transdev/old v. Nivens

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TRANSDEV SERVICES INC, Petitioner Employer,

OLD REPUBLIC INSURANCE, Petitioner Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

MARTIN NIVENS, Respondent Employee.

No. 1 CA-IC 22-0016
FILED 12-20-2022

Special Action - Industrial Commission
ICA Claim No. 20201700105
Carrier Claim No. 302050639820-00104
The Honorable J. Matthew Powell, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Ritsema & Lyon PC, Tempe
By Danielle S. Vukonich
Counsel for Petitioner Employer and Carrier

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
 TRANSDEV/OLD v. NIVENS
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.

B A I L E Y, Judge:

¶1 In this workers’ compensation case, an Industrial
Commission of Arizona (“ICA”) administrative law judge (“ALJ”)
concluded the closure of Martin Nivens’ claim was unjustified and, instead,
Nivens was entitled to temporary compensation and medical benefits.
Nivens’ employer, Transdev Services, Inc., and its carrier, Old Republic
Insurance (collectively “Old Republic”), filed this action arguing the
evidence does not support the award. We affirm the award.

FACTS AND PROCEDURAL HISTORY

¶2 On April 21, 2020, Nivens was driving a city bus when two
cars collided, sending one of the cars careening into the left front of the bus,
right by where Nivens was sitting in the driver’s seat. Nivens does not
recall details of what happened during the crash and does not know
whether he hit his head because of it. Witnesses say Nivens was hunched
over after the accident, complaining about his back hurting. He was taken
to a nearby hospital, treated for lower back pain, and sent home. Shortly
after that, Dr. Kareem Shaarway treated him for concussion (“mild
traumatic brain injury”). Evidence at the crash scene showed Nivens might
have hit his head on the side window during the crash, but Nivens could
not remember, and the physical evidence is inconclusive.

¶3 Nivens filed a timely workers’ compensation claim in June
2020. The ICA Claims Department notified Old Republic, but Old Republic
did not issue a Notice of Claim Status (“NCS”) accepting or denying the
claim within 21 days as required by A.R.S. § 23-1061(M). The ICA then sent
a written warning to Old Republic stating it could be found to be acting in
bad faith if it did not issue an NCS in August 2020. Old Republic, however,
did not provide an NCS in response. In September 2020, Nivens requested
a hearing pursuant to A.R.S. § 23-1061(J), which was set for December 22,
2020. Finally, on December 22, 2020, Old Republic filed an NCS accepting
the claim but purporting to close it as of June 30, 2020, with no temporary

2
 TRANSDEV/OLD v. NIVENS
Decision of the Court

or permanent disability. The ALJ proceeded with the hearing to protest the
closure rather than the failure to issue an NCS.

¶4 The ALJ heard testimony from Nivens and two co-workers
who investigated the accident. He also heard testimony from Dr.
Shaarway, Dr. James Maxwell, and Dr. Michael Powers. Dr. Shaarway, a
family practitioner specializing in sports medicine, diagnosed a concussion
based on his physical examination of Nivens on May 6, 2020, more than two
weeks after the crash. Dr. Shaarway prescribed physical therapy, speech
therapy, and a neuropsychological evaluation. He testified he understood
the mechanism of injury to be a “whiplash” incident. A year and a half after
the accident, Dr. Shaarway testified that Nivens had improved but still
experienced crash-related symptoms “from time to time.”

¶5 Dr. Maxwell and Dr. Powers conducted separate independent
medical examinations (“IMEs”) of Nivens. Dr. Maxwell, an orthopedic
surgeon, reviewed medical records and examined Nivens on June 30, 2020.
He concluded Nivens suffered only a “lumbar sprain-strain” that had
reached maximum medical improvement with no permanent impairment.
He admitted a concussion was a “possibility,” but that only a neurologist
could provide such a diagnosis.

¶6 Dr. Powers, a neurologist, also reviewed records and
examined Nivens in July 2021. From the documents he reviewed, Dr.
Powers concluded Nivens did not lose consciousness and did not hit his
head. He found no evidence of a traumatic brain injury. He criticized Dr.
Shaarway’s diagnosis, stating it was based on a misinterpretation of the
results of the tests he performed. Dr. Powers also concluded the crash could
not have caused any severe whiplash effect because Nivens was in a large
bus involved in a low-impact accident and did not immediately complain
of neck pain. Upon questioning, however, Dr. Powers admitted that if one
accepted that Nivens had lost awareness of what happened during the
crash, he might have had a mild concussion.

¶7 Based on the testimony and medical records, the ALJ found
Dr. Shaarway’s opinions carried greater weight than the two opposing
experts. The award, thus, concludes Nivens suffered a concussion and
lower back injury and is entitled to temporary benefits per Dr. Shaarway’s
recommendations. Old Republic requested administrative review, arguing
the ALJ did not weigh the evidence properly. On review, the ALJ affirmed
the award. This timely special action appeal followed.

3
 TRANSDEV/OLD v. NIVENS
Decision of the Court

¶8 We have jurisdiction under Article 6, Section 9, of the Arizona
Constitution, A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Rule 10, Ariz. R. P.
Spec. Act.

DISCUSSION

¶9 In reviewing findings and awards of the ICA, 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). Viewing the evidence in the
light most favorable to sustaining an award, we will affirm the decision
unless there is no reasonable basis for it. Lovitch v. Indus. Comm’n, 202 Ariz.
102, 105, ¶ 16 (App. 2002); Hoffman v. Brophy, 61 Ariz. 307, 312 (1944) (court
will uphold an award “if there is any competent evidence in the record to
sustain [it]”). We will not disturb an award based on conflicting medical
testimony unless there is no reasonable basis for the decision. Smiles v.
Indus. Comm’n, 2 Ariz. App. 167, 168 (1965).

¶10 Here, Old Republic simply asks us to reweigh evidence in its
favor, which we cannot do where competent evidence supports the ALJ’s
conclusion. Kaibab Indus. v. Indus. Comm’n, 196 Ariz. 601, 608, ¶ 21 (App.
2000). The ALJ was in the best position to weigh the evidence and assess
the credibility of the witnesses and we defer to its findings. See id at 609,
¶ 25.

¶11 Old Republic also argues the ALJ abused its discretion in
deciding in favor of Nivens, suggesting the ALJ was “punishing” Old
Republic for its violation of A.R.S. § 23-1061(M). Old Republic, however,
cites no record support for the argument, and we have no reason to address
it because competent evidence in the record supports the ALJ’s conclusion.
See Salt River Project v. Indus. Comm’n, 126 Ariz. 196, 200 (App. 1980).

CONCLUSION

¶12 We affirm the award.

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

4