                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              STEVE A. MARTIS,
                              Petitioner/Employee,

                                        v.

            THE INDUSTRIAL COMMISSION OF ARIZONA,
                           Respondent,

                        CIENEGA CONSTRUCTION,
                            Respondent Employer,

          COPPERPOINT MUTUAL INSURANCE COMPANY,
                       Respondent Carrier.


                             No. 1 CA-IC 18-0073
                               FILED 10-24-2019


               Special Action – Industrial Commission
                    ICA Claim No. 88084-016797
                      Carrier Claim No. 8810748
       The Honorable Robert F. Retzer, Administrative Law Judge

                                  AFFIRMED


                                   COUNSEL

Steven A. Martis, Bullhead City
Petitioner/Employee
The Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent ICA

Copperpoint Mutual Insurance Company, Phoenix
By Deborah E. Mittelman
Counsel for Respondent Employer and Carrier




                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.


P E R K I N S, Judge:

¶1            Steven A. Martis seeks review of the Decision Upon Review
of the Industrial Commission of Arizona (“ICA”), denying both his Petition
to Reopen (“Petition”) his industrial injury claim and his Complaint of
Alleged Bad Faith and/or Unfair Claims Processing Practices
(“Complaint”). Martis also protests his 2017 supportive care award. For the
reasons set forth below, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             “We view the evidence in the light most favorable to
affirming [ICA]’s findings and award.” City of Tucson v. Indus. Comm’n, 236
Ariz. 52, 54, ¶ 2 (App. 2014). We limit our review to the evidence contained
in the record. Pac. Fruit Express v. Indus. Comm’n, 153 Ariz. 210, 214 (1987).

¶3            On March 1, 1988, Martis slipped on a stair, falling and
injuring his back, while working for Cienega Construction in Flagstaff,
Arizona. Following his fall, Martis successfully petitioned ICA for an award
of temporary benefits for the treatment of his back injury until he became
medically stationary.

¶4           During the pendency of the initial petition, Dr. Donald Hales,
an orthopedic surgeon, examined Martis. Dr. Hales testified that Martis
presented “severe back pain with radiation into both legs . . . .” He noted
further that a CAT scan and MRI showed findings “consistent with a
herniated disk at the L3-4, L4-5 levels and a bulging disc at the L5, S-1


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                  MARTIS v. CIENEGA/COPPERPOINT
                         Decision of the Court

level,” and “confirm[ed] multiple level disk herniations.” Dr. Hales opined
that the herniated disc was related to the work injury. The Administrative
Law Judge (“ALJ”) adopted his diagnoses in his 1989 award.

¶5            In 1990, Martis underwent a discectomy and laminectomy of
the injured areas that Dr. Hales identified. In 1992, the State Compensation
Fund (“SCF”) declared Martis medically stationary with continuing
conservative care. ICA granted a further supportive care and partial
disability award in 1995 pursuant to an independent medical examination
(“IME”). After the IME, SCF declared him to be medically stationary and
suitable for full-time work with weight-lifting restrictions. SCF then
transitioned Martis to permanent disability and granted supportive
medical maintenance benefits.

¶6           In 2016, Martis filed a Petition to Reopen, in which he sought
a diagnostic exam following a fall that Martis claims was related to his
industrial accident. In 2017, Martis filed a Complaint seeking
reimbursement from SCF (now Copperpoint) for urgent care, medication,
and transportation expenses resulting from this fall.

¶7             At the hearing before the ALJ, Copperpoint’s claims adjuster,
Melinda Mikkelson, testified that Copperpoint paid for all supplemental
care previously awarded. Copperpoint also called Dr. Carol Peairs and Dr.
Irwin Shapiro, who testified that Martis had no new conditions related to
the injury. Dr. Shapiro testified that Martis’s industrial injury did not cause
his fall. Martis called Dr. Paul Sutera, his supportive care physician. Dr.
Sutera testified that although the supportive care award was not ideal, it
was nevertheless reasonable.

¶8            The ALJ denied the Petition and Complaint in his July 16, 2018
Decision Upon Hearing. In doing so, the ALJ found Dr. Sutera, Martis’s sole
medical witness, “was . . . unable to state the applicant had any new,
addition[al] or previously undiscovered condition causally related to his . .
. industrial injury,” and that Copperpoint’s proposed supportive care
award was reasonable. The ALJ “accept[ed] the opinions of all of the
medical witnesses” that Martis had no new, additional, or undiscovered
conditions related to the March 1988 injury.

¶9          The same ALJ then affirmed these denials in a subsequent
Decision Upon Review. Martis timely filed this petition.




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                  MARTIS v. CIENEGA/COPPERPOINT
                         Decision of the Court

                               DISCUSSION

¶10           Several initial matters require our attention. First, Martis
requests several extraordinary measures of relief for the first time in this
appeal. We decline to consider all requests for relief not raised in the ICA
hearing, and for which Martis cites no law or portion of the record in
support. See Obersteiner v. Indus. Comm’n, 161 Ariz. 547, 549 (1989) (“An
issue not raised before [ICA] either as part of the hearing process or in a
request for review is not subject to appellate review.”).

