Yant v. American / a I U Insurance

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LINDSEY YANT, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

AMERICAN AIRLINES GROUP, Respondent Employer,

A I U INSURANCE CO, Respondent Carrier.

No. 1 CA- IC 24-0057
FILED 08-12-2025

Special Action - Industrial Commission
ICA Claim No. 20222940826
Carrier Claim No. 002210406095
The Honorable Amy L. Foster, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

Joel F. Friedman PLLC, Phoenix
By Joel F. Friedman
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent
Jardine Baker Hickman & Houston PLLC, Phoenix
By Stephen C. Baker
Counsel for Respondent Employer and Insurance Carrier

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Lindsay Yant challenges an Industrial Commission of
Arizona (“ICA”) award closing her claim after an evidentiary hearing. She
argues she should have been allowed to offer testimony in response to an
issue that arose during her cross-examination of an expert witness called by
Respondents American Airlines Group and AIU Insurance Co. Because we
conclude that Administrative Law Judge (“ALJ”) Foster deprived Yant of
substantial justice by denying her request to provide other testimony, we
set aside the award.

FACTS AND PROCEDURAL BACKGROUND

¶2 Yant has worked as a flight attendant for American Airlines
since 2000. In October 2022, while on a layover, she fell after she “rolled”
her right ankle on an uneven sidewalk. She noticed swelling the same day,
but continued to work until she returned to Phoenix. Yant saw a physician,
Rutvik Patel, D.O., two days after the injury. He diagnosed a “sprain of
unspecified ligament of right ankle,” prescribed medications, and provided
work restrictions that required Yant to “be sitting 90% of the time.”

¶3 Yant continued her treatment with Jason Lake, M.D., a
board-certified orthopedic surgeon. Dr. Lake maintained Yant’s work
restrictions and prescribed physical therapy. Later in October 2022, Dr.
Lake ordered an MRI of the injured ankle. Dr. Lake later testified that the
diagnostic tests, including the MRI, showed a high-grade soft tissue sprain.
Yant began wearing tennis shoes and a soft brace at work. She also taped
her ankle.

¶4 Yant filed a workers’ compensation claim, which the
Respondents accepted in November 2022. Yant continued treatment with
Dr. Lake.

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¶5 In December 2022, Yant rolled her ankle again, this time on a
flat surface while in her garage at home. According to Dr. Lake, the October
ankle injury had not yet resolved, and the garage incident was likely caused
by instability and weakness from the October injury. The garage incident
prompted Dr. Lake to order another MRI in January 2023. According to Dr.
Lake, the January 2023 MRI did not show a significant change. Yant
reported that her ankle was sore for a few days, but it then went back to the
way it was before the garage incident. Dr. Lake recommended surgical
intervention after some months without a full recovery.

¶6 In March 2023, while working, Yant had to jump over another
flight attendant who had fallen and was lying immobile in the aisle. She
pushed off her left foot and landed on her right foot, experiencing
immediate pain in her right ankle, which had not yet recovered from the
prior injury. Another MRI showed, according to Dr. Lake, a “split in the
tendon” that aggravated her existing injury. He later testified that the
October 2022 ankle roll “set everything off,” giving Yant an unstable ankle
that contributed to the next two ankle incidents.

¶7 William Leonetti, D.P.M., a board-certified podiatrist with
qualifications in foot and ankle surgery, performed an independent medical
examination (“IME”). Before the IME, in March and April 2023, Dr. Leonetti
reviewed Yant’s medical records relating to her ankle injury, including the
MRIs from October 2022 and January 2023. He concluded that she suffered
a “very low grade” ankle sprain in October 2022 and that the December
2022 garage incident was unrelated to the October incident. In March 2023,
he recommended conservative treatment, including physical therapy and
an ankle brace, before her claim should be closed. In April 2023, after
reviewing the March 2023 MRI, Dr. Leonetti concluded that Yant had
reached maximum medical improvement and was stationary with no
permanent impairment.

¶8 Based on Dr. Leonetti’s conclusions, Respondents closed the
claim with no permanent impairment and no supportive care. Yant timely
requested a hearing.

¶9 In preparation for the hearing, Dr. Leonetti conducted a
comprehensive IME, including a physical examination. He again concluded
that Yant had suffered a low-grade soft tissue strain to her right ankle in
October 2022 that had resolved and was stable by December 2022. He again
concluded that the December 2022 garage incident was unrelated to her
work injury and caused ankle instability. He described the March 2023

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injury as a “low-grade exacerbation” of the December 2022 injury. He
recommended no further active treatment.

