Smith v. Hertz Corporation ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
NATALIE SMITH, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
HERTZ CORPORATION, Respondent Employer
NEW HAMPSHIRE INSURANCE CO./SEDGWICK CMS, Respondent
Carrier
No. 1 CA-IC 13-0053
FILED 2-25-2014
Special Action – Industrial Commission
ICA Claim No. 20121-370338
Carrier Claim No. 30120635448-0001
The Honorable Suzanne Scheiner Marwil, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Natalie Smith, Phoenix
Petitioner in Propria Persona
Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix
By Julie A. Doherty
Counsel for Respondent Employer & Carrier
SMITH v. HERTZ CORPORATION
Decision of the Court
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge
Samuel A. Thumma and Judge Randall M. Howe joined.
G E M M I L L, Judge:
¶1 This is a special action review of an Industrial Commission of Arizona
award and decision upon review for a noncompensable claim. The petitioner employee
Natalie Smith raises several issues on appeal: (1) whether medical testimony supporting
a finding of a compensable injury was improperly disregarded by the administrative
law judge (“ALJ”); (2) whether the peculiar risk and positional risk doctrines are
implicated here and support a finding of a compensable injury because a supervisor
was not present at the time of the incident; and (3) whether a witness’s testimony
should be stricken when that witness failed to intervene in the altercation that was the
subject of his testimony. For the following reasons, we affirm.
BACKGROUND
¶2 Beginning in March 2012, Smith worked for respondent employer Hertz
Corporation as a virtual customer service representative. On May 12, 2012, as Smith
was leaving work for the day, she exchanged words with a co-worker, Mark Ardner.
Smith testified at the administrative hearing that Ardner came toward her and pushed
her hard, with two hands on her right shoulder. Smith did not fall to the ground but
she testified that she stumbled hard and woke up the next morning with pain in her
upper neck, right shoulder, and back.
¶3 Upon returning to work the next morning, Smith ascertained the last
names of the employee involved in the incident, Mark Ardner, and a witness to the
incident, Eric Woods. She then reported the incident to the police. After an
investigation, the police took no further action because of conflicting witness accounts
of the incident.
¶4 Woods testified that he is a virtual customer service representative for
Hertz and described Ardner as a “great guy,” who worked overtime and offered to help
his coworkers. Woods testified that as Smith was leaving work on the day in question,
Ardner made a joking comment about how Smith had left work too early the night
before. Smith did not respond to the joke and said she wanted to be left alone. Ardner
proceeded to “lightly touch” her right shoulder with one hand and did not cause her to
stumble. Ardner did not testify because he had died before the hearing.
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SMITH v. HERTZ CORPORATION
Decision of the Court
¶5 On May 14, 2012, two days after the incident, Smith was sent to Concentra
for medical care, and she received pain medication, physical therapy, and a referral to
Dr. Andrea Goldberg, an internist. Dr. Goldberg performed lab work and further
imaging, and ultimately referred Smith to a psychiatrist and a doctor of sports
medicine. On June 24, 2012, Smith went to the emergency room in a lot of pain, and a
CT scan was performed that revealed cervical stenosis. The emergency room doctor
directed that Smith take five days off work.
¶6 Four months later, in November 2012, Smith saw Dr. Carlton Richie, a
Board Certified Sports Medicine doctor. Dr. Richie diagnosed neck pain from an on-
the-job injury and later added a diagnosis of clavicle pain as well. His conclusion that
the on-the-job incident caused these injuries was based on the history Smith provided
and his review of the Concentra records.
¶7 After considering the evidence, the ALJ found Woods’ testimony the most
credible; that Smith was merely touched on the shoulder, not pushed; and that she did
not stumble or sustain any compensable injury in the incident. The ALJ’s findings also
discounted the causation opinion of Dr. Richie as based on an inaccurate view of the
facts. After the ALJ affirmed her award on administrative review, Smith brought this
special action. We have 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.
DISCUSSION
¶8 In reviewing Industrial Commission of Arizona findings and awards, 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 also consider the
evidence 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). An ALJ is responsible for
weighing the evidence, resolving conflicts in the evidence, and drawing any necessary
and warranted inferences. See Malinski v. Indus. Comm'n, 103 Ariz. 213, 217, 439 P.2d
485, 489 (1968). The ALJ is the sole judge of witness credibility. Holding v. Indus.
Comm'n, 139 Ariz. 548, 551, 679 P.2d 571, 574 (App. 1984). With these concepts in mind,
we address Smith’s three arguments in turn.
¶9 Smith first argues the ALJ erred in discounting Dr. Richie’s medical
testimony of a causal connection between the incident and her injuries and symptoms.
If a medical opinion is shown to rely on an inaccurate view of the facts, the ALJ can
disregard it as not constituting substantial evidence. See Desert Insulations, Inc. v. Indus.
Comm’n, 134 Ariz. 148, 151, 654 P.2d 296, 299 (App. 1982). Here, Smith told Dr. Richie
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SMITH v. HERTZ CORPORATION
Decision of the Court
that she had sustained an injury at work, and the doctor relied upon the history
presented by Smith in diagnosing neck and clavicle pain arising from that injury. His
causation opinion was based on Smith’s report of the event and Concentra’s records,
which were also based on Smith’s report of the event. After deciding that Smith’s
version of the event was not accurate, the ALJ then logically disregarded Dr. Richie’s
causation opinion that was based on the unsustained history from Smith.
¶10 Smith next contends that Hertz’s failure to have a supervisor on the
premises during this incident supports finding a compensable injury under the peculiar
risk and positional risk doctrines. We disagree. These doctrines address whether the
injury arose out of the employment, an issue which Hertz does not dispute here. See PF
Chang’s v. Indus. Comm’n, 216 Ariz. 344, 347-48, ¶ 14-15, 166 P.3d 135, 138-39 (App.
2007). Instead, Hertz argues that the incident did not result in an injury. Thus, the
pertinent question in this appeal is one of medical causation, not work-relatedness or
legal causation. See Grammatico v. Indus. Comm'n, 208 Ariz. 10, 12-13, ¶ 8, 90 P.3d 211,
213-14 (App. 2004) (explaining and contrasting legal and medical causation), aff'd 211
Ariz. 67, 72, ¶ 23, 117 P.3d 786, 791 (2005). Because the peculiar risk and positional risk
doctrines are not relevant to the disputed medical causation issue, they do not support
Smith’s claim.
¶11 Smith’s final argument is that Woods’ testimony should have been
stricken because he failed to intervene in the altercation at issue. As already noted, the
determination of witness credibility is the obligation and responsibility of the ALJ, who
sees or hears the witnesses and is in the best position to assess a person’s credibility.
For these reasons, we generally defer, as we do here, to the ALJ’s determination of the
facts. Furthermore, Woods’ failure to intervene in the incident between Smith and
Ardner does not disqualify Woods from testifying and is, in fact, consistent with the
observations to which he testified. Smith’s argument does not present a recognized
legal basis for striking witness testimony and is therefore rejected by this court.
CONCLUSION
¶12 For the foregoing reasons, we affirm the ALJ’s award of
noncompensability.
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