Todorovic v. hilton/sedgwick

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JOVANKA TODOROVIC, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
HILTON WORLDWIDE, INC, Respondent Employer,
SEDGWICK CLAIMS MANAGEMENT SERVICES INC,
Respondent Carrier.
No. 1 CA-IC 14-0048
FILED 5-28-2015
Special Action - Industrial Commission
ICA Claim No. 20130-220463
Carrier Claim No. 30130154900-0001
Layna Taylor, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Robert E. Wisniewski, P.C., Phoenix
By Robert E. Wisniewski
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
Chief Judge Diane M. Johnsen delivered the decision of the Court, in which
Judge Kenton D. Jones and Judge Donn Kessler joined.
J O H N S E N, Chief Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona ("ICA") award for a non-compensable injury. Jovanka Todorovic
argues the administrative law judge ("ALJ") erred by finding her injury did
not arise out of and in the course of her employment. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Todorovic worked as a housekeeper at a hotel.1 While
working one afternoon she noticed redness and swelling in her right hand.
A coworker recounted that Todorovic told her that "probably something
[had bitten] her when she was cleaning," but Todorovic later testified that
at the time, she did not feel pain and had not felt a bug bite. When her hand
was worse the next morning, Todorovic reported her injury to a supervisor
and completed an injury report. The employer sent her to a medical clinic.
¶3 At the clinic a physician assistant examined Todorovic and
noted "one site of bite" on her middle finger. The doctor also observed a
"[p]uncture wound on the right middle finger." She diagnosed an infected
insect bite, hand cellulitis and possible abscess, then immediately referred
Todorovic to a hospital for surgery. Todorovic was admitted that same day
and given intravenous antibiotics. When her condition did not improve
after 24 hours, a physician surgically drained and debrided her finger.
¶4 Todorovic filed a workers' compensation claim, which was
accepted for benefits. Following an independent medical examination by
1 Upon review, we view the evidence in the light most favorable to
sustaining the ICA award. See Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105,
¶ 16 (App. 2002).
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TODOROVIC v. HILTON/SEDGWICK
Decision of the Court
Paul M. Guidera, M.D., the carrier rescinded the acceptance and denied the
claim. At an ICA hearing that followed, the parties did not present medical
testimony but instead submitted the medical records. Finding "the medical
evidence is in conflict," the ALJ resolved the conflict "in favor of the
opinions of Dr. Guidera," then entered an award of a non-compensable
claim. She affirmed the award on administrative review, adding that
Todorovic "failed to meet her burden of proof to establish that the
precipitating event for her hand infection occurred at work." Todorovic
timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(2) (2015), 23-951(A) (2015), and
Arizona Rule of Procedure for Special Actions 10.2
DISCUSSION
¶5 On review of an ICA award, we defer to the factual findings
of the ALJ, but review questions of law de novo. Young v. Indus. Comm'n,
204 Ariz. 267, 270, ¶ 14 (App. 2003). To be compensable, an injury must
arise out of and in the course of employment. A.R.S. § 23-1021(A) (2015).
"Arise out of" refers to "the origin or cause of the injury," while "in the
course of" refers to "the time, place, and circumstances of the accident in
relation to the employment." Royall v. Indus. Comm'n, 106 Ariz. 346, 349
(1970). The claimant must prove all the elements of a compensable claim.
Toto v. Indus. Comm'n, 144 Ariz. 508, 512 (App. 1985).
¶6 Todorovic argues the ALJ should have applied the
unexplained injury presumption to assist her with her burden of proof. The
unexplained injury presumption creates a rebuttable presumption that a
claimant was "injured while doing the employer's work." See Hypl v. Indus.
Comm'n, 210 Ariz. 381, 387, ¶ 20 (App. 2005). It applies, however, only
when an injury occurring within the time and space of work itself renders
a claimant unable to remember or communicate how the injury occurred.
See id. Todorovic's finger injury did not prevent her from explaining how
she was injured; she recounted the events of the injury to the employer, to
the doctors and when she testified at the hearing. Accordingly, the ALJ
correctly declined to apply this presumption.
¶7 Todorovic, who did not call a medical expert witness at the
ICA hearing, argues Guidera's opinion is "medically insufficient" and was
based on an incorrect factual foundation. A medical opinion may support
2 Absent material revision after the date of the events at issue, we cite
a statute's current version.
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TODOROVIC v. HILTON/SEDGWICK
Decision of the Court
an award when it is based on findings of medical fact. See Royal Globe Ins.
Co. v. Indus. Comm'n, 20 Ariz. App. 432, 434 (App. 1973). Such findings may
come from the claimant's history, medical records, diagnostic tests and
examinations. See, e.g., id.
¶8 When Guidera examined Todorovic, he took her history,
reviewed and summarized the pertinent medical records, and performed a
physical examination and testing. He noted in his report:
The applicant indicates that there was no trauma that
preceded the onset of her symptoms. Specifically, she never
felt or saw a bug bite her. She doesn't recall having any cuts,
scrapes or abrasions at work.
After examining Todorovic, Guidera diagnosed "unexplained cellulitis of
the hand." He noted that most people who are bitten by an insect
immediately notice the bite and said he found "no evidence in this case to
confirm that [Todorovic] . . . sustained an insect bite." He also could not
"identify a specific industrial exposure."
¶9 Although the medical records contain a mention of a reported
"sudden sharp stinging type of pain," Guidera's opinion that Todorovic had
not suffered an insect bite on the job was supported by sufficient medical
evidence. See id. Guidera credited the history Todorovic provided to him,
and we cannot say it was "wholly unreasonable" for the ALJ, in turn, to
credit Guidera's opinion in resolving the conflict in the evidence. See
Malinski v. Indus. Comm'n, 103 Ariz. 213, 217 (1968) (the ALJ, not this court,
resolves the conflicts in the evidence); see also Henninger v. Porter, 85 Ariz.
184, 189 (1959) ("where the medical evidence is in conflict, the findings of
the Commission are binding upon this court").
¶10 Todorovic finally argues that the award lacks the specificity
required for review. Although we will not speculate to reconstruct an ALJ's
award, see Post v. Indus. Comm'n, 160 Ariz. 4, 7 (1989), the ALJ is not required
to make specific findings on every issue so long as she resolves the ultimate
issues in the case. See CAVCO Indus. v. Indus. Comm'n, 129 Ariz. 429, 435
(1981); see also Pearce Dev. v. Indus. Comm'n, 147 Ariz. 582, 583 (1985) (ALJ's
findings may be implicit in an award). Here the ALJ expressly credited
Guidera's opinion, then relied on it in concluding Todorovic failed to prove
her injury arose out of and in the course of her employment. Such findings
are sufficient.
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TODOROVIC v. HILTON/SEDGWICK
Decision of the Court
CONCLUSION
¶11 The ALJ has the duty to resolve any conflicts in the evidence
and to draw any warranted inferences. In this case, the ALJ found the
evidence did not support a bug bite or other break in the skin occurring at
work that resulted in Todorovic's injury. Because there is evidence in the
record reasonably supporting the ALJ's award, we affirm.
:ama
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