Kwietkauski v. Sentry

NOTICE: NOT FOR PUBLICATION.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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JANELLE KWIETKAUSKI, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

v.

SENTRY INSURANCE, Respondent Employer/Respondent Carrier.

No. 1 CA-IC 13-0060
FILED 4-3-2014

Special Action – Industrial Commission
ICA Claim No. 20102-390098 Carrier Claim No. 51C870906
The Honorable JoAnn C. Gaffaney, Administrative Law Judge

AFFIRMED

COUNSEL

Janelle Kwietkauski, Phoenix
Petitioner in Propria Persona

Andrew Wade, Chief Counsel, Phoenix
The Industrial Commission of Arizona
Counsel for Respondent

Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix
By Lisa M. LaMont
Counsel for Respondent Employer/Carrier
 KWIETKAUSKI v. SENTRY
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge John C. Gemmill and Judge Randall M. Howe joined.

T H U M M A, Judge:

¶1 Janelle Kwietkauski challenges an award of the Industrial
Commission of Arizona (ICA) affirming its finding that: (1) Kwietkauski’s
medical conditions became stationary by August 2, 2011 with no
permanent impairment and (2) denying in part penalty benefits to
Kwietkauski for employer Sentry Insurance’s bad faith and unfair claims
processing actions. Because the Administrative Law Judge (ALJ) did not
err, relief is denied.

FACTS AND PROCEDURAL HISTORY

¶2 Kwietkauski worked for Sentry as a worker’s compensation
claims adjustor from 2007 to 2010. On August 18, 2010, Kwietkauski
slipped in Sentry’s parking lot on her way to work, falling on her back,
hip, wrist and hand, resulting in pain in these areas. Kwietkauski reported
the fall to her supervisor. Kwietkauski also reported a second fall from an
office chair that occurred on August 19, 2010. 1 Sentry accepted the claim.

¶3 Kwietkauski visited a number of doctors and Sentry
scheduled Kwietkauski for an independent medical examination (IME).
Kwietkauski missed two IMEs because of unrelated illness, but attended
the third IME to be conducted by Dr. Terry McLean. Dr. McLean felt
uncomfortable when Kwietkauski sought to record the procedure and the
IME did not occur. Kwietkauski then participated in an IME with Dr.
Rockowitz, who found her condition was “stationary without
impairment.” On April 28, 2011, Sentry notified Kwietkauski that her
benefits were suspended because she had obstructed the IME.
Kwietkauski requested a hearing and the ICA treated the request as a

1 The ICA combined the two injuries stating “[a]ny aggravation of
[Kwietkauski’s] injuries from the slip and fall incident the day before, or
any new injuries from the second incident, have been processed under the
August 18, 2010 date of injury claim.”

2
 KWIETKAUSKI v. SENTRY
Decision of the Court

complaint of bad faith and unfair claim processing, which the ICA denied.
In June 2011, Sentry closed Kwietkauski’s file after a 20-day closure letter.

¶4 Kwietkauski requested a hearing to contest the termination
of benefits and the ALJ issued a decision in December 2011 affirming the
termination of benefits. Kwietkauski requested administrative review, and
the ICA affirmed the December 2011 ruling. Kwietkauski then sought
review by this court, which set aside the ICA award finding Sentry could
not suspend her benefits for allegedly obstructing an IME by asserting an
intention to tape record the examination. See generally Kwietkauski v. Indus.
Comm'n, 231 Ariz. 168, 291 P.3d 365 (App. 2012).

¶5 On remand, the parties agreed that this court resolved the
suspension issue in favor of Kwietkauski. On July 12, 2013, the ICA
entered its Decision Upon Hearing and Findings and Award for
Temporary Disability and Finding Bad Faith. The ICA ordered Sentry to
reimburse Kwietkauski $100.00, a credit amount Sentry had charged for
the two missed IMEs. The ICA found that Kwietkauski’s spine, hip and
back conditions had become medically stationary by August 2, 2011, and
thus she was entitled to medical benefits and temporary disability benefits
from August 18, 2010 to August 2, 2011. The ICA awarded a number of
penalty benefits to Kwietkauski based on findings that Sentry committed
unfair claims processing practices, unreasonable underpayment of
disability benefits, unreasonable delay in authorization of medical benefits
or treatments and unreasonable termination (suspension of benefits).

¶6 Kwietkauski filed a Request for Review of Decision Upon
Hearing and Findings. The ICA affirmed and supplemented the Decision
Upon Hearing and Findings and Award. Kwietkauski timely sought
review by this court, which has jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(2), 23-951(A) (2014) 2 and Arizona
Rule of Procedure for Special Actions (ARCAP) 10.

DISCUSSION

¶7 Kwietkauski asks this court to: (1) vacate the ICA’s finding
that her condition was medically stationary by August 2, 2011 with no
permanent impairment and (2) award additional penalties based on her
bad faith and unfair claims processing allegations.

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

3
 KWIETKAUSKI v. SENTRY
Decision of the Court

¶8 When reviewing a workers’ compensation award, this court
views “the evidence in the light most favorable to sustaining the [ALJ’s]
decision,” which will not be set aside if reasonably supported by the
evidence. Delgado v. Indus. Comm’n, 183 Ariz. 129, 131, 901 P.2d 1159, 1161
(App. 1994). Kwietkauski has the burden of proof by a preponderance of
the evidence on all elements of her claim. See Malinski v. Indus. Comm’n,
103 Ariz. 213, 216, 439 P.2d 485, 488 (1968); Biship v. Indus. Comm’n, 17
Ariz. App. 42, 44, 495 P.2d 482, 484 (1972). As applicable here,
Kwietkauski also has the burden to show that her injury is not medically
stationary or that that she has sustained a permanent impairment. See
Timmons v. Indus. Comm’n, 83 Ariz. 74, 79, 316 P.2d 935, 938 (1957).

