Opinion
No. 1 CA-IC 15-0058
06-07-2016
DYMOS MARKS, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, CROSSROADS CARRIERS, LLC, Respondent Employer, SENTRY SELECT INSURANCE COMPANY, Respondent Carrier.
COUNSEL Dymos Marks, Lemon Grove, CA Petitioner Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent ICA Jardine Baker Hickman & Houston PLLC, Phoenix By K. Casey Kurth 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. 20140-580371
Carrier Claim No. 55C127908
J. Matthew Powell, Administrative Law Judge
AWARD AFFIRMED
COUNSEL Dymos Marks, Lemon Grove, CA
Petitioner Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent ICA Jardine Baker Hickman & Houston PLLC, Phoenix
By K. Casey Kurth
Counsel for Respondent Employer/ Carrier
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Kent E. Cattani joined. KESSLER, Judge:
¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review for a noncompensable claim. Because we conclude the Administrative Law Judge ("ALJ") did not err in finding petitioner Dymos Marks' injury noncompensable, we affirm the award and decision upon review.
FACTUAL AND PROCEDURAL HISTORY
¶2 At the time of injury in February 2014, Marks worked as a truck driver for Respondent Employer, Crossroads Carriers, LLC ("Crossroads"). Marks filed a Worker's Report of Injury ("Worker's Report") in February 2014, claiming he was required to work excessive hours in violation of federal law and to falsify federal logbooks throughout his employment, causing him constant stress, sleep deprivation, and post-traumatic stress disorder. After his claim was denied, Marks requested a hearing.
¶3 The ALJ held three hearings to take testimony from Marks, Crossroads driver/manager Randy Humphrey, and Crossroads general manager Michael Lange. The ALJ also considered GPS tracking reports, phone and text records, and a Comprehensive Psychological Consultation Report ("Psychological Report") by psychologist Sarah L. Ray, Psy.D. In the Psychological Report, Dr. Ray opined that Marks suffered from a number of ongoing psychological conditions, including major depression, general anxiety disorder, and somatization disorder. She concluded that Marks had sustained a psychiatric/psychological injury predominantly caused by actual events of employment. However, Dr. Ray also stated that her conclusions were based on the history, information, and statements provided by Marks and that "if it [were] shown that the company did not operate outside of labor laws, the opinions generated in this report may be different and would require reanalysis."
¶4 Following the hearings, the ALJ denied Marks' claim, determining that Marks was not a credible witness or historian and resolving all conflicts in evidence in favor of Lange and Humphrey. The ALJ considered the Psychological Report, but found that "because it [was] based on the faulty premise that the employer was requiring [Marks] to violate federal labor laws, Dr. Ray's conclusion attributing [Marks'] psychological conditions to such conduct [could not] stand." The ALJ concluded that no "unexpected, unusual or extraordinary" stressful conditions existed, Marks' condition could not be attributed to such conditions, and Marks had accordingly failed to carry his burden of proving a work-related psychological or emotional injury as required by Arizona Revised Statutes ("A.R.S.") section 23-1043.01(b) (2016). Marks requested administrative review, and the ALJ affirmed the award.
We cite the current version of applicable statutes when no revisions material to this decision have since occurred. --------
¶5 Marks timely filed a special action petition for review by this Court. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2) (2016), 23-951(A) (2012), and Rule of Procedure for Special Actions 10.
DISCUSSION
¶6 Marks lists eleven issues in his opening brief. We construe those issues as arguing the ICA erred by: (1) not timely conveying his report of injury to Respondents; (2) "denying" the Respondents' GPS reports for the day of the February injury; (3) basing its award on events not listed in the injury report; (4) relying on false documents and perjured testimony; (5) not allowing a narrative of Respondents' GPS locations of their trucks, which we understand to mean not considering evidence that Respondents allegedly required drivers to violate federal law on the maximum number of hours drivers can legally drive in any fourteen-hour period; and (6) considering events not listed in the injury report and concluding that Marks' injury was not attributable to any unexpected or extraordinary stressful conditions of employment.
¶7 When reviewing ICA awards and findings, 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 review the evidence only to determine if substantial evidence supported the findings, Associated Grocers v. Indus. Comm'n, 133 Ariz. 421, 423-24 (App. 1982), and we consider the evidence in the light most favorable to upholding the ALJ's award, Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16 (App. 2002). We must affirm an award if it can be supported by any reasonable theory of evidence. Carousel Snack Bar v. Indus. Comm'n, 156 Ariz. 43, 46 (1988). We defer to the ALJ for any determinations of credibility since the ALJ heard and saw the witnesses. Id.; Royal Globe Ins. Co. v. Indus. Comm'n, 20 Ariz. App. 432, 434 (1973).
