Moreno v. Me global/travelers

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROMAN MORENO, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

ME GLOBAL INC, Respondent Employer,

TRAVELERS INDEMNITY CO OF CONNECTICUT, Respondent Carrier.

No. 1 CA-IC 23-0032

FILED 10-10-2024

Special Action - Industrial Commission
ICA Claim No. 20221820131
Carrier Claim No. 042-CB-FWQ3396-N
The Honorable Jeanne Steiner, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

Etoile Law, PLLC, Chandler
By Angelica Simpson
Counsel for Petitioner

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent
Lundmark, Barberich, La Mont & Puig, P.C., Phoenix
By David T. Lundmark
Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Daniel J. Kiley and Judge Kent E. Cattani joined.

W I L L I A M S, Judge:

¶1 Workers injured on the job must report their injury promptly
to their employers. Failure to do so could result in forfeiture of
compensation. An administrative law judge (“ALJ”) with the Industrial
Commission of Arizona (“ICA”) found that Roman Moreno did not
promptly report an injury to his employer ME Global Inc. (“ME Global”).
Finding that Moreno’s delayed injury report resulted in prejudice to ME
Global, the ALJ affirmed Travelers Indemnity Co. of Connecticut’s
(“Travelers”) denial of Moreno’s claim. For the following reasons, we set
aside the ICA award and remand for further findings.

FACTUAL AND PROCEDURAL HISTORY

¶2 We consider the evidence in the light most favorable to
sustaining the award. Snyder v. Indus. Comm’n, 96 Ariz. 81, 83 (1964).
Moreno worked in ME Global’s foundry for 16 years. His job included
lifting and moving heavy metal objects. According to Moreno, he hurt his
lower back while working on February 1, 2022. He explained that he was
lifting a metal bar of “between 40 and 60 pounds” when he “heard
something pop in [his] back.” He described the injury as a mild strain that
worsened over the following weeks and months. He testified at a hearing
that he told a co-worker about the injury when it happened, and reported
it to his supervisor the same day. He further testified that his supervisor did
not suggest that he see a doctor, nor did he provide Moreno with any
paperwork to document the injury. However, there are no
contemporaneous records of that report or injury. Moreno continued to
work and lost no work time due to the injury.

¶3 In mid-June 2022, Moreno had a new supervisor. He
complained to the new supervisor that he had strained his lower back, but
the record is not clear whether he related the injury to the February event.
The company’s HR manager, Patrick Frazier, took Moreno to an urgent care

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center to get his back examined. An urgent care doctor reported that the
strain was not work-related, and no work restrictions were necessary.
Moreno went back to work. On July 1, 2022, Moreno filed a worker’s
compensation report of injury, reporting a lower back injury that occurred
on February 1, 2022. Travelers denied the claim at the end of July. In
October 2022, Moreno was fired for excessive absences.

¶4 The ICA held a hearing on Moreno’s claim, taking testimony
from Moreno and his supervisors. Because ME Global and Travelers raised
the defense of failure to “forthwith” report the injury as required by statute,
the evidence and testimony focused on whether Moreno had reported the
injury in February 2022. Moreno testified that he told the supervisor and his
co-worker about the injury and briefly discussed it with other supervisors.
He offered no corroboration through contemporaneous documents or other
witnesses. Frazier testified that company policy requires that he, as HR
manager, be informed of any workplace injuries and that the employee be
taken for treatment immediately. Frazier did not learn of Moreno’s alleged
injury, however, until June 2022, when he had a five-minute conversation
with Moreno about it. When asked if he believed that his brief conversation
with Moreno constituted an adequate investigation, Frazier replied that he
did.

¶5 The ALJ issued an award summarizing the evidence
presented, including Frazier’s testimony that he was not informed of
Moreno’s alleged injury until June 2022. The ALJ rejected Moreno’s
testimony that he reported the injury on February 1, 2022, finding that
Moreno “was not credible” and that the remaining evidence “does not
corroborate or support” Moreno’s testimony on that point. She therefore
found that Moreno failed to report the injury “forthwith” as required by
A.R.S. § 23-908(E). The ALJ explained that the Arizona Supreme Court has
provided two possible excuses for failing to timely report an injury, and
then stated, in a conclusory manner, that Moreno “has not met his burden
of establishing . . . that his failure” to timely report the injury “should be
excused.” Finding it unnecessary “to resolve the conflict in the medical
evidence regarding whether [Moreno] sustained [a] compensable work
injury on February 1, 2022,” the ALJ denied Moreno’s claim.

