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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ROXANE RICHARDS, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
COMPASS GROUP/BANK ADMIN, Respondent Employer,
NEW HAMPSHIRE INSURANCE COMPANY, Respondent Carrier.
No. 1 CA-IC 19-0015
FILED 2-20-2020
Special Action - Industrial Commission
ICA Claim No. 20172-860066**
No. 20172-860070*
Carrier Claim No. 003531-090120-WC-01*
Unknown**
The Honorable Marceline A. Lavelle, Administrative Law Judge
AWARD AFFIRMED
APPEARANCES
Roxane Richards, Peoria
Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By Stephen C. Baker
Counsel for Respondent Employer and Carrier
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge D. Steven Williams joined.
B R O W N, Judge:
¶1 Roxane Richards appeals from an award issued by the
Industrial Commission of Arizona (“ICA”) denying her two claims for
compensation for work-related injuries. The Administrative Law Judge
(“ALJ”) denied both claims, finding in one instance that the injury Richards
suffered was not work-related, and in the other, a compensable injury did
not occur. For the following reasons, we affirm the award.
BACKGROUND
¶2 Richards has a disorder that causes her to have frequent
seizures, sometimes losing consciousness. In December 2016, she was
working at a sports arena as a cashier. While walking from a parking
garage to the arena before her shift started, she had a seizure and lost
consciousness, falling to the ground. When she regained consciousness, she
discovered she had bruised her right knee and hurt her left ring finger. A
medical examination later revealed that Richards suffered a broken finger,
and her hand was put in a temporary cast. She filed a claim for worker’s
compensation benefits. Respondents Compass Group/Bank Admin and
New Hampshire Insurance Company denied the claim.
¶3 In September 2017, Richards was at work in a meeting with
other co-workers when one of them came up behind her and, according to
the co-worker, playfully slapped Richards’ cheek with her hand. Richards
described the incident as a “hit” in the head from behind but admitted she
did not see what hit her. Richards immediately turned around and was
angry with the co-worker. Soon after, she had a seizure and was taken to a
hospital. Richards then complained of migraine headaches. She filed
another worker’s compensation claim, alleging she suffered a concussion
and had headaches that were caused by the incident. Respondents denied
that claim as well.
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RICHARDS v. COMPASS/NEW HAMPSHIRE
Decision of the Court
¶4 At a hearing on the consolidated claims, the ALJ heard from
four medical experts. Dr. Holly Yancy is a neurologist and headache
specialist who treated Richards starting in September 2017 after the second
incident. Before that incident, Richards had a history of headaches and had
been referred to Dr. Yancy by a different neurologist. Richards explained
to Dr. Yancy that the headaches had gone away and she now had migraine
headaches due to the September 2017 incident. Dr. Yancy gave Richards
medication and scheduled her for a nerve block, which gave her temporary
relief until a medication was found that helped Richards have fewer
headaches. When asked if the cause of Richards’ condition for which Dr.
Yancy treated her was the September 2017 incident, Dr. Yancy testified that
it was “possible” and that there was a “probability” that Richards suffered
a concussion from the incident. Dr. Yancy admitted, however, that another
possible cause for the headaches could have been that Richards had elected
to stop taking a medication the other neurologist had prescribed for her.
¶5 Dr. Jonathan Macknin, an orthopedic surgeon, testified that
he treated Richards for a fractured finger in December 2016; an injury that
resulted from the first incident. He testified he was not aware it was work-
related, and gave Richards no work restrictions. His understanding of how
she hurt her hand was that she had a seizure and fell, injuring her left hand.
¶6 Dr. Gary Dilla, a specialist in physical medicine and
rehabilitation, testified for Respondents. He examined Richards in March
2018, focusing on the September 2017 incident. He also reviewed her
medical records related to that incident. Richards told him that her injuries
from that incident were headaches, pain in the right side of her neck and
shoulder, and some back pain. Based on his examination and records
review, he found no objective evidence that her musculoskeletal system
was injured from the September 2017 incident.
