Opinion
No. 1 CA-IC 13-0040
02-11-2014
KHATEREH ABOLHASSAN, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, WALMART STORES INC., Respondent Employer, WALMART ASSOCIATES INC. c/o CLAIMS MANAGEMENT INC., Respondent Carrier.
Khatereh Abolhassan, Phoenix Petitioner In Propria Persona The Industrial Commission of Arizona, Phoenix By Andrew Wade Counsel for Respondent Hoffman Kelley, LLP, Scottsdale By Carolanne D. McCaskill Counsel for Respondent Employer/Carrier
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Special Action - Industrial Commission
No. ICA Claim 20121-180030; Carrier Claim No. 6580117
The Honorable Suzanne Scheiner Marwil, Judge
AFFIRMED
COUNSEL
Khatereh Abolhassan, Phoenix
Petitioner In Propria Persona
The Industrial Commission of Arizona, Phoenix
By Andrew Wade
Counsel for Respondent Hoffman Kelley, LLP, Scottsdale
By Carolanne D. McCaskill
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined. HOWE, Judge:
¶1 Abolhassan worked at Walmart in the produce department.
Her position required her to move boxes weighing up to 50 pounds without assistance. On April 7, 2012, she felt a sharp pain in her shoulder while lifting a box. Although she did not immediately see a doctor for her pain, the pain worsened and Abolhassen saw Dr. Bucklin. He prescribed medication and physical therapy, and released Abolhassan to return to work with the restriction that she not lift more than ten pounds or reach overhead.
¶2 Because of her work restrictions, Walmart gave Abolhassan a temporary position as a greeter. However, after a follow-up appointment, Dr. Bucklin released Abolhassan to return to work without any restrictions. Store managers then requested that Abolhassan return to the produce department. Abolhassan claimed she still had shoulder pain and requested a permanent position in a department that would not require her to lift heavy boxes. Walmart denied her request because the medical reports did not show that Abolhassan had a disability. Because Abolhassan would not perform essential job functions in the produce department, she was placed on leave.
¶3 Abolhassan requested a hearing before the Industrial Commission. A conference was held in September 2012, with an interpreter present for Abolhassan. When Abolhassan asked for an attorney, the Administrative Law Judge (ALJ) responded that the Commission does not provide attorneys and she would have to retain one herself. The ALJ set the evidentiary hearing several months out to give Abolhassan an opportunity to retain an attorney. ¶4 In December 2012, the ALJ held a hearing to determine whether Abolhassan required active treatment for her shoulder. An interpreter was present to assist Abolhassan, but she appeared without an attorney. During the hearing, Abolhassan testified that her shoulder began to hurt six months before she began working in the produce department. The pain increased two weeks before the injury. Abolhassan testified that she had a previous injury to her shoulder that occurred 18 years ago. Abolhassan's physican, Dr. Baniriah, stated that she recommended further treatment for Abolhassan's shoulder injury, but could not comment on whether the industrial injury caused Abolhassan's symptoms because she did not see her immediately after the industrial injury.
¶5 In a Decision Upon Hearing, the ALJ noted that no medical doctor testified that Abolhassan's need for further treatment for her shoulder was related to her industrial injury, and therefore closed Abolhassan's case. Abolhassan requested a review of the Decision Upon Hearing, arguing that she had language issues with the interpreter, needed a different ALJ, and did not have an attorney. Walmart responded that Abolhassan was provided with an interpreter for every proceeding, including all hearings, depositions, and conference and never once raised an issue about the interpreter. Walmart also argued that Abolhassan failed to raise any issue about the ALJ, and had time to retain an attorney, but failed to do so.
¶6 The ALJ issued a Decision Upon Review and stated that the evidence fully supported the Decision Upon Hearing and it should be affirmed. The ALJ noted that the Decision Upon Hearing did not turn upon a credibility issue or misunderstandings of Abolhassan's testimony, but on the lack of medical testimony that any further treatment Abolhassan needed for her shoulders was related to the industrial injury. Abolhassan timely seeks review of that decision pursuant to A.R.S. § 23-951.
