                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                      KEVIN MILLER, Petitioner,

                                  v.

     THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

         SUN DEVIL FIRE EQUIPMENT, Respondent Employer,

             AMERISURE INSURANCE, Respondent Carrier.

                         No. 1 CA-IC 15-0075
                           FILED 7-14-2016


                Special Action - Industrial Commission
                     ICA Claim No. 20121-450351
                      Carrier Claim No. 1272801

              Aryka S. Radke, Administrative Law Judge

                         AWARD SET ASIDE


                              COUNSEL

Snow, Carpio & Weekley, P.L.C., Phoenix
By Dennis R. Kurth
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent ICA

Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix
By Stephen C. Baker
Counsel for Respondents Employer and Carrier
                       MILLER v. ICA/SUN DEVIL
                          Opinion of the Court



                                OPINION

Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court,
in which Judge Patricia K. Norris and Judge Kenton D. Jones joined.


W I N T H R O P, Presiding Judge:

¶1             This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review finding the back injury
of the petitioner employee, Kevin Miller (“claimant”), medically stationary.
The dispositive issue presented is whether the award of the administrative
law judge (“ALJ”) adopting the opinion of Edward J. Dohring, M.D., and
terminating the claimant’s active medical treatment violated principles of
issue or claim preclusion. Because preclusion applies, the ALJ erred by
adopting Dr. Dohring’s opinion; accordingly, we set aside the award.

             I. PROCEDURAL AND FACTUAL HISTORY1

¶2           The claimant installed fire alarms and security systems for the
respondent employer, Sun Devil Fire Equipment, Inc. (“Sun Devil”). In
May 2012, the claimant sustained a back injury when the company vehicle
he was driving was rear-ended. He filed a workers’ compensation claim,
which was accepted for benefits by the respondent carrier, Amerisure
Insurance Company (“Amerisure”). The claimant received conservative
medical treatment until his claim was closed following an independent
medical examination (“IME”) by John Beghin, M.D., a board-certified
orthopedic spinal surgeon.

¶3             The claimant timely protested, and ALJ Robert F. Retzer
heard testimony from the claimant; his treating orthopedic spinal surgeon,
Michael Howard Winer, M.D.; and Dr. Beghin, the carrier’s medical expert.
In a December 2013 award, the ALJ adopted Dr. Winer’s causation and
treatment opinions and continued the claimant’s medical benefits. That
award became final, and the claimant continued to receive treatment from
Dr. Winer. Amerisure later sent the claimant to Dr. Dohring, another spinal
specialist, for a new IME, conducted on July 30, 2014. Based on Dr.

1      We consider the evidence in a 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).


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                       MILLER v. ICA/SUN DEVIL
                          Opinion of the Court

Dohring’s report, Amerisure again closed the claimant’s claim for active
medical treatment.

¶4            Again, the claimant timely protested. In 2015, a different ALJ,
Aryka S. Radke, heard testimony from the claimant, Dr. Winer, and Dr.
Dohring. In an August 2015 award, the ALJ adopted Dr. Dohring’s opinion
and not Dr. Winer’s—whose opinion on the same issues had been earlier
accepted by ALJ Retzer—and closed the claim for active medical treatment,
allowing for only supportive care. The claimant timely requested
administrative review, arguing in part the ALJ was precluded as a matter
of law from relying on Dr. Dohring’s opinion. The employer and carrier
responded to the merits of that argument, and urged that the award be
affirmed. After reviewing the memoranda of counsel and the file, the ALJ
affirmed the award.

¶5            The claimant then timely brought this petition. We have
jurisdiction pursuant to Arizona Revised Statutes sections 12-120.21(A)(2)
(2016) and 23-951(A) (2012), and Rule 10 of the Arizona Rules of Procedure
for Special Actions.

