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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                     ANTONIO ROJAS DIAZ, Petitioner,

                                        v.

     THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

          SUN VALLEY MASONRY, INC., Respondent Employer,

   ARCH INSURANCE/GALLAGHER BASSETT, Respondent Carrier

                             No. 1 CA-IC 15-0019
                              FILED 1-26-2016


                  Special Action – Industrial Commission

                        ICA Claim No. 20140-360192

                 Carrier Claim No. 0036484-000342-WC-01

     The Honorable Andrew Campbell, Administrative Law Judge

                                  AFFIRMED


                               APPEARANCES

Antonia Rojas Diaz
Pro Se Petitioner

The Industrial Commission of Arizona, Phoenix
By: Andrew F. Wade
Counsel for Respondent
Jardine Baker Hickman & Houston, PLLC, Phoenix
By Stephen C. Baker, Rae Richardson
Counsel for Respondent Employer



                      MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined.


G E M M I L L, Judge:

¶1            Antonio Rojas Diaz filed this petition for special action
contesting a decision by the Industrial Commission of Arizona denying his
claim for workers’ compensation. The issue is whether a factual basis
existed for the administrative law judge’s (“ALJ”) ruling. We affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Diaz was employed by Sun Valley Masonry as a cement
finisher when he fell from a truck in October 2013, landing on his back and
left elbow. Diaz initially felt pain but finished out the day and continued
working off and on until December 10. At that point he was in too much
pain to continue working so he went to the hospital and subsequently filed
an incident report with Sun Valley.

¶3            The ALJ held an evidentiary hearing on various days
extending from October 2014 to January 2015, receiving testimony from
three doctors, Diaz, and several of Diaz’s coworkers. The ALJ issued a
comprehensive decision upon hearing detailing and comparing the
conflicting testimony of the medical witnesses. The ALJ resolved the
conflicting testimony in favor of Sun Valley and concluded therefore that
Diaz had “not met his burden of establishing [that] he sustained a
compensable industrial injury pursuant to A.R.S. § 23-1021.”

¶4             Diaz filed a request for review and included additional
medical reports and opinions not introduced at the underlying hearing.
The ALJ issued a decision upon review affirming his previous award. Diaz
then filed this special action. We have jurisdiction under Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(2), 23-951(A), and Arizona Rule of
Procedure for Special Actions 10.



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                        DIAZ v. SUN VALLEY, et al.
                           Decision of the Court


                                 ANALYSIS

¶5            Diaz argues that the ALJ failed to adequately consider the
evidence of his fall and injury and the testimony from his coworkers and
Dr. Sanjay Patel. He also asserts that Sun Valley failed to make a proper
accident report. Finally, Diaz urges us to consider the records and opinions
of the doctors and therapists that he submitted to the ALJ after the decision
upon hearing.

¶6             We review the evidence in a light most favorable to
upholding the award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16
(App. 2002). “We will not disturb an ALJ’s findings of fact so long as [they
are] substantiated by competent evidence.” City of Tucson v. Indus. Comm’n,
236 Ariz. 52, 55, ¶ 6 (App. 2014).

¶7            The ALJ heard testimony supporting Diaz from Dr. Patel. Dr.
Patel examined Diaz and reviewed the medical reports, and in his opinion,
Diaz’s injuries were causally related to his fall. Dr. Patel testified the fall
“could have caused some of the findings in the imaging studies as well as
aggravated some of the underlying preexisting degenerative changes.” Dr.
Patel also said that Diaz required further medical treatment as a result of
the accident.

