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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MANUEL ROMAN, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

SHIPPERS WEST TRUCKLINE, Respondent Employer,

BERKSHIRE HATHAWAY HOMESTATE INS CO., Respondent Carrier.

No. 1 CA-IC 19-0046

Special Action – Industrial Commission

ICA Claim No. 20133-160251

Carrier Claim No. 55020573

The Honorable Rachel C. Morgan, Administrative Law Judge

AFFIRMED

COUNSEL

Thomas C. Wilmer, PC, Phoenix

By Thomas C. Wilmer

Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix

By Gaetano J. Testini

Counsel for Respondent

FILED 9-29-2020
2

Cross & Lieberman, P.A., Phoenix

By Lawrence H. Lieberman

Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.

C R U Z, Judge:

¶1 This is a special action review of an Industrial Commission of 

Arizona (“ICA”) award and decision upon review finding Manuel Roman’s 

industrial injury was medically stationary without permanent impairment 

and terminating his temporary disability and medical benefits. One issue 

is presented: whether issue preclusion prevents the award. Because we 

conclude that issue preclusion does not bar the award, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Roman worked for respondent employer Shippers West 

Truckline as a truck driver. In 2013, Roman was on the job when he slipped 

and fell from his truck, hitting his head. Shortly thereafter, he sustained a 

left subdural hematoma and underwent surgery. Roman filed a workers’ 

compensation claim, which was eventually accepted by the respondent 

carrier. He began treatment for persistent headaches and dizziness. In 

November 2014, Roman underwent an independent medical exam with Dr. 

Leo Kahn. Dr. Kahn found no objective neurological findings related to the 

industrial injury and opined that Roman was medically stationary without 

permanent impairment. The respondent carrier filed a notice of claim 

status closing Roman’s claim, and he filed a request for a hearing.

¶3 In 2015, Roman underwent neuropsychological evaluations 

with Dr. Marc Walter and Dr. Alberto Texidor. Dr. Walter diagnosed 

Roman with an undifferentiated somatoform disorder triggered by the 

industrial injury and an adjustment disorder with mixed anxiety and 

depressed mood, also secondary to the industrial injury. He opined that 

although Roman’s “cognitive functioning [was] seen to be severely 

compromised most likely due primarily to his maladaptive psychological 

reaction to his injury,” he could not rule out a separate brain-related 

cognitive impairment. A “big part” of the reason Dr. Walter could not rule 
ROMAN v. SHIPPERS/BERKSHIRE

Decision of the Court

3

out a separate brain-related cognitive impairment was due to “cooperation 

issues” during testing. Dr. Walter concluded that Roman’s condition was 

not stationary and that he needed psychiatric and psychological treatment 

related to the industrial injury.1 Dr. Walter testified at the hearing that once 

Roman received the psychiatric and psychological treatment, he could be 

reevaluated to see if there was residual cognitive impairment from the brain 

injury. Dr. Walter did not render an opinion on the question of permanent 

impairment. In contrast, Dr. Texidor opined that Roman’s condition was 

stationary without permanent impairment from a neuropsychological 

standpoint and that Roman did not need supportive care.

¶4 After the contested hearings in 2015 and 2016, the 

administrative law judge (“ALJ”) resolved the conflict in the expert medical 

opinion in favor of Roman, finding the opinions and conclusions of Dr. 

Walter “regarding the need for [Roman]’s care and treatment,” to be more 

probably correct. The ALJ awarded Roman medical, surgical, and hospital 

benefits and temporary total or temporary partial disability compensation 

benefits “until such time as [Roman]’s condition is determined to be 

medically stationary.” The ALJ found that Roman had established by a 

preponderance of the evidence that he needed further active medical care, 

and accordingly did not decide whether he had a permanent impairment 

as a result of the industrial injury.

¶5 Dr. Rosalia Pereyra, a psychologist, began treating Roman in 

June 2016. Dr. Pereyra evaluated Roman and concurred with Dr. Walter’s 

diagnosis. Dr. Pereyra saw Roman for psychotherapy approximately thirty 

times over more than two years. Roman was also treated by neurologist 

Dr. Michael Epstein, who prescribed him medication for anxiety.

