Opinion
No. 1 CA-IC 19-0043
06-23-2020
RAMON RODRIGUEZ, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, CASEY & SONS, INC., Respondent Employer, COPPERPOINT CASUALTY INSURANCE COMPANIES, Respondent Carrier.
COUNSEL Ramon Rodriguez, Yuma Petitioner Employee Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent CopperPoint Insurance Companies, Phoenix By Chiko F. Swiney Counsel for Respondent Employer/Carrier
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Special Action - Industrial Commission
ICA Claim No. 20161-690041
Carrier Claim No. 16C00450
The Honorable Paula R. Eaton, Administrative Law Judge
AWARD SET ASIDE
COUNSEL Ramon Rodriguez, Yuma
Petitioner Employee Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent CopperPoint Insurance Companies, Phoenix
By Chiko F. Swiney
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined. MORSE, Judge:
¶1 This statutory special action asks us to review an award of the Industrial Commission of Arizona ("ICA") closing Petitioner Ramon Rodriguez's worker's compensation claim after two years with a finding of no permanent impairment. Because the administrative law judge ("ALJ") failed to address all the issues that were presented by Rodriguez and, therefore, did not achieve substantial justice, we set aside the award.
FACTS AND PROCEDURAL BACKGROUND
¶2 Rodriguez was a seasonal truck driver for Respondent Casey & Sons, Inc. In May 2016, one of his truck's tires blew on a highway, he lost control, and plowed into a berm. Rodriguez was propelled into the windshield, hit his head, and hurt his neck, left shoulder, back, right flank, and right knee. He also complained about blurred vision and "floaters" in his right eye. A doctor examined him two days later and noted right-eye trauma and back issues. The doctor prescribed painkillers and referred Rodriguez to an ophthalmologist and neurologist. Rodriguez saw ophthalmologist Adam Ahmadi, MD, who diagnosed Rodriguez with posterior vitreous detachment ("PVD") in the right eye and recommended precautions. Dr. Ahmadi also found cataracts in both eyes. Rodriguez filed a report of injury listing his injuries, including his right eye. Respondent CopperPoint Casualty Insurance Companies accepted the claim.
¶3 CopperPoint closed the claim in September 2018 with no permanent impairment. Rodriguez requested a hearing, and the ICA set a hearing for January 17, 2019. In October 2018, CopperPoint filed its hearing exhibits with the ICA, which included a medical record from the June 2016 visit to Dr. Ahmadi. CopperPoint also filed a request for subpoenas for three medical expert witnesses, two psychiatrists, and a neurologist. Rodriguez, whose counsel withdrew shortly after requesting a hearing, did not file any exhibits and did not request subpoenas before the January 2019 hearing session.
¶4 At the initial hearing session in January 2019, Rodriguez briefly testified about the accident, his injuries including his right-eye injury, and the treatment he received. Rodriguez described his "main problem" as "my brain, my head." The hearing then focused on his neurological issues. After Rodriguez finished testifying, the ALJ had a long conversation with him to explain how the hearing process worked and asked Rodriguez what doctors he would like to testify on his behalf. The ALJ related in some detail how the ICA subpoenaed and scheduled witnesses and explained that Rodriguez needed to show that he was not medically stationary and to present evidence of any permanent impairment. The ALJ told Rodriguez that she was unclear about what he was seeking and what treatment he thought he needed. The ALJ asked what doctors he was currently seeing, and he told her that a nurse practitioner treating him and had recommended that he see a psychologist. The ALJ noted that Rodriguez had not filed subpoena requests but said she would schedule two medical experts of his choice to testify on his behalf. Rodriguez then mentioned that he was seeing a neurologist, Dr. David Marzulo, who had also recommended psychological services. After further discussion, the ALJ stated that she would schedule the nurse practitioner and Dr. Marzulo to testify, along with two doctors who had independently examined Rodriguez on behalf of CopperPoint. Rodriguez's right-eye condition was not further mentioned.
