Gamez v. Industrial Com'n of Arizona

• Decision Date: 10 August 2006
• Docket Number: No. 1 CA-IC 05-0069.,1 CA-IC 05-0069.
• Citation: 213 Ariz. 314,141 P.3d 794
• Parties: Jose Luis Gonzalez GAMEZ, Petitioner-Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Thunderbird Furniture, Respondent Employer, State Compensation Fund, Respondent Carrier.
• Court: Arizona Court of Appeals

141 P.3d 794

213 Ariz. 314

Jose Luis Gonzalez GAMEZ, Petitioner-Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Thunderbird Furniture, Respondent Employer State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 05-0069.

Court of Appeals of Arizona, Division 1, Department C.

August 10, 2006.

Jose Luis Gonzalez Gamez aka Mario G. Lopez, Mesa, Petitioner in propria persona.

Laura L. McGrory, Chief Counsel, The Industrial Commission of Arizona By Suzanne Scheiner Marwil, Phoenix, Attorneys for Respondent.

James B. Stabler, Chief Counsel, State Compensation Fund By Bonnie E. Elber, Phoenix, Attorneys for Respondent Carrier & Employer.

Taylor & Associates, PLLC By Roger A. Schwartz, Phoenix, Attorneys for Amicus Curiae

Arizona Association of Lawyers for Injured Workers (AALIW).

OPINION

EHRLICH, Judge.

¶ 1 This is a special-action review of an Industrial Commission of Arizona ("Commission") award and decision upon review finding that Jose Luis Gonzalez Gamez (also known as Mario G. Lopez) is medically stationary with no permanent impairment. Gamez's issue is whether the award of the administrative law judge ("ALJ") is reasonably supported by the evidence. Because we find that the award and decision upon review are supported by the record, we affirm.

FACTS¹ AND PROCEDURAL BACKGROUND

¶ 2 Gamez began working for Thunderbird Furniture on April 23, 2001, using the name and Social Security number of a Mario Lopez.² On June 19, 2001, he injured his lower back while lifting furniture in his capacity as a finisher for Thunderbird Furniture. He later developed pain in his neck, leg, right shoulder and right arm. Gamez later testified that he continued working for Thunderbird Furniture doing "light duty" until October 4, 2001, when he ceased working completely upon his doctor's recommendation.

¶ 3 Gamez's injury was treated with physical therapy, injections and medication. His claim for workers' compensation benefits was accepted by the State Compensation Fund ("SCF"). In February 2002, the SCF issued a notice of claim status terminating temporary compensation and medical benefits without permanent disability. Gamez protested, and he was awarded continuing medical benefits and temporary compensation.

¶ 4 In October 2003, Gamez was involved in an automobile accident that caused him to suffer increased pain in the areas affected by the industrial injury. Although he received three months of treatment after the accident, his pain did not lessen.

¶ 5 In December 2003, the SCF again issued a notice of claim status terminating medical benefits and temporary compensation without permanent disability, effective December 18, 2003. Gamez filed a request for hearing to protest the decision.

¶ 6 During the ensuing hearing, Gamez and two physicians testified.³ The opinions of the two medical experts, Dr. Douglas Slaughter and Dr. James Maxwell, conflicted.

¶ 7 On April 1, 2005, the ALJ issued a decision upon hearing resolving the conflicting medical evidence by accepting the opinion of Dr. Maxwell. The ALJ found that Gamez's condition was stationary without permanent impairment as of December 18, 2003. Gamez was awarded medical, surgical and hospital benefits and temporary compensation from the date of his injury through the date he was found to be medically stationary.

¶ 8 On April 29, 2005, Gamez filed a request for review. On May 20, 2005, the ALJ issued a decision upon review affirming the ALJ's prior findings and award. Gamez timely filed a petition for special-action review by this court.

DISCUSSION

¶ 9 Gamez argues that the ALJ erred in finding that he was not permanently disabled. He asserts that the conflicting medical evidence offered by Dr. Maxwell and Dr. Slaughter should have been resolved in his favor. We deferentially review the ALJ's factual findings, although we independently review the ALJ's legal conclusions. See, e.g., PFS v. Indus. Comm'n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App.1997). We will not set aside an award unless it cannot be supported by any reasonable theory of the evidence. Phelps v. Indus. Comm'n, 155 Ariz. 501, 506, 747 P.2d 1200, 1205 (1987).

¶ 10 Dr. Slaughter is a board-eligible orthopedic surgeon. He treated Gamez approximately seven times from January 2002 through September 2003, conducted an orthopedic examination and reviewed plain films and an MRI report.

¶ 11 Dr. Slaughter observed a disk degeneration on the x-rays, stating that "the MRI report suggested a disk bulge at L5-S1 and an annular tear at L4-5." He evaluated Gamez as having an S1 distribution right lower extremity sciatica or radiculopathy, degenerative disk disease and an annular tear at L4-5. He found the industrial injury to be the cause of Gamez's injuries and symptoms because Gamez had stated that he had suffered no symptoms before the accident. Dr. Slaughter gave Gamez steroids for the pain in his legs, and he recommended intradiscal electrothermal therapy ("IDET") as well as epidural injections.