I. The ALJ Did Not Err In Finding Kwietkauski’s Condition Was
Medically Stationary With No Permanent Impairment.

¶9 The record supports the ALJ’s decision that Kwietkauski’s
condition was medically stationary and that she did not sustain any
permanent impairment. The ALJ considered evidence from Dr. Rockowitz
and Dr. John L. Beghin regarding Kwietkauski’s injuries. Dr. Beghin
found “the claimant to be permanent and stationary regarding her lumbar
spine complaints.” Dr. Rockowitz found that “[w]ith respect to the hip, I
feel she is stationary without impairment,” but did recommend that
Kwietkauski see a spine specialist.

¶10 In her opening brief, Kwietkauski argues that she is “in need
of medical treatment for her injures,” and that “Respondent
Employer/Carrier has provided no medical evidence which contradicts
[Kwietkauski’s] continuing need for medical treatment for her right wrist
injury and psychological symptoms.” However, Kwietkauski had the
burden to show that her medical condition is not stationary. See Timmons,
83 Ariz. at 79, 316 P.2d at 938. By relying on personal assertions as to her
continued need for medical attention, Kwietkauski failed to meet her
burden showing that her condition is not stationary.

¶11 The only evidence presented by Kwietkauski with respect to
her injuries was a prescription by Dr. Rutvik Patel for a splint for her
wrist. However, Kwietkauski never presented any further evidence that
her wrist injury was ongoing and not medically stationary. Additionally,
although Kwietkauski did see Dr. Arthur H. Schurgin, who specializes in
pain management and who was concerned that Kwietkauski had
psychological issues, the ALJ noted in the first Decision Upon Hearing
that “Dr. Shurgin’s comments do not meet the standard set forth in A.R.S.
§ 23-1043.01(B) requiring proof that a physical injury related to the

4
 KWIETKAUSKI v. SENTRY
Decision of the Court

employment was a substantial contributing cause of the injured worker’s
mental injury, illness or condition.” Kwietkauski has not shown this
finding was erroneous.

¶12 The record contains reasonable evidence to support the
ALJ’s finding that Kwietkauski’s hip and back conditions became
medically stationary with no permanent impairment by August 2, 2011.
Additionally, given the lack of evidence presented by Kwietkauski with
respect to her wrist, psychological issues and any further issues, the ALJ
did not err in finding that Kwietkauski was not entitled to continuing
benefits after August 2, 2011 because she “did not present any medical
evidence to support her position that she needs ongoing medical
treatment.”

II. The ALJ Properly Addressed Kwietkauski’s Allegations Of Bad
Faith And Unfair Claims Processing.

¶13 “If the commission finds that unfair claim processing or bad
faith has occurred in the handling of a particular claim, it shall award the
claimant, in addition to any benefits it finds are due or owing, a benefit
penalty of twenty-five per cent of the benefit amount ordered to be paid or
five hundred dollars, whichever is more.” A.R.S. § 23-930(B). For purposes
of A.R.S. § 23-930, actions that constitute “bad faith” are outlined in the
Arizona Administrative Code (A.A.C.) and include unreasonably
terminating benefits, unreasonable delays in payments and improper
communication with a represented claimant. See A.A.C. R20-5-163(A)-(B).
Kwietkauski had the burden to establish her claim to the reasonable
satisfaction of the Commission and this court will not disturb the decision
if it is supported by sufficient evidence. See Pac. Fruit Express v. Indus.
Comm’n, 153 Ariz. 210, 214, 735 P.2d 820, 824 (1987); Malinski, 103 Ariz. at
216, 439 P.2d at 488.

¶14 As applied, the ALJ found for Kwietkauski on her claims of
bad faith/unfair claims processing in certain respects and awarded her a
number of penalty benefits. Kwietkauski, however, argues that there were
additional similar “instances which [she] alleged but were incorrectly
denied” by the ALJ. Kwietkauski argues on appeal that she should have
been awarded a benefit penalty for additional claims of bad faith/unfair
claims processing by Sentry. Kwietkauski discusses at length actions she
claims were bad faith/unfair claims processing by Sentry that the ALJ
rejected. Those claims include an allegation that Sentry did not tell her
when the adjuster assigned to her case was changed and that a letter
advising her of an August 2, 2011 IME indicated it was mailed on June 24,

5
 KWIETKAUSKI v. SENTRY
Decision of the Court

2011, when, in fact, the letter was handed to her on June 27, 2011.
Kwietkauski, however, fails to provide any legal analysis as to why the
actions she relies upon constitute bad faith. Nor does she point to any
requirement that Sentry provide, for example, notice of a change of
adjuster. In addition, Kwietkauski has failed to show how, even if such
action could constitute bad faith, the ALJ abused its discretion in rejecting
Kwietkauski’s bad faith/unfair claims processing allegations in these
respects. Therefore, Kwietkauski failed to meet her burden both legally
and factually.

CONCLUSION

¶15 Because the ALJ did not err, the resulting award and
decision are affirmed.

:MJT

6