                               II. ANALYSIS

¶6           The claimant argues that principles of preclusion should have
prevented the ALJ from adopting Dr. Dohring’s opinion and terminating
his active medical benefits.2



2       Generally, preclusion is an affirmative defense which, if not timely
raised before the ALJ and referenced in the subsequent award, is considered
waived. See generally Superlite Bldrs. v. Indus. Comm’n, 126 Ariz. 51, 53, 612
P.2d 507, 509 (App. 1980); Cotton v. Indus. Comm’n, 26 Ariz. App. 58, 61, 546
P.2d 35, 38 (1976). Timely notice of the defense also allows the ALJ the
opportunity to consider the issue, and also allows the parties a full
opportunity to develop the record at the hearing as it relates to that issue.
See, e.g., Priedigkeit v. Indus. Comm’n, 20 Ariz. App. 594, 598, 514 P.2d 1045,
1049 (1973) (recognizing that parties need to raise issues as early as possible
in the hearing process to allow for thorough consideration and a complete
record). Here, it appears the claimant did not raise the issue or otherwise
object to Dr. Dohring’s opinion until he requested administrative review by
the ALJ. Neither the response to the claimant’s request for review nor the
answering brief argued that the claimant has waived the preclusion issue;
accordingly, we consider the issue on the merits.


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                         MILLER v. ICA/SUN DEVIL
                            Opinion of the Court

¶7            Because workers’ compensation claims are administered
sequentially, phases of the process (e.g., compensability, average monthly
wage, transfer from total temporary to partial disability status, medically
stationary status, impairment rating, loss of earning capacity, award of
permanent benefits, etc.) are resolved by a carrier’s separate Notices of
Claim Status, and if protested, by separate determinations by an ALJ. When
any of these determinations, either by Notice of Claim Status or by ALJ
decision, become final, they are entitled to preclusive effect. See, e.g.,
Hardware Mut. Cas. Co. v. Indus. Comm'n, 17 Ariz. App. 7, 9-10, 494 P.2d
1353, 1355-56 (1972) (recognizing that workers’ compensation claims are
administered through a progression of separate claim stages).

¶8             An ICA award has preclusive effect through application of
principles of issue preclusion and claim preclusion. See Circle K Corp. v.
Indus. Comm’n, 179 Ariz. 422, 428, 880 P.2d 642, 648 (App. 1993). Issue
preclusion bars relitigation of an issue that was previously litigated,
determined, and essential to a final judgment. Special Fund Div., Indus.
Comm’n v. Tabor, 201 Ariz. 89, 92, ¶ 20, 32 P.3d 14, 17 (App. 2001) (citing
Circle K Corp., 179 Ariz. at 425, 880 P.2d at 645); Red Bluff Mines, Inc. v. Indus.
Comm’n, 144 Ariz. 199, 204-05, 696 P.2d 1348, 1353-54 (App. 1984). “[I]ssue
preclusion may apply when successive claim stages have issues of fact or of
law in common.” Thomas M. Gordon and Melinda K. Poppe, Reopening,
Rearrangement, and Settlement, Arizona Workers’ Compensation Handbook
§ 11.4.2 (Ray J. Davis et al. eds., 1992). Claim preclusion bars relitigation of
the same claim, i.e., preclusion of matters actually decided or that could
have been decided after a timely protest. W. Cable v. Indus. Comm’n, 144
Ariz. 514, 518, 698 P.2d 759, 763 (App. 1985).

¶9            The applicability of preclusion to a workers’ compensation
matter is a mixed question of fact and law; accordingly, we apply a
deferential standard of review to the determination of disputed facts
supported by reasonable evidence, and apply an independent standard of
review to the ultimate determination of whether these facts trigger
preclusion. A.J. Bayless v. Indus. Comm’n, 179 Ariz. 434, 439, 880 P.2d 654,
659 (App. 1994); see also Aguayo v. Indus. Comm’n, 235 Ariz. 413, 417, ¶ 17,
333 P.3d 31, 35 (App. 2014) (“Unless the applicability of issue preclusion
involves disputed questions of fact, its applicability is a question of law for
this court to determine independently.” (quoting Tabor, 201 Ariz. at 92,
¶ 20, 32 P.3d at 17)).

¶10           To determine whether preclusion applies, we examine the
issues raised and the evidence presented at the 2013 and 2015 hearings.



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                       MILLER v. ICA/SUN DEVIL
                          Opinion of the Court

¶11           Pertinent pre-injury medical history for the claimant indicates
he was in a 1999 motor vehicle accident that caused a burst fracture of his
L4 disc and required a fusion with placement of rods and screws at the L2-
L5 levels. After two years, however, the claimant had made a full recovery
and had no work restrictions.

