Zawada v. american/zenith

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CATHERINE ZAWADA, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

AMERICAN PARKING INC, Respondent Employer,

ZENITH INSURANCE, Respondent Carrier.

No. 1 CA-IC 25-0010
FILED 12-02-2025

Special Action - Industrial Commission
ICA Claim No. 20230600032
Carrier Claim No. 973193
The Honorable Jeanne M. Steiner, Administrative Law Judge

AFFIRMED

COUNSEL

Catherine Zawada, Sun City
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent

Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix
By Stephen C. Baker
Counsel for Respondent Employer and Carrier

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MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Angela K. Paton and Judge Brian Y. Furuya joined.

K I L E Y, Judge:

¶1 Catherine Zawada challenges the closing of her workers’
compensation claim by her employer American Parking, Inc. (“AP”), and
its carrier, Zenith Insurance (“Zenith”) (collectively, “Respondents”),
contending she continues to need care. The Industrial Commission of
Arizona (the “ICA”) concluded she is medically stationary, needs no
further active treatment or supportive care, and has no permanent
impairment from her work-related injury. Because the evidence supports
the ICA’s determination, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Zawada was employed by AP and worked at a hospital. One
day in February 2023, Zawada was injured when an unruly patient
blindsided her with a closed-fist punch to her jaw. As she fell to the floor,
her head hit the wall with such force that it left a dent in the drywall. She
lost consciousness briefly and, upon regaining consciousness, was taken to
the emergency room for evaluation. While there, she underwent a CT scan
of her head and, because she complained of wrist pain, a radiograph of her
wrist. The imaging studies were both negative for traumatic injury. Zawada
was released after about an hour, and drove herself home.

¶3 In March 2023, Zawada sought treatment for intermittent
headaches. The nurse practitioner conducted a neurological examination,
with Zawada testing normal in all areas. The nurse practitioner also
ordered an MRI, which was conducted on May 9, 2023. The MRI did not
reveal any traumatic injury to her brain, only “mild small vessel ischemic
changes, small right maxillary sinus mucous retention cyst or polyp, and
small left and trace right mastoid effusions.” The doctor also ordered an
electroencephalogram for more imaging of the brain, which was conducted
in April 2023 and was normal.

¶4 Respondents accepted Zawada’s workers’ compensation
claim as a medical-only loss claim. See A.R.S. § 23-963.01(E) (providing that

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“’medical-only loss’ means loss that has no indemnity value reflecting lost
wages”).1 She was treated over the next months for migraines and received
“balance therapy” for her vestibular problems. Additionally, she has been
receiving psychotherapy for posttraumatic stress disorder (“PTSD”) and
anxiety. She has not yet returned to work.

¶5 In November 2023, Respondents issued a notice closing the
claim with no supportive care and no permanent impairment. 2 Zawada
protested the closure and requested a hearing. An ICA administrative law
judge (the “ALJ”) conducted a hearing in multiple sessions held over
several months at which Zawada and four expert witnesses testified about
her alleged head injury.3

¶6 Zawada testified that she has no recollection of being
punched. One moment, she said, she was standing in the doorway to
prevent a patient from entering a room that was not his. The next thing she
remembers is “sitting on the floor” while “the room was swirling.” She has
experienced dizziness “every day” since the incident, she testified, and
began experiencing “headaches . . . about two days later.” She also testified
that she underwent treatment for an “acute stress disorder,” explaining that
she felt “afraid that the guy” who punched her “would find [her] and finish
[her] off.” After several visits with one psychologist, she stated, she has
begun receiving psychological treatment from Ashley Hart, Ph.D. She also
testified that she continues to receive balance therapy from Maninder
Kahlon, M.D. When asked if she feels able to return to her former
employment, Zawada answered, “No,” explaining that she would be
“scared of getting harmed.” She also testified that she does not feel “stable
enough physically” to return to work, adding that she has had “several
falls.” She admitted, however, that she does not use a walker or other
assistive device outside her home, that she continues to drive herself, and
that she does her own grocery shopping.

