Mendoza v. arledge/copperpoint

M
                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   JULIO MENDOZA, Petitioner Employee,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
           ARLEDGE HAY COMPANY, Respondent Employer,
     COPPERPOINT INSURANCE COMPANIES, Respondent Carrier.

                              No. 1 CA-IC 20-0006
                               FILED 02-04-2021

               Special Action - Industrial Commission
                    ICA Claim No. 20003-460054
                     Carrier Claim No. 0034301
  The Honorable Michael A. Mosesso, Chief Administrative Law Judge

      DISMISSED IN PART AND AWARD SET ASIDE IN PART


                                    COUNSEL

Stevens & Van Cott, PLLC, Scottsdale
By Charles C. Van Cott
Counsel for Petitioner Employee

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

CopperPoint Insurance Company, Phoenix
By Sharon M. Hensley, Mark A. Kendall
Counsel for Respondent Employer and Carrier
               MENDOZA v. ARLEDGE/COPPERPOINT
                     Decision of the Court



                      MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.


W E I N Z W E I G, Judge:

¶1            Julio Mendoza petitions for review of Industrial Commission
of Arizona orders designating him a vexatious litigant and denying his
most recent request for leave to be heard under A.R.S. § 23-1061(J). We lack
jurisdiction over his vexatious litigant designation but set aside the
Commission’s denial of his request for leave.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Mendoza severely injured his left hand in 2000 while working
as a machine operator for Arledge Hay Company. A finger was amputated,
and Mendoza has suffered chronic pain ever since. Mendoza successfully
applied for worker’s compensation benefits from CopperPoint Insurance
Company. The Commission closed Mendoza’s claim in 2008, assessing a
permanent impairment of 40 percent and terminating active medical care
and temporary compensation.        Even so, the Commission ordered
CopperPoint to pay for some of Mendoza’s continuing physician visits and
pain medication.

¶3           Since then, Mendoza has filed several petitions for the
Commission to reopen his claim. Mendoza first petitioned the Commission
to reopen his claim in November 2009 based on his treating physician’s
diagnosis of Reflex Sympathetic Dystrophy (“RSD”), also known as
Complex Regional Pain Syndrome. CopperPoint countered with the
opinions of two physicians who disagreed with the diagnosis. An ALJ
denied Mendoza’s request, finding the physicians retained by CopperPoint
to be more reliable and persuasive. The ALJ ordered, however, that
Mendoza could receive pain treatment from a pain management specialist
at CopperPoint’s expense. On review, this court affirmed.

¶4          Mendoza again sought to reopen his claim in 2011. The
Commission denied Mendoza’s request for active medical care relating to
symptoms on his left side. Still, it reopened the claim to increase his
permanent impairment to 45 percent.



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                MENDOZA v. ARLEDGE/COPPERPOINT
                      Decision of the Court

¶5             Mendoza next petitioned to reopen in April 2012, claiming
head, neck, back and leg pain. An ALJ received evidence and argument,
including testimony from several physicians over four days. Mendoza’s
treating physician, Dr. Michael Carlton, testified that “the lack of findings
on [Mendoza’s] head and neck MRI convinced him that the pain is coming
from the industrial injury and not from some other undiagnosed
condition,” but the industrial injury was “not a [sic] responsible for
[Mendoza’s] left leg pain.” After conducting three independent medical
exams (“IME”) in 2005, 2008 and 2012, Dr. Paul Guidera testified “he could
not relate the pain in any of [Mendoza’s] other body parts to the industrial
injury,” and saw “nothing new.” The ALJ denied Mendoza’s request to
reopen in January 2013, holding:

      There is a conflict between [the physicians] regarding
      whether [Mendoza] has suffered a new, additional or
      previously undiscovered condition related to his industrial
      injury. To resolve this conflict, I accept the opinions of Dr.
      Guidera. I am persuaded that Mendoza’s injury involved
      solely his fingers and hand and that cervical nerve blocks are
      not indicated. . . . Finally, no doctor related [Mendoza’s] head,
      neck, back, or leg pain to the industrial injury and therefore
      treatment for those body parts is not part of this case.

¶6           More petitions to reopen followed in March 2013 and January
2016. CopperPoint recognized Mendoza’s continuing pain and pain
treatment but still disputed his RSD diagnoses. The Commission denied
Mendoza’s requests for epidural cervical injections but authorized stellate
ganglion block injections and medication to ameliorate pain radiating from
Mendoza’s injured hand.

