Barakat v. Medtronic

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN BARAKAT, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

MEDTRONIC MICROELECTRONICS CENTER,

Respondent Employer,

MEDTRONIC, INC., Respondent Carrier.

No. 1 CA-IC 17-0059
FILED 6-19-2018

Special Action - Industrial Commission
ICA Claim No. 20090830297
Carrier Claim No. 27184981197823
The Honorable Marceline A. Lavelle, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

John Barakat, Phoenix
Petitioner

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent, ICA
Lundmark Barberich La Mont & Slavin PC, Phoenix
By Kirk A. Barberich
Counsel for Respondent Employer/Carrier

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.

B R O W N, Judge:

¶1 John Barakat seeks review of an Industrial Commission of
Arizona (“Commission”) award dismissing his petition to reopen his
workers’ compensation claim. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND1

¶2 John Barakat worked for Medtronic Microelectronics Center
(“Employer”) in Tempe for 22 years. In March 2009, Barakat slipped and
fell on a staircase, hurting his back, neck, and head. He then filed a workers’
compensation claim. Employer’s insurance carrier, Medtronic Inc.,
provided temporary benefits and Barakat was treated for his pain.2 Barakat
claimed various symptoms, including headaches, dizziness, hearing loss,
neck pain, ankle pain, lower back pain, and various neuropsychological
difficulties. His industrial claim was closed, as reflected in a notice dated
March 10, 2010, “without impairment and with a notation that liability was
denied for psychiatric or psychological conditions.” The notice became
final without protest.

¶3 Over the next five years, Barakat filed five petitions to reopen
his claim. In his first petition, filed in February 2011, Barakat sought
treatment for dizziness, headaches, and broken bones related to a fall from
his chair at work caused by dizziness. The petition was denied in March

1 In violation of ARCAP 13(d), neither party has provided citations to
the record. We could strike the briefs and order compliance with this well-
established rule. In our discretion, we analyze the issues raised based on
our own review of this extensive record.

2 For ease of reference, we refer to the employer and the insurance
carrier collectively as “Employer.”

2
 BARAKAT v. MEDTRONIC
Decision of the Court

2011, and no protest was filed. Barakat’s second petition was filed in July
2011 for “all of [the same] problems.” The petition was denied and Barakat
requested a hearing, but it was later dismissed because Barakat failed to
appear.

¶4 The third petition to reopen was filed in June 2012, and was
denied. Barakat filed a request for hearing, which was granted. He testified
that he filed the petition to reopen to address “dizziness, headaches, neck
pain, his right little finger and his right ankle.” The Administrative Law
Judge (“ALJ”) adopted Dr. Johnson’s opinion, which concluded that any
potential psychological disorders Barakat may have were not related to the
industrial injury and denied the petition to reopen.

¶5 The fourth petition was filed in September 2015, which was
denied, but this time when he requested a hearing, Barakat filed several
letters and documentation alleging for the first time that he suffers from a
head injury and post-traumatic stress disorder (“PTSD”) related to the
industrial injury. The ALJ denied the reopening request and specifically
adopted the opinions and conclusions of Dr. Johnson, who had not
diagnosed Barakat with PTSD, and Dr. Powers, who opined there was no
neurologic basis for Barakat’s complaints related to the injury.

¶6 Barakat filed the current petition, his fifth, on September 14,
2016, alleging he had a chronic condition of PTSD related to his initial
industrial injury and he had been reevaluated by several new doctors. He
also reiterated his symptoms, including falls, depression, PTSD, dizziness,
imbalance, and memory problems. Barakat claimed he never had these
symptoms prior to his industrial injury.

¶7 Employer filed a motion to designate applicant as a vexatious
litigant, which the Chief ALJ granted in April 2017, ordering that Barakat is
precluded from filing future petitions pertaining to his psychological
condition unless he seeks permission to file; however, Barakat’s fifth
petition was exempt from this requirement. At the subsequent evidentiary
hearing, Employer argued the petition was barred by res judicata, but the
ALJ questioned its applicability based on the Chief ALJ’s decision to allow
Barakat’s claim to proceed.

