Opinion
No. 1 CA-IC 18-0068
05-02-2019
MARCO P. SALDANA IZQUIERDO, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, OXFORD FINANCIAL LLC, Respondent Employer, REPUBLIC INDEMNITY COMPANY OF CALIFORNIA, Respondent Carrier.
COUNSEL Marco P. Saldana Izquierdo, Gilbert Petitioner In Propria Persona Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent, ICA Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix By R. Todd Lundmark, Danielle S. Vukonich Counsel for Respondents Employer and Carrier
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Special Action - Industrial Commission ICA Claim No. 20173-100056
Carrier Claim No. R00067731
The Honorable Michelle Bodi, Administrative Law Judge
AWARD AFFIRMED
COUNSEL Marco P. Saldana Izquierdo, Gilbert
Petitioner In Propria Persona Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent, ICA Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix
By R. Todd Lundmark, Danielle S. Vukonich
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge James B. Morse Jr. and Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award and decision upon review denying Marco P. Saldana Izquierdo's (petitioner)'s claim for workers' compensation. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Petitioner worked for Certified Benz & Beemer, a car dealership, as a lot attendant. Petitioner claimed to have injured himself at work on Saturday, October 21, 2017. Petitioner's last day at work was October 25, 2017, when he quit his job. At the ICA hearing, petitioner testified that just before 2:00 on October 21, a supervisor named Valerie told him to "hurry up" with his duties because she was ready to close the garage ramp door. He then drove a car up to the second floor of the garage and started running down the garage ramp, where he injured his right knee. According to petitioner, he told Valerie about the injury right after it happened. He then bicycled home.
While testifying, petitioner gave three different times for the accident: 11:59, 1:59, and 2:59. He then clarified that the correct time was 1:59 because the service department closed at 2:00 on Saturday. Another witness, Tyson Muse, testified that the service department closed at 3:00 on Saturday.
¶3 Amanda Schneider (fka Amanda Geiser), Benz & Beemer's office manager, testified that she handled the employer's compensation claims in October 2017. Although petitioner testified that he was "very sure" he reported the injury to Schneider on Monday October 23, Schneider testified that she was out of the office on vacation from Monday October 23, 2017 until Monday October 30, 2017 when she returned to work. Schneider testified that she did not hear about petitioner's alleged injury until October 30 when petitioner's supervisor Tyson Muse told her he was sending petitioner to her to discuss the injury. Petitioner told her that the injury occurred on October 23, not October 21, and Schneider filed a report of injury. Petitioner later told Schneider the injury occurred on October 21. Schneider filed a new report of injury, because the employer's insurance coverage had changed on October 22. The new report of injury listed October 21 as the date petitioner was injured. However, Schneider testified that she examined petitioner's time records and he did not work on either October 21, a Saturday, or October 23, a Monday. Schneider further testified that she was familiar with the ramp petitioner claimed to have been injured on, and if petitioner had run down the ramp it would have taken him to the other side of the building, away from Valerie. Although Valerie was responsible for closing a garage door, it was not the garage door at the end of the ramp described by petitioner.
¶4 Petitioner's supervisor, Tyson Muse testified that he and petitioner both worked on Friday, October 20, 2017, and petitioner did not report being injured that day. Petitioner came to work on Monday, October 23 and reported an injury to Muse but he did not clock in because he reportedly was in pain. Muse instructed petitioner to talk to Schneider. Petitioner did not tell Muse when the injury occurred. According to Muse, the service department would not have closed the ramp garage door because the sales department stayed open later on Saturdays (until at least 6:00 p.m.) and might need to take a car out of the garage for a test drive. Any service department employee, such as petitioner or Valerie, working on a Saturday, would work from 8 a.m. to 3 p.m. (not 2:00 p.m.) when the service department closed. (Id.). Muse testified that petitioner's version of events did not make sense because Valerie would not have closed the ramp garage door at 2:00 p.m. on a Saturday. He also testified that he thought the time records showing that petitioner did not work on Saturday October 21 were correct. Muse was familiar with the ramp petitioner said he injured himself on and said it would be "very strange" for someone to run down the ramp because of how steep the ramp was.
Petitioner's urgent care records listed October 20, 2017 as the date petitioner was injured. Other medical records listed the date of injury as October 21, 2017.
