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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
v.
AWARD AFFIRMED
COUNSEL
MEMORANDUM DECISION
S W A N N, Judge:
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DRAKE v. AZ CARDINALS et al.
Decision of the Court
4 The ALJ held seven ICA hearings and heard testimony from
the claimant, four orthopedic surgeons, and two psychologists. He then
entered an award denying the petitions to reopen, but awarding supportive
care for the claimants cervical and lumbar spine injuries. The claimant
timely requested administrative review, and the ALJ supplemented and
affirmed the award. The claimant next brought this appeal. This court has
jurisdiction pursuant to A.R.S. 12-120.21(A)(2), 23-951(A) and Arizona
Rules of Procedure for Special Actions 10.
DISCUSSION
8 In July 1995, the claimant injured his right shoulder and filed
a workers compensation claim. The injury was described as acute
bursitis/cuffitis. His claim was accepted for benefits and closed with no
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DRAKE v. AZ CARDINALS et al.
Decision of the Court
Dr. Shapiros testimony reasonably supports the ALJs refusal to reopen the
1995 and 1997 claims.
1 The comparison dates for the 1995 injury are September 12, 1995, the
date of the last closure, and May 22, 2014, the date the petition to reopen
was filed. The comparison dates for the 1997 injury are December 15, 1997,
the date of the last closure, and May 22, 2014, the date the petition to reopen
was filed.
2 Because Dr. Barbour was unaware of the condition of the right
shoulder at the time of the 1995 and 1997 closures, he could not provide
testimony as to a change in condition occurring between the requisite dates.
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Decision of the Court
11 On April 12, 2004, the claimant filed his first petition to reopen
his cervical claim. It was denied for benefits, but the parties entered into a
compromise and settlement agreement to reopen the claim, award the
claimant a 28% whole person impairment, and provide him a lump sum
payment of $30,000. The claim was reclosed effective April 14, 2004.
15 On April 12, 2004, the claimant filed his first petition to reopen
his lumbar claim. It was denied for benefits, but the parties entered into a
compromise and settlement agreement which reopened the claim and
awarded the claimant a 13% whole person impairment and a lump sum
payment of $10,000. The claim was reclosed effective April 14, 2004.
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DRAKE v. AZ CARDINALS et al.
Decision of the Court
3 The claimant argued that his claim should have been reopened to
award him the increased permanent impairment (29%) found by
Dr. Bendiks. But the doctor was unable to definitively attribute the
increased impairment to the claimants football-related activities rather
than his genetics. The ALJ reasonably rejected his opinion.
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DRAKE v. AZ CARDINALS et al.
Decision of the Court
unless the claim is filed with the commission by the employee . . . in writing
within one year after the injury occurred or the right thereto accrued. This
court repeatedly has held that the ICA does not acquire jurisdiction over a
workers compensation claim until a formal claim for benefits has been
filed. See Noble v. Indus. Commn, 140 Ariz. 571, 574 (App. 1984); Fed Mart v.
Indus. Commn, 135 Ariz. 533, 536 (App. 1982); Sun Control Tile v. Indus.
Commn, 117 Ariz. 268, 270 (App. 1977). Issues of jurisdiction cannot be
waived and may be raised at any time. Van Sickle v. Indus. Commn, 121
Ariz. 115, 117 (App. 1978). For these reasons, we hold that the ALJ erred by
considering the claimants petition to reopen his right-knee-injury claim.
V. MENTAL INJURIES
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DRAKE v. AZ CARDINALS et al.
Decision of the Court
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(Emphasis added.)
29 The claimant argues that the good cause for his newly filed
trauma claims is found in Dr. Shapiros hearing testimony given on August
12, 2015. The difficulty with this position is that this same evidence was
contained in Dr. Shapiros September 10, 2014 IME report, which was filed
on September 16, 2014, almost a year before the claimant filed his new
claims. Given the procedural posture of this case at the time the new claims
were filed, we cannot say that the ALJ abused his discretion by referring the
claims to the ICA for administrative processing.
CONCLUSION