Opinion
No. 2 CA-IC 2014-0017
03-06-2015
DANIEL CORONADO, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, NESCO RESOURCES, Respondent Employer, ACE AMERICAN INSURANCE COMPANY, Respondent Insurer.
COUNSEL Daniel Coronado, Tucson In Propria Persona The Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson By Eric W. Slavin Counsel for Respondent Employer and Insurer
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Special Action - Industrial Commission
ICA Claim No. 20133500272
Insurer No. C494C3645950/812
Thomas A. Ireson, Administrative Law Judge Gary M. Israel, Administrative Law Judge
AWARD AFFIRMED
COUNSEL Daniel Coronado, Tucson
In Propria Persona
The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson
By Eric W. Slavin
Counsel for Respondent Employer and Insurer
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 In this statutory special action, Daniel Coronado challenges the administrative law judge's (ALJ) award denying his claim for workers' compensation benefits. He essentially argues there was insufficient evidence to support the award. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the ALJ's award. Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 2, 275 P.3d 638, 641 (App. 2012). In August 2013, Coronado began working for Nesco Resources, an employment agency, which sent him to B.E. Aerospace to sand aircraft parts. The following month, he started experiencing back pain and went to a chiropractor, Dr. William Ornelas, who faxed a note to Nesco excusing Coronado from work for two days. Upon receiving that fax, Stephanie Portillo, a Nesco recruiter who is in charge of workers' compensation claims, contacted Coronado to inquire about his injury. According to Portillo, Coronado said he "really didn't know what had happened" to cause his back pain, but he "mentioned working on a roof over the weekend at his home." Coronado declined to fill out a report for the injury.
The statement of facts in Coronado's opening brief does not contain any citation to the record, as required by Rule 13(a)(5), Ariz. R. Civ. App. P. Accordingly, we rely on the answering brief and our own review of the record for this recitation of the facts. See State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, n.1, 963 P.2d 334, 336 n.1 (App. 1998).
¶3 In December 2013, Coronado reported to Nesco that he had sustained an industrial injury when he "lifted [a] bin at work" in September 2013. Portillo referred Coronado to Nesco's medical provider for evaluation. The doctor who examined Coronado concluded he had "a straightforward case of muscle strain," but the doctor was "kind of puzzled as to why" Coronado's condition had lasted from September through December.
¶4 Shortly thereafter, ACE American Insurance Company, Nesco's insurer, denied the workers' compensation claim, and Coronado filed a request for a hearing. The record from the hearing included a November 2013 letter from the chiropractor, Ornelas, who stated Coronado's "constant bending and twisting at the waist and . . . lifting of heavy objects [at work] contributed to his symptoms." The record also included an independent medical examination report, in which Dr. Gary Dilla found "no clinical evidence of an ongoing muscular sprain/strain" and "no objective evidence to support an injury occurring at work in September 2013."
¶5 The ALJ issued his findings of fact and conclusions of law, denying workers' compensation benefits. The ALJ found Coronado had failed to establish that he sustained an industrial injury in September 2013 and had failed to timely report the injury pursuant to A.R.S. § 23-908. Coronado filed a request for review, and the ALJ affirmed the prior decision. This petition for special action followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10, Ariz. R. P. Spec. Actions.
Discussion
¶6 As a preliminary matter, we note that Coronado's opening brief does not comply with Rule 13(a), Ariz. R. Civ. App. P. Of particular note, Coronado failed to develop or support his arguments with any legal authority or citations to the record. Despite Coronado's pro se status, he is held to the same standards as an attorney. See Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, ¶ 16, 17 P.3d 790, 793 (App. 2000). Coronado's lack of compliance with Rule 13(a) could constitute a waiver of the issues raised. See Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007). However, because we prefer to resolve cases on their merits, we will attempt to address Coronado's arguments. See Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App. 1984).
Pursuant to Rule 10(k), Ariz. R. P. Spec. Actions, the Rules of Civil Appellate Procedure apply in this matter. See also Heredia v. Indus. Comm'n, 190 Ariz. 476, 478, 949 P.2d 969, 971 (1997). Additionally, "we cite the current version[] of [the Rules of Civil Appellate Procedure] throughout this decision because no revisions material to this decision have since occurred." Eurofresh, Inc. v. Graham County, 218 Ariz. 382, n.1, 187 P.3d 530, 531 n.1 (App. 2007).
Sufficiency of the Evidence
¶7 Coronado argues the ALJ erred by crediting Portillo's testimony that he had told her the injury occurred on the roof of his house. He also challenges Dilla's opinion about his MRI results and his work restrictions. Coronado essentially asks this court to reweigh the credibility of Portillo and Dilla, something we will not do. See Mission Ins. Co. v. Indus. Comm'n, 114 Ariz. 170, 173, 559 P.2d 1085, 1088 (App. 1976). Our review is limited to "determining whether or not the [ALJ] acted without or in excess of its power" and whether the findings of fact support the award. A.R.S. § 23-951(B). In conducting that review, we defer to the ALJ's factual findings but review questions of law de novo. Grammatico v. Indus. Comm'n, 208 Ariz. 10, ¶ 6, 90 P.3d 211, 213 (App. 2004).
