Goetzinger-Amendt v. Brd of Nursing ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
FRANCES GOETZINGER-AMENDT,
Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA,
Respondent,
BOARD OF NURSING CARE EXAM*,**
Respondent Employer,
THE STATE OF ARIZONA – DOA RISK MANAGEMENT*,**
Respondent Carrier.
No. 1 CA-IC 18-0031
FILED 2-26-2019
Special Action – Industrial Commission
ICA Claim Nos.
20011-830742*
20012-220932**
Carrier Claim Nos.
2001030850*
2001030330**
Gaetano J. Testini, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Frances Goetzinger-Amendt, Surprise
Petitioner
The Industrial Commission of Arizona, Phoenix
By Stacey Ann Rogan
Counsel for Respondent
Arizona Attorney General’s Office, Phoenix
By Charles W. Ferris, Jr.
Counsel for Respondent Employer and Respondent Carrier
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
C R U Z, Judge:
¶1 Frances Rose Goetzinger-Amendt (“Claimant”), a former
employee of the State of Arizona (“Employer”), appeals the denial of two
separate notices—one terminating her unemployment claims, and the other
denying her petition to reopen her claims. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Claimant suffered two separate work-related injuries in
March and July of 2001, respectively. She filed workers’ compensation
claims for both, and the Arizona Department of Administration Risk
Management Division (the “Carrier”) accepted both and paid benefits. On
November 13, 2001, the Carrier issued a Notice of Claim Status (“Notice”)
closing the March 2001 claim without any permanent impairment. On
November 12, 2002, the Carrier issued a Notice closing Claimant’s July 2001
claim without any permanent impairment, supported by a group
consultation report and an Addendum Report by Drs. Brian Borland and
Michael Epstein, a psychiatric evaluation report from Dr. Robert Bevan, and
a written progress note from Dr. Kevin Ladin. In December 2002, Claimant
filed a petition to reopen the claim from the March 2001 injury; the Carrier
denied her request in a January 15, 2003 Notice.
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GOETZINGER-AMENDT v. BRD OF NURSING
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¶3 Claimant requested a hearing before the Administrative Law
Judge (“ALJ”) and appeared with representation for her first hearing before
the ALJ in August 2003. Before further hearings were set, however,
Claimant reached a settlement agreement (the “Settlement”) with the
Carrier and withdrew her hearing requests. In October 2003, the ALJ issued
a decision finding, inter alia, the existence of a bona fide dispute, and that
“[n]o duress, fraud, misrepresentations, coercion, and/or undisclosed
additional agreements [were] used to achieve settlement.” Accordingly, in
2003 the ALJ issued an award approving the Compromise and Settlement.
¶4 In April 2017—some thirteen years after the Settlement—
Claimant filed a complaint with the Industrial Commission (“IC”) alleging
the Carrier had engaged in bad faith and/or unfair claims processing of the
2001 claims under Arizona Administrative Code (“A.A.C.”) R20-5-163 (the
“Regulation”). Specifically, Claimant alleged that the November 12, 2002
Notice closing her claim and the January 15, 2003 Notice denying her
petition to reopen violated the Regulation because such notices lacked
supportive medical documentation.
¶5 A hearing was held before an ALJ in January 2018, after which
the ALJ issued a decision denying the claims. The ALJ found that the
November 2002 notice was adequately supported by medical evidence, and
that the Regulation did not require the Notice denying the petition to
reopen to be supported by medical documentation. Claimant requested an
additional hearing which the IC treated as a “Request for Review,” and the
IC summarily affirmed the ALJ’s denial.
¶6 Claimant filed a special action for review with this Court. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) section 23-948.
DISCUSSION
¶7 On appeal from the IC, when a case presents mixed questions
of law and fact, as in this matter, “we defer to the ALJ’s determination of
disputed facts but review questions of law de novo.” Tapia v. Indus. Comm’n,
245 Ariz. 258, 260, ¶ 5 (App. 2018); see also Phelps v. Indus. Comm’n, 155 Ariz.
501, 506 (1987) (stating we will not overturn the ALJ’s findings and
conclusions unless they cannot be supported on any reasonable theory of
the evidence).
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GOETZINGER-AMENDT v. BRD OF NURSING
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I. Sufficiency of Claimant’s Brief
¶8 Employer and the Carrier (“Respondents”) urge us to find
that Claimant has waived all arguments on appeal. We require petitioners
on appeal to submit briefs with citations to the record, developed
arguments, and references to the legal authority forming the basis of those
arguments. See ARCAP 13(a); AMERCO v. Shoen, 184 Ariz. 150, 154 n.4
(App. 1995) (stating failure to develop argument or present supporting
authority on appeal waives issue). To be sure, Claimant’s briefs are
deficient. Nowhere does she cite to the record and only sparingly does she
cite to legal authority. Most concerning, however, is the lack of a developed
argument in the opening brief.
¶9 Although this case could properly be dismissed on the basis
of waiver, it is the general preference of Arizona’s appellate courts to
resolve cases on their merits. See, e.g., Hill v. City of Phoenix, 193 Ariz. 570,
574, ¶ 18 (1999). This case dates back nearly two decades; accordingly, in
the interest of affording Claimant some finality, we exercise our discretion
to address the merits of this case. See City of Phoenix v. Fields, 219 Ariz. 568,
573, ¶ 23 (2009) (stating that a finding of waiver “is procedural, not
substantive, and may be suspended in our discretion”) (internal quotations
and citation omitted).
