Worley v. ICA/Honeywell
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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
JOHNNIE WORLEY,
)
)
Petitioner, )
)
v.
)
)
THE INDUSTRIAL COMMISSION OF
)
ARIZONA,
)
)
Respondent, )
)
HONEYWELL INTERNATIONAL, INC.,
)
)
Respondent Employer, )
)
HONEYWELL INTERNATIONAL/MATRIX,
)
)
)
Respondent Carrier. )
__________________________________)
Court of Appeals
Division One
No. 1 CA-IC 11-0006
DIVISION ONE
FILED: 09/15/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT D
MEMORANDUM DECISION
(Not for Publication –
Rule 28, Arizona Rules
of Civil Appellate
Procedure)
Special Action--Industrial Commission
ICA CLAIM NO. No. 20093-200040
CARRIER NO. No. 2345514
Administrative Law Judge Karen Calderon
AWARD AFFIRMED
_________________________________________________________________
Johnnie Worley
In Propria Persona Petitioner
Phoenix
Andrew Wade, Acting Chief Counsel
The Industrial Commission of Arizona
Attorney for Respondent
Phoenix
Cross & Lieberman, P.A.
By Lawrence H. Lieberman
Attorneys for Respondent Employer
Phoenix
G E M M I L L, Judge
¶1
This
is
a
special
action
review
of
an
Industrial
Commission of Arizona (“ICA”) award and decision upon review for a
denial of benefits.
For the following reasons, we affirm.
JURISDICTION AND STANDARD OF REVIEW
¶2
This court has jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) Sections 12-120.21(A)(2) (2003), 23-951(A)
(1995), and Arizona Rule of Procedure for Special Actions 10.
reviewing
findings
and
awards
of
the
ICA,
we
defer
to
In
the
Administrative Law Judge’s (“ALJ”) 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).
FACTS AND PROCEDURAL HISTORY
¶3
Worley, a coordinator for Honeywell, claimed he collided
with another coordinator in October 2009, injuring his right knee.
Worley filed for workers’ compensation benefits.
His claim for
benefits was denied in December 2009.
¶4
Worley appealed the denial, and a hearing was conducted
2
in May, July, and August 2010.
Over the course of the hearing, the
witnesses included Worley, three Honeywell employees, and two
examining physicians.
¶5
Worley testified that on October 27, 2009, while entering
a building and pushing and pulling carts, he collided with another
coordinator,
direction.
Albert
James,
who
was
heading
in
the
opposite
Worley alleged that one of the carts rolled over his
right heel, bending him forward and injuring his right knee, with
the pain in his Achilles tendon and heel.
Worley admitted that he
did not inform a supervisor about the injury that day, and he
continued to work until 11 p.m. that evening.
Worley admittedly
did not attempt to report the injury until Saturday, October 31.
He testified that he attempted to inform a supervisor, Dan Bookout,
but Bookout informed him that “he was too busy at the time to do
the accident report.”
Worley stated that he was “devastated,” and
he did not inform anyone else about the injury that day.
On
November 2, Worley discovered that Bookout had not yet turned in
the paperwork.
On November 4 and 5, Worley attempted to notify the
director, Amy, but she was unavailable.
Worley testified he then
notified his manager, Mike Fannucci, about the injury on November
5, and Fanucci went “ballistic.”
¶6
In
contrast,
James
injured after the collision.
testified
Worley
did
not
appear
Instead, according to James, Worley
just “continued on his way” following the collision.
3
In addition,
Bookout testified Worley came into his office on October 31 and
informed him that “his legs were sore . . . and he asked me what
[are] some good leg exercises.”
Worley did not mention that he had
injured his knee, and instead Worley told Bookout that “a couple of
weeks ago . . . he had hurt his ankle near the truck and trailer.”
¶7
Fanucci, a supply chain manager at Honeywell, testified
that on November 5, Worley informed him that he had “brushed the
back of his calf with a cart” a week prior.
Worley lifted up his
pant leg, showed Fanucci his calf, and stated “[I]t’s swollen.”
Fanucci could not tell whether the calf was in fact swollen, but he
recommended Worley see a doctor.
¶8
Dr. Hammond testified that he saw Worley on November 7.
Worley complained of pain in his right knee, from moving some gear
around a horse trailer, and an older injury to the gastroc muscle1
and the Achilles tendon.
work.
Worley claimed both injuries occurred at
Dr. Hammond diagnosed Worley as having “knee strain with a
possible injury to the medial meniscus,” and he recommended an MRI
for further examination.
Dr. Hammond also opined that the knee
strain was a result of the injury related to the horse trailer and
not related to the Achilles injury.
¶9
Dr. Domer, an orthopedic surgeon, testified Worley came
1
The gastrocnemius muscle is “the chief muscle of the calf of
the leg, which flexes the knee and foot. It runs to the Achilles
tendon from two heads attached to the femur.”