DISCUSSION
At the outset, we note that Abolhassan's opening brief is largely indiscernible and does not comply with Arizona Rule of Civil Appellate Procedure 13(a). Most important, the brief does not contain any relevant legal argument or citation to authority, nor does it articulate the proper standard of review. See ARCAP 13(a)(6) (The opening brief shall contain argument with "citations to the authorities, statutes and parts of the record relied on" and identify "the proper standard of review on appeal."). Abolhassan's failure to comply with these rules limits our ability to evaluate her arguments or otherwise address her claims. See, e.g., In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 299 ¶ 28, 18 P.3d 85, 93 (App. 2000) (refusing to consider bald assertions offered without elaboration or citation to legal authority); Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 93 ¶ 50, 977 P.2d 807, 815 (App. 1998) (rejecting assertions made without supporting argument or citation to authority). Although Abolhassan is a non-lawyer representing herself, she is held to the same standards as a qualified attorney. See, e.g., Old Pueblo Plastic Surgery, P.C. v. Fields, 146 Ariz. 178, 179, 704 P.2d 819, 820 (App. 1985). Nevertheless, we will attempt to discern and address the substance of Abolhassan's arguments because we prefer to decide cases on the merits. See Clemens v. Clark, 101 Ariz. 413, 414, 420 P.2d 284, 285 (1966).
¶7 Abolhassan argues that (1) Dr. Bucklin gave wrong information, (2) Dr. Baniriah did not communicate effectively at the hearing, (3) Walmart did not accommodate her by giving her a new position or transferring her to another store, (4) she did not have an attorney, and (5) the interpreter "wasn't exactly my same language."
¶8 Our review of the record demonstrates that Abolhassan never raised her first three arguments with the ALJ. This Court will not consider issues that were not raised before the Industrial Commission when the petitioner has had an opportunity to raise them. Stephens v. Indus. Comm'n, 114 Ariz. 92, 94, 559 P.2d 212, 214 (App. 1977). This is because administrative remedies must be exhausted before court relief is sought, id., and a factual record must be developed before the agency, Kessen v. Stewart, 195 Ariz. 488, 493 ¶ 19, 990 P.2d 689, 694 (App. 1999). Moreover, Abolhassan does not explain what information from Dr. Bucklin was incorrect and what the correct information was, how Dr. Baniriah did not communicate effectively at the hearing, and how Walmart failed to accommodate her. Accordingly, Abolhassan may not raise these issues for the first time before this Court.
¶9 Abolhassan argues that she did not have an attorney to represent her. In September 2012, Abolhassan was informed that the Industrial Commission does not appoint counsel to claimants and that if she wanted an attorney to represent her, she needed to retain one herself. The ALJ set the hearing in December 2012 to give Abolhassan time to retain an attorney. Abolhassan had three months to find and retain counsel, but did not do so. Her failure to retain counsel is not a basis to re-open her case.
¶10 Abolhassan also argues that the Farsi interpreter provided to her in the proceedings "wasn't exactly my same language," which we interpret to mean that she did not understand everything the interpreter said. However, the record does not show that Abolhassan did not understand the proceeding. Abolhassan speaks and understands some English. Her brief and paperwork filed with the Industrial Commission were written in English and during the proceedings, Abolhassan answered some questions in English instead of allowing the interpreter to translate. Abolhassan never complained about the interpreter until she requested review of the ALJ's decision and did not then—and does not now—show how the translation was inadequate. Based on this record, we cannot find that Abolhassan had sufficient difficulty in understanding the proceeding to warrant granting her relief from the decision.
¶11 While not specifically raised by Abolhassan, on the merits, we also find that the ALJ did not err in closing Abolhassan's claim. In reviewing a Commission decision, we view the evidence in the light most favorable to sustaining the decision and affirm it if the evidence reasonably supports it. Lovitch v. Indus. Comm'n of Ariz., 202 Ariz. 102, 105 ¶ 16, 41 P.3d 640, 643 (App. 2002). An injured worker has the burden of proof regarding all the essential elements of her claim in an industrial administrative action. Yates v. Indus. Comm'n, 116 Ariz. 125, 127, 568 P.2d 432, 434 (App. 1977). When the injury is not readily apparent to a lay person, only expert medical evidence can establish whether the injury was causally related to the industrial accident and whether further treatment is needed. Id.
¶12 Here, Abolhassan did not present expert medical testimony that any further treatment she may need for her shoulder pain was related to her industrial injury. Therefore, Abolhassan did not meet her burden of proof and the ALJ properly closed Abolhassan's claim.