¶12            At the time of his industrial injury in 2012, the claimant had
worked at Sun Devil for several years as the lead technician on an
installation crew, performing physically strenuous work. He was driving
a company truck in heavy traffic when his vehicle was rear-ended. Initially,
the claimant had neck and low back pain, but after several days, the pain
began to radiate down his right leg. He received conservative treatment at
Concentra, but when his symptoms continued, he was referred to
specialists for additional diagnostic testing and treatment.

                    The 2013 Hearings and ICA Award

¶13           In June 2013, the claimant came under the care of Dr. Winer,
a board-certified orthopedic spinal surgeon, who diagnosed the following:

       1. Pre-existing L2-L5 lumbar fusion.
       2. Previous L4 burst fracture status post laminectomy fusion
          with residual epidural changes and arachnoiditis[3]
          evident behind L4.
       3. L5-S1 facet arthrosis.[4]



3       “Arachnoiditis” is inflammation and formation of scar tissue, in this
case, in the cauda equina, which houses a collection of spinal nerves and
nerve roots from the lumbar spine. See Dorland’s Illustrated Medical
Dictionary (“Dorland’s”) 126 (25th ed. 1974). Irritation and/or compression
in the cauda equina can produce pain and disrupt sensation and movement.
The parties agree the claimant has arachnoiditis as a result of his 1999
accident, and that the 2012 industrial injury has aggravated that condition
and made it symptomatic.

4      “Facet arthropathy” refers to arthritic changes in the posterior bones
of the spine, here at the L5-S1 level. See generally Dorland’s at 148, 563-64.
These arthritic changes, also referred to as foraminal narrowing, can be the
result of the aging process or trauma or a previous back injury, or a
combination of such factors.



                                      5
                        MILLER v. ICA/SUN DEVIL
                           Opinion of the Court

      4. Cervical sprain/strain as a result of motor vehicle accident
         with mild residual posterior cervical myofascial pain.
      5. Aggravation of pre-existing            but   asymptomatic
         arachnoiditis with L5 radiculopathy on the right.
                                               [5]

      6. Aggravation of pre-existing facet arthrosis with persistent
         lumbar pain as a result of the motor vehicle accident.
      7. Right [sacroiliac (“SI”)] joint dysfunction onset as a result of
         motor vehicle accident.

¶14           Dr. Winer reported that, notwithstanding the carrier’s
administrative closure of the case, the claimant had, in addition to the
industrially related aggravation of pre-existing conditions, a right SI joint
condition causally related to the industrial injury, all of which required
further evaluation and active medical treatment:

      Assuming his claim is . . . reopened to active care, the first step
      would be a new MRI and a reevaluation at that time. An
      additional trial with active physical therapy might be next.
      Assuming after he recovers from his current treatments, the
      positive findings in the right SI joint remain, I would
      recommend repeat right SI joint without sedation with
      evaluation pre- and post[-]injection in order to gauge the
      percentage of improvement immediately following the
      injection. If this again significantly improves his pain short-
      term, I would repeat the procedure one more time with a
      combination of lidocaine plus Marcaine in order to reassess
      his improvement following the injection.

      I do feel he has symptomatic facet arthropathy at L5-S1, i.e., the only
      level below his fusion. I also feel he has aggravated pre-existing
      arachnoiditis with resultant L5 radiculopathy on the right. This
      might also be related to his L5 foraminal narrowing.

(Emphasis added.) Dr. Winer testified that if the conservative treatment
was unsuccessful, the claimant might need an SI joint fusion and/or an
extension of his existing fusion to the L5-S1 level.

¶15           Dr. John Beghin, also a board-certified orthopedic spinal
surgeon, testified regarding his examination of the claimant. Dr. Beghin
diagnosed a soft tissue injury—specifically, a back strain/sprain from the

5      “Radiculopathy” is disease of the nerve roots, often resulting in
radiation of pain or other abnormal sensation. See Dorland’s at 1303.


