Lua v. premier/zurich ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARIA LUA, Petitioner
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
PREMIER EMPLOYEES SOLUTIONS,
Respondent Employer,
ZURICH AMERICAN INSURANCE COMPANY OF IL.,
Respondent Carrier.
No. 1 CA-IC 18-0026
FILED 10-25-2018
Special Action – Industrial Commission
ICA Claim No. 20171590170
Carrier Claim No. 2010300877
The Honorable Paula R. Eaton, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Maria D. Lua, Chandler
Petitioner
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Lester Norton & Brozina, Phoenix
By Rachel Parise Brozina
Counsel for Respondent Employer and Respondent Carrier
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig
joined.
J O N E S, Judge:
¶1 In this statutory special action, Maria Lua challenges an
Industrial Commission of Arizona (ICA) award and decision upon review
finding her back injury was not compensable. For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On May 9, 2017, Lua was advised by Premier Employees
Solutions (Premier) that her temporary assignment with Arizona
Production and Packaging (AZPack) had ended.1 Lua arrived at AZPack
at 4:00 a.m. the following day to ask why she had been terminated. Lua
was advised she was not scheduled to work but refused to leave the
premises until she spoke directly with AZPack’s owners. Lua’s former
supervisor, Edgar D., asked her to wait in the conference room where she
would not disturb other employees. When Edgar returned a few minutes
later, Lua was laying on the floor with no apparent injuries. According to
Lua, the chair had slid out from under her when she attempted to sit down,
and she fell backward onto the floor. Edgar helped Lua back into a chair
and another employee called 9-1-1. At the same time the paramedics
1 We view the facts and inferences to be drawn therefrom in the light
most favorable to upholding the ICA’s findings and award. Polanco v.
Indus. Comm’n, 214 Ariz. 489, 490-91, ¶ 2 (App. 2007) (quoting Roberts v.
Indus. Comm’n, 162 Ariz. 108, 110 (1989)).
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LUA v. PREMIER/ZURICH
Decision of the Court
arrived to assist, local law enforcement escorted her from the property for
trespassing.
¶3 Lua filed a claim for workers’ compensation benefits, alleging
her “whole right side” from her head to her knee had been injured. This
claim was ultimately denied. In January 2018, the administrative law judge
(ALJ) found Lua was not an employee of Premier on the day of her alleged
injury and issued a decision denying Lua’s claim as non-compensable. That
decision was affirmed upon review. Lua timely requested review, and we
have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(2),2 23-951(A), and Arizona Rule of Procedure for Special Actions
10.
DISCUSSION
¶4 Lua argues the ICA’s award and decision are unsupported by
the evidence. We disagree.
¶5 “To prove compensability, the claimant must establish all the
elements of h[er] claim,” including that she was an employee at the time of
her injury. W. Bonded Prods. v. Indus. Comm’n, 132 Ariz. 526, 527 (App. 1982);
see also Ariz. Const. art. 18, § 8 (providing for a scheme of workers’
compensation benefits “to be paid to any such workman, in case of his
injury”); A.R.S. §§ 23-901(6) (defining “employee” and
“workman”), -906(A) (limiting the liability of employers who comply with
workers’ compensation laws for the injury or death “of an employee”).
Although the ALJ heard conflicting evidence regarding Lua’s employment
status on May 10, 2017, it is for the ALJ, as the trier of fact, to “resolve all
conflicts in the evidence.” Post v. Indus. Comm’n, 160 Ariz. 4, 8 (1988) (citing
Perry v. Indus. Comm’n, 112 Ariz. 397, 398 (1975), and Phelps Dodge Corp. v.
Indus. Comm’n, 121 Ariz. 75, 77 (App. 1978)). “Where more than one
inference may be drawn, the [ALJ] may choose either, and this Court will
not disturb the [ALJ]’s conclusion unless it is wholly unreasonable.” Royal
Globe Ins. v. Indus. Comm’n, 20 Ariz. App. 432, 434 (1973) (citing Malinski v.
Indus. Comm’n, 103 Ariz. 213, 217 (1968)).
¶6 Here, the ALJ accepted the testimony of Premier and AZPack
employees that Lua had been terminated from her assignment at AZPack,
and notified of her termination, the day prior to her alleged injuries.
Although Lua presented competing evidence, we cannot say the collective
2 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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LUA v. PREMIER/ZURICH
Decision of the Court
testimony of the other workers, or the ALJ’s reliance thereon, is wholly
unreasonable, and therefore find no error.
¶7 Lua also complains of what she perceives to be irregularities
in the procedure of processing her claim. While we are sensitive to her
concerns, a conscientious review of the record reveals Lua was given notice
and a meaningful opportunity to be heard and the claim was processed in
accordance with applicable law. Lua has therefore failed to prove
reversible error on this basis.
CONCLUSION
¶8 The ICA decision and award are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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