¶5 Nearly two months later, on March 7, 2019, the nurse practitioner appeared and testified at a second hearing. She was unaware that Rodriguez had been in an industrial accident. Rodriguez then explained that he had only consulted her once. This abruptly ended her testimony and the ALJ spoke with Rodriguez again. The ALJ first verified with Rodriguez that the next scheduled witness, Dr. Marzulo, would testify about the industrial injury. Rodriguez then asked about other witnesses that he wanted to call to testify about his condition, including his eye injury, and provided a written list of four doctors, including two ophthalmologists, Dr. Ahmadi and Dr. Anthony de Beus. CopperPoint's counsel objected to the four proposed witnesses because Rodriguez had not timely requested them. The ALJ noted that the request was untimely but stated that she would consider issuing subpoenas and directed Rodriguez to file a written description of the proposed testimony of each of the four doctors within seven days.
¶6 Rodriguez timely filed a written description, stating that two of the doctors were ophthalmologists who had diagnosed him with PVD. The other two were a neurologist he had seen and a general practitioner.
¶7 Dr. Marzulo testified at the next scheduled hearing session on March 20, 2019. He is a neurologist who examined Rodriguez about four months after the accident, ordered an MRI of the brain and an EEG, and diagnosed a concussion and post-concussion syndrome. Dr. Marzulo testified that Rodriguez's post-concussion syndrome was stationary as of October 2017. He concluded that Rodriguez was suffering from depression that was causally related to the injury, and he recommended psychological services.
¶8 After Dr. Marzulo's testimony, the ALJ noted that she had Rodriguez's request for additional witnesses and would issue a ruling. Rodriguez stated that he needed the ophthalmologists to testify because one of the neurologists who performed an Independent Medical Examination ("IME") for CopperPoint, Dr. Powers, was going to testify about Rodriguez's right eye. The ALJ stated that if she allowed any of the requested witnesses to testify, she would have to put off the scheduled testimony of the two IME doctors due to "order of proof" concerns. After Rodriguez brought up his eye condition again, the ALJ asked which ophthalmologist he would want if he could only have one, and he identified Dr. Ahmadi. He also asserted his PVD condition was related to the industrial accident.
¶9 A few weeks later, on April 10, 2019, the ALJ issued an order denying Rodriguez's request, stating only that the request was untimely.
¶10 Dr. Joel Parker, a psychiatrist who evaluated Rodriguez in December 2017, testified about his findings at the next hearing session on April 23, 2019. He initially rendered a diagnosis of "major depression[,] single episode[,] moderate," and recommended an increased dosage of antidepressants. He also recommended a neuropsychological evaluation. After the neuropsychological evaluation was performed, Dr. Parker authored an addendum to his report, changing the diagnosis to "unspecified depressive disorder." Dr. Parker did not find any evidence of a permanent impairment related to the industrial accident, did not recommend any work restrictions, and did not find that Rodriguez needed any additional psychiatric treatment related to the accident.
¶11 The final witness, Dr. John Michael Powers, testified at the next hearing session on May 14, 2019. Dr. Powers is a neurologist who examined Rodriguez in January 2018. Rodriguez described his right-eye trouble to Dr. Powers, stating that he had been seeing lines and spots since the accident and that he had a cataract removed from his right eye after the accident. Dr. Powers tested Rodriguez's eyesight and performed a neurological exam. The results of the neurological exam were normal, leading Dr. Powers to conclude that there was no residual neurological problem related to a concussion or other brain trauma from the accident. He further concluded that Rodriguez's complaints were related more to his depression, which records showed was a condition that pre-existed the accident. As for Rodriguez's right-eye issue, Dr. Powers admitted that if Rodriguez had not seen spots before the accident, his PVD condition was likely an industrial injury. But Dr. Powers did not recommend surgical repair of the PVD. Instead, because the surgery carried risks, Dr. Powers recommended that Rodriguez first have the cataract removed from his left eye to help his vision and perhaps clear his eyesight. Dr. Powers noted that his recommendation agreed with the records of Rodriguez's ophthalmologist, Dr. de Beus, and added that the cataract is not causally related to the injury but was age-related. Dr. Powers concluded that Rodriguez was medically stationary, had no permanent impairment, and required no supportive care or work restrictions.
¶12 The ALJ concluded that Rodriguez was medically stationary as of September 10, 2018, with no permanent impairment and no need for supportive care. Her award resolved any conflicting medical opinions on the neurological and psychological issues in favor of Dr. Powers and Dr. Parker. The award summarized Rodriguez's testimony, including his complaints about his right-eye injury, the testimony of the three medical expert witnesses, and the brief testimony of the nurse practitioner. The decision did not, however, mention Dr. Powers' testimony about Rodriguez's right eye or any of the medical records addressing PVD.
