american/xl v. Arias

NOTICE: NOT FOR PUBLICATION.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
AMERICAN WOODMARK CORPORATION, Petitioner Employer,
XL SPECIALTY INSURANCE CO., Petitioner Carrier,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
GUADALUPE ARIAS, Respondent Employee.
No. 1 CA-IC 13-0031
FILED 03/11/2014
Special Action - Industrial Commission
ICA NO. 20113-550084
Carrier Claim No. 186271680
Paula R. Eaton, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Lester & Norton, P.C., Phoenix
By Christopher S. Norton
Counsel for Petitioners Employer and Carrier
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Taylor and Associates, PLLC, Phoenix
By Thomas C. Whitley
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.
T H O M P S O N, Judge:
¶1 This is a special action review of an Industrial Commission
of Arizona (ICA) award and decision upon review for a compensable
industrial injury. Three issues are presented on appeal:
(1) whether the administrative law judge (ALJ) had
jurisdiction over the respondent employee’s (claimant’s)
December 5, 2011 injury claim;
(2) whether the ALJ made legally sufficient findings
regarding the disputed date of injury; and
(3) whether the claimant met her burden of proving that she
sustained a compensable industrial injury on December 5,
2011.
Because we find that the ALJ had jurisdiction over the December 5, 2011
injury claim and the claimant met her burden of proof for compensability,
we affirm the award.
JURISDICTION AND STANDARD OF REVIEW
¶2 This court has jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(2) (2003), 23-951(A) (2012), and
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Arizona Rule of Procedure for Special Actions 10 (2009).1 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, 63 P.3d 298, 301 (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, 41 P.3d 640, 643 (App. 2002).
FACTUAL AND PROCEDURAL HISTORY
¶3 The claimant worked as a packer for the petitioner
employer, American Woodmark Corporation (American). She filed a
worker’s report of injury on December 14, 2011. The report stated in
relevant part:
9. DATE OF INJURY (MO/DAY/YEAR): 06/14/2011
....
17. STATE HOW ACCIDENT HAPPENED: I’ve been doing same
job for 15 years involving repetitive activities such lifting, folding,
reaching (lifting arms), and pulling.
....
18. BODY PART INJURED: Right Shoulder… Tearing of
Supraspinatus
....
20: WHO TREATED YOU FOR THIS INJURY: NAME: Dr.
Walter Song
....
The petitioner carrier, XL Specialty Insurance Company (Specialty) denied
the claim for benefits noting, “No Record of Claim.” The claimant timely
requested an ICA hearing, and the ALJ heard testimony from the
claimant, her daughter, an American manager, and two physicians.
¶4 Prior to the first hearing, the ALJ held a discussion on the
record.
JUDGE EATON: We’ll go on the record. … We’re here with
regard to a Request for Hearing filed by applicant protesting
a Notice of Claim Status issued on January 11, 2012, that
1 Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.
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denied the applicant’s claim and indicated no record of the
claim.
The applicant protested, as I said. Is that correct, Mr.
Whitley?
MR. WHITLEY: It is, Your Honor. But for purposes of this
matter and the case law I believe is clear is that the facts can
be - - or the facts control the record, and we’re actually going
to amend the date of injury to be December.
JUDGE EATON: of 2011?
MR. WHITLEY: Yes. And we can explain why the original
407 was completed as it was, but we’re not going to be
making a claim for benefits for any incidents which occurred
on or around June 14th but rather the December date when
the reported injury was and the Employer’s Report of Injury.
And just in brief summary, and again I will have applicant
testify, but basically it’s that there was this incident in June,
but she had treatment, she got better, she continued to work,
there was no time lost. So, from that standpoint, the actual
date-of-injury claim we’re going to amend to December
2011.
JUDGE EATON: And I see her claim form signed on
December 14th says it’s a repetitive injury; is that right?
MR. WHITLEY: It is. But there was an incident which
occurred superimposed on the earliest incidents, but there
was a specific incident which occurred, which we’ll have the
applicant testify to, in December.
JUDGE EATON: Okay. Mr. Norton, before we went on the
record, you said that you were raising the affirmative
defense of failure to forthwith report?
MR. NORTON: Yes.
JUDGE EATON: Just so I’m clear a little bit before we start,
does that apply to both the June incident and the December
incident?
MR. NORTON: I think it would because we would - -
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JUDGE EATON: Okay. I mean, you’re raising it for both?
