Opinion
No. 1 CA-IC 13-0028
05-08-2014
NICOLE HARRISON, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, CITY OF PHOENIX, Respondent Employer, CITY OF PHOENIX c/o YORK RISK SERVICES GROUP, Respondent Carrier.
Taylor & Associates, PLLC, Phoenix By Thomas C. Whitley Counsel for Petitioner Employee Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Jardine, Baker, Hickman & Houston, PLLC, Phoenix By K. Casey Kurth Counsel for Respondents Employer and Carrier
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Special Action - Industrial Commission
ICA CLAIM NOS. 20062-930581****, 20072-400473***, 20070-930611**,
20092-950415*
CARRIER CLAIM NOS. 200699505****, 2007532675***, 200776725**,
200944750*
Suzanne Scheiner Marwil, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Taylor & Associates, PLLC, Phoenix
By Thomas C. Whitley
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By K. Casey Kurth
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Acting Presiding Judge John C. Gemmill and Chief Judge Diane M. Johnsen joined.
HOWE, Judge:
¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award and decision upon review denying a petition to reopen. On appeal, Nicole Harrison argues that the administrative law judge (ALJ) erred by relying on Dr. John L. Beghin's opinion to support the award. Finding no error, we affirm the award.
FACTUAL AND PROCEDURAL HISTORY
¶2 Harrison was hired as a firefighter for the City of Phoenix (Phoenix) in 2002. During her ten years as a firefighter, she sustained neck injuries on December 5, 2005, and September 13, 2006. Harrison sustained a third neck injury on October 16, 2009, while she was assisting a stranded motorist change a tire. She experienced neck and back pain, sought medical treatment at the Phoenix Fire Department Health Center (Health Center), and filed a workers' compensation claim.
¶3 In March 2010, Harrison returned to her regular work. She testified that she never fully recovered after the October 2009 incident and self-treated with chiropractic care and massage. The respondent carrier, York Risk Services Group (York), wrote to Harrison to ascertain whether she had received any medical treatment after April 16, 2010. When Harrison did not respond, her claim was closed with no permanent impairment.
¶4 Harrison testified that her neck condition suddenly worsened on January 3, 2011. She awoke that morning with pain and numbness from her neck down her left arm and into her left hand. Harrison immediately sought treatment at the Health Center. Dr. Jason Sherman, M.D., obtained an MRI scan and provided unsuccessful conservative treatment.
¶5 Dr. Sherman referred Harrison to Dr. Justin S. Field, M.D., a spine surgeon, for further treatment. Dr. Field reported that a January 11, 2011, MRI showed a large left sided herniated disk at C5-6 and a moderate right sided herniated disk at C6-7. He recommended a discectomy and fusion from C5 through C7. Harrison underwent surgery on February 16, 2011.
¶6 Harrison filed a petition to reopen her 2009 injury claim. When York denied the petition, Harrison timely requested an ICA hearing. Before the hearing, York obtained an independent medical examination (IME) by Dr. Beghin. Based on Dr. Beghin's IME report, Harrison filed additional petitions to reopen three earlier neck injury claims dated September 13, 2006, March 21, 2007, and August 15, 2007. Each petition was denied for benefits, timely protested, and consolidated for hearing with the petition to reopen the 2009 injury claim.
¶7 The ALJ heard testimony from Harrison, Dr. Field, and Dr. Beghin. The ALJ entered a consolidated award denying all four petitions to reopen. Harrison timely requested administrative review, but the ALJ summarily affirmed her award. Harrison timely appeals.
DISCUSSION
¶8 Harrison argues that the ALJ erred by refusing to reopen her claims for an industrial injury. We reject her argument. In reviewing findings and awards of the ICA, we defer to the ALJ's factual findings, but review questions of law de novo. Young v. Indus. Comm'n, 204 Ariz. 267, 270 ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most favorable to upholding the ALJ's award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105 ¶ 16, 41 P.3d 640, 643 (App. 2002).
¶9 The statutory requirements for reopening are found in A.R.S. § 23-1061(H):
An employee may reopen the [employee's] claim to secure . . . additional benefits by filing with the commission a petition requesting the reopening of the employee's claim upon the basis of a new, additional or previously undiscovered temporary or permanent condition, which petition shall be accompanied by a statement from a physician setting forth the physical condition of the employee relating to the claim. . . . A claim shall not be reopened because of increased subjective pain if the pain is not accompanied by a change in objective physical findings.
The claimant bears the burden to present sufficient evidence to support reopening. See Hopkins v. Indus. Comm'n, 176 Ariz. 173, 176, 859 P.2d 796, 799 (App. 1993). When the causal connection between the condition and the prior industrial injury is not readily apparent, it must be established by expert medical testimony. See Makinson v. Indus. Comm o n, 134 Ariz. 246, 248, 655 P.2d 366, 368 (App. 1982).
¶10 "In cases involving a first petition to reopen, the comparison points for establishing the necessary change of condition are the date the claim was closed and the date the petition to reopen was filed." Cornelson v. Indus. Comm'n, 199 Ariz. 269, 271 ¶ 14, 17 P.3d 114, 116 (App. 2001). When the claimant has filed successive petitions to reopen, the comparison points for establishing a change in condition are the prior final award denying the previous petition to reopen and the date the subsequent petition to reopen was filed. Phoenix Cotton Pickery v. Indus. Comm'n, 120 Ariz. 137, 139, 584 P.2d 601, 603 (App. 1978).
¶11 Harrison failed to meet her burden of proving that the February 2011 surgery was a new, additional, or previously undiscovered condition causally related to the specific neck injury claim for which she had filed a petition to reopen. In her attempt to do so, Harrison presented testimony from Dr. Field. He opined that one or more of the four industrial injuries contributed to Harrison's need for surgery. Unaware that Harrison had advanced a workers' compensation claim, however, Dr. Field did not identify a specific work injury date. Because Dr. Field's testimony failed to satisfy the requisite statutory change in condition for any of the individual petitions to reopen, Harrison has failed to meet her burden to reopen her claim.
¶12 Dr. Beghin's testimony also did not satisfy the requisite statutory change in condition to reopen Harrison's claim. At the ICA hearing, Dr. Beghin testified that he had insufficient information about
Harrison's 2005 and 2006 industrial injuries "to determine if those injuries resulted in damage to the disc at C5-6 or if she was experiencing pain in the neck in 2005 and 2006 because she had a degenerative disc at C5-6 and then she had some overlapping minor trauma at work which aggravated the condition symptomatically but may not have contributed structurally." Without that information, Dr. Beghin concluded that he could not relate those injuries to the need for surgery in 2011.
¶13 Dr. Beghin opined that the herniated cervical disc that led to the 2011 surgery "probably" originated before the April 10, 2007, MRI. His IME report stated that a review of medical records for the industrial injuries occurring before that date would help establish causation. Despite that statement, Dr. Beghin was not provided with additional records for the 2005 or 2006 industrial injuries and Harrison did not petition to reopen the 2005 claim. Accordingly, Dr. Beghin's testimony did not support Harrison's petition to reopen her claims.
CONCLUSION
¶14 For the foregoing reasons, we affirm the award.