¶13 Rodriguez filed a timely request for administrative review, raising an issue concerning how much temporary benefits he was paid before September 10, 2018, and asserting that the ALJ had not considered the evidence from Dr. Ahmadi or Dr. de Beus about his right eye. Rodriguez attached a partial medical record from Dr. de Beus to his request. The ALJ summarily affirmed the award without discussion.
¶14 Rodriguez raises three issues on appeal: (A) the amount of temporary benefits he was paid before his claim was closed, (B) the sufficiency of the evidence to support the award's conclusion that Rodriguez's neurological condition is medically stationary with no permanent impairment, and (C) the award's lack of consideration of evidence concerning Rodriguez's right-eye injury. We address each of these issues in order.
DISCUSSION
¶15 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. Comm'n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). The injured employee bears the burden of establishing 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). The ALJ must resolve conflicts in medical expert testimony, and we will not disturb the resulting findings unless they are "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 decision unless there is no reasonable basis for it. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).
A. Temporary Disability Benefits.
¶16 Rodriguez complains that he was not paid the proper amount of temporary disability benefits. Yet, he did not present any evidence or argument about the payment issue in the proceedings below. The only time he mentioned it was during his cross-examination of Dr. Parker when it was not relevant. He was re-directed by the ALJ and he never raised it again. Because he failed to present the issue in a timely and clear manner to the administrative tribunal, he has waived that issue.
B. Neurological Condition.
¶17 Sufficient evidence exists to support the ALJ's conclusion that Rodriguez has no permanent neurological impairment and is medically stationary with regard to any concussion caused by the industrial accident. The ALJ's choice to adopt the opinions of Dr. Parker and Dr. Powers over Dr. Marzulo on those issues is reasonable on this record.
C. Right-Eye Injury.
¶18 As for Rodriguez's right-eye injury, we see two issues, one procedural and the other concerning a lack of factual findings and conclusions. We address the procedural concern first.
1. Rodriguez's Request for an Ophthalmologist.
¶19 Rodriguez declared his right-eye injury in his report of injury, it was accepted by the carrier, and he raised it multiple times during the hearing process. The ALJ reviewed the report of injury with him early in Rodriguez's testimony. As recounted above, however, Rodriguez did not ask to have a witness testify about his right eye until well into the hearing process.
¶20 The ICA hearing rules provide that "[a] party may request" the issuance of a subpoena for an expert medical witness by filing a written request at least 20 days before the first scheduled hearing. Ariz. Admin. Code ("A.A.C.") R20-5-141(A)(2) (emphasis added). The rule also allows the ALJ discretion to order the requesting party to provide a written statement of a witness's expected testimony. A.A.C. R20-5-141(A)(3). The rule further states that an ALJ "shall issue a subpoena requested under this [rule] if the judge determines that the testimony of the witness is material and necessary. . . ." A.A.C. R20-5-141(A)(4) (emphasis added). Here, the record is clear that Rodriguez missed the deadline by several months. The rules, however, allow the ALJ discretion to subpoena witnesses who are "material and necessary," even in the face of an untimely request, as the ALJ did in this case with Dr. Marzulo and the nurse practitioner. The issue is whether the ALJ's denial of Rodriguez's untimely request for an ophthalmologist to testify was an abuse of discretion.
¶21 Arizona Revised Statutes § 23-941(F) provides that "the administrative law judge is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure and may conduct the hearing in any manner that will achieve substantial justice." The standard for our review of an ALJ's decision to issue or deny a subpoena, then, is whether the ALJ exercised her discretion in a manner that achieved substantial justice. See Ohlmaier v. Indus. Comm'n, 161 Ariz. 113, 117 (1989) (noting that the objective of an ICA hearing is substantial justice). We are also mindful that "the right to present witnesses on one's own behalf, although certainly not absolute, is a fundamental [tenet] of due process to which an ALJ generally must adhere in order to 'achieve substantial justice.'" Benafield v. Indus. Comm'n, 193 Ariz. 531, 539 (App. 1998) (quoting A.R.S. § 23-941(F)). In another worker's compensation case addressing the timeliness of a filing, we noted:
In practically all other fields of law we have rules and abundant case law which affords relief in appropriate cases where a party fails to meet a specific time limitation . . . . It is the announced general policy of the law that cases should be tried on their merits and not disposed of on technicalities.In re Trull, 21 Ariz. App. 511, 513-14 (1974) (citations omitted). Finally, we also recognize that testimony that is merely repetitive of a medical report is not "material or necessary." Reinprecht v. Indus. Comm'n, 27 Ariz. App. 7, 10 (1976).
