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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MANUEL ROMAN, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

SHIPPERS WEST TRUCKLINE, Respondent Employer,

BERKSHIRE HATHAWAY HOMESTATE INS CO., Respondent Carrier.

No. 1 CA-IC 19-0046
FILED 9-29-2020

Special Action – Industrial Commission
ICA Claim No. 20133-160251
Carrier Claim No. 55020573
The Honorable Rachel C. Morgan, Administrative Law Judge

AFFIRMED

COUNSEL

Thomas C. Wilmer, PC, Phoenix
By Thomas C. Wilmer
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Cross & Lieberman, P.A., Phoenix
By Lawrence H. Lieberman
Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.

C R U Z, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review finding Manuel Roman’s
industrial injury was medically stationary without permanent impairment
and terminating his temporary disability and medical benefits. One issue
is presented: whether issue preclusion prevents the award. Because we
conclude that issue preclusion does not bar the award, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Roman worked for respondent employer Shippers West
Truckline as a truck driver. In 2013, Roman was on the job when he slipped
and fell from his truck, hitting his head. Shortly thereafter, he sustained a
left subdural hematoma and underwent surgery. Roman filed a workers’
compensation claim, which was eventually accepted by the respondent
carrier. He began treatment for persistent headaches and dizziness. In
November 2014, Roman underwent an independent medical exam with Dr.
Leo Kahn. Dr. Kahn found no objective neurological findings related to the
industrial injury and opined that Roman was medically stationary without
permanent impairment. The respondent carrier filed a notice of claim
status closing Roman’s claim, and he filed a request for a hearing.

¶3 In 2015, Roman underwent neuropsychological evaluations
with Dr. Marc Walter and Dr. Alberto Texidor. Dr. Walter diagnosed
Roman with an undifferentiated somatoform disorder triggered by the
industrial injury and an adjustment disorder with mixed anxiety and
depressed mood, also secondary to the industrial injury. He opined that
although Roman’s “cognitive functioning [was] seen to be severely
compromised most likely due primarily to his maladaptive psychological
reaction to his injury,” he could not rule out a separate brain-related
cognitive impairment. A “big part” of the reason Dr. Walter could not rule

2
 ROMAN v. SHIPPERS/BERKSHIRE
Decision of the Court

out a separate brain-related cognitive impairment was due to “cooperation
issues” during testing. Dr. Walter concluded that Roman’s condition was
not stationary and that he needed psychiatric and psychological treatment
related to the industrial injury.1 Dr. Walter testified at the hearing that once
Roman received the psychiatric and psychological treatment, he could be
reevaluated to see if there was residual cognitive impairment from the brain
injury. Dr. Walter did not render an opinion on the question of permanent
impairment. In contrast, Dr. Texidor opined that Roman’s condition was
stationary without permanent impairment from a neuropsychological
standpoint and that Roman did not need supportive care.

¶4 After the contested hearings in 2015 and 2016, the
administrative law judge (“ALJ”) resolved the conflict in the expert medical
opinion in favor of Roman, finding the opinions and conclusions of Dr.
Walter “regarding the need for [Roman]’s care and treatment,” to be more
probably correct. The ALJ awarded Roman medical, surgical, and hospital
benefits and temporary total or temporary partial disability compensation
benefits “until such time as [Roman]’s condition is determined to be
medically stationary.” The ALJ found that Roman had established by a
preponderance of the evidence that he needed further active medical care,
and accordingly did not decide whether he had a permanent impairment
as a result of the industrial injury.

¶5 Dr. Rosalia Pereyra, a psychologist, began treating Roman in
June 2016. Dr. Pereyra evaluated Roman and concurred with Dr. Walter’s
diagnosis. Dr. Pereyra saw Roman for psychotherapy approximately thirty
times over more than two years. Roman was also treated by neurologist
Dr. Michael Epstein, who prescribed him medication for anxiety.

