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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KEVIN JONES, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

DAISY MOUNTAIN FIRE DISTRICT, Respondent Employer,

COPPERPOINT INSURANCE COMPANY, Respondent Carrier.

No. 1 CA-IC 20-0022

Special Action - Industrial Commission

ICA Claim No. 96092-893057

Carrier Claim No. 96-10498

The Honorable Amy L. Foster, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Lawrence P. Nicholls PC, Phoenix

By Lawrence P. Nicholls

Sarkisov & Roesch PLLC, Phoenix

By George V. Sarkisov

Co-Counsel for Petitioner Employee

FILED 4-6-2021
2

Industrial Commission of Arizona, Phoenix

By Gaetano J. Testini 

Counsel for Respondent

CopperPoint Insurance Company, Phoenix

By Chiko F. Swiney

Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Cynthia J. Bailey joined.

C A T T A N I, Judge:

¶1 Kevin Jones challenges an Industrial Commission of Arizona 

award and decision upon review denying him ongoing supportive care

related to a 1996 industrial injury. For reasons that follow, we affirm the 

award.

FACTS AND PROCEDURAL BACKGROUND

¶2 Jones was exposed to an unknown white powder, later 

reported to be an “organophosphate,” while working as a firefighter in 

1996. His treating physician, Dr. Michael Gray, diagnosed (1) 

“[o]rganophosphate induced delayed onset vocal cord paralysis, with 

paradoxical closing of the cords on inspiration, secondary to organophosphate 

induced delayed onset neuropathy involving the laryngeal nerve,” (2) 

“reactive airways disease with very severe small airway obstruction, moderate 

large airway obstruction, and moderate restrictive respiratory defect,” (3) 

“[p]roinflammatory immune toxicity state secondary to organophosphate 

exposure,” and (4) “[t]oxic encephalopathy confirmed by limited 

neuropsychological testing.”

¶3 Jones’s claim was closed in 1999 with an award for permanent 

and total disability. Around the same time, the predecessor to carrier 

CopperPoint Insurance Company issued a notice authorizing supportive 

care, to be reviewed annually, including four to six doctor visits per year

plus medications and lab work as managed by Dr. Gray. Over the next 20 

years, Dr. Gray had Jones on a regimen of quarterly blood draws along with 

medications and supplements designed to remove toxins from his system 
JONES v. DAISY/COPPERPOINT

Decision of the Court

3

and replace vitamins that the cleansing removes, and CopperPoint covered 

this supportive care program.

¶4 In 2019, however, CopperPoint notified Jones that the blood 

draws and laboratory testing would no longer be covered. Jones requested 

relief under A.R.S. § 23-1061(J) on the basis that CopperPoint’s decision 

denied him benefits to which he was entitled, later asserting that 

CopperPoint was estopped from denying responsibility for his medical 

condition. CopperPoint denied wrongdoing and sent Jones to be evaluated 

by three doctors, including toxicologist Dr. Daniel Brooks.

¶5 The case went to a hearing before an administrative law judge 

(“ALJ”) on the issue of whether supportive care related to the 1999 

diagnoses remained appropriate. Jones testified about the exposure 

incident and his condition over the following 20 years. Dr. Gray testified 

about the care he had provided over that period and opined that Jones 

continued to suffer the effects of neurotoxicity stemming from his exposure

to an organophosphate. Dr. Gray recommended as medically necessary 

continued supportive care including bronchodilators, medications, 

periodic pulmonary function testing, a toxin cleansing protocol, and overthe-counter supplements, with lab work two to four times per year.

¶6 Dr. Brooks testified to the contrary that Jones no longer 

suffered symptoms related to the industrial injury and thus did not require 

supportive care. Dr. Brooks explained that during the July 2019 evaluation, 

Jones reported ongoing subjective symptoms, but a physical examination 

showed no unusual objective findings. Dr. Brooks acknowledged that 

Jones initially had vocal cord dysfunction but opined that all resulting 

symptoms had since resolved, and he testified that none of the care 

provided by Dr. Gray was medically necessary or related to the industrial 

injury. Dr. Brooks expressly disagreed with Dr. Gray’s 1999 diagnoses and 

testified that the treatment regimen overseen by Dr. Gray did not comport 

with the standard of care. Dr. Brooks also testified, however, that even 

assuming the 1999 diagnoses were accurate, no related symptoms remained 

active and no ongoing supportive care was necessary.