¶10 During the hearing process, ALJ Foster, who presided over
the case, scheduled hearing sessions for three witnesses: Yant, Dr. Lake, and
Dr. Leonetti. ALJ Foster conducted the hearing sessions for Yant and Dr.
Lake but was not present during most of Dr. Leonetti’s direct testimony and
cross-examination. A different ALJ, Judge Rushforth, conducted that
session, noting she was “sitting in as a courtesy for Judge Foster, who
remains . . . assigned to hear this case.” The record contains no information
about why ALJ Foster was absent or when the parties were informed of the
change. Because the hearing session time allotment ran out before Dr.
Leonetti’s cross-examination concluded, ALJ Foster scheduled another
session to finish the doctor’s testimony. ALJ Foster conducted the resumed
session, which consisted of the rest of the cross-examination of Dr. Leonetti,
with no questions asked on redirect.

¶11 During Dr. Leonetti’s testimony, heard by ALJ Rushforth, an
issue arose about a notation made by Dr. Patel in the medical report of
Yant’s initial visit two days after her first ankle roll in October 2022. Dr.
Patel noted that his physical examination of the ankle showed “[e]quivocal
[a]nterior [d]rawer [s]ign” and “[e]quivocal [t]alar [t]ilt [t]est.” Dr. Leonetti
explained that the drawer sign and talar tilt test evaluate the stability of the
lateral ligaments of an ankle joint. Twice during his direct testimony, Dr.
Leonetti testified that Dr. Patel’s notation that the tests were equivocal
meant that the tests were equal:

[T]hese [radiological] findings are consistent with the first . . .
evaluation, where [Dr. Patel] stated equivocal anterior drawer
signs and talar tilts, meaning they’re equal. There’s no
pathology.

And again:

In the notation . . . [Dr. Patel] specifically states that the
anterior drawer and the talar tilt were equivocal, meaning
equal.

On cross-examination, still in front of ALJ Rushforth, the following
exchange took place:

Q: Okay. Dr. Patel . . . did not diagnose a Grade 1 ankle sprain,
correct?

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A: No. What his record specifically states is there is equivocal
anterior drawer sign and equivocal talar tilt test, indicating
that they’re equal, comparatively. And there is absolutely no
mention of instability with full foot and ankle strength listed
as normal.

Q: Dr. Patel only evaluated the right ankle. There’s no
reference to the left ankle in his report?

A: Equivocal anterior drawer and equivocal talar tilt test.

Q: Okay. It’s your testimony that equivocal means the same
as negative?

A: Equal. Yes. In this particular case, yes. . . .

Q: . . . The dictionary definition of equivocal does not mean –
is not equal. Do you agree with that, or do you not know the
dictionary definition of equivocal?

A: Do you want to read that to me?

Q: The dictionary definition of equivocal is ambiguous or
uncertain. So it’s not positive, it’s not negative, certainly not
equal. It means Dr. Patel could not tell from his evaluation if
the anterior drawer sign and the talar tilt test were or were
not positive. That’s what equivocal means in the English
language.

A: Well, we would have to ask Dr. Patel what he meant by his
statements. But, again, everything I read is that it’s consistent
with the MRI that was done on 10/21 of ’22.

The presiding ALJ, Judge Foster, did not conduct this part of the hearing.
At the end of the follow-up session to conclude Dr. Leonetti’s testimony,
which ALJ Foster did conduct, Yant’s counsel requested that “Dr. Patel be
called to testify to clarify his use of the term ‘equivocal.’” Before he could
conclude his request, ALJ Foster said, “No.” When Yant’s counsel finished
his request, ALJ Foster stated, “Your request is denied.” Yant later
submitted the request in writing, reminding ALJ Foster that Dr. Leonetti
raised the issue, testifying that he read Dr. Patel’s notes to mean that the
ankle tests were equal rather than uncertain or inconclusive. ALJ Foster
denied the written request in the award.

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¶12 ALJ Foster issued an award finding Yant had not shown “the
need for further active medical care or that she has a permanent
impairment” from the October 2022 injury. ALJ Foster also found that the
March 2023 incident exacerbated Yant’s right ankle injury, but it is not clear
if the reference is to the December 2022 garage incident or the October 2022
work injury. The award does not address whether or how ALJ Foster
reviewed the testimony of Dr. Leonetti, for which she was not present.

