Ayon v. hyatt/broadspire ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ALMA LERMA AYON, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
HYATT CORPORATION, Respondent Employer,
BROADSPIRE, Respondent Carrier.
No. 1 CA-IC 17-0067
FILED 11-20-18
Special Action - Industrial Commission
ICA Claim. 93109311625
Carrier Claim No. 1629361001
The Honorable Robert F. Retzer, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Alma Lerma Ayon, Mesa
Petitioner
The Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent, ICA
Cross & Lieberman, PA, Phoenix
By Lawrence H. Lieberman
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.
C A M P B E L L, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review denying petitioner Alma
Ayon’s petition to reopen her claim but awarding additional supportive
care for dental work. On appeal, Ayon asks this court to reopen her claims
for care beyond the dental care she was awarded. Because the evidence of
record and the applicable law support the administrative law judge’s
(“ALJ”) findings, we affirm the award.
STANDARD OF REVIEW
¶2 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 (App. 2003). We view the evidence in a
light most favorable to upholding the ALJ’s award. Lovitch v. Indus. Comm’n,
202 Ariz. 102, 105, ¶ 16 (App. 2002). As long as there is a reasonable basis
for the findings of the ALJ, this court will not set aside the decision. See id.BACKGROUND
¶3 Ayon worked for Hyatt Hotels as a housekeeper. On
September 5, 1992, Ayon was injured at work when she was assaulted by a
guest in the hotel. In performing her housekeeping duties, Ayon knocked
on the guest’s door to do the evening turndown service. There was no
answer, so Ayon let herself into the room. Ayon’s entrance startled the
guest, and when Ayon bent down to place a doorstop in the door, the guest
kicked her in the face at least three times and threw her into the hallway.
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AYON v. HYATT/BROADSPIRE
Decision of the Court
Ayon suffered four broken teeth from the assault.1 Ayon’s initial workers’
compensation claim filed in September 1992 was approved by the insurance
carrier. She received reconstructive dental work from Dr. Lebowitz—
including a partial dental prosthetic plate to compensate for the missing
teeth. Ayon completed her treatment with Dr. Lebowitz in December 1992.
Ayon was discharged from treatment without a permanent disability and
her claim was closed in June 1993. Ayon saw Dr. Lebowitz again in 2012
because she required additional restorative work: Dr. Lebowitz fabricated
a new partial dental plate to replace the one he made 20 years before. Ayon
was unhappy with Dr. Lebowitz’s treatment and the partial dental plate he
put in, claiming it gave her headaches. The restorative work was completed
in 2014.
¶4 Ayon saw another doctor, Dr. Farrell, under a supportive care
award to treat her joint pain and headaches. Dr. Farrell’s treatment changed
Ayon’s jaw position, known as occlusion, which necessitated additional
dental work to accommodate the change in bite. Dr. Farrell referred her to
another dentist, Dr. Benting, on January 21, 2016. Dr. Benting adjusted her
occlusion, constructed a new partial denture, and replaced Ayon’s partial
dental plate.
¶5 Ayon has filed numerous petitions to reopen her claim since
her initial claim was closed in 1993. Her last petition to reopen was denied
on December 21, 2015. In July 2016, Ayon filed another petition to reopen
her claim. The insurance carrier denied the petition. Ayon timely requested
a hearing, and the ALJ conducted formal hearings on December 15, 2016
and August 15, 2017. The ALJ limited the scope of the hearing to the
reopening of dental issues because the only evidence Ayon presented in her
petition—from the date of the prior final award denying the petition to
reopen to the hearing—was related to her dental care.
¶6 The ALJ heard testimony from Ayon and the two dentists
who treated Ayon, Dr. Benting and Dr. Lebowitz. He then entered an award
denying the petition to reopen but awarding supportive care for
Dr. Benting’s dental treatment. Ayon requested administrative review, and
the ALJ affirmed the award. Ayon timely filed this appeal.
1 Ayon sustained multiple other injuries from the assault, but because
her petition to reopen was limited to dental issues, we discuss only the
relevant dental care she received.
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AYON v. HYATT/BROADSPIRE
Decision of the Court
DISCUSSION
¶7 Arizona Revised Statutes (“A.R.S.”) section 23-1061(H) sets
out the statutory requirements for reopening a workers’ compensation
claim: The claimant must establish the existence of a new, additional, or
previously undiscovered condition, and a causal relationship between that
condition and the earlier injury. See A.R.S. § 23-1061(H); Hopkins v. Indus.
Comm’n, 176 Ariz. 173, 176 (App. 1993). The claimant bears the burden to
present sufficient evidence to support a reopening. Hopkins, 176 Ariz. at 176.
“In cases involving a first petition to reopen, the comparison points for
establishing the necessary change of condition are the date the claim was
closed and the date the petition to reopen was filed.” Cornelson v. Indus.
