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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KEVIN JONES, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
DAISY MOUNTAIN FIRE DISTRICT, Respondent Employer,
COPPERPOINT INSURANCE COMPANY, Respondent Carrier.
No. 1 CA-IC 20-0022
FILED 4-6-2021
Special Action - Industrial Commission
ICA Claim No. 96092-893057
Carrier Claim No. 96-10498
The Honorable Amy L. Foster, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Lawrence P. Nicholls PC, Phoenix
By Lawrence P. Nicholls
Sarkisov & Roesch PLLC, Phoenix
By George V. Sarkisov
Co-Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
CopperPoint Insurance Company, Phoenix
By Chiko F. Swiney
Counsel for Respondent Employer and Carrier
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Cynthia J. Bailey joined.
C A T T A N I, Judge:
¶1 Kevin Jones challenges an Industrial Commission of Arizona
award and decision upon review denying him ongoing supportive care
related to a 1996 industrial injury. For reasons that follow, we affirm the
award.
FACTS AND PROCEDURAL BACKGROUND
¶2 Jones was exposed to an unknown white powder, later
reported to be an “organophosphate,” while working as a firefighter in
1996. His treating physician, Dr. Michael Gray, diagnosed (1)
“[o]rganophosphate induced delayed onset vocal cord paralysis, with
paradoxical closing of the cords on inspiration, secondary to organophosphate
induced delayed onset neuropathy involving the laryngeal nerve,” (2)
“reactive airways disease with very severe small airway obstruction, moderate
large airway obstruction, and moderate restrictive respiratory defect,” (3)
“[p]roinflammatory immune toxicity state secondary to organophosphate
exposure,” and (4) “[t]oxic encephalopathy confirmed by limited
neuropsychological testing.”
¶3 Jones’s claim was closed in 1999 with an award for permanent
and total disability. Around the same time, the predecessor to carrier
CopperPoint Insurance Company issued a notice authorizing supportive
care, to be reviewed annually, including four to six doctor visits per year
plus medications and lab work as managed by Dr. Gray. Over the next 20
years, Dr. Gray had Jones on a regimen of quarterly blood draws along with
medications and supplements designed to remove toxins from his system
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JONES v. DAISY/COPPERPOINT
Decision of the Court
and replace vitamins that the cleansing removes, and CopperPoint covered
this supportive care program.
¶4 In 2019, however, CopperPoint notified Jones that the blood
draws and laboratory testing would no longer be covered. Jones requested
relief under A.R.S. § 23-1061(J) on the basis that CopperPoint’s decision
denied him benefits to which he was entitled, later asserting that
CopperPoint was estopped from denying responsibility for his medical
condition. CopperPoint denied wrongdoing and sent Jones to be evaluated
by three doctors, including toxicologist Dr. Daniel Brooks.
¶5 The case went to a hearing before an administrative law judge
(“ALJ”) on the issue of whether supportive care related to the 1999
diagnoses remained appropriate. Jones testified about the exposure
incident and his condition over the following 20 years. Dr. Gray testified
about the care he had provided over that period and opined that Jones
continued to suffer the effects of neurotoxicity stemming from his exposure
to an organophosphate. Dr. Gray recommended as medically necessary
continued supportive care including bronchodilators, medications,
periodic pulmonary function testing, a toxin cleansing protocol, and over-
the-counter supplements, with lab work two to four times per year.
¶6 Dr. Brooks testified to the contrary that Jones no longer
suffered symptoms related to the industrial injury and thus did not require
supportive care. Dr. Brooks explained that during the July 2019 evaluation,
Jones reported ongoing subjective symptoms, but a physical examination
showed no unusual objective findings. Dr. Brooks acknowledged that
Jones initially had vocal cord dysfunction but opined that all resulting
symptoms had since resolved, and he testified that none of the care
provided by Dr. Gray was medically necessary or related to the industrial
injury. Dr. Brooks expressly disagreed with Dr. Gray’s 1999 diagnoses and
testified that the treatment regimen overseen by Dr. Gray did not comport
with the standard of care. Dr. Brooks also testified, however, that even
assuming the 1999 diagnoses were accurate, no related symptoms remained
active and no ongoing supportive care was necessary.
