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Watt v. Indus. Comm'n of Ariz.

Dec 8, 2015
No. 1 CA-IC 15-0007 (Ariz. Ct. App. Dec. 8, 2015)


No. 1 CA-IC 15-0007



COUNSEL Taylor & Associates, PLLC, Phoenix By Dennis R. Kurth Counsel for Petitioner Employee Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Lester, Norton, & Brozina, P.C. By Christopher S. Norton, Steven C. Lester and Rachel P. Brozina Counsel for Respondents Employer and Carrier

ICA Claim No. 20131610120
Carrier Claim No. 127-CB-ETY2936-K Paula R. Eaton, Administrative Law Judge


COUNSEL Taylor & Associates, PLLC, Phoenix
By Dennis R. Kurth
Counsel for Petitioner Employee Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent Lester, Norton, & Brozina, P.C.
By Christopher S. Norton, Steven C. Lester and Rachel P. Brozina
Counsel for Respondents Employer and Carrier


Acting Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Samuel A. Thumma joined. GOULD, Judge:

¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review for a noncompensable claim. Two issues are presented on appeal:

(1) whether the administrative law judge ("ALJ") abused her discretion by rejecting the petitioner employee's ("claimant's") credibility; and

(2) whether the accepted medical testimony constituted substantial evidence to support the award.
Based on the record before us, the ALJ did not abuse her discretion by rejecting the claimant's credibility. Further, Dr. Lipshultz' testimony is foundationally sufficient and constitutes substantial evidence to support the award. We affirm.


¶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 Arizona Rules of Procedure for Special Actions 10 (2009). On appeal, an ALJ's imposition of sanctions will be overturned only upon a showing of an abuse of discretion. Nolden v. Indus. Comm'n, 127 Ariz. 501, 503-04 (App. 1980). Although the ALJ is not bound by technical rules of evidence and procedure, workers' compensation proceedings must be conducted so as to "achieve substantial justice." A.R.S. § 23-941(F).

Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.


¶3 The claimant alleged that he sustained a cardiac injury and a knee injury while employed as a truck driver for the respondent employer, Kary Environmental Services ("Kary"). He filed a workers' compensation claim, which was denied for benefits by the respondent carrier, Travelers Property Casualty Company of America ("Travelers"). The claimant timely protested the denial and requested an ICA hearing.

¶4 Four ICA hearings were held, and the ALJ heard testimony from the claimant, his wife, a lay witness and two doctors. The ALJ entered an award for a noncompensable claim. The claimant timely requested administrative review, but the ALJ summarily affirmed the award. The claimant next brought this appeal.


¶5 The claimant first argues that the ALJ abused her discretion by finding him not credible. In support of his argument, he cites Ratley v. Indus. Comm'n, 74 Ariz. 347, 350 (1952), for the proposition that the ALJ could not arbitrarily reject his uncontradicted testimony because it was corroborated by a disinterested witness. While we agree with this statement of the law, it does not apply to the record in this case.

¶6 It is well settled in Arizona that the ALJ "is the sole judge of witness credibility". Holding v. Indus. Comm'n, 139 Ariz. 548, 551 (1984). On appeal, this court will not disturb an ALJ's conclusion unless it is wholly unreasonable. Malinski v. Indus. Comm'n, 103 Ariz. 213, 217 (1968). The reason for this rule is our recognition that the ALJ is in a better position to consider

[t]he tone of voice in which a statement is made, the hesitation or readiness with which his answers are given, the look of the witness, his carriage, his evidences of surprise, his gestures, his zeal, his bearing, his expressions, his yawns, the use of his eyes, his furtive or meaning glances, or his shrugs, the pitch
of his voice, his self-possession or embarrassment, his air of candor or of seeming levity.
Adams v. Indus. Comm'n, 147 Ariz. 418, 421 (1985) citing, J. Frank, Law and the Modern Mind 109 (1936). See also Arizona Workers' Compensation Handbook ("Handbook") §, at 10-13 (Ray J. Davis, et al., eds.; 1992 and Supp. 2015). Although an ALJ "may not reject a claimant's testimony simply because it is self-interested, he may reject it if it is self-contradictory, inconsistent with other evidence, or directly impeached." Holding, 139 Ariz. at 551.