Comm’n, 199 Ariz. 269, 271, ¶ 14 (App. 2001). When the claimant has filed
successive petitions to reopen, however, the comparison points for
establishing a change in condition begin at the prior final decision denying
the previous petition to reopen to the date the subsequent petition to reopen
is filed. Phoenix Cotton Pickery v. Indus. Comm’n, 120 Ariz. 137, 139 (App.
1978). Here, the comparison points for the petition to reopen are changes in
Ayon’s condition from December 21, 2015 to July 12, 2016.
¶8 Ayon argues that the ALJ erred by limiting her reopening to
dental work and asks that her claim be reopened for all her past and current
medical conditions. Ayon asserts every ache and pain she has felt is a result
of the assault that occurred 25 years ago, and she should continue to receive
compensation for treatment relating to those aches and pains. A claimant
has the burden to present sufficient evidence to support a reopening. See
Hopkins, 176 Ariz. at 176. When the causal connection between the
claimant’s current condition and the prior industrial injury is not readily
clear, it must be established by medical testimony. Makinson v. Indus.
Comm’n, 134 Ariz. 246, 248 (App. 1982). With her petition to reopen, Ayon
presented only an expert report from Dr. Benting regarding her dental
issues. Because Ayon presented no evidence beyond that, and nothing to
link Dr. Benting’s dental care to her original claim, the ALJ did not err in
limiting Ayon’s petition to the single issue of reopening the claim for
additional dental work.
¶9 Ayon also challenges the ALJ’s denial to reopen her claim for
dental work and the award of supportive care. Awards for supportive care
“are designed to prevent or reduce the continuing symptoms of an
industrial injury after the injury has become stabilized.” Capuano. v. Indus.
Comm’n, 150 Ariz. 224, 226 (App. 1986). Ayon did not establish the existence
of a new, additional, or previously undiscovered condition to justify
reopening her claim, as required by A.R.S. § 23-1061(H), (“A claim shall not
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AYON v. HYATT/BROADSPIRE
Decision of the Court
be reopened because of increased subjective pain if the pain is not
accompanied by a change in objective physical findings.”). The testimony
of Dr. Lebowitz and Dr. Benting established that the dental work Ayon
received from Dr. Benting arose directly out of the care she received from
Dr. Farrell. Dr. Farrell’s treatment was covered by the insurance carrier
under a supportive care award. Based on this testimony, the ALJ awarded
Ayon supportive care for the dental work Dr. Benting performed.
¶10 Dr. Benting saw Ayon a total of seven times beginning in
January 2016, and he discharged her in February 2017. In January 2017,
Dr. Lebowitz performed an independent medical exam (“IME”) on Ayon
and reviewed Dr. Farrell and Dr. Benting’s findings regarding Ayon’s
dental problems. Dr. Lebowitz testified Dr. Benting’s treatment could relate
to her injury—because Dr. Farrell’s treatment was related to her injury and
the need for Dr. Benting’s treatment arose directly from Dr. Farrell’s
treatment. Dr. Lebowitz further testified there was no working disability
because of Dr. Farrell’s and Dr. Benting’s treatment. Finally, Dr. Lebowitz
noted that a number of Ayon’s subjective complaints were not approved by
objective findings. He thus opined that Ayon’s treatment should be covered
under a supportive care award because while it was not from a new,
additional, or previously undiscovered condition, it arose directly from
Dr. Farrell’s treatment, which was covered under supportive care.
¶11 Based on this evidence, the ALJ concluded that Dr. Benting’s
treatment beginning on January 21, 2016 and ending on February 15, 2017
should be covered under a supportive care award.2 Dr. Benting and
Dr. Lebowitz’s testimony reasonably supports the ALJ’s denial of
reopening the matter and for an award of supportive care.
2 Had the ALJ reopened Ayon’s case, Ayon would not have received
expenses for most of the dental work Dr. Benting performed in the six
months prior to filing. A claimant is entitled to “expenses for reasonable
and necessary medical and hospital care . . . if the claim is reopened . . . and
if these expenses are incurred within fifteen days of the date that the
petition to reopen is filed.” A.R.S. § 23-1061(H). In this case, Alma filed her
petition to reopen in July 2016; she first saw Dr. Benting and began
incurring expenses from his visits in January 2016. Consequently, if the ALJ
had granted Ayon’s petition to reopen, she would have not been entitled to
compensation for Dr. Benting’s treatment from January to July 2016 since it
occurred more than 15 days from the date she filed her petition to reopen.
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AYON v. HYATT/BROADSPIRE
Decision of the Court
CONCLUSION
¶12 We affirm the award and decision upon review.
AMY M. WOOD • Clerk of the Court
FILED: JT
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