¶7 The ALJresolved the conflict in medical evidence by adopting 

Dr. Brooks’s opinion as more credible and thus issued an award denying 

further supportive care. Jones requested administrative review, again 

asserting that CopperPoint was precluded from denying his need for 

supportive care, but the ALJ affirmed the award. Jones petitioned for 

review, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(2), 23-

951(A), and Rule 10 of the Arizona Rules of Procedure for Special Actions.
JONES v. DAISY/COPPERPOINT

Decision of the Court

4

DISCUSSION

¶8 On review of a workers’ compensation award, we defer to the 

ALJ’s factual findings but independently review the ALJ’s legal 

conclusions. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). 

We will affirm if, considering the evidence in the light most favorable to 

upholding the decision, reasonable evidence supports the award. Lovitch v. 

Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).

¶9 Jones first argues that because his diagnoses were litigated to 

a final judgment in 1999 and the carrier issued a notice providing 

supportive care at that time, CopperPoint is now precluded from disputing 

his need for supportive care related to his industrial injury. While 

principles of preclusion apply to workers’ compensation awards generally, 

see Circle K Corp. v. Indus. Comm’n, 179 Ariz. 422, 425–27 (App. 1993),

preclusion only bars relitigation of facts or claims that have been actually 

litigated and determined by a valid final judgment. Red Bluff Mines, Inc. v. 

Indus. Comm’n, 144 Ariz. 199, 204–05 (App. 1984). Here, because the carrier 

voluntarily issued a notice providing supportive care, the issue of 

supportive care was never litigated.

¶10 Contrary to Jones’s contention, the unprotested notice of 

supportive care—which was expressly subject to annual review—did not 

become a final adjudication entitled to preclusive effect. See Capuano v. 

Indus. Comm’n, 150 Ariz. 224, 226–27 (App. 1986) (contrasting notices of 

claim status, which become final adjudications and res judicata under § 23-

947(B) if not timely protested, with notices of supportive care, which “may 

be reviewed and adjusted at any time, under A.R.S § 23-1061(J), without 

resort to the formal reopening procedures required to alter notices of claim 

status”); see also Bank One Corp. v. Indus. Comm’n, 226 Ariz. 134, 136, ¶ 7 

(App. 2010). CopperPoint’s voluntary payment of supportive care subject 

to annual review did not determine with finality that Jones’s industrial 

injury would require supportive care forever. See Capuano, 150 Ariz. at 226–

27.

¶11 Nevertheless, Jones argues that preclusion applies here under 

Brown v. Industrial Commission, 199 Ariz. 521 (App. 2001), which recognized 

an exception to the general rule that notices of supportive care do not bar 

later adjustment. Id. at 524, ¶ 14. But Brown addressed finality and 

preclusion when entitlement to supportive care benefits was in fact litigated 

and decided by an ALJ. See id. at 522–23, ¶¶ 3, 6; see also Bank One, 226 Ariz. 

at 136, ¶ 8. Jones’s entitlement to supportive care was not previously 

litigated; his reliance on Brown is thus misplaced.
JONES v. DAISY/COPPERPOINT

Decision of the Court

5

¶12 Finally, Jones contends that the ALJ erred by adopting Dr. 

Brooks’s opinion because it was based on a faulty foundation. Jones 

highlights Dr. Brooks’s disagreement with Dr. Gray’s long-accepted

diagnoses from 1999 and asserts that this disagreement fatally undermines 

Dr. Brooks’s opinion that no ongoing supportive care was necessary. See 

Desert Insulations, Inc. v. Indus. Comm’n, 134 Ariz. 148, 151 (App. 1982) 

(recognizing that an underlying material factual inaccuracy may 

undermine medical testimony). But although Dr. Brooks did disagree with 

the initial diagnoses, he also testified that even assuming the 1999 diagnoses 

were accurate, no further supportive care was necessary. The record 

provides an adequate basis for Dr. Brooks’s opinion, based on his records 

review and physical examination, that Jones no longer suffered active 

symptoms related to the industrial injury necessitating supportive care. 

The ALJ thus had a reasonable basis to adopt Dr. Brooks’s opinion over Dr. 

Gray’s, see Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988); Perry 

v. Indus. Comm’n, 112 Ariz. 397, 398–99 (1975), and we do not reweigh the 

evidence on appeal. Salt River Project v. Indus. Comm’n, 128 Ariz. 541, 544 

(1981). 

CONCLUSION

¶13 The award is affirmed.