Magnetic resonance imaging.
¶8 Here, referring to the opinions of Ornelas and Dilla, the ALJ noted there was "a material conflict in the medical opinion as to whether [Coronado] probably sustained an industrial injury." But, based on the "inconsistences in the evidence," which presumably included Portillo's statement about where Coronado had told her the injury had occurred, and Dilla's medical opinion concerning the nature and scope of Coronado's injuries, the ALJ concluded Coronado had failed to establish an industrial injury occurred in September 2013.
¶9 The ALJ "is the sole judge of witness credibility." Holding v. Indus. Comm'n, 139 Ariz. 548, 551, 679 P.2d 571, 574 (1984). The ALJ also resolves conflicts in the evidence, Johnson-Manley Lumber v. Indus. Comm'n, 159 Ariz. 10, 13, 764 P.2d 745, 748 (App. 1988), including those among medical experts, Carousel Snack Bar v. Indus. Comm'n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367 (1988). "When more than one inference may be drawn, the [ALJ] may choose either, and we will not reject that choice unless it is wholly unreasonable." Johnson-Manley Lumber, 159 Ariz. at 13, 764 P.2d at 748; see also Perry v. Indus. Comm'n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975).
¶10 Accordingly, we will not judge the credibility of Portillo or Dilla or reweigh the evidence, as Coronado urges us to do. We will, however, review the record to determine whether sufficient evidence supports the ALJ's decision that Coronado failed to establish an industrial injury. See Johnson-Manley Lumber, 159 Ariz. at 13, 764 P.2d at 748; see also § 23-951(B). At the hearing, Coronado admitted he did not initially know what had caused his back pain in September, saying he thought it was "just . . . knots." Nearly three months later, in December, he claimed to have realized the injury was work related. But, even then, Coronado could not pinpoint the exact day the injury had occurred, testifying it could have occurred either September 11, 12, or 13, but he was "thinking" it occurred on September 11. Moreover, Dilla concluded there was no objective clinical evidence that an industrial injury had occurred in September 2013, calling any such injury "speculative." The evidence supports the ALJ's award.
In his opening brief, Coronado asserts the injury occurred on September 13.
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Failure to Timely Report
¶11 The ALJ's determination that Coronado had failed to timely report his injury pursuant to § 23-908 provides an additional basis for us to affirm. Cf. Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, ¶ 25, 10 P.3d 1181, 1190 (App. 2000) (we may affirm on any ground supported by record). Section 23-908(E) provides: "When an accident occurs to an employee, the employee shall forthwith report the accident and the injury resulting therefrom to the employer." If an employee fails to comply with this requirement, "no compensation shall be paid for the injury claimed to have resulted from the accident." § 23-908(F). An employee may avoid this sanction, but only if he establishes that "the circumstances attending the failure . . . to report the accident and injury are such as to have excused them," id., or, in the alternative, that the employer was not prejudiced by the delay, Douglas Auto & Equip. v. Indus. Comm'n., 202 Ariz. 345, ¶ 12, 45 P.3d 342, 345 (2002). See also Magma Copper Co. v. Indus. Comm'n, 139 Ariz. 38, 43-44, 676 P.2d 1096, 1101-02 (1983) (claimant's inability to immediately understand connection between work and injury and lack of prejudice to employer may provide justifiable excuse).
¶12 In this case, the ALJ found that Coronado "believes he may have injured his back when he lifted folded material into a trash bin without being able to bend his knees on September 11, 12 or 13, 2013" and "eventually began seeing a chiropractor" but "did not report a work injury until December 4, 2013." Accordingly, the ALJ concluded Coronado "did not forthwith report a work injury." The ALJ also determined Coronado had failed to establish that Nesco was not prejudiced by the delay and thus found no "justifiable basis to excuse the late reporting."
¶13 Again, sufficient evidence supports the ALJ's decision. See Pac. Fruit Express v. Indus. Comm'n, 153 Ariz. 210, 215, 735 P.2d 820, 825 (1987); see also § 23-951(B). At the hearing, Portillo testified that, despite her multiple conversations with Coronado about his injury, he never "directly" indicated he was hurt at work until he reported the injury on December 4. Coronado claimed he was unaware that work had caused his back pain until then. But he began seeing Ornelas on September 16, and, at that time, told Ornelas he thought "his work duties, twisting and lifting heavy objects, may have led to his pain." Additionally, Ornelas opined in November that Coronado's work "contributed to his symptoms," but Coronado still did not report the injury until December.
Disposition
¶14 For the foregoing reasons, we affirm the ALJ's award.