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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                            DALLAS K. TOOLEY,
                             Petitioner Employee,

                                        v.

            THE INDUSTRIAL COMMISSION OF ARIZONA,
                           Respondent,

                FRY’S FOOD STORES OF ARIZONA, INC.,
                         Respondent Employer,

     FRY’S FOODS STORES OF ARIZONA, INC., c/o SEDGWICK,
                      Respondent Carrier.

                             No. 1 CA-IC 18-0039
                               FILED 4-4-2019


                 Special Action – Industrial Commission
                      ICA Claim No. 20171-300389
                   Carrier Claim No. 30177787301-0001
                 Michelle Bodi, Administrative Law Judge

                            AWARD AFFIRMED


                                   COUNSEL

Dallas K. Tooley, Mesa
Petitioner Employee
The Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent

Lundmark Barberich LaMont & Slavin, P.C., Phoenix
By Lisa M. LaMont, Danielle Vukonich
Counsel for Respondent Employer and Respondent Carrier



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Chief Judge Samuel A. Thumma
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
petitioner employee, Dallas K. Tooley (“Petitioner”), not compensable. The
administrative law judge (“ALJ”) resolved the issues in favor of the self-
insured respondent employer, Fry’s Food Stores of Arizona, Inc. (“Fry’s”).
We affirm the award and decision upon review because the ALJ’s
determinations are reasonably supported by substantial evidence in the
record.

                 FACTS AND PROCEDURAL HISTORY

¶2            Petitioner worked for Fry’s as a floral manager. In that
position, she was responsible for building seasonal floral displays, which
required her to regularly lift and move pallets of various floral products.

¶3              On February 5, 2017, Petitioner began constructing the store’s
outdoor Valentine’s Day display. A floral manager from another store
helped Petitioner, and the pair moved pallets of product, weighing between
thirty to fifty pounds each, from inside the store to the far side of the store
parking lot. They transported sixteen pallets at a time by pulling a pallet
jack because they did not have access to a forklift. Once all the materials
were in the parking lot, they lifted each pallet up into a semi-trailer.

¶4           Petitioner continued to build the outdoor display over the
next few days. On February 12, 2017, she fell on her tailbone while at work.


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Although in pain, she did not immediately seek medical attention and
continued to work through Valentine’s Day. After two weeks of continued
pain, Petitioner went to the doctor on March 7, 2017, and was diagnosed
with a fractured tailbone. She did not tell her manager about the injury.

¶5             On April 6, 2017, Petitioner began to build the store’s Easter
display. She remained in pain through April, but she dismissed the
ongoing pain as a symptom of her tailbone injury. The following week, her
right leg became numb and Petitioner thought that she was having medical
issues unrelated to her tailbone injury. On April 12, 2017, she sought
treatment from Dr. Tammy Turney. On her initial intake paperwork,
Petitioner stated she was seeing Dr. Turney for weight loss treatment. She
then mentioned her fractured tailbone to Dr. Turney during the
examination. Dr. Turney gave Petitioner a B12 vitamin shot and a doctor’s
note stating she could only perform “light duty work.”

¶6             Petitioner spoke to her manager on April 13, 2017, to explain
all the issues she was experiencing and presented the doctor’s note. Her
manager insisted the injuries were not work-related, and they argued over
her ability to file a workers’ compensation claim. Feeling pressured by her
manager, Petitioner ultimately filed a “request for leave of absence” form
that day, and she checked the box indicating her injury was not work-
related.

¶7            On April 21, 2017, Petitioner saw Dr. Judah Pifer, an
orthopedic specialist. Petitioner wrote on her initial paperwork that she
sought treatment for a fractured tailbone that occurred when she fell off a
chair at home in November 2016. Petitioner received an MRI scan and Dr.
Pifer informed her that she had a herniated disc. Dr. James Clark then
examined Petitioner on April 24, 2017. He found “an extrusion [of disc
material] of approximately 7 mm” into Petitioner’s L5-S1 disc space with
“impingement upon the right S1 nerve root.”

¶8            On April 28, 2017, Petitioner filed a “Worker’s and Physician’s
Report of Injury” with the ICA. She recorded her date of injury as both
February 12 and February 15, but described the injury as originating in her
back “from excessive and heavy lifting over time.” After the ICA initially
investigated the two different injury dates reported by Petitioner, Fry’s
issued a Notice of Claim Status on June 15, 2017, denying Petitioner’s claim.




