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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HILTON WORLDWIDE INC., Petitioner Employer,

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA C/O 

SEDGWICK CMS, Petitioner Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

JAMIE L. BURCH, Respondent Employee.

No. 1 CA-IC 16-0048

Special Action - Industrial Commission

ICA Claim No. 20143-570215

 Carrier Claim No. 30142965324-0001

Paula R. Eaton, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Manning & Kass 

Ellrod, Ramirez, Trester, LLP, Phoenix

By Linnette R. Flanigan

Counsel for Petitioners Employer and Carrier

Industrial Commission of Arizona, Phoenix

By Jason M. Porter

Counsel for Respondent
2

Crossman Law Offices, P.C., Phoenix

By Harlan J. Crossman

Counsel for Respondent Employee

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.1

G E M M I L L, Judge:

¶1 Petitioner employer, Hilton Worldwide Inc., and petitioner 

carrier, Indemnity Insurance Company (collectively “Hilton”), seek special

action review of an Industrial Commission of Arizona (“ICA”) award and 

decision upon review for a compensable claim, arguing the administrative 

law judge (“ALJ”) erred in assessing the evidence presented. Because the 

evidence reasonably supports the ALJ’s compensability award, we affirm.

BACKGROUND

¶2 In October 2014, Jamie L. Burch was working as a phone 

operator at the Arizona Biltmore Resort (“ABR”). Near the end of her shift, 

she fell and sustained a compound fracture of her left forearm. Burch filed 

a workers’ compensation claim that was denied for benefits. She timely 

requested an ICA hearing, and the ALJ heard testimony from Burch, her

coworker Arlene Boyd, ABR’s director of safety and security Sergey 

Aghajanyan, ABR security supervisor Von Hessler, and independent 

medical examiner Leo Kahn, M.D.

¶3 After receiving post-hearing memoranda, the ALJ entered an 

award for a compensable claim. Hilton timely requested administrative 

review, but the ALJ summarily affirmed the award. Hilton timely sought 

review by this court, and we have jurisdiction under Arizona Revised 

 

1 The Honorable John C. Gemmill and Honorable Patricia A. Orozco, 

Retired Judges of the Court of Appeals, Division One, have been authorized 

to sit in this matter pursuant to Article VI, Section 3 of the Arizona 

Constitution. 
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3

Statutes (“A.R.S.”) sections 12-120.21(A)(2), 23-951(A), and Arizona Rule of 

Procedure for Special Actions 10.

ANALYSIS

¶4 When reviewing the ICA’s findings and award, we defer to 

the ALJ’s factual findings, and consider the evidence in the light most 

favorable to upholding the award, but review questions of law de novo. 

Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003); Lovitch v. Indus. 

Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002). 

¶5 Hilton claims Burch’s injury was the result of an idiopathic 

fall, arising from some condition personal to Burch, such as a preexisting 

physical weakness or disease. See 1 Arthur Larson & Lex K. Larson, 

Larson’s Workers’ Compensation Law, (“Larson”) § 9.01[1] at 9-2 to -4

(2016). 

¶6 To be compensable, an injury must arise out of and in the 

course of employment. See A.R.S. § 23-1021(A). “Arising out of” is defined 

as the origin or cause of the injury. Royall v. Indus. Comm’n, 106 Ariz. 346, 

349 (1970). “In the course of” pertains to the time, place, and circumstances 

of the accident in relation to the employment. Id. It is Burch’s burden to 

prove all elements of a compensable claim. Toto v. Indus. Comm’n, 144 Ariz. 

508, 512 (App. 1985). An idiopathic fall is a personal risk that does not arise 

out of employment, unless the employment contributes to the risk or 

aggravates the injury. Id. at 512-13; Ariz. Workers’ Compensation 

Handbook, § 3.3.5, at 3-15 to -16 (Ray J. Davis, et al., eds.; 1992 and Supp. 

2015). The general rule is that the effects of an idiopathic fall are 

noncompensable unless “the employment places the employee in a position 

increasing the dangerous effects of such a fall, such as on a height, near 

machinery or sharp corners, or in a moving vehicle.” See Larson § 9.01[1] at 

9-2.

¶7 The central dispute in this appeal involves the facts 

surrounding Burch’s fall, because there are inconsistent and conflicting 

histories in the record.

