LOVITCH v. INDUSTRIAL COM'N OF ARIZONA

• Decision Date: 07 March 2002
• Docket Number: No. 1 CA-IC 01-0053.,1 CA-IC 01-0053.
• Citation: 41 P.3d 640,202 Ariz. 102
• Parties: Susan LOVITCH, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Dennis Gold, DDS, PC, Respondent Employer, State Compensation Fund, Respondent Carrier.
• Court: Arizona Court of Appeals

41 P.3d 640

202 Ariz. 102

Susan LOVITCH, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Dennis Gold, DDS, PC, Respondent Employer, State Compensation Fund, Respondent Carrier.

No. -0053.

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

March 7, 2002.

Cross & Lieberman by Lawrence H. Lieberman, Phoenix, Attorneys for Petitioner Employee.

Anita R. Valainis, Chief Counsel, The Industrial Commission of Arizona, Phoenix, Attorney for Respondent.

James F. Crane, General Counsel, State Compensation Fund by James B. Stabler, Phoenix, Attorneys for Respondents Employer and Carrier.

OPINION

TIMMER, Judge.

¶ 1 Petitioner Susan Lovitch requests this court to set aside an Industrial Commission award dismissing her January 12, 2000, Petition to Reopen her 1993 claim after it found that the issues raised were previously litigated, final, and res judicata. The sole issue raised is whether the evidence supports Administrative Law Judge ("ALJ") Overholt's conclusion that Lovitch's Petition to Reopen was barred by the doctrine of res judicata. We agree with Judge Overholt's decision and therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

Initial Injury

¶ 2 Lovitch sustained an industrial injury on July 21, 1993, while working as a dental hygienist when she opened a faulty dental instrument sterilizing unit and inhaled Vapo-Sterile steam, a product that in solution form is made up of 72% ethanol (alcohol) and 0.23% formaldehyde. Lovitch thereafter suffered throat irritation, occasional coughing severe enough to produce mucus and decreased oximetry readings, subjective difficulty in breathing, anxious rapid breathing, chest discomfort and "vague malaise."

¶ 3 Lovitch's industrial insurance carrier, the State Compensation Fund ("Fund"), accepted the claim, but subsequently terminated Lovitch's temporary benefits without permanent disability effective April 22, 1994. Lovitch then requested a hearing, which was subsequently held over seven dates from March 15, 1995 through January 12, 1996 and presided over by ALJ Little. Multiple expert witnesses testified during the hearing.

¶ 4 Dr. Curry, who was board-certified in medical toxicology and emergency medicine, examined Lovitch on March 28, 1994, and diagnosed a "psychogenic vocal cord spasm" that originated from the larynx and was "triggered by odors, stress, etc." He suggested that vocal cord spasm "(whether intentional or unintentional)" explained Lovitch's "bark-like cough" and "lack of response to antiasthmatics." Dr. Curry testified that "chemical exposure does not cause psychogenic vocal cord [dysfunction] ... unless we are now speaking of an anxiety reaction." He declined to render a causal opinion on the "hysterical nature" of the condition "because I'm not a psychologist or a psychiatrist."

¶ 5 Neither Mamiko Odegaard, Ph.D., Lovitch's psychological expert, nor Jack Tuber, M.D., her pulmonary specialist, testified about vocal cord dysfunction. Irwin Finkelstein, M.D., a psychiatrist who examined Lovitch, testified that she had no permanent psychiatric or psychological conditions causally related to her industrial injury. Gerald Schwartzberg, M.D., a pulmonary specialist who examined Lovitch and was aware of Dr. Curry's diagnosis and Lovitch's ongoing symptoms, testified that Lovitch's industrial injury was medically stationary without permanent impairment.

¶ 6 Regarding the vocal cord spasm diagnosed by Dr. Curry, ALJ Little found that Dr. Curry "was of the opinion that [Lovitch] has numerous complaints, but could not, within a reasonable degree of medical probability, causally relate any of the problems to applicant's industrial injury." ALJ Little additionally found no permanent pulmonary, neurological, or psychological conditions causally related to the industrial injury and therefore closed the claim without permanent impairment. This court affirmed the award in a November 26, 1999, memorandum decision, which held that ALJ Little's award implicitly adopted Dr. Finkelstein's and Dr. Schwartzberg's opinions rather than those of Dr. Odegaard and Dr. Tuber.

1997 Award

¶ 7 Lovitch filed a Petition to Reopen on December 24, 1996, supported by a report from Kaye H. Kilburn, M.D., who had diagnosed multiple conditions as causally related to Lovitch's industrial injury. The issues raised by the petition were litigated and the Fund raised a res judicata defense.