¶10 That notwithstanding, we decline to address all complaints
merely alluded to but not developed in Claimant’s brief, including any
alleged “illegal” refusal to provide medical records, the ALJ’s denial of her
requests to subpoena certain medical professionals, alleged negligent
handling of HIPAA information, and other miscellaneous complaints.
II. Bad Faith and Insufficiency of Medical Evidence
¶11 Claimant asserts that Respondents acted in bad faith and
engaged in unfair claims processing in each of her claims. More
specifically, Claimant alleges her claims were closed without adequate
medical documentation and without proper justification, and that she was
improperly denied the ability to reopen them.
A. The Settlement Is an Absolute Defense to Issues Covered by
the Subject Notices
¶12 Respondents argued before the ALJ that the Settlement is a
“global defense” to, and is dispositive of, this matter. Under the terms of
the Settlement, Claimant acknowledged that her medical condition (for the
purposes of workers’ compensation claims) was stationary and required no
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Decision of the Court
active medical treatment; that she sustained no residual impairment as a
result of the subject industrial episode(s); and she expressly agreed to
withdraw her hearing requests. Claimant was represented by counsel
when she entered the Settlement Agreement and formally waived all
workers’ compensation claims arising out of these work-related injuries in
exchange for a one-time $15,000 payment. As previously noted, the
Settlement Agreement was reviewed, accepted, and approved by the ALJ.
The approval of the Settlement agreement was not timely challenged and
became final. See A.R.S. §§ 23-942(D), 23-943(A), (B) (providing that any
party dissatisfied with the award may file a request for review with the ALJ
of the IC within thirty days after the mailing of the award; otherwise the
award becomes final). As such, claims arising out of the November 2002
and January 2003 Notices are precluded.
B. Whether the Notices of Claim Status Terminating Claim and
Denying Claimant’s Request to Reopen Violated A.A.C.
R20-5-163
¶13 Claimant argues the Regulation was violated when (1) the
Carrier terminated her treatment in a Notice dated November 12, 2002; and
(2) the Carrier denied her application to reopen in a Notice dated January
15, 2003. Subsection (A) of the Regulation outlines the activities
constituting “bad faith” on behalf of an employer or carrier. As best we can
tell from the record, Claimant alleges that the Carrier and/or Employer
engaged in bad faith when they failed to acknowledge her communications
in violation of subsection (A)(2); falsified documents in violation of
subsection (A)(2); unreasonably delayed payment of benefits in violation of
subsection (A)(2); and unreasonably terminated her benefits in violation of
subsection (A)(4). Regarding Claimant’s subsection (B) arguments, she
alleges that each of the Notices were issued without adequate supporting
medical records.
¶14 During the January 10, 2018 hearing before the ALJ, the ALJ
pointed out to Claimant that “a mere accusation without any evidence isn’t
enough to carry your burden.” On review of the record, we agree with the
ALJ’s implicit conclusion that Claimant’s allegations are unsupported by
evidence. First, Claimant provides no evidence she has been denied
communication concerning, or access to documentation concerning, her
medical condition or the status of her industrial claims. In fact, Claimant
has gathered over 1,700 pages of medical records, administrative records,
and communications in pursuing her claims. Next, Claimant failed to
identify any evidence to support her allegation of falsified records, nor do
we find any evidence of delayed payments. Finally, the Carrier did not
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Decision of the Court
unreasonably terminate Claimant’s benefits because, as specifically
outlined in the following paragraphs of this decision, such termination was
adequately supported by medical documentation.
¶15 Finally, the record belies Claimant’s subsection (B) claims.
The 2002 Notice, as a notice terminating benefits, required the Carrier to
submit supporting medical documentation pursuant to A.A.C.
R20-5-118(B)(1) and (2). In support of its notice, the Carrier attached
multiple medical reports as follows:
1. Drs. Borland and Epstein each signed a report concluding
that “[t]here are no objective findings to support
[Claimant’s] complaints. . . . [Claimant] has [no]
neurological or TMJ injury or diagnosis attributable to the
injury in question. . . . We do not feel that supportive care
is warranted . . . . [and] she is permanent and stationary.”
2. Dr. Bevan issued a psychiatric report stating that
Claimant’s “psychiatric status is stationary.”
3. Dr. Ladin submitted a report wherein he opined that
Claimant’s “condition from a physical medicine and
rehabilitation perspective is medically stationary”—he
further stated that he discharged her and would be
scheduling no follow-up.
Claimant concedes she received the November 2002 Notice but denies she
received the attached reports—a denial the ALJ did not find supported by
the evidence. In any event, the record demonstrates that the Carrier’s 2002
Notice complied with the Regulation.
¶16 Unlike the 2002 Notice, the 2003 Notice was not to terminate
benefits, but instead was issued in response to Claimant’s petition to
reopen. In such an instance, the claimant is required to submit medical
documentation to support her petition to reopen; contrary to Claimant’s
contention, the carrier is not required to submit any medical documentation
when denying the petition. See A.R.S. § 23-1061(A) and (I); A.A.C.
R20-5-133(B). Accordingly, the Carrier did not violate the Regulation when
it issued its 2003 Notice.
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CONCLUSION
¶17 Finding no error, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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