¶6 In October 2017, independent medical examiner Dr. Joel 

Parker, a psychiatrist, examined Roman. Dr. Parker recommended that 

Roman undergo another neuropsychological evaluation because “the 

passage of time” might make it possible to distinguish between “severe 

1 Dr. Walter’s 2015 report stated that Roman’s providers “should be 

experienced in working with individuals who somatize and tend to convert 

psychological problems and stressors and, for that matter, beliefs, into 

physical symptoms.” Dr. Walter stated that Roman needed at least twentyfive psychotherapy sessions and up to six psychiatric medication 

appointments over the course of a year, which “should be sufficient for 

active treatment.” Dr. Walter further stated that Roman might require 

additional supportive treatment following active treatment.
ROMAN v. SHIPPERS/BERKSHIRE

Decision of the Court

4

cognitive disorder or malingered cognitive impairment.” Roman did so 

with Dr. James Youngjohn in August 2018. Dr. Youngjohn diagnosed 

Roman with definite malingered neurocognitive disorder, which is coded 

in the DSM-5 as malingering. He opined that Roman was stationary from 

a psychological and neurophysiological perspective and noted that testing 

indicated that Roman deliberately chose wrong answers, “presumably in 

an effort to feign and exaggerate neurocognitive impairment.” Dr. 

Youngjohn further opined that Roman would not benefit from additional 

psychotherapy and that he had no ratable permanent neuropsychological 

or psychological impairment attributable to the industrial injury.

¶7 After Dr. Youngjohn’s evaluation, Dr. Parker opined that 

Roman did not have a neurocognitive disorder but instead had 

“malingered neurocognitive deficits . . . unrelated to the industrial injury,” 

and that he was medically stationary with no ratable impairment. He 

further concluded that Roman did not require supportive psychological or 

psychiatric care, noting that he had “received several years of 

psychotherapy with the end result being evidence of frank malingering on 

neuropsychological evaluation.”

¶8 In September 2018, the respondent carrier filed a notice of 

claim status terminating Roman’s benefits, and Roman filed a request for a 

hearing. Dr. Walter reevaluated Roman in January 2019. Dr. Walter 

diagnosed Roman with somatic symptoms disorder2 and chronic 

adjustment disorder with mixed anxiety and depressed mood. Noting that 

Roman’s “cognitive functioning remains significantly compromised most 

likely due primarily to his maladaptive psychological reaction to his 

injury,” Dr. Walter stated that he still could not rule out a separate brainrelated cognitive impairment. Dr. Walter opined that Roman’s condition

was now medically stationary, that he had a twenty percent permanent 

impairment rating due to mental and behavioral disorders, and that he 

2 Dr. Walter testified that his 2019 diagnosis of Roman was 

“essentially the same diagnosis as 2015,” except that under the new edition 

of the DSM the 2015 diagnosis of undifferentiated somatoform disorder was 

now called somatic symptoms disorder. Further, Roman’s profile on the 

personality assessment inventory was now invalid because of the 

“inconsistency elevation” on the test. Dr. Walter also testified that he could 

not render an opinion with certainty as to his rule out diagnosis of mild 

neurological cognitive disorder because Roman’s “psychological 

symptoms [were] high enough to cloud [his] ability to diagnose actual brain 

injury.”
ROMAN v. SHIPPERS/BERKSHIRE

Decision of the Court

5

needed psychological and psychiatric supportive care on a permanent 

basis.3

¶9 An ALJ held contested hearings in 2019. At the outset of the 

hearings, the parties agreed that the issues for the ALJ to decide included 

whether Roman was medically stationary, whether he should receive 

continuing benefits, and whether he had a permanent impairment as a 

result of the industrial injury.

¶10 After the hearings, the ALJ found that Roman’s testimony 

was not credible. In addition, she resolved the conflict in the medical 

evidence by adopting the opinions of Dr. Parker and Dr. Youngjohn as 

being more probably correct and well-founded. The ALJ noted that no 

doctor was advocating that Roman continue to receive active care and 

found that he did not “require any further supportive care on an industrial 

basis for either a neuropsychological or psychological condition.” The ALJ 

further found that Roman’s industrial injury was medically stationary 

without permanent impairment. She rejected Roman’s argument that issue 

preclusion applied, noting that in 2016, the issue was whether Roman had 

a compensable neuropsychological injury, but that the issue in this 

proceeding was whether he required “further supportive care for his 

neuropsychological condition found to be a compensable consequence of 

his industrial injury.”