¶ 8 Lovitch claimed that her symptoms, excepting psychological symptoms, had worsened since the ALJ had closed her claim. Dr. Tuber testified again, this time opining that one of Lovitch's primary problems was a "vocal cord dysfunction secondary to the inhalant events," a condition that he suggested was a new anatomic abnormality, even though he admitted that as early as June 14, 1995, prior to his 1995 testimony, he had diagnosed this condition as globus hysterica, a psychiatric condition.

¶ 9 Although Dr. Schwartzberg testified that vocal cord dysfunction could respond to various odors, was sometimes found among persons who complain of multiple chemical sensitivities, and could cause a throat-closing sensation, hoarseness, and a respiratory croup-like sound, he had found no objective evidence that Lovitch suffered from the condition. In a December 30, 1997 award, ALJ Turney adopted Dr. Schwartzberg's opinion rejecting Dr. Tuber's diagnosis of vocal cord dysfunction, because Dr. Schwartzberg had found no objective evidence that Lovitch suffered from that condition. Judge Turney additionally found that Judge Little's 1997 award was res judicata regarding the issues of permanent psychological or psychiatric impairment. The ALJ then denied the petition finding that Lovitch did not have any "new, additional or previously undiscovered condition causally-related to her industrial injury of July 21, 1993." The December 30, 1997 award became final.

1999 Petition to Reopen

¶ 10 Lovitch next filed a Petition to Reopen on February 24, 1999, supported by a February 15, 1999, report from toxicologist John B. Sullivan, Jr., M.D., who had diagnosed Lovitch with irritant-induced vocal cord dysfunction he thought causally related to her "occupational exposure." The Fund denied the petition and after a hearing was scheduled, filed a motion to dismiss based on the res judicata effect of ALJ Turney's 1997 award.

¶ 11 After requesting written arguments, and reviewing the evidence submitted, ALJ Schatz dismissed Lovitch's petition and determined as a matter of law that "[t]he question of the existence of vocal cord dysfunction, causally related to Applicant's industrial injury has been litigated. Applicant has had her day in court on the issue of the existence of vocal cord dysfunction and its causal relationship to her industrial injury." The 1999 award became final without protest.

Current petition to reopen

¶ 12 Lovitch filed her third and current Petition to Reopen on January 12, 2000, submitting with it a January 5, 2000, report from John B. Sullivan, M.D., and an October 18-22, 1999, report from his consultant, Ronald Balkissoon, M.D. The petition seeks treatment for vocal cord dysfunction and dysphonia. The Fund denied the petition and again raised a res judicata defense.

¶ 13 Following hearings, ALJ Overholt dismissed Lovitch's petition after finding in his March 14, 2001 award that "the question of whether [Lovitch] has vocal cord dysfunction causally related to the subject industrial injury has been previously litigated and decided adversely to the applicant" in the Commission's 1997 award, and that the Commission's 1999 award affirmed the res judicata effect of the 1997 award. He affirmed these findings upon review, and this special action followed.

¶ 14 Lovitch argues that the ALJ erred by denying her petition on the basis of res judicata because she had introduced new evidence of a previously undiagnosed condition sufficient to allow reopening of her claim. As new evidence of her diagnosis, Lovitch cites Dr. Balkissoon's report, in which he recorded clinical observations of "profound closure" of Lovitch's vocal cords during laryngoscopy with forced vital capacity maneuvers, especially during the expiratory phase, an observation he thought "consistent" with variable upper-airway restriction or vocal cord dysfunction.

¶ 15 As additional new evidence of a previously undiscovered condition, Lovitch cites to a medical article written by Dr. Balkissoon and his colleagues. The article influenced Dr. Schwartzberg to change some of his opinions since his prior testimony. We decline to consider the article itself because it is not contained in the Commission's record, and we cannot consider evidence not presented to the ALJ. Schultz v. Indus. Comm'n, 44 Ariz. 357, 361, 37 P.2d 372, 373 (1934). We will, of course, consider the witnesses' testimony that referenced and related to the article.

STANDARD OF REVIEW

¶ 16 We will affirm a Commission decision if it is reasonably supported by the evidence after reviewing the evidence in a light most favorable to sustaining the award. Salt River Project v. Indus. Comm'n, 128 Ariz. 541, 544-45, 627 P.2d 692, 695-96 (1981). When facts are not in dispute, questions of issue preclusion are determined using an independent standard of review. Special Fund Div. v. Tabor, 201 Ariz. 89, 92, ¶ 20, 32 P.3d 14, 17 (App.2001).

DISCUSSION

¶ 17 Lovitch has the burden to prove her entitlement to reopen her claim by showing a new, additional, or previously undiscovered condition and a causal relationship between that new condition and the prior industrial injury.¹Stainless Specialty Mfg. Co. v. Indus. Comm'n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985); Ariz.Rev.Stat. ("A.R.S.") § 23-1061(H).² A change of condition may be shown by a change in the claimant's causally related physical condition or a change in medical procedures necessary to treat a causally related condition. Id. In the instant claim, the ALJ did not reach these issues because he...