Mattos v. starwood/zurich

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARMANDO MATTOS, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

STARWOOD HOTEL & RESORTS WORLDWIDE, INC., Respondent
Employer,

ZURICH AMERICAN INSURANCE C/O SEDGWICK, CMS, Respondent
Carrier.

No. 1 CA-IC 14-0041
FILED 7-2-2015

Special Action – Industrial Commission
ICA Claim No. 20092-860325
Carrier Claim No. 010515078470WC01

Margaret A. Fraser, Administrative Law Judge

AWARD AFFIRMED
 COUNSEL

Snow, Carpio & Weekley, PLC, Phoenix
By Erica González-Meléndez
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent

Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix
By Scott H. Houston, Rae Richardson
Counsel for Respondents Employer and Carrier

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined.

T H O M P S O N, Judge:

¶1 This is a special action review of an Industrial Commission of

Arizona (“ICA”) award and decision upon review for a scheduled

permanent impairment and supportive care. The petitioner employee

(“claimant”) presents one issue on appeal: whether the March 11, 2011

notice of claim status (“NCS”) was void on its face. 1 Because the evidence

1 Although both parties refer to the March 11, 2011 NCS in their
arguments, we presume that they are in fact discussing the March 11, 2011
Notice of Permanent Disability or Death Benefits. The March 11, 2011 NCS
only states that the claimant’s “[i]njury resulted in permanent disability,”
and not whether that permanent disability is scheduled or unscheduled.
Further, the attached medical report that supports the NCS states that the
claimant sustained a permanent impairment but does not reference
whether it is scheduled or unscheduled. For that reason, the NCS is
supported by the medical report on which it is based.

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of record reasonably supports the administrative law judge’s (“ALJ’s”)

finding that the scheduled injury designation is res judicata, we affirm the

award.

I. JURISDICTION AND STANDARD OF REVIEW

¶2 This court has jurisdiction pursuant to Arizona Revised

Statutes (A.R.S.) sections 12-120.21(A)(2) (2003), 23-951(A) (2012), and

Arizona Rules of Procedure for Special Actions 10. 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).

II. PROCEDURAL AND FACTUAL HISTORY

¶3 On May 28, 2009, the claimant was working in the laundry

department at the Wigwam Resort when he slipped and fell injuring his left

elbow and shoulder. He filed a workers’ compensation claim, which was

accepted for benefits. Sanjay R. Patel, M.D., provided the claimant with

conservative treatment and eventually found his industrial injury to be

medically stationary. He reported that the claimant had sustained a “26%

upper extremity impairment.” Based on Dr. Patel’s October 20, 2010

“Permanent and Stationary Report,” the respondent carrier, Zurich

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American Insurance Co. (“Zurich”), closed the claimant’s claim with a

scheduled permanent partial impairment of the left upper extremity. The

claimant did not protest the closure, and it became final.

¶4 Following closure, the claimant continued to see Dr. Patel

under his supportive care award. On March 20, 2013, the claimant filed a

petition to reopen his claim supported by Dr. Patel’s January 31, 2013

progress report, because his industrially-related condition was

deteriorating. Zurich denied the petition for benefits, and the claimant

timely requested an ICA hearing.

¶5 The ALJ held ICA hearings for testimony from the claimant,

Dr. Patel, and Evan Lederman, M.D. She then entered an award granting

the claimant’s petition to reopen and redesignating his permanent

impairment as unscheduled. Zurich timely requested administrative

review. On review, the ALJ vacated and amended portions of the Award,

and the claimant brought this appeal.

III. DISCUSSION

¶6 The claimant argues that the March 11, 2011 Notice of

Permanent Disability or Death Benefits2 is void because it is not supported

2 When a compensable industrial injury results in a permanent
impairment, an award of permanent disability benefits is made depending
on the character of the impairment as either “scheduled” or “unscheduled.”
Scheduled injuries are listed in A.R.S. § 23-1044(B) (Supp. 2014), and are

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by Dr. Patel’s October 20, 2010 medical report on which it is based, and he

cites Roseberry v. Industrial Commission, 113 Ariz. 66, 546 P.2d 802 (1976). In

Roseberry, the Arizona Supreme Court held that an NCS contradicted by the

medical report on which it was based was void on its face and not entitled

to res judicata effect. 113 Ariz. at 68, 546 P.2d at 804. This court discussed

Roseberry and its progeny in Asarco, Inc. v. Industrial Commission, 204 Ariz.

