                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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



   ZURICH AMERICAN INSURANCE COMPANY, Petitioner Carrier,

      FOUR POINTS BY SHERATON PHOENIX MESA GATEWAY,
                       Petitioner Employer,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                  HATTIE M. CURRIE, Respondent Employee.


                              No. 1 CA-IC 17-0058
                                FILED 10-18-2018


                   Special Action - Industrial Commission

                        ICA Claim No. 20153360080
                   Carrier Claim No. B641400274-0001-01
              C. Andrew Campbell, Administrative Law Judge

                             AWARD AFFIRMED


                                    COUNSEL

Quintairos, Prieto, Wood & Boyer, P.A., Phoenix
By Terence N. Cushing, Rita J. Bustos
Counsel for Petitioner Carrier and Petitioner Employer
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent

Day Law Office, Mesa
By Linda C. Day, John F. Day
Counsel for Respondent Employee



                     MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


C R U Z, Judge:

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

      (1) whether the administrative law judge (“ALJ”) committed
      error by finding that the respondent employee (“claimant”)
      was forthwith in reporting her industrial injury; and

      (2) whether the ALJ erred by failing to make findings
      addressing whether the claimant’s failure to make a forthwith
      report prejudiced the petitioner employer, Four Points by
      Sheraton (“Sheraton”).

Because we find no error and the evidence of record reasonably supports
the ALJ’s award, we affirm.

I.    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) (2012), and
Arizona Rule of Procedure for Special Actions Rule 10 (2009). 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
(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
(App. 2002).


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                   ZURICH/FOUR POINTS v. CURRIE
                        Decision of the Court


II.    FACTUAL AND PROCEDURAL HISTORY

¶3            The claimant worked as a house attendant for Sheraton
cleaning the hotel’s common areas—lobbies, bathrooms, etc. She testified
that on May 15, 2015, she injured her left shoulder while lifting a large trash
bag into a dumpster. The claimant filed a workers’ compensation claim,
which was denied for benefits, and she timely requested an ICA hearing.
The ALJ held a hearing and heard testimony from a housekeeping
supervisor; a housekeeping manager; two orthopedic surgeons, Drs.
Hatfield and Ferry; and the claimant.

¶4              The claimant testified that she was working alone on the
evening she was injured. Her duties included taking out the trash. She
stated that she dragged a trash bag to the dumpster outside the hotel. When
she picked up the trash bag to put it in the dumpster, her left shoulder “felt
like it froze, and [she] couldn’t move for a few minutes.” The claimant then
used her right arm to push the bag into the dumpster. Afterwards, her left
shoulder “hurt a little bit,” but she “thought it would be all right.”

¶5            The claimant continued to perform her regular work at the
hotel. She testified that she mentioned the incident to her coworkers, and
in late May, she reported it to her supervisor, Ileana Aldana. Sheraton then
provided work accommodations by reducing the claimant’s hours and
giving her lighter work. On June 20, 2015, she resigned because of her left
shoulder pain and sought treatment from her primary care physician.

¶6            Patricia Selby, a housekeeping supervisor, testified that she
was present on May 29 or 30 when the claimant reported her injury to
Aldana. Selby stated that the claimant told Aldana that she injured her
shoulder while taking out the trash, and Aldana scolded the claimant for
trying to push the heavy bag into the dumpster by herself. There was no
discussion of medical treatment.

¶7            Aldana testified that she was the housekeeping manager at
Sheraton at the time of the claimant’s reported injury. She first heard about
the claimant’s injury from other hotel employees, including Sheraton’s
human resources manager. Aldana testified that Sheraton’s general
manager, Shannen Desautelle, arranged a meeting to discuss the claimant’s
injury. She could not recall when the meeting occurred, but she stated that
the only people present were the claimant, Desautelle, and herself. Aldana
stated the claimant continued to perform her regular work, but Sheraton



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                    ZURICH/FOUR POINTS v. CURRIE
                         Decision of the Court

provided work accommodations including having someone else take out
the trash. Sheraton also offered the claimant medical treatment, which the
claimant declined.

¶8           At the conclusion of the testimony, the ALJ entered an award
for a compensable claim. Sheraton timely requested administrative review,
but the ALJ summarily affirmed the award. Sheraton next brought this
appeal.

III.   DISCUSSION

¶9             Sheraton first argues the ALJ erred when he found the
claimant had reported her industrial injury forthwith. An injured employee
must report the accident and the resulting injury to the employer
“forthwith.” See A.R.S. § 23-908(E). But an injured employee has no duty
to report an injury until she recognizes the nature, seriousness, and
probable work connection between the injury and her employment. 11
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law
§ 126.05[1] at 126-18 (2017).

¶10            The sanction for failure to report forthwith is forfeiture of
workers’ compensation benefits. See A.R.S. § 23-908(F). The ALJ may
relieve a claimant of this sanction if he “believes after investigation that the
circumstances attending the failure . . . are such as to have excused” the
failure to report forthwith. Id.

¶11             Sheraton argues that, as a matter of law, the fourteen- or
fifteen-day delay between the claimant’s injury and her report to Aldana
cannot be forthwith and cites Douglas Auto & Equipment v. Industrial
Commission, 202 Ariz. 345 (2002). In Douglas Auto, the claimant injured his
knee at work and waited six days to report it to his employer. Id. at 346,
¶ 1. An ALJ found that although the claimant did not forthwith report his
injury, his failure could be excused. Id. at 347, ¶ 8.

¶12            The Arizona Supreme Court ultimately upheld the ALJ’s
decision. In reaching its decision, the court stated, “We note initially that,
while the number of days between injury and the employee’s report of the
injury is not decisive, the fact that a short period of time lapses, as occurred
in this instance, makes prejudice to the employer less likely.” Id. at 348,
¶ 12. See also Larson, supra, § 126.01 at 126-4 (explaining the time frame for
notice of an injury “is comparatively short; it may be ‘forthwith,’ or ‘as soon
as practicable,’ or a specified period of a few weeks or months.”).



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                   ZURICH/FOUR POINTS v. CURRIE
                        Decision of the Court

¶13           In this case, the ALJ specifically found the claimant credible
and resolved the evidentiary conflicts in her favor. He concluded that she
forthwith reported her injury, and that her report “on May 29 or 30, 2015
. . . was within a reasonable time under the circumstances.” Further, the
ALJ found that Sheraton could have performed any investigation it deemed
appropriate when it provided the claimant with work accommodations.

¶14           Contrary to Sheraton’s contention, Arizona law has not
reduced forthwith reporting to a specific number of days. Instead, whether
a report has been made forthwith turns on what is deemed reasonable
under the circumstances. In this case, the claimant’s injury occurred while
she was working alone at night with no supervisor present. She did not
recognize the seriousness of her injury when it occurred because it was not
very painful, and she was able to perform her regular work. Further,
although Sheraton’s human resources manager, who was responsible for
workers’ compensation claims, became aware of the claimant’s injury, she
took no action until after the claimant reported it to Aldana. For these
reasons, the appellate record supports the ALJ’s compensability award.

¶15            Because we affirm the ALJ’s finding that the claimant
forthwith reported her industrial injury, we need not address whether the
claimant’s failure to forthwith report should be excused or whether the ALJ
should have made findings concerning prejudice to Sheraton. We affirm
the award.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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