                                        6
                       MILLER v. ICA/SUN DEVIL
                          Opinion of the Court

industrial injury that caused an acute stretching of the pre-existing
arachnoiditis at L4, which resulted in inflammation and triggered an L5
radiculopathy on the right side. Dr. Beghin testified he did not endorse any
treatment of the SI joints, stating that, in his opinion, such treatment had
not been scientifically validated. Dr. Beghin concluded that the claimant’s
condition was stationary and required no additional active medical
treatment.

¶16           ALJ Retzer was thus asked to decide whether the 2012
industrial accident was merely a soft tissue injury, expected to resolve with
only some supportive care, or whether it caused any direct injury to the
claimant’s SI joints and/or disrupted the pre-existing, abnormal but
asymptomatic spinal and neuro-spinal conditions caused by the 1999
accident, and required continuing active medical investigation and
treatment. The ALJ explicitly adopted Dr. Winer’s opinion, which he
summarized in part as follows:

      [Dr. Winer’s] diagnosis of this industrial injury is aggravation
      of the [claimant’s] pre-existing facet arthrosis and his S/I joint
      arthrosis and his L2-L5 fusion with radiculopathy. . . . He was
      of the opinion the [claimant] was not stationary and needed
      further treatment in the form of a repeat MRI, a course of
      physical therapy, possible repeat S/I joint injections, possible
      S/I joint fusion and possible extension of the [claimant’s]
      fusion to include L5-S1.

In adopting Dr. Winer’s opinion, the ALJ entered an award in favor of the
claimant, authorizing the further medical investigation and management
recommended by Dr. Winer.6 Neither Sun Devil nor Amerisure challenged
the award, and it became final. The claimant’s sacroiliac condition did
somewhat improve under Dr. Winer’s further care, but his symptoms and
abnormal physical findings at L5- S1 persisted, and Dr. Winer proposed a
trial of epidural injections at the L5-S1 level. In response, the carrier
arranged an orthopedic spinal evaluation by Dr. Dohring and, on the basis
of his report, closed the claimant’s case for active medical treatment. The
claimant again protested the closure of the medical aspect of the case, and
the case was assigned to ALJ Radke, who convened hearings to obtain the
testimony of the claimant, Dr. Winer, and Dr. Dohring.


6      The award included medical, surgical, and hospital benefits “until
such time as [the claimant’s] condition becomes medically stationary.”



                                      7
                        MILLER v. ICA/SUN DEVIL
                           Opinion of the Court

                       The 2015 Hearings and Award

¶17            In the subsequent hearings held in March and June 2015, Dr.
Winer testified he had last seen the claimant on March 4, 2015. At that time,
the claimant still had low back pain radiating down the outside of his right
leg. The doctor described the presence of abnormal facet joint pathology
on both sides of the claimant’s spine, and diagnosed “symptomatic right L-
5 radiculopathy with some numbness and weakness in the appropriate L-5
innervated muscles.” Dr. Winer testified the claimant’s SI joint pain had
improved,7 and opined that the industrial injury had aggravated the
claimant’s bilateral L5-S1 foraminal stenosis, causing the persistent
symptoms of right L5 radiculopathy. Dr. Winer’s opinion was supported
by a March 11, 2014 MRI that showed “marked stenosis . . . on the right L5-
S1 foramen,” and a CT scan demonstrating “severe bilateral facet arthrosis
. . . and degenerative dis[c]” at L5-S1. Dr. Winer testified that the claimant’s
pre-existing, asymptomatic arachnoiditis was not the cause of his ongoing
symptoms. Finally, Dr. Winer opined that the claimant was not medically
stationary and required ongoing active medical treatment.