¶8            The ALJ then heard contradicting testimony from Dr. Edward
Dohring regarding Diaz’s back pain. Dr. Dohring explained that, in his
opinion, the injuries and pain Diaz complained of were not brought on by
the fall:

       [T]he imaging shows that his L1 compression fracture is old and
       has osteophytic spurring that takes years to develop, that we
       typically see in old compression fractures, not in new ones; no
       signal changes on the MRI that was performed that would
       indicate anything acute or ongoing with regard to the
       compression fracture. People who have kyphosis associated
       with compression fractures are much more likely to get
       degenerative disease of the lumbar spine. He has chronic
       degenerative changes at multiple levels. Again, these are the kinds
       of things that typically take years to develop and he has mild
       stenosis of multiple areas of the lumbar spine, probably most
       significant at L3-4, but still the kinds of things that typically
       are seen every day in the office in people where they're taking



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                        DIAZ v. SUN VALLEY, et al.
                           Decision of the Court

       years to develop and an injury doesn't play any role in their
       development or their becoming symptomatic.

(Emphasis added).

¶9            Finally, the ALJ received testimony from Dr. Peter Campbell
regarding Diaz’s arm and shoulder. Dr. Campbell opined that there was
no objective evidence of an injury to either the shoulder or the elbow. He
also stated that the symptoms and pain Diaz described were not consistent
with a limb injury.

¶10            It is the responsibility of the ALJ to resolve conflicting medical
testimony. Karber/Interstate Air v. Indus. Comm’n, 180 Ariz. 411, 416 (App.
1994) (citing Stainless Steel Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz. 12,
19 (1985)). Furthermore, “[w]e will not disturb the ALJ’s resolution of
medical conflicts unless it is ‘wholly unreasonable.’” Sw. Desert Images, LLC
v. Indus. Comm’n, 236 Ariz. 189, 192, ¶ 13 (App. 2014) (quoting Stainless
Specialty, 144 Ariz. at 19).

¶11           Both parties presented the ALJ with substantial but
conflicting evidence. On this record, we cannot say that the ALJ’s decision
was “wholly unreasonable” or unsubstantiated by any competent evidence.
See Malinski v. Indus. Comm’n, 103 Ariz. 213, 217, 439 P.2d 485, 489 (1968)
(explaining that when there is a conflict between two experts, the ALJ is to
weigh the conflicting evidence, judge witness credibility, and determine
which opinion to rely on). The ALJ made detailed findings and determined
that Dr. Dohring’s and Dr. Campbell’s opinions were “more probably
correct and well founded.” The decision is supported by competent
evidence.

¶12           Having resolved the conflicting expert medical testimony in
favor of the opinions of Drs. Dohring and Campbell, the ALJ then
concluded that Diaz had not met his burden of establishing he had
sustained a compensable industrial injury. See Yates v. Indus. Comm’n, 116
Ariz. 125, 127 (App. 1977) (injuries must be proven causally related to the
industrial accident); see also A.R.S. § 23-1021.

¶13           Diaz also claims that he was prejudiced by Sun Valley’s
failure to timely fill out and file an accident report. An employer’s report
of injury was filed by Sun Valley, however, and Diaz was not penalized by
the ALJ in any way for the timing of Sun Valley’s report. Moreover, the




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                        DIAZ v. SUN VALLEY, et al.
                           Decision of the Court

ALJ specifically rejected Sun Valley’s affirmative defense that Diaz had
failed to timely (“forthwith”) report the accident or injury.

¶14           Finally, Diaz urges us to set aside the ALJ’s ruling based on
additional records of therapy and doctors’ opinions submitted by Diaz after
the decision upon hearing. In his decision upon review, the ALJ noted that
he had considered all of the records submitted during the hearing process,
but he would not consider any documents submitted after his decision
upon hearing as they were untimely. Because those records were not
submitted to the ALJ prior to his decision upon hearing and because the
ALJ did not abuse his discretion in declining to consider new records in his
decision upon review, we also decline to consider them. See Kessen v.
Stewart, 195 Ariz. 488, 493, ¶ 19 (App. 1999) (generally we do not consider
an issue raised for the first time on appeal); see also Benitez v. Indus. Comm’n,
15 Ariz. App. 54, 55 (1971) (rejecting new allegations and facts submitted to
the court at oral argument because they were not included in the original
record).

                               CONCLUSION

¶15           For these reasons, we affirm the award of the ALJ.




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