Boyd v. Duraserv Corp dba/liberty Insurance

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STEVEN BOYD, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

DURASERV CORP DBA COOKSON DOOR SALES OF ARIZONA,
Respondent Employer,

LIBERTY INSURANCE CORP, Respondent Carrier.

No. 1 CA-IC 23-0014
FILED 10-17-2025

Special Action - Industrial Commission
ICA Claim No. 20222000030
Carrier Claim No. WC608-F94505
The Honorable Trudy Rushforth, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

George V. Sarkisov, PLLC, Phoenix
By George V. Sarkisov
Co-Counsel for Petitioner Employee

Toby Zimbalist, SBA, Phoenix
By Toby Zimbalist
Co-Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent

Lundmark Barberich La Mont & Puig PC, Phoenix
By Lisa M. LaMont, David T. Lundmark
Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Vice Chief Judge David D. Weinzweig joined. Judge Jennifer M.
Perkins dissented.

J A C O B S, Judge:

¶1 Steven Boyd worked as a service technician, with duties that
included lifting and installing heavy operators of overhead doors. He asks
this court to set aside an Industrial Commission of Arizona (“ICA”) award
denying his workers’ compensation claim for failing to promptly report an
injury suffered while lifting a heavy door. He argues: (1) the award’s
conclusion Boyd did not promptly report the injury is not supported by
substantial evidence; (2) employer DuraServ Corp. dba Cookson Door Sales
of Arizona (“Cookson”) and carrier Liberty Insurance Corp. waived the
failure-to-promptly-report defense; and (3) substantial evidence does not
show prejudice to the employer. Because the ALJ did not make required
findings of fact, we set the award aside.

FACTS AND PROCEDURAL HISTORY

¶2 In December 2021, Boyd was a 30-year employee of Cookson,
a company that installs commercial and residential garage doors. He had
been a service manager, supervising the technicians, but in 2021 was moved
back to a non-supervisory role as a service technician and one of the service
technicians he had been supervising was made his manager.

¶3 In June 2022, Cookson disciplined him for using profanity
toward another employee. At the disciplinary meeting, Boyd was upset and
asked his supervisors when the company would address his injured
shoulder, which he had hurt while working on a garage door in late
December 2021. The supervisors, who included manager Mark
Montgomery, responded that they knew nothing about a shoulder injury

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he received at work. Boyd replied that he had reported the injury to
Montgomery at the time. Montgomery denied that report, but said they
would take his report as of June 2022 and have human resources process it.
Boyd filed a report of the injury with the ICA in July 2022 and in August
went to a doctor, who concluded that Boyd suffered a work injury and
began treating him with physical therapy. Boyd filed a workers’
compensation claim that was ultimately denied.

¶4 Boyd later testified about what happened in December 2021.
Boyd was installing a commercial garage door in late December 2021 when
he injured his right shoulder. As he was lifting a heavy piece of equipment
overhead so that a co-worker, Mike Madole, could bolt it to a frame, he
rested the heavy unit on his shoulder and felt a pop. He immediately
complained of pain and called Mark Montgomery, a division manager, to
report the injury in the presence of Madole. Boyd explained he called
Montgomery instead of his direct supervisor, Matt Nelson, because Nelson
was on vacation at the time. Rather than get medical treatment right away,
Boyd self-treated his shoulder and avoided heavy lifting or other
movements that would hurt his shoulder. Over the following months, he
did not ask for accommodations at work but adjusted his activities to
account for the injury, hoping it would get better. He testified he mentioned
his injury to his supervisor in passing but neither filed a formal report nor
sought medical help until August 2022.

¶5 At the time of the ICA hearing, Mike Madole had been a
service technician for Cookson for 21 years. He testified he was present
when Boyd hurt his shoulder and when Boyd called Montgomery in
December 2021 to say he got hurt. Madole testified as follows:

Q. All right. Your statement says that [Boyd]
called Mark Montgomery. Did you overhear that
conversation?

A. Yeah. He called, like I said, when we got down,
and then he got on the phone and then he talked to Mark and
said hey, you know, we got the operators. We got problems,
stuff like that. And he goes, by the way, that thing hurt me.
So then I’m, like, okay, well, I’m going to kind of walk away
and start cleaning up. So that was pretty much the end of the
conversation. But I did hear him say that he did actually call
Mark and let him know that, hey, you know what? We got
the operator in, but in – in that also, that, you know, it hurt
me.

