Opinion
No. 1 CA-IC 13-0051
06-17-2014
ANDREW ORTEGA, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, CAREER STRATEGIES, Respondent Employer, UNITED AIRLINES C/O GALLAGHER BASSETT SERVICES, Respondent Carrier.
Andrew Ortega, Phoenix Petitioner Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix By R. Todd Lundmark Counsel for Respondent Employer and Respondent Carrier
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Special Action - Industrial Commission
ICA Claim No. 20121-570285
Carrier Claim No. 002678005782WC01
The Honorable Robert F. Retzer, Jr., Administrative Law Judge
AFFIRMED
COUNSEL
Andrew Ortega, Phoenix
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix
By R. Todd Lundmark
Counsel for Respondent Employer and Respondent Carrier
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Kent E. Cattani joined.
NORRIS, Judge:
¶1 In this special action review of an Industrial Commission of Arizona award and decision upon review, Petitioner Andrew Ortega argues the evidence did not support the administrative law judge ("ALJ")'s finding that his medical condition was stationary and without permanent impairment as of June 27, 2012. We disagree.
¶2 As the claimant, Ortega bore the burden of proving all essential elements of his claim. In re Estate of Bedwell, 104 Ariz. 443, 444, 454 P.2d 985, 986 (1969). When, as here, the condition and status of an injury are matters peculiarly within the knowledge of medical doctors, an ALJ is "entitled to conclude that [the claimant]'s injury was non-stationary only if competent medical testimony supported that determination." Rosarita Mexican Foods v. Indus. Comm'n, 199 Ariz. 532, 535-36, ¶ 12, 19 P.3d 1248, 1251-52 (App. 2001) (citing Stephens v. Indus. Comm'n, 114 Ariz. 92, 95-96, 559 P.2d 212, 215-16 (App. 1977); see also Yates v. Indus. Comm'n, 116 Ariz. 125, 126, 568 P.2d 432, 433 (App. 1977) (claimant required to show industrial injury resulted in temporary or permanent disability or necessitated medical treatment).
¶3 The respondent employer and respondent carrier (collectively, "Respondents") introduced into evidence a June 27, 2012 progress note from Ortega's treating physician, Martin J. Gruenberg, D.O., releasing Ortega from medical care and to regular activity as of that date. Respondents also introduced into evidence a report by Douglas W. Kelly, M.D., a board-certified orthopedic surgeon, who examined Ortega at their request and concluded Ortega was "medically stationary," without "any permanent impairment of function."
¶4 When reviewing the appropriateness of an ALJ's ruling and factual findings, we do not reweigh the evidence; instead, we consider it in the light most favorable to sustaining the award. Perry v. Indus. Comm'n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975). Here, the ALJ's reliance on the foregoing evidence was not wholly unreasonable; thus, we
uphold his determinations. See Gamez v. Indus. Comm'n, 213 Ariz. 314, 316, ¶ 15, 141 P.3d 794, 796 (App. 2006) (appellate court will not disturb resolution of conflicting medical testimony unless ALJ's resolution wholly unreasonable).
¶5 Ortega also argues the ALJ improperly excluded evidence that could have changed the outcome of the case. But, the record does not support this argument. The ALJ considered all of the evidence introduced by the parties before and at the hearing, including documents submitted by Ortega. And, insofar as Ortega is arguing he had additional evidence that would have changed the result in the case, he failed to present this evidence to the ALJ either before or during the hearing.
¶6 Finally, Ortega argues the ALJ denied him the opportunity to question witnesses who, at Respondents' request, had been subpoenaed to testify at the hearing. In requesting the subpoenas, however, Respondents conditioned their request on a requirement that "the order of proof be strictly followed and that the applicant be required to produce evidence, if any, prior to the time [Respondents]' witnesses testify." Accordingly, because Ortega did not produce any medical evidence contesting the medical evidence presented by Respondents, the ALJ was not required to schedule an additional hearing to permit Ortega to question the individuals Respondents had subpoenaed but did not call as witnesses.
¶7 For the foregoing reasons, we affirm the ALJ's award.