Opinion
No. 1 CA-IC 17-0007
12-12-2017
ANTHONY MALDONADO, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, UNIVERSAL SITE SERVICES, Respondent Employer, ZURICH AMERICAN INSURANCE COMPANY, Respondent Carrier.
COUNSEL Snow, Carpio & Weekley, PLC, Phoenix By Chad T. Snow Counsel for Petitioner Employee Industrial Commission of Arizona, Phoenix By Jason M. Porter, Jonathan Hauer Counsel for Respondent Lester, Norton & Brozina, P.C., Phoenix By Rachel Parise Brozina 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. 20151420062
Carrier Claim No. 20102-56139
Layna Taylor, Administrative Law Judge
AWARD AFFIRMED
COUNSEL Snow, Carpio & Weekley, PLC, Phoenix
By Chad T. Snow
Counsel for Petitioner Employee Industrial Commission of Arizona, Phoenix
By Jason M. Porter, Jonathan Hauer
Counsel for Respondent Lester, Norton & Brozina, P.C., Phoenix
By Rachel Parise Brozina
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined. PORTLEY, Judge:
The Honorable Maurice Portley, retired Judge of the Arizona Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article VI, Section 3, of the Arizona Constitution.
¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") decision upon review finding the petitioner employee ("claimant") stationary and not entitled to temporary disability benefits. Three issues are presented on appeal:
(1) whether the administrative law judge ("ALJ") erred by finding the claimant failed to prove that he was entitled to receive temporary disability benefits;We find that reasonable evidence supports the ALJ's findings that the claimant was not entitled to temporary disability benefits and that his industrially-related conditions are medically stationary. Further, the Decision upon Review addressed all protested issues. We affirm the award.
(2) whether the ALJ abused her discretion by finding that the claimant's industrial injuries were limited to a neck and low back strain which were medically stationary; and
(3) whether the ALJ's Decision upon Review adequately addressed all protested issues in accordance with A.R.S. § 23-943.
JURISDICTION AND STANDARD OF REVIEW
¶2 This court has 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. 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).
PROCEDURAL AND FACTUAL HISTORY
¶3 The claimant worked for the respondent employer, Universal Site Services ("USS"), as a street sweeper driver. On April 27, 2015, he was injured driving a sweeper that was struck in the side by a motor vehicle. The claimant filed a workers' compensation claim, and the respondent carrier, Zurich American Insurance Company ("Zurich") issued a notice of claim status ("NCS") accepting the claim as no time lost ("NTL"). The claimant timely protested Zurich's NTL acceptance. Following a September 22, 2015 independent medical examination ("IME"), Zurich closed the claimant's claim with no permanent impairment, finding him medically stationary. The claimant again protested, and his hearing requests were combined. The ALJ held four hearings and heard testimony from the claimant, a superior at USS, and two physicians.
See generally A.R.S. § 23-1061(F), (M) (explaining no temporary disability benefits are payable unless the claimant loses more than seven days from work); Arizona Workers' Compensation Handbook ("Handbook") § 9.4.1.3, at 9-11 (Ray J. Davis, et al., eds., 1992 and Supp. 2015).
¶4 The claimant testified that he had worked as a street sweeper since 2006, the last two years for USS. He mostly performed ADOT contract work on highways. While pulling out of the yard at Pima Road and 7th Street, the claimant's sweeper was struck on the right front tire by a passenger vehicle. He testified that he was slammed around inside the metal console and felt dazed, but he did not go to the hospital.
¶5 The claimant testified that a couple of days later, he developed numbness on his left side, burning in his feet, pain in his lower back, and swelling in his neck and shoulders. He spoke to USS about his symptoms and was told to see his own doctor. He selected chiropractor Roger H. Baker, D.C. Dr. Baker took the claimant off work and provided him with conservative treatment for several months. When the claimant's low back pain failed to improve, Dr. Baker recommended that he see a specialist.
¶6 The claimant saw Sanjay R. Patel, M.D. Dr. Patel obtained an MRI, provided prescription medication, and released him to return to light work. The claimant was also referred to Terry McLean, M.D. Dr. McLean recommended nerve testing for the claimant's neck and left arm symptoms and injections for a herniated lumbar disc.
¶7 The claimant testified that he returned to his regular work at USS for two weeks following his injury based on the recommendation of a Concentra physician. He stated that his employer placed him on a reduced schedule of thirty-five hours per week. USS discharged the claimant on May 18, 2015, because its insurance carrier refused to continue insuring him. Several months later, the claimant found a new job at ADOT within Dr. Patel's recommended physical limitations.
