Gomez v. M. culinary/colorado

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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

MARIA GOMEZ, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

M. CULINARY CONCEPTS HOUSTONS TOO d/b/a M. CULINARY CONCEPTS, Respondent Employer,

COLORADO CASUALTY INS. CO., Respondent Carrier.

No. 1 CA-IC 20-0034 FILED 04-01-2021 AMENDED PER ORDER FILED 04-02-2021

Special Action - Industrial Commission ICA Claim No. 20160-690412 Carrier Claim No. 805496050 The Honorable Marceline Lavelle, Administrative Law Judge

AFFIRMED

COUNSEL

Snow Carpio & Weekley PLC, Phoenix By Erica Rose Gonzalez-Melendez Counsel for Petitioner

Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent ICA

Lundmark Barberich LaMont & Slavin PC, Phoenix By Lisa M. LaMont Counsel for Respondent Employer/Carrier

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop joined.

B A I L E Y, Judge:

¶1 Maria Gomez challenges an Industrial Commission of Arizona (“ICA”) award finding Gomez required no work restrictions. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In March 2015, Gomez injured her back and leg while employed as a prep cook by M. Culinary Concepts. The claim was accepted for benefits, and she received appropriate medical and psychological treatment for over four years. The claim was closed in November 2017 with an unscheduled permanent partial disability due to the back injury; however, in March 2018, that notice was vacated by stipulation when the Carrier agreed Gomez was entitled to ongoing psychological treatment.

¶3 Thereafter, at the Carrier’s request, a psychiatrist, Dr. Joel Parker, evaluated Gomez in March and November 2018, and in May 2019. Based on the most recent evaluation, Dr. Parker concluded that Gomez’s mental health condition (major depression in partial remission) was stationary, and that supportive psychiatric care in the form of monthly psychotherapy sessions and up to six medication management meetings with a psychiatrist was appropriate. Dr. Parker opined that Gomez had “no work restrictions on a psychiatric basis.” Specifically, Dr. Parker noted, “[s]o long as she is appropriately treated with an antidepressant medication, she should have sufficient emotional stability to work in any position for which she is qualified. This work restriction does not include any

GOMEZ v. M. CULINARY/COLORADO Decision of the Court

restrictions she may have from an orthopedic or pain management perspective.” (Emphasis added.)

¶4 The following month, the Carrier issued a notice of claim status closing Gomez’s claim with a 5% permanent impairment based on her psychiatric condition and indicating she would not have any work restrictions. Gomez protested the closure and requested an ICA hearing because she required further active treatment. The parties submitted the relevant psychiatric and psychological records, and requested subpoenas be issued for the mental health professionals involved in her care.

¶5 An Administrative Law Judge (“ALJ”) held an evidentiary hearing at which Gomez’s treating psychologist, Dr. Javier Perez, testified, and the parties stipulated to the admission of Dr. Parker’s reports from his serial evaluations. Although Dr. Perez disagreed with Dr. Parker’s opinion that Gomez’s mental health status had improved, he agreed with Dr. Parker’s recommended treatment plan and his opinion that Gomez’s condition was stationary. Dr. Perez did not opine regarding Gomez’s work restrictions.

¶6 After the hearing, the ALJ issued a Decision Upon Hearing finding Gomez’s condition to be stationary effective May 17, 2019, and that Gomez was entitled to supportive psychiatric care. The ALJ also found Gomez’s psychiatric condition resulted in a 5% whole person impairment per AMA Guidelines and, based on Dr. Parker’s stipulated report, concluded that “no work restrictions are necessary related to that impairment.” The ALJ awarded Gomez medical, surgical, and hospital benefits from and after March 30, 2015, through May 17, 2019; temporary total or temporary partial disability compensation as provided by law for the same period; and supportive psychiatric care recommended by Dr. Parker. As a next step, the ALJ ordered the matter referred to the ICA Claims Division for “an assessment of any loss of earning capacity related to the permanent impairment.”

¶7 Gomez requested review only as to the finding that she had no work restrictions. In July 2020, the ICA issued a Decision Upon Review affirming the Decision Upon Hearing.

DISCUSSION

¶8 In reviewing findings and awards of the ICA, we defer to the ALJ’s factual findings but review questions of law de novo. Avila v. Indus. Comm’n, 219 Ariz. 56, 57, ¶ 2 (App. 2008). We consider the evidence in the light most favorable to upholding the award. Id.

GOMEZ v. M. CULINARY/COLORADO Decision of the Court

¶9 Gomez asserts the same argument on appeal as she did on review below, namely that her work restrictions were not at issue. However, “[w]hen a timely request for hearing is filed [to a Notice of Claim Status closing a claim], the entire matter protested is open for consideration and the applicant need not specify the grounds of [the] request for hearing . . . .” Parkway Mfg v. Indus. Comm’n, 128 Ariz. 448, 452 (App. 1981).

¶10 The record supports the ICA’s finding that Gomez’s psychiatric condition did not require work restrictions. Although both parties agreed Gomez’s psychological condition was stationary and she required continuing supportive care, Dr. Parker concluded she did not have any work restrictions. Dr. Perez did not dispute or rebut Dr. Parker’s conclusion in that regard, the parties stipulated to the admission of Dr. Parker’s report, and the ALJ found Dr. Parker’s opinion credible. Thus, the ALJ could properly rely on Dr. Parker’s conclusion that Gomez’s psychiatric condition did not require work restrictions. See Lazarin v. Indus. Comm’n, 135 Ariz. 369, 373 (App. 1983) (“[I]t is the duty of the [ALJ] to resolve all conflicts in the evidence, and . . . to determine which of the conflicting testimony is more probably correct.”). Accordingly, because sufficient evidence supports the ICA’s award, we affirm. 1

CONCLUSION

¶11 For the foregoing reasons, we affirm the ICA award.

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

1 To the extent that Gomez believes she has work restrictions as a result of any permanent impairment related to the industrial back injury, that issue remains to be further litigated following issuance of the administrative loss of earning capacity analysis and subsequent notice of claim status on the loss of earning capacity issue.