Villegas v. Gc landscaping/special Fund

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

GC LANDSCAPING, Respondent Employer,

ICA SPECIAL FUND DIVISION/NO INSURANCE SECTION, Respondent
Party in Interest.

No. 1 CA-IC 24-0030
FILED 04-24-2025

Special Action - Industrial Commission
ICA Claim No. 20182190327
The Honorable Rachel C. Morgan, Administrative Law Judge

AFFIRMED

COUNSEL

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

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent
Industrial Commission of Arizona, Phoenix
By Scott J. Cooley
Counsel for Respondent Party in Interest

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the Court, in
which Presiding Judge Cynthia J. Bailey and Judge Andrew M. Jacobs
joined.

H O W E, Judge:

¶1 Manuel Villegas challenges an Industrial Commission of
Arizona (“ICA”) award denying him a permanent impairment rating and
supportive care. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Villegas was injured in 2018 when he fell at a worksite while
working for GC Landscaping, an uninsured employer. The ICA Special
Fund Division/No Insurance Section (“Fund”) stepped in to manage the
claim, initially denying compensability. In 2019, the ICA issued an award
finding the claim compensable.

¶3 The ICA held a hearing to determine the nature and extent of
Villegas’s injuries, concluding in an August 2020 award that he had, among
other injuries, “sustained a symptomatic aggravation of his underlying
degenerative lower back condition as a result of the subject industrial
injury, for which active treatment is reasonably necessary.” That conclusion
was based on medical expert testimony from Dr. Sanjay Patel, Villegas’s
treating physician. The ICA rejected a contrasting medical opinion that
Villegas had suffered a lumbar sprain/strain in the accident and that his
lower back issues were degenerative changes typical of an aging body and
not aggravated by the work injury. Villegas continued to receive active
treatment.

¶4 The Fund attempted to close the claim in 2021. The ICA held
a hearing and heard testimony from Dr. Patel, who testified that Villegas
was not medically stationary because he had ongoing pain and continued
to need active treatment. He diagnosed Villegas with “lumbar facet

2
 VILLEGAS v. GC LANDSCAPING/SPECIAL FUND
Decision of the Court

mediated pain, left L4 non-verifiable radiculopathy and pre-existing
lumbar degenerative changes, aggravated by the industrial fall.” Dr. James
Maxwell, who performed an independent medical examination (“IME”)
disagreed and concluded that the “temporary aggravation” of Villegas’s
back had resolved and become stationary in July 2021. The ICA again found
Dr. Patel’s opinion carried more weight and issued a May 2022 award
rejecting closure of the claim at that time, allowing active care to continue
until the condition became medically stationary.

¶5 In February 2023, the Fund again declared Villegas medically
stationary and closed the claim without permanent impairment and
supportive care. Villegas challenged the action. He argued, based on Dr.
Patel’s medical opinion, that he had a permanent impairment to his lower
back and needed continued supportive care. Dr. Patel testified at a hearing
in 2023 that Villegas had reached maximum medical improvement by
December 2022 with a 2% permanent impairment of his lower back. He also
recommended that Villegas receive supportive care if allowed under
applicable guidelines.

¶6 By contrast, Dr. Maxwell testified that Villegas had no
permanent impairment and required no supportive care. Dr. Maxwell
continued to propound his IME diagnosis of a lumbar sprain/strain that
had resolved long ago. On cross-examination, he was informed that his
diagnosis had not been accepted in the earlier litigation:

[QUESTION]: [In the previous litigation], you had the
same diagnosis of lumbar sprain-strain, [in contrast to]
the opposing opinion [of] Dr. Patel.

I’ll tell you that in [the May 2022 award] the accepted
diagnosis . . . included ongoing abdominal pain,
lumbar facet mediated pain, left L4 nonverifiable
radiculopathy, and preexisting lumbar degenerative
changes aggravated by the industrial fall. . .

Now, knowing that those are the accepted diagnoses,
do you have a different opinion as to [the] permanent
impairment rating in this case?

A[NSWER]: No.

3
 VILLEGAS v. GC LANDSCAPING/SPECIAL FUND
Decision of the Court

¶7 The ALJ adopted Dr. Maxwell’s opinion, concluding that
Villegas had shown no permanent impairment and needed no supportive
care. The ALJ noted that the May 2022 decision continuing Villegas’s active
care had “no preclusive effect” on her decision because whether an injured
worker’s condition has become medically stationary could be relitigated
after a finding that the worker is not yet medically stationary and continues
to require further active care.

¶8 Upon administrative review, Villegas argued that the medical
conflict between Dr. Patel’s diagnosis (aggravated degenerative condition)
and Dr. Maxwell’s (simple sprain/strain) had been litigated and found for
Dr. Patel in 2022, precluding the ICA from now adopting Dr. Maxwell’s
diagnosis. The ALJ rejected Villegas’s argument without comment and
affirmed the award. This statutory special action followed. We have
jurisdiction. A.R.S. §§ 12-120.21(B), 23-951(A).