¶18            In contrast, Dr. Dohring offered a medical opinion as to
causation that was essentially identical to that previously offered by Dr.
Beghin, and which had been explicitly rejected by ALJ Retzer. Dr. Dohring
testified the industrial injury exacerbated the claimant’s pre-existing
arachnoiditis within the cauda equina behind his 1999 L4 burst fracture, and
his back and buttock pain were likely the result of a lumbar musculo-
ligamentous, or soft tissue, strain. According to the doctor’s review of the
imaging studies, the claimant had no instability or degeneration at L5-S1
that would require a fusion, and the foraminal stenosis at L5-S1 was only
on the left side, and did not explain the claimant’s subjective right-sided
symptoms. Dr. Dohring testified the claimant’s diagnostic tests did not
indicate he would benefit from an SI joint fusion; that there was no effective
surgical treatment for arachnoiditis; that the claimant’s medical condition
was stationary; and that it was appropriate to close the case for active
medical treatment, assign a percentage of permanent impairment, and
move to the loss of earning capacity phase of the case. Contrary to the
earlier decision of ALJ Retzer, who accepted the opinion of Dr. Winer and
rejected that of Dr. Beghin, ALJ Radke resolved the same medical conflict,
this time in favor of Dr. Dohring’s opinion and contrary to that of Dr. Winer.


7      In January 2015, Dr. Winer reported he had previously performed
“an SI joint injection on the right, and this did provide significant short-
term improvement.”


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                       MILLER v. ICA/SUN DEVIL
                          Opinion of the Court


                  Application of Facts to Preclusion Law

¶19            On appeal, the claimant argues ALJ Radke’s award was
erroneous as a matter of law because when ALJ Retzer adopted Dr. Winer’s
opinion in the December 2013 award—which became final without
protest—the Industrial Commission necessarily determined the claimant’s
industrial injury had caused an “aggravation of the [claimant’s] pre-
existing facet arthrosis and his S/I joint arthrosis and his L2-L5 fusion with
radiculopathy.” In resolving the medical conflict in favor of Dr. Winer, ALJ
Retzer rejected Dr. Beghin’s competing opinion that the industrial injury
caused only a strain/sprain, soft tissue injury to the claimant’s low back,
allowing his pre-existing asymptomatic arachnoiditis at L4 to become
temporarily symptomatic. Because Dr. Dohring in 2015 was offering
essentially the same causation opinion as Dr. Beghin in 2013, it should have
been rejected on preclusion grounds.

¶20           The claimant relies on Perry v. Industrial Commission, 154 Ariz.
226, 741 P.2d 693 (App. 1987), to support his position. In Perry, a Phoenix
Suns basketball player sustained a compensable industrial back injury. Id.
at 227, 741 P.2d at 694. His claim was closed based on an IME that
concluded he had sustained only a lumbar strain. Id. Perry protested, and
at the ICA hearing, his doctor opined that Perry sustained an acute stress
fracture of the pars interarticularis that had caused symptomatic
spondylolisthesis.8 Perry, 154 Ariz. at 227, 741 P.2d at 694. In contrast, the
IME doctor testified that Perry only sustained a soft tissue sprain injury,
and the ALJ adopted his opinion. Id. at 227-28, 741 P.2d at 694-95.

¶21           Six years after the award became final, Perry filed a petition
to reopen, alleging his spondylolisthesis had caused degeneration of the
disc space and required active treatment. Id. at 228, 741 P.2d at 695. The
petition was denied for benefits, and following ICA hearings, the ALJ
concluded that the nature of the claimant’s industrial injury was
determined to be soft tissue at the initial hearings and did not include
spondylolisthesis. Id. On appeal, this court affirmed the ALJ’s application
of claim preclusion, recognizing that “the new evidence of additional
degeneration is inconclusive; it merely generates the same conflict
concerning etiology.” Id. at 231, 741 P.2d at 698.


8      “Spondylolisthesis” is sometimes inaccurately referred to as a
“slipped disc,” but is actually the forward displacement of a vertebra,
which is a bony abnormality, not a soft tissue injury. See Dorland’s at 1458.


                                      9
                        MILLER v. ICA/SUN DEVIL
                           Opinion of the Court


¶22            Respondents do not address the applicability of Perry;
instead, they rely on Aguayo v. Industrial Commission. In Aguayo, the
claimant sustained an industrial back injury in 1990 and underwent two
surgeries for an L4-L5 disc herniation. 235 Ariz. at 414, ¶ 3, 333 P.3d at 32.
He eventually became stationary with a permanent impairment and work
restrictions, but returned to regular work. Id. The claimant performed his
regular work until he sustained a new industrial back injury in May 2010.
Id. at ¶ 4. His claim was accepted for benefits and then closed following an
IME. Id. The claimant protested, and following ICA hearings in 2011, an
ALJ found the 2010 injury was not stationary and awarded continuing
medical benefits. Id. at 414-15, ¶¶ 4-5, 333 P.3d at 32-33.

