Karry v. veolia/sedgwick ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
RANDY KARRY, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA,
Respondent,
VEOLIA TRANSPORTATION SERVICES, INC.,
Respondent/Employer,
OLD REPUBLIC INS. CO./SEDGWICK CLAIMS
MANAGEMENT SERVICES, Respondent Carrier.
No. 1 CA-IC 14-0054
FILED 1-27-2015
Special Action – Industrial Commission
ICA Claim No. 20131-990262
Carrier Claim No. 30130847374-0001
The Honorable Suzanne S. Marwil, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Randy Karry, Phoenix
Petitioner
Klein Doherty Lundmark Barberich & La Mont, PC, Tucson
By Eric W. Slavin
Counsel for Respondent Employer & Respondent Carrier
KARRY v. VEOLIA/SEDGWICK
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.
O R O Z C O, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (ICA) award for a noncompensable claim. For the reasons that
follow, we affirm the ruling of the Administrative Law Judge (ALJ).
FACTS AND PROCEDURAL HISTORY
¶2 Randy Karry received employment training from respondent
Veolia Transportation Services (Veolia) to become a bus driver. In
administering a “final driving test,” Veolia had several trainees take turns
driving a bus in downtown Phoenix. During one test, a trainee (not Karry)
collided with a vehicle while attempting to make a left turn. When the
accident occurred, Karry was seated somewhere on the bus as a passenger.
Donald Bremner, who conducted the final driving tests for Veolia and was
also a passenger, estimated that the collision occurred while the bus was
travelling at three to five miles per hour. Bremner also testified that he did
not see any of the passengers being thrown about or out of their seat during
or after the collision.
¶3 At the initial ICA hearing, Karry neither objected to Bremner’s
description of the accident nor provided any contravening evidence about
the accident. Karry testified that he started feeling pain in his neck the day
after the accident. He stated that he started treatment with a chiropractor
shortly after the pain began. He did not notify Veolia about his pain and
treatment, however, until over a month after the accident. Karry testified
that he received “several adjustments over several months” from a
chiropractor, and he was no longer suffering neck pain. He also testified
that he previously suffered a similar neck injury from a vehicle accident in
2003. Karry stated he received similar chiropractic treatment for that injury
and had recovered.
¶4 Karry was treated by Dr. Dennis Goldberg, a chiropractor,
who testified that orthopedic tests he performed on Karry after the accident
found that Karry was suffering from pain or discomfort. He also testified
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KARRY v. VEOLIA/SEDGWICK
Decision of the Court
that he was unaware of Karry’s 2003 accident. Dr. Goldberg stated he
believed to a reasonable degree of medical probability and certainty that
the bus accident caused, contributed, or aggravated Karry’s injury because:
[A]ny time someone gets into an accident, whether it’s . . . say,
4.5 miles per hour, the neck gets thrown back and forward or
sideways in kind of a whiplash-type position. And there are,
approximately, five Gs that are exerted on that cervical
region. And that would be equated to somewhere around a
jet-fighter pilot being launched off of an aircraft carrier. And
that could disrupt and damage the ligamentous area of the
cervical region and cause discomfort, pain, swelling,
reduction of range of motion.
¶5 Veolia called Dr. Irwin Shapiro, a board-certified orthopedic
surgeon, to testify about his medical records review of Karry’s injury
history and whether the bus accident caused Karry’s most recent injury. Dr.
Shapiro stated he believed it was not medically possible that Karry’s injury
was caused by the accident, particularly because of the force of impact, the
weight of the bus, and the lack of reported symptoms in any other
passenger. Dr. Shapiro also testified to familiarity with some of Karry’s
medical records showing Karry had suffered previous injuries. Dr. Shapiro
stated he did not believe those previous injuries made it more probable that
minor trauma could aggravate a preexisting injury.
¶6 The ALJ found that an accident had occurred and that
Bremner’s testimony about what took place was credible. The ALJ adopted
Dr. Shapiro’s opinions as “more probably true and correct.” Accordingly,
the ALJ denied Karry’s claim as noncompensable.
JURISDICTION AND STANDARD OF REVIEW
¶7 We have jurisdiction under Arizona Revised Statutes (A.R.S.)
sections 12-120.21.A.2 and 23-951.A (West 2015),1 and Arizona Rule of
Procedure for Special Actions 10. 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 the
light most favorable to upholding the award. Lovitch v. Indus. Comm’n, 202
Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).
1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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KARRY v. VEOLIA/SEDGWICK
Decision of the Court
DISCUSSION
¶8 Karry argues that the ALJ should not have denied his request
to allow testimony from another doctor in addition to Dr. Goldberg. Karry
contends that he was denied due process because this second doctor was
not allowed to testify, although several “lay” witnesses for Veolia testified.
¶9 ICA hearings may be conducted “in any manner that will
achieve substantial justice.” A.R.S. § 23-941.F (West 2015); see also Amey v.
Indus. Comm’n, 156 Ariz. 390, 392, 752 P.2d 43, 45 (App. 1988). Here, Karry
requested the testimony of the second doctor because that doctor treated
Karry and “administered steroids because of the pain” from the injury. The
ALJ explained to Karry that the purpose of the hearing was to determine
whether the bus accident caused Karry’s injury and that any treatment he
received could be “litigated at a different time” if he received a
compensable award. As a result, the ALJ did not allow the second doctor
to testify. We find no error in this limitation of evidence. See Hughes v.
Indus. Comm’n, 188 Ariz. 150, 152, 933 P.2d 1218, 1220 (App. 1996) (“As a
general rule, an administrative law judge may deny a timely subpoena
request if the expected testimony would not be material or otherwise
necessary.”).
¶10 Karry next argues that he was not afforded sufficient time to
prepare for cross-examination of Dr. Shapiro, in part because Dr. Shapiro’s
report was “untimely filed.” Karry asserts that the ALJ “demanded” Veolia
disclose Dr. Shapiro’s medical records review report within two weeks of
the initial ICA hearing. The record indicates that, although the ALJ
expressed hope that Veolia would receive the report from Dr. Shapiro
within a couple weeks of the initial hearing, no demand was made that the
report be disclosed within two weeks of that hearing. Moreover, and
irrespective of when the report was disclosed, Karry received a full
opportunity to cross-examine Dr. Shapiro, consistent with his rights under
Arizona law. See Oberteiner v. Indus. Comm’n, 161 Ariz. 547, 549, 779 P.2d
1286, 1288 (App. 1989) (“The right to cross-examination is fundamental and
attaches when the [ICA] receives any testamentary or documentary
evidence.”). Karry has not therefore demonstrated he was prejudiced by
the report’s disclosure and admission.
¶11 Karry raises several other issues related to events that
allegedly occurred off the record. No evidence related to these issues
appears in the record, and Karry raises these issues for the first time with
this court. Because it is the petitioner’s burden to develop the factual record
before the agency, we do not consider these newly raised issues. See Kessen
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v. Stewart, 195 Ariz. 488, 493, ¶ 19, 990 P.2d 689, 694 (App. 1999). To the
extent other arguments or issues are raised, Karry has waived them by not
developing the arguments in accordance with the Arizona Rules of Civil
Appellate Procedure. See Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶
6, 154 P.3d 391, 393 n.2 (App. 2007).
CONCLUSION
¶12 The denial of Karry’s claim as noncompensable was
supported by sufficient evidence. Accordingly, we affirm.
:ama
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