Jimenez v. Fry's Food Stores

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOE JIMENEZ, SR., Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

FRY’S FOOD STORES OF ARIZONA, INC., Respondent Employer,

FRY’S FOOD STORES OF ARIZONA C/O SEDGWICK, Respondent
Carrier.

No. 1 CA-IC 19-0002
FILED: 10-8-2019

Special Action - Industrial Commission
ICA Claim No. 20170-460378
Carrier Claim No. 30177347256-0001
Layna Taylor, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Joe C. Jimenez, Sr., Scottsdale
Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent

Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix
By R. Todd Lundmark and Danielle S. Vukonich
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.

M c M U R D I E, Judge:

¶1 Joe Jimenez, Sr., seeks review of the Industrial Commission of
Arizona’s (the “Commission”) award and decision upon review awarding
him benefits for an industrial injury he sustained in February 2017. For the
following reasons, we affirm the award.

FACTS AND PROCEDURAL BACKGROUND 1

¶2 Jimenez worked as a cashier and bagger for Fry’s Food Stores
of Arizona, Inc. (“Fry’s”). On February 11, 2017, Jimenez stepped on a metal
pin, which punctured through his right shoe and into his right foot. Jimenez
described the metal pin as part of a security tool typically attached to
clothing as a theft protection device. A few days later, Dr. Robert Dupuis
examined Jimenez and diagnosed his right foot wound as infected,
prescribed antibiotics, and recommended work restrictions. Jimenez filed a
worker’s compensation claim, which Fry’s insurance carrier, Sedgwick
Claims Management Services, Inc. (“Sedgwick”), denied.

¶3 Jimenez timely protested and requested a hearing on the
denial of his claim. In May 2017, Dr. John Nassar, a board-certified specialist

1 We view the facts and all inferences to be drawn therefrom in the
light most favorable to upholding the Commission’s findings and award.
Polanco v. Indus. Comm’n, 214 Ariz. 489, 490–91, ¶ 2 (App. 2007).

2
 JIMENEZ v. FRY'S FOOD STORES
Decision of the Court

in orthopedic surgery, performed an independent medical examination on
Jimenez. After the examination, Dr. Nassar concurred with Dr. Dupuis’
diagnosis that the puncture wound had developed an infection but noted
that Jimenez’s prescribed antibiotics had significantly improved his
condition. After studying x-rays of Jimenez’s right foot, Dr. Nassar also
noted fragmentation and erosion of a bone in the foot that may have been
caused by the injury and subsequent infection. Ultimately, Dr. Nassar
concluded that the injury, infection, and possible damage to the bone were
likely related to his employment at Fry’s but believed that Jimenez could
return to regular duty without restrictions.

¶4 On June 30, 2017, Sedgwick rescinded its denial of Jimenez’s
claim and issued a notice of claim status accepting it and issuing temporary
partial disability benefits for the time between his injury and Dr. Nassar’s
evaluation. Jimenez filed a new protest requesting an explanation for the
acceptance of his claim and to “discuss what options” he had regarding
“preexisting injuries and progressive disability in the course of
employment.” The protest included an extensive list of Jimenez’s past
worker’s compensation claims. Apparently, Jimenez wanted the hearing to
address all worker’s compensation claims he had previously filed with the
Commission.

¶5 On December 14, 2017, while Jimenez’s protest was still
pending, Dr. Nassar performed a second independent medical examination
on Jimenez. Dr. Nassar opined that the right foot injury was medically
stationary, and Jimenez did not require further active medical treatment.
Dr. Nassar concluded that a “5% right lower extremity permanent
impairment rating for the injury [was] appropriate” and recommended
Jimenez receive supportive care for two years, including an allowance for
an annual visit with his podiatrist and replacement of orthotics.

¶6 On January 5, 2018, Sedgwick issued three notices of claim
status informing Jimenez that, per Dr. Nassar’s findings, he was entitled to
scheduled permanent partial disability benefits of five percent for his right
lower extremity and supportive medical maintenance benefits. The notices
also stated that Sedgwick had closed Jimenez’s claim. On January 31, 2018,
the Administrative Law Judge (“ALJ”) held the first of three hearings on
the June 2017 and January 2018 notices. Although he repeatedly attempted
to turn the focus of the proceedings to his past injuries and worker’s
compensation claims, Jimenez eventually raised two arguments concerning
the June 2017 and January 2018 notices.