¶23           The claimant in Aguayo continued to receive conservative
treatment until December 2011, when he declined additional treatment. Id.
at 415, ¶ 6, 333 P.3d at 33. After a repeat IME, his claim was closed as
medically stationary with no additional impairment. Id. at ¶¶ 7-8. The
claimant protested, but after hearings in 2012 that resulted in a 2013 award,
the ALJ adopted the IME doctor’s opinion that the claimant sustained a
temporary exacerbation of his pre-existing back condition that resolved
without additional impairment. Id. at ¶¶ 8-9. On appeal, the claimant
argued that the 2011 award precluded the ALJ from adopting the IME
doctor’s opinion in the 2013 award. Id. at 418, ¶ 19, 333 P.3d at 36. We
disagreed and found that the issue resolved in the 2011 award was whether
the claimant’s 2010 back injury was medically stationary. Id. at 417-18,
¶¶ 18-20, 333 P.3d at 35-36. Because the 2010 aggravation of the claimant’s
pre-existing back condition was not stationary, no decision as to any
permanent impairment was made at that time. Id.

¶24            In this case, we find the facts and legal principles in Perry
more applicable. In the first round of closure hearings in Perry, the ALJ had
to decide what type of injuries the claimant had sustained as a result of the
industrial injury. 154 Ariz. at 227-28, 741 P.2d at 694-95. The ALJ resolved
the medical conflict in favor of the IME doctor’s opinion that the industrial
episode caused only a soft tissue injury. Id. When the claimant later
attempted to reopen his claim for treatment of spondylolisthesis—
previously found to be non-compensable in the prior hearings—he was
found to be precluded from doing so by the prior award. Id. at 228, 741 P.2d
at 695. In Aguayo, there was no dispute in the first round of closure hearings
as to the type of injury the claimant sustained in the industrial incident, i.e.,
an aggravation of a pre-existing L4-L5 back injury. 235 Ariz. at 414, ¶¶ 3-4,




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                       MILLER v. ICA/SUN DEVIL
                          Opinion of the Court

333 P.3d at 32. The only issue was whether that aggravation was stationary
or required additional medical treatment. Id. at 415, ¶ 10, 333 P.3d at 33.

¶25           In the instant case, the ALJ found in the 2013 award that the
claimant sustained several different injuries caused by the industrial
accident, including injury to the SI joint and aggravation of the pre-existing
facet arthrosis and L2-L5 fusion with resulting radiculopathy, none of
which were medically stationary at that time. In reaching this conclusion,
ALJ Retzer rejected the competing opinion of Dr. Beghin that the claimant
sustained only a soft tissue injury that had only temporarily exacerbated his
pre-existing 1999 back injury—the very issue later reasserted by Dr.
Dohring to ALJ Radke, who accepted that opinion in 2015.

¶26            By the time of the 2015 hearings, however, the claimant’s
underlying pathology resulting in symptoms and physical findings had not
changed. The causal connection between those conditions, symptoms, and
findings and the industrial event had already been specifically and finally
determined. As such, the only issue to be resolved in 2015 was whether
those conditions—already determined to be caused or exacerbated by the
industrial injury—were now medically stationary. Although purporting to
address that issue, Dr. Dohring instead opined—and ALJ Radke found—
that the underlying pathology and medical conditions were not causally
related to the industrial injury.

¶27          In our view of the record, Dr. Dohring’s causation opinion
was foreclosed by the final ICA award issued in 2013. ALJ Radke erred in
not giving ALJ Retzer’s findings the preclusive effect required.9




9      By this decision, we do not intend to comment on or resolve the
question of whether any surgery, if ultimately recommended by Dr. Winer
or any other surgeon, is medically indicated.


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               MILLER v. ICA/SUN DEVIL
                  Opinion of the Court

                   III. CONCLUSION

¶28   For the foregoing reasons, we set aside the 2015 award.




                          :AA




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