Enriquez v. cardenas/eastguard

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SAMUEL ENRIQUEZ, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CARDENAS MARKETS dba LOS ALTOS RANCH MARKETS, Respondent
Employer,

EASTGUARD INSURANCE COMPANY, Respondent Carrier,

SPECIAL FUND DIVISION, Respondent Party-in-Interest.

No. 1 CA-IC 24-0015
FILED 12-17-2024

Special Action - Industrial Commission
ICA Claim No. 20182150122
Carrier Claim No. LOWC874491-040
The Honorable Kenneth J. Hill, Administrative Law Judge

AFFIRMED
 COUNSEL

Joel F. Friedman, PLLC, Phoenix
By Joel F. Friedman
Counsel for Petitioner

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent

Quintairos, Prieto, Wood & Boyer, P.A., Scottsdale
By Cody N. Crosier
Counsel for Respondents Employer and Insurance Carrier

Industrial Commission of Arizona – Legal Division, Phoenix
By Scott J. Cooley
Counsel for Respondent Party-in-Interest

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Anni Hill Foster and Judge Angela K. Paton joined.

B A I L E Y, Judge:

¶1 Samuel Enriquez seeks to set aside an Industrial Commission
of Arizona (“ICA”) award and decision upon review concluding that he has
no loss of earning capacity (“LEC”) stemming from a permanent
impairment he suffered while working for Respondent Cardenas Markets
dba Los Altos Ranch Markets (“Los Altos”). He contends the
Administrative Law Judge (“ALJ”) erred by (1) finding his testimony not
credible, (2) making inadequate findings, and (3) giving more weight to
Respondents’ medical experts than to his. We reject these contentions and
affirm the award and decision upon review.

FACTS AND PROCEDURAL HISTORY

¶2 Enriquez suffered two industrial injuries while working as a
butcher and cook for different employers in 2018. The first injury occurred
in February and resulted in a 1% permanent impairment to his right major
hand (index finger). The second injury occurred in June when he slipped
and fell while working for Los Altos, suffering an ankle injury. After

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Decision of the Court

treatment that included multiple surgeries, he was rated with a 5%
permanent impairment of his left lower extremity (ankle). In December
2021, the ICA Claims Department issued an award for permanent partial
disability, but found he had no LEC because he had no medical restrictions
that would preclude him from doing the same or a similar job. Enriquez
timely protested that award.1

¶3 The ICA conducted a hearing, at which the ALJ heard
videoconference or telephonic testimony from multiple witnesses,
including Enriquez. We view that evidence in the light most favorable to
supporting the award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16
(App. 2002).

¶4 Enriquez testified and provided documentary evidence that
he worked off-and-on, part-time, as a butcher and cook for different
employers after the ankle injury. He testified he could not remain at those
jobs for long because of his injuries. The ALJ found his testimony generally
not credible, however.

¶5 Enriquez presented medical expert testimony through Dr.
Paul Ledesma, a podiatric surgeon who treated Enriquez’s left ankle in 2019
after another surgeon had performed a repair surgery. Dr. Ledesma also
saw Enriquez a few times in 2020 after the claim had been closed, and again
in December 2021. Dr. Ledesma reviewed other medical records related to
Enriquez’s ankle injury, including MRIs, and testified that the work fall
caused Enriquez’s left ankle injury and necessitated work restrictions at
that time. Those restrictions included not standing or walking for extended
periods and no heavy lifting. Dr. Ledesma also testified that Enriquez could
not work “on his feet for over eight hours a day at a job as he was [doing]
prior to this accident.” And although he had seen surveillance videos of
Enriquez mowing his lawn and shopping in a supermarket, those videos
did not change his opinion. Dr. Ledesma was also aware of an incident in
December 2021 in which Enriquez hurt his left ankle when a car bumped it.
Dr. Ledesma reviewed a subsequent MRI and did not believe the incident
caused any new injury. He released Enriquez to work with no restrictions
by early January 2022. Finally, Dr. Ledesma stated that he did not know
whether Enriquez’s current ankle problems were related to the work injury
or the December 2021 incident.

1 Once the Claims Department’s LEC award is challenged, its findings are

“of no evidentiary value.” Le Duc v. Indus. Comm’n, 116 Ariz. 95, 98 (App.
1977).

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¶6 Dr. Jon Zoltan, an orthopedic surgeon, performed an
independent medical examination (“IME”), reviewed Enriquez’s medical
records, and watched the 2019 surveillance video. Dr. Zoltan concluded the
ankle injury had resolved by March 2020 and no additional treatment was
needed. He rated Enriquez with a permanent impairment of 5% to the left
lower extremity, did not recommend any work restrictions, and opined that
Enriquez could return to the job he had been doing when he was injured.

