Opinion
No. 1 CA-IC 14-0080
06-30-2015
MARION D. BOUSMAN, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, ARIZONA DEPARTMENT OF PUBLIC SAFETY, Respondent Employer, STATE OF ARIZONA, DOA RISK MANAGEMENT, Respondent Carrier.
COUNSEL Marion D. Bousman, Peoria Petitioner Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Office of the Attorney General, Phoenix By Charles W. Ferris, Jr. Counsel for Respondent Employer/Carrier
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Special Action - Industrial Commission
ICA Claim No. 20133-160256
Carrier Claim No. W20133160256
The Honorable Robert F. Retzer Jr., Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Marion D. Bousman, Peoria
Petitioner
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Office of the Attorney General, Phoenix
By Charles W. Ferris, Jr.
Counsel for Respondent Employer/Carrier
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
NORRIS, Judge:
¶1 In this special action review of an Industrial Commission of Arizona award and decision upon review, Petitioner Marion D. Bousman argues the evidence failed to support the finding of the administrative law judge ("ALJ") that Bousman had not sustained a compensable injury on October 29, 2013. Bousman also argues the ALJ denied him a full and fair hearing. Based on our review of the record, we disagree with both arguments and affirm the award.
¶2 As the claimant, Bousman bore the burden of proving all elements of a compensable claim. Keovorabouth v. Indus. Comm'n of Ariz., 222 Ariz. 378, 380, ¶ 7, 214 P.3d 1019, 1021 (App. 2009). Compensability requires both legal and medical causation. Id. at 381, 214 P.3d at 1022. A claimant establishes legal causation by demonstrating the accident "arose out of" and "in the course of" employment; a claimant establishes medical causation by showing the accident caused the injury. Id.
¶3 Bousman testified he hurt his lower back above his right hip when his desk chair failed to move as he turned in it. He also testified he had not experienced any lower back or hip problems before the incident and confirmed he had told his initial treating physician he had never experienced any prior injuries or problems with his lower back or legs. Respondent Employer and Respondent Carrier (collectively, "Respondents"), however, presented substantial evidence demonstrating Bousman had complained about ongoing back pain to co-workers well before the incident and had sought medical treatment for intermittent lower back pain for 15 to 20 years.
¶4 The ALJ, rather than this court, resolves any conflicts in the evidence. And, when we review an ALJ's ruling, we do not weigh the evidence; instead, we consider the evidence in the light most favorable to sustaining the award. Perry v. Indus. Comm'n of Ariz., 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975). Here, as the ALJ recognized, Bousman's credibility was a "material issue in this matter." See generally Adams v. Indus. Comm'n of Ariz., 147 Ariz. 418, 421, 710 P.2d 1073, 1076 (App. 1988) (ALJ's assessment of witness credibility is "generally binding" on reviewing court). The ALJ found Bousman's testimony not credible and for that reason determined he had not sustained a compensable injury. The evidence supports these findings and the ALJ's award.
¶5 The ALJ did not deprive Bousman of a full and fair hearing. The ALJ allowed Bousman to testify, to question all witnesses, including his own, and to otherwise fully participate in the hearings. Further, contrary to Bousman's assertion, the ALJ did not rush the presentation of evidence or the testimony of the witnesses.
¶6 The ALJ also did not improperly limit the number of medical witnesses Bousman could call. At the first hearing, the ALJ explained that because the only issue in dispute was compensability—which the ALJ correctly described as whether Bousman's "condition was related to the event that [he had] described in [the doctor's] opinion"— Bousman would not need to call his other treating physicians to testify about the extent of injury, what kind of treatment he had received, and whether the treatment was necessary. Accordingly, Bousman elected to call the doctor who first treated him because that doctor was the "guy [he] saw as soon as [he] could." Based on the medical records introduced into evidence, the other doctors who treated Bousman would only have been able to present cumulative testimony regarding compensability—testimony based solely on what Bousman had told them about the incident.
¶7 Finally, the ALJ did not deny Bousman the right to cross-examine the doctor who examined him at Respondents' request. Respondents submitted the doctor's extensive report into evidence well before the first hearing. Then, at the conclusion of the second hearing, when Respondents informed the ALJ they would rely on the doctor's report, Bousman advised the ALJ that he did not wish to cross-examine the doctor even though the doctor was on the telephone, "on hold."
¶8 For the foregoing reasons, we affirm the ALJ's award.