¶8 Barakat provided brief testimony at the hearing about his
current complaints and submitted medical documentation addressing prior
treatments, prior symptoms, and his ongoing treatments for his current
symptoms. The ALJ gave Barakat an additional 30 days to provide medical
documentation supporting his current petition to reopen. He was

3
 BARAKAT v. MEDTRONIC
Decision of the Court

specifically advised that the documentation needed to address any new,
additional, or previously-undiscovered medical conditions related to his
industrial injury that solely came about between the comparative dates of
August 18, 2016 and September 14, 2016. Barakat timely submitted medical
reports, but Employer argued the petition should be dismissed because the
reports failed to provide any basis for reopening. The ALJ granted
Employer’s request, finding that Barakat failed to provide evidence to meet
the minimum requirements to support his petition. Barakat’s request for
review was denied, and he timely appealed to this court.

DISCUSSION

¶9 “This court deferentially reviews factual findings of the ALJ,
but independently reviews any legal conclusions.” Young v. Indus. Comm’n
of Ariz., 204 Ariz. 267, 270, ¶ 14 (App. 2003). We view the evidence in the
light most favorable to sustaining the Commission’s award and will affirm
its decision if we find reasonable evidence supports its findings. Lovitch v.
Indus. Comm’n of Ariz., 202 Ariz. 102, 105, ¶ 16 (App. 2002).

¶10 Barakat seems to suggest he should be able to reopen his
claim to obtain additional treatment because he is still experiencing
ongoing symptoms such as dizziness, anxiety, and depression stemming
from the industrial injury. He argues those symptoms are getting worse
and have made him unable to work or live the life he once had before the
injury.

¶11 To justify reopening of his claim, Barakat bears the burden of
“showing a new, additional, or previously undiscovered condition and a
causal relationship between that new condition and the prior industrial
injury.” Id. at 105-06, ¶ 17. “A claim shall not be reopened because of
increased subjective pain if the pain is not accompanied by a change in
objective physical findings.” Ariz. Rev. Stat. (“A.R.S.”) section 23-1061(H).
“If the injury is not readily apparent to a layman, the existence of a
condition can be established only by expert medical testimony.” Kaibab
Indus. v. Indus. Comm’n of Ariz., 196 Ariz. 601, 608, ¶ 22 (App. 2000).

¶12 The ALJ found that the appropriate dates for comparative
analysis were between August 18, 2016, when Barakat’s fourth petition to
reopen was resolved, and September 14, 2016, when Barakat filed the
current petition to reopen. Barakat testified briefly during the Commission
hearing that during this timeframe his symptoms of dizziness, headaches,
anxiety, and sleeplessness became worse. Although the ALJ could have
denied his claim at that time based on the lack of expert medical testimony,

4
 BARAKAT v. MEDTRONIC
Decision of the Court

she gave Barakat additional time to submit a report from “any of [his]
treating doctors who will say between August 18 of 2016 and September 14
of 2016 this is what’s new, additional or previously discovered and explain
it.” In the report submitted, Dr. Patel stated that Barakat suffered from
PTSD, anxiety, and depression, and responds only minimally to the medical
treatment provided to him. The report further stated that Barakat’s
“condition has been worsening” since before December 16, 2014, and due
to these “worsening symptoms, he requires continued treatment and
special care, such as physical therapy sessions,” which Barakat continues to
attend twice a week.

¶13 The ALJ found that although Dr. Patel’s report indicated
Barakat’s condition may be worsening, Dr. Patel “did not specify any new,
additional, or previously unidentified medical condition” related to
Barakat’s industrial injury for which he treated Barakat since August 18,
2016. The ALJ also found that the medical documentation Barakat
submitted only addressed prior symptoms, prior treatment, and ongoing
treatment for symptoms that predated the filing of the current petition, all
of which had been the subject of petitions to reopen. The record supports
these findings.

¶14 Barakat argues nonetheless that his petition to reopen should
be granted because he did not have any of his current symptoms before he
fell in 2009. His health prior to the industrial injury, however, is irrelevant
to the narrow question before us—whether reasonable evidence supports
the ALJ’s implicit finding that Barakat offered no medical evidence
showing that a new, additional, or previously undiscovered temporary or
permanent condition arose between August 18, 2016 and September 14,
2016.

¶15 Moreover, Barakat failed to present any evidence of a causal
relationship. According to the record before us, and as noted by the ALJ,
Barakat presented evidence of symptoms that predated the filing of the
current petition to reopen and had been the subject of prior petitions to
open; therefore, he failed to provide evidence that would meet the
minimum requirements of a petition to reopen. Because reasonable
evidence supports the ALJ’s findings, we need not address Employer’s res
judicata defense.

5
 BARAKAT v. MEDTRONIC
Decision of the Court

CONCLUSION

¶16 Because the evidence of record reasonably supports the ALJ’s
award, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

6