¶7 Here, the claimant argues the ALJ erred in finding his testimony regarding the events of June 3, 2013 not credible because his testimony was corroborated by the documentary evidence and independent lay witness Alan Retzler.

¶8 The claimant testified that on June 4, 2013, he drove his unairconditioned box truck to Triad Transport's ("Triad's") hazardous waste disposal facility in Laveen, Arizona, so that he could dispose of the merchandise that he had collected the previous week. The claimant testified that he arrived at Triad between 7:30 and 8:30 am and backed his truck up to an empty semi-trailer which was parked in the sun. He stated that he spent the next two hours moving between twenty and thirty fifty-five gallon barrels into the trailer. The claimant testified that next, as he began to move the first box from his truck to the trailer, he felt faint, dropped the box, and started to fall, bumping into a wooden pallet and hyperextending his right knee. He stated that Alan Retzler, a Triad employee, heard the noise and came to check on him. Mr. Retzler escorted the claimant to Triad's break room to rest.

The claimant's employer contracted with various retail stores to collect their out-of-date products and expired prescription drugs for disposal.

¶9 Mr. Retzler testified that on June 4, 2013, he was working in Triad's yard in Laveen. He stated that the claimant arrived at Triad around mid-day with a truck load of merchandise that he had picked up from retail stores. The claimant parked at an empty semi-trailer and began arranging his boxes and plastic drums in preparation for transferring into the trailer. Around noon, Mr. Retzler approached the claimant to give him a hazardous waste manifest for his load. He testified that the claimant had only been at Triad for thirty to forty minutes, and had only moved a partial pallet load of merchandise into the trailer. Mr. Retzler found the claimant leaning up against the inside his truck, his face was flushed, and he was having trouble breathing. Mr. Retzler took the claimant to Triad's air conditioned break room so that he could sit down and drink some cold water. Mr. Retzler testified that he and another employee then returned to the claimant's truck and finished moving his load into the trailer.

¶10 With regard to documentary evidence, the parties filed the claimant's Driver's Daily Logs for the period May 1, 2013, through June 4, 2013. These contained the locations of the stores the claimant serviced and the hours he spent at each location both in and out of his truck. In addition, weather information was included for the various locations and revealed temperatures ranging from the upper 90s to the low 100s. This evidence is largely consistent with the claimant's testimony regarding the stores and cities where he worked and the temperatures during that period. However, it does not address the conflicts between the claimant's and Mr. Retzler's testimony regarding the events of June 4, 2013.

¶11 The ALJ noted in her findings the discrepancies between the claimant and Mr. Retzler, both as to the time that the claimant arrived at Triad's yard and the length of time he worked before seeing Mr. Retzler, and the amount of his load he moved before his injury. Because we review a "cold record," we recognize the superior position of the ALJ who saw and heard the witnesses testify. Because Mr. Retzler's testimony does not completely corroborate the claimant's testimony, we cannot say that the ALJ's conclusion regarding credibility is wholly unreasonable such that she abused her discretion.

Although our review of the record shows there is sufficient evidence to support the ALJ's determination regarding claimant's credibility, in order to assist appellate review, we urge ALJ's to make clear, express findings regarding credibility in their decisions. --------

¶12 The claimant next argues that Arthur Lipshultz, M.D., had an insufficient foundation for his medical opinion regarding the causation of his cardiac injury, and that as a result his testimony does not constitute substantial evidence to support the award. Specifically, the claimant asserts that the doctor did not know the locations and conditions under which he had been working prior to his injury.