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(Emphasis added).

¶6 Madole also provided a written statement. In it, he wrote that
Boyd called the office in the middle of work and told Montgomery of his
injury:

Back At the end of 2021 December, I was working with Steve
Boyd At The Gilbert Maintenance Building Replacing An [sic]
Commercial Operator on the North East Door on the
Building. As We Were Installing New Operator Steve Said
His Right Shoulder popped. And He Felt a Sharp Pain. We
Got Down From the Lift And Steve Called the Office on
Speaker Phone And talked to Mark Montgomery Letting
Mark know that Steve Hurt His Right Shoulder.

(Emphasis added).

¶7 Boyd’s manager, Mark Montgomery, testified he did not
recall the cellphone conversation with Boyd in December 2021. He clarified
this meant he did not remember any of the phone calls he received that day,
not that it did not happen. His usual response to a worker’s report of an
injury is to find out what level of medical attention is needed. He testified
that he also would have started the process to generate paperwork. None
of those processes happened in December 2021 or the months following.

¶8 Cookson’s witnesses agreed Madole was credible. Both
Montgomery and Nelson testified he was an honest employee. Nelson
testified he had no reason to doubt that Madole witnessed Boyd report the
injury to Montgomery over the phone. And Montgomery testified that he
had no reason to suspect Madole was lying.

¶9 Two medical doctors testified as to Boyd’s injury. They
disagreed as to the cause of Boyd’s shoulder injury.

¶10 The ALJ denied Boyd’s claim for failure to promptly report
the injury under A.R.S. § 23-908(E), which requires injured employees to
“forthwith” report the occurrence of an injury at work. In her decision, the
ALJ summarized the testimony of the four lay and two expert witnesses.
She also “deemed” Boyd’s credibility a material issue and mentioned that
“numerous” lay witnesses had testified. The ALJ made findings as to
Madole:

7. Mike Madole, Service Technician for Defendant
Employer, testified that he was working with [Boyd] on

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December 23, 2021 installing a garage door. [Boyd] told him
that [Boyd] had injured his right shoulder during the
installation and that [Boyd] called Mark Montgomery on the
phone that day. Mr. Madole wrote a signed statement to that
effect on July 23, 2002. Between December 2021 and July 2022,
he was not asked by anyone at the employer about [Boyd’s]
shoulder or the alleged incident, and he did not provide any
information to the employer about it.

¶11 She then concluded: “[u]pon evaluation of the testimony, the
reasonable inferences to be drawn from said testimony and resolution of
any actual or surmised conflicts therein, it is found that as a whole the
evidence fails to corroborate and support the evidence and testimony of
[Boyd].” After concluding Boyd failed to promptly report the injury, the
decision notes: “[a]lthough [Boyd] alleges he reported to Mr. Montgomery
on the date of injury, Mr. Montgomery had no recollection of that report
and first heard of the injury in June 2022, six months later, in connection
with a disciplinary hearing.” The ALJ further concluded that Boyd’s failure
should not be excused “because the late report prejudiced [employer] by
preventing a timely investigation.” Although there is no explicit finding
that Boyd suffered a work injury on December 23, 2021, the award by
implication finds that fact. The ALJ did not summarize or mention Madole’s
testimony nor did the ALJ make a finding as to Madole’s credibility.

¶12 Thereafter, Boyd requested a review and reconsideration of
the evidence. He argued that the evidence showed he reported the injury in
December 2021 and that, even if the ALJ found he reported it in June 2022,
there was no prejudice to the employer. The ALJ reconsidered the evidence
and affirmed her decision without substantive comment. This statutory
special action appeal followed. We have jurisdiction. Ariz. Const. art. 6, §
9; A.R.S. §§ 12-120.21(A)(2), 23-951(A).