¶8 A DVD in evidence provides a partial view of the accident as 

it occurred. The video shows Burch preparing to leave for the day. She

pushes her chair and the adjacent chair into place at the table. She next 

repeatedly bends down to pick up trash on the floor near the chairs. She 

walks over to the trash can and then returns to the table where she leans

over the back of her chair toward the table. As she then straightens up, she

appears to lose her balance and grab her chair. It rolls away from the table
HILTON/INDEMNITY v. BURCH

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and she falls backward to the floor, pulling the chair on top of her. Burch

sits up, pushes the chair off of her with her right arm, and clutches her left 

forearm. Arlene Boyd, her coworker, then appears in the right side of the 

frame and retrieves paper towels for Burch’s left forearm. Moments later, 

other ABR personnel appear on screen, and ten minutes later, Phoenix Fire 

Department personnel arrive to transport Burch to the hospital.

¶9 Von Hessler, the ABR security supervisor on duty at the time, 

and Sergey Aghajanyan, ABR’s director of safety and security, both 

responded and spoke with Burch while waiting for the fire department. 

Hessler prepared an incident report admitted in evidence stating,

Sergey Aghajanyan and I began to talk with Jamie who stated 

that she was standing on the left side of her chair at her desk 

when she began to lose her balance. Jamie stated that she tried 

to catch herself from falling by grabbing onto the chair next to 

her, but the chair has wheels and slid away from her. Jamie 

then fell to the ground and landed on her left arm possibly 

breaking her wrist and cutting her whist [sic] where her watch 

was fastened. During this time it [sic], Jamie stated that she 

was taking medication for depression, arthritis and blood 

pressure. Jamie also explained that she tends to experience 

dizzy spells and falls frequently. When asked when the last 

time she fell due to dizziness or losing her balance; she stated 

that she fell “last Saturday.”

¶10 Medical records for Burch’s hospital admission at Banner 

Good Samaritan Medical Center the day of the incident contain the 

following descriptions:

Diagnoses:

. . . .

Fall, not orthostatic,2 denies lightheadedness or dizziness

. . . . 

History of Present Illness

 

2 Orthostatic means “pertaining to or caused by standing erect.” 

Dorland’s Illustrated Medical Dictionary 1194 (28th ed. 1994).
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61 y/o lady presents . . . after falling back on outstretched left 

arm. She states that she was getting up from tying her shoes 

at work and felt lightheaded and went to support herself on 

her chair which rolled away. At this point she fell back onto 

her outstretched left arm 

. . . . 

Addendum . . .

Pt is a 61 y/o F with hx GLF on an outstretched arm after 

becoming lightheaded when she stood up . . . .

. . . .

AMS Attending

. . . . 

Pt denies presyncope3 on our assessment today but agree that 

IVF are not unreasonable regardless. She reports loss of 

balance after bending over . . . . 

. . . .

SUBJECTIVE:

Discussed history with patient. Reports at work stood up, 

shoe loose, bent down to tie shoes and stood up and was 

unsteady and fell and landed on arm . . . .

¶11 At the hearing, Burch testified:

I was cleaning out my area and getting ready to go home 

because I was getting off early . . . . And as I stood up, I went 

to turn to get behind my chair, and it’s like my foot wouldn’t 

come up, and I just - - and I went down.

 

3 Presyncope means an episode occurring before a “temporary 

suspension of consciousness due to generalized cerebral ischemia;” an 

episode preceding “a faint or swoon.” Dorland’s Illustrated Medical 

Dictionary 1345, 1622 (28th ed. 1994). It is often characterized by dizziness 

or lightheadedness. 
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Burch further testified that her right foot became stuck on the duct tape that 

ABR had used to repair a tear in the carpet under her desk chair. While 

Burch agreed that she had a history of falls, she denied telling the doctors 

at Good Samaritan Medical Center that she was lightheaded when she fell

at work. 

¶12 Boyd testified that she saw Burch fall because she was sitting 

at the table to Burch’s left when the fall occurred. Burch told Boyd she 

tripped on tape on the floor. Boyd was also present during questioning of 

Burch by Aghajanyan and Hessler and testified that they repeatedly asked

Burch if she was dizzy before she fell, and Burch said that she was not.

¶13 Aghajanyan testified that Burch told him that she felt dizzy 

before she fell, and she had not mentioned tape on the floor. He could not 

recall speaking to Boyd, but agreed that it would have been important to 

do so if she was present at the time of the fall. Hessler also testified that 

Burch reported feeling dizzy before she fell, and that she never mentioned 

her foot being stuck on tape.4 He did not recall speaking to Boyd. He 

testified that if Boyd witnessed the fall, he should have listed her on the 

incident report and had her provide a statement.

