Early v. ICA/ADA/SCF

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE REX A. EARLY, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, ADA CONSTRUCTION MANAGERS COMPANY, INC., Respondent Employer, SCF ARIZONA, Respondent Carrier. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/27/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-IC 10-0015 DEPARTMENT C MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action--Industrial Commission ICA CLAIM NOS. 20090-560345*/20090-640140** CARRIER NOS. 0832824*/0903371** Administrative Law Judge Paula R. Eaton AWARD AFFIRMED Rex A. Early Petitioner in propria persona Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Peoria Phoenix James B. Stabler, Chief Counsel SCF Arizona by Deborah E. Mittleman Attorneys for Respondents Employer/Carrier Phoenix B A R K E R, Judge ¶1 This Commission is of a special Arizona s action denial of review Rex of the Early s Industrial claims for industrial injuries that allegedly occurred on or about November 30, 2008. Early s Administrative Law sole Judge s claim finding on that appeal his is that testimony credibility was arbitrary and unsupported by evidence. the lacked For the reasons set forth below, we affirm. Jurisdiction and Standards of Review ¶2 This court has jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(2) (2003), 23951(A) (1995), Actions 10. and Arizona Rules of Procedure for Special 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 the 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). 2 Facts and Procedural History ¶3 Petitioner Early was employed by Respondent Employer ADA Construction in 2008 and 2009 as a field superintendent in charge of scheduling and overseeing construction workers. In 2006 and 2007, prior to his job with ADA, he was employed by another construction company, R.W. Johnson Custom Builders. Early had also worked for ADA for approximately five to seven years prior to his job with R.W. Johnson. In early February 2009, ADA informed Early that he would be temporarily laid off. ¶4 On February 12, 2009, Early filed a Worker s Report of Injury making a claim for a left foot injury that allegedly occurred from stepping on a nail on November 30, 2008. ADA s insurance carrier denied Early s claim on March 18, 2009. Early then filed a timely request for hearing. 1 On February 23, 2009, Early signed another claim form alleging that he injured his back and legs on February 10, 2009 while picking up concrete blocks. The carrier also denied that claim, and Early filed a request for hearing. ¶5 In his written answers to interrogatories prior to his hearing, Early claimed that he had injured his back picking up concrete blocks and loading them 1 into a backhoe bucket on Petitioner has abandoned his claim for the alleged foot injury and appeals only his later second claim related to his lower back. We therefore address only the back claim. 3 February 10, 2009. his back moving In his deposition, he testified that he hurt concrete in late January 2009 and that February 10 he hurt his back shoveling out a water box. on Prior to the hearing, Early amended the date of injury to December 4, 2008. ¶6 At the hearing, Early testified that he felt some back pain while lifting a piece of concrete. Early did not report any injury to the ADA personnel who were working with him at the site of the injury. He testified that he did not think he was injured at the time because he ha[d] aches and pains all the time. Early continued to work and did not mention the problem about his back to anyone at ADA or to his wife. He then claimed that he developed pain a week after the incident. When he was admitted to the hospital on December 27, 2008 on an unrelated matter, he did not mention any recent back injuries. ¶7 worked Early at offered the a construction testimony site with of Early two in witnesses 2008. who They testified that in December 2008 they saw Early struggling to dig near a sewer line and that at that time Early had complained about his back hurting. Early s wife testified that Early was having back problems in fall of 2008 around Thanksgiving. ¶8 Early s doctor, Dr. Demers, started treating Early on February 23, 2009 for his back pain. 4 Early had told Dr. Demers that he was picking up concrete blocks when he injured his back. He gave December 18, 2008 and February 10, 2009 as the dates of his accident. Early never told Dr. Demers that he experienced any symptoms while shoveling. Dr. Demers had no record of a shoveling incident on February 10, 2009. ¶9 Early did not miss any work in December or January due to back problems. being laid off. Nor did he miss any work in February prior to Early s primary care physician reported in mid- April of 2009 that Early had complained of back problems with a potential cause of lifting at work in November and subsequently lifting a 24-pack of beer at his father s house. Terry McLean, another physician, reviewed Early s medical history and noted that Early had a preexisting lumbar degenerative disk and prior surgery. He believed that the absence of back pain complaints in Early s December hospital visit raised a credibility question as to whether an injury had occurred in early December. ¶10 At credibility the and hearing, denied the his ALJ claims found for that Early benefits. lacked The ALJ specifically stated that she was unable to conclude that the applicant sustained any injury to his back or foot in the course and scope of his employment regardless of the testimony of the other witnesses who may support appealed the ALJ s findings. 