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                           Decision of the Court

Petitioner then requested a hearing to review the decision, which was
scheduled for August 30, 2017; January 11, 2018; and January 30, 2018.1

¶9            After Petitioner filed her ICA claim, but before the hearings,
Dr. Dan Lieberman, a neurosurgeon, reviewed Petitioner’s MRI results and
conducted a phone consultation with her. Dr. Lieberman determined
Petitioner required surgery to remove excess disc material protruding into
her spinal canal caused by her herniated disc. Dr. Lieberman conducted the
microdiscectomy procedure on June 16, 2017.

¶10           Thereafter, Fry’s scheduled a medical examination of
Petitioner with Dr. Terry McLean, an orthopedic spine surgeon. In her
exam with Dr. McLean, Petitioner mentioned her fall at home in November
2016, but she did not mention the fall at work in February 2017. Dr. McLean
determined that Petitioner had previously suffered from a herniated disc,
but there was “no objective medical documentation” indicating any injury
causing the herniated disc occurred while Petitioner was at work.

¶11            At the August 2017 and January 2018 hearings, Fry’s argued
Petitioner failed to timely report her injuries pursuant to Arizona Revised
Statute (“A.R.S.”) section 23-908(E). Fry’s called seven store employees to
testify. One witness stated Petitioner told him she injured her back at home
and then re-injured herself at work. The other witnesses stated Petitioner
never mentioned any back injury taking place while at work.

¶12            Dr. Lieberman provided expert testimony in support of
Petitioner’s claim. Dr. Lieberman testified that he performed surgery on
Petitioner in June 2017 to remove seven millimeters of herniated disc
material. He explained that a herniated disc is caused by a tearing of the
fibrocartilage tissue surrounding the disc (the annulus), which allows the
disc material to move out of place and impinge one or more spinal nerves.
Dr. Lieberman also explained that an annular tear feels like “a knife in the
back.” He ultimately opined that the repeated lifting of the heavy pallets at
Petitioner’s job caused an annular tear in Petitioner’s back sometime in
February 2017. The continued heavy lifting then caused Petitioner’s disc to
protrude over time, resulting in nerve impingement and the need for
surgical treatment.

¶13           Dr. McLean provided expert testimony on behalf of Fry’s. He
opined that if Petitioner had suffered an annular tear at work, she would


1      Fry’s also requested a hearing to contest the ICA’s approval of
Petitioner’s request to change doctors.


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                           Decision of the Court

have had immediate symptoms. He explained that general “soreness” was
not consistent with symptoms of a traumatic tear of the annulus. After
examining Petitioner and reviewing her past medical records, Dr. McLean
found no date or report of injury that described the type of pain consistent
with such a traumatic event, and therefore he did not believe Petitioner
suffered an injury at work in February 2017 or at any point after that.
Although he agreed that Petitioner suffered a herniation in April 2017, Dr.
McLean did not believe the herniation was due to Petitioner’s work
activities. Instead, he stated that Petitioner likely had pre-existing
degeneration in her L5-S1 disc, and the herniation in April was caused by
the natural progression of an already degenerative disc—not a trauma-
caused annulus tear resulting from lifting heavy boxes.

¶14           The ALJ ultimately found Petitioner failed to “forthwith
report” her injury, as required by A.R.S. § 23-908(E), and adopted the
opinion of Dr. McLean as to the source of Petitioner’s injury; accordingly,
her claim was non-compensable. The ALJ explained that even though
Petitioner began having symptoms of pain as early as February, she did not
report any injuries to her superiors until April. The ALJ also concluded
Petitioner should not be excused for her failure to timely report her injuries
because Fry’s was prejudiced by Petitioner’s delay. The ALJ explained, “[i]f
Applicant had reported her injuries in February, Fry’s could have referred
her for prompt medical attention to assess her condition and prevent
further aggravation. Fry’s also could have investigated Applicant’s claim
and provided appropriate accommodation, such as light duty work.”

¶15           Petitioner timely requested a review of the decision, and the
ALJ issued a decision upon review affirming the findings of a non-
compensable claim. The ALJ stated that Petitioner’s testimony regarding
what she told each physician and her manager about her injuries was
inconsistent, and the ALJ therefore resolved any inferences drawn from the
testimony against her. In addition, the ALJ determined Dr. McLean’s
medical opinion was more credible than Dr. Lieberman’s.