MR. NORTON: We would be essentially disputing the date
of injury and saying that it was manifest much earlier and
should have been reported much earlier, regardless of the
date that they actually pick and proceed on, so I guess we’re
in essence disputing the date of injury and asserting it was
not timely reported.
(Emphasis added).
¶5 The claimant testified that she could not read or write
English. 2 She had worked for American for fifteen years packing cabinets
in cardboard boxes as they came off the line. Although the claimant could
not recall an incident occurring in June 2011, she remembered “Jacey”
sending her to Dr. Song for a shoulder injection.3 Dr. Song obtained an
MRI of the claimant’s right shoulder, which revealed a “full thickness
tearing of the anterior supraspinatus tendon.” He prescribed six weeks of
physical therapy.
Q. BY MR. WHITLEY: Did you tell the employer in June about your
shoulder?
A. [Claimant] Yes.
Q. Who did you tell?
A. Amanda.
Q. Armando or Armanda?
A. Armanda.
Q. Okay. What did you tell them?
2 One of the medical records also indicated that the claimant’s
appointment was scheduled with her daughter because the claimant
spoke “broken” English.
3 Certified nurse practitioner Jacey Mitchell-Huffman referred the
claimant to Walter J. Song, M.D., in June 2011 for right thumb and right
shoulder pain. Dr. Song recorded a “History of Present Illness” as work
packing cabinets in a factory.
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A. I told her I was going to therapy for my shoulder.
Q. Did you tell them that something happened at work?
A. Yes.
¶6 The claimant’s daughter, Irene Di Carlo, corroborated her
mother’s testimony. She testified that the claimant gave Armanda Dr.
Song’s physical therapy prescription, and Armanda gave the claimant
Family Medical Leave Act (FMLA) paperwork to excuse her from work to
attend therapy. Ms. Di Carlo helped her mother complete the FMLA
paperwork, and it was approved by American’s human resources
manager. The claimant testified that therapy improved her shoulder
condition, and she continued to perform her regular work.
¶7 The claimant testified that another incident occurred on
December 5, 2011, when she was helping load finished cabinets and
plywood into a semi truck. She stated that she was carrying a piece of
plywood to the truck when it fell, and she felt “very strong pain” in her
back, right shoulder, and right arm. The claimant testified that the
shoulder pain was in the same place as in June, but that it was much more
severe.
¶8 On December 8, 2011, the claimant saw Dr. Thornton for
chiropractic care and he gave her a twenty pound lifting limitation “for
the next [two] weeks.” On December 9, 2011, American completed an
incident report for the December 5th injury. On December 13, 2011, the
claimant went to see nurse Jacey and was placed in an off work status.
Nurse Jacey referred the claimant to J. Kent Ferrari, M.D., for additional
shoulder treatment. On December 14, 2011, American provided the
claimant with additional FMLA paperwork. At that time, she asked about
a workers’ compensation claim. The claimant stated that she was told a
FMLA claim could not also be a workers’ compensation claim.
¶9 The ALJ then entered an award finding the claimant’s
December 5, 2011 industrial injury compensable. She specifically found
the claimant credible and resolved any evidentiary conflicts in her favor
and resolved the medical conflict in favor of Dr. Ferrari. Specialty timely
requested administrative review and argued that the ALJ did not have
jurisdiction over the December 5, 2011 industrial injury, because the
claimant did not file a workers’ compensation claim for that date. The
ALJ supplemented and affirmed her award.
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5. … [A]t hearing, the objection stated by defendants to the
amending of the date of injury, was that they were,
“disputing the date of injury and saying that it was manifest
much earlier and should have been reported much earlier.”
The defendants then proceeded to litigate the facts of both of
these incidents, whether the applicant’s physical complaints
were caused by her June 2011 work activities, whether or not
she had any injury at all in June or December 2011 and
whether or not she forthwith reported either of these alleged
injuries.
6. It would be inequitable to preclude the applicant’s claim
for a December 5, 2011, injury when the applicant clearly
relied on the subject litigation to be a valid pursuit of this
claim. Defendants never made clear that they were objecting
to the amending of the date of injury or that they felt that the
applicant needed to file a separate claim for the December 5,
2011 injury. The applicant made clear at the outset of the
hearing in this matter that she was seeking benefits for a
specific incident that occurred in December 2011. The
defendants were provided the opportunity to conduct
discovery of this incident . . . and presented medical
evidence with regard to the compensability of this incident.