¶8 Raymond Marshburn, senior vice-president of operations at USS, testified that USS hired the claimant in February 2014, and he worked as a sweeper driver on an ADOT contract cleaning highways. Marshburn stated that to remain employed at USS, drivers must be insurable. USS terminated the claimant after its insurance company deemed him to be an unacceptable driver. The evidence established that the claimant had an accident in August 2014, when he damaged a shade structure at an apartment complex, and in April 2015, when he was pulling out of the USS lot onto 7th Street. He also was cited for striking a car while sweeping in a construction zone. Marshburn testified that the claimant's termination had nothing to do with his industrial injury or his workers' compensation claim.
The ALJ file contains a letter USS sent to ADES, when the claimant filed for unemployment benefits. The letter stated that the claimant was discharged for having two at-fault accidents within one year.
¶9 Dr. Patel testified that he saw the claimant for his April 27, 2015 injury. He received a history of the industrial injury, reviewed the claimant's industrially-related medical records, and performed a physical examination. The doctor diagnosed cervical strain/sprain; lumbar strain/sprain; left upper and lower extremity pain, numbness, and tingling; and bilateral foot numbness and tingling. Dr. Patel obtained neck and low back imaging studies that revealed degenerative changes and facet arthrosis throughout the claimant's spine, as well as a disc protrusion at C6- 7 and several disc extrusions at L4-5 and L5-1. Based on these findings, Dr. Patel recommended a consultation with Dr. McLean. He testified that when he last saw the claimant on October 6, 2015, the claimant was not medically stationary and he required additional active medical treatment.
¶10 Dr. McLean examined the claimant on September 24, 2015, reviewed his imaging studies, and authored a report. He received a history of the claimant striking his left arm and elbow on the sweeper's metal console during the accident, and he reported "a markedly positive Tinel's in his left elbow at the cubital tunnel, caus[ing] paresthesias extending in the ulnar digits of his left hand." Dr. McLean diagnosed "[w]hiplash associated disorder, left cubital tunnel syndrome with ulnar neuropathy[, and lumbar] disc herniation 5-1 and bilateral S-1 radiculitis," which he related to the industrial injury. He recommended electrodiagnostic studies, physical therapy, epidural injections, and diagnostic median branch blocks.
¶11 Dr. Dilla testified regarding his September 22, 2015 IME of the claimant. He reviewed the claimant's industrially-related medical records and diagnostic tests, took a history of the motor vehicle accident, and performed a physical examination. In taking the history, Dr. Dilla testified that he specifically asked the claimant about trauma to his left elbow and he denied that any occurred. The doctor noted that this history was consistent with Concentra's May 15, 2015 records that contained no left arm complaints. He testified that his only objective finding on examination was an "early mild peripheral neuropathy" unrelated to the industrial injury. Dr. Dilla opined that the claimant's industrial injury was permanent and stationary with no work restrictions or need for supportive care.
¶12 Following the hearings, the ALJ entered an award erroneously addressing compensability, which was not at issue, and both parties requested administrative review. The ALJ then entered a decision upon review modifying the award, which denied temporary disability benefits and found the claimant stationary with no permanent impairment. The claimant appealed.
DISCUSSION
¶13 The claimant first argues that the ALJ erred by failing to award him temporary disability benefits. Temporary disability benefits are paid based on "the difference between the wages earned before the injury and the wages that the injured person is able to earn thereafter." See A.R.S. § 23-1044(A).
If the employee is unable to . . . continue working in any employment after the injury due to the employee's termination from employment for reasons that are unrelated to the industrial injury, the commission may consider the wages that the employee could have earned from that employment as representative of the employee's earning capacity . . . .Id. at -1044(D).
¶14 In this case, the ALJ found that the claimant had failed to meet his burden of proving entitlement to temporary disability benefits:
With respect to the applicant's entitlement to temporary compensation through the closure date, the applicant worked until he was taken off work when he first saw Dr. Baker on May 8, 2015. He was released to regular work by the Concentra physician seven days later on Friday, May 15, 2015, and terminated by the defendant employer the following Monday, May 18, 2015, due to the employer's liability carrier no longer being willing to insure the applicant after several accidents. The applicant resumed doing the same or similar work for another employer in August, 2015. The applicant's termination from the defendant employer was for reasons unrelated to the injury. As the defendants point out in their request for review, had he not been terminated due to liability insurance issues, he would have been able to continue working for the defendant employer. The fact that another employer hired him to do similar work in August, 2015, and presumably did not consider him uninsurable for liability insurance purposes does not, on the evidence in this record, compel a conclusion that the employer actually terminated him for reasons related to the injury. Therefore, the applicant is not entitled to temporary disability benefits.