¶13 Our statutes provide that a heart-related injury is not compensable "unless some injury, stress or exertion related to the employment was a substantial contributing cause of the . . . injury . . ." A.R.S. § 23-1043.01 (A). The causal relationship between a heart condition and work activities is "peculiarly within the province of medical experts." Emp'rs Mut. Liab. Ins. Co. of Wis. v. Indus. Comm'n, 15 Ariz. App. 288, 289 (1971).

¶14 Medical opinions must be based on findings of medical fact. See Royal Globe Ins. Co. v. Indus. Comm'n, 20 Ariz. App. 432, 434 (1973). These findings come from the claimant's history, medical records, diagnostic tests, and examinations. Id.

Many factors enter into a resolution of conflicting evidence, including whether or not the testimony is speculative, consideration of the diagnostic method used, qualifications in backgrounds of the expert witnesses and their experience in diagnosing the type of injury incurred.
Carousel Snack Bar v. Indus. Comm'n, 156 Ariz. 43, 46 (1988). This court has recognized that medical testimony can be so weakened by proof of an inaccurate factual background, that it cannot be said to constitute substantial evidence to support an award. See Desert Insulations v. Indus. Comm'n, 134 Ariz. 148, 151 (App. 1982).

¶15 In this case, Dr. Lipshultz, a board-certified cardiologist, and Anthony C. Theiler, M.D., an orthopedic surgeon saw the claimant for an independent medical examination ("IME") on January 14, 2014, and they authored an IME report which is in evidence. The doctors received a history of the claimant's work "in an unairconditioned box truck from 4/18/13 to 6/4/13," the events on June 4, 2013, leading up to his right knee injury, and his past medical history of cardiac problems and diabetes. The doctors also reviewed records of the claimant's medical treatment after the June 4, 2013 incident, which included information about the claimant's heat exposure while loading and unloading his unairconditioned truck in Arizona and Southern California.

¶16 Dr. Lipshultz testified at the ICA hearing. He stated that he had discussed the heat in the back of the unairconditioned box truck with the claimant. He was aware that the claimant based his cardiac injury claim on working in the extreme heat while enclosed in the back of his truck, several hours per day over the two months leading up to the June 4, 2013 incident. It was his opinion that working in the hot truck did not affect the claimant, because heat stroke would have shown up in his kidney function results on his lab work. Further, although the doctor was not aware of the exact cities where the claimant had worked nor their precise temperatures, he knew the claimant had worked in southern California and Arizona. He testified that as a native Arizonan, he was very familiar with the temperatures in both areas.

¶17 Accordingly, based on Dr. Lipshultz' IME report and his hearing testimony, we find that he had an adequate foundation for his opinion that the claimant's long-standing, poorly controlled diabetes was responsible for his deteriorating cardiac condition.

¶18 Finally, with regard to the claimant's alleged knee injury, as the claimant's attorney acknowledges in the opening brief, the issue of compensability turns on whether the claimant provided a credible history regarding the alleged injury. Without a credible history from the claimant, there is no foundation for Dr. Theiler's medical opinion that the June 4 incident caused the injury, and the claimant has failed to meet his burden of proving a compensable claim. See Desert Insulations, 134 Ariz. at 151 (medical testimony must have an accurate factual background to constitute substantial evidence).

¶19 Because the ALJ acted within her discretion in rejecting the claimant's credibility, the requisite foundation for Dr. Theiler's medical opinion is lacking, and the knee injury remains noncompensable. Simply put, because the ALJ rejected claimant's testimony that he twisted his knee during the subject incident, there was no credible evidence to support Dr. Theiler's opinion the incident caused claimant to suffer a knee injury.


¶20 For all of the foregoing reasons, we affirm the ALJ's award.

Summaries of

Watt v. Indus. Comm'n of Ariz.

Dec 8, 2015
No. 1 CA-IC 15-0007 (Ariz. Ct. App. Dec. 8, 2015)
Case details for

Watt v. Indus. Comm'n of Ariz.

Case Details



Date published: Dec 8, 2015


No. 1 CA-IC 15-0007 (Ariz. Ct. App. Dec. 8, 2015)