                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


              MARIA DE LOS ANGELES GARCIA, Petitioner,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

              DMS FACILITY SERVICES, Respondent Employer,

    HARTFORD ACCIDENT & INDEMNITY CO, Respondent Carrier.

                              No. 1 CA-IC 16-0036
                                FILED 4-18-2017


                  Special Action - Industrial Commission
                       ICA Claim No. 20120-330123
                     Carrier Claim No. 12D48C129577
                 Aryka S. Radke, Administrative Law Judge

                             AWARD AFFIRMED


                                    COUNSEL

Snow, Carpio & Weekley, PLC, Phoenix
By Erica González-Meléndez
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent Industrial Commission of Arizona
Lester, Norton & Brozina, P.C., Phoenix
By Steven C. Lester, Christopher S. Norton, Rachel P. Brozina
Counsel for Respondent Employer and Respondent Carrier



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson 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 no loss of earning
capacity (“LEC”). On appeal, the petitioner employee (“claimant”) argues
that issue preclusion barred the administrative law judge (“ALJ”) from
adopting independent medical examiner Dr. Gary Dilla’s recommended
work restrictions because Dr. Dilla based his restrictions on the same
diagnosis offered by Dr. John Beghin, which was rejected by a different ALJ
in the 2013 continuing benefits litigation. Because we conclude issue
preclusion did not apply, we affirm the award.

            JURISDICTION AND STANDARD OF REVIEW

¶2             This court has jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(2) (2016), 23-951(A) (2012), and
Rule 10 of the Arizona Rules of Procedure for Special Actions. In reviewing
findings and awards of the ICA, we defer to the ALJ’s factual findings, but
review questions of law de novo. Young v. Indus. Comm’n, 204 Ariz. 267, 270,
¶ 14, 63 P.3d 298, 301 (App. 2003). 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).

                FACTS AND PROCEDURAL HISTORY

¶3            At the time of her industrial injury, the claimant worked as a
custodian for the respondent employer, DMS Facility Services. In January
2012, she was standing on a step stool, cleaning the top of lockers, when she
fell and landed on her buttocks. She filed a workers’ compensation claim,
which the respondent carrier accepted for benefits. The claimant received
conservative medical treatment for injuries to her sacrum and coccyx.



                                     2
                      GARCIA v. DMS/HARTFORD
                         Decision of the Court

Following an independent medical examination (“IME”) by Dr. Beghin, the
claimant’s condition was found to be medically stationary and the
respondent carrier closed her claim with a permanent impairment.

¶4            The claimant timely protested the closure and asserted that
she needed continuing active medical care for her injuries. Administrative
Law Judge Long held hearings and heard testimony from the claimant, her
treating physician, Dr. Sanjay Patel, and independent medical examiner Dr.
Beghin. Judge Long resolved the medical conflict in favor of Dr. Patel, and
entered an award granting the claimant continuing active medical care.
Eight months later, following a new IME by Dr. Matthew Holland, the
respondent carrier closed the claim with an unscheduled permanent partial
impairment. The ICA then entered its administrative findings and award,
determining the claimant had no LEC.1

¶5            The claimant timely protested the ICA’s LEC determination
and requested a hearing, asserting that she had sustained an LEC.
Administrative Law Judge Radke held four hearings and heard testimony
from the claimant, Dr. Patel, Dr. Dilla, and two labor market experts. Judge
Radke adopted Dr. Dilla’s opinion as to the claimant’s work restrictions,
and based on those restrictions, accepted Rebecca Lollich’s labor market
opinion.

¶6            Relying on Dr. Dilla and Ms. Lollich, Judge Radke entered an
award finding that the claimant had sustained no LEC. The claimant timely
requested administrative review, and Judge Radke supplemented and
affirmed the award.2 This appeal followed.




1       The ICA makes the initial determination of whether an unscheduled
permanent impairment has resulted in an LEC. See A.R.S. § 23-1047 (2016).
If a claimant protests the ICA’s award, that administrative determination is
rendered null and has no value in the subsequent LEC proceedings. LeDuc
v. Indus. Comm’n, 116 Ariz. 95, 98, 567 P.2d 1224, 1227 (App. 1977).

2      The ALJ incorporated by reference the respondent carrier’s response
to the request for review. See generally Hester v. Indus. Comm’n, 178 Ariz.
587, 589-90, 875 P.2d 820, 822-23 (App. 1993) (stating the ALJ may
incorporate a post-hearing memorandum in an award).



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                      GARCIA v. DMS/HARTFORD
                         Decision of the Court

                                ANALYSIS

¶7            As a preliminary matter, the respondents assert that the
claimant’s request for review was untimely, and the award became final. A
request for review must be filed within thirty days of the mailing date of
the decision upon hearing and findings and award. See A.R.S. ' 23-942(D)
(2012).

