Buckman v. roadsafe/zurich

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JUSTIN BUCKMAN, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
ROADSAFE TRAFFIC SYSTEMS, Respondent Employer,
ZURICH AMERICAN INSURANCE CO. C/O GALLAGHER BASSETT,
Respondent Carrier.
No. 1 CA-IC 14-0038
FILED 4-23-2015
Special Action - Industrial Commission
ICA Claim No. 20122-790043
Carrier Claim No. 007603001529WC01
Layna Taylor, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Snow, Carpio & Weekley, PLC, Phoenix
By Erica González-Meléndez
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix
By R. Todd Lundmark
Counsel for Respondents Employer and Carrier
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.
T H O M P S O N, Judge:
This is a special action review of an Industrial Commission of
Arizona (ICA) award and decision upon review for a noncompensable
claim. One issue is presented on appeal: whether the administrative law
judge’s (ALJ’s) award contains legally sufficient findings when it fails to
state any reason for rejecting the petitioner employee’s (claimant’s)
credibility. Because we find evidence in the record to support the ALJ’s
rejection of the claimant’s credibility, we affirm the award.
JURISDICTION AND STANDARD OF REVIEW
¶1 This court has jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(2) (2003), 23-951(A) (2012), and
Arizona Rule of Procedure for Special Actions 10. 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).
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FACTUAL AND PROCEDURAL HISTORY
¶2 The respondent employer, Roadsafe Traffic Systems
(Roadsafe), hired the claimant as a laborer in July 2012. On the date of his
alleged injury, he worked an overnight shift removing pavement markings
from concrete roadway with a “Multi-Use Surface Preparator” (grinder).1
The claimant testified that he used the grinder for his entire eight to ten
hour shift, and afterwards, his hands were sore. He stated that by the next
day, his right hand “was immobile and very painful” and his left hand was
asleep. The claimant contacted his supervisor, Phillip Kowalczyk, and he
sent the claimant to Concentra for examination and treatment.
¶3 The claimant filed a workers’ compensation claim, which was
denied for benefits. He timely requested an ICA hearing, and the ALJ held
two hearings for testimony from the claimant, his supervisor, his treating
physician, Roadsafe’s branch manager, and an independent medical
examiner. The ALJ entered an award for a noncompensable claim. The
claimant requested administrative review, but the ALJ summarily affirmed
the Award. The claimant next brought this appeal.
DISCUSSION
¶4 The claimant argues that the ALJ’s award is legally
insufficient for our review because the she did not explain the basis for her
credibility finding. The relevant findings provide:
9. The determination of the credibility of witnesses is the
province of the Administrative Law Judge since she has seen
and heard the witnesses testify. …
10. “[M]edical testimony can be so weakened by proof of
an inaccurate factual background that the testimony cannot
be said to constitute ‘substantial evidence’.” …
11. Upon a review of the totality of the evidence, it is found
that the applicant is not credible. Therefore, it is concluded
that the applicant has failed to meet his burden of proof to
establish, by a preponderance of the evidence, that he
sustained an injury arising out of and in the course of the
1 Photographs and information about this machine were printed off the
internet and placed in evidence.
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employment with the defendant employer on September 29,
2012.
¶5 In Post v. Industrial Commission, 160 Ariz. 4, 770 P.2d 308
(1989), the Arizona Supreme Court reassessed the specificity necessary for
a legally sufficient award. The court concluded that the award should
specify the basis for the ultimate disposition and the evidence supporting
that basis. Id. at 8, 770 P.2d at 312. The court also stated that a “lack of
findings on a particular issue invalidate[s] an award per se. . . .” 160 Ariz.
at 7, 770 P.2d at 311. But if the appellate court must “speculate” about the
basis for the award or “assume a factfinder role,” then the award must be
set aside because it is “so lacking in specificity” that we cannot review it.
Id. at 7-9, 770 P.2d at 311-13.
¶6 The ultimate issue in this case is compensability.
Compensability requires an injury by accident arising out of and in the
course of employment. See A.R.S. § 23-1021(A) (1995). This involves both
legal and medical causation. DeSchaaf v. Indus. Comm’n, 141 Ariz. 318, 320,
686 P.2d 1288, 1290 (App. 1984). 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 between the industrial injury and
its alleged consequences. Western Bonded Prods. v. Indus. Comm’n, 132 Ariz.
