had been treated successfully with surgical intervention,” and no
further treatment was needed. Dr. Campbell also concluded Reyes could
return to work as a groundskeeper without any work restrictions, and that
“[d]ue to the persistent mild pain at the location of the surgical procedure,
a permanent impairment of 2% to the nondominant upper extremity is
reasonable [in accordance with the AMA Guidelines, 6th Edition].” On
February 7, 2012, Reyes was found permanently disabled with “2%
functional loss of minor arm,” for which he was fully compensated
pursuant to Arizona Revised Statutes (“A.R.S.”) section 23-1044(B)(13). 3
¶4 Two years later, in April 2014, Reyes began treatment with a
hand surgeon, Dr. Paul Zidel. On January 21, 2016, Dr. Zidel made
“minimal findings” after he performed an exploratory surgical procedure
on Reyes’s scarring.
¶5 On March 16, 2016, Reyes filed a petition to reopen his
workmen’s compensation claim, which was denied. Reyes timely appealed,
and a hearing took place on August 23, 2016, and November 28, 2016. The
ALJ denied Reyes’s request to reopen his claim. The ALJ found “[t]here is
not a conflict in the medical evidence in this case,” and Reyes “failed to meet
his burden of establishing a new, additional, or previously undiscovered
medical condition.”
¶6 Upon Reyes’s request, the ALJ issued a decision upon review,
in which he affirmed his previous denial of Reyes’s petition. This special
action followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(2),
23-951(A), and Arizona Rule of Procedure for Special Actions 10.
DISCUSSION
¶7 We defer to the ALJ’s factual findings, but review questions
of law de novo. Lane v. Indus. Comm’n, 218 Ariz. 44, 47, ¶ 9 (App. 2008). “[W]e
consider the evidence in the light most favorable to upholding the award.”
Id. We will affirm if the award is supported by reasonable evidence. Delgado
2 On January 8, 2015, the parties stipulated that January 11, 2012,
would be the applicable comparative date.
3 We cite the current version of applicable statutes and rules when no
revision material to this case has occurred.
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REYES v. PINNACLE PEAK CC/STANDARD FIRE
Decision of the Court
v. Indus. Comm’n, 183 Ariz. 129, 131 (App. 1994). The ALJ is the sole judge
of witness credibility and resolves all conflicts in the evidence and draws
warranted inferences from it. See Malinski v. Indus. Comm’n, 103 Ariz. 213,
217 (1968); see also Ortega v. Indus. Comm’n, 121 Ariz. 554, 557 (App. 1979)
(“[I]t is the hearing officer’s obligation to resolve conflicting medical
evidence, and his resolution will not be disturbed unless it is wholly
unreasonable.”).
¶8 We construe Reyes’s opening brief to argue he is entitled to
compensation for treatment after his workmen’s compensation claim’s
closure because his subsequent condition is causally related to his industrial
injury from 2010. 4 The Respondents argue the ALJ’s resolution was
supported by substantial evidence and should be affirmed.
A. Substantial Evidence.
¶9 Reyes had the burden to affirmatively show he was entitled
to compensation. See Malinski, 103 Ariz. at 216. Because the Workmen’s
Compensation Act “does not contemplate a general health and accident
fund[,] . . . there must be a causal connection between the employment and
the injury.” Dunlap v. Indus. Comm’n, 90 Ariz. 3, 6 (1961).
¶10 Once a claim is closed upon distribution of benefits, an
employee may reopen a claim to gain additional benefits by filing a petition
“upon the basis of a new, additional or previously undiscovered temporary
or permanent condition,” A.R.S. § 23-1061(H), and upon demonstrating “a
causal relationship between [that] condition and the prior industrial
injury.” Sun Valley Masonry, Inc. v. Indus. Comm’n, 216 Ariz. 462, 465–66,
¶ 11 (App. 2007). The burden to present sufficient evidence to support
reopening remains with the claimant. Id. at 465, ¶ 11. An expert medical
opinion is required to demonstrate a causal relationship between the
industrial injury and the claimant’s condition when the causal relationship
4 Reyes’s opening brief lacks references to legal authority and the
record, which could be considered abandonment or waiver of his claim. See
ARCAP 13(a)(7)(A) (requiring appellant’s brief to contain arguments with
“citations of legal authorities and appropriate references to the portions of
the record on which the appellant relies”); State v. Carver, 160 Ariz. 167, 175
(1989) (“Failure to argue a claim usually constitutes abandonment and
waiver of that claim.”). However, in our discretion, we decide this appeal
on its merits based on our own review of the record. See Adams v. Valley
Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (courts prefer to decide
each case upon its merits rather than dismissing on procedural grounds).
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REYES v. PINNACLE PEAK CC/STANDARD FIRE
Decision of the Court
is not readily apparent to a layperson. W. Bonded Prods. v. Indus. Comm’n,
132 Ariz. 526, 528 (App. 1982).
¶11 Reyes selected Dr. Zidel, a board-certified plastic surgeon
with a certificate of additional qualifications in hand surgery, to support his
petition to reopen. Dr. Zidel testified there was no objective change in
Reyes’s condition since the closure of his claim in January 2012, including
the results of Reyes’s second surgery. Dr. Zidel also testified regarding his
findings from 2014, where he stated it was “difficult to recreate [Reyes’s]
symptomatology,” Reyes’s exploratory surgery had “minimal findings,”
and his “decreased sensation [was] inconsistent on testing.” Reyes himself
testified his condition “[is] the same” now as it was when his claim was
closed in January 2012.
¶12 Respondents’ medical expert Dr. Campbell, a surgeon
board-certified in hand and orthopedic surgery, reexamined Reyes in July
2016 and noted “[h]is symptoms remain specifically the same as they were
in 2010.” See Modern Trailer Sales of Ariz., Inc. v. Indus. Comm’n, 17 Ariz. App.
482, 486 (1972) (when a medical report contains sufficient information,
medical testimony is not required). Dr. Campbell further concluded “there
is likely a significant psychosocial or secondary gain component to the
claimant’s subjective report of pain” and “no objective findings suggest a
need for any work restrictions.”
¶13 Because Reyes failed to introduce any medical evidence
supporting the reopening of his claim, he did not meet his burden of proof.
See Malinski, 103 Ariz. at 216. The evidence in the record supports the ALJ’s
award. See Chalupa v. Indus. Comm’n, 17 Ariz. App. 386, 391 (1972).
B. Medical Records Provided on Appeal.
¶14 Reyes argues the ALJ failed to consider his documentation.
As part of his opening brief, Reyes attached: (1) an x-ray of his left hand
completed on April 25, 2014; and (2) an ultrasound of his left upper
extremity completed on the same day, with accompanying pictures. The
medical evidence submitted by Reyes on appeal was part of the ALJ’s
record below. We presume the ALJ considered all relevant evidence before
rendering his decision. See Perry v. Indus. Comm’n, 112 Ariz. 397, 398 (1975).
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REYES v. PINNACLE PEAK CC/STANDARD FIRE
Decision of the Court
CONCLUSION
¶15 Because the evidence in the record supports the ALJ’s award
and decision upon review, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6