These broad legal concepts have particular meaning in the field of Workmen's Compensation where the statutes are remedial in nature and are to be interpreted liberally to see that justice is done. The fact that a claimant must take some affirmative action after every notice of claim status during the processing of his claim means we have numerous time limitation pitfalls for the unwary claimant and his attorney.
¶22 Rodriguez's case is analogous to K Mart Corp. v. Indus. Comm'n, 139 Ariz. 536 (App. 1984). In that case, the carrier submitted a request for a subpoena of its IME psychiatrist, and the ALJ ordered a written statement justifying the need for the subpoena. Id. at 537. When the statement was filed just two days before the initial hearing session, the ALJ denied it for being untimely and because he concluded that counsel had not pursued the subpoena with due diligence. Id. at 538. We held that the ALJ abused his discretion, given that the final hearing session in the case did not take place for nearly another month and a half. Id. at 538-39. Under those circumstances, the sanction the ALJ imposed, denial of the right to present witnesses, was strictly punitive and frustrated the achievement of substantial justice. Id. at 539. We also noted that the ruling was based purely on procedural grounds and did not consider the merits of the proposed testimony. Id.
¶23 In the case before us, the ALJ's ruling expressed only one basis for denial: the untimeliness of the request. While discussing the request with Rodriguez on the record, the ALJ expressed concern for delaying the final decision by adding further hearing sessions. Although the ALJ also expressed concern about the "order of proof," order of witnesses does not appear to be particularly consequential in this administrative hearing. The only other issues expressed by the ALJ and carrier's counsel were timeliness and administrative efficiency and the carrier did not assert that it would be prejudiced by a delay. But the ALJ did not consider whether she could subpoena or schedule a witness for the dates that had already been set for further hearing sessions two weeks and six weeks away.
¶24 Given that Rodriguez had raised his right-eye injury as an issue in his injury report and his testimony, an ophthalmologist was an important and necessary witness for him. That circumstance should have been considered by the ALJ, but there is no indication that it was. Dr. Ahmadi's medical record was already in evidence. CopperPoint argues the admission of Dr. Ahmadi's medical record suggests that Rodriguez was not prejudiced by the absence of an ophthalmologist's testimony. But that medical record said nothing about whether the condition was stationary or involved a permanent impairment. And no records of Dr. de Beus, the most recent ophthalmologist that had examined Rodriguez, were part of the evidence. We conclude that the ALJ abused her discretion by failing to consider scheduling one of the ophthalmologists for either of the two already scheduled hearing dates.
2. Lack of Findings.
¶25 The award mentions Rodriguez's right-eye injury only in summarizing his testimony about the results of the accident. Although Dr. Powers spent a considerable amount of time testifying about Rodriguez's right-eye condition, the award says nothing about that testimony. Because the ALJ made no factual findings as to the right-eye injury (except concerning the origin of the injury), and because there is no indication that the ALJ considered the records of Dr. Ahmadi or the right-eye injury portion of Dr. Powers' testimony, we can only conclude that the ALJ overlooked the issue in failing to rule on it.
¶26 Although an ALJ is not required to make specific findings on every issue presented, the award must dispose of every material issue. CAVCO Indus. v. Indus. Comm'n, 129 Ariz. 429, 435 (1981) (citing Foster v. Indus. Comm'n, 46 Ariz. 90, 92 (1935)). Here, the ALJ made no findings regarding the status of Rodriguez's right-eye injury and whether it is medically stationary or resulted in a permanent impairment. Merely concluding that Dr. Powers' testimony is more probably correct and well-founded, without any findings as to the substance of what Dr. Powers testified about the right-eye injury, is not sufficient.
CONCLUSION
¶27 We set aside the award because the ALJ erred by not at least attempting to schedule an ophthalmologist witness within the already-set hearing schedule and by failing to make findings of fact about the current condition of Rodriguez's right-eye injury.