Specialty next brought this appeal.
DISCUSSION
¶10 Specialty first argues that the ICA lacked jurisdiction to
consider the claimant’s December 5, 2011 injury claim because she did not
file a claim for that injury date. It cites Sun Control Tile v. Indus. Comm’n,
117 Ariz. 268, 571 P.2d 1064 (App. 1977) and Young v. Indus. Comm’n, 19
Ariz. App. 304, 506 P.2d 1089 (1973). We find both of these cases factually
distinguishable.
¶11 In Young, the claimant filed a petition to reopen his prior
injury claim, his petition was denied, and he requested a hearing. 19
Ariz. App. at 305, 506 P.2d at 1090. At the hearing, the carrier’s IME
doctor testified that the claimant had no statutorily-recognized condition
for reopening, but instead, he had a new injury. Id. The claimant then
moved to amend his petition to reopen to allege a new injury claim. Id. at
305-06, 506 P.2d at 1090-91. The ALJ denied the motion, and on appeal,
this court affirmed. Id. at 306, 506 P.2d at 1091. We found that the new
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injury claim was the responsibility of a different insurance carrier and it
had no notice of the petition to reopen proceedings. Id.
¶12 In Sun Control, the claimant sustained a compensable knee
injury. 117 Ariz. at 269, 571 P.2d at 1075. It was found stationary, and he
requested a hearing. Id. Before the hearing, the claimant fell from a
ladder and allegedly injured his back. Id. At the hearing, the claimant
agreed with the permanent impairment rating for his knee. Id. But he
argued that his fall was the result of his injured knee, and therefore, his
claim should remain open until his back injury became stationary. Id. The
ALJ agreed, but on appeal, this court set aside the award. Id. at 269-70,
571 P.2d at 1075-76. We held that the carrier had no notice of a back injury
nor that it would be the subject of the litigation on the knee closure. Id.
¶13 Arizona law requires an injured employee to report his
accident and the injury resulting there from to the employer “forthwith.”
See A.R.S. § 23-908(E) (2011). The statute of limitations for a workers'
compensation claim requires a claim to be filed “in writing within one
year after the injury occurred or the right thereto accrued. The time for
filing a compensation claim begins to run when the injury becomes
manifest or when the claimant knows or in the exercise of reasonable
diligence should know that he has sustained a compensable injury.” See
A.R.S. § 23-1061(A) (2011).
For an injury to be serious and not slight or trivial, the
symptoms must be of sufficient magnitude. . . . Awareness
of the permanence of a condition is a factor when
determining the magnitude of the injury.
Pacific Fruit Express v. Indus. Comm’n, 153 Ariz. 210, 214, 735 P.2d 820, 824
(1987) (citations omitted).
¶14 The credible evidence in this case established that in June
2011, the claimant felt right shoulder pain while performing her regular
work at American. She sought and received conservative medical
treatment, but she did not lose any time from work. She reported her
injury and its work connection to her employer, and she was given FMLA
paperwork. The claimant’s shoulder improved, and she continued to
perform her regular work as a packer until December 5, 2011.
¶15 On December 5th, the claimant’s manager was testing her
physical ability to perform a new job as a “packer/scanner/loader,” when
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she dropped a piece of plywood and sustained an injury to her neck, right
shoulder, and right arm.4 On December 8th, the claimant sought medical
treatment. Since that time, she has been unable to return to work. On
December 9th, American prepared an incident report for the December 5th
injury. Despite the claimant’s inquiry about a workers’ compensation
claim, American again provided FMLA paperwork.
¶16 Requiring forthwith notice to the employer serves two
purposes. First, it enables the employer to investigate the facts
surrounding the injury as soon as possible so that reliable evidence can be
preserved. Second, it gives the employer the opportunity to provide
immediate medical treatment so as to minimize the seriousness of the
injury. Magma Copper Co. v. Indus. Comm’n, 139 Ariz. 38, 43, 676 P.2d 1096,
1101 (1983) (citing 3 A. Larson, The Law of Workmen’s Compensation § 78.10)
(1983).5
¶17 In this case, the credible evidence established that the
claimant provided the employer with forthwith notice of the June 2011
incident when she gave Dr. Song’s physical therapy prescription to her
supervisor so that she could attend treatment during the workday. With
regard to the December 2011 incident, it was witnessed by a manager and
an incident report was prepared. The claimant filed a worker’s report of
injury, with a June 14, 2011 date of injury, on December 14, 2011. At the
initial ICA hearing on June 5, 2012, the claimant moved to amend the
worker’s report of injury to reflect a date of injury of December 5, 2011,
well within the one year statute of limitations.