¶11             Second, Copperpoint correctly notes that Martis’s opening
brief fails to comply with Arizona Rule of Civil Procedure 13(a)(6)–(7) by
failing to support his assertions with citations to the record and caselaw.
While we may treat the failure to develop issues in an opening brief as a
waiver of those issues, we decline to find waiver here where Martis has
previously raised an issue before the ICA. See City of Tucson v. Clear Channel
Outdoor, Inc., 209 Ariz. 544, 552, ¶ 33 n.9 (2005) (waiver based on
abandonment is “a rule of prudence, not of jurisdiction”).

¶12           Third, Martis moved to supplement his reply brief. The
proposed supplement contains no new citations or legal arguments that
would prejudice another party by their consideration. In our discretion, we
grant Martis’s motion.

I.        Sufficiency of Evidence

¶13         Martis appears to challenge the sufficiency of the evidence
relied upon by the ALJ. A petitioner may seek to reopen a previously
accepted ICA claim for additional or rearranged compensation “upon the
basis of a new, additional or previously undiscovered temporary or
permanent condition.” A.R.S. § 23-1061(H). An accepted ICA claim will not
be reopened based on “increased subjective pain if the pain is not
accompanied by a change in objective physical findings.” Id.

¶14           A petitioner may not simply assert causation between a given
condition and their injury. See Phelps v. Indus. Comm’n, 155 Ariz. 501, 505
(1987) (“If the result of an industrial accident is not clearly apparent to a
layman, then the causal relationship of the accident to the physical or
mental condition must be established by expert medical testimony.”).
Claimants have the burden to prove the material elements of their claim by
a preponderance of the evidence. Brooks v. Indus. Comm’n, 24 Ariz. App. 395,
399 (1975). This court will affirm an ALJ Decision when it is based on any
reasonable theory of the evidence. Perry v. Indus. Comm’n, 112 Ariz. 397,
398–99 (1975).


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                  MARTIS v. CIENEGA/COPPERPOINT
                         Decision of the Court

¶15           The ALJ must resolve conflicting evidence and “determine
which of the conflicting testimony is more probably correct.” Id. at 398.
When the ALJ resolves such a conflict, we will not disturb that conclusion
unless wholly unreasonable. Royal Globe Ins. v. Indus. Comm’n, 20 Ariz. App.
432, 434 (1973).

¶16           Here, Martis claims that back spasms resulting in a fall and
subsequent injury were causally related to his 1988 injury. Martis presented
no medical evidence supporting this claim during the ICA hearing. Dr.
Sutera substantially agreed with Copperpoint’s witnesses that Martis had
no new, additional, or previously undiscovered conditions. Martis thus did
not meet his burden of proof, and the ALJ reasonably denied his Petition.

¶17          Concerning the sufficiency of the supportive care award, Dr.
Sutera agreed that it was reasonable. To the extent that the physicians
disagreed, the ALJ resolved the conflict in favor of the Copperpoint
witnesses. The ALJ, reasonably affirmed the adequacy of the supportive
care award.

¶18          The record does not support Martis’s assertion that
Copperpoint failed to pay for benefits in bad faith. Martis presented no
evidence demonstrating that Copperpoint failed to pay for services to
which he was entitled. Mikkelson testified to the contrary. The ALJ thus
properly denied his Complaint.

II.       Alleged Procedural Errors

¶19            Martis asserts several procedural errors. First, he asserts that
the ALJ did not call witnesses Martis deemed helpful to his case. “[T]he
Industrial Commission is granted broad discretion to control witnesses.”
Artis v. Indus. Comm’n, 164 Ariz. 452, 454 (App. 1990). This discretion may
not violate “fundamental principles inherent in due process of law.” Id. An
ALJ has the discretion to refuse to issue subpoenas for medical witnesses
where the “witness would be redundant and unnecessary to a resolution of
the medical issues.” Scheytt v. Indus. Comm’n, 134 Ariz. 25, 28 (1982).

¶20           Martis had an opportunity to question Dr. Sutera. The ALJ
declined to call a physician’s assistant from Dr. Sutera’s office. Martis could
not identify any relevant testimony which the assistant could provide and
that Dr. Sutera would not. Accordingly, the ALJ did not abuse his discretion
in declining to call the assistant.

¶21         Martis also claims the ALJ unreasonably limited his
opportunity to speak, and improperly held part of the hearing in his


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                         Decision of the Court

absence. Claimants before ICA are entitled to a hearing that achieves
“substantial justice.” See A.R.S. § 23-941(F). A party must notify the
presiding ALJ three days in advance of a non-appearance that would
require the rescheduling of a hearing. Ariz. Admin. Code R20-5-149(B). It is
not an abuse of discretion for an ALJ to proceed with an ICA hearing where
a party or party’s counsel is not present, as it is the duty of parties to appear
when hearings are scheduled. See Cash v. Indus. Comm’n, 27 Ariz. App. 526,
530 (1976) (holding that it was not abuse of discretion for a hearing officer
to proceed without party’s counsel where counsel’s flight was delayed).

¶22           ICA notified Martis three weeks in advance that he was to
appear telephonically at his hearing, which occurred on four days in June
2018. Martis called the ombudsman the second day of the hearing to notify
the ALJ he could not attend the following two days due to a knee surgery.
The ALJ held the remaining portion of the hearing in Martis’s absence.
Martis next contacted the ICA by letter two months later. Martis failed to
request a postponement three days in advance as required. He also did not
request any accommodation until a month after the ALJ released his
Decision Upon Hearing. The ALJ’s decision to proceed without him did not
deny Martis substantial justice.

                                CONCLUSION

¶23           We affirm the ALJ’s Decision Upon Review.




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




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