DISCUSSION

¶9 When reviewing workers’ compensation 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 the evidence in the
light most favorable to upholding an award. Id. “In determining the facts,
it is the ALJ, not this court, who has the responsibility of resolving conflicts
in expert opinions, and we will affirm an ALJ’s resolution of conflicting
opinions absent an abuse of his discretion.” Kaibab Indus. v. Indus. Comm’n
of Ariz., 196 Ariz. 601, 605 ¶ 10 (App. 2000).

¶10 Villegas argues on appeal that the ALJ erred by adopting Dr.
Maxwell’s opinion because his diagnosis of a lumbar sprain/strain had
been rejected in earlier litigation. Specifically, Villegas argues Dr. Patel’s
injury diagnosis was entitled to preclusive effect and therefore Dr.
Maxwell’s opinion cannot be relied on because “Dr. Maxwell based his
opinion as to no permanent impairment on his diagnosis of a lumbar
sprain/strain.”

¶11 “Because workers’ compensation claims are administered
sequentially, phases of the process (e.g., compensability, . . . , medically
stationary status, . . . , award of permanent benefits, etc.) are resolved . . . by
separate determinations by an ALJ.” Miller v. Indus. Comm’n of Ariz., 240
Ariz. 257, 259 ¶ 7 (App. 2016). When any of these determinations become
final, they are entitled to preclusive effect. Id. “Unless the applicability of
issue preclusion involves disputed questions of fact, its applicability is a

4
 VILLEGAS v. GC LANDSCAPING/SPECIAL FUND
Decision of the Court

question of law for this court to determine independently.” Special Fund
Div., Indus. Comm’n v. Tabor, 201 Ariz. 89, 92 ¶ 20 (App. 2001).

¶12 Diagnosis of an injury, whether the injury is medically
stationary, and whether the claimant has a permanent impairment are all
separate determinations. See Miller, 240 Ariz. at 259 ¶ 7; Aguayo v. Indus.
Comm’n of Ariz., 235 Ariz. 413, 418 ¶ 20 (App. 2014) (“The issue in the
current proceedings was whether the claimant’s 2010 injury was medically
stationary, and if so, whether he had sustained a permanent impairment.”).
Thus, when a claimant is awarded supportive care for a workplace injury,
that award does not preclude a later determination that the claimant lacks
a permanent impairment injury. See Miller, 240 Ariz. at 263 ¶ 23 (“Because
the 2010 aggravation of the claimant’s pre-existing back condition was not
stationary, no decision as to any permanent impairment was made at that
time.”); Tsosie v. Indus. Comm’n of Ariz., 183 Ariz. 539, 542 (App. 1995) (“[W]e
reject Tsosie’s further argument that the award of supportive care has a
preclusive effect on the determination of permanent impairment or
disability.”).

¶13 Villegas argues the ALJ could not rely on Dr. Maxwell’s
opinion about whether Villegas’s injury created a permanent impairment
because Dr. Patel’s diagnosis for Villegas’s back injury has preclusive effect.
But Dr. Patel’s diagnosis has preclusive effect on subsequent litigation only
concerning the issues of the nature and causation of his injury; whether
Villegas has a permanent impairment is a separate determination. See
Miller, 240 Ariz. at 263 ¶ 23; Aguayo, 235 Ariz. at 418 ¶ 20; Tsosie, 183 Ariz.
at 542. Thus, Dr. Patel’s injury and causation diagnoses have no preclusive
effect on the subsequent determination whether he has a permanent
impairment. Although Villegas argues Dr. Maxwell’s opinion relied on a
precluded diagnosis, Dr. Maxwell responded “no” when asked whether his
opinion changed knowing the accepted diagnoses. This response does not
prove that Dr. Maxwell relied on the precluded medical diagnosis to reach
his permanent impairment opinion. Accordingly, the ALJ could rely on Dr.
Maxwell’s permanent impairment opinion because it was “competent
medical testimony.” See Rosarita Mexican Foods v. Indus. Comm’n of Ariz., 199
Ariz. 532, 535 ¶ 12 (App. 2001).

¶14 Although Villegas disagrees with Dr. Maxwell’s opinion, “it
is the ALJ, not this court, who has the responsibility of resolving conflicts
in expert opinions.” Kaibab Indus., 196 Ariz. at 605 ¶ 10. The ALJ therefore
did not abuse its discretion by finding Villegas does not have a permanent
impairment.

5
 VILLEGAS v. GC LANDSCAPING/SPECIAL FUND
Decision of the Court

CONCLUSION

¶15 We affirm the award.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

6