Parr v. united/valeey Forge

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LARRY PARR, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent

UNITED CIVIL GROUP, Respondent Employer,

VALLEY FORGE INSURANCE, Respondent Carrier.

No. 1 CA-IC 23-0018
FILED 06-04-2024

Special Action – Industrial Commission
ICA Claim No. 20150820059
Carrier Claim No. E3A46729 F9
The Honorable Amy L. Foster, Administrative Law Judge

AFFIRMED

COUNSEL

Larry Parr, Tempe
Petitioner Employee

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

Ritsema Law, Phoenix
By Kelly F. Kruegel
Counsel for Employer/Carrier
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Anni Hill Foster 1 delivered the decision of the Court, in
which Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe
joined.

F O S T E R, Judge:

¶1 Petitioner Larry Parr appeals an Industrial Commission of
Arizona (“ICA”) decision denying Parr’s petition to reopen his claim
because he did not establish a new, additional, or previously undiscovered
condition of his industrial injury. This Court affirms the ICA’s denial.

FACTS AND PROCEDURAL HISTORY

¶2 On February 13, 2015, Parr sustained an industrial injury
when a tire blew out on his work vehicle, causing it to spin, flip and roll
while traveling approximately 80 mph. As a result of the accident, he broke
his back, humerus, shoulder, and collar bone. Once discharged from the
hospital, he was treated by several physicians specializing in orthopedic
and other traumatic injuries, as well as his primary care physicians. Due to
complaints of unresolved issues, Parr was also treated by a psychiatrist and
was evaluated by neuropsychologists. Parr received benefits for his injuries
from 2015 until 2017. The insurance carrier closed his claim without a
permanent impairment, effective January 6, 2017.

¶3 On March 6, 2017, Parr filed a Request for Hearing protesting
the closure of his claim without permanent impairment. Hearings were
held throughout 2017, where testimony and evidence were presented by
physicians stating that Parr was exaggerating his injuries and that his injury
was medically stationary. The Administrative Law Judge (“ALJ”) issued a
decision finding Parr’s industrial injury was medically stationary as of
January 6, 2017, and he was not entitled to additional temporary-total or
partial-disability workers’ compensation. On November 21, 2017, Parr filed
a request for review and the ALJ issued a decision affirming the prior
decision. Parr appealed that decision to this Court which affirmed the ALJ’s

1 Judge Foster is not nor has ever been related to ALJ Foster.

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decision. See Parr v. Indus. Comm’n, 1 CA-IC 18-0007, 2018 WL 6616965
(Ariz. App. Dec. 18, 2018) (mem. decision).

¶4 A little over two years later, on January 3, 2022, Parr
petitioned to reopen his claim for benefits, alleging that the injuries
sustained in the accident had worsened and that he was suffering from
several new issues that were the result of the accident. Medical assessments
were conducted, and formal hearings were held throughout 2022 and 2023
resulting in the ALJ denying Parr’s request to reopen his claim in February
2023.

¶5 Again, Parr filed a request for review and the ALJ affirmed
the decision in August 2023. This special action appeal followed. This Court
has jurisdiction pursuant to A.R.S. §§ 12-120.21(B), 23-951(A), and Arizona
Rule of Procedure for Special Actions 10.

DISCUSSION

¶6 As a preliminary matter, this Court addresses Respondent’s
contention that Parr’s opening brief does not comply with Rule 13(a),
Arizona Rules of Civil Appellate Procedure, and that he therefore has
waived any argument made in his brief. Ariz. R.P. Spec. Act. 10(k) (Arizona
Rules of Civil Appellate Procedure apply to special action review of ICA
awards). Rule 13(a) requires the appellant’s brief to concisely and clearly
set forth under the appropriate headings a statement of the case, the facts
relevant to the appeal, and the issues presented for review. Ariz. R. Civ.
App. P. 13(a)(4)–(6). In addition, the brief must include an argument
containing the contentions of the appellant with respect to the issues
presented, and the reasons therefor, with citations to the authorities,
statutes, and parts of the record relied on. Ariz. R. Civ. App. P. 13(a)(7).

¶7 This Court agrees that Parr has failed to comply with Rule
13(a). His brief does not contain the issues presented for review. See Ariz.
R. Civ. App. P. 13(a)(5). Parr also has failed to develop his argument or to
support it with any case law or statutes. See Ariz. R. Civ. App. P. 13(a)(7).
Despite Parr’s pro se status, he is held to the same standards as an attorney.
See Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, 287, ¶ 16 (App. 2000).
Parr’s lack of compliance with Rule 13(a) thus 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). However, in this Court’s discretion and because it prefers to
resolve cases on their merits, this Court addresses Parr’s cognizable
arguments. Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984).

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¶8 “In reviewing findings and awards of the ICA, [this Court]
defer[s] to the ALJ’s factual findings but review[s] questions of law de
novo.” Avila v. Indus. Comm’n, 219 Ariz. 56, 57, ¶ 2 (App. 2008). The
evidence is viewed in the light most favorable to upholding the ALJ’s
decision. Id. The ALJ has the primary responsibility to resolve conflicts in
medical opinion evidence. Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43,
46 (1988); see also Kaibab Indus. v. Indus. Comm’n, 196 Ariz. 601, 609, ¶ 25
(App. 2000) (reviewing court is bound by ALJ’s resolution of conflicting
testimony when reasonable evidence supports the ALJ’s conclusion).
Arguments related to the 2017 decisions are waived.