¶13 Yant requested administrative review of the award,
contending, among other things, that she should have been allowed to call
Dr. Patel to clarify his medical notes. Upon review, the ALJ affirmed the
award without substantive comment.

¶14 Yant filed this statutory special action. We have jurisdiction
under Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(2), 23-951(A).

DISCUSSION

¶15 Although Yant raises multiple issues on appeal, because we
find reversible error in the denial of her request to call Dr. Patel as a witness,
we address only that issue.

¶16 When reviewing a workers’ compensation award, we defer to
the ALJ’s factual findings but review questions of law de novo. See Young v.
Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). An ICA ALJ is not
bound by common law or statutory rules of evidence or by technical or
formal rules of procedure but may conduct a hearing in a manner that “will
achieve substantial justice.” A.R.S. § 23-941(F); see Ohlmaier v. Indus.
Comm’n, 161 Ariz. 113, 117 (1989) (The object of a hearing before an ALJ is
“substantial justice.”). Here, substantial justice was not achieved.

¶17 The issue about Dr. Patel’s intended meaning of “equivocal”
was raised for the first time by Dr. Leonetti in his direct testimony and again
in his cross-examination. The issue was not resolved during the testimony,
as Dr. Leonetti himself concluded that “we would have to ask Dr. Patel
what he meant by his statements.” Dr. Leonetti’s interpretation of the word
“equivocal” was a substantive part of his medical opinion. Clarification of
what Dr. Patel meant was a material factor in weighing the expert witness’s
opinions. The ALJ should have continued the hearing to present the
additional evidence.

¶18 Arizona Administrative Code Rule R20–5–156 establishes a
flexible procedure for requesting and granting a continuance of a hearing if
a party seeks to introduce more evidence. Naglieri v. Indus. Comm'n, 236

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Ariz. 94, 97, ¶ 12 (App. 2014). A party’s request must state the nature and
substance of the new evidence, the other witnesses, and why the evidence
or witness was not presented in the original hearing. A.A.C. R20–5–156(B).
The party must make the request after the original hearing. Id.
Continuances are permitted so that substantial justice will be achieved and
all the facts of the case can be fully considered. Id.

¶19 Yant correctly complied with the administrative rules. She
noted that the issue arose during Dr. Leonetti’s testimony. She identified its
relevance and why it was necessary to resolve medical issues. And she
raised it after the hearings. Compounding the problem, the presiding ALJ,
Judge Foster, who ruled on the request, was not present during Dr.
Leonetti’s testimony on the meaning he gave the word and his suggestion
that Dr. Patel clarify the issue.

¶20 Our supreme court has been clear that live testimony, for both
lay witnesses and expert witnesses, must be heard first-hand by the same
fact-finder. In Ohlmaier, the court held that substantial justice was not
achieved when different ALJs heard different parts of the testimony of the
claimant and three physicians, thereby overturning the ruling of this court,
which had required the same ALJ only when the credibility of a testifying
claimant was at issue. 161 Ariz. at 114-15. In doing so, Ohlmaier found that
“the function of substantial justice requires credibility resolution beyond
the narrow question of truthfulness,” concluding that “the one who decides
the issue should be the one who hears the evidence.” Id. at 118.1 The court
determined that the ICA denied substantial justice when more than one ALJ
heard the testimony of the witnesses. Id. at 115.

¶21 We have more recently applied this standard in setting aside
an award closing a claim with no permanent impairment when the
testimony of two witnesses was heard by two ALJs who were not the
presiding ALJ: “As a rule, substantial justice requires that the resolver of
testimonial conflicts, for either expert or non-expert witnesses, directly hear

1 The supreme court also said: “[w]e do not imply that all testimony
must be heard ‘live.’ In some cases, necessity dictates a different approach.
Here the record provides no compelling circumstance why three judges
must hear only part of the testimony.” 161 Ariz. at 118-119 (citations
omitted). The record before us is also silent on why it was necessary in this
case.

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all conflicting testimony.” Diaz v. Indus. Comm’n, 1 CA-IC 19-0034, 2020 WL
3422848, at *3, ¶ 15 (Ariz. App. June 23, 2020) (mem. decision).

¶22 We conclude that the denial of Yant’s request to call Dr. Patel
as a witness to clarify the meaning of his use of “equivocal” was an abuse
of discretion and a denial of substantial justice. The request was timely, and
the testimony sought was relevant and material to a substantive issue in the
case.

CONCLUSION

¶23 We set aside the award.

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

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