¶18 This court has recognized that ICA hearings are
fundamentally different than the usual adversary proceedings because
their purpose “remains the humanitarian and compassionate one of
aiding and compensating the injured worker.” Gordon v. Indus. Comm’n,
23 Ariz. App. 457, 460, 533 P.2d 1194, 1197 (1975). In light of that purpose,
the ALJ is not bound by the common law or statutory rules of evidence or
by technical or formal rules of procedure and instead is charged with
4 American was restructuring its job descriptions and packers were also
going to be required to scan and load products. For that reason, manager
Joey Matthews witnessed the incident because he was observing the
claimant to see if she could perform these additional duties.
5This section currently is found at 7 Arthur Larson and Lex K. Larson,
Larson’s Workers’ Compensation Law, § 126.01 at 126-4 to -6.1 (2013).
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conducting the hearings in a manner that will achieve substantial justice.
See A.R.S. § 23-941(F) (2011).
¶19 Although a discussion ensued on the record, no one
suggested that claimant needed to file a new claim form to reflect the
amended date of injury. The parties litigated the claim and adduced
evidence regarding both the June and December incidents. Specialty did
not request a continued hearing. See Arizona Administrative Code
(A.A.C.) R20-5-156.A (2013). For these reasons, we believe that the ALJ
had jurisdiction to consider the December 5, 2011 date of injury.
¶20 Specialty next argues that the ALJ failed to make sufficient
findings to resolve the conflict as to the date of injury. In the award, the
ALJ specifically found the claimant credible, resolved all evidentiary
conflicts in her favor, and adopted Dr. Ferrari’s opinion. She found:
12. Based upon the applicant’s testimony and the testimony
of Dr. Ferrari, I find that the applicant sustained a
compensable industrial injury on December 5, 2011 to her
right shoulder.
On administrative review, the ALJ recognized that “[t]he applicant made
it clear at the outset of the hearing in this matter that she was seeking
benefits for a specific incident that occurred in December 2011.” We
conclude that these findings are sufficient.
¶21 Specialty last argues that the claimant failed to establish all
of the elements of a compensable claim. The statutory elements of
compensability are an injury by accident arising out of and in the course
of employment. See A.R.S. § 23-1021(A) (2011).6 It is the claimant’s
burden to prove all elements of a compensable claim. Toto v. Indus.
Comm’n, 144 Ariz. 508, 512, 698 P.2d 753, 757 (App. 1985). Unless the
industrial injury immediately causes injuries that are obvious to a layman,
expert medical evidence is required to establish a causal relationship
6 Arizona has recognized that a gradual injury can be an accident within
the meaning of this statute. Reilly v. Indus. Comm’n, 1 Ariz. App. 12, 15, 398
P.2d 920, 923 (1965). In the case of a gradual injury, the date of injury is
considered to be the date that the claimant discovered or “in the exercise
of reasonable diligence” should have discovered the relationship between
the injury and the employment. Nelson v. Indus. Comm’n, 120 Ariz. 278,
281-82, 585 P.2d 887, 890-91 (App. 1978).
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between the industrial injury and its alleged consequences. Western
Bonded Prod. v. Indus. Comm’n, 132 Ariz. 526, 527-28, 647 P.2d 657, 658-59
(App. 1982).
¶22 In this case, the ALJ found the claimant’s description of her
December 5, 2011 injury credible. This testimony formed the foundation
for her treating physician’s opinion. Dr. Ferrari received a history of the
claimant’s June and December 2011 right shoulder incidents, and he
reviewed her medical records and diagnostic tests. In May 2012, he
operated to repair the claimant’s right rotator cuff tear. It was his opinion
that both the June and December incidents contributed to the need for
surgery. See Romero v. Indus. Comm’n, 11 Ariz. App. 5, 7, 461 P.2d 181, 183
(1969) (the industrial injury need not be the sole cause of the claimant’s
injury so long as it is a contributing cause). We find that the claimant met
her burden of proof.
¶23 For all of the foregoing reasons, we affirm the award.
:gsh
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