Delgado v. Phoenix logistic/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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN DELGADO, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

PHOENIX LOGISTIC CENTER, Respondent Employer,

SENTRY INSURANCE A MUTUAL COMPANY, Respondent Carrier.

No. 1 CA-IC 19-0038
FILED 6-16-2020

Special Action - Industrial Commission
ICA Claim No. 20031-980368
Carrier Claim No. 51C338808
The Honorable Amy L. Foster, Administrative Law Judge

AFFIRMED

COUNSEL

Hendrickson & Palmer, PC, Phoenix
By Adam P. Palmer
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Lundmark Barberich LaMont & Slavin PC, Phoenix
By R. Todd Lundmark
Counsel for Respondent Employer and 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.

M O R S E, Judge:

¶1 Petitioner John Delgado appeals from an Industrial
Commission of Arizona ("ICA") award that found his right ankle medical
condition is not medically related to a 2003 industrial injury to his left ankle.
He argues that the administrative law judge was required, pursuant to
Arizona Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 516
U.S. 869 (1995), to conduct a specific analysis of a medical article put into
evidence and relied upon by an expert witness. Because Arizona law does
not require the application of Rule 702 and Daubert to evidentiary rulings
by ICA administrative law judges, we reject Delgado's argument and affirm
the award.

FACTS AND PROCEDURAL BACKGROUND

¶2 Delgado worked for Respondent Phoenix Logistics Center in
2003 when a forklift crushed his left ankle and foot. Respondent Sentry
Insurance Company ("Sentry") accepted his claim. Over the next 15 years,
Delgado had six surgeries on his left ankle and foot, ending in a fusion that
immobilized his left ankle. Delgado has not worked since 2003. In early
2018, Delgado started complaining about pain in his right ankle. Dr.
Stanley Graves, an orthopedic surgeon, has been treating Delgado's left
ankle since 2003, and performed the most recent surgery in 2017. He began
treating the right ankle for "overuse" stress that damaged the tendons.
After trying conservative treatments, Dr. Graves recommended that
Delgado have surgery on his right ankle for that condition. Delgado
requested worker's compensation coverage for the surgery, arguing that his
left ankle industrial injury caused the right ankle condition. Sentry denied
the request, determining that the right ankle condition was not related to
the industrial injury.

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¶3 The dispute went to hearing. Delgado testified about his 2003
injury and his right ankle. He called Dr. Graves as an expert witness to
testify about his opinion that the left ankle condition was related to the 2003
industrial injury. Dr. Graves testified that the right ankle condition was
caused by the stress of favoring the right ankle because of the deformities
and limitations created in the left ankle by the injury, surgeries, and
recuperation.

¶4 Respondents retained orthopedist Dr. Irwin Shapiro to
conduct an Independent Medical Examination ("IME") of Delgado in
November 2018. Shapiro testified that Delgado's right ankle issues were
unrelated to the 2003 industrial injury. He noted that from 2005 to 2015,
Delgado was incarcerated and had severely limited time on his feet.
Delgado estimated that he was on his feet only 60-90 minutes a day during
his incarceration. During the time after his release, Delgado admitted that
he spent most of his time off his feet due to recuperation from several
surgeries on his right ankle. Dr. Shapiro identified this lack of activity as a
basis for his opinion. He also relied on an article, "Evaluating Causation of
Favoring for the Opposite Limb," found in chapter 33 of the AMA Guides
to the Evaluation of Disease and Injury Causation, 2nd edition ("AMA
causation article"). That article states that there is no evidence to support
the belief that favoring one limb produces pain or impairment in the
opposite limb. Dr. Shapiro described three reasons for this: (1) these
persons are on their feet much less than normal; (2) they walk much slower
than normal; and (3) they have shorter strides. He found all three of these
factors in his examination of Delgado.

¶5 The administrative law judge resolved the conflict in medical
testimony in favor of Dr. Shapiro, finding that the left ankle condition was
not related to the industrial injury. Delgado requested review and the
administrative law judge reaffirmed that Delgado had not shown a causal
relationship between his left and right ankle conditions. This special action
appeal followed.

DISCUSSION

¶6 In reviewing a worker's compensation award, we defer to the
administrative law judge'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

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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 administrative law judge
must resolve conflicts in medical expert testimony, which we will not
disturb unless "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 administrative law
judge's decision unless there is no reasonable basis for it. Lovitch v. Indus.
Comm'n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).

¶7 The ICA hearing process is governed by statute and
administrative rule. See, e.g., A.R.S. § 23-941 ("hearing rights and
procedure"); A.A.C. R20-5-148 ("burden of presentation of evidence; offer
of proof."). The procedural requirements are minimal. We have noted that

Industrial Commission hearings are fundamentally different
from the usual adversary proceedings. Their purpose, while
in a sense of course, being adversary, really remains the
humanitarian and compassionate one of aiding and
compensating the injured worker.

Gordon v. Indus. Comm'n, 23 Ariz. App. 457, 460 (1975).

¶8 The process is therefore more relaxed than standard court
processes. To that end, A.R.S. § 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 administrative law judge
retains discretion to determine evidentiary issues with the ultimate goal of
substantial justice. N. Arizona Univ. v. Indus. Comm'n, 123 Ariz. 407, 410-11
(App. 1979).

¶9 Here, Delgado argues that Rule 702 and Daubert should apply
in an administrative proceeding, and the administrative law judge erred by
not excluding Dr. Shapiro's testimony and the AMA causation article on
that basis. In support, he contends that A.R.S. § 23-941(F) does not say
otherwise and notes that other states that apply formal rules of evidence to
worker's compensation hearings also use Daubert or its equivalent to
determine admissibility. But in Arizona, the administrative law judge "is
not bound by . . . the statutory rules of evidence," and is authorized to use
any process that provides substantial justice. A.R.S. § 23-941(F). Delgado's
argument is without merit because Rule 702 and Daubert are not required
in worker's compensation hearings where the administrative law judge has

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the discretion to use whatever process is conducive to providing substantial
justice, nothing more. See Id.

¶10 On appeal, Delgado neither mentions nor argues that this
standard of substantial justice was denied. "Our policy, and the policy of
most appellate courts, is that issues not clearly raised in appellate briefs are
deemed waived." Childress Buick Co. v. O'Connell, 198 Ariz. 454, 459, ¶ 29
(App. 2000). This policy is based on the notion it would be unfair for the
court to decide the case on issues they may have intentionally decided not
to present. Id. Further, this policy "restrains the court from branching off
on its own and deciding cases with no research assistance or analytical
input from the parties." Id.

¶11 Even so, we find no denial of substantial justice because
Delgado can show no prejudice resulting from any alleged error. The
record shows that the administrative law judge assessed the reliability of
both Dr. Graves' and Dr. Shapiro's testimonies. In the Decision upon
Review, she found Dr. Graves' testimony unpersuasive because he had not
taken measurements and his opinion was based on physical factors that she
found not proven by Delgado. Specifically, the administrative law judge
found that the evidence did not show the overuse of Delgado's right ankle.
The record supports her conclusions. Therefore, even without Dr. Shapiro's
testimony, Delgado did not meet his burden. Accordingly, we affirm.

CONCLUSION

¶12 Delgado has failed to show that he was not given substantial
justice by the hearing process used in his hearing at the ICA. We affirm.

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

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