Opinion
Goering, Roberts, Rubin, Brogna, Enos & Hernandez, By Pamela Treadwell-Rubin, Tucson, for Petitioners, Employer and Insurer.
The Industrial Commission of Arizona, By Laura L. McGrory, Phoenix, for Respondent.
Law Office of Leonie D. Gray, By Leonie D. Gray, Tucson, for Respondent Employee.
OPINION
PELANDER, Chief J.
¶ 1 In this statutory special action, petitioners New PCR International and its workers' compensation insurer challenge the administrative law judge's (ALJ) award granting respondent Scott Tomlinson's petition to reopen his claim. Petitioners argue the ALJ abused her discretion in denying their motion to dismiss the petition, failed to comply with the 1999 changes in the statute governing reopening, A.R.S. § 23-1061(H), and improperly grounded her award on Stainless Specialty Manufacturing Co. v. Industrial Commission, 144 Ariz. 12, 695 P.2d 261 (1985). Finding no error, we affirm the award.
BACKGROUND
¶ 2 We view the evidence in the light most favorable to sustaining the ALJ's factual findings and award and will affirm the award if it is based on any reasonable interpretation of the evidence. Rent A Center v. Indus. Comm'n, 191 Ariz. 406, ¶ 1, 956 P.2d 533, 534 (App.1998). In April 2000, Tomlinson sustained an injury to his lower back, including a herniated disc at L5-S1, while working for New PCR. His workers' compensation claim was accepted for benefits and later closed effective June 11, 2001, with a finding that he had sustained an unscheduled permanent partial disability. Thereafter, Tomlinson experienced an increase in his pain and symptoms, including sharp lower back pain and weakness in his left leg. In December 2002, Tomlinson petitioned to reopen his claim and later supported the petition with reports by Dr. Jeffrey Baron. The insurer denied the petition and moved for its dismissal. The ALJ summarily denied that motion.
¶ 3 At the ensuing hearing on the petition to reopen, the physicians called by each side, Drs. Baron and Schroeder, agreed that a series of magnetic resonance imaging tests and an electromyograph that Tomlinson had undergone showed no substantial objective change in his condition. The physician who had initially cared for Tomlinson after his 2000 injury, Dr. Fitzpatrick, had not recommended that he have surgery "in the short run" given his age and the absence of significant weakness in his leg. Consequently, Tomlinson was treated conservatively with medications, physical therapy, and epidural injections. In September 2002, Tomlinson saw Dr. Baron, who for the first time suggested that he have surgery in October. At the hearing, Baron and Schroeder disagreed on the best course of treatment for Tomlinson, but both said they considered him a candidate for a discectomy. Dr. Baron, however, also testified that a spinal fusion was a viable treatment option in light of the test results and the failure of conservative treatment.
¶ 4 The ALJ adopted as more probably correct Dr. Baron's opinions to the extent there was any conflict in the medical testimony and granted the petition to reopen. The ALJ affirmed the award on administrative review, and this statutory special action followed.
DISCUSSION
I. Motion to Dismiss
¶ 5 Petitioners first argue the ALJ abused her discretion in denying their prehearing motion to dismiss the petition. They rely on the statutory mandate that a petition to reopen "be accompanied by a statement from a physician setting forth the physical condition of the employee relating to the claim." § 23-1061(H). Under Blickenstaff v. Industrial Commission, 116 Ariz. 335, 569 P.2d 277 (App.1977), petitioners argue, the reports of Dr. Baron that Tomlinson submitted in support of his petition to reopen were insufficient because they neither offered an "objective finding which [wa]s new, additional or previously undiscovered" beyond increased, subjective pain nor showed that Baron "ha[d] performed the comparative analysis necessary to justify reopening."
