                               NOTICE: NOT FOR PUBLICATION.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.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                    WESLEY BOWEN, Petitioner Employee,

                                          v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

         HYATT REGENCY SCOTTSDALE, Respondent Employer,

     GALLAGHER BASSETT*/BROADSPIRE**, Respondent Carriers.

                               No. 1 CA-IC 13-0029
                                FILED 4-22-2014


                 Special Action - Industrial Commission
           ICA Claim Nos. 20092-080221* and 20073-510395**
        Carrier Claim Nos. 0112027199WC01* and 90007250405**
        The Honorable Allen B. Shayo, Administrative Law Judge


                              AWARD SET ASIDE


                                    COUNSEL

Snow, Carpio & Weekley, PLC, Phoenix
By Chad T. Snow
Co-Counsel for Petitioner Employee

Toby Zimbalist, Phoenix
Co-Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent ICA

Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson
By Eric W. Slavin
Counsel for Respondent Employer/Carrier Gallagher Bassett

Lester & Norton, P.C., Phoenix
By Christopher S. Norton
Counsel for Respondent Employer/Carrier Broadspire



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.


W I N T H R O P, Judge:

¶1            This is a special action review of an Industrial Commission
of Arizona (“ICA”) Award and Decision Upon Review for a scheduled
permanent impairment. The petitioner employee (“claimant”) presents
three issues on appeal:

      1) Whether the September 16, 2008 notice of claim status
      (“NCS”) issued by the 2007 respondent carrier
      (“Broadspire”) was ambiguous and not entitled to finality;

      2) Assuming arguendo the September 16, 2008 NCS closed
      the claimant’s 2007 industrial injury claim with a scheduled
      permanent impairment, whether the claimant’s 2009
      industrial injury claim should have been closed with an
      unscheduled permanent impairment; and

      3) Whether the administrative law judge (“ALJ”)
      erroneously denied the claimant’s petition to reopen his 2007
      injury claim.

We find Broadspire’s September 16, 2008 NCS ambiguous, and pursuant
to Bernard v. Industrial Commission, 24 Ariz. App. 136, 536 P.2d 705 (1975),
we resolve that ambiguity against Broadspire. For that reason, we also


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              BOWEN v. HYATT REGENCY/GALLAGHER
                        Decision of the Court

find the claimant’s 2009 industrial injury claim should have been closed
with an unscheduled permanent impairment and a loss of earning
capacity (“LEC”) award. Accordingly, we set aside the ALJ’s award.

          I. JURISDICTION AND STANDARD OF REVIEW

¶2            This court has jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(2), 23-951(A), and Rule 10 of the
Arizona Rules of Procedure for Special Actions. 1 In reviewing findings
and awards of the ICA, we defer to the ALJ’s factual findings, but review
de novo questions of law. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14,
63 P.3d 298, 301 (App. 2003). We consider the evidence in the light most
favorable to upholding the ALJ’s award. Lovitch v. Indus. Comm’n, 202
Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).

             II. PROCEDURAL AND FACTUAL HISTORY

¶3           The claimant worked as an assistant director of water
features for the respondent employer, Hyatt Regency Scottsdale. On
December 11, 2007, the claimant tripped on a water hose and fell, striking
his right knee. He immediately sought medical treatment and filed a
workers’ compensation claim. Broadspire accepted the claim for benefits.

¶4           Mitchell S. Wagner, M.D., treated the claimant and
surgically repaired a right bicondylar tibial plateau fracture with
placement of a steel plate and screws. On September 9, 2008, Dr. Wagner
reported:

       HISTORY: The patient is here for follow-up. He is status
       post ORIF right bicondylar tibial plateau fracture in
       December 2007. I saw him last in my office in follow-up on
       the 22nd of April. At that time [he] was having some
       irritation around the hardware that was placed but was
       mild. I elected to proceed with conservative treatment. The
       patient comes in today for routine follow-up. I have not
       seen him since April. He reports an occasional, mild pain
       over the lateral aspect of his right knee in the region where
       the hardware was placed. The pain only occurs when he
       puts his knee in a certain position that results in the


1      Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.



                                     3
             BOWEN v. HYATT REGENCY/GALLAGHER
                       Decision of the Court

      discomfort but then quickly resolves. It is not interfering
      with his activities of daily living or his ability to work, and
      he can walk long distances without a problem. The patient
      is having no locking, catching or other mechanical
      symptoms involving the right knee.            No giving way
      episodes.

             ....

      IMPRESSION: Mild irritation from underlying hardware,
      status post ORIF, right tibial plateau fracture.

      PLAN: At this point he is not finding the pain to be
      interfering with his daily activities or work. Will hold off on
      any surgical intervention at this point. I do think we can
      change him to a supportive care award status such that I can
      see him every six months, or sooner if a problem develops,
      to get x-rays and possible additional surgery or physical
      therapy depending on outcome in the future. Will request
      this for two years.