      A.     Vexatious Litigant Designation (January 2017)

¶7             CopperPoint moved to designate Mendoza a vexatious
litigant in January 2017 pursuant to A.R.S. § 23-941.02(D)(1).1 Mendoza did


1       Section 23-941.02(D)(1) defines “vexatious conduct” as: (a) repeated
filing of requests for hearing, pleadings, motions or other documents solely
or primarily for the purpose of harassment; (b) unreasonably expanding or
delaying commission proceedings; (c) bringing or defending claims
without substantial justification; (d) engaging in abuse of discovery or
conduct in discovery that has resulted in the imposition of sanctions against
the pro se litigant; (e) pattern of making unreasonable, repetitive and



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                MENDOZA v. ARLEDGE/COPPERPOINT
                      Decision of the Court

not respond. After reviewing “the entirety of the Commission file,” the
Chief ALJ granted CopperPoint’s motion in March 2017 and designated
Mendoza a vexatious litigant. The ALJ’s order recounted Mendoza’s
“repeated filing of requests for relief that had been previously ruled upon
in this claim.” A.R.S. § 23-941.02(D)(1)(f). The ALJ wrote:

       2.    The filing excesses of vexatious litigants interfere with
       the orderly administration of justice by diverting judicial
       resources from those matters filed by litigants willing to
       follow the rules and those meritorious matters that deserve
       prompt judicial attention.

                                     ***

       11.     Throughout this lengthy litigation history the only
       condition consistently considered related to the industrial
       injury is [Mendoza]’s left upper extremity (left hand).
       Problems related to the cervical spine, GERD, RSD, left-sided
       body symptoms and head, neck, back, and leg pain have all
       been denied as being unrelated to the industrial episode
       during reopening litigation. . . . These have been litigated to a
       conclusion and are final. These fit within the designation of
       A.R.S. § 23-941.02(D)(1)(f) of repeated filing of requests for
       relief that had been previously ruled upon in this claim.

¶8            The ALJ assured Mendoza that the designation “Order does
not foreclose [his] access to filing in the future” but instead “requires any
new filings to be reviewed to ensure they were not previously raised and
that they are not harassing or vexatious. If it is found that the filing is not
vexatious or harassing, it will be allowed to proceed.” Moving forward, the
ALJ directed that “[a]ny motion for leave to file shall be captioned
‘Application Pursuant to Court Order Seeking Leave to File.’”

       B.     Petition for Investigation (October 2019)

¶9            Mendoza filed a “Petition for Investigation” in October 2019
under A.R.S. § 23-1061(J), which the Chief ALJ treated as a request to file.
See A.R.S. § 23-1061(J) (“The commission shall investigate and review any
claim in which it appears to the commission that the claimant has not been
granted the benefits to which such claimant is entitled.”). Mendoza sought

excessive requests for information; or (f) repeated filing of documents or
requests for relief that have been the subject of previous rulings by the
commission in the same claim.


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                MENDOZA v. ARLEDGE/COPPERPOINT
                      Decision of the Court

coverage for a spinal cord stimulator to redress his RSD and phantom limb
pain. In support, he attached recent medical reports from his physician, Dr.
Ajay Narwani. The first indicated the stimulator would help Mendoza’s
“phantom limb pain” and other pain.

¶10          A month later, Mendoza visited Dr. Kevin Ladin at
CopperPoint’s request for an IME. After reviewing Mendoza’s medical
records and conducting a personal examination, Dr. Ladin concluded:

       There are absolutely no objective findings and quite frankly
       no subjective complaints consistent with a diagnosis of
       complex [RSD] affecting the left upper extremity. . . . Mr.
       Mendoza is not felt to be an appropriate candidate for a trial
       of spinal cord stimulation nor a spinal cord stimulator
       implant.

Dr. Ladin still acknowledged, however, that Mendoza’s “current subjective
complaints and symptoms are causally related to the industrial injury . . .
and its aftermath,” and “supported by objective clinical findings.”

¶11            CopperPoint opposed Mendoza’s petition, arguing the ALJ
and the Commission already found “that [Mendoza’s] injury involved
solely his fingers,” that “no doctor related [his] head, neck, back, or leg pain
to the industrial injury,” and thus “treatment for those body parts is not
part of this case.” CopperPoint conceded it only assumed that Mendoza’s
pain-management physician recommended the spinal cord stimulator to
treat other, non-industrial related conditions.