Relying on Brown v. Industrial Commission, 168 Ariz. 287, 812 P.2d 1105 (App.1991), Tomlinson contends petitioners waived this issue by not raising it in their request for administrative review or otherwise pursuing it after the ALJ denied their motion to dismiss. But petitioners clearly raised the issue in their motion and obtained a ruling on it. Because those matters are "extant in the record," "this issue was appropriately preserved for appeal," even though petitioners failed to specifically raise it in their request for review. Obersteiner v. Indus. Comm'n, 161 Ariz. 547, 549, 779 P.2d 1286, 1288 (App.1989). Brown is distinguishable because there, unlike here, the petitioner failed to file a timely request for review. But to the extent petitioners challenge the ALJ's denial of their motion under Post v. Industrial Commission, 160 Ariz. 4, 770 P.2d 308 (1989), they have waived that issue by failing to raise it below.
¶ 6 "We construe workers' compensation laws 'liberally, remedially, and in a manner ensuring that injured employees receive maximum available benefits." ' Oaks v. McQuiller, 191 Ariz. 333, ¶ 5, 955 P.2d 971, 972 (App.1998), quoting Aitken v. Indus. Comm'n, 183 Ariz. 387, 392, 904 P.2d 456, 461 (1995); see also Stainless, 144 Ariz. at 16, 695 P.2d at 265. "This court deferentially reviews factual findings of the ALJ but independently reviews any legal conclusions." Young v. Indus. Comm'n, 204 Ariz. 267, ¶ 14, 63 P.3d 298, 301 (App.2003).
¶ 7 Blickenstaff dealt with an outdated and illegible physician's report that neither related the prior industrial injury to the claimant's current condition nor described a condition that was new, additional, or previously undiscovered. 116 Ariz. at 339, 569 P.2d at 281. The court held that the purpose of a physician's report is to allow an ALJ to decide a petition to reopen based on a comparative analysis. Id. It further stated "the burden is upon the petitioner to offer appropriate comparative evidence so that relevant items can be juxtaposed to establish similarities or dissimilarities." Id. Petitioners argue that Dr. Baron's reports failed to "establish[ ] the requisite prima facie case" that § 23-1061(H) and Blickenstaff require and that, therefore, the ALJ should have granted their motion to dismiss the petition.
¶ 8 Although we agree with petitioners that Blickenstaff requires a petitioner to produce a physician's report that allows comparative analysis, we do not believe the physician must provide such an analysis before the hearing. Rather, a petition to reopen complies with the statute and Blickenstaff if the claimant offers sufficient evidence to allow "relevant items" to be "juxtaposed to establish similarities or dissimilarities." 116 Ariz. at 339, 569 P.2d at 281. As the ALJ implicitly found, Tomlinson made a sufficient prima facie showing by submitting Baron's letter and reports that documented a change in Tomlinson's condition, albeit not an objective change in his physical condition. Those reports noted the failure of nonoperative treatment, demonstrating a change in medical needs when compared with the treatment authorized when the claim was closed. Baron's letter also related the condition to the claim, as § 23-1061(H) requires. In sum, we find no error in the ALJ's denial of petitioners' motion to dismiss the petition.
II. Petition to Reopen
¶ 9 Petitioners next challenge the granting of reopening itself, arguing the ALJ "misinterpret[ed] Stainless and its progeny" and failed to heed the 1999 amendment to § 23-1061(H). To have a claim reopened, a claimant must demonstrate "a new, additional or previously undiscovered temporary or permanent condition" causally related to the industrial injury. § 23-1061(H). In Stainless, our supreme court expanded the definition of "condition" as used in § 23-1061(H), stating it was not limited to physical condition and could be a change in "any attendant circumstance." 144 Ariz. at 18, 695 P.2d at 267. The court held that a claim may be reopened "when a change in physical circumstances or medical evaluation creates a need for treatment, and the legitimacy of that need was not and could not have been adjudicated at the time of the last award." Id. at 18-19, 695 P.2d at 267-68.