¶5           Based on Dr. Wagner’s September 9, 2008 report, Broadspire
issued two notices on September 16, 2008 - an NCS closing the claimant’s
claim and a Notice of Supportive Medical Maintenance Benefits. The NCS
provided in part as follows:

       7. Injury resulted in no permanent disability.

       8. Injury resulted in permanent disability. (Amount of
      permanent benefits, if any, and supportive medical
      maintenance benefits, if any, will be authorized by
      subsequent notice.)

The Notice of Supportive Medical Maintenance Benefits provided:

      SUPPORTIVE MEDICAL MAINTENANCE BENEFITS ARE
      AUTHORIZED BY THE ABOVE-NAMED INSURANCE
      CARRIER AS SET FORTH BELOW DURING THE PERIOD
      OF DISABILITY OR UNTIL FURTHER NOTICE.

      Supportive care is awarded for three doctor visit[s] a year
      with x-rays, up to 12 physical therapy appointments.




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              BOWEN v. HYATT REGENCY/GALLAGHER
                        Decision of the Court

       This award will expire on September 9, 2010. It will be
       reviewed annually and terminated for lack of use.

       IF CONDITION WORSENS REQUIRING ACTIVE
       MEDICAL CARE, A PETITION MUST BE FILED WITH
       THE INDUSTRIAL COMMISSION[.]   A.R.S. [§] 23-
       1061(H)[.]

¶6           The claimant returned to his regular work and continued to
see Dr. Wagner. On May 19, 2009, Dr. Wagner noted that the hardware
needed to be removed from the claimant’s right knee, and he scheduled
surgery for July 24, 2009. On July 6, 2009, Broadspire issued an NCS
reopening the claimant’s 2007 claim for additional benefits.          The
scheduled surgery was performed, and on August 11, 2009, Dr. Wagner
released the claimant to return to his regular work. Broadspire sent the
claimant two twenty-day letters 2 to ascertain whether he had continued to
see Dr. Wagner after August 11, 2009, and then reclosed his claim without
permanent impairment.

¶7             Meanwhile, on July 19, 2009, before the scheduled second
right knee surgery, the claimant fell at work and sustained a new injury,
this time a fracture to his left knee. He filed a new workers’ compensation
claim, and the respondent carrier, Gallagher Bassett Services, Inc.
(“Gallagher Bassett”), accepted the claim as a no time lost (“NTL”) claim 3
and closed it with no permanent impairment. At the same time, the
carrier issued a supportive care award relative to this injury. When the
left knee fracture did not heal, the claimant filed a petition to reopen the
2009 claim for surgery to place a steel plate and screws. 4



2      See generally Teller v. Indus. Comm’n, 179 Ariz. 367, 373-74, 879 P.2d
375, 381-82 (App. 1994) (examining the validity of a claim’s closure based
on a fundamentally defective twenty-day letter).

3      See generally A.R.S. § 23-1061(M) (providing that no compensation
is payable unless the claimant loses more than seven days from work);
Arizona Workers’ Compensation Handbook (“Handbook”) § 9.4.1.3, at 9-11 (Ray
J. Davis et al. eds., 1992 & Supp. 2013).

4     The claimant initially filed an A.R.S. § 23-1061(J) hearing request,
but the carrier refused to authorize the left knee surgery under the
December 9, 2009 supportive care award. Because surgery constituted



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              BOWEN v. HYATT REGENCY/GALLAGHER
                        Decision of the Court

¶8           Gallagher Bassett accepted the petition for benefits, and the
claimant underwent Dr. Wagner’s recommended surgery. The 2009 claim
was subsequently reclosed with a scheduled permanent impairment and
supportive care benefits. The claimant timely requested a hearing and
asserted the claim should have been closed with an unscheduled
permanent impairment.

¶9            The claimant also filed a petition to reopen the 2007 claim,
asserting the “[i]njury resulted in permanent impairment. Claim needs to
be reopened for rating and closed pursuant to A.R.S. [§] 23-1044(B)(15).”
Broadspire denied the petition, and the claimant timely requested a
hearing. The ALJ consolidated the 2007 and 2009 claims for ICA hearings.

¶10          The ALJ held three hearings and heard testimony from the
claimant, Dr. Wagner, and an independent medical examiner, Anthony
Theiler, M.D. The ALJ then entered a consolidated award, in which he
resolved the medical conflicts in favor of Dr. Theiler, and based on that
determination, found the claimant had failed to establish that his 2007
claim should be reopened 5 or his 2009 claim should have been closed with
an unscheduled permanent impairment. The claimant timely requested
administrative review, but the ALJ summarily affirmed the Award. The
claimant next brought this timely petition.

                             III. ANALYSIS

¶11           The claimant first argues that Broadspire’s September 16,
2008 NCS was ambiguous and not entitled to finality under Bernard. In
Bernard, the claimant sustained an industrial injury and filed a workers’
compensation claim. 24 Ariz. App. at 136, 536 P.2d at 705. The carrier
issued a single NCS, which accepted the claim for benefits, terminated
medical benefits, and discharged the claimant with no permanent


active medical care, a petition to reopen was required. See A.R.S. § 23-
1061(H). Active care is medical treatment intended to improve rather than
maintain a condition. See generally Home Ins. Co. v. Indus. Comm’n, 23 Ariz.
App. 90, 95-96, 530 P.2d 1123, 1128-29 (1975).

