New PCR International v. The Industrial Commission of Arizona, 2 CA-IC 2004-0007 (AZ 9/24/2004), 2 CA-IC 2004-0007
| Decision Date | 24 September 2004 |
| Docket Number | 2 CA-IC 2004-0007 |
| Parties | NEW PCR INTERNATIONAL, Petitioner Employer, TRANSPORTATION INSURANCE COMPANY, Petitioner Insurer, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, SCOTT D. TOMLINSON, Respondent Employee. |
| Court | Arizona Supreme Court |
Goering, Roberts, Rubin, Brogna, Enos & Hernandez, By Pamela Treadwell-Rubin, Tucson Attorneys for Petitioners Employer and Insurer.
The Industrial Commission of Arizona, By Laura L. McGrory, Phoenix, Attorney for Respondent.
Law Office of Leonie D. Gray, By Leonie D. Gray, Tucson, Attorney for Respondent Employee.
¶1 In this statutory special action, petitioners New PCR International and its workers' compensation insurer challenge the administrative law judge's (ALJ) award granting respondent Scott Tomlinson's petition to reopen his claim. Petitioners argue the ALJ abused her discretion in denying their motion to dismiss the petition, failed to comply with the 1999 changes in the statute governing reopening, A.R.S. § 23-1061(H), and improperly grounded her award on Stainless Specialty Manufacturing Co. v. Industrial Commission, 144 Ariz. 12, 695 P.2d 261 (1985). Finding no error, we affirm the award.
¶2 We view the evidence in the light most favorable to sustaining the ALJ's factual findings and award and will affirm the award if it is based on any reasonable interpretation of the evidence. Rent A Center v. Indus. Comm'n, 191 Ariz. 406, ¶ 1, 956 P.2d 533, 534 (App. 1998). In April 2000, Tomlinson sustained an injury to his lower back, including a herniated disc at L5-S1, while working for New PCR. His workers' compensation claimwas accepted for benefits and later closed effective June 11, 2001, with a finding that he had sustained an unscheduled permanent partial disability. Thereafter, Tomlinson experienced an increase in his pain and symptoms, including sharp lower back pain and weakness in his left leg. In December 2002, Tomlinson petitioned to reopen his claim and later supported the petition with reports by Dr. Jeffrey Baron. The insurer denied the petition and moved for its dismissal. The ALJ summarily denied that motion.
¶3 At the ensuing hearing on the petition to reopen, the physicians called by each side, Drs. Baron and Schroeder, agreed that a series of magnetic resonance imaging tests and an electromyograph that Tomlinson had undergone showed no substantial objective change in his condition. The physician who had initially cared for Tomlinson after his 2000 injury, Dr. Fitzpatrick, had not recommended that he have surgery "in the short run" given his age and the absence of significant weakness in his leg. Consequently, Tomlinson was treated conservatively with medications, physical therapy, and epidural injections. In September 2002, Tomlinson saw Dr. Baron, who for the first time suggested that he have surgery in October. At the hearing, Baron and Schroeder disagreed on the best course of treatment for Tomlinson, but both said they considered him a candidate for a discectomy. Dr. Baron, however, also testified that a spinal fusion was a viable treatment option in light of the test results and the failure of conservative treatment.
¶4 The ALJ adopted as more probably correct Dr. Baron's opinions to the extent there was any conflict in the medical testimony and granted the petition to reopen. The ALJ affirmed the award on administrative review, and this statutory special action followed.
¶5 Petitioners first argue the ALJ abused her discretion in denying their prehearing motion to dismiss the petition.1 They rely on the statutory mandate that a petition to reopen "be accompanied by a statement from a physician setting forth the physical condition of the employee relating to the claim." § 23-1061(H). Under Blickenstaff v. Industrial Commission, 116 Ariz. 335, 569 P.2d 277 (App. 1977), petitioners argue, the reports of Dr. Baron that Tomlinson submitted in support of his petition to reopen were insufficient because they neither offered an "objective finding which [wa]s new, additional or previously undiscovered" beyond increased, subjective pain nor showed that Baron "ha[d] performed the comparative analysis necessary to justify reopening."
¶6 "We construe workers' compensation laws `liberally, remedially, and in a manner ensuring that injured employees receive maximum available benefits.'" Oaks v. McQuiller, 191 Ariz. 333, ¶ 5, 955 P.2d 971, 972 (App. 1998), quoting Aitken v. Indus. Comm'n, 183 Ariz. 387, 392, 904 P.2d 456, 461 (1995); see also Stainless, 144 Ariz. at 16, 695 P.2d at 265. "This court deferentially reviews factual findings of the ALJ but independently reviews any legal conclusions." Young v. Indus. Comm'n, 204 Ariz. 267, ¶ 14, 63 P.3d 298, 301 (App. 2003).