¶ 12 Gamez accepted epidural injections but refused IDET. Although he reported continued leg pain after the injections, Gamez continued to refuse IDET. On June 16, 2003, Dr. Slaughter designated Gamez as stationary with an 18 to 20% permanent impairment.

¶ 13 Dr. Maxwell, a board-certified orthopedic surgeon, examined Gamez and reviewed the MRI films. He found no annular tear, and he concluded that Gamez "had some mild desiccation at L5-S1 . . . consistent [with] what a 25-year-old has." He determined that Gamez suffered from degenerative disk disease unrelated to the industrial injury.⁴

¶ 14 Dr. Maxwell concluded that Gamez was medically stationary as to the industrial injury because of the absence of any objective findings, the long history of Gamez's treatment and the diagnosis of degenerative disk disease. He further concluded that Gamez did not suffer any permanent impairment based on "the fact that there was nothing objective that [Maxwell] could identify." He disagreed with Dr. Slaughter's opinion that Gamez suffered from a lumbar radiculopathy, and stated that his review of Dr. Slaughter's records and testimony did not support that conclusion. Dr. Maxwell added that Dr. Slaughter's reliance on an EMG was insufficient to support radiculopathy. Thus, he disagreed with Dr. Slaughter's impairment rating, concluding instead that Gamez "has a zero percent impairment" and that Gamez could work without restrictions.

¶ 15 The ALJ resolved the conflict by accepting the opinions of Dr. Maxwell "as being more well founded and correct." It is the ALJ's responsibility to resolve conflicts in the medical evidence, and we will not disturb that resolution unless it is "wholly unreasonable." Ortega v. Indus. Comm'n, 121 Ariz. 554, 557, 592 P.2d 388, 391 (App.1979) (citation omitted). Because this decision was not unfounded, we affirm the award.

CONCLUSION

¶ 16 Because the ALJ's award and decision upon review are sufficiently supported by the evidence, we affirm.

CONCURRING: MAURICE PORTLEY, Presiding Judge.

BARKER, Judge, Special Concurrence.

¶ 17 Under our current legislative scheme, an undocumented immigrant is not an "employee" for purposes of the Arizona Workers' Compensation Act ("the Act"). Ariz.Rev. Stat. ("A.R.S.") § 23-901(6)(b) (Supp.2005). For this reason, I agree that the award denying benefits should be affirmed.

¶ 18 This particular case can be resolved based on the conflict in medical testimony described above. However, the issue of whether undocumented immigrants are entitled to worker's compensation benefits under the Act is presented by this case, has been fully briefed by the parties and the amicus, is a matter of significant public importance and is likely to recur. Additionally, the Industrial Commission is misapplying the statute. Under such circumstances, it is proper for this court to decide the issue. See, e.g., London v. Broderick, 206 Ariz. 490, 492, ¶ 7 80 P.3d 769, 771 (2003) (deciding a moot issue "because the issue it raises is important and . . . will likely recur."); Big D Constr. v. Court of Appeals, 163 Ariz. 560, 563, 789 P.2d 1061, 1064 (1990) ("We will consider cases that have become moot when significant questions of public importance are presented and are likely to recur."); Fraternal Order of Police v. Phoenix Employee Relations Bd., 133 Ariz. 126, 127, 650 P.2d 428, 429 (1982) ("Our court has consistently held that it will refrain from considering moot or abstract questions. We will make an exception, however, to consider a question of great public importance or one which is likely to recur even though the question is presented in a moot case.") (citations omitted); Dunwell v. Univ. of Arizona, 134 Ariz. 504, 507, 657 P.2d 917, 920 (App.1982) (as to "moot questions . . . [w]here the matter is of considerable public importance and the principle involved is a continuing one, the appellate court may, in its discretion, decide the issues of law involved").

I.

¶ 19 Gamez is a thirty-one year old male undocumented immigrant. Gamez entered the United States illegally. He used a false name, Mario Lopez, and Lopez's Social Security number when be began work for Thunderbird Furniture. Gamez was subsequently injured while working. He filed a workers' compensation claim under the name of Mario Lopez, and this action has thus far proceeded under the name of Mario Lopez. At least five Industrial Commission claims have been filed under the name Mario Lopez from June 1998 through November 2000. Gamez denies filing any of those claims.

¶ 20 In proceedings before the Industrial Commission it was undisputed that Gamez was not Lopez and that Gamez was an undocumented immigrant (or illegal alien)⁵:

Q. [By Fuller] Sir, you worked under a false name because legally you can't work in the United States; is that correct?

A. [By Gamez] That is correct.

Q. Sir, while you were working at Thunderbird Furniture, you were using the name Mario Lopez; is that right?

A. Yes.

Q. But...