DISCUSSION

¶13 When reviewing findings and awards of the ICA, we consider
the evidence in the light most favorable to upholding the award. Lovitch v.
Indus. Comm’n, 202 Ariz. 102, 105 ¶ 16 (App. 2002) (internal citation
omitted). We uphold the ALJ’s findings if they are reasonably supported
by substantial evidence. Malinski v. Indus. Comm’n, 103 Ariz. 213, 216 (1968).

¶14 An ALJ must make direct findings on issues material to a
decision. Villanueva v. Indus. Comm’n, 148 Ariz. 285, 288 (App. 1985). When
an ALJ does not expressly reject a witness’ credibility, we will not infer such

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a rejection. Joplin v. Indus. Comm’n, 175 Ariz. 524, 528 (App. 1993). Relevant
here, “where evidence of an interested witness is corroborated by a
disinterested witness, rejection of that evidence amounts to arbitrary action
by the [ALJ].” Ratley v. Indus. Comm’n, 74 Ariz. 347, 350 (1952).

¶15 These principles require vacating the award at bar. For “[i]f
we . . . approve the award here . . . there [is] no purpose in requiring judges
to make findings.” Post v. Indus. Comm’n, 160 Ariz. 4, 8 (1989).

I. By Failing to Raise it to the ALJ First, Boyd Waived His Argument
That He Lacked Fair Notice of Cookson’s Affirmative Defense
That He Failed To Report His Accident Forthwith.

¶16 Injured workers must “forthwith” report an accidental injury.
A.R.S. § 23-908(E). If an injured worker does not report the injury forthwith,
as a general matter, the employer is not required to pay their claim. A.R.S.
§ 23-908(F). Failure to report an injury forthwith works like an affirmative
defense for the employer. Magma Copper Co. v. Indus. Comm’n, 139 Ariz. 38,
45 (1983). An employer must raise the defense at a time that gives the
employee a chance to present evidence of excusal at a hearing. Id. at 46.
Because there is no single prescribed method of raising the defense, ALJs
determine the sufficiency of notice case-by-case. Id. at 46-49. The defense
may be raised through the implied consent of the parties. Id. at 47.

¶17 The record shows the following relevant facts. Cookson and
Liberty (collectively “Cookson”) issued a notice denying the claim on
August 23, 2022. That notice contained the following comment: “[T]he
alleged injury from 12/23/21 was not reported forthwith until some 6
months later. There is also no medical evidence to substantiate the injury.”
Then, on August 30, 2022, Cookson issued a second notice, accepting the
claim as a medical-only claim because Boyd did not lose more than seven
consecutive days of work. Finally, on September 10, 2022, Cookson issued
a third and final notice denying the claim with the following comment:
“This notice rescinds the [notice] dated 8/30/21, which was sent in error by
another unit. The original [notice] dated 8/23/22 denying the claim is
correct.”

¶18 Employers and carriers sometimes raise the defense of failure
to report promptly by a pre-hearing letter to the ALJ or an oral statement
on the record. Neither happened here. The hearing began without
Cookson invoking the defense. The ALJ announced that the issue for
hearing was simply “compensability” and asked if both parties agreed,
which they did without explanation. There were no opening statements.

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Failure to report promptly came up only once in the entire proceeding -
during a colloquy on Cookson’s objections to Boyd’s questioning of Mark
Montgomery. Cookson’s counsel objected to a question about whether
Montgomery asked Boyd in June 2022 if Boyd had told any co-workers
about his injury after December 2021. Cookson’s counsel argued that the
question was irrelevant and stated that the employer’s position was that the
injury was not reported until June. Boyd’s counsel replied:

[The injury] was reported on June 14. And the question is, did
they investigate after June 14 because the company raised failure
to forthwith report, and that’s why I’m asking those questions.
(Emphasis added.)

¶19 The ALJ did not rule on the objection, and Boyd’s failure to
timely report never came up again during the proceeding. But when Boyd
moved for review and reconsideration of the award finding that he failed
to report the injury promptly, he did not argue that Cookson failed to timely
raise the defense of failure to report promptly. He argued only that the
evidence did not support the ALJ’s findings.

