Santos v. Az mini/benchmark

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE SANTOS, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

AZ MINI MIX CONCRETE OF MESA, Respondent Employer,

BENCHMARK INSURANCE, Respondent Carrier.

No. 1 CA-IC 24-0020
FILED 01-09-2025

Special Action – Industrial Commission
ICA Claim No. 20173000200
Carrier Claim No. 6567442
The Honorable Trudy Rushforth, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Jose Santos, Phoenix
Petitioner

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent
Ritsema Law, Phoenix
By Rachel Parise Brozina
Counsel for Respondent Insurance Carrier

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge David D. Weinzweig joined.

F U R U Y A, Judge:

¶1 Jose Santos appeals an Industrial Commission of Arizona
(“ICA”) decision denying his petition to reopen his claim because he did
not establish any new, additional, or previously undiscovered condition of
his industrial injury. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In October 2017, Santos was injured while working as a diesel
mechanic/maintenance technician for Az Mini Mix Concrete of Mesa. A
large, heavy object hit Santos in the head while he was working on a truck,
causing post-concussive syndrome. His workers’ compensation claim was
accepted and he was treated for chronic migraine management through the
end of 2020.

¶3 In July 2021, carrier Benchmark Insurance closed the claim
without permanent impairment. Santos challenged the closure but his claim
was denied. Santos filed a special action and we affirmed the decision.
Santos v. Indus. Comm’n, 1 CA-IC 22-0037, 2023 WL 3066670 (App. Apr. 25,
2023) (mem. decision).

¶4 Meanwhile, in September 2022, Santos petitioned to reopen
his claim for benefits. An administrative law judge (“ALJ”) denied Santos’
petition, concluding he failed to sustain his burden of proving that he has a
new, additional, or previously undiscovered condition to warrant
reopening his claim. The ALJ noted Santos’ chosen medical expert, Dr.
Knievel, agreed with defense expert Dr. J. Michael Powers that Santos does
not have a new, additional, or previously undiscovered condition.

¶5 Santos filed a request for review and the ALJ affirmed the
decision denying reopening. Santos filed this special action and we have

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 SANTOS v. AZ MINI/BENCHMARK
Decision of the Court

jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) §§ 12-
120.21(B), 23-951(A), and Arizona Rule of Procedure for Special Actions 10.

DISCUSSION

¶6 To begin, Santos failed to comply with Rule 13(a) because his
brief does not contain citations to the record, a statement of the issues
presented for review, or relevant legal authorities supporting his position.
See Ariz. R. Civ. App. P. 13(a). Santos’ noncompliance with Rule 13(a)
constitutes a waiver of the issues on appeal. See Polanco v. Indus. Comm’n,
214 Ariz. 489, 491 ¶ 6 n.2 (App. 2007) (appellant’s failure to support
argument waives issue on appeal). But beyond waiver, Santos’ position is
unavailing. See Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App.
1984) (in our discretion, we may address the merits of waived arguments).

¶7 In reviewing ICA awards, “we defer to the ALJ’s factual
findings but review questions of law de novo.” Avila v. Indus. Comm’n, 219
Ariz. 56, 57 ¶ 2 (App. 2008). We view evidence in the light most favorable
to upholding an award. Id. Further, the ALJ has the primary responsibility
to resolve conflicts in medical opinion evidence. See Kaibab Indus. v. Indus.
Comm’n, 196 Ariz. 601, 609 ¶ 25 (App. 2000). And we defer to the ALJ’s
resolution of conflicting evidence and affirm the ALJ’s findings if any
reasonable theory of the evidence supports them. Perry v. Indus. Comm’n,
112 Ariz. 397, 398–99 (1975).

¶8 To reopen a closed worker’s compensation claim, a claimant
must show that the original industrial injury has caused a “new, additional
or previously undiscovered” condition. See A.R.S. § 23-1061(H). The
claimant bears the burden of presenting evidence sufficient to support
reopening the claim. Sun Valley Masonry, Inc. v. Indus. Comm’n, 216 Ariz.
462, 465 ¶ 11 (App. 2007).

¶9 Santos argues he was in a car accident in February 2021 due
to his medical condition caused by the 2017 work injury. Specifically, he
asserts the accident was caused by lack of medication after Benchmark
Insurance did not approve his treatment. He also complains that he
continues to suffer from headaches, “cognitive impairment,” depression,
and anxiety. He stresses the medical testimony from his expert, Dr. Knievel.
But Dr. Knievel acknowledged that all these conditions had been present in
Santos since his 2017 injury. Santos was previously determined to be
medically stationary with no impairment rating. Santos, 1 CA-IC 22-0037 at
*2. Thus, these preexisting conditions cannot be “new, additional or
previously undiscovered” to support reopening his claim.

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 SANTOS v. AZ MINI/BENCHMARK
Decision of the Court

¶10 Further, the ALJ resolved any conflicts in the evidence against
Santos’ position. And after review of the evidence and argument presented,
the ALJ found that Santos failed to carry his burden to prove the original
industrial injury caused a “new, additional or previously undiscovered”
condition. The record supports the ALJ’s findings and conclusions. We
discern no error.

CONCLUSION

¶11 We affirm.

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

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