The claimant also argues that the ALJ failed to resolve evidentiary conflicts necessary to ascertain his entitlement to temporary disability benefits. We disagree. The ALJ specifically rejected the claimant's credibility leaving Mr. Marshburn's testimony regarding his separation from work uncontradicted.
¶15 In Arizona DPS v. Industrial Commission, the Arizona Supreme Court discussed various reasons for termination from employment and their effect on employability. 176 Ariz. 318 (1993). It recognized that, "The basic rule is simply stated: '[T]he law should compensate for losses attributable to industrial injuries, but not for losses attributable to other factors.'" Arizona DPS, 176 Ariz. at 321.
Various factors may affect whether a job is "suitable" and/or "available." The administrative law judge must make a determination, based on all the facts and circumstances, whether and to what extent the worker's disability has prevented employment. . . . This determination must be made in each case, regardless of whether the employee resumed the former job and then lost it, or the reasons why it may have been lost.Id. at 322 (citations omitted).
In a 2009 statutory amendment, the legislature expressly modified Arizona DPS, "to the extent that the court opinion precludes consideration of wages earned from employment from which the employee has been terminated for reasons unrelated to the industrial injury." 2009 Ariz. Sess. Laws, ch. 184, § 7 (1st Reg. Sess.).
¶16 In this case, the ALJ made very specific findings about the reasons for the claimant's inability to continue working for USS after the accident. He found that the claimant's poor driving record had made him uninsurable by USS's liability carrier. This finding is bolstered by evidence in the record that the claimant had three separate accidents during his two years of employment. He was cited for one and disciplined for failing to report another. USS also reported to ADES that the claimant was terminated for two at-fault accidents in a one-year period. The ALJ concluded that but for the claimant's poor driving record, he would have been able to continue in his date-of-injury employment. For that reason, his loss of earnings was not related to his industrial injury.
The claimant's subsequent ability to become reemployed is not relevant here, and we will not speculate about his ability to become reemployed. --------
¶17 The claimant next argues that the ALJ ignored "unanimous medical evidence" when she found the claimant stationary without awarding continuing benefits for his left arm. To be entitled to receive continuing medical benefits, the claimant had the burden of proving that his physical condition was causally related to his industrial injury and that he was not yet medically stationary. See, e.g., Lawler v. Indus. Comm'n, 24 Ariz. App. 282, 284 (1975). Unless this causal connection is readily apparent, it must be established by expert medical testimony. McNeely v. Indus. Comm'n, 108 Ariz. 453, 455 (1972).
¶18 In this case, the claimant initially reported left arm pain in his worker's report of injury. When he was seen two weeks later at Concentra, the record contains no mention of a left arm injury. Subsequently, the claimant gave both Drs. Patel and McLean a history of left arm injury and ongoing pain and numbness. But when the claimant saw Dr. Dilla, the doctor specifically asked about trauma to his left arm and the claimant denied any.
¶19 The ALJ is the sole judge of witness credibility. Holding v. Indus. Comm'n, 139 Ariz. 548, 551 (App. 1984). He may consider inconsistent medical histories in making a credibility determination. See, e.g., Husky Fence Co., Inc. v. Indus. Comm'n, 138 Ariz. 21, 25 (App. 1983). The ALJ "may . . . reject a claimant's testimony . . . if it is self-contradictory, inconsistent with other evidence, or directly impeached." Holding, 139 Ariz. at 551.
¶20 It is the ALJ's duty 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, and his conclusion will not be disturbed unless it is wholly unreasonable. Reynolds Metal Co. v. Indus. Comm'n, 22 Ariz. App. 349, 352 (1974). Based on the ALJ's rejection of the claimant's credibility and the inconsistencies in the evidence regarding a left arm injury, we cannot say that the ALJ erred by finding the claimant medically stationary.
¶21 The claimant last argues that the ALJ's Decision upon Hearing and Findings and Award in which she addressed compensability should set aside for new hearings. On administrative review, an ALJ has very broad discretion to revise the award, and "may affirm, reverse, rescind, modify or supplement the award and make such disposition of the case as is determined to be appropriate." A.R.S. § 23-943(F). In the absence of a clear abuse of discretion, this court will not set aside an award because of the ALJ's decision in a request for review. Howard P. Foley Co. v. Indus. Comm'n, 120 Ariz. 325, 327 (App. 1978).
CONCLUSION
¶22 In this case, the ALJ corrected an error in her Award on administrative review. This was within her statutory authority. We perceive no reason to set aside the Award for new hearings. Because the record contains ample evidence to support the ALJ's decision upon review, we affirm.