118, 60 P.3d 258 (App. 2003). We recognized that:

Roseberry has been applied in cases in which (1) the notice
terminating benefits is directly contradicted by evidence in
the record, or (2) the notice is totally unsupported by the
record. The critical point made in the Roseberry line of cases
is that, if the record is devoid of any information to support
the notice, then the notice has no basis and is void on its face.

204 Ariz. at 121-22, ¶ 18, 60 P.3d at 261-62.

¶7 The claimant argues that he is entitled to receive unscheduled

permanent disability benefits because he sustained an injury to his left

shoulder as well as his left arm, and shoulder injuries are typically

compensated as unscheduled injuries. See A.R.S. § 23-1044 (C); Dye v. Indus.

Comm’n, 153 Ariz. 292, 294, 736 P.2d 376, 378 (1987). In this case, the

claimant’s claim was closed based on Dr. Patel’s October 20, 2010 report. In

conclusively presumed to adversely affect a claimant’s earning capacity.
Arizona Workers’ Compensation Handbook § 7.2.4.1, at 7-4 (Ray J. Davis, et al.,
eds., 1992 and Supp. 2013). Unscheduled impairments are compensated
only upon a showing of a loss of earning capacity (“LEC”) through an LEC
determination. Id., § 7.4, at 7-16 to -18.

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his report, Dr. Patel recorded subjective complaints of “significant pain and

weakness in his left elbow as well as his left shoulder” following the

industrial injury. A physical examination revealed “shoulder height

discrepancies, [and] significant atrophy . . . in his shoulder musculature,”

and “in his left upper extremity.” The doctor provided work restrictions

for the claimant’s left arm: lifting 20 pounds to waist height, 10 pounds to

shoulder height, and no lifting above the shoulder.

¶8 With regard to permanent impairment, Dr. Patel found that

the claimant had sustained a “26% upper extremity impairment” based on

the 6th Edition of the AMA Guides to the Evaluation of Permanent

Impairment. His report concluded:

Assessment:
953.4 Injury to brachial plexus
840.7 SLAP lesion

Plan:
1. Status post fall, injury to left elbow contusion.
2. Axillary and chest wall contusion, left.
3. Brachial plexopathy left.3
4. Left upper extremity weakness.

¶9 The Dye court held that

[i]n determining whether a disability is scheduled or
unscheduled, the combined effects of the original injury on all
portions of the body should be considered. Pain, swelling, or
any other impairment to an unscheduled portion of the body,

3 At the ICA hearing, Dr. Patel described this as a group of nerves that
come out of the left side of the neck and control sensation, movement and
strength in the upper extremity.

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if it affects function at all, transforms a scheduled injury into an
unscheduled injury.

Id. at 294, 736 P.2d at 387 (emphasis added) (citation omitted). In this case,

Dr. Patel recorded subjective complaints of pain and weakness in the left

shoulder and noted an objective finding of atrophy, but he does not make

any specific finding as to shoulder function. Further, on its face, Dr. Patel’s

report is not directly contrary to the notice which closed the claimant’s

claim with a scheduled permanent impairment to the left upper extremity.

Instead, we find this situation more akin to our decision in Church of Jesus

Christ of Latter Day Saints v. Industrial Commission, 150 Ariz. 495, 724 P.2d

581 (App. 1986).

¶10 In Church of Jesus Christ, we found that the medical report on

which the NCS was based was not directly contrary to the notice so as to

make it void, but instead, was ambiguous and raised inferences that

arguably were inconsistent with the notice making it voidable upon a

timely appeal. 150 Ariz. at 497, 724 P.2d at 583.

As has been pointed out numerous times by this court,
principles of res judicata are concerned with finality, not
correctness. Res judicata principles take effect under A.R.S. §
23-947 after 90 days . . . . [B]oth the claimant and the carrier
may void the binding effect of a Notice of Claim Status within
this time frame ― the claimant by filing a request for hearing
and the carrier simply by issuing a new Notice. However,
after that period has expired, the claimant cannot avoid the
effect of the notice by simply claiming it is erroneous. Neither
can the carrier.

Id. at 498, 724 P.2d at 584 (internal citation omitted) (footnote omitted).

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¶11 In this case, we find that the March 11, 2011 Notice of

Permanent Disability or Death Benefits was voidable and became final after

ninety days when it was not protested. For that reason, we affirm the ALJ’s

award.

:ama

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