Rubio v. Maricopa co/sentry

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARIA RUBIO, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

MARICOPA COUNTY SPECIAL HEALTH CARE DISTRICT, Respondent
Employer,

SENTRY INSURANCE A MUTUAL COMPANY, Respondent Carrier.

No. 1 CA-IC 19-0022
FILED 4-23-2020

Special Action - Industrial Commission
ICA Claim Nos. 20150-500442, 20160-490151
Carrier Claim Nos. 55C187218, 55C257067
The Honorable Jonathan Hauer, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Snow Carpio & Weekley PLC, Phoenix
By Erica Rose Gonzalez-Melendez
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent, ICA
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Decision of the Court

Lundmark Barberich La Mont & Slavin PC, Phoenix
By Lisa M. LaMont, Danielle S. Vukonich
Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Petitioner Maria Rubio challenges the Administrative Law
Judge’s (“ALJ”) finding that she suffered no permanent impairment
following the reopening of her claim. Although previously found to have a
10 percent unscheduled permanent impairment, Rubio subsequently
underwent additional treatment—including surgery—and her treating
physician opined that she no longer has a permanent impairment. The ALJ
accepted the treating physician’s opinion and concluded that Rubio is
entitled to additional supportive care, but not a permanent impairment
compensation payment. We find the ALJ’s decision is supported by
substantial evidence and affirm.1

BACKGROUND

¶2 Rubio injured her left shoulder in February 2015, when she
lifted a heavy trash bag over her head to throw it into a garbage bin. At that
time, she was working for Maricopa County Special Health Care District.
Because of the injury, she had surgery that included a rotator cuff repair
and a distal clavicle excision. In November 2015, Respondent Sentry
Insurance (“Sentry”) issued notices closing the claim and stating that Rubio
had suffered an unscheduled permanent disability with 10 percent
permanent impairment of the upper left extremity. In May 2016, the
Industrial Commission of Arizona (“ICA”) issued an award based on the
Sentry2 notices, agreeing that Rubio had suffered a 10 percent “general

1 Although two claims are consolidated for appeal in this matter,
Rubio appeals only the award made in the Decision Upon Review for ICA
Claim No. 20150-500442. Therefore, ICA Claim No. 20160-490151 will not
be addressed in this decision.
2 We use “Sentry” hereafter to refer to the actions and positions of
both Respondents throughout the proceedings.
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physical functional disability” but finding that she had no loss of earning
capacity as a result of the impairment.

¶3 A few months later, Rubio filed a Petition to Reopen her
shoulder claim, arguing she needed arthroscopic surgery based on the
opinion of her treating physician, Dr. Brad Cucchetti. In February 2017,
after an evidentiary hearing, the ALJ issued an award in favor of Rubio
allowing her to reopen her claim to assess ongoing medical care for her
shoulder. Rubio had a second surgery, followed by post-operative care. In
March 2018, Sentry issued a Notice of Claim Status closing the claim a
second time―this time with no permanent impairment. This finding was
supported by Dr. Cucchetti’s progress note stating that Rubio had reached
“maximum medical improvement with no impairment rating.” Rubio
promptly requested a hearing.

¶4 At the hearing, Dr. Cucchetti testified in support of his
December 2017 progress note. He described the results of the arthroscopic
surgery and confirmed his opinion that Rubio’s condition was medically
stationary with no permanent impairment. Rubio, through her attorney,
had the opportunity to ask how Dr. Cucchetti reached his conclusion that
she had no permanent impairment, but did not do so.

¶5 Dr. Gary Dilla also testified at the hearing. He performed an
Independent Medical Examination (“IME”) on Rubio in April 2018. He
agreed with Dr. Cucchetti that Rubio was medically stationary. But, he
disagreed with Dr. Cucchetti’s conclusion that Rubio had no permanent
impairment. Because of the distal clavicle excision performed in 2015, he
opined that the AMA Guides to the Evaluation of Permanent Impairment,
Sixth Edition, (“AMA Guides”) called for a 10 percent permanent
impairment rating of the upper left extremity. His opinion, that the AMA
Guides require ascribing a permanent impairment rating, directly conflicts
with Dr. Cucchetti’s opinion that Rubio suffered no permanent
impairment.3

¶6 The ALJ issued a decision in January 2019 awarding
supportive care as recommended by Dr. Cucchetti but did not address
whether Rubio had a permanent impairment.4 In a request for review,

3 Dr. Cucchetti was never asked about the AMA Guides and whether
they require attributing a permanent impairment rating in Rubio’s case.
4 Even though the ALJ’s findings of fact recite Dr. Dilla’s testimony
regarding a permanent impairment rating, the ALJ specifically found that

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Rubio asked the ALJ to confirm her previous permanent impairment rating.
She argued that the testimony of Dr. Dilla and the 2015 Notice of Claim
Status (“2015 Notice”) required that the ALJ find a 10 percent permanent
impairment of the upper left extremity. In response, Sentry agreed that the
ALJ should rule on the permanent impairment issue but disagreed that the
evidence showed Rubio had a permanent impairment. Sentry argued the
ALJ should adopt Dr. Cucchetti’s opinion on that issue, and that the 2015
Notice did not bind the ALJ.

