Jimenez v. erickson/indemnity ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND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
MACARIO A. JIMENEZ, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
ERICKSON CONSTRUCTION CO., Respondent Employer,
INDEMNITY INS. CO. OF NA/CONSTITUTION STATE SVC,
Respondent Carrier.
No. 1 CA-IC 14-0015
FILED 1-22-2015
Special Action – Industrial Commission
ICA Claim No. 20123-140250; Carrier Claim No. 127CBEPE7030R
The Honorable Michael A. Mosesso, Administrative Law Judge
AFFIRMED
COUNSEL
Macario A. Jimenez, Phoenix
Petitioner In Propria Persona
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent ICA
Lester & Norton P.C., Phoenix
By Rachel Parise Brozina
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.
H O W E, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for a non-compensable
claim. Macario Jimenez argues that the administrative law judge (“ALJ”)
erred in finding that he failed to establish a reasonable excuse for not
forthwith reporting his accident and injury, and thus, he failed to establish
a compensable claim. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 October 12, 2012, Jimenez was working on a roof as part of his
job for Erickson Construction. While on top of the roof, he slipped and fell.
Jimenez did not think he was injured, so he did not tell anyone at work. A
few days later, Jimenez woke up with back pain and went to the hospital as
a result. He complained to the emergency room (“ER”) doctor of pain
“upon waking up this morning,” but denied “any recent trauma or
exertion.” The doctor gave him medication and put him on light duty at
work. Jimenez gave the doctor’s note to his supervisor, Richard Dawson,
but he did not mention the accident. Jimenez returned to the ER on October
21, as well as saw his family doctor on October 22 and 24, and November 2
for back pain.
¶3 On November 5, Jimenez met with Moisey Prewitt, Erickson’s
safety coordinator, and other Erickson employees to discuss his accident.
Jimenez told Prewitt that he was having back problems and that it might
have been caused by a work-related injury. Prewitt investigated the claim.
He asked Jimenez’s crewmates, foreman, and superintendent questions
about the claim. None had knowledge that Jimenez injured himself that
week and wrote statements reflecting their lack of knowledge.
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¶4 On November 7, Jimenez reported his October 12 accident to
the ICA. The ALJ heard testimony from Jimenez, Prewitt, and other
Erickson employees, as well as Doctors Tristan Pico and Zoran Maric.
Jimenez’s crewmate testified that he did not see Jimenez fall or get hurt on
October 12. He also testified that Jimenez never indicated that he was
having difficulty working, complained of back pain, or asked for help with
his work. Dawson testified that Jimenez never reported any work-place
injury to him and that the only physical problem Jimenez mentioned to him
was gout. When asked about the doctor’s note, Dawson denied having
received it. Jimenez’s field superintendent testified that Jimenez brought
him a doctor’s note regarding his gout, but not one for back pain. He also
stated that Jimenez never reported any injury to him and no one from the
company has told him that he or she saw Jimenez slip and fall or injured
his back.
¶5 Dr. Pico, a board certified anesthesiologist and pain
management specialist, testified that he evaluated Jimenez on November 6.
After examining Jimenez, Dr. Pico’s working diagnosis was lumbar
radiculitis, lumbar facet arthrosis, and sacroiliitis. The doctor prescribed
epidural injections and pain medicine. Dr. Pico opined that although
Jimenez’s medical records did not mention any work-related injuries, his
accident could have caused his back pain, but that was dependent on
Jimenez’s reliability as a historian.
¶6 Dr. Maric, a board certified orthopedic spine surgeon,
testified that he examined Jimenez on March 27, 2013. He reviewed
Jimenez’s medical records, including several MRI reports. After examining
Jimenez, Dr. Maric made no objective orthopedic or neurologic findings.
He testified that it was “imperative that we correlate the patient’s
complaints with the MRI scan findings. In this case, there’s clearly no
correlation.” He also testified that the history Jimenez gave to the ER doctor
on October 14 contradicted the history Jimenez gave to him. Dr. Maric
opined that no relationship existed between Jimenez’s back pain and the
accident.
¶7 The ALJ ordered that Jimenez “take nothing” from Erickson
and the insurance carrier. The ALJ found that between Dr. Pico’s and Dr.