¶7 Finally, Dr. John Powers, a neurologist, performed an
independent medical exam in March 2018, focusing on the neurological
part of Richards’ claims. He noted that she experienced seizures from a
young age, including “passing out,” and reported a history of migraine
headaches. He explained that medical records from 2014 showed Richards
did not have epilepsy, and concluded her seizures were psychologically
generated. He did not find any evidence that her work caused the seizure
she had in December 2016 that caused her to fall and break her finger. Nor
did he find any objective evidence that Richards’ neurological condition
changed after the September 2017 incident from what it had been before.
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RICHARDS v. COMPASS/NEW HAMPSHIRE
Decision of the Court
¶8 The ALJ found that the December 2016 seizure that caused her
finger injury did not arise out of and in the course of Richards’ employment,
based upon the facts as related by Richards. The ALJ also found Richards
had not shown an injury that arose out of the September 2017 incident.
After reviewing the award, the ALJ affirmed her decision. Richards then
sought review in this court.
DISCUSSION
¶9 In reviewing the ICA’s award and findings, we defer to the
ALJ’s factual findings but review legal questions de novo. Young v. Indus.
Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). To establish a compensable
claim, an injured worker must prove the injury suffered was causally
related to the industrial accident, “which must be proved by competent
medical evidence when the results of the incident are not apparent to a
layman.” Yates v. Indus. Comm’n, 116 Ariz. 125, 127 (App. 1977) . The ALJ
must resolve conflicting evidence and “determine which of the conflicting
testimony is more probably correct,” a particularly important duty when
there is a conflict in expert testimony. Perry v. Indus. Comm’n, 112 Ariz. 397,
398 (1975). When the ALJ resolves such a conflict, we will not disturb that
conclusion unless it is wholly unreasonable. Royal Globe Ins. Co. v. Indus.
Comm’n, 20 Ariz. App. 432, 434 (1973).
¶10 An injury is compensable if it occurs “by accident arising out
of and in the course of . . . employment.” A.R.S. § 23-1021. An accident
includes “any unexpected, injury-causing event” connected to
employment. Dugan v. Am. Express Travel Related Servs. Co., 185 Ariz. 93,
99 (App. 1995) (citations omitted). In general, the “course of employment”
element pertains to the time, place, and circumstances of the injury, while
the “arising out of” element pertains to the cause of the injury relevant to
the employment. Royall v. Indus. Comm’n, 106 Ariz. 346, 349 (1970) (citations
omitted). Whether an injury “arose out of and in the course of
employment” is a question of law for de novo review. A.R.S. § 23-1021(A);
PF Chang’s v. Indus. Comm’n, 216 Ariz. 344, 347, ¶ 13 (App. 2007).
¶11 On appeal, Richards re-argues the evidence from the hearing.
Because we do not re-weigh the evidence on appeal, Simpson v. Indus.
Comm’n, 189 Ariz. 340, 342 (App. 1997), we do not consider these
arguments.1 Instead, we have reviewed the record to confirm that the ALJ
1 Richards also suggests that two lay witnesses were not allowed to
testify about the September 2017 incident, but she does not make any
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RICHARDS v. COMPASS/NEW HAMPSHIRE
Decision of the Court
properly applied the law and that reasonable evidence supports the
decision.
¶12 The record does not reveal any connection to employment for
the injury Richards sustained in December 2016. There is no evidence that
the seizure she experienced was caused by her employment and, thus, the
injuries caused by the fall are not work-related. As for the September 2017
incident, while it occurred at her place of work, the ALJ found that no injury
resulted from that event. We conclude that reasonable evidence supports
that finding, including Dr. Powers testimony and Richards’ history of
headaches before the event.
CONCLUSION
¶13 Petitioner has failed to show that her injury from the
December 2016 incident was work-related or that she sustained an injury
from the work-related incident she experienced in September 2017. We
therefore affirm the award.
AMY M. WOOD • Clerk of the Court
FILED: AA
argument as to how their testimony might have affected the decision.
Because we conclude that Richards failed to provide medical evidence that
showed she sustained an injury from that event, the testimony of those lay
witnesses would not have been probative of the factor she needed to prove.
5