¶20 On appeal, Boyd argues the ALJ erred by addressing the
defense of failure to report promptly when the employer had not raised it
in a way that gave fair notice. First, he notes there was no pre-hearing letter
from counsel or clarification at the start of the hearing when the ALJ asked
the parties to clarify the scope of the hearing. Second, he points to the
confusion caused by the language in the three notices. The first notice
asserted a failure to report promptly and a lack of medical evidence as
reasons for denial. But the second notice superseded the first, approving
the claim and seemingly waiving the defense, before the final notice in turn
rescinded the second notice, stating the first notice was “correct.” Third,
Boyd argues that the parties could not have impliedly consented to
adjudicate the defense because the employer’s evidence related to a claim
that Boyd was not credible and had created the injury report in retaliation
for the disciplinary action. Thus, he argues he did not submit evidence that
there was no prejudice in any delay because he had no reason to believe
that the defense was at issue.

¶21 While these arguments are substantial and have a basis in the
record, we do not address their merits. Boyd waived them by failing to
exhaust his administrative remedies with the ICA by raising them there
first. Norsworthy v. Indus. Comm’n, 24 Ariz. App. 73, 74 (1975) (explaining
party must first raise issue with ICA before raising it on appeal). Where a
party fails to exhaust their administrative remedies in this fashion, we

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cannot address their claim of error. Stephens v. Indus. Comm’n, 114 Ariz. 92,
94 (App. 1977). By failing to raise or even allude to his asserted lack of fair
notice of the requirement to forthwith report his injury in his request for
review, Boyd waived that asserted lack of fair notice on appeal. Id.

II. The ALJ Failed to Make Sufficient Factual Findings to Support Its
Conclusion That Boyd Failed to Report His Injury Forthwith.

¶22 The ALJ is empowered to resolve conflicts in the medical
evidence, draw warranted inferences, and judge witness credibility. See
Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988); Malinski, 103
Ariz. at 217. An ALJ may reject testimony that is inherently inconsistent
and contradictory, or when inferences can be drawn from other evidence
that cast doubt upon the credibility of such testimony. Wimmer v. Indus.
Comm’n, 15 Ariz. App. 543, 544 (1971).

¶23 But an ALJ is also required to make direct findings on issues
that are material to a decision – which can include witness credibility.
Villanueva v. Indus. Comm’n, 148 Ariz. 285, 288 (App. 1985) (setting aside
award where “claimant’s credibility was a material issue and a specific
finding that claimant was credible or lacked credibility” was thus
necessary). When an ALJ does not expressly reject a witness’ credibility,
we will not infer such a rejection. Joplin v. Indus. Comm’n, 175 Ariz. 524, 528
(App. 1993) (quoting Villanueva, 148 Ariz. at 289). And while the ALJ “has
very broad discretion,” where an ALJ “refuses to follow uncontradicted
information in the record” they “must state the reasons for doing so.” Id.
(citations omitted). Relevant here, “where evidence of an interested witness
is corroborated by a disinterested witness, rejection of that evidence
amounts to arbitrary action by the [fact-finder].” Ratley v. Indus. Comm’n,
74 Ariz. 347, 350 (1952).

¶24 The ALJ here failed to make a finding about Madole’s
credibility where his testimony was uncontradicted and its weight was
material to the decision. Boyd testified he gave Montgomery notice of his
injury in December 2021. Madole corroborated this point. Significantly,
Montgomery did not testify that no such call occurred, but merely testified
that he lacked a recollection of the claimed call from Boyd. See Ratley, 74
Ariz. at 350 (“The [ALJ] may not arbitrarily reject . . . uncontradicted
evidence when nothing intrinsic in the evidence itself or extrinsic in the
circumstances casts suspicion thereon.”). Both of Cookson’s lay witnesses
– Montgomery and Nelson – testified that Madole was honest and
trustworthy. With Boyd’s claim hinging on the acceptance of Madole’s

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credibility, the ALJ stated only this concerning his (or any lay witness)
testimony:

Upon evaluation of the testimony, the reasonable inferences
to be drawn from said testimony and resolution of any actual
or surmised conflicts therein, it is found that as a whole the
evidence fails to corroborate and support the evidence and
testimony of [Boyd].