¶5 A notice of claim status was issued in November 2017 denying petitioner's claim for workers' compensation benefits. Petitioner filed a request for hearing. After a two-day hearing, the administrative law judge (ALJ) issued a decision upon hearing and findings and award for a non-compensable claim. Petitioner filed a request for review, and the ALJ supplemented and affirmed the decision. Petitioner filed a petition for special action in this court in September 2018. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(2) (2019), 23-951(A) (2019), and Arizona Rules of Procedure for Special Actions 10.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
¶6 In reviewing findings and awards of the ICA, we defer to the ALJ's factual findings, but review questions of law de novo. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We consider the evidence in a light most favorable to upholding the ALJ's award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16 (App. 2002). It is the ALJ's duty, as the trier of fact, to resolve all conflicts in the evidence and to draw all warranted inferences. Malinski v. Indus. Comm'n, 103 Ariz. 213, 217 (1968). When more than one inference may be drawn from the evidence, the ALJ may choose either; this court will not disturb the ALJ's decision unless it is wholly unreasonable. Id.
¶7 Petitioner argues that 1) his employer falsified his time records and lied at the hearing, 2) the employer's witness Schneider lied when she said petitioner did not work on October 21 because he punched in and punched out that day, 3) he requested that Muse and Valerie be subpoenaed because they would confirm his story but they did not show up for the hearing. Petitioner claims that his rights were violated and his attorney did not believe in him, and he seeks justice on appeal. He attaches several pictures to his brief that were not part of the record.
¶8 At the outset, we note that petitioner's opening brief fails to comply with the Arizona Rules of Civil Appellate Procedure. Arizona Rule of Civil Appellate Procedure (ARCAP) 13(a)(5) requires "[a] statement of facts relevant to the issues presented for review, with appropriate references to the record." Rule 13(a)(6) requires "[a] statement of the issues presented for review." Rule 13(a)(7) requires an argument section containing the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the legal authorities and parts of the record relied on. Petitioner's opening brief fails to provide a statement of the relevant facts in the case or an issue statement. Nor does it contain citations to the record or authorities. The opening brief fails to even minimally comply with ARCAP 13. We may dismiss the appeal for this reason. See Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342-43 (App. 1984). However, in our discretion we have reviewed the ALJ's decision and find that, viewing the facts in the light most favorable to the award as we must, the decision was not "wholly unreasonable."
We hold pro per litigants to the to the same standard as attorneys. Higgins v. Higgins, 194 Ariz. 266, 270, ¶ 12 (App. 1999). --------
¶9 The petitioner had the burden to affirmatively prove his claim by a preponderance of the evidence. See Brooks v. Indus. Comm'n, 24 Ariz. App. 395, 399 (1975). Here, the ALJ found that although medical records demonstrated that petitioner injured his right knee sometime around October 21, 2017, a preponderance of the evidence did not establish that the knee injury occurred while petitioner was at work.
¶10 The ALJ's decision was based on reasonable evidence. Petitioner testified that he was injured on October 21, 2017, but the employer's time records showed that he did not work that day. Petitioner repeatedly gave different dates for the injury to his medical providers and his employer. The ALJ further noted that there was a conflict in the evidence regarding the layout of the garage and its ramps; she resolved the conflict in favor of the employer and we will not disturb that determination on appeal.
¶11 As to petitioner's argument that the employer's witness lied at the hearing, it was the ALJ's duty to judge the credibility of the witnesses and determine what testimony to accept as true. Russell v. Indus. Comm'n, 98 Ariz. 138, 145 (1965); Rowe v. Goldberg Film Delivery Lines, 50 Ariz. 349, 354 (1937). And although petitioner complains that Muse and Valerie did not testify, Muse did so on the second day of the hearing. The ALJ issued a subpoena for Valerie (who no longer worked for the employer) on behalf of both sides, but she did not appear at either of the hearing dates or respond to phone calls from the employer's attorney. After the second hearing date, the ALJ allowed petitioner's counsel nearly a month to attempt to contact Valerie and procure her testimony before the court would deem the matter submitted. Counsel was unable to do so and notified the court accordingly. We find no error. Finally, we do not consider the exhibit to petitioner's opening brief because it consists of evidence that was not in the record below. See Magma Copper Co. v. Indus. Comm'n, 139 Ariz. 38, 47 (1983) ("the time for presentation of evidence is at the hearing before the Commission.").
CONCLUSION
¶12 For the foregoing reasons, we affirm the ALJ's decision upon hearing and findings and award for non-compensable claim and the decision upon review.