526, 527-28, 647 P.2d 657, 658-59 (App. 1982).
¶7 In this case, there were a number of discrepancies between the
claimant’s testimony and that of the other lay and medical witnesses. With
regard to the grinder, the claimant described intense vibration and a very
violent machine which required a lot of force to hold back and prevent from
speeding up to “50 to 100 miles and [sic] hour and destroy[ing] anything it
hit.” The claimant stated that he performed this work for eight to nine
hours nonstop on the night of the incident.
¶8 Timothy Passaglia, Roadsafe’s branch manager, testified that
the grinder is not a violent machine if adjusted correctly; it is intended to
skim the surface of concrete to remove paint. He stated that anyone can
operate a grinder with about five minutes of training. Mr. Passaglia
acknowledged that the grinder vibrates, but he denied that it was of such
an intensity as to cause the machine to get away from the operator. The
claimant’s supervisor, Mr. Kowalczyk provided testimony consistent with
that of Mr. Passaglia. Mr. Kowalczyk estimated that over an eight hour
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Decision of the Court
shift, a grinder could only be operated for a maximum of four to six hours
due to necessary refueling and other intervening work.
¶9 With regard to his hands, the claimant testified that he had
bilateral carpal tunnel releases around 1993, followed by a complete
recovery, and no additional hand problems until his injury at Roadsafe. He
stated that did not return to work at Roadsafe after his injury, and his hand
complaints gradually improved over the following two months.
¶10 The claimant’s treating physician, Paul Zidel, M.D., recorded
a history of bilateral carpal tunnel releases followed by occasional ongoing
numbness and tingling in the claimant’s hands. When questioned about
Dr. Zidel’s records, the claimant conceded some ongoing tingling in his
hands. Dr. Zidel also received a history of no improvement in the
claimant’s hand symptoms despite his remaining off work following the
incident. Dr. Zidel opined that based on the claimant’s history of operating
the grinder on September 29, 2012, it could be the cause of his hand
problems.
¶11 Paul Guidera, M.D., the independent medical examiner, also
received a history of bilateral carpal tunnel releases followed by a complete
recovery and no additional hand problems until after the grinder incident
at Roadsafe. He also recorded a history of no improvement in the
claimant’s hand symptoms after the date of injury. The doctor testified that
there was nothing in the claimant’s history or medical records to indicate
the type of trauma that would have been necessary to cause an injury such
as the claimant described. It was his opinion that the claimant did not
sustain a structural injury while operating the grinder. Dr. Guidera
testified that the claimant’s presentation was very consistent with a
peripheral neuropathy in an untreated diabetic who had a more than ten-
year history of diabetes.
¶12 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). The ALJ
“may … reject a claimant’s testimony … if it is self-contradictory,
inconsistent with other evidence, or directly impeached.” Id. at 551, 679
P.2d at 574. It is the ALJ’s duty to resolve all conflicts in the evidence and
to draw all warranted inferences. Malinski v. Indus. Comm’n, 103 Ariz. 213,
217, 439 P.2d 485, 489 (1968). When more than one inference may be drawn
from the evidence in an ICA proceeding, the ALJ may choose either and
those conclusions will not be disturbed unless it is wholly unreasonable.
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Reynolds Metal Co. v. Indus. Comm’n, 22 Ariz. App. 349, 352, 527 P.2d 308,
311 (1974).
¶13 In this case the claimant’s testimony was both self-
contradictory and inconsistent with other evidence. For these reasons, it
was not error for the ALJ to reject his testimony. Because we were able to
ascertain the basis for the award from our review of the appellate record,
the award contains legally sufficient findings. Without a credible history
from the claimant, there was no foundation for Dr. Zidel’s opinion and the
claimant failed to meet his burden of proving a compensable claim. See
Desert Insulations v. Indus. Comm’n, 134 Ariz. 148, 151, 654 P.2d 296, 299
(App. 1982) (medical testimony must have an accurate factual background
to constitute substantial evidence).
¶14 For the foregoing reasons, we affirm the award.
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