 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Coulter v. Industrial Commission of Arizona9/14/2000
AWARD SET ASIDE
Petitioner ("Claimant") seeks Rule 10 special action review of an Industrial Commission of Arizona ("Commission") Award and Decision Upon Review dismissing her Petition to Reopen. Claimant timely filed letters from her treating physician that supported reopening, but her treating physician died prior to the hearing. Because the authoring doctor's death prevented cross-examination, the Administrative Law Judge ("ALJ") ruled that the letters could not be admitted as a matter of law and dismissed the Petition for lack of supporting medical evidence. We conclude that the ALJ had discretion to consider the report despite the unavailability of cross-examination. We accordingly set aside the Award and Decision Upon Review.
HISTORY
Claimant fractured her left ankle in 1979 in a non-industrial accident. In 1991, she suffered a compensable industrial injury including a left ankle sprain. The 1991 claim was closed without permanent impairment.
In 1994, Claimant filed a Petition to Reopen her claim, alleging a new or additional condition related to her 1991 industrial injury. See Ariz. Rev. Stat. Ann. ("A.R.S.") ยง 23-1061(H) (Supp. 1999); e.g., Sneed v. Industrial Comm'n, 124 Ariz. 357, 359, 604 P.2d 621, 623 (1979). In support of the Petition, Claimant submitted two letters by her treating orthopedic surgeon, Howard P. Aidem, M.D. The first, addressed to another of Claimant's doctors, recapitulated the history of the fracture and subsequent industrial injury, summarized Dr. Aidem's examination and X-ray findings, diagnosed degeneration of the left ankle joint, and recommended a fusion. The second, addressed to Claimant's attorney, stated that the "ankle degenerative process for which a fusion is indicated . . . appears to be reasonably related to her work related injury and I can testify to this with certainty."
Respondent Carrier ("Home") referred Claimant for an independent medical examination by Douglas Kelly, M.D. Dr. Kelly apparently agreed that Claimant suffered from degeneration of the ankle joint and needed a fusion, but concluded that her condition was not related to the 1991 injury. Home timely requested subpoenas for Dr. Kelly and for Dr. Aidem. See Ariz. Admin. Code ("A.A.C.") R20-5-141, 155(C)-(D) (Supp. 99-3).
Dr. Aidem responded to Dr. Kelly's report in a letter reiterating his opinion that Claimant's condition was related to her 1991 industrial injury. Dr. Aidem stated that his opinion was based substantially on Claimant's history and that he found Claimant credible. Claimant timely filed this letter. See generally A.A.C. R20-5-155 (Supp. 99-3).
Illness prevented Dr. Aidem from appearing to testify, and the ALJ placed the case on the inactive calender. Dr. Aidem subsequently died.
The ALJ notified the parties that "In view of Dr. Aidem's death, I see no alternative to entering an award denying applicant's Petition To Reopen." Neither party responded within the time provided and the ALJ issued an award dismissing Claimant's Petition to Reopen. The ALJ ruled:
Because of the death of Dr. Aidem, applicant does not have medical evidence to support the Petition to Reopen she filed in 1994 and her Petition to Reopen and Request for Hearing must be dismissed. This is, of course, without prejudice to any further petition or petitions applicant might choose to file.
The same day that the award was entered, Claimant submitted a letter belatedly objecting to the ALJ's earlier notice. Claimant asserted that Dr. Aidem's timely filed "office notes . . . are exempt from the rule otherwise prohibiting reliance on hearsay evidence." Claimant stated she
Page 1 2 3 4 Arizona Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|