¶ 10 Based on a relatively recent change in § 23-1061(H), petitioners assert that reopening is unavailable if the claimant fails to prove any new, objective findings. In 1999, the legislature amended the statute by adding, inter alia, the language: "A claim shall not be reopened because of increased subjective pain if the pain is not accompanied by a change in objective physical findings." 1999 Ariz. Sess. Laws, ch. 331, § 9. Petitioners contend this amendment "effectively overruled" Stainless. The holding in that case, however, was not premised on a reopening sought for "a subjective perception of change in pain level, but rather[,] upon a change in medical procedures recommended to treat the same physical condition, where the possibility of such future need was explicitly foreseen at the time of closing." 144 Ariz. at 17, 695 P.2d at 266. Moreover, as Division One of this court later explained in a case very similar to this:
We do not regard the underscored language [in Stainless ] as a condition for the application of the Stainless rule. It would be inequitable to extend Stainless to a claimant whose physician had commented in a closing report on the possibility of a future mode of treatment but to deny it to a claimant whose physician had entertained that possibility in silence. It would likewise be inequitable to limit reopening under Stainless to claimants who suffer the predictable complications of an injury but prohibit reopening to those suffering the unpredictable. Nor do we believe the supreme court intended such a limitation.
City of Scottsdale v. Indus. Comm'n, 158 Ariz. 574, 577, 764 P.2d 335, 338 (App.1988).
¶ 11 When the legislature substantively amends a statute, we presume "it intended to create a change in the existing law." State v. Bridgeforth, 156 Ariz. 60, 63, 750 P.2d 3, 6 (1988); see also Finch v. State Dep't of Public Welfare, 80 Ariz. 226, 228, 295 P.2d 846, 848 (1956) (based on that presumption, "there is a duty on the courts 'to give effect' to statutory amendments"), quoting Beach v. Superior Court, 64 Ariz. 375, 379, 173 P.2d 79, 81 (1946); cf. State v. Lammie, 164 Ariz. 377, 379, 793 P.2d 134, 136 (App.1990) (despite that presumption, "a statutory amendment ought not to be interpreted so broadly as to destroy the entire objective of the statutory scheme"). But we also presume that, when the legislature amended § 23-1061(H) in 1999, it was aware of how Arizona courts previously had interpreted and applied that statute in Stainless and City of Scottsdale. See State v. Superior Court, 104 Ariz. 440, 442, 454 P.2d 982, 984 (1969); Jackson v. Tangreen, 199 Ariz. 306, ¶ 21, 18 P.3d 100, 105 (App.2000).
¶ 12 Had the legislature intended to totally reject and overturn Stainless and City of Scottsdale, it presumably could and would have expressly done so. See State v. Christian, 205 Ariz. 64, ¶ 20, 66 P.3d 1241, 1247 (2003) ( "Had the legislature intended such a significant change [by amending the statute], it would have expressly said so."). Absent any indication of a clear legislative intent to effect that result, we will not infer that the legislature actually intended to override those prior decisions. See Hines v. Hines, 146 Ariz. 565, 567, 707 P.2d 969, 971 (App.1985) ("Courts will not read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself.").
The parties do not refer to or rely on any legislative history in support of their arguments. Nonetheless, we note that the Senate bill (S.B. 1410) that ultimately resulted in the 1999 amendment to § 23-1061(H) in its original form apparently would have "[p]rohibit[ed] the reopening of a claim unless corroborative, objective evidence is presented of a new, additional or previously undisclosed condition." Senate Fact Sheet for S.B. 1410, 44th Leg., 1st Reg. Sess. (1999). As later revised, however, the bill actually adopted by the legislature and enacted into law did not go that far. Rather, in pertinent part, it merely "[e]stablish[ed] that a claim shall not be reopened due to a subjective increase in pain unless the increase in pain is accompanied by objective change in physical findings." Senate Final Revised Fact Sheet for S.B. 1410, 44th Leg., 1st Reg. Sess. (1999); see State ex rel. Ariz. Dep't of Revenue v. Capitol Castings, Inc., 207 Ariz. 445, ¶ 19, 88 P.3d 159, 163 (2004) (citing Senate fact sheet as evidence of legislative history). We also note that none of the available legislative history materials relating to the 1999 amendment cites Stainless or City of Scottsdale or otherwise reflects any clear legislative intent to overrule those decisions.
