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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 12-20-2022
TRANSDEV/OLD v. NIVENS

Decision of the Court

2

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 
TRANSDEV/OLD v. NIVENS

Decision of the Court

3

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.
TRANSDEV/OLD v. NIVENS

Decision of the Court

4

¶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.