¶7 The four experts all agreed that Zawada was medically stable
and not permanently impaired. They disagreed, however, about the
necessity of supportive care. Dr. Kahlon and Dr. Hart opined that Zawada

1 Zenith later paid Zawada temporary disability benefits.
2 The Notice of Claim Status closing the claim is not part of the file sent to

this court. The parties, however, do not dispute that the claim was closed
by notice in November 2023.
3 Zawada’s wrist injury was not addressed at the hearing.

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requires supportive care; Barry Hendin, M.D., and James Youngjohn, Ph.D.,
testified that she does not.

¶8 Dr. Kahlon testified that he has been a practicing neurologist
for almost 30 years and that he treated Zawada for dizziness, memory loss,
and neck pain following her injury. He stated that Zawada suffered a
“traumatic injury to the head” and that, as a result of the injury, she is
“going to need” both “treatment for [PTSD]” and “vestibular therapy” to
address her “bouts of dizziness” and “imbalance.” When asked how often
she would need vestibular therapy, Dr. Kahlon replied, “Probably every
two months or so.” He also opined, however, that Zawada was medically
stationary as of October 2024.

¶9 Dr. Hart, a licensed psychologist, testified he began treating
Zawada in May 2024 with a course of cognitive behavioral therapy for
PTSD, traumatic brain injury, and major depressive disorder stemming
from the workplace assault. He was still treating her for PTSD when he
testified in October 2024. He testified her condition was stable and
recommended supportive care consisting of monthly psychotherapy visits
and then a reassessment of her needs after a year.

¶10 Dr. Hendin, a board-certified neurologist, testified about his
training and experience, including his clinical experience in Phoenix since
1974 and his service as a clinical professor at the University of Arizona. He
testified that he performed an independent medical examination (“IME”)
of Zawada in June 2024. He described the “tests of balance and vestibular
function” that he conducted, explaining that Zawada “performed quite
nicely.” He also described the “mini mental status examination” he
conducted, explaining that it consisted of “a series of 30 questions”
regarding “orientation” to “time” and “place,” short- and long-term
memory, the “ability to write a sentence coherently,” and the “ability to
follow instructions.” On this test, too, Zawada “did . . . quite well.” Finally,
Dr. Hendin testified, he conducted a neurologic examination that
“involve[d] walking and standing and intellectual functioning,” and found
no “deficit[s].” He opined that Zawada had experienced a concussion that
was fully resolved. He considered her condition stationary with no
permanent impairment and no need for further care. He testified that while
he “respects [Dr. Kahlon] highly,” he “respectfully disagree[d]” with Dr.
Kahlon’s opinion that Zawada requires ongoing supportive care. “I found
no evidence of imbalance or vestibular dysfunction objectively,” he stated,
and so did not believe “that ongoing vestibular therapy would be helpful
or necessary.”

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¶11 Dr. Youngjohn testified that he is a board-certified clinical
neuropsychologist and has been in private practice for 35 years. He also
testified that he conducted an IME on Zawada in October 2023. She
exhibited “normal performances” based on the neuropsychological testing
he performed, he testified, and showed “no decline in her level of cognitive
function.” He further testified that “[an] MRI scan of her brain showed no
structural damage.”

¶12 Noting that records from Zawada’s psychologist indicated
that Zawada exhibited “resistance towards moving forward,” Dr.
Youngjohn opined that someone who “is actively resisting recovery” is “not
going to get better.” According to Dr. Youngjohn, Zawada suffered a
concussion and developed mild post-concussion symptoms following her
injury but was “neuropsychologically and psychologically” stationary by
the time of his examination. He also opined she did not have permanent
impairment and did not need supportive care.