3
 JIMENEZ v. FRY'S FOOD STORES
Decision of the Court

¶7 First, Jimenez argued he should have received temporary
partial disability benefits after May 25, 2017, because he did not return to
work until July 2017. Second, Jimenez argued the permanent impairment
rating and resulting benefits he received in the January 2018 notices should
have been higher and that he still required active medical treatment for his
right foot. Jimenez testified concerning the extent of his injuries and the
treatment he had received following his right foot injury. Jimenez also
testified that the doctor he had seen for a second opinion after Dr. Nassar’s
examination had not released him for work until July 2, 2017. Jimenez then
requested a podiatrist, Dr. Katherine Kennedy, be subpoenaed to testify on
his behalf.

¶8 The ALJ held the second and third hearings in May 2018. In
the second hearing, Dr. Kennedy testified that she examined Jimenez in
January and February 2018, diagnosed Jimenez with pain and bone damage
in his right foot, and recommended he see a pain management specialist to
discuss long-term pain management. Dr. Kennedy testified that she was
unfamiliar with the relevant guidelines for evaluating permanent
impairments, and that she agreed with the last independent medical
examiner’s finding that the right foot injury had “plateaued.” In the third
hearing, Dr. Nassar testified on behalf of Sedgwick. Dr. Nassar reaffirmed
the findings and conclusions of his evaluations, including his belief that
Jimenez could have returned to work without restriction on May 25, 2017.
When questioned about the permanent impairment rating he had assigned
to Jimenez’s injury, Dr. Nassar testified that he had based his opinion on
the imaging of Jimenez’s foot and the American Medical Association’s
Guides to the Evaluation of Permanent Impairment. Throughout both
hearings, Jimenez consistently attempted to question both Dr. Kennedy and
Dr. Nassar about previous injuries he had sustained and to assert, without
support from either witness’s testimony, that his past and present injuries
were connected.

¶9 In July 2018, the ALJ issued her decision. After summarizing
the evidence presented at the hearings, the ALJ resolved any conflict in the
medical evidence in favor of the opinions of Dr. Nassar. The ALJ then found
that Jimenez’s injury was medically stationary with a five percent
permanent disability in the right lower extremity, and the supportive care
recommended by Dr. Nassar was appropriate. Because Dr. Nassar had
concluded Jimenez was able to work without restrictions on May 25, 2017,
the ALJ found that Jimenez was not entitled to temporary partial disability
benefits beyond what he had already been paid, but that he was entitled to
medical benefits from February to December 2017. However, because
Jimenez’s records showed he had previously been awarded scheduled

4
 JIMENEZ v. FRY'S FOOD STORES
Decision of the Court

permanent disability benefits for a prior injury, the ALJ found that
Jimenez’s permanent partial disability benefits would have to be treated as
unscheduled. See Ronquillo v. Indus. Comm’n, 107 Ariz. 542, 543–44 (1973).
The decision was affirmed upon review.

¶10 Jimenez timely petitioned for special action review, and we
have jurisdiction under Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(2), 23-951(A), and Arizona Rule of Procedure for Special
Actions 10.

DISCUSSION

¶11 At the outset, we note Jimenez’s opening brief raises
numerous issues outside the scope of our review, including: (1) a series of
prior worker’s compensation claims; (2) a request for a compromise
settlement agreement between Fry’s and his union for unfair wage
practices; and (3) a claim that an ALJ in a recent hearing on a separate
worker’s compensation claim inappropriately obstructed his
cross-examination of a witness. 2 See A.R.S. § 23-951(D) (when reviewing an
award of the Commission, “[t]he court of appeals shall enter judgment
either affirming or setting aside the award, order or decision”); Glover v.
Indus. Comm’n, 23 Ariz. App. 187, 188 (1975) (in reviewing worker’s
compensation claim, the court of appeals may “only affirm the award or set
it aside”). Indeed, from what we can discern of Jimenez’s opening brief, he
does not appear to dispute any aspect of the ALJ’s decision, other than to
broadly request an award of $3,000,000. We could dismiss Jimenez’s appeal
for this reason. See Adams v. Valley Nat. Bank, 139 Ariz. 340, 342 (App. 1984)
(a deficient brief may result in the dismissal of an appeal). However, in the
exercise of our discretion, we will review the ALJ’s decision to determine
whether it was reasonably supported by the evidence. See Lovitch v. Indus.
Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).