5      In order to reopen a workers’ compensation claim, a claimant must
establish the existence of a new, additional, or previously undiscovered
condition and a causal relationship between that condition and the prior
industrial injury. See A.R.S. § 23-1061(H); Pascucci v. Indus. Comm’n, 126
Ariz. 442, 444, 616 P.2d 902, 904 (App. 1980).



                                     6
               BOWEN v. HYATT REGENCY/GALLAGHER
                         Decision of the Court

impairment. Id. After receiving this notice, the claimant continued to
receive medical and surgical treatment from the doctor provided by the
insurance carrier to treat her industrial injury. Id. at 136-37, 536 P.2d at
705-06. After she returned to work, she began to receive medical bills for
her treatment. Id. at 137, 536 P.2d at 706. She then filed a petition to
reopen, which was denied. Id.

¶12           The claimant requested an ICA hearing on the validity of the
NCS, which had both accepted and terminated her claim, and on the
denial of her petition to reopen. Id. The ALJ found the NCS had become
final, and the hearing request was untimely. Id. The claimant appealed,
and on appeal, this court found the NCS ambiguous and set aside the
ALJ’s award:

       [W]hen any reasonable doubt exists as to the meaning to be
       attached to a given form attempting to alter, terminate, or
       otherwise affect the rights of a claimant for workmen’s
       compensation in this state, the benefit of that doubt will be
       given the claimant and the ambiguities resolved against the
       carriers, employers, State Compensation Fund and The
       Industrial Commission of Arizona.

Id. at 139, 536 P.2d at 708.

¶13            Relying on Bernard, the claimant argues that Broadspire’s
September 16, 2008 NCS is ambiguous and he is entitled to have the
ambiguity resolved in his favor. We agree. Because Broadspire’s NCS
closed the claimant’s 2007 claim both with permanent impairment and
without permanent impairment, we construe the ambiguity against
Broadspire. Accordingly, the NCS closed the 2007 claim with a permanent
impairment, and the notice became final. See A.R.S. § 23-947(A); Church of
Jesus Christ of Latter Day Saints v. Indus. Comm’n, 150 Ariz. 495, 498, 724
P.2d 581, 584 (App. 1986) (recognizing that a hearing must be requested
within ninety days after the NCS is issued or the NCS becomes final and
res judicata). For that reason, Dr. Theiler’s testimony that the 2007 injury
did not result in a permanent impairment is foreclosed by the prior final
finding that the injury did result in a permanent impairment. For that
reason, the ALJ’s award must be set aside.




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              BOWEN v. HYATT REGENCY/GALLAGHER
                        Decision of the Court

¶14          The claimant next argues that, assuming the September 16,
2008 NCS closed the 2007 injury with a scheduled 6 permanent
impairment, the 2009 injury should have been closed with an unscheduled
permanent impairment. When a compensable industrial injury results in
a permanent impairment, an award of permanent disability benefits is
made depending on the character of the impairment as either “scheduled”
or “unscheduled.” Scheduled injuries are listed in A.R.S. § 23-1044(B),
and are conclusively presumed to adversely affect a claimant’s earning
capacity. Handbook § 7.2.4.1, at 7-4. Unscheduled impairments are
compensated only upon a showing of LEC, made through an LEC
determination. See Handbook § 7.4, at 7-16 to -18.

¶15           Arizona courts have long recognized that when a claimant
has multiple impairments, those impairments may result in a greater total
disability than the sum of the individual disabilities. See, e.g., Ossic v.
Verde Cent. Mines, 46 Ariz. 176, 188, 49 P.2d 396, 401 (1935); 5 Arthur
Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 90.00, at 90-1
(2013). In that regard, scheduled impairments to two separate body parts
are converted into an unscheduled impairment for purposes of
determining permanent disability benefits. See Ronquillo v. Indus. Comm’n,
107 Ariz. 542, 543, 490 P.2d 423, 424 (1971); A.R.S. § 23-1044(B)-(C). In this
case, the claimant’s 2007 scheduled impairment to his right knee in
combination with the 2009 scheduled impairment to his left knee entitled
him to receive an unscheduled permanent impairment, and should have
triggered an LEC determination and award.

¶16           The claimant last argues that the ALJ erroneously denied his
petition to reopen the 2007 claim so he could unschedule his 2009 claim.
Based upon our resolution of the prior issues, it is not necessary to reach
this issue; however, we note that we have previously held a claimant
cannot reopen a claim solely to unschedule. See, e.g., Gladys v. Indus.
Comm’n, 192 Ariz. 524, 527-28, 968 P.2d 597, 600-01 (App. 1998).




6      An impairment to a leg falls within the statutory schedule of
injuries. See A.R.S. § 23-1044(B)(15), (21).



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             BOWEN v. HYATT REGENCY/GALLAGHER
                       Decision of the Court

                          IV. CONCLUSION

¶17         For all of the foregoing reasons, the award is set aside, and
the matter is remanded to the ICA for an administrative LEC
determination and further proceedings as appropriate.




                              :MJT




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