¶25 This is not enough for us to affirm. The ALJ must make
findings on every material issue, including where necessary, the credibility
of witnesses. Villanueva, 148 Ariz. at 288. Our cases have not defined what
“material” means in this context. Relevant here, Black’s Law Dictionary
defines “material” in the context of evidence as “having some logical
connection with the consequential facts[.]” MATERIAL, Black's Law
Dictionary (12th ed. 2024). Thus, to be material, Madole’s credibility must
have “some logical connection” with Boyd’s credibility. We cannot say
Madole’s credibility was immaterial given Madole was the sole witness to
the alleged injury report and was the only uninterested witness who could
corroborate Boyd’s testimony. See Villanueva, 148 Ariz. at 288.

¶26 Worse, the ALJ incorrectly summarized the testimony as
though Madole had only testified that he learned of Boyd’s report to
Montgomery as hearsay from Boyd: “[Boyd] told him that [Boyd] had
injured his right shoulder during the installation and that [Boyd] called
Mark Montgomery on the phone that day.”

¶27 The ALJ’s summary is wrong. It omits to state that Madole
testified he heard Boyd tell Montgomery he was hurt at work. Though
Madole’s testimony is a material issue in this case, the ALJ appears not to
have noted that his crucial testimony was direct witnessing of a report of
accident – not mere hearsay. And the ALJ made no finding that Madole
was not credible. The fact that the order accurately summarizes and recites
all other relevant testimony while omitting to correctly summarize
Madole’s suggests the court disregarded it.

¶28 We must therefore set aside the award. See Villanueva, 148
Ariz. at 288-89 (setting aside an award where the ALJ failed to make a
specific finding regarding claimant’s credibility where credibility was
material). Villanueva emphasizes that this rule applies when the ALJ
“refuses to follow uncontradicted evidence in the record.” Id. at 288. Even
Montgomery did not contradict Madole’s account of the call – he demurred
that he did not remember it but was not denying it happened. And because

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Madole, a disinterested witness, corroborates the interested witness, Boyd,
rejecting Boyd’s testimony without a finding on Madole’s credibility is
arbitrary. Ratley, 74 Ariz. at 350.

¶29 The award lacks specific findings on the material issue of
Madole’s credibility – especially given the award misrendering Madole’s
testimony. Without such findings, we cannot determine the legal
soundness or lack of arbitrariness of the ALJ’s conclusion that Boyd failed
to promptly report his injury. See Post, 160 Ariz. at 7-8 (requiring specific
findings to allow the court to review the decision and award for legal
soundness and for a sufficient factual basis).

III. The Dissent’s Efforts to Harmonize the Award with Madole’s
Testimony Are Unpersuasive.

¶30 The dissent responds that Madole’s testimony can be
interpreted to mean he did not witness a report of an injury on the job.
Dissent, ¶ 41 (citing Thompson v. Indus. Comm’n, 160 Ariz. 263, 266 (1989)).
Thus, the dissent contends, the award is not inconsistent with Madole’s
testimony. The dissent’s premise, if accepted, would make Madole’s
testimony immaterial, excusing the ALJ from making any finding as to his
credibility. And it would make the award reasonably supported by
substantial evidence, requiring affirmance. Malinski, 103 Ariz. at 216.

¶31 We vacate the award because that premise is flawed: the
record does not support the dissent’s reading of Madole’s testimony and
written statement. Madole explained that Boyd called Montgomery from a
jobsite and told Montgomery “that thing hurt me” and that Boyd’s right
shoulder got hurt. Or as Madole put it, “Steve called the office on speaker
phone and talked to Mark Montgomery letting Mark know that Steve hurt
his right shoulder.” That is not “mere[ly] . . . tell[ing] his employer that he
does not feel well or that he is in pain,” which Thompson tells us is not a
report. 160 Ariz. at 266. It contains instead, as Thompson requires, “facts
connecting the injury . . . with the employment.” Id. The facts are simple
and undisputed: (1) Boyd was working with Madole at a jobsite installing
a heavy garage door operator, (2) the operator injured Boyd, (3) Boyd and
Madole got down from a lift, (4) Boyd called his supervisor Montgomery,
and (5) Boyd told Montgomery how “that thing” hurt his ”right shoulder.”
These facts “indicat[e] to a reasonably conscientious manager that” Boyd’s
injury “might involve a workers’ compensation claim.” See id. Thus,
Madole’s testimony, unless rejected, showed Boyd made a report in
December 2021 clearing the bar set by Thompson. 160 Ariz. at 266 (requiring
a report of “facts connecting the injury . . . with the employment” that

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“indicat[e] to a reasonably conscientious manager that” Boyd’s injury
“might involve a workers’ compensation claim.”).