Maric’s opinions, it adopted Dr. Maric’s opinion as “being most probably
correct.” It noted that Jimenez “denied trauma and provided no history of
the work injury to the emergency room, but described a history of waking
up two days after the injury with pain and no intervening pain.” The ALJ
also found that Jimenez failed “to forthwith report” his injury and did not
provide information to Erickson until November 5, which “caused a delay
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Decision of the Court
for defendants to investigate this injury, thus prejudicing defendants.”
Moreover, Jimenez failed to establish a reasonable excuse for the failure to
forthwith report his injury. Consequently, Jimenez failed to establish a
compensable claim. Jimenez filed a request for review, but the ALJ
affirmed. This petition for review followed.
DISCUSSION
¶8 Jimenez argues that the ALJ erred in finding that he failed to
establish a reasonable excuse for not forthwith reporting his accident and
thus did not establish a compensable claim. 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, 63 P.3d 298, 301 (App. 2003). We will sustain an award
if it is reasonably supported by the evidence, Lawson v. Indus. Comm’n, 12
Ariz. App. 546, 547, 473 P.2d 471, 472 (1970), which is considered in a light
most favorable to upholding the award, Lovitch v. Indus. Comm’n, 202 Ariz.
102, 105 ¶ 16, 41 P.3d 640, 643 (App. 2002). Because the ALJ’s findings are
reasonably supported by the record, the ALJ did not err.
¶9 An employee who suffers an accident must report the
accident and injury resulting therefrom to the employer “forthwith.” A.R.S.
§ 23–908(E). If the employee fails to comply with this requirement, then “no
compensation shall be paid for the injury claimed to have resulted from the
accident.” Id. § 23–908(F). The ALJ may relieve the employee of this sanction
“if it believes after investigation that the circumstances attending the failure
. . . are such as to have excused” the failure to forthwith report. Id. § 23–
908(E). The employee has the burden to prove facts that establish an excuse
for his or her failure to forthwith report, and the absence of prejudice to the
employer is but one factor in establishing a justifiable excuse. Pacific Fruit
Express v. Indus. Comm’n, 153 Ariz. 210, 215, 735 P.2d 820, 825 (1987).
¶10 Here, the ALJ found that Jimenez did not provide information
to Erickson about the October 12 accident until November 5—nearly a
month later. Jimenez testified that he did not tell anyone at work that he
had an accident because he did not think he was injured. Erickson
employees correspondingly testified that none of them witnessed Jimenez
hurting himself or having any trouble working. Jimenez also testified that
when he gave the doctor’s note to his supervisor, he did not mention the
accident. Moreover, between October 12 and November 5, Jimenez visited
the ER twice and his physician three times for back pain, but none of the
records from these visits mentioned a work-related injury. Instead, on his
first visit to the hospital—two days after his accident—Jimenez told the ER
doctor that the onset of his back pain was upon waking up that morning.
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More importantly, he denied suffering any recent trauma or exertion.
Therefore, the circumstances attending Jimenez’s failure to forthwith report
do not excuse his failure to forthwith report.
¶11 Although the parties presented conflicting medical evidence,
the ALJ was responsible for “resolv[ing] all conflicts in the evidence,
especially when the conflicts involve expert medical testimony.” Post v.
Indus. Comm’n, 160 Ariz. 4, 8, 770 P.2d 308, 312 (1989). This Court will not
disturb the ALJ’s resolution unless it is wholly unreasonable. Hackworth v.
Indus. Comm’n, 229 Ariz. 339, 343 ¶ 9, 275 P.3d 638, 642 (App. 2012). The ALJ
resolved the medical conflict by adopting the opinion of Dr. Maric because
it was consistent with Jimenez’s statement denying recent trauma and with
the fact that the medical records available to it included no history of a
work-related injury. Thus, based on all the evidence, the ALJ concluded that
Jimenez failed to establish by a reasonable preponderance any excuse for
having failed to forthwith report the industrial episode and therefore failed
to establish a compensable claim. Consequently, because the ALJ’s
resolution of the medical conflict was not wholly unreasonable and the
award was reasonably supported by evidence, we cannot find that the ALJ
erred.
CONCLUSION
¶12 For the foregoing reasons, we affirm.
:ama
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