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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                          JOSE A. CUEVAS, Petitioner,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

         PACESETTER MARKETING, INC., Respondent Employer,

           WESCO INSURANCE COMPANY, Respondent Carrier.

                              No. 1 CA-IC 16-0040
                                FILED 3-2-2017

                   Special Action – Industrial Commission
                        ICA Claim No. 20153-270566
                        Carrier Claim No. 2036120-1

                 Jonathan Hauer, Administrative Law Judge

                             AWARD AFFIRMED


                                    COUNSEL

Greenberg Law Center, LLC, Phoenix
By Justin A. Greenberg
Counsel for Petitioner

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent Industrial Commission of Arizona
Law Offices of Broening, Oberg, Woods & Wilson, P.C., Phoenix
By Jerry T. Collen, Kevin R. Myer
Counsel for Respondent Employer and Respondent Carrier



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review, finding the claim of the
Petitioner Employee, Jose A. Cuevas (“Petitioner”), not compensable
because Petitioner failed to establish by a reasonable preponderance of the
credible evidence that he sustained an industrial injury arising out of and
in the course of his employment with the Respondent Employer,
Pacesetters.    The administrative law judge (“ALJ”) resolved the
compensability issue in favor of Pacesetters and the Respondent Carrier,
Wesco Insurance Company (“Wesco”) (collectively, “Respondents”). For
the following reasons, we affirm the award and decision upon review.

                FACTS AND PROCEDURAL HISTORY

¶2             Petitioner began working for Pacesetters in February 2015 as
a “lead man.” In that position, he was responsible for building high
performance parts for automotive exhaust systems. His job required him
to regularly lift metal assembly fixtures weighing between twenty and one
hundred pounds.

¶3             On November 19, 2015, Petitioner filed a claim for workers’
compensation benefits, alleging he had injured his left leg and buttocks
while lifting heavy equipment at work on September 3, 2015. Wesco denied
Petitioner’s claim for benefits.

¶4           Petitioner protested the denial of his claim and requested a
hearing, which was scheduled to determine whether the claim was
compensable. At the hearing, the ALJ heard testimony from Petitioner and
several of his former coworkers. Neither Petitioner nor Respondents
presented medical testimony.



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                    CUEVAS v. PACESETTER/WESCO
                         Decision of the Court

¶5             Petitioner testified that he injured himself at work on
September 3, 2015, while lifting an assembly fixture from a box. He stated
he felt a “popping pain” in his back when he tried to lift the fixture.1 When
he told his “first supervisor,” Saul, that he hurt himself, Saul offered to
write a work injury report for Petitioner in exchange for money.
Petitioner’s other boss, Ernesto Galindo, “blew [Petitioner] off.” As a result,
Petitioner decided to “tough[] it out” and go back to work.

¶6            Petitioner continued to work his normal shift, but felt pain
and tingling in his lower back down to his toes. Petitioner told Ernesto and
Saul of his injury “a couple more times,” and Ernesto gave Petitioner
ibuprofen for the pain.

¶7             Petitioner first obtained medical treatment for his injury on
November 19, 2015.2 Dr. Seth Maxwell’s report from that date indicates that
Petitioner told him he had injured his left leg and buttocks at work while
lifting heavy equipment. At Petitioner’s request, Dr. Maxwell completed a
Physician’s Report of Injury for the Industrial Commission. Petitioner
stated that he reported to work at Pacesetters on November 20, but did not
return after that.3

¶8           Petitioner saw Dr. Kevin Ladin on December 4, 2015. Dr.
Ladin’s medical report also indicates that Petitioner described the injury as
work-related.4



1       Petitioner testified on direct examination that, after he lifted the
object, he walked a few steps before placing the object on a stand. On cross-
examination and after Respondents’ attorney impeached Petitioner with
statements he made during a deposition, Petitioner clarified that he did not
take any steps, and immediately dropped the fixture back in the box after
feeling the “pop” in his back.