¶32 The dissent disagrees, but its arguments don’t track with the
legal standard in Thompson.

¶33 First, the dissent reduces Boyd’s report to a passive reference
– “mentioning his shoulder pain.” Dissent, at ¶ 47. But Boyd said more.
He was lifting a heavy garage door operator, and told Montgomery it “hurt
him.” The dissent’s formulation incorrectly elides out of Boyd’s report that
the door hurt Boyd – which “connect[s] the injury . . . with [Boyd’s]
employment.” See Thompson, 160 Ariz. at 266.

¶34 Second, the dissent dismisses Boyd’s report as “passing.” That
argument also fails. The question is not the report’s length or complexity,
but whether it put Montgomery on notice that the door hurting Boyd
“might involve” a claim. Id. Boyd’s report did precisely that. When a
worker is hurt on the job by the conditions of their work, they have such a
claim. A.R.S. § 23-1021 (providing that “every employee . . . injured . . . by
accident arising out of an in the course of his employment . . . shall be
entitled to” worker’s compensation). See also Ariz. Const. art. 18, § 8
(requiring enactment of worker’s compensation law compensating workers
for “injury . . . in the course of . . . employment.”) Saying the garage door
hurt him, Boyd at minimum let Montgomery know he might have a claim.

¶35 Third, the dissent seeks to make Boyd’s state of mind
disqualifying, ascribing expertise in claims to him. Dissent, ¶ 47. But the
law asks what a reasonable Mark Montgomery would think based on
Boyd’s actual report – not whether Boyd should have known to give a better
report, or could have given it to someone else. Compare Thompson, 160 Ariz.
at 266 to Dissent, ¶¶ 47-48, 52.

¶36 Fourth, the dissent’s suggestion that we disregard Thompson’s
facts fails. Dissent, ¶ 49. There, our supreme court held that where an
employer knew its employee had a heart attack on the job “while
performing the strenuous duties assigned him,” those facts “put [the
employer] on notice that the heart attack could involve a potential
compensation claim.” Thompson, 160 Ariz. at 266-267. Here, Boyd reported
he was injured by the door while he was performing the strenuous duties
assigned him – lifting a roughly 150-pound door operator. To the contrary,
the dissent disregards how accommodating the standard in Thompson is to
the claimant. There, our supreme court found forthwith reporting because
the employee’s “heart attack could involve a potential compensation claim.”

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Id. at 267 (emphasis added). Telling your boss a heavy door hurt you when
you were lifting it on the job inescapably could involve a potential
compensation claim. Thompson requires setting aside this award.

¶37 Finally, the dissent does not address the ALJ’s misstatement
of Madole’s testimony. The ALJ incorrectly dismisses it as hearsay
testimony of Boyd’s later statements, instead of the direct evidence it was
of Madole hearing Boyd’s worktime call to Montgomery complaining of his
right shoulder injury. The ALJ’s misstatement underscores the need for a
finding as to the material issue of Madole’s credibility, as the ALJ
apparently misunderstood the record.

¶38 Because the award lacks specific findings, we do not reach
whether Cookson was prejudiced by Boyd’s alleged failure to report
forthwith.

CONCLUSION

¶39 For these reasons, we set aside the award.

P E R K I N S, J., dissenting:

¶40 I agree with the majority that Boyd waived his fair notice
argument. Majority ¶¶ 16–21. But I dissent from the decision to set aside
the award, which was legally sound based on this record.

¶41 The majority holds that Madole’s testimony was material, the
ALJ’s conclusion depends on rejecting that testimony, and therefore the
failure to make explicit credibility findings dooms the award. No such
findings were necessary here because the award is consistent with Madole’s
testimony.