¶8 Our review is limited to "determining whether or not the commission acted without or in excess of its power and, if findings of fact were made, whether or not such findings of fact support the award, order or decision." A.R.S. § 23-951(B). To the extent the above issues can be construed to fall within that review, we address them in order.
A. Failure to timely forward injury report to Respondents
¶9 Marks' argument that the ICA failed to timely forward the injury report from February 2014 to Respondents does not warrant relief. Not only was it Marks' duty to file the report with Respondents, see A.R.S. § 23-908(E) (Supp. 2015) (requiring employee to report accident and resulting injury to the employer), any alleged failure of the ICA to forward that report has no bearing on the result. Respondents denied the claim on the merits and Marks had a contested hearing on the merits before the ALJ.
B. "Denying" Respondents' GPS reports for the day of the injury
¶10 Marks' summary argument on this issue is not supported by the record. The ALJ expressly considered those reports and testimony by Marks and Respondents' employees about the meaning of those reports. The ALJ found the reports corroborated the testimony of Lange and Humphrey and showed that Crossroads had not required Marks to violate federal labor laws.
C. Basing the award on events outside the date of the injury report
¶11 Marks argues the ALJ abused his discretion by improperly basing his award on events not indicated within the Worker's Report and events that occurred outside of the date of injury. Although Marks designated February 18, 2014, as the date of injury, he did not allege a specific injury-causing event on that date. Instead, Marks stated on his Worker's Report that the cause of injury was being forced to falsify his logbooks and to "regularly" work in excess of the number of hours permitted under federal law. He also stated at the hearing that his work throughout his entire period of employment caused anxiety, nightmares, inability to sleep, and post-traumatic stress disorder. The ALJ's award relies almost entirely on events within this time period, and only briefly acknowledges that the "record reveal[ed] a number of stressful circumstances in applicant's life that may be contributing to [his health] conditions," including wage garnishment and outstanding child support obligations.
¶12 Moreover, the ALJ had to determine whether Marks' conditions could be attributed to any "unexpected, unusual, or extraordinary" stressful conditions arising from his work. A disabling mental condition is not compensable if it is brought about by the general building of emotional stress rather than an injury-causing event. Muse v. Indus. Comm'n, 27 Ariz. App. 312, 314 (1976). Thus, consideration of events before the ultimate alleged date of injury was reasonable.
D. Considering false and perjured testimony as well as forged documents
¶13 Marks argues the ALJ abused his discretion by relying on the "slanderous" and false testimony of Lange, not considering that Lange and Humphrey would commit perjury by signing false documents, finding Humphrey and Lange credible, and not finding Marks credible.
¶14 Conflicts of evidence and determinations of witness credibility must be resolved by the trier of fact. Carousel, 156 Ariz. at 46; Royal Globe, 20 Ariz. App. at 434. "If a witness makes contradictory statements in regard to the material issues of a case, the trier of fact may accept as true either statement, or, on account of the discrepancy, may disregard the testimony of the witness entirely." Royal Globe, 20 Ariz. App. at 435. We will not disturb the ALJ's resolution of conflicting evidence unless it is wholly unreasonable. Ortega v. Indus. Comm'n, 121 Ariz. 554, 557 (App. 1979).
¶15 Marks' testimony was frequently inconsistent and conflicted with Lange and Humphrey's testimony, the GPS evidence, and the phone and text records. In contrast, Lange and Humphrey's testimony closely tracked the GPS, phone, and text records. While we recognize Marks' frustration regarding the ALJ's credibility determinations, the ALJ's resolution of the conflicting evidence was not unreasonable in light of the conflicts between Marks' testimony and the other evidence considered by the ALJ.
¶16 Marks also argues that the ALJ abused his discretion by considering allegedly forged text records and in failing to consider Marks' unsigned hours of service and logbook training forms. As a preliminary matter, no evidence indicates the text records were forged, and Marks did not raise any arguments regarding either of these issues until after the hearings had concluded. We will not consider an issue that was not raised before the ALJ. See, e.g., Magma Copper Co. v. Indus. Comm'n, 139 Ariz. 38, 49 (1983); see also Ariz. Admin. Code R20-5-159 (stating a presiding ALJ award or decision under A.R.S. § 23-942 or award or decision upon review under A.R.S. § 23-943 must be based upon (1) the record as it exists at the conclusion of the hearings and (2) any memoranda provided under § 23-943(E) or requested by the presiding ALJ).
