Arizona Court of Appeals Division One Affirms Workers’ Compensation Award, Holding That (1) Medical Testimony Supported Award and (2) Prior Award Finding That Injury Was Not Medically Stationary Did Not Preclude Later Award Finding That Injury was Only a Temporary Aggravation.

In July 1990, while working for Cemex, Jose Aguayo suffered an industrial injury.  He had two surgeries for a herniated disc.  His workers’ compensation claim was accepted and closed with ten percent permanent impairment and work restrictions.  He returned to work at Cemex.

In May 2010, Aguayo suffered another industrial injury to his back while working at Cemex.  He filed another workers’ compensation claim.  The claim was accepted and closed following an independent medical examination.  Aguayo challenged the closure of this claim and also petitioned to reopen his 1990 injury claim.  The issues were consolidated.  After a hearing, an administrative law judge denied the request to reopen the prior claim but found that the new injury was not medically stationary and that Aguayo was entitled to continuing benefits to treat the aggravation of his back condition.  This award became final.    

Aguayo continued to receive treatment and, in December 2011, reported pain to his treating physician. 

In January 2012, an independent medical examination found that Aguayo was stationary with no permanent impairment related to his 2010 injury.  The insurer relied on the medical examination to close the workers’ compensation claim.  Aguayo challenged the closure of his claim.  After a hearing, an administrative law judge found that the 2010 injury caused only a temporary aggravation of the preexisting back condition and entered an award for temporary disability benefits.  The award was summarily affirmed on administrative review.

Aguayo filed a special action with the Court of Appeals, presenting two issues on appeal:  (1) whether the medical testimony supported the award, and (2) whether the administrative law judge was precluded from finding that the 2010 injury was only a temporary aggravation.

The Court of Appeals affirmed the award.  The Court reviewed the record and determined that the medical testimony supported the award.  The medical expert had testified that certain symptoms began six weeks after the 2010 injury; according to the record, the symptoms began one month after the injury.  But the Court found that this was not sufficient to undermine the doctor’s opinion.  The Court also held that issue preclusion did not apply.  The earlier award established that Aguayo’s preexisting degenerative back condition was aggravated by his 2010 injury and had not yet become stationary.  But that did not establish permanent injury, which requires a showing that the “claimed permanent injury was in fact caused, ‘triggered’ or contributed to by the industrial injury, and was not merely the result of a natural progression of the preexisting disease.”  Arellano v. Indus. Comm’n, 25 Ariz. App. 598, 604, 545 P.2d 446, 452 (1976). 

Judge Thompson authored the opinion; Judges Gould and Swann joined.