¶ 13 Thus, the amendment to § 23-1061(H) does not negate the holding in Stainless. We therefore hold that, although the statute now requires objective physical findings for reopening based solely on complaints of an increase in subjective pain, it does not necessarily require different or changed objective physical findings in every case. Again, if the legislature had intended to condition any reopening, regardless of the totality of circumstances, on a proven "change in objective physical findings," it could have clearly said so.
¶ 14 According to petitioners, the ALJ implicitly found that Tomlinson's continued "persisting symptoms" now justify surgery, but "the only 'persisting symptom' is the subjective pain." Although neither side disputes that Tomlinson complained of increased pain following closure of his claim, it also is uncontroverted that he still has a herniated disc at L5-S1. This continuing physical condition, coupled with the failure of nonsurgical treatment, led Dr. Baron to believe that surgery might now be suitable whereas Dr. Fitzpatrick, Tomlinson's initial treating physician, previously had not. As noted above, at the time Tomlinson filed his claim, Dr. Fitzpatrick had believed surgery was not appropriate, given Tomlinson's age and the absence of left leg weakness. But "the possibility of such future need" was not ruled out at that time. Stainless, 144 Ariz. at 17, 695 P.2d at 266. And, two-and-a-half years later, after nonsurgical treatment had failed, Dr. Baron believed additional medical procedures, including surgery, were necessary to treat Tomlinson's condition. These facts fit within the model recognized in Stainless and City of Scottsdale and, therefore, warranted a reopening of the claim.
¶ 15 Petitioners further argue that Stainless "require[s] consideration of whether the procedure at issue is novel or requires special skill to perform, neither of which was true here." By using the phrase "for instance" in its hypothetical illustration, however, the court in Stainless merely cited "a new medical treatment" as one example of a change in circumstances that would support reopening a claim. 144 Ariz. at 19, 695 P.2d at 268. The court did not limit its holding to that situation. Moreover, the court added, "[i]f the condition is unchanged but the continued symptoms make treatment appropriate where it was not before, reopening should be permitted." Id.; see also City of Scottsdale, 158 Ariz. at 577, 764 P.2d at 338 ("The previous unavailability of [a] form of treatment is simply one particularly strong justification for reopening.").
¶ 16 Under Stainless, if a physician merely changes his or her mind or new evidence is found to controvert that previously produced, reopening is not permitted. 144 Ariz. at 19, 695 P.2d at 268; see also Lovitch v. Indus. Comm'n, 202 Ariz. 102, ¶ 19, 41 P.3d 640, 644 (App.2002). But, when "there is evidence that the circumstances have changed since closing, because of a difference either in the claimant's physical condition or in the medical procedures necessary to treat that condition, reopening will be supported." Stainless, 144 Ariz. at 19, 695 P.2d at 268; see also Lovitch, 202 Ariz. 102, ¶ 17, 41 P.3d at 644. Tomlinson presented evidence that his circumstances had changed, not because of a change in his physical condition, but because of a change in the medical procedures necessary to treat that condition. Again, this evidence merits reopening of his claim. See City of Scottsdale, 158 Ariz. at 577, 764 P.2d at 338 (a physician's change of view "of the desirable modality of care" may support reopening a claim when "the pivotal change in medical recommendation is from conservative care to surgery"). To hold otherwise would force claimants to seek a surgical option in the first instance, fearing that, if their condition remains static and does not respond favorably to conservative treatment, they may not later seek surgical treatment when more conservative measures fail. See id. at 577, 764 P.2d at 338 ("Conservative treatment attempts relief without the cost, risk, or invasive attributes of surgery. By nature a trial process, at the outset[,] such treatment provides no certainty of success .... The legitimacy of ... surgery could not be litigated until the continuity of symptoms warranted such surgery.").
¶ 17 In this case, as in Stainless, the award was not based merely on a finding of increased pain, but rather, on the " 'evolution of medical opinion" ' as a "new or additional" condition. 144 Ariz. at 20, 695 P.2d at 269. Because the evidence reasonably supports the ALJ's reopening of Tomlinson's claim and because the award is not contrary to law, we have no basis for overturning it.
DISPOSITION
¶ 18 The award is affirmed.
FLÓREZ, P.J., and ESPINOSA, J., concurring.