¶7 The parties also submitted labor market expert opinions for
their respective positions. Enriquez’s labor market expert based his
conclusions on Dr. Ledesma’s work restrictions and opined that Enriquez
had incurred an LEC. Respondents Los Altos and Hartford’s labor market
expert based her conclusions on Dr. Zoltan’s opinion that no work
restrictions were needed, concluding that Enriquez could return to the job
he had before the injury.

¶8 The ALJ issued an award summarizing the evidence and
testimony, finding that Enriquez’s testimony was not credible, and giving
Dr. Zoltan’s opinion greater weight than Dr. Ledesma’s. The ALJ
concluded no permanent work restrictions were attributable to the
industrial injury and, therefore, Enriquez had no LEC.

¶9 Enriquez requested an administrative review of the award,
arguing that the ALJ erred by (1) finding him not credible, (2) giving more
weight to Dr. Zoltan’s opinion than Dr. Ledesma’s, and (3) finding no LEC.
The ALJ affirmed the award in its decision upon review.

¶10 Enriquez timely petitioned this court for review, and we have
jurisdiction over this statutory special action. See Ariz. Rev. Stat. (“A.R.S.”)
§ 23-951(A); Ariz. R.P. Spec. Act. 10.

DISCUSSION

¶11 When reviewing an ICA award, 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). The ALJ must resolve conflicting evidence
and “determine which of the conflicting testimony is more probably
correct,” an essential duty when experts give incompatible testimony. Perry
v. Indus. Comm’n, 112 Ariz. 397, 398 (1975). We will not disturb the ALJ’s
resolution unless it is wholly unreasonable. Royal Globe Ins. Co. v. Indus.
Comm’n, 20 Ariz. App. 432, 434 (1973). Therefore, to prevail on appeal,
Enriquez must show that no substantial record evidence supports the ALJ’s
findings and that the ALJ’s credibility determinations were wholly
unreasonable. He has not done this.

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¶12 Enriquez argues the ALJ’s findings lack specificity, especially
concerning the finding that his testimony was not credible. Although the
ALJ could have been more specific about which parts of the testimony were
not credible, the general statement that Enriquez’s testimony was not
credible does not by itself warrant setting aside the award. Findings of fact
need only be sufficient to examine “’the factual support for, or the legal
propriety of’ the award.” Aguirre v. Indus. Comm’n, 247 Ariz. 75, 77, ¶ 12
(2019) (quoting Post v. Indus. Comm’n, 160 Ariz. 4, 7 (1989)). The findings
and conclusions here are sufficient.

¶13 Enriquez also contends the ALJ erred in making a credibility
determination based on a videoconference format for taking testimony. But
Enriquez objected to the videoconference format for the first time in his
request for review. Had he timely objected, the ALJ could have considered
other options for taking his testimony.2 Moreover, an ALJ may conduct a
hearing in any manner that achieves substantial justice. See A.R.S. § 23-
941(F). We conclude the ALJ properly conducted this hearing.

¶14 The ALJ’s determination that Enriquez has no LEC or
permanent work restrictions is supported by evidence in the record,
including Dr. Zoltan’s expert opinion. We will not disturb an ALJ’s
resolution of a conflict in expert opinion if that resolution is supported by
evidence and is reasonable. See Waller v. Indus. Comm’n, 99 Ariz. 15, 18
(1965). Much of Enriquez’s argument on appeal is about the weight that
should be given to Dr. Ledesma’s opinion. This court does not re-weigh
evidence. Kaibab Indus. v. Indus. Comm’n, 196 Ariz. 601, 608, ¶ 21 (App.
2000). Where there is conflict in the evidence or where different inferences
may be drawn from the evidence, the ALJ may resolve those conflicts and
choose either inference; a reviewing court will not disturb that choice unless
it is wholly unreasonable. Id. at 609, ¶ 25; Waller, 99 Ariz. at 18.

2 Enriquez asks us to take judicial notice that an ALJ viewing a witness

appearing through videoconferencing—Google Meet in particular—cannot
see a “full body view.” This is not an appropriate item for judicial notice.
Cf. Utah Constr. Co. v. Berg, 68 Ariz. 285, 291 (1949) (“Before a court . . . can
take judicial notice of a fact, the basic requirement must be met, to-wit: A
fact to be judicially noticed must be certain and indisputable, requiring no
proof, and no evidence may be received to refute it.”).

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CONCLUSION

¶15 We affirm the award and decision upon review.

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

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