¶12           In January 2020, the Chief ALJ denied Mendoza’s “request to
allow the processing of [his] October 18, 2019 [petition under] A.R.S. § 23-
1061(J),” reasoning the request “appears” related to his RSD diagnosis,
which the Commission had determined was unrelated to the industrial
injury and therefore not covered:

       Throughout this lengthy litigation history the only condition
       consistently considered related to the industrial injury is
       [Mendoza’s] left upper extremity (left hand). Problems
       related to the cervical spine, GERD, RSD, left-sided body
       symptoms and head, neck, back and leg pain have all been
       denied as being unrelated to the industrial episode during
       reopening litigation.     These have been litigated to a
       conclusion and are final.




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               MENDOZA v. ARLEDGE/COPPERPOINT
                     Decision of the Court

¶13           The ALJ added he reviewed Mendoza’s attached medical
records and then cited earlier ALJ decisions from January 2013 and January
2010, which “decided that any cervical spine issues were unrelated to the
industrial injury,” and “denied that [Mendoza] had RSD related to the
industrial episode and principles of res judicata apply.” The order included
no finding that Mendoza’s request was repetitive or harassing. Mendoza
seeks review by this court.

                              DISCUSSION

      A.     Vexatious Litigant Designation

¶14           Mendoza first contends the ALJ erroneously designated him
a “vexatious litigant” in March 2017. This court must independently
determine whether it has appellate jurisdiction. Baker v. Bradley, 

231 Ariz. 475

, 479, ¶ 8 (App. 2013). We do not. Mendoza needed to challenge the
ALJ’s “vexatious litigant” designation within thirty days after the decision
was issued and mailed to the parties in March 2017, A.R.S. § 23-943(H), but
he first sought review in 2020. See Smith v. Indus. Comm’n, 

27 Ariz. App. 100

, 101 (1976).

      B.     Denial of Leave

¶15           Mendoza next challenges the ALJ’s order declining to process
his request for hearing in January 2020. He argues the ALJ “included no
finding designating [his] Petition as either harassing or vexatious, as
required by the [earlier] Vexatious Litigant Order.” CopperPoint counters
that the Commission already considered and rejected Mendoza’s cervical
spine condition as causally related to his industrial injury, adding that an
earlier ALJ found that “treatment of the cervical spine” would not alleviate
pain from Mendoza’s industrial injury.

¶16           As a vexatious litigant, Mendoza needed leave from the Chief
ALJ to file a request for a hearing. A.R.S. § 23-941.02(B) (“[A vexatious]
litigant may not file a new request for hearing, pleading, motion or other
document without prior leave of the administrative law judge.”). We
review procedural rulings for abuse of discretion, Unisource Corp. v. Indus.
Comm’n, 

184 Ariz. 451

, 453 (App. 1995), and will affirm the decision if
reasonably supported by the evidence, Lovitch v. Indus. Comm’n, 

202 Ariz. 102

, 105, ¶ 16 (App. 2002).

¶17         Section 23-941.02 does not describe what a vexatious litigant
must show to secure leave to file a request for a hearing. Mendoza and
CopperPoint, however, accept the Chief ALJ’s standard:


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               MENDOZA v. ARLEDGE/COPPERPOINT
                     Decision of the Court

      Any new filings must be reviewed to (1) ensure they were not
      previously raised and (2) that they are not harassing or
      vexatious. If it is found that the pleading is not vexatious or
      harassing, it will be allowed to proceed.

¶18           Mendoza contends his October 2019 Petition and attached
medical reports facially satisfied this standard because it was “the first
time” he sought a spinal cord stimulator to redress phantom limb pain.
A.R.S. § 23-1061(J) (“The commission shall investigate and review any claim
in which it appears to the commission that the claimant has not been
granted the benefits to which such claimant is entitled.”).

¶19            On this record, the Chief ALJ erroneously denied Mendoza’s
request for hearing or investigation. Although the ALJ correctly concluded
that problems related to RSD “have all been denied as being unrelated to
the industrial episode during reopening litigation,” the ALJ did not address
whether the Commission had considered and rejected a spinal cord
stimulator for Mendoza’s phantom limb pain.

                              CONCLUSION

¶20           We lack jurisdiction over Mendoza’s untimely challenge to
his vexatious litigant designation. We set aside the Chief ALJ’s order
denying Mendoza’s request for a hearing on his claim for a spinal cord
stimulator to treat his phantom limb pain.




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


                                       7

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