The record supports the ALJ’s conclusion that Boyd failed to timely report
his injury.

¶42 We should only vacate an award if we are “unable to
determine whether the basis of the [ALJ’s] conclusion was legally sound.”
Cavco Indus. v. Indus. Comm’n, 129 Ariz. 429, 435 (1981). “[T]he lack of
findings on material issues does not invalidate an award per se.” Id.; see also
Ford v. Indus. Comm’n, 145 Ariz. 509, 519 (1985) (“Specific findings are not
necessary, provided that the reviewing court can determine from the
evidence whether the ultimate basis given by the hearing officer for his

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Perkins, J., dissenting

conclusion was legally sound.”); Villanueva v. Indus. Comm’n, 148 Ariz. 285,
288–89 (App. 1985) (same).

¶43 Here, we can determine that the ALJ’s conclusion was legally
sound even without inferring that the ALJ rejected Madole’s testimony.
Accepting Madole’s account of the phone call as true, substantial evidence
in the record supports the conclusion that Boyd failed to timely report his
injury. See Malinksi v. Indus. Comm’n, 103 Ariz. 213, 216 (1968) (we affirm an
ALJ’s award when supported by substantial evidence).

¶44 “The mere fact that an employee tells his employer that he
does not feel well or that he is in pain does not give the employer reason to
know that the injury might involve a potential compensation claim.”
Thompson v. Indus. Comm’n, 160 Ariz. 263, 266 (1989). “There must in
addition be some knowledge of accompanying facts connecting the injury
or illness with the employment, and indicating to a reasonably conscientious
manager that the case might involve a potential compensation claim.” Id.
(quoting Larson, The Law of Workmen’s Compensation § 78.31(a)(2) (1988)).

¶45 There is ample evidence that Boyd’s phone call with
Montgomery did not give Montgomery “reason to know” the phone call
was an injury report. See id.

¶46 Madole testified that, after the incident with Boyd’s shoulder,
the two continued to install the heavy piece of equipment: “we got it in
there where I could get the bolts in, so I tightened it up, and then [Boyd]
finished terminating the wires, and then we got down, and then that’s when
he made the phone call.” Boyd began the call by reporting on their progress
in installing the equipment before saying, as Madole characterized it, “by
the way, that thing hurt me.” At which point Madole walked away and
heard nothing further. Madole’s testimony is thus consistent with finding
that Boyd merely mentioned the shoulder issue to Montgomery in passing.

¶47 Montgomery’s testimony belies any claim that “a reasonably
conscientious manager” in his position would have considered Boyd
mentioning his shoulder pain in passing to be an injury report. See id.
Montgomery testified that he knew Boyd was well-versed in Cookson’s
injury reporting protocols because for years Boyd worked as a Cookson
supervisor responsible for handling injury reports. The injury reporting
protocol required Boyd to call his direct supervisor Nelson rather than
Montgomery. While Boyd testified that he called Montgomery because
Nelson was on vacation, company records show Nelson was working that
day.

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Perkins, J., dissenting

¶48 Boyd’s passing comment on the call was insufficient under
Thompson to serve as a timely injury report to Montgomery. And
Montgomery, aware of Boyd’s expertise in compensation claim protocols at
Cookson, acted reasonably in response to such a passing comment. Though
Montgomery testified that he did not remember the call, he also testified
that if Boyd had reported an injury to him, he would have followed
company protocols to address it. Montgomery did not engage those
protocols. And Boyd never followed up with either Nelson or Montgomery
as required by the protocols he was familiar with—he mentioned the injury
again only when facing discipline six months later.

¶49 The majority’s reliance on Thompson to reach a contrary
conclusion disregards the facts presented in that case. There, the employee
failed to immediately file a report “because he did not know he was entitled
to workers’ compensation.” 160 Ariz. at 265. And the employer was on
notice because an owner “heard [the employee] yell that he thought he was
having a heart attack, drove [the employee] to his house and radioed [the
employee’s] wife to have her meet them at the house and take [the
employee] to the hospital.” Id. at 266. The employer knew of the employee’s
previous heart attack, his current strenuous duties, the overtime he had
been working, and that this second heart attack occurred while working. Id.

