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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             ELSA M. VALIENTE,
                                  Petitioner,

                                        v.

            THE INDUSTRIAL COMMISSION OF ARIZONA,
                           Respondent,

                              RESIDENCE INN,
                             Respondent Employer,

            TRAVELERS CASUALTY & SURETY COMPANY,
                        Respondent Carrier.

                             No. 1 CA-IC 16-0069
                               FILED 10-5-2017


               Special Action - Industrial Commission
                        ICA No. 20142-180298
                    INSCA No. 127-CB-EYC2091-J
      The Honorable J. Matthew Powell, Administrative Law Judge

                            AWARD AFFIRMED


                                   COUNSEL

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

Lester, Norton & Brozina, PC, Phoenix
By Rachel P. Brozina
Counsel for Respondent Employer/Carrier



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Margaret H. Downie joined.


B R O W N, Judge:

¶1           Elsa Valiente seeks review of a decision denying her petition
to reopen her workers' compensation claim. For the following reasons, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2              Valiente was working as a laundry attendant at a hotel
(Residence Inn by Marriott) in July 2014 when a piece of furniture fell from
a shelf, striking her on the head. The employer's insurance carrier issued a
notice of claim status accepting the claim but "limit[ed] liability to neck
sprain only." Valiente filed a timely request for hearing, contesting the
limitation of liability and asserting she had sustained "injury to multiple
body parts," including her head, shoulder, back, and leg.

¶3            In January 2015, Valiente's treating physician, Dr. Sanjay
Patel, requested approval from the carrier to order an MRI of Valiente's
right shoulder and lumbar spine due to her persistent complaints of pain in
those regions. At the request of the carrier, Drs. Leo Kahn, Jon Zoltan, and
Atul Patel conducted an independent medical evaluation ("IME") of
Valiente. In their IME report, the doctors concluded that Dr. S. Patel's
requested imaging was unnecessary and stated that, "[f]rom an orthopedic,
physical medicine, and neurological perspective[, they did] not identify the
need for any further active medical treatment, chiropractic treatment, or
surgical intervention as it relates to the 07/27/14 industrial injury." As a
result, the carrier issued a notice of claim status terminating temporary
compensation and medical benefits effective February 23, 2015.


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                 VALIENTE v. RESIDENCE/TRAVELERS
                        Decision of the Court

¶4            Valiente filed another timely request for hearing, asserting
that her condition was not medically stationary or, alternatively, that it
resulted in a permanent disability requiring supportive care. Dr. S. Patel
ordered an MRI of Valiente's left shoulder, which revealed a partial-
thickness rotator cuff tear. Dr. S. Patel disagreed with Dr. Zoltan's
assessment. Dr. Zoltan submitted an addendum to his initial IME, stating
that his previous opinion regarding the industrial injury remained
unchanged and that he found the "degenerative changes" found in
Valiente's shoulder MRI to be "consistent with the natural degeneration of
the soft tissue" and were not caused or exacerbated by the industrial
accident.

¶5              Following evidentiary hearings, the Administrative Law
Judge ("ALJ") issued a decision on November 10, 2015, finding that as a
result of the industrial injury, Valiente had "sustained a scalp contusion and
abrasion, and a sprain of the soft tissue of the cervical spine and left
trapezius and parascapular muscles." The ALJ also determined there was
no "specific injury or trauma to the left shoulder." The ALJ awarded
Valiente medical benefits and temporary benefits "as provided for by law"
from the date of the injury through May 20, 2015, concluding that her
industrial injury was "medically stationary without permanent
impairment."

¶6            On December 9, 2015, Valiente filed a petition to reopen and
request for hearing. At a subsequent hearing, she testified that the pain in
her left shoulder had increased and she needed additional medical care.
The ALJ denied the petition to reopen as well as the subsequent request for
review. This timely petition for special action followed.

                               DISCUSSION

¶7              We will not set aside an ALJ's decision on a request for review
unless there is a clear abuse of discretion. Howard P. Foley Co. v. Indus.
Comm'n, 120 Ariz. 325, 327 (App. 1978). 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 (App. 2003). Further, we defer to the ALJ's resolution
of conflicts in the evidence. Henderson-Jones v. Indus. Comm'n, 233 Ariz. 188,
191, ¶ 9 (App. 2013).

¶8            To prevail on a petition to reopen, Valiente had the burden of
"showing a new, additional, or previously undiscovered condition and a
causal relationship between that new condition and the prior industrial
injury." Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105-06, ¶ 17 (App. 2002)



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                 VALIENTE v. RESIDENCE/TRAVELERS
                        Decision of the Court

(citing Ariz. Rev. Stat. ("A.R.S.") section 23–1061(H)). During the hearing
on the petition to reopen, Valiente testified that her shoulder pain had
increased since the May 2015 determination. Valiente also submitted a
report by Dr. Charles Creasman, which noted that her March 2015 MRI
"demonstrate[d] partial-thickness/near full-thickness tear of the
supraspinatus tendon." Dr. Creasman also reported that a new MRI
conducted in March 2016 demonstrated a "full-thickness tear," suggesting
Valiente's "condition ha[d] progressed even further."

¶9            Given that evidence, Valiente asserts that the employer
should be held responsible to pay for surgery to repair her left shoulder,
and that she should be compensated based on her inability to return to
work. Valiente's shoulder condition, however, was previously litigated; the
ALJ determined it was not causally related to the industrial injury. In the
November 2015 award, the ALJ weighed the evidence and testimony
presented by both Dr. S. Patel and Dr. Zoltan and ultimately adopted Dr.
Zoltan's assessment, finding there was "no sign of specific injury or trauma
to the left shoulder" caused by the industrial accident. Valiente did not
challenge the ALJ's November 2015 award by seeking review in this court,
which means that decision is final. See A.R.S. § 23–1061(H) ("A claim shall
not be reopened if the initial claim for compensation was previously denied
by a notice of claim status or determination by the commission and the
notice or determination was allowed to become final . . . ."); Perry v. Indus.
Comm'n, 154 Ariz. 226, 228 (App. 1987) (recognizing, in the context of a
petition to reopen, that "finality principles preclude relitigation of issues
that were or that could have been determined when the claim was closed").

¶10            Moreover, the ALJ considered the new medical evidence
submitted by both parties and found it was "consistent with the previous
legal determination" that the industrial incident did not cause or contribute
to Valiente's shoulder injury. The ALJ's finding on this point is supported
by Dr. Zoltan's April 13, 2016 report, which noted the "opinions previously
expressed remain without change." He recognized that the MRI findings
revealed a natural progression of degeneration and rotator cuff tears, but
found no correlation between the findings and the industrial injury.
Because Valiente failed to establish the existence of a new, additional, or
previously undiscovered condition that would justify reopening her claim,
we find no abuse of discretion.




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              VALIENTE v. RESIDENCE/TRAVELERS
                     Decision of the Court

                           CONCLUSION

¶11          For the foregoing reasons, we affirm the ALJ's decision
denying Valiente's request to reopen.




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




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