Opinion
No. 1 CA-IC 14-0074
07-28-2015
NICK BUCUR, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, v. MARCEL SUCIU AND CARMEN SUCIU dba DIAMOND SEVEN EXPRESS, Respondent Employer, v. SPECIAL FUND DIVISION/NO INSURANCE SECTION, Respondent Party in Interest.
COUNSEL Nick Bucur, Phoenix Petitioner Industrial Commission of Arizona, Phoenix By Andrew F. Wade, Respondent ICA Stillwell Law Office, PLLC, Phoenix By Thomas R. Stillwell Counsel for Respondent Employer
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Special Action - Industrial Commission
ICA Claim No. 20131-490321
Carrier Claim No. None
The Honorable Suzanne Scheiner Marwil, Administrative Law Judge
AFFIRMED
COUNSEL Nick Bucur, Phoenix
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade, Respondent ICA
Stillwell Law Office, PLLC, Phoenix
By Thomas R. Stillwell
Counsel for Respondent Employer
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Donn Kessler joined. THUMMA, Judge:
¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award and decision upon review by an administrative law judge (ALJ) for a claim found to be noncompensable. Claimant Nick Bucur alleges the ALJ's finding was not supported by the evidence and that the ALJ erred in not holding an additional hearing. Finding no error, the award is affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the facts in the light most favorable to upholding the award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105 ¶ 16, 41 P.3d 640, 643 (App. 2002).
¶2 In May 2013, Bucur was driving a semi-truck on behalf of Diamond Seven Express (DSE) when he was involved in an accident. After the accident, Bucur complained of neck pain, which subsequent medical examinations revealed was caused by a herniated disc. Bucur filed a workers' compensation claim, which was denied by respondent party in interest Special Fund Division/No Insurance Section. Upon Bucur's timely request, an ALJ held an evidentiary hearing where Bucur, Stacy O'Neill-Williams (the driver of the other vehicle involved in the accident), medical doctors and others testified. The record then closed. See Ariz. Admin. Code (A.A.C.) R20-5-159 (2015).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
¶3 The ALJ's subsequent award found O'Neill-Williams' "version of the accident to be the most credible" and resolved the conflicting medical evidence "regarding whether any injury occurred as a result of the motor vehicle collision" against Bucur. The ALJ was "persuaded that the impact involved in this case was minor and was insufficient to cause any significant hyperextension or flexion of [Bucur's] neck which would result in injury." Accordingly, the ALJ found Bucur's claim was noncompensable.
¶4 Bucur's attorney filed a request for review and then withdrew as counsel. Bucur then filed a pro se request for review in a letter containing six pages of argument and 50 pages of attachments that he claimed showed, among other things, witnesses were untruthful. After having considered the requests for review, the ALJ affirmed the award as supplemented, noting the decision "turned on a credibility determination of events described by lay witnesses. The undersigned was persuaded that the accident did not occur at a velocity that could reasonably be expected to cause the injury [Bucur's doctor] diagnosed" and, accordingly, the ALJ accepted the contrary opinions of the other doctor who testified. The ALJ added, "[n]othing in [Bucur's] letter requesting review changes this conclusion."
¶5 This court has jurisdiction over Bucur's timely petition for review of this decision 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
I. The Administrative Record Supports The Award.
¶6 Bucur argues the ALJ's finding was not supported by the evidence and that, instead, record evidence supported his claim. This court will affirm the ALJ's decision if it is reasonably supported by the evidence. See Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). To be eligible for workers' compensation benefits, Bucur must show he sustained an injury causally connected to his employment, which, when "not clearly apparent to a layman," must be established by medical testimony. See W. Bonded Prods. v. Indus. Comm'n, 132 Ariz. 526, 527, 647 P.2d 657, 658 (App. 1982) (citations omitted). After hearing both lay and expert medical testimony, the ALJ concluded the accident was "minor and insufficient to cause any hyperextension or flexion of [Bucur]'s neck which would result in injury." The evidence considered by the ALJ was conflicting, and the ALJ expressly recognized her decision turned on issues of credibility. See Holding v. Indus. Comm'n, 139 Ariz. 548, 551, 679 P.2d 571, 574 (App. 1984) (noting ALJ is "sole judge of witness credibility") (citation omitted). The primary conflict was between the testimony of Bucur and his medical expert when compared to the testimony of the other witnesses.
¶7 At the hearing, Bucur testified he was stopped in traffic while driving a semi-truck for DSE when he was hit from behind by another semi-truck going 30 to 40 miles per hour. He testified that on impact, his head went back and he saw nothing but blackness and stars for a moment after the collision. Bucur testified that after he "came out of it," he notified DSE's owner about the accident and took pictures of the damage to both trucks. The ALJ noted these pictures show minimal damage to the trucks involved. A couple hours after the accident, when he was back on the road, Bucur testified he felt a burning sensation in the back of his neck and testified he had trouble lifting his head the next morning. Subsequent medical testing revealed a herniated disc in his neck.