¶7 The ALJ resolved the conflict in medical evidence by adopting
Dr. Brooks’s opinion as more credible and thus issued an award denying
further supportive care. Jones requested administrative review, again
asserting that CopperPoint was precluded from denying his need for
supportive care, but the ALJ affirmed the award. Jones petitioned for
review, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(2), 23-
951(A), and Rule 10 of the Arizona Rules of Procedure for Special Actions.
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JONES v. DAISY/COPPERPOINT
Decision of the Court
DISCUSSION
¶8 On review of a workers’ compensation award, we defer to the
ALJ’s factual findings but independently review the ALJ’s legal
conclusions. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003).
We will affirm if, considering the evidence in the light most favorable to
upholding the decision, reasonable evidence supports the award. Lovitch v.
Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).
¶9 Jones first argues that because his diagnoses were litigated to
a final judgment in 1999 and the carrier issued a notice providing
supportive care at that time, CopperPoint is now precluded from disputing
his need for supportive care related to his industrial injury. While
principles of preclusion apply to workers’ compensation awards generally,
see Circle K Corp. v. Indus. Comm’n, 179 Ariz. 422, 425–27 (App. 1993),
preclusion only bars relitigation of facts or claims that have been actually
litigated and determined by a valid final judgment. Red Bluff Mines, Inc. v.
Indus. Comm’n, 144 Ariz. 199, 204–05 (App. 1984). Here, because the carrier
voluntarily issued a notice providing supportive care, the issue of
supportive care was never litigated.
¶10 Contrary to Jones’s contention, the unprotested notice of
supportive care—which was expressly subject to annual review—did not
become a final adjudication entitled to preclusive effect. See Capuano v.
Indus. Comm’n, 150 Ariz. 224, 226–27 (App. 1986) (contrasting notices of
claim status, which become final adjudications and res judicata under § 23-
947(B) if not timely protested, with notices of supportive care, which “may
be reviewed and adjusted at any time, under A.R.S § 23-1061(J), without
resort to the formal reopening procedures required to alter notices of claim
status”); see also Bank One Corp. v. Indus. Comm’n, 226 Ariz. 134, 136, ¶ 7
(App. 2010). CopperPoint’s voluntary payment of supportive care subject
to annual review did not determine with finality that Jones’s industrial
injury would require supportive care forever. See Capuano, 150 Ariz. at 226–
27.
¶11 Nevertheless, Jones argues that preclusion applies here under
Brown v. Industrial Commission, 199 Ariz. 521 (App. 2001), which recognized
an exception to the general rule that notices of supportive care do not bar
later adjustment. Id. at 524, ¶ 14. But Brown addressed finality and
preclusion when entitlement to supportive care benefits was in fact litigated
and decided by an ALJ. See id. at 522–23, ¶¶ 3, 6; see also Bank One, 226 Ariz.
at 136, ¶ 8. Jones’s entitlement to supportive care was not previously
litigated; his reliance on Brown is thus misplaced.
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JONES v. DAISY/COPPERPOINT
Decision of the Court
¶12 Finally, Jones contends that the ALJ erred by adopting Dr.
Brooks’s opinion because it was based on a faulty foundation. Jones
highlights Dr. Brooks’s disagreement with Dr. Gray’s long-accepted
diagnoses from 1999 and asserts that this disagreement fatally undermines
Dr. Brooks’s opinion that no ongoing supportive care was necessary. See
Desert Insulations, Inc. v. Indus. Comm’n, 134 Ariz. 148, 151 (App. 1982)
(recognizing that an underlying material factual inaccuracy may
undermine medical testimony). But although Dr. Brooks did disagree with
the initial diagnoses, he also testified that even assuming the 1999 diagnoses
were accurate, no further supportive care was necessary. The record
provides an adequate basis for Dr. Brooks’s opinion, based on his records
review and physical examination, that Jones no longer suffered active
symptoms related to the industrial injury necessitating supportive care.
The ALJ thus had a reasonable basis to adopt Dr. Brooks’s opinion over Dr.
Gray’s, see Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988); Perry
v. Indus. Comm’n, 112 Ariz. 397, 398–99 (1975), and we do not reweigh the
evidence on appeal. Salt River Project v. Indus. Comm’n, 128 Ariz. 541, 544
(1981).
CONCLUSION
¶13 The award is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
5