¶6 In October 2017, independent medical examiner Dr. Joel
Parker, a psychiatrist, examined Roman. Dr. Parker recommended that
Roman undergo another neuropsychological evaluation because “the
passage of time” might make it possible to distinguish between “severe

1 Dr. Walter’s 2015 report stated that Roman’s providers “should be
experienced in working with individuals who somatize and tend to convert
psychological problems and stressors and, for that matter, beliefs, into
physical symptoms.” Dr. Walter stated that Roman needed at least twenty-
five psychotherapy sessions and up to six psychiatric medication
appointments over the course of a year, which “should be sufficient for
active treatment.” Dr. Walter further stated that Roman might require
additional supportive treatment following active treatment.

3
 ROMAN v. SHIPPERS/BERKSHIRE
Decision of the Court

cognitive disorder or malingered cognitive impairment.” Roman did so
with Dr. James Youngjohn in August 2018. Dr. Youngjohn diagnosed
Roman with definite malingered neurocognitive disorder, which is coded
in the DSM-5 as malingering. He opined that Roman was stationary from
a psychological and neurophysiological perspective and noted that testing
indicated that Roman deliberately chose wrong answers, “presumably in
an effort to feign and exaggerate neurocognitive impairment.” Dr.
Youngjohn further opined that Roman would not benefit from additional
psychotherapy and that he had no ratable permanent neuropsychological
or psychological impairment attributable to the industrial injury.

¶7 After Dr. Youngjohn’s evaluation, Dr. Parker opined that
Roman did not have a neurocognitive disorder but instead had
“malingered neurocognitive deficits . . . unrelated to the industrial injury,”
and that he was medically stationary with no ratable impairment. He
further concluded that Roman did not require supportive psychological or
psychiatric care, noting that he had “received several years of
psychotherapy with the end result being evidence of frank malingering on
neuropsychological evaluation.”

¶8 In September 2018, the respondent carrier filed a notice of
claim status terminating Roman’s benefits, and Roman filed a request for a
hearing. Dr. Walter reevaluated Roman in January 2019. Dr. Walter
diagnosed Roman with somatic symptoms disorder2 and chronic
adjustment disorder with mixed anxiety and depressed mood. Noting that
Roman’s “cognitive functioning remains significantly compromised most
likely due primarily to his maladaptive psychological reaction to his
injury,” Dr. Walter stated that he still could not rule out a separate brain-
related cognitive impairment. Dr. Walter opined that Roman’s condition
was now medically stationary, that he had a twenty percent permanent
impairment rating due to mental and behavioral disorders, and that he

2 Dr. Walter testified that his 2019 diagnosis of Roman was
“essentially the same diagnosis as 2015,” except that under the new edition
of the DSM the 2015 diagnosis of undifferentiated somatoform disorder was
now called somatic symptoms disorder. Further, Roman’s profile on the
personality assessment inventory was now invalid because of the
“inconsistency elevation” on the test. Dr. Walter also testified that he could
not render an opinion with certainty as to his rule out diagnosis of mild
neurological cognitive disorder because Roman’s “psychological
symptoms [were] high enough to cloud [his] ability to diagnose actual brain
injury.”

4
 ROMAN v. SHIPPERS/BERKSHIRE
Decision of the Court

needed psychological and psychiatric supportive care on a permanent
basis.3

¶9 An ALJ held contested hearings in 2019. At the outset of the
hearings, the parties agreed that the issues for the ALJ to decide included
whether Roman was medically stationary, whether he should receive
continuing benefits, and whether he had a permanent impairment as a
result of the industrial injury.

¶10 After the hearings, the ALJ found that Roman’s testimony
was not credible. In addition, she resolved the conflict in the medical
evidence by adopting the opinions of Dr. Parker and Dr. Youngjohn as
being more probably correct and well-founded. The ALJ noted that no
doctor was advocating that Roman continue to receive active care and
found that he did not “require any further supportive care on an industrial
basis for either a neuropsychological or psychological condition.” The ALJ
further found that Roman’s industrial injury was medically stationary
without permanent impairment. She rejected Roman’s argument that issue
preclusion applied, noting that in 2016, the issue was whether Roman had
a compensable neuropsychological injury, but that the issue in this
proceeding was whether he required “further supportive care for his
neuropsychological condition found to be a compensable consequence of
his industrial injury.”