2      Petitioner stated that he had never had any problems with his back
before September 3, 2015, and had not received any medical evaluation for
back pain before November 19, 2015.

3      An employee report provided by Pacesetters indicates that
Petitioner also worked on November 23 for four hours.

4       Dr. Ladin’s report states, “[Petitioner] tells me that on 09/03/15 he
was lifting some heavy equipment when he experienced an acute onset of
left sided low back pain.”


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                    CUEVAS v. PACESETTER/WESCO
                         Decision of the Court

¶9             Three of Petitioner’s former coworkers—including Eduardo
Villa, Petitioner’s nephew; Alex Herrera; and Ernesto Galindo, Petitioner’s
former supervisor—also testified at the hearing. Villa stated that, around
September 5, 2015, he began to notice Petitioner had difficulty doing things
around the house, and Petitioner told Villa he hurt himself at work.

¶10           Herrera testified that he often drove Petitioner to work, and
Petitioner mentioned he hurt his back lifting something at work. But
Herrera also stated that Petitioner mentioned having received some kind of
treatment for his low back before September 2015.

¶11           Galindo testified that, at some point before September 3, 2015,
Petitioner requested a back support belt, stating he had hurt his back at
another job. Galindo also stated that, sometime between June and August
2015, Petitioner told Galindo he saw an unlicensed chiropractor to receive
treatment for back pain. Galindo further testified that Petitioner offered
him “compensation” in exchange for writing a work injury report for
Petitioner.

¶12           After the hearing, the ALJ issued his award, finding Petitioner
“failed to establish by a preponderance of the credible evidence that he
sustained a personal injury arising out of and in the course of his
employment with [the] defendant employer.”

¶13           Petitioner requested review of the ALJ’s award, and on June
17, 2016, the ALJ issued his decision upon review, supplementing and
affirming the award. Citing Desert Insulations, Inc. v. Indus. Comm’n, 134
Ariz. 148, 654 P.2d 296 (App. 1982), the ALJ stated that because Petitioner
was “not credible,” the ALJ was “not bound to adopt medical findings
premised on [the Petitioner’s] described medical history.”

¶14           Petitioner filed a timely petition for special action, and we
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(2) (2016) and 23-951(A) (2012), and Rule 10 of the Arizona
Rules of Procedure for Special Actions.

                                 ANALYSIS

¶15            In general, a petitioner must establish all the material
elements of his claim, including that his injury is causally related to an
industrial incident. See Estate of Bedwell v. Indus. Comm’n, 104 Ariz. 443, 444,
454 P.2d 985, 986 (1969); T.W.M. Custom Framing v. Indus. Comm’n, 198 Ariz.
41, 45-46, ¶ 12, 6 P.3d 745, 749-50 (App. 2000). We defer to the ALJ’s factual
findings, but independently review any legal conclusions. Young v. Indus.


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                    CUEVAS v. PACESETTER/WESCO
                         Decision of the Court

Comm’n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). “The ALJ is
the sole judge of the witness’s credibility and may reject the testimony if it
is self-contradictory, inconsistent with other evidence, or directly
impeached.” Mustard v. Indus. Comm’n, 164 Ariz. 320, 321, 792 P.2d 783, 784
(App. 1990) (internal citation omitted). “An award of the Commission will
be affirmed if it can be supported by any reasonable theory of the
evidence.” Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46, 749 P.2d
1364, 1367 (1988).

¶16            Petitioner contends the ALJ erred by “arbitrarily
disregard[ing] the medical opinions” of his providers. In support of his
argument, Petitioner relies on Cammeron v. Indus. Comm’n, 98 Ariz. 366, 405
P.2d 802 (1965) for the proposition that the ALJ cannot arbitrarily disregard
uncontroverted medical opinions even where the ALJ finds the claimant
not credible and the medical opinions are based in part on what the
claimant told the physician. Although we agree with that general statement
of the law, it does not apply to the facts in this case.