¶9 To begin, Parr argues that the 2017 ruling closing his claim
was incorrect. But Parr’s ability to appeal that decision has run. When a
person is dissatisfied with an order of the ICA, A.R.S. § 23-948 provides
jurisdiction to the appellate court to hear the appeal. Here, Parr appealed
the 2017 ALJ decision to this Court, which affirmed the ALJ’s decision. See
Parr, 1 CA-IC 18-0007, 2018 WL 6616965, at *1, ¶ 1. This Court is unable to
set aside or amend that decision. See Colasacco v. Indus. Comm’n, 14 Ariz.
App. 422, 423 (1971).

¶10 But the ICA retains jurisdiction of an award and claim—even
after appeal—“for the purpose of altering, amending or rescinding its
findings and award.” Int’l Metal Prods. Div. of McGraw-Edison Co. v. Indus.
Comm’n, 99 Ariz. 73, 78 (1965). This can occur upon a showing, related to
the injury, of a subsequent change in the claimant’s physical condition or
reduction of earning capacity. Id. at 78–79. A workers’ compensation
claimant bears the burden “to prove by a preponderance of evidence that
he is entitled to compensation.” Hahn v. Indus. Comm’n, 227 Ariz. 72, 74, ¶ 9
(App. 2011).

¶11 Here, Parr’s request to reopen resulted in an evidentiary
hearing where medical experts provided testimony as to Parr’s condition.
First, Drs. Valdes and Crandall testified regarding Parr’s cervical and
lumbar spine. Both experts testified that the cervical spine injured in the
accident was healed, even stating that his current problems were due to
degenerative spondylosis and Diffuse Idiopathic Skeletal Hyperostosis, not
the industrial injury. Though Dr. Valdes did note a clear progression in the
instability at L5–S1 vertebrae that he attributed to the industrial injury, Dr.
Crandall testified that Parr did not sustain an injury to his lumbar spine in
the accident and any findings were due to degenerative arthritis. The ALJ
found a conflict in the expert medical evidence regarding the lumbar spine
and adopted Dr. Crandall’s conclusion.

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¶12 Next, Drs. Shaarawy and Ferry testified to Parr’s right hip,
bilateral shoulders and knees, and right ankle. Both stated the hip required
treatment but could not relate the need for such treatment to the industrial
injury, adding that Parr had early arthritis. Regarding the shoulder, Parr
completed some physical therapy. However, Dr. Shaarawy testified that
Parr had a rotator cuff tear in his right shoulder that required physical
therapy and potential surgery, while Dr. Ferry stated that Parr sustained a
fracture in the accident, not a rotator cuff tear, and did not recommend
additional treatment. For the conflicting expert medical opinion, the ALJ
adopted Dr. Ferry’s conclusions as more probably correct. Parr stated that
his knees require surgery, but both experts testified that they could not
relate the knee injury to the accident. The experts also stated that the right
ankle injury could not be related to the accident.

¶13 Lastly, Drs. Cardenas and Kahn testified regarding Parr’s
traumatic brain injury. Dr. Cardenas testified that no new, additional, or
previously undiscovered conditions were related to the industrial injury,
but that Parr continues to need supportive care for the injury. He stated the
supportive care should consist of annual appointments with Dr. Cardenas,
trigger point injections, medications, and neuropsychiatric treatment. Dr.
Kahn noted Parr had an essentially normal neurological exam with some
non-organic findings that he could not explain neurologically. He
diagnosed a resolved mild traumatic brain injury and found Parr did not
need additional medical treatment related to the accident. The ALJ adopted
Dr. Kahn’s conclusions over Dr. Cardenas’ conflicting opinion.

¶14 After the ALJ determined the opinions of Drs. Crandall, Ferry,
and Kahn were “more probably correct,” the ALJ determined and found
that Parr did not meet his burden of proof and that a preponderance of the
evidence did not prove the elements required by A.R.S. § 23-1061(H) to
reopen the industrial injury claim.

¶15 Parr argues that the ALJ erred in determining that he had no
new or undiscovered evidence to reopen his case because the ALJ’s
resolution of conflicting medical opinions was unreasonable. Parr also
argues on appeal that Drs. Valdes’, Shaarawy’s, and Cardenas’ testimony
were more persuasive than Drs. Crandall’s, Ferry’s, and Kahn’s. This Court
views the evidence in the light most favorable to sustaining the ALJ’s
decision and will not disturb the decision if reasonable evidence supports
the ALJ’s findings. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App.
2002). “[T]his appellate court may only review the evidence which was
before the [ICA],” O’Neal v. Indus. Comm’n, 13 Ariz. App. 550, 552 (1971),
and will defer to the ALJ’s resolution of conflicting evidence, Kaibab Indus.,

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196 Ariz. at 609, ¶ 25. The ALJ’s decision will be affirmed if any reasonable
theory of the evidence supports it. Perry v. Indus. Comm’n, 112 Ariz. 397,
398–99 (1975). An award based on conflicting medical testimony will not be
disturbed. Smiles v. Indus. Comm’n, 2 Ariz. App. 167, 168 (1965).

¶16 Here, the evidence presented the ALJ with multiple
conflicting medical opinions about the ongoing condition of Parr’s injuries.
The conclusion that the opinions of Drs. Crandall, Ferry, and Kahn were
more credible is reasonable based on the evidence presented. The ALJ was
not compelled to follow the opinions of Drs. Valdes, Shaarawy, and
Cardenas, and this Court will not disturb the ALJ’s resolution of the
conflict. Where two different inferences may be drawn from the evidence,
the ALJ has the discretion to resolve those conflicts and choose either
inference; a reviewing court will not disturb that choice unless it is wholly
unreasonable. Waller v. Indus. Comm’n, 99 Ariz. 15, 18 (1965).

CONCLUSION

¶17 This Court affirms the decision, upon review, denying the
petition to reopen the claim.

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

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