¶12 In reviewing a worker’s compensation award, we defer to the
ALJ’s factual findings but review questions of law de novo. Young v. Indus.

2 Jimenez also attached an appendix to his opening brief containing a
mix of pictures, medical reports, caselaw, and documents relating to both
this claim and other past and ongoing worker’s compensation claims. To
the extent this appendix contains materials outside the scope of our review
or not presented to the Commission, we do not consider it. See Magma
Copper Co. v. Indus. Comm’n, 139 Ariz. 38, 47 (1983) (“[T]he time for
presentation of evidence is at the hearing before the Commission.”).

5
 JIMENEZ v. FRY'S FOOD STORES
Decision of the Court

Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). The burden is on the injured
employee to establish each element of a claim. Yates v. Indus. Comm’n, 116
Ariz. 125, 127 (App. 1977). When an injury would not be apparent to a
layperson, expert medical testimony is required to establish “not only the
causal connection between a claimant’s medical condition and the
industrial accident, but also the existence and extent of any permanent
impairment.” Gutierrez v. Indus. Comm’n, 226 Ariz. 1, 3, ¶ 5 (App. 2010), aff’d
in part, 226 Ariz. 395 (2011). When a conflict in medical expert testimony
arises, it is the responsibility of the ALJ to resolve it, and we will not disturb
that resolution unless it is “wholly unreasonable.” Stainless Specialty Mfg.
Co. v. Indus. Comm’n, 144 Ariz. 12, 19 (1985). Viewing the evidence in the
light most favorable to sustaining an award, we will affirm the ALJ’s
decision unless there is no reasonable basis for it. Lovitch, 202 Ariz. at 105,
¶ 16.

¶13 Reasonable evidence in the record, as detailed above,
supports the ALJ findings and award. Both Dr. Kennedy and Dr. Nassar
agreed that an infection, likely caused by the puncture wound from the
metal pin, damaged a bone in Jimenez’s right foot, but the injury required
no further active medical treatment. Neither expert offered any testimony
in support of Jimenez’s speculative theory that his right foot injury was
connected to other past injuries. Moreover, to the extent there was any
conflict in the medical evidence between Dr. Kennedy’s and Dr. Nassar’s
testimony, the ALJ resolved it in favor of the opinions of Dr. Nassar.

¶14 Finally, we address the ALJ’s findings concerning Jimenez’s
temporary partial disability and permanent disability benefits claims. After
the first hearing, Jimenez did offer into evidence a doctor’s note that
purported to release him from work until July 2017. However, the burden
is on the worker seeking temporary partial disability benefits to prove an
inability to perform the worker’s regular work, and the ALJ, as the trier of
fact, was well within her discretion to find Dr. Nassar’s testimony
concerning Jimenez’s ability to work more credible. State Compensation Fund
v. Ferrell, 16 Ariz. App. 139, 142 (1971). As for Jimenez’s claim that he was
entitled to greater permanent disability benefits, he offered no evidence to
challenge Dr. Nassar’s permanent impairment rating, which was based on
the American Medical Association’s Guides to the Evaluation of Permanent
Impairment. See Ariz. Admin. Code R20-5-113(B)(1) (“The physician should
rate the percentage of impairment using the standards for
evaluation . . . published by the American Medical Association in Guides to
the Evaluation of Permanent Impairment . . . .”). And the ALJ correctly
concluded that, pursuant to Ronquillo, Jimenez’s right foot injury must be

6
 JIMENEZ v. FRY'S FOOD STORES
Decision of the Court

treated as an unscheduled disability. 107 Ariz. at 543–44. Accordingly, we
find no error in the ALJ’s decision.

CONCLUSION

¶15 For the foregoing reasons, we affirm the Commission’s
award.

AMY M. WOOD • Clerk of the Court
FILED: RB

7