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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                     ERNESTO LUEVANO, Petitioner,

                                       v.

    THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

            ELPIDIO VEGA RANGEL, Respondent Employee,

       SPECIAL FUND DIVISION/NO INSURANCE SECTION,
                  Respondent Party in Interest.


                            No. 1 CA-IC 17-0040
                              FILED 1-30-2018


                Special Action - Industrial Commission
                     ICA Claim No. 20151-180082
                         Carrier Claim No. None
              Gaetano J. Testini, Administrative Law Judge

                           AWARD AFFIRMED
                                COUNSEL

Hendrickson & Palmer, P.C., Phoenix
By Adam P. Palmer
Counsel for Petitioner

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent

Elpidio Vega Rangel, Phoenix
Respondent Employee

Special Fund Division/No Insurance Section
By Stephen D. Ball
Counsel for Respondent Party in Interest




                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.


W I N T H R O P, Presiding Judge:

¶1             This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon administrative review finding
Claimant’s injury to be work-related, and thus, a compensable claim. Two
issues are presented on appeal: (1) whether the respondent employee’s
(“Claimant”) injury arose out of and in the course of his employment; and
(2) whether the administrative law judge (“ALJ”) erred in his resolution of
the lay witness conflicts. Because we find no error in the ALJ’s resolution
of the conflict in witness testimony, and that reasonable evidence of record
supports the award, 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), 23-951(A), and Arizona Rules




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                    LUEVANO v. RANGEL/SPECIAL
                        Decision of the Court

of Procedure for Special Actions 10.1 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 (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 (App. 2002).

                FACTS AND PROCEDURAL HISTORY

¶3            Beginning in 2009, Claimant, in exchange for rent, worked as
a handyman for the uninsured petitioner employer, Ernesto Luevano.
Claimant lived in one of nine apartments in a complex owned by Luevano.
Claimant’s duties included taking care of the grounds, making repairs, and
collecting and depositing the rents.

¶4            On November 30, 2014, at 3 a.m., Claimant received a phone
call from a tenant stating that he thought there was someone in the
apartments’ parking lot trying to steal something. Claimant went outside
to investigate and got into a verbal altercation with a group of people
having a party and bonfire in the backyard of the property next door to the
complex. This culminated in a physical altercation, during which Claimant
was shot three times.

¶5           Claimant filed a workers’ compensation claim, which was
denied for benefits. He timely requested an ICA hearing, and at the hearing
both Claimant and Luevano testified. Because he concluded that Luevano
was not Claimant’s employer, the ALJ entered an award for a non-
compensable claim. Claimant requested administrative review, but the ALJ
summarily affirmed the award. Claimant appealed to this court, and,
finding as a matter of law that Luevano was Claimant’s employer, we set
aside the ALJ’s award and remanded to the ICA for a new hearing on the
issue of whether those injuries arose out of the course and scope of such
employment. Rangel v. Indus. Comm’n of Ariz., 1 CA-IC 16-0005, 2016 WL
6080588 (Ariz. App. Oct. 18, 2016) (mem. decision).

¶6           On remand, a different ALJ conducted a hearing at which
Claimant, Luevano, and one of the apartment complex tenants testified.
Claimant testified that, on the night of his injury, he had ingested some
alcohol and methamphetamines but was not impaired. Claimant stated
that he had been asleep for several hours when he received the tenant’s
phone call and got up to investigate.


1      Absent material revision after the relevant dates, we cite the current
version of the statutes and rules.


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                     LUEVANO v. RANGEL/SPECIAL
                         Decision of the Court

¶7             Claimant testified that when he went outside, none of the
tenants were present, and he did not see anyone else. Because there were
still people in the backyard next door to the apartment complex, however,
Claimant went over to the fence and called to them to find out if they had
seen anything. They were apparently offended by his inquiry, and became
verbally abusive. Claimant responded in kind, and several of the
partygoers came over to the apartment complex parking lot to confront
him. The quarrel escalated and Claimant was shot.

¶8            Claimant acknowledged that Luevano had never specifically
instructed him to provide security at the apartments, but if a tenant called
him, he would investigate. Claimant stated that Luevano had previously
told him to remove trespassers and troublemakers from the premises, and
on occasion, Claimant had called the police for this purpose. Claimant also
offered into evidence certain letters authored by Luevano that detailed
Claimant’s job duties:

      [Claimant] works for me while living there, he does the
      cleaning around the property. Helps with all maintenance
      and repairs, painting and so on, helps keep an eye on things,
      watching that everything is in order and no unwanted activities take
      place.