The New Oxford
American Dictionary 696 (2nd ed. 2005).
4
to see him in November 2009, complaining of knee pain in his right
knee because “he was pushing and pulling a cart at work when
another co-worker actually ran into him.”
Dr. Domer ordered an
MRI, which revealed a tear of his medial meniscus, and Dr. Domer
performed surgery on Worley in January 2010 to repair the injured
knee.
¶10
The ALJ issued her Decision Upon Hearing and Findings and
Award in October 2010.
The ALJ found:
Upon a review of
I
find
the
Accordingly, any
resolved against
the totality of the evidence,
applicant
not
credible.
conflicts in the evidence are
the applicant.
The medical evidence does not support any
finding that the applicant injured his
Achilles tendon. The applicant did not file
any claim for an injury to his knee. I find
the testimony of Mr. James to be credible that
the applicant did not injure himself at the
time of the collision incident. The applicant
has not filed a claim for an injury while
loading a cart onto the horse trailer.
Accordingly,
the
applicant’s
claim
for
industrial injury sustained on October 27,
2009 is denied.
Upon review, the ALJ affirmed its decision in December 2010.
ANALYSIS
¶11
As an initial matter, we note that Worley does not
adequately develop and support his argument in his opening brief.
See ARCAP 13(a)(6) (The appellant’s brief should include “[a]n
argument which shall contain the contentions of the appellant with
respect to the issues presented, and the reasons therefor, with
5
citations to the authorities, statutes and parts of the record
relied on.”).
Because we “prefer to decide each case upon its
merits rather than to dismiss summarily on procedural grounds,”
Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d
525, 527 (App. 1984), we construe Worley’s argument to be a
challenge to the sufficiency of the evidence to support the ALJ’s
findings.
In other words, we understand Worley to be arguing that
we should set aside the award because the evidence is insufficient
to support the denial of compensation as determined by the ALJ.
¶12
The ALJ determines the credibility of witnesses, Royal
Globe Ins. Co. v. Indus. Comm'n, 20 Ariz.App. 432, 434, 513 P.2d
970, 972 (1973), and resolves conflicts in the evidence.
Johnson-
Manley Lumber v. Indus. Comm'n, 159 Ariz. 10, 13, 764 P.2d 745, 748
(App. 1988).
the
By witnessing or at least hearing the testimony of
witnesses,
the
ALJ
is
in
the
best
position
credibility and resolve conflicts in the evidence.
to
evaluate
See Adams v.
Indus. Comm’n, 147 Ariz. 418, 420, 710 P.2d 1073, 1075. (App.
1985).
Additionally, the ALJ “may reject testimony if it is self-
contradictory,
impeached.”
inconsistent
with
other
evidence,
or
directly
Phelps v. Indus. Comm'n of Ariz., 155 Ariz. 501, 506,
747 P.2d 1200, 1205 (1987).
¶13
Worley asserted that he was injured after he collided
with James while pushing and pulling a cart into a building.
Worley
testified
that
when
he
6
collided
with
James,
he
was
“hollering” and fell “down to [his] knees.”
Worley’s account of
the events differed significantly from that of the other witnesses
at trial.
Specifically, James’s testimony differed from Worley’s
because James believed Worley did not appear to be injured after
the incident.
James testified Worley “continued on his way”
following the collision.
Worley admitted that he continued to work
until 11:00 that evening.
The ALJ found James’s testimony “to be
credible that [Worley] did not injure himself at the time of the
collision incident.”
¶14
report
In addition, while Worley testified that he attempted to
the
injury
to
Bookout,
Bookout
testified
that
Worley
informed him that he had injured his ankle a couple of weeks ago,
but never reported that he suffered a knee injury four days prior.
Furthermore, when Worley reported the collision to Fanucci, a week
following the incident, he complained that he “brushed the back of
his calf with a cart.”
Additionally, Dr. Hammond testified that
Worley’s knee strain was a result of another injury, related to
moving some gear around a horse trailer, and was unrelated to the
injury to Worley’s Achilles tendon.
The testimony supports the
ALJ’s finding that Worley did not suffer a knee injury on October
27, 2009, following a collision with James.
Other testimony at the
hearing conflicted with Worley’s account of the events, and the ALJ
was entitled to select the testimony she felt was most persuasive.
See Phelps, 155 Ariz. at 506, 747 P.2d at 1205.
7
The evidence is
sufficient to support the ALJ’s credibility findings and the
accompanying conclusion of noncompensability.
CONCLUSION
¶15
Because
the
record
supports
the
ALJ’s
decision,
we
affirm.
______/s/___________________
JOHN C. GEMMILL, Judge
CONCURRING:
_____/s/________________________
JON W. THOMPSON, Presiding Judge
_____/s/________________________
MAURICE PORTLEY, Judge
8
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