¶14 Finally, Dr. Kahn testified regarding his independent medical 

examination of Burch. He testified that Burch told him that she was not 

dizzy or lightheaded at the time she fell. Dr. Kahn noted her statement was 

inconsistent with the hospital records that he had reviewed. Dr. Kahn 

testified that the hospital records contained a consistent history throughout, 

i.e., Burch was getting up from tying her shoes and she felt lightheaded. He 

stated that this was the same history Burch gave to ABR’s personnel and 

was confirmed in the video recording. Based on this information, he 

concluded that Burch sustained transient dizziness, a common occurrence 

when standing up, which caused her to fall.

¶15 The ALJ is the sole judge of witness credibility. Holding v. 

Indus. Comm’n, 139 Ariz. 548, 551 (App. 1984). It is her duty to resolve all 

conflicts in the evidence and to draw all warranted inferences. See Malinski 

v. Indus. Comm’n, 103 Ariz. 213, 217 (1968). Where more than one inference 

may be drawn, the ALJ is at liberty to choose either and this court will not 

disturb her conclusion unless it is wholly unreasonable. Id. 

 

4 Hessler testified that he took photographs of the duct tape on the 

floor on the day of the incident, and that it was lying flat and was not sticky. 

Two photographs were introduced into evidence at the hearing.
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¶16 In this case, the ALJ found:

It is undisputed that the applicant fell during work hours on 

her employer’s premises and that she broke her arm when she 

fell. I find the applicant and Ms. Boyd to be credible. The 

applicant testified that she fell due to her foot being stuck to 

tape on the floor. Both the applicant and Ms. Boyd testified 

that, immediately after the fall, the applicant denied any 

dizziness. I find that the applicant lost her balance and 

grabbed the chair after tripping at work. The video evidence 

establishes that the applicant was cleaning her work station 

and was repeatedly bending over to ground and counter level 

and then standing up as she cleaned up her work area. The 

applicant is then seen grabbing hold of the chair, the chair 

rolling and the chair landing on top of the applicant. The 

video does not show why the applicant lost her balance. I find 

the applicant’s testimony credible that she tripped. In 

addition, I find that the chair moving and landing upon her 

clearly contributed to the applicant’s injuries.

Based on the history provided by Burch and the other individuals involved 

in investigating the fall and treating the injury, and given the video 

recording, Hilton has not shown that the ALJ’s resolution of the conflict is 

“wholly unreasonable.” The evidence supports the ALJ’s finding that 

Burch did not suffer an idiopathic fall.

¶17 Hilton also argues that the ALJ erroneously ignored Dr. 

Kahn’s testimony that Burch sustained an idiopathic fall. When medical 

evidence is uncontroverted and based on matters peculiarly within the 

realm of medical knowledge, the uncontroverted medical testimony is 

generally binding on the ALJ. Cammeron v. Indus. Comm’n, 98 Ariz. 366, 371 

(1965). But medical testimony can be so weakened by proof of an inaccurate 

factual background that it cannot be said to constitute substantial evidence 

to support an award. See Desert Insulations v. Indus. Comm’n, 134 Ariz. 148, 

151 (App. 1982). 

¶18 In this case, Dr. Kahn based his opinion on facts rejected by 

the ALJ. The doctor’s opinion was based on his belief that Burch felt 

lightheaded before she fell. This belief, however, was rejected by the ALJ 

and that rejection was supported by the evidence of record. Hilton has 

shown no error in the ALJ’s failure to adopt the doctor’s opinion. 
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8

¶19 This court will not disturb the ALJ’s conclusion unless it 

cannot be supported by any reasonable theory of the evidence. Phelps v. 

Indus. Comm’n, 155 Ariz. 501, 506 (1987). Based on the ALJ’s resolution of 

the evidentiary conflicts and her credibility determinations, the award of 

compensability is reasonably supported by substantial evidence in the 

record. As this court has explained, conflicting evidence may nonetheless 

be substantial evidence. Shaffer v. Ariz. State Liquor Bd., 197 Ariz. 405, 409, 

¶ 20 (App. 2000).

CONCLUSION

¶20 For all of the foregoing reasons, we affirm the ALJ’s award of 

compensability and the ALJ’s decision upon review.