¶17            In Cammeron, the petitioner’s testimony was repeatedly
discredited, but the undisputed medical testimony established that he had
an underlying psychiatric condition that was triggered by his industrial
injury. Id. at 369-71, 405 P.2d at 803-05. The ALJ disregarded this medical
evidence and entered an award denying the petitioner compensation. Id. at
368, 405 P.2d at 802-03. But because the petitioner’s psychiatric condition
was “peculiarly within the realm of scientific knowledge” and the ALJ’s
findings were “a complete repudiation of the medical evidence in the
record,” the award was set aside. Id. at 370-71, 405 P.2d at 804-05.

¶18           Here, in contrast, the doctors’ opinions as to the origin of
Petitioner’s injury were not “peculiarly within the realm of scientific
knowledge.” Rather, the doctors merely documented in their reports that
Petitioner told them he was injured at work. Neither were the ALJ’s
findings here a repudiation of any expert medical opinions. Instead, the
ALJ rejected Petitioner’s testimony regarding the origin of his injury, which
the ALJ found not credible in light of the other evidence in the record. See
Wimmer v. Indus. Comm’n, 15 Ariz. App. 543, 544, 489 P.2d 1245, 1246 (1971)
(stating an ALJ may reject a claimant’s testimony when inferences can be
drawn from other evidence that casts doubt on its credibility); Malinski v.
Indus. Comm’n, 103 Ariz. 213, 217, 439 P.2d 485, 489 (1968) (stating the ALJ
must draw warranted inferences and “where more than one inference may
be drawn, the [ALJ] is at liberty to choose either, and this court will not
disturb its conclusion unless it is wholly unreasonable”) (internal citations



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                    CUEVAS v. PACESETTER/WESCO
                         Decision of the Court

and quotations omitted). Because the ALJ’s findings are supported by the
record, we find no error.

¶19           Petitioner next argues that the ALJ’s reliance on Desert
Insulations was misplaced.5 But our review of that case leads us to conclude
otherwise. In Desert Insulations, the ALJ’s award in favor of the petitioner
was set aside because the award relied on the opinion of a doctor to whom
the petitioner had provided false information. Desert Insulations, 134 Ariz.
at 151, 654 P.2d at 299. Petitioner contends that Desert Insulations is
inapposite because, here, the record does not contain evidence that his
doctors’ opinions on causation were based on any factual inaccuracies.
However, it is clear from Petitioner’s doctors’ medical reports that any
cryptic comments on “medical causation” are based entirely on what
Petitioner told them. The balance of these reports is limited to reflecting the
results of a physical examination, a differential diagnosis of a medical
condition that may explain the patient’s subjective complaints and objective
physical findings, and then recommendations as to a proposed course of
treatment. Because Petitioner’s version of the industrial event was
unsubstantiated and because the testimony of the other lay witnesses
created a conflict concerning the origin of Petitioner’s injury, the ALJ was
not required to accept Petitioner’s testimony. See Wimmer, 15 Ariz. App. at
544, 489 P.2d at 1246; Desert Insulations, 134 Ariz. at 151, 654 P.2d at 299
(stating that medical testimony can be so weakened by proof of an
inaccurate factual background that it cannot be said to constitute
substantial evidence to support an award).

¶20          We defer to the ALJ’s factual findings, particularly as to his
assessment of the credibility of Petitioner and the other witnesses. On this
record, the ALJ did not err in finding Petitioner failed to meet his burden of
proving a compensable claim.




5      The ALJ cited Desert Insulations for the proposition that, “[a]s the trier
of fact, the [ALJ] may accept or reject the applicant’s testimony and,
therefore, may accept or reject a medical opinion which assumes the truth
of the medical history provided by the applicant.”


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           CUEVAS v. PACESETTER/WESCO
                Decision of the Court

                      CONCLUSION

¶21   For the foregoing reasons, we affirm the ALJ’s award.




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




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