¶11 Roman filed a request for review, and the ALJ summarily
affirmed the award. This special action followed. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(2),
23-951(A), and Arizona Rule of Procedure for Special Actions 10.

DISCUSSION

¶12 Roman raises one issue on appeal: whether ICA was
precluded from reconsidering the nature of his condition after finding him
to be not stationary in 2016. Roman argues that issue preclusion should
have prevented the ALJ from adopting the opinions of Drs. Youngjohn and
Parker and determining he was medically stationary without the need for
supportive care. “[T]he applicability of preclusion is a mixed question of
fact and law.” Bayless v. Indus. Comm’n, 179 Ariz. 434, 439 (App. 1993). We
apply a deferential standard of review to the resolution of disputed facts

3 Roman’s treating psychologist, Dr. Pereyra, testified at the hearing
that she agreed with Dr. Walter’s conclusions that Roman was medically
stationary, had a permanent impairment, and needed further treatment.

5
 ROMAN v. SHIPPERS/BERKSHIRE
Decision of the Court

and a de novo standard of review to the ultimate conclusion of whether the
facts trigger preclusion. Id.

¶13 Issue preclusion applies only if an issue was litigated,
determined, and the determination was necessary to the decision. Id. The
party asserting preclusion has the burden of proving that the issue was
litigated, determined, and determination of the issue was necessary. Id. In
the workers’ compensation setting, “res judicata serves to conclude only
those questions existing and known at the time of the award.” Stainless
Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz. 12, 16 (1985) (internal
quotation omitted).

¶14 Workers’ compensation claims are administered through a
progression of separate claim stages. At each stage, a notice of claim status
is issued and becomes final unless the claimant files a timely hearing
request. A.R.S. § 23-947(A). A timely hearing request opens all issues
addressed by the notice of claim status for consideration by the ALJ. See,
e.g., Parkway Mfg. v. Indus. Comm’n, 128 Ariz. 448, 451 (App. 1981). A
claimant becomes medically stationary when the claimant’s industrial
injury is not subject to further improvement. Home Ins. Co. v. Indus. Comm’n,
23 Ariz. App. 90, 94 (1975). When a physician discharges a claimant from
active medical treatment, the physician is required to determine if the
claimant has sustained a permanent impairment as a result of the industrial
injury. Ariz. Admin. Code R-20-5-113(B).

¶15 To determine whether preclusion applies, we examine the
issues raised and the evidence presented at the 2015/2016 and 2019
hearings. See Miller v. Indus. Comm’n, 240 Ariz. 257, 259, ¶ 10 (App. 2016).
In 2014, the respondent carrier closed Roman’s claim with no permanent
impairment. Roman protested and asserted he needed continuing active
medical care. At the 2015/2016 hearings, the ALJ was asked to decide if
Roman was medically stationary or whether he needed further active
psychological and psychiatric medical care. After adopting Dr. Walter’s
opinion that Roman was not medically stationary, the ALJ entered an
award in favor of Roman, authorizing the further psychological and
psychiatric treatment recommended by Dr. Walter, “until such time as
[Roman]’s condition is determined to be medically stationary.” Because the
ALJ concluded that Roman was not yet medically stationary, he did not
decide the issue of permanent impairment. See A.R.S. § 23-1047 (the right
to a permanent disability award does not arise until a claimant’s condition
becomes stationary).

6
 ROMAN v. SHIPPERS/BERKSHIRE
Decision of the Court

¶16 Roman underwent new evaluations in 2018 and 2019, after
having been treated for more than two years. Dr. Walter had anticipated
reevaluation after treatment in 2015, and in the subsequent hearings in 2019,
Dr. Walter testified that Roman was now medically stationary and required
supportive care. In 2019, it was undisputed that Roman was medically
stationary, and the ALJ was asked to decide if Roman had a permanent
impairment and whether he needed supportive (as opposed to active)
medical care. Because Roman’s condition was not stationary at the time of
the 2015/2016 litigation, the ALJ was not bound by the previous decision
adopting Dr. Walter’s 2015 opinion that Roman required further active
medical care and was not malingering.

CONCLUSION

¶17 For the foregoing reasons, we affirm the award and decision
upon review.

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

7