¶17 Additionally, in an ICA hearing an ALJ is not bound by common law or statutory rules of evidence and may conduct the hearing in any manner that will achieve substantial justice. A.R.S. § 23-941(F) (2012); see also Gordon v. Indus. Comm'n, 23 Ariz. App. 457, 460 (1975) (stating § 23-941(F) allows "liberalization of the common law and statutory rules of evidence so that the greatest amount of competent evidence would be available to the Commission for its deliberation upon an award"); A.R.S. § 23-921(B) (stating the ICA may adopt rules of procedure); Jones v. Indus. Comm'n, 1 Ariz. App. 218, 221 (1965) (stating parties in an ICA proceeding "are not bound by superior court rules of procedure, but by the rules of procedure adopted by the [ICA]").
¶18 Marks does not allege a violation of due process, and we find no reversible error. See Cash v. Indus. Comm'n, 27 Ariz. App. 526, 532 (1976) ("[A]lthough administrative agencies may be relieved from observance of strict common law rules of evidence their hearings must still be conducted consistently with fundamental principles which inhere in due process of law."). We accordingly find no abuse of discretion.
E. Not considering a narrative of GPS reports showing a violation of federal law on the number of hours drivers were required to work
¶19 Marks' argument on this issue appears to be that the ALJ did not consider evidence of Respondents' general records about violations of federal law limiting the number of consecutive hours drivers were allowed to drive. To this extent, the argument is inconsistent with Marks' argument that the ALJ erred in considering evidence outside the alleged triggering date of injury, February 18, 2014. In any event, as we note supra at ¶ 12, the ALJ did and was required to consider such evidence to see if the stress on the specific day of the triggering injury was brought about by the general building of emotional stress or was a result of "unexpected, unusual, or extraordinary" stressful conditions arising from his work.
F. Sufficiency of the evidence
¶20 Marks argues the ALJ abused his discretion in determining Marks' conditions could not be attributed to any unexpected or extraordinary stressful conditions arising out of his employment with Crossroads. We disagree and conclude that sufficient evidence supported the ALJ's findings.
¶21 The claimant in a workers' compensation case has the burden to affirmatively show that he is entitled to compensation, and the ICA is not required to disprove the claim. Helmericks v. AiResearch Mfg. Co. of Ariz., 88 Ariz. 413, 416 (1960). A mental injury, illness, or condition is not considered a compensable personal injury unless it results from "some unexpected, unusual or extraordinary stress related to the employment." A.R.S. § 23-1043.01(B). Whether stress is "unexpected, unusual, or extraordinary" is evaluated objectively. Barnes v. Indus. Comm'n, 156 Ariz. 179, 182 (App. 1988).
¶22 As discussed above, Marks did not allege a specific injury-causing event on February 18, 2014, but he instead stated on his Worker's Report that the cause of injury was being forced to falsify his logbooks and "regularly" work more than the federally-permitted driving hours. He also stated at the hearing that his work throughout his entire period of employment caused anxiety, nightmares, inability to sleep, and post-traumatic stress disorder. As mentioned supra, a disabling mental condition is not compensable if it is brought about by the general building of emotional stress rather than an injury-causing event. Muse, 27 Ariz. App. at 314.
¶23 Moreover, when asked which injury in February 2014 caused his claim, Marks responded that he was "[o]verworked beyond mandated hours of service up to 30 hours". However, GPS records showed that Marks' hours that day were affected by Marks' choice to go home and rest for four hours mid-trip, contrary to Crossroads' policy. Even if we were to consider regularly forcing Marks to violate federal hourly driving limits to be a compensable event, there is no evidence that Marks was forced to drive beyond the hourly limit other than Marks' testimony, which the ALJ did not find credible. Humphrey specifically denied that he had ever told Marks to falsify his driver's logs, and both Humphrey and Lange denied that Marks had ever complained about his job, reported the falsification of logbooks, or notified them that he was driving more hours than allowed under federal law.
¶24 Finally, although the ALJ found that "two particular assignments [on February 18, 2014 and on Marks' last day of employment in March 2014] added to his stress and anxiety," the ALJ also concluded that no "unexpected, unusual, or extraordinary" stressful conditions arose from Marks' work and that "the way he was treated at work was more of a result of his condition than it was the cause of his condition." This conclusion is bolstered by the Psychological Report's conclusion that Marks "may be experiencing more emotional symptoms in reaction to his industrial situation than we might expect to see, as well as more difficulty recovering than we might expect" due to his personality. Additionally, Lange testified that Marks was treated the same as other Crossroads employees, trucking was a stressful business that required good time management, and that Marks' time management skills as a truck driver were poor. See Sloss v. Indus. Comm'n, 121 Ariz. 10, 11-12 (1978) (finding an injury noncompensable when the stresses to which the applicant was exposed in his employment were the same as, and no greater than, those imposed upon all other workers in the same type of duty).
CONCLUSION
¶25 For the foregoing reasons, we affirm the ALJ's award and decision upon review.