¶7 In a Decision Upon Review, the ALJ found Dr. Cucchetti’s
opinion to be “most-probably correct and well founded.” He concluded
that Rubio sustained no permanent impairment from her shoulder injury.
Rubio filed a statutory special action seeking review of the Decision Upon
Review in ICA Claim No. 20150-500442.

DISCUSSION

¶8 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 (App. 2003). We consider the evidence in
the light most favorable to upholding the ALJ’s award. Lovitch v. Indus.
Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002). We will only set aside the
findings when they are not supported by substantial evidence. Lowry v.
Indus. Comm’n, 92 Ariz. 222, 224 (1962). We do not disturb the ALJ’s findings
unless they cannot be “supported on any reasonable theory of evidence.”
Phelps v. Indus. Comm’n, 155 Ariz. 501, 506 (1987).

¶9 Rubio’s primary argument on appeal is that the ALJ was
bound to find a 10 percent impairment by applying principles of res judicata
to the 2015 Notice. But the statute allowing for claims to be reopened states
that “[t]he reopened claim shall be processed thereafter in like manner as a
new claim.” A.R.S. § 23-1061(I); see Stainless Specialty Mfg. Co. v. Indus.
Comm’n, 144 Ariz. 12, 15 (1985) (“The vehicle of reopening is designed to
mitigate the harsh consequences of general res judicata principles, which
would preclude any reexamination of an applicant’s claim once it has been
litigated and finally closed.”). Res judicata, in the context of workers
compensation, differs from the application of this doctrine in the civil
context. Pima County Bd. of Supervisors v. Indus. Comm’n, 149 Ariz. 38, 43
(1986) (explaining the doctrine of res judicata applies differently in

the rating was not at issue as to Dr. Dilla and Dr. Cucchetti’s testimony due
to statements made by petitioner’s counsel just before Dr. Cucchetti
testified.
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compensation cases because they “ balance the need for finality and judicial
efficiency against the need for continuing jurisdiction to effectuate the
purposes of the act and to accommodate changes in earning capacity caused
by either the employee’s physical condition or the labor market”).

¶10 Here, the ALJ granted Rubio’s petition to reopen the 2015
shoulder claim. Under A.R.S. § 23-106(I), Rubio’s reopened claim was
required to be processed as a new claim. This necessarily required the court
to enter a new permanent impairment rating after further treatment had
been completed. The plain language of the statute dictated this result.

¶11 While arguing the preclusion issue, especially in the request
for review filed with the ALJ, Rubio asserted that the evidence supported
Dr. Dilla’s opinion regarding permanent impairment and not
Dr. Cucchetti’s. Determination of permanent impairment is a medical
question necessitating medical opinion testimony. Alsbrooks v. Indus.
Comm’n, 118 Ariz. 480, 482 (1978). “An accurate factual foundation is a
necessary element of a legally sufficient opinion.” Aguiar v. Indus. Comm’n,
165 Ariz. 172, 173 (App. 1990).

¶12 Dr. Dilla testified that Rubio still had a 10 percent permanent
disability rating based on the distal clavicle excision from 2015. He testified
that he followed the AMA Guides to reach that conclusion. See Adams v.
Indus. Comm’n, 113 Ariz. 294, 295 (1976) (“[T]he AMA Guides apply
exclusively to the evaluation of permanent impairment to the extent that
the AMA Guides cover the specific impairment.”); A.A.C. R20-5-113(B)
(doctors are required to use AMA Guides when rating impairments).

¶13 While A.A.C. R20-5-113(B) does not mandate a rating of
impairment, it requires that any such rating, if made, apply the evaluation
standards outlined in the AMA guidelines. Here, there was conflicting
medical testimony―one doctor stated Rubio continues to have a 10 percent
impairment based on the AMA Guides, the other doctor stated Rubio
suffers no impairment. Because Dr. Cucchetti did not find any impairment,
he was not required to apply the AMA Guides to quantify the absence of
any impairment. When conflicting testimony is presented to the ALJ, it is
up to the judge to decide which testimony to accept and which to reject in
reaching a decision. Stainless Specialty Mfg. Co. v. Indus. Comm’n 144 Ariz. at
19.

¶14 Here, the record contains Dr. Cucchetti’s medical opinion that
Rubio has no permanent impairment both in his written progress note as
well as his testimony provided at the hearing. Rubio, through her attorney,

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had ample opportunity to cross-examine Dr. Cucchetti and challenge his
opinion, but did not do so. This left the ALJ free to accept or reject either
doctor’s opinion regarding the existence of an ongoing impairment. The
ALJ found Dr. Cucchetti, Rubio’s treating physician, more credible.

CONCLUSION

¶15 Because the ALJ’s decision is supported by Dr. Cucchetti’s
medical opinion that Rubio had no permanent impairment, we affirm the
ALJ’s Decision Upon Review.

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

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