(Emphasis added.)2

¶9            Isabelle Sanchez, a former tenant of the apartments, testified
that on the night in question she heard arguing in Spanish right outside her
apartment at the front of the property, followed by gunshots. Although she
did not know whether Claimant provided security at the apartments, she
stated that “he did everything there.” She recalled another instance when
Claimant handled an argument at the back of the property.

¶10           Luevano testified that, beginning in 2009, Claimant had
performed handyman work at the apartments in exchange for rent.
Regarding security issues, Luevano stated that he had instructed Claimant
to always call the police and not to confront anyone or take the law into his
own hands. Luevano testified that it was Claimant’s job to watch over the
property, not people.


2       In reaching an award, the ALJ considers all relevant evidence, both
testamentary and documentary. Perry v. Indus. Comm’n, 112 Ariz. 397, 398
(1975).



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                     LUEVANO v. RANGEL/SPECIAL
                         Decision of the Court

¶11         Following the hearing, the ALJ entered an award for a
compensable claim. Luevano timely requested administrative review, and
the ALJ summarily affirmed the award. This special action appeal
followed.

                                  ANALYSIS

¶12           Luevano asserts that Claimant’s injury did not arise out of
and in the course of his employment because security was not part of his
job duties, and that the third-party assault was a purely personal
confrontation.3 To establish a compensable claim, Claimant had the burden
of proving that he had sustained an injury by an accident arising out of and
in the course of his employment. See A.R.S. § 23-1021(A).

¶13            “Arising out of” refers to the origin or cause of the injury,
while “in the course of” refers to the time, place, and circumstances of the
injury in relation to the employment. See, e.g., Peter Kiewit Sons’ Co. v. Indus.
Comm’n, 88 Ariz. 164, 168 (1960); Scheller v. Indus. Comm’n, 134 Ariz. 418,
420 (App. 1982). Assault-related injuries are only compensable when the
altercation arises out of a work-related dispute. See, e.g., Colvert v. Indus.
Comm’n, 21 Ariz. App. 409, 410-11 (1974).

¶14           In this case, the ALJ found, in pertinent part:

       10. I find [Claimant] is an employee of Mr. Luevano. I further
       find that the four letters submitted by [Claimant], and signed
       by Mr. Luevano set out his duties to include handling cash,
       making deposits, cleaning around the property, maintenance
       and repairs, painting, keeping an eye on things, making sure no
       ‘unwanted activities’ take place.

       11. I do not find Mr. Luevano to be a credible witness, and
       any conflict[s] in the testimony between him and [Claimant]
       are resolved in [Claimant’s] favor.

       12. I find [Claimant] was within the course and scope of his
       employment when he went to ask the neighbors if they were
       aware of the potential theft of the property. I do not find that

3       Claimant reported to the investigating police officers that on the
night of the assault, he was walking around the apartments to be sure that
they were secure, as part of his work for Luevano, and he ran into a group
of males from a party next door that he thought might have been trying to
steal bicycles.


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                    LUEVANO v. RANGEL/SPECIAL
                        Decision of the Court

       the altercation was a result of a personal conflict imported to
       the workplace.

(Emphasis added.) Based on these findings, to which we defer, Claimant
was assaulted while “keeping an eye on things” at the apartments and
trying to insure “no unwanted activities,” such as burglary, occurred. For
these reasons, his injury arose out of and in the course of his employment
and was not the result of a purely personal confrontation.

¶15           Luevano next argues that the ALJ erred by finding Claimant
credible. 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 (App.
1984). In resolving inconsistencies in a witness’ testimony, the ALJ can
“accept as true either statement, or, on account of the discrepancy . . . [can]
disregard the testimony of the witness entirely.” Royal Globe Ins. Co. v.
Indus. Comm’n, 20 Ariz. App. 432, 435 (1973).

¶16          We have found only two situations in which an ICA award
based on an ALJ’s credibility determination has been successfully vacated
on appeal. In Adams v. Industrial Commission, 147 Ariz. 418 (App. 1985), the
Arizona Supreme Court set aside the award where the ALJ had not had the
opportunity to observe a witness whom the ALJ in the award deemed not
credible. Similarly, in Ratley v. Industrial Commission, 74 Ariz. 347 (1952),
the Supreme Court set aside an award when the ALJ arbitrarily rejected
uncontradicted testimony that was corroborated by a disinterested witness.

¶17           In this case, the ALJ had full opportunity to observe and
evaluate the credibility of the respective lay witnesses. The evidence
presented did not in fact conflict, and it was the exclusive role of the ALJ to
resolve the conflict. Accordingly, we find no error in the ALJ’s credibility
determination. Based on the ALJ’s resolution of the evidentiary conflicts
and the credibility determination, the evidence supports the
compensability award.

                               CONCLUSION

¶18           For the foregoing reasons, we affirm the award.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA
                                         6