5 his claims. Early timely Discussion ¶11 On appeal, Early contends that the ALJ s credibility finding was arbitrary and capricious and that her reasoning was unsupported by the record and contrary to uncontradicted reliable benefits, evidence. the In employee injury is compensable. 127, 568 P.2d 432, a claim bears for the workman s burden of compensation proving that an Yates v. Indus. Comm n, 116 Ariz. 125, 434 (App. 1977). For an injury to be compensable, it must ar[i]se out of and in the course of [] employment, and the employee must establish relationship between work activity and injury. a causal O Donnell v. Indus. Comm n, 125 Ariz. 358, 360, 609 P.2d 1058, 1060 (App. 1979). ¶12 Although Early attempted to meet this burden by testifying that his injury was caused by events that occurred while he was at work, [t]he administrative law judge is the sole judge of witness credibility. Holding v. Indus. Comm n, 139 Ariz. 548, 551, 679 P.2d 571, 574 (App. 1984). An ALJ may not reject a claimant's testimony simply because it is selfinterested, but she may reject it if it is self-contradictory, inconsistent with other evidence, or directly impeached. ¶13 Here, determination evidence that in Early s the record testimony 6 supports lacked the Id. ALJ s credibility. Early s testimony was inconsistent injury, including his stating at as to one the point cause that he of his injured himself lifting concrete blocks and at another point that he hurt himself while shoveling. His testimony as to the date of injury was inconsistent, ranging from December of 2008 to early February of 2009. December 27, 2008, injuries. When he Early failed to entered the hospital mention any recent on back And, Early did not even file a claim for compensation or seek medical treatment for his alleged injuries until after he heard that he was going to be temporarily laid off. ¶14 Assuming Early is correct in his contention that minor inconsistencies alone history accident, Ariz. of 173, an 175, 602 are not enough Allen P.2d v. 841, to reject Industrial 843 (App. a claimant s Commission, 1979), 124 these inconsistencies were more than simply minor; his account of what events took place changed entirely from a lifting accident to a shoveling accident. Early also attempts to explain his date-of- injury inconsistencies by stating that he was told to use the February 10 date as the date of injury by Dr. Demers office because worker s comp goes crazy if two dates of injury are utilized. Even if the ALJ had believed this testimony, she could reasonably have interpreted this account as tending to decrease Early s credibility rather 7 than increase it. Such behavior could indicate that Early was willing to revise his description of his injury to meet the perceived guidelines of the workman s compensation program, thus decreasing his credibility overall. ¶15 Early also offered the testimony of Dr. Demers in support of his claim that he was injured while working for ADA. The value Medical of opinion Dr. Demers testimony testimony, relating to however, is minimal. causation is only as valuable as the accuracy of the facts on which it is based, see Desert Insulations, Inc. v. Industrial Commission, 134 Ariz. 148, 151, 654 P.2d 296, 299 (App. 1982), and Demers opinion was based on Early s own recitation of his prior injuries. Additionally, a different physician s report noted the presence of a preexisting back condition and an uncertain causal relationship between Early s work for ADA and his back injury. In the face of this competing testimony, the ALJ could have reasonably decided that the report discrediting Early was more reliable than the one supporting his statements. Therefore, sufficient evidence existed in the record for the ALJ to find that Early did not sustain his burden of proof in showing that he sustained a back injury caused by his work for ADA. ¶16 Early claims that the testimony of Stan Warren, a project manager at ADA, corroborates his claim that his back 8 injuries were caused at work. Warren testified that he saw Early walking funny and that Early had said his back hurt. also testified backhoe. that he saw Early loading concrete He into a This testimony does not establish that Early s back injury, or even his back pain, was caused by loading concrete. ¶17 Early also asserts that his claims are corroborated by the similar testimony of two additional coworkers. Both workers testified that they saw Early shoveling toward the end of 2008 and that his back hurt while he was shoveling. As testified, physical aches and pains were common in his job. Early His coworkers testimony does not necessarily establish that Early was injured as a result of his digging. Early s failure to seek any medical attention for a back injury until he learned that he would be laid off from his job also supports an inference that any pain enough to that he prevent experienced Early while from digging working. was not serious Additionally, the coworkers testimony failed to establish that any serious injury originated with the digging incident. 9 Conclusion ¶18 For the foregoing reasons, we affirm the award. /s/ __________________________________ DANIEL A. BARKER, Presiding Judge CONCURRING: /s/ ___________________________________ MARGARET H. DOWNIE, Judge /s/ ___________________________________ MICHAEL J. BROWN, Judge 10

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