¶16         Petitioner then timely filed this special action on June 5, 2018.
We have jurisdiction in this matter pursuant to A.R.S. §§ 12-120.21(A)(2)
and 23-951(A), and Arizona Rule of Procedure for Special Actions 10.

                                ANALYSIS

       I.     Standard of Review

¶17           When reviewing findings and awards of the ICA, we consider
the evidence in the light most favorable to upholding the award. Lovitch v.


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Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002) (internal citation
omitted). We will uphold the ALJ’s findings if reasonably supported by
substantial evidence. Malinski v. Indus. Comm’n, 103 Ariz. 213, 216 (1968).

¶18            In general, a petitioner bears the burden of establishing the
material elements of her claim. See T.W.M. Custom Framing v. Indus.
Comm’n, 198 Ariz. 41, 45-46, ¶ 12 (App. 2000). When a claimant attempts to
establish an industrial injury that is not clearly apparent to a layman, expert
medical testimony is required. W. Bonded Prods. v. Indus. Comm’n, 132 Ariz.
526, 527 (App. 1982). The ALJ resolves all conflicts in the medical evidence,
draws warranted inferences, and is the sole judge of witness credibility. See
Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988); Malinski, 103
Ariz. at 217. An ALJ may reject testimony that is inherently inconsistent
and contradictory, or when inferences can be drawn from other evidence
that cast doubt upon the credibility of such testimony. Wimmer v. Indus.
Comm’n, 15 Ariz. App. 543, 544 (1971).

       II.    Merits of the Claim

¶19           Petitioner asserts the ALJ relied on an incorrect date of injury
when determining that she failed to timely report her work-related injury.
In addition, Petitioner contends the ALJ erred by adopting Dr. McLean’s
medical opinion. We review each argument below.

              A.      Timeline of the Injury

¶20            Petitioner maintains the ALJ incorrectly analyzed her ICA
claim using the dates in relation to her fractured tailbone as opposed to the
dates in relation to the disc injury and resulting herniation. She asserts that
she is only seeking compensation for her herniated disc injury and not her
fractured tailbone injury, and the ALJ therefore should not have considered
any dates of injury relating to her tailbone. She further asserts that the disc
cartilage tear occurred sometime in February, resulting in the herniated disc
in April.

¶21            The ALJ rejected Petitioner’s testimony regarding the origin
of her injury, which the ALJ found not credible in light of the other evidence
in the record. Because Petitioner’s version of the industrial event was not
supported by the other employees’ testimony, and because Petitioner’s
conflicting statements in her medical records created confusion concerning
the origin of both her fractured tailbone and herniated disc, the ALJ was not
required to accept Petitioner’s testimony. See Desert Insulations, Inc. v. Indus.
Comm’n, 134 Ariz. 148, 151 (1982) (stating that medical testimony can be so
weakened by proof of an inaccurate factual background that it cannot be


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                           Decision of the Court

said to constitute substantial evidence to support an award); Wimmer, 15
Ariz. App. at 544 (stating an ALJ may reject a claimant’s testimony when
inferences can be drawn from other evidence that casts doubt on its
credibility). The ALJ’s findings are supported by the record, and we
therefore find no error.

             B.     Expert Opinion

¶22          Petitioner also asserts that the ALJ should have adopted the
opinion of Dr. Lieberman because Dr. McLean agreed that she suffered a
herniated disc in April 2017. Further, she asserts Dr. McLean did not have
enough information to opine on the cause of her injury.

¶23            After hearing the doctors’ testimony and reviewing the
relevant evidence, the ALJ determined that the opinion of Dr. McLean
regarding the causation of the herniated disc was more probably correct.
This determination was within her discretion and supported by the medical
evidence because Petitioner gave conflicting statements of causation for her
injuries at each of her medical examinations. Carousel Snack Bar, 156 Ariz.
at 46 (“[C]onflicts in medical evidence must be resolved by the trier of
fact.”). Additionally, the record shows Dr. McLean had access to
Petitioner’s medical records before conducting his evaluation of her
symptoms and injuries at the scheduled medical examination. Therefore,
the ALJ did not err in adopting the opinion of Dr. McLean over that offered
by Dr. Lieberman.

                              CONCLUSION

¶24          For the foregoing reasons, we affirm the ALJ’s award and
decision upon review finding Petitioner’s claim non-compensable.




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




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