¶13 Finding the opinions of Dr. Youngjohn and Dr. Hendin “more
probably correct and well founded[,]” the ALJ affirmed the closure of
Zawada’s claim. Zawada requested administrative review. Along with her
request, Zawada submitted new evidence including photographs and a
letter from Dr. Kahlon dated March 7, 2025. The ALJ declined to consider
the newly-submitted evidence, holding that the decision must be based on
the record at the conclusion of the hearing. See A.R.S. § 23-943(E) (providing
that review of ALJ award “shall be based on the record”); Ariz. Admin.
Code R20-5-159 (providing, inter alia, that decision must be based on
evidence in “[t]he record as it exists at the conclusion of the hearings”). The
ALJ reconsidered the evidence previously presented and made
supplemental factual findings affirming that Zawada’s work-related
condition was stationary with no permanent impairment or need for further
active care or supportive care.

¶14 Zawada timely sought review by this court. We have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(B) and
23-951(A).

DISCUSSION

¶15 In her opening brief, Zawada challenges the closure of her
claim, faulting the ALJ for “sid[ing] with the hired IME providers rather
than the attending neurologist[,] Dr. Kahlon.”

¶16 An injured worker claiming the right to continue to receive
benefits must show that her condition has not become stationary, Stephens

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v. Indus. Comm’n, 114 Ariz. 92, 94 (App. 1977), or that she is entitled to
supportive medical care benefits “to prevent or reduce the continuing
symptoms of an industrial injury after the injury has become stabilized.”
Capuano v. Indus. Comm’n, 150 Ariz. 224, 226 (App. 1986).

¶17 We view the evidence in a light most favorable to upholding
the award. Avila v. Indus. Comm’n, 219 Ariz. 56, 57, ¶ 2 (App. 2008). The ALJ
is empowered to resolve conflicts in the evidence and determine witness
credibility. See Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988);
Malinski v. Indus. Comm’n, 103 Ariz. 213, 217 (1968). We do not re-weigh the
evidence, Wal-Mart v. Indus. Comm’n, 183 Ariz. 145, 146–47 (App. 1995), and
will defer to the ALJ’s resolution of conflicts in the evidence if supported
by any reasonable theory of the evidence, Perry v. Indus. Comm’n, 112 Ariz.
397, 398–99 (1975). We will affirm an ALJ’s resolution of conflicting medical
opinions absent an abuse of discretion. Kaibab Indus. v. Indus. Comm’n, 196
Ariz. 601, 605, ¶ 10 (App. 2000).

¶18 Both Dr. Youngjohn and Dr. Hendin provided conclusions
that are consistent with the medical records and physical examination
results. Both are licensed, experienced medical specialists in the relevant
fields of neuropsychology and neurology. Although Zawada disagrees
with their conclusions and questions their objectivity, she has failed to show
that the ALJ’s decision to accept their testimony is not “reasonably
supported on any reasonable theory of the evidence.” Perry, 112 Ariz. at
399. The ALJ, thus, did not abuse her discretion in accepting their
testimony.

¶19 Zawada also questions whether the ALJ reviewed all the
evidence, suggesting that the ALJ was “oblivious” to the “actual reports.”
But a reviewing court presumes that an ALJ considered all relevant
evidence, Carranza v. Indus. Comm’n, 22 Ariz. App. 547, 550 (1974), and in
her decision, the ALJ explicitly stated she considered all of the medical
records and other documents in the file. Furthermore, the ALJ reconsidered
the evidence at Zawada’s request and came to the same conclusion. We find
no grounds for Zawada’s accusation that the ALJ did not consider all the
admitted evidence.

¶20 To the extent Zawada argues the ALJ erred by not considering
the new evidence that she submitted after the ALJ issued her decision, we
find no error. By ICA statute and rule, the administrative review must be
based on the evidentiary record created before closing the record at the end
of the hearing sessions. A.R.S. § 23-943(E); Ariz. Admin. Code R20-5-159;
see also Magma Copper Co. v. Indus. Comm’n of Ariz., 139 Ariz. 38, 47-48 (1983)

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(“[T]he time for presentation of evidence is at the hearing before the
Commission.”). At the end of the last hearing session, the ALJ told the
parties to “make sure everything you want is in” evidence before January
10, 2025. The ALJ did not abuse her discretion in refusing to consider
additional evidence offered after that deadline.

CONCLUSION

¶21 We affirm.

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

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