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Lovitch v. Industrial Commission of Arizona2/5/2002
Redesignated by Order filed 3/7/02
AWARD AFFIRMED
Petitioner Susan Lovitch requests this court to set aside an Industrial Commission award dismissing her January 12, 2000, Petition to Reopen her 1993 claim after it found that the issues raised were previously litigated, final, and res judicata. The sole issue raised is whether the evidence supports Administrative Law Judge ("ALJ") Overholt's conclusion that Lovitch's Petition to Reopen was barred by the doctrine of res judicata. We agree with Judge Overholt's decision and therefore affirm.
FACTUAL AND PROCEDURAL HISTORY
Initial Injury
Lovitch sustained an industrial injury on July 21, 1993, while working as a dental hygienist when she opened a faulty dental instrument sterilizing unit and inhaled Vapo-Sterile steam, a product that in solution form is made up of 72% ethanol (alcohol) and 0.23% formaldehyde. Lovitch thereafter suffered throat irritation, occasional coughing severe enough to produce mucus and decreased oximetry readings, subjective difficulty in breathing, anxious rapid breathing, chest discomfort and "vague malaise."
Lovitch's industrial insurance carrier, the State Compensation Fund ("Fund"), accepted the claim, but subsequently terminated Lovitch's temporary benefits without permanent disability effective April 22, 1994. Lovitch then requested a hearing, which was subsequently held over seven dates from March 15, 1995 through January 12, 1996 and presided over by ALJ Little. Multiple expert witnesses testified during the hearing.
Dr. Curry, who was board-certified in medical toxicology and emergency medicine, examined Lovitch on March 28, 1994, and diagnosed a "psychogenic vocal cord spasm" that originated from the larynx and was "triggered by odors, stress, etc." He suggested that vocal cord spasm "(whether intentional or unintentional)" explained Lovitch's "bark-like cough" and "lack of response to antiasthmatics." Dr. Curry testified that "chemical exposure does not cause psychogenic vocal cord [dysfunction] . . . unless we are now speaking of an anxiety reaction." He declined to render a causal opinion on the "hysterical nature" of the condition "because I'm not a psychologist or a psychiatrist."
Neither Mamiko Odegaard, Ph.D., Lovitch's psychological expert, nor Jack Tuber, M.D., her pulmonary specialist, testified about vocal cord dysfunction. Irwin Finkelstein, M.D., a psychiatrist who examined Lovitch, testified that she had no permanent psychiatric or psychological conditions causally related to her industrial injury . Gerald Schwartzberg, M.D., a pulmonary specialist who examined Lovitch and was aware of Dr. Curry's diagnosis and Lovitch's ongoing symptoms, testified that Lovitch's industrial injury was medically stationary without permanent impairment.
Regarding the vocal cord spasm diagnosed by Dr. Curry, ALJ Little found that Dr. Curry "was of the opinion that [Lovitch] has numerous complaints, but could not, within a reasonable degree of medical probability, causally relate any of the problems to applicant's industrial injury ." ALJ Little additionally found no permanent pulmonary, neurological, or psychological conditions causally related to the industrial injury and therefore closed the claim without permanent impairment. This court affirmed the award in a November 26, 1999, memorandum decision, which held that ALJ Little's award implicitly adopted Dr. Finkelstein's and Dr. Schwartzberg's opinions rather than those of Dr. Odegaard and Dr. Tuber.
1997 Award
Lovitch filed a Petition to Reopen on December 24, 1996, supported by a report from Kaye H. Kilburn, M.D., w
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