¶50 Our supreme court set forth a fact-driven inquiry in
Thompson, which it decided in the context of an unsophisticated employee
and an employer who observed firsthand the relevant circumstances. A far
cry from the scenario presented here.

¶51 The majority’s position rests entirely on its determination that
the ALJ’s failure to make explicit credibility findings renders the award
unsupportable. But unlike the decision reviewed in Villanueva, the ALJ’s
limited findings here do not impede our review. In Villanueva, the court set
aside an award because the ALJ failed to make findings on the claimant’s
credibility, and the award “[could] only be supported if the claimant’s
testimony was not credible.” Villanueva, 148 Ariz. at 286. Here, the record
supports the award even crediting Madole’s testimony as true.

¶52 The record presented the following unchallenged facts to the
ALJ: (1) during the 15 years Nelson served as a field technician, Boyd was
his operations manager responsible for processing workers’ compensation
claims; (2) Nelson was the manager to whom Boyd should have reported
any injury; (3) Nelson was working and available for a call that day but
Boyd did not contact him about his shoulder that day or at any time
thereafter; (4) Boyd mentioned his hurt shoulder in his call to Montgomery;

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 BOYD v. DURASERV CORP DBA/LIBERTY INSURANCE
Perkins, J., dissenting

(5) Boyd took zero actions consistent with a contemporaneous belief that he
had a compensable injury despite his admitted expertise in both
compensable injuries and the process for reporting them at Cookson; and
(6) Boyd did not characterize his call with Montgomery as an injury report
until he was confronted with discipline six months later. The ALJ’s
conclusion that Boyd failed to forthwith report his injury is thus consistent
with both Madole’s testimony and the record as a whole. I conclude that
the record supports the award.

The record also supports that Boyd’s failure to timely report his injury
prejudiced Cookson.

¶53 When a tribunal finds failure to report forthwith, the inquiry
shifts to whether the failure is excused under Arizona Revised Statutes
Section 23-908(F). See Douglas Auto & Equip. v. Indus. Comm’n, 202 Ariz. 345,
347, ¶¶ 5–6 (2002). If the Commission finds the employee’s untimely
reporting prejudiced the employer, it will not excuse the untimely
reporting. Id. at ¶ 7. This serves the dual purpose of (1) ensuring the
employee receives prompt medical treatment to prevent aggravation of the
injury, and (2) affording the employer an opportunity to investigate the
accident as soon as possible, so that reliable evidence can be preserved. See
Magma Copper Co. v. Indus. Comm’n, 139 Ariz. 38, 43 (1983). “[W]hile the
number of days between injury and the employee’s report of the injury is
not decisive, the fact that a short period of time lapses . . . makes prejudice
to the employer less likely.” Douglas Auto, 202 Ariz. at 348, ¶ 12. The inverse
is also true. A long delay makes prejudice more likely—the employee’s
injury might be aggravated by a delay in treatment, and the employer’s
investigation might be hindered by forgetful witnesses or lost documents.

¶54 The ALJ’s factual findings support her conclusion that the
delay prejudiced Cookson. The ALJ found that Boyd’s injury occurred in
December 2021. After six months of ineffective self-treatment, and a month
after an unrelated disciplinary intervention began, Boyd filed his claim
because “it just hurt too much.” By the end of the six-month delay,
Montgomery was unable to remember whether the phone call even
happened. And no one interviewed Madole—the only witness to the
injury—until after his July 2022 note recounting what he witnessed seven
months earlier. These findings demonstrate prejudice to Cookson. The ALJ
did not have to expressly combine her findings with her conclusion that
Cookson was prejudiced by Boyd’s delay. See id. at ¶ 13 (failure to expressly
combine the prejudice finding with the supporting facts does not defeat an
award if the factual findings are sufficiently specific to support the
conclusion).

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 BOYD v. DURASERV CORP DBA/LIBERTY INSURANCE
Perkins, J., dissenting

CONCLUSION

¶55 We should not set aside this award because the record
demonstrates it is legally sound. I dissent.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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