¶11 Roman filed a request for review, and the ALJ summarily 

affirmed the award. This special action followed. We have jurisdiction 

pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(2), 

23-951(A), and Arizona Rule of Procedure for Special Actions 10.

DISCUSSION

¶12 Roman raises one issue on appeal: whether ICA was 

precluded from reconsidering the nature of his condition after finding him 

to be not stationary in 2016. Roman argues that issue preclusion should 

have prevented the ALJ from adopting the opinions of Drs. Youngjohn and 

Parker and determining he was medically stationary without the need for 

supportive care. “[T]he applicability of preclusion is a mixed question of 

fact and law.” Bayless v. Indus. Comm’n, 179 Ariz. 434, 439 (App. 1993). We 

apply a deferential standard of review to the resolution of disputed facts 

3 Roman’s treating psychologist, Dr. Pereyra, testified at the hearing 

that she agreed with Dr. Walter’s conclusions that Roman was medically 

stationary, had a permanent impairment, and needed further treatment.
ROMAN v. SHIPPERS/BERKSHIRE

Decision of the Court

6

and a de novo standard of review to the ultimate conclusion of whether the 

facts trigger preclusion. Id.

¶13 Issue preclusion applies only if an issue was litigated, 

determined, and the determination was necessary to the decision. Id. The 

party asserting preclusion has the burden of proving that the issue was 

litigated, determined, and determination of the issue was necessary. Id. In 

the workers’ compensation setting, “res judicata serves to conclude only 

those questions existing and known at the time of the award.” Stainless 

Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz. 12, 16 (1985) (internal 

quotation omitted).

¶14 Workers’ compensation claims are administered through a 

progression of separate claim stages. At each stage, a notice of claim status 

is issued and becomes final unless the claimant files a timely hearing 

request. A.R.S. § 23-947(A). A timely hearing request opens all issues 

addressed by the notice of claim status for consideration by the ALJ. See, 

e.g., Parkway Mfg. v. Indus. Comm’n, 128 Ariz. 448, 451 (App. 1981). A 

claimant becomes medically stationary when the claimant’s industrial 

injury is not subject to further improvement. Home Ins. Co. v. Indus. Comm’n, 

23 Ariz. App. 90, 94 (1975). When a physician discharges a claimant from 

active medical treatment, the physician is required to determine if the 

claimant has sustained a permanent impairment as a result of the industrial 

injury. Ariz. Admin. Code R-20-5-113(B).

¶15 To determine whether preclusion applies, we examine the 

issues raised and the evidence presented at the 2015/2016 and 2019 

hearings. See Miller v. Indus. Comm’n, 240 Ariz. 257, 259, ¶ 10 (App. 2016). 

In 2014, the respondent carrier closed Roman’s claim with no permanent 

impairment. Roman protested and asserted he needed continuing active 

medical care. At the 2015/2016 hearings, the ALJ was asked to decide if 

Roman was medically stationary or whether he needed further active 

psychological and psychiatric medical care. After adopting Dr. Walter’s 

opinion that Roman was not medically stationary, the ALJ entered an 

award in favor of Roman, authorizing the further psychological and 

psychiatric treatment recommended by Dr. Walter, “until such time as 

[Roman]’s condition is determined to be medically stationary.” Because the 

ALJ concluded that Roman was not yet medically stationary, he did not 

decide the issue of permanent impairment. See A.R.S. § 23-1047 (the right 

to a permanent disability award does not arise until a claimant’s condition 

becomes stationary).
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Decision of the Court

7

¶16 Roman underwent new evaluations in 2018 and 2019, after 

having been treated for more than two years. Dr. Walter had anticipated 

reevaluation after treatment in 2015, and in the subsequent hearings in 2019, 

Dr. Walter testified that Roman was now medically stationary and required 

supportive care. In 2019, it was undisputed that Roman was medically 

stationary, and the ALJ was asked to decide if Roman had a permanent 

impairment and whether he needed supportive (as opposed to active) 

medical care. Because Roman’s condition was not stationary at the time of 

the 2015/2016 litigation, the ALJ was not bound by the previous decision 

adopting Dr. Walter’s 2015 opinion that Roman required further active 

medical care and was not malingering.

CONCLUSION

¶17 For the foregoing reasons, we affirm the award and decision 

upon review.