¶7 Blickenstaff dealt withanoutdated and illegible physician's report that neither related the prior industrial injury to the claimant's current condition nor described a condition that was new, additional, or previously undiscovered. 116 Ariz. at 339, 569 P.2d at 281. The court held that the purpose of a physician's report is to allow an ALJ to decide a petition to reopen based on a comparative analysis. Id. It further stated "the burden is upon the petitioner to offer appropriate comparative evidence so that relevant items can be juxtaposed to establish similarities or dissimilarities." Id. Petitioners argue that Dr. Baron's reports failed to "establish[] the requisite prima facie case" that § 23-1061(H) and Blickenstaff require and that, therefore, the ALJ should have granted their motion to dismiss the petition.
¶8 Although we agree with petitioners that Blickenstaff requires a petitioner to produce a physician's report that allows comparative analysis, we do not believe the physician must provide such an analysis before the hearing. Rather, a petition to reopen complies with the statute and Blickenstaff if the claimant offers sufficient evidence to allow "relevant items" to be "juxtaposed to establish similarities or dissimilarities." 116 Ariz. at 339, 569 P.2d at 281. As the ALJ implicitly found, Tomlinson made a sufficient prima facie showing by submitting Baron's letter and reports that documented a change in Tomlinson's condition, albeit not an objective change in his physical condition. Those reports noted the failure of nonoperative treatment, demonstrating a change in medical needs when compared with the treatment authorized when the claim was closed. Baron's letter also related the condition to the claim, as § 23-1061(H) requires. In sum, we find no error in the ALJ's denial of petitioners' motion to dismiss the petition.
¶9 Petitioners next challenge the granting of reopening itself, arguing the ALJ "misinterpret[ed] Stainless and its progeny" and failed to heed the 1999 amendment to § 23-1061(H). To have a claim reopened, a claimant must demonstrate "a new, additional or previously undiscovered temporary or permanent condition" causally related to the industrial injury. § 23-1061(H). In Stainless, our supreme court expanded the definition of "condition" as used in § 23-1061(H), stating it was not limited to physical condition and could be a change in "any attendant circumstance." 144 Ariz. at 18, 695 P.2d at 267. The court held that a claim may be reopened "when a change in physical circumstances or medical evaluation creates a need for treatment, and the legitimacy of that need was not and could not have been adjudicated at the time of the last award." Id. at 18-19, 695 P.2d at 267-68.
¶10 Based on a relatively recent change in § 23-1061(H), petitioners assert that reopening is unavailable if the claimant fails to prove any new, objective findings. In 1999, the legislature amended the statute by adding, inter alia, the language: "A claim shall not be reopened because of increased subjective pain if the pain is not accompanied by a change in objective physical findings." 1999 Ariz. Sess. Laws, ch. 331, § 9. Petitioners contend this amendment "effectively overruled" Stainless. The holding in that case, however, was not premised on a reopening sought for "a subjective perception of change in pain level, but rather[,] upon a change in medical procedures recommended to treat the same physical condition, where the possibility of such future need was explicitly foreseen at the time of closing." 144 Ariz. at 17, 695 P.2d at 266. Moreover, as Division One of this court later explained in a case very similar to this:
We do not regard the underscored language [in Stainless] as a condition for the application of the Stainless rule. It would be inequitable to extend Stainless to a claimant whose physician had commented in a closing report on the possibility of a future mode of treatment but to deny it to a claimant whose physician had entertained that possibility in silence. It would likewise be inequitable to limit reopening under Stainless to claimants who suffer the predictable complications of an injury but prohibit reopening to those suffering the unpredictable. Nor do we believe the supreme court intended such a limitation.
City of Scottsdale v. Indus. Comm'n, 158 Ariz. 574, 577, 764 P.2d 335, 338 (App. 1988).
¶11 When the legislature substantively amends a statute, we presume "it intended to create a change in the existing law." State v. Bridgeforth, 156 Ariz. 60, 63, 750 P.2d 3, 6 (1988); see also Finch v. State Dep't of Public Welfare, 80 Ariz. 226, 228, 295 P.2d 846, 848 (1956) (), quoting Beach v. Superior Court, 64 Ariz. 375, 379, 173 P.2d 79, 81 (1946); cf. State v. Lammie, 164 Ariz. 377, 379, 793 P.2d 134, 136 (App. 1990) (...
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