¶8 Bucur's treating physician and medical expert, Dr. Todd Doerr testified the accident caused Bucur's neck injury. Dr. Doerr testified Bucur had "a large cervical disc herniation" following the accident, and that in his clinical experience, there was no threshold velocity required to cause a herniated disc in the neck. Dr. Doerr also acknowledged Bucur had some pre-existing conditions that could have been aggravated with very little force, and believed any aggravation was related to the accident because Bucur's "symptoms developed shortly thereafter."
¶9 In contrast to this testimony by and on behalf of Bucur, Stacey O'Neil-Williams, the driver of the other truck, testified he was stopped behind Bucur in traffic when Bucur's truck rolled back into his truck, damaging the grille and an air-conditioning line. O'Neil-Williams testified neither he nor Bucur were going 30 to 40 miles per hour when their trucks collided and that traffic was at a crawl. Marcel Suciu, the owner of DSE, testified Bucur's truck had "very, very minimal" damage, which was not repaired, and that no insurance claim was made for the damage to O'Neill-Williams' truck.
¶10 Dr. Irwin Shapiro testified on behalf of DSE/Suciu. Citing medical studies, Dr. Shapiro testified that accidents resulting in minimal damage are unlikely to cause injury, and opined, after reviewing photos of the damage to the trucks, that it was improbable the accident caused Bucur's neck injury. Although Dr. Shapiro believed Bucur had pre-existing cervical spine issues, he testified that based on his review of the pictures of the trucks and the medical scans of Bucur's neck, the accident did not aggravate these issues sufficient to cause Bucur's current neck injury.
¶11 The ALJ resolved this conflicting evidence in favor of respondents, expressly finding O'Neil-Williams' version of what happened and the medical opinions of Dr. Shapiro as most credible. See Holding, 139 Ariz. at 551, 679 P.2d at 574; see also Brown v. U.S. Fidelity and Guar. Co., 194 Ariz. 85, 92 ¶ 36, 977 P.2d 807, 814 (App. 1998) (noting this court does not reweigh evidence or determine witness credibility). On this record, Bucur has not shown that these determinations were error, and the record supports a finding that Bucur's neck problems were not caused by the truck accident. See W. Bonded Prods., 132 Ariz. at 527, 647 P.2d at 658. Accordingly, the ALJ did not err in finding Bucur's claim was noncompensible.
To the extent the exhibits attached to Bucur's reply brief on appeal were not submitted to the ALJ, they will not be considered on appeal. See Shockey v. Indus. Comm'n, 140 Ariz. 113, 116 n.1, 680 P.2d 823, 826 n.1 (App. 1983). And to the extent Bucur argues, for the first time in his reply brief on appeal, that the ALJ erred in refusing to consider evidence attached to his request for review, this issue is waived and also is not supported by the record. See Hunnicutt Constr., Inc. v. Stewart Title and Trust of Tucson Trust No. 3496, 187 Ariz. 301, 307, 928 P.2d 725, 731 (App. 1996). --------
II. The ALJ Did Not Err In Not Holding A Further Evidentiary Hearing.
¶12 Citing A.R.S. § 23-942(D) and Naglieri v. Indus. Comm'n, 236 Ariz. 94, 336 P.3d 727 (App. 2014), Bucur asserts the ALJ erred in not holding a further evidentiary hearing to review allegations relating to purported fraud. Bucur has not shown how A.R.S. § 23-942(D) supports this argument. To the extent Bucur asserts the ALJ failed to consider the materials he submitted in his request for review, the ALJ indicated she had considered those materials, meaning this argument is not supported by the record. To the extent Bucur asserts the ALJ failed to grant a further hearing to consider additional evidence, unlike Naglieri, Bucur did not request such a hearing. See 236 Ariz. at 96-97 ¶¶ 11-13, 336 P.3d at 729-30. Moreover, given the passage of time, Bucur has not shown how any such request would be timely. See A.A.C. R20-5-156(B). Nor has Bucur shown how any such request otherwise would comply with the applicable procedural requirements. See A.A.C. R20-5-156(C). Finally, this court will not consider documents not provided to the ALJ or arguments made for the first time on appeal. See Hunnicutt Constr., Inc. v. Stewart Title and Trust of Tucson Trust No. 3496, 187 Ariz. 301, 307, 928 P.2d 725, 731 (App. 1996); Shockey v. Indus. Comm'n, 140 Ariz. 113, 116 n.1, 680 P.2d 823, 826 n.1 (App. 1983). Accordingly, the ALJ did not err in not holding a further evidentiary hearing.
CONCLUSION
¶13 Because Bucur has shown no error, the award is affirmed.