Cole v. Aaa land/american

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMAL COLE, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

AAA LANDSCAPE DBA, Respondent Employer,

AMERICAN ZURICH INSURANCE CO, Respondent Insurance Carrier.

No. 1 CA-IC 22-0043
FILED 6-6-2023

Special Action - Industrial Commission
ICA Claim No. 20213100008
Carrier Claim No. WC4C0228661-001
The Honorable Paula R. Eaton, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Jamal Cole, Phoenix
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Lundmark, Barberich, La Mont & Slavin, P.C., Phoenix
By Kirk A. Barberich
Counsel for Respondent Employer and Insurance Carrier

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

F O S T E R, Judge:

¶1 Petitioner Jamal Cole seeks review of an Industrial
Commission of Arizona (“ICA”) award finding his workers’ compensation
claim non-compensable. The award is affirmed.

FACTS AND HISTORY

¶2 This Court considers the evidence in the light most favorable
to sustaining the award. Turner v. Indus. Comm’n, 251 Ariz. 483, 484,
¶2 (App. 2021). Cole worked landscape maintenance for AAA Landscape
and was on his way to a job site on October 22, 2021, when the pickup truck
he was riding in rear-ended another car causing a minor accident. The truck
was driven by Edgar Zermano, with Cole and three other workers in the
cab. The five men were traveling on a freeway off-ramp at 50 miles per hour
when Zermano slammed on the brakes and skidded into the car in front of
him. Immediately after the accident, while the vehicles were on the side of
the road, all but one of the truck passengers, including Cole, said they were
“fine.” Everyone moved off the freeway, and the police arrived. When AAA
Supervisor Juan Camacho arrived, he was informed that nobody was
injured. After the police asked questions and cited Zermano, the AAA
employees went to the job site. Once at the job site, Cole began to say that
his back was hurting. Zermano took Cole and another worker to urgent care
to get checked out. Cole complained of back pain at urgent care, was given
a prescription and care instructions, and left.

¶3 The following week, Cole began seeing a chiropractor
regularly. He filed a workers’ compensation claim on November 6, 2021.
American Zurich Insurance Co. denied the claim, and Cole requested a
hearing.

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 COLE v. AAA LAND/AMERICAN
Decision of the Court

¶4 At the hearing, Cole testified that he immediately complained
of neck and back pain after the collision. Zermano testified that, while
standing on the side of the road following the accident, he overheard Cole
and another worker commenting to each other that they should say that
they were injured. Zermano confronted them about this and told Camacho
about it when Camacho arrived. Camacho testified that he asked everyone
who had been in the truck if they were hurt so that he could report it to the
police officer. No one claimed to be injured at that time.

¶5 After receiving testimony from Cole, Zermano, and Camacho,
the ICA Administrative Law Judge (“ALJ”) found that Zermano and
Camacho were more credible than Cole about whether Cole sustained any
significant injury from the accident. She found that Cole’s claim was non-
compensable. Upon administrative review, she affirmed her decision.

DISCUSSION

¶6 In reviewing ICA awards, the ALJ’s findings will not be
disturbed unless the conclusions cannot be “supported on any reasonable
theory of evidence.” Phelps v. Indus. Comm’n, 155 Ariz. 501, 506 (1987). When
reasonable evidence exists to support an ALJ’s factual determinations, this
court will not overturn them, nor will the evidence be re-weighed. Kaibab
Indus. v. Indus. Comm’n, 196 Ariz. 601, 608-09, ¶ 21-25 (App. 2000). Where
there is conflict in the evidence or where two different inferences may be
drawn from the evidence, the ALJ has the discretion to resolve those
conflicts and choose either inference; a reviewing court will not disturb that
choice unless it is wholly unreasonable. Waller v. Indus. Comm'n, 99 Ariz.
15, 18 (1965).

¶7 Cole points to conflicting evidence that he reported his
injuries at the scene to support his appeal. He alleges that the ALJ failed to
consider this evidence and the decision should be overturned. To prevail,
Cole must show that no reasonable evidence in the record supports the
ALJ’s findings. Kaibab Indus., 196 Ariz. at 609, ¶ 25. He has not done this.
Instead, he reargues the evidence, urging this court to discredit Zermano’s
testimony. Cole misunderstands the role of this Court; it does not re-weigh
the evidence. Cole fails to point to anywhere in the record or present any
arguments that demonstrate the ALJ’s findings were unreasonable or
unsupported by the evidence.

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 COLE v. AAA LAND/AMERICAN
Decision of the Court

CONCLUSION

¶8 Because there is reasonable evidence to support the factual
findings in the award, the ALJ’s decision is affirmed.

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

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