Opinion
No. 1 CA-IC 14-0077
09-24-2015
KENNIE P. MIXON, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, GOODWILL INDUSTRIES CENTRAL ARIZONA, Respondent Employer, LIBERTY MUTUAL INSURANCE CORPORATION, Respondent Carrier.
COUNSEL Kennie P. Mixon, Phoenix Petitioner Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Cross & Lieberman, PA, Phoenix By Donald L. Cross Counsel for Respondent Employer and Respondent 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
No. ICA 20101-450236
The Honorable Joseph L. Moore, Administrative Law Judge
AWARD AFFIRMED
COUNSEL Kennie P. Mixon, Phoenix
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Cross & Lieberman, PA, Phoenix
By Donald L. Cross
Counsel for Respondent Employer and Respondent Carrier
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Maurice Portley joined. OROZCO, Judge:
¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award. For the following reasons, we affirm the ruling of the Administrative Law Judge (ALJ) that Kennie P. Mixon's claim was non-compensable.
FACTS AND PROCEDURAL HISTORY
¶2 Mixon worked for Goodwill Industries Central Arizona (Goodwill), assisting one of Goodwill's stores with processing donated items. While pulling a floor jack, Mixon was struck by commercial laundry bins that were stacked and being moved on a forklift. Mixon asserted that the bins hit his "whole left side" including his face and eye. Mixon complained of neck, back, rib, and eye injuries after the incident. Mixon testified that all the injuries except for his eye "resolve[d]. . . for the most part." Mixon admitted that several procedures had been performed on the injured eye before the workplace incident. Mixon also stated that he received Social Security disability because he is "legally blind" and that he "had visual problems all [his] life."
¶3 Karen Resendiz, the store manager at Goodwill, testified that Mixon was struck on his "side," but not his head. Resendiz stated that Mixon was not knocked to the ground and that the forklift was going "less than five" miles per hour when it struck Mixon. Resendiz stated that she took Mixon to the company nurse and that Mixon complained only of a "tingling" in his arm. The company nurse's report noted "Bruises, Contusions, Other Blunt Injuries" on Mixon's lower left arm.
¶4 Mixon testified that he saw his ophthalmologist, Kathleen Carriker, MD, within a few weeks of the accident and received treatment for pressure in his eye. However, medical records from Dr. Carriker did not contain any record for a visit at the time that Mixon testified he sought treatment. Dr. Carriker's records showed that Mixon's first visit after the accident occurred seven months after the accident.
¶5 Dr. Carriker testified that Mixon told her about his workplace accident when he saw her seven months later, and she diagnosed him at that time with traumatic glaucoma with a "contusion/concussion of the eyeball." Dr. Carriker stated that the injured eye was suffering from a higher pressure level than the other eye, and she prescribed medicine to lower the pressure. Dr. Carriker testified that she did not believe the previous procedures completed on Mixon's eye contributed to his condition. Dr. Carriker also testified that her "take" on Mixon's condition was that it was caused by the workplace accident. Dr. Carriker reached this conclusion because elevated eye pressure was not a symptom Mixon experienced as a result of any of the treatments he previously received.
¶6 Brian Rose, MD, another ophthalmology specialist, also examined Mixon and reviewed his medical records. Dr. Rose stated that he believed the problems in Mixon's eye stemmed from longstanding conditions related to his "abnormally long myopic eye." Dr. Rose testified that he saw "no definite indication" of glaucoma and that Mixon displayed no nerve tissue damage associated with glaucoma. Dr. Rose concluded:
[W]ithout any contemporaneous documentation of an injury around the eye and the first evaluation being [seven] months later, and also no eyewitness account—there was an eyewitness account . . . [that] does not support there being an eye injury—there really is no medical probability that his [conditions were] related to the injury that happened [seven] months before, that was first documented [seven] months later.
¶7 In the decision upon hearing, the ALJ noted that "the causation issue is dependent, in part, upon whether [Mixon's] description of the [accident] is or is not credible." The ALJ determined that Karen Resendiz's account of the accident, particularly regarding whether Mixon was struck in the head, was credible and Mixon's testimony "noncredible." Additionally, the ALJ found Dr. Rose's medical opinion "more well-founded and probably correct." Accordingly, the ALJ found Goodwill "not liable for [Mixon's] left eye condition."
JURISDICTION AND STANDARD OF REVIEW
¶8 We have jurisdiction under Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.2 and 23-951.A (West 2015), and Arizona Rule of Procedure for Special Actions 10. 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 the light most favorable to upholding the award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).
We cite the current version of applicable statutes when no revisions material to this decision have since occurred. --------
DISCUSSION
¶9 Mixon argues that the ALJ should have relied on Dr. Carriker's testimony over Dr. Rose's because Dr. Rose was not a glaucoma specialist, only examined Mixon once, and because Dr. Carriker had treated Mixon for a period of years. Mixon points to no evidence or law supporting his argument, however. When conflicting medical evidence is presented, the ALJ is tasked with resolving the conflict. Gamez v. Indus. Comm'n, 213 Ariz. 314, 316, ¶ 15 (App. 2006). On appeal, we will not disturb the ALJ's determination unless it is "wholly unreasonable." Ortega v. Indus. Comm'n, 121 Ariz. 554, 557 (App. 1979).
¶10 In this case, it was not unreasonable for the ALJ to determine that Dr. Rose's opinion was "more well-founded and correct." Dr. Rose was a board-certified ophthalmologist and well-qualified to offer an opinion on Mixon's case. Additionally, Mixon's argument that Dr. Carriker's opinion should have been given more weight than Dr. Rose's because Dr. Rose examined Mixon only once is similar to an argument rejected by this court in Walters v. Indus. Comm'n, 134 Ariz. 597 (App. 1982). In that case, this court concluded that a trier of fact should not impart greater credibility to certain witnesses based on their previous history with a litigant. Id. at 599. Instead, this court affirmed that it is the ALJ's responsibility to weigh evidence, judge credibility, and "evaluate the nuances of witness demeanor that adds up to a conviction that one witness'[s] testimony is entitled to more weight than another." Id. On this record, we conclude that the ALJ reasonably resolved the conflict in evidence, and we will not disturb it on appeal.
CONCLUSION
¶11 The finding that Goodwill was not liable for Mixon's condition is supported by sufficient evidence. Accordingly, we affirm the ALJ's award.