¶8            In this case, the claimant had to file the request for review by
5:00 p.m. on April 13, 2016. See Arizona Administrative Code (“A.A.C.”)
R20-5-102, -103. The ICA’s date and time stamp reveal that the claimant
timely filed the request for review on April 13, 2016 at 4:43 p.m., but the
claimant untimely filed the memorandum in support of the request at 11:52
p.m. that same day. A memorandum of points and authorities is not
required to obtain administrative review of an award. See A.R.S. § 23-
943(A) (2012). For that reason, we conclude the claimant timely filed the
request for review.3

¶9           On appeal, the claimant argues that Judge Radke should have
rejected Dr. Dilla’s opinion regarding her work restrictions because the
doctor’s opinion was based on the same diagnosis provided by Dr. Beghin
and rejected by Judge Long in the 2013 litigation. For that reason, the
claimant asserts that issue preclusion4 prevented Dr. Dilla from basing his
opinions on a diagnosis that was inconsistent with Judge Long’s 2013
findings.

¶10           Workers’ compensation claims are administered sequentially
through a progression of separate claim stages. See, e.g., Hardware Mut. Cas.
Co. v. Indus. Comm’n, 17 Ariz. App. 7, 9-10, 494 P.2d 1353, 1355-56 (App.
1972). At each stage, a notice of claim status (“NCS”) is issued and becomes


3     Recognizing the untimeliness of the memorandum of points and
authorities, the ALJ did not consider it on administrative review.

4       An ICA award has res judicata effect by 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 occurs
when the issue to be litigated was actually litigated in a prior proceeding
and a final judgment was entered, the party against whom the doctrine is
to be invoked had a full opportunity to litigate the issue, and the issue was
essential to the final judgment. Id. at 425, 880 P.2d at 645.



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                      GARCIA v. DMS/HARTFORD
                         Decision of the Court

final unless timely protested. See A.R.S. § 23-947(A) (2012). A timely
hearing request opens all issues addressed by the NCS for consideration by
the ALJ. See, e.g., Parkway Mfg. v. Indus. Comm’n, 128 Ariz. 448, 452, 626 P.2d
612, 616 (App. 1981). An ICA hearing is limited to the issues addressed in
the protested notice unless the parties consent to litigate additional issues
in a single hearing. See, e.g., Arellano v. Indus. Comm’n, 25 Ariz. App. 598,
599-600, 545 P.2d 446, 447-48 (App. 1976).

¶11           During the 2013 litigation, the sole issue in the instant case
was whether the claimant needed active medical care and whether she was
thus entitled to receive continuing benefits. To be entitled to continuing
medical benefits, the claimant had the burden of proving that her physical
condition was causally related to her industrial injury and that such
condition was not yet medically stationary. See, e.g., Lawler v. Indus.
Comm’n, 24 Ariz. App. 282, 284, 537 P.2d 1340, 1342 (App. 1975). Judge
Long resolved the conflict in medical opinions between Drs. Beghin and
Patel in favor of Dr. Patel. Judge Long then held that the claimant’s
industrially-related medical condition was not yet stationary and that she
was entitled to receive continuing active medical treatment until her
condition became stationary.

¶12             A claimant becomes medically stationary when her
industrially-related condition is not subject to further improvement. See
Janis v. Indus. Comm’n, 27 Ariz. App. 263, 265, 553 P.2d 1248, 1250 (App.
1976). When a doctor discharges a claimant from active medical treatment,
the doctor is required to determine whether the claimant sustained any
permanent impairment of function as a result of the industrial injury. See
A.A.C. R20-5-113(B). If an unscheduled permanent impairment is awarded,
the claimant proceeds to an LEC determination. See Cassey v. Indus.
Comm'n, 152 Ariz. 280, 283, 731 P.2d 645, 648 (App. 1987) (explaining that
an LEC is determined through a bifurcated procedure requiring a claimant
to first establish a permanent impairment, and second, to establish that the
impairment diminished the claimant’s earning capacity).

¶13            In this case, the claimant’s condition was not medically
stationary at the time of the 2013 litigation. Consideration of permanent
impairment or its effect on her earning capacity was not at issue, and any
findings in that regard would have been premature. See A.R.S. § 23-1047(A)
(stating the right to permanent disability benefits does not arise until after
a claimant’s medical condition becomes stationary). For that reason, Judge
Radke was not bound by Judge Long’s adoption of Dr. Patel’s opinion in
the 2013 litigation relative to whether the claimant required further active



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                    GARCIA v. DMS/HARTFORD
                       Decision of the Court

medical care, and issue preclusion did not bar Judge Radke from adopting
Dr. Beghin’s opinion regarding work restrictions in the current LEC
litigation.

                            CONCLUSION

¶14          For the foregoing reasons, we affirm the award.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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