¶6 Moreno filed a request for review, asserting, inter alia, that his
failure to report the injury “forthwith” should be excused because the delay
caused ME Global no prejudice. Citing Frazier’s testimony that he was able
to conduct “a sufficient investigation” when he learned of the alleged injury
in June 2022, Moreno argued that the delay in reporting did not impede ME
Global’s ability to “fully investigate [his] injury.” Moreno also argued that

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no evidence indicated “his injury was at all aggravated by a delay in
treatment.”

¶7 In response, ME Global argued that Moreno’s failure to timely
report the injury caused prejudice because it resulted in a “delay in medical
care.” ME Global further argued that it “was not given [a] full opportunity
to investigate” the alleged injury “immediately” due to Moreno’s reporting
delay, and that, instead, “could only begin its investigation months later.”

¶8 The ICA ALJ summarily affirmed the decision denying
Moreno’s claim. Moreno then filed this statutory special action to review
the award. We have jurisdiction. See A.R.S. § 12-120.21(A)(2).

DISCUSSION

¶9 When reviewing the findings 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). We will uphold the
ALJ’s findings if reasonably supported by substantial evidence. Malinski v.
Indus. Comm’n, 103 Ariz. 213, 216 (1968).

¶10 Injured workers must “forthwith” report an accidental injury
under A.R.S. § 23-908(E). Failure to do so risks forfeiture of compensation.
A.R.S. § 23-908(F). The Arizona Supreme Court has observed that this
prompt reporting requirement serves two purposes: (1) to allow the
employer to provide immediate medical diagnosis and treatment, and (2)
to facilitate investigation of the circumstances that caused the injury.
Thompson v. Indus. Comm’n, 160 Ariz. 263, 266 (1989). The ICA may excuse
the failure to promptly report. A.R.S. § 23-908(F). The Arizona Supreme
Court has recognized two instances in which excusal is appropriate: (1)
when the worker had no way of knowing that an injury occurred or was
related to employment, and (2) when the untimely reporting has not
prejudiced the employer. Douglas Auto & Equip. v. Indus. Comm’n, 202 Ariz.
345, 347 (2002). Lack of prejudice may be established by evidence “that the
claimant’s injury was not aggravated by the employer’s inability to provide
early diagnosis and treatment, and, further, by showing that the employer
was not hampered in making [its] investigation and preparing [its] case.”
Pac. Fruit Express v. Indus. Comm’n, 153 Ariz. 210, 215–16 (1987) (citation
omitted).

¶11 ALJs have a statutory duty to “make specific findings on all
material issues and resolve all material ‘conflicts in the evidence.’” Aguirre
v. Indus. Comm’n, 247 Ariz. 75, 77, ¶ 12 (2019) (quoting Post v. Indus. Comm’n,
160 Ariz. 4, 8 (1989)). Moreover, they “cannot simply state [their]

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conclusions” in their decisions, but “must make factual findings that are
sufficiently comprehensive and explicit for a reviewing court to glean the
basis for [their] conclusions.” Douglas Auto, 202 Ariz. at 347, ¶ 9. The
requirement that ALJs make “specific” findings not only facilitates
“meaningful judicial review,” but “encourage[s] [ALJs] to consider their
conclusions carefully” in the first instance. Id. This Court “will set aside an
ALJ’s award ‘if we cannot determine the factual basis of [the] conclusion or
whether it was legally sound.’” Landon v. Indus. Comm’n, 240 Ariz. 21,
24–25, ¶ 9 (App. 2016) (quoting Post, 160 Ariz. at 7).

¶12 Here, the ALJ set forth specific factual findings to support her
conclusion that Moreno did not report the injury until six months until after
it happened. Moreover, the record supports this determination.

¶13 But the ALJ set forth no factual findings to support her
conclusion that Moreno “has not met his burden of establishing . . . that his
failure to report ‘forthwith’ should be excused.” She cited no evidence and
made no findings about whether the delay in reporting impeded ME
Global’s ability to conduct a proper investigation. Likewise, she cited no
evidence and made no findings about whether Moreno’s injury was
aggravated because of the delay in treatment. Because these issues were
disputed by the parties, the ALJ was required to make specific findings to
explain her decision to accept ME Global’s position and reject Moreno’s. See
Aguirre, 247 Ariz. at 77, ¶ 12; see also Douglas Auto, 202 Ariz. at 347, ¶ 9.
Absent the required factual findings, we “cannot determine the factual
basis of the [ALJ’s] conclusion or whether it was legally sound,” Post, 160
Ariz. at 7, and so we must set aside the award. Landon, 240 Ariz. at 24–25,
¶ 9.

CONCLUSION

¶14 For the foregoing reasons, we set aside the award and remand
for further proceedings consistent with this decision.

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

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