NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

CONCEPCION FONSECA, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

DOLE FRESH VEGETABLES, INC., Respondent Employer,

DOLE FOOD COMPANY, INC., Respondent Carrier.

No. 1 CA-IC 14-0027

Special Action – Industrial Commission

ICA Claim No. 20123-520177

Carrier Claim No. 30121236848-0001

The Honorable JoAnn C. Gaffaney, Administrative Law Judge

AFFIRMED

COUNSEL

Concepcion Fonseca, Yuma

Petitioner

Industrial Commission of Arizona, Phoenix

By Andrew F. Wade

Counsel for Respondent ICA
FONSECA v. DOLE FRESH/DOLE FOOD

Decision of the Court

Jardine Baker Hickman & Houston PLLC, Phoenix

By Stephen M. Venezia

Counsel for Respondent Employer/Carrier

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which 

Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.

J O N E S, Judge:

¶1 Concepcion Fonseca (Claimant) seeks special action review of 

an Industrial Commission of Arizona (ICA) award and decision upon 

review, in which the administrative law judge (ALJ) found her medical 

conditions became stationary on March 3, 2013, with no permanent 

impairment. Although Claimant raises multiple issues in her opening 

brief,1 the only issue properly before us is whether the ALJ’s findings and 

award were reasonably supported by the record. Based upon the ALJ’s 

resolution of conflicting medical opinions, we conclude reasonable 

evidence exists in the record to support the award. Accordingly, we affirm. 

JURISDICTION AND STANDARD OF REVIEW

¶2 We have jurisdiction pursuant to Arizona Revised Statutes 

sections 12-120.21(A)(2)2 and 23-951(A), and Arizona Rule of Procedure for 

Special Actions 10. When reviewing ICA’s findings and awards, we defer 

 

1 Specifically, Claimant raised the following issues: (1) whether the 

respondent employer had workers’ compensation insurance; (2) whether 

the respondent employer discriminated against her in violation of Arizona 

law; and (3) whether she qualified for Time Lost Benefits. As Claimant did 

not raise these issues to the ALJ, we will not consider them. T.W.M. Custom 

Framing v. Indus. Comm’n, 198 Ariz. 41, 44, ¶ 4, 6 P.3d 745, 748 (App. 2000) 

(noting “this Court generally will not consider on appeal issues not raised 

before the I[ndustrial Commission]”). 

2 Absent material revisions from the relevant date, we cite a statute’s 

current version.
FONSECA v. DOLE FRESH/DOLE FOOD

Decision of the Court

to the ALJ’s factual findings, but review questions of law de novo. Young v. 

Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). 

FACTS3 AND PROCEDURAL HISTORY

¶3 The respondent employer, Dole Fresh Vegetables, Inc. (Dole), 

employed Claimant as a packer. Her job duties included “packing and 

taping lettuce.” On December 11, 2012, Claimant slipped on a wet dirt road

and fell onto her back. Claimant experienced pain in her neck, upper and 

middle back, and left hip and arm as a result of the fall. She filed a worker’s 

compensation claim, which was accepted for benefits.

¶4 On the day she fell, Claimant was treated by Dr. David Smock 

at Foothills Walk-In Medical Care & Urgent Care in Yuma, Arizona, and xrays revealed no significant damage. Dr. Smock diagnosed Claimant with

back and arm pain, and prescribed pain medication and a Toradol injection;

she was also referred for physical therapy. Claimant was released to work.

4 

¶5 Claimant was then referred to Dr. James Serocki, an 

orthopedic surgeon. At her initial consultation, Claimant complained of 

back pain “present diffusely through the thoracic and lumbar spines,” and 

denied having any pain in her legs. Upon an examination, Dr. Serocki 

observed “minimal diffuse tenderness over the mid and low lumbar spine, 

as well as both paralumbar and both parathoracic regions,” but did not 

perceive any muscle spasm. He diagnosed Claimant with axial mid and 

low back pain, and prescribed Ibuprofen. Noting that the physical therapy 

did not seem to be helping Claimant, he also recommended she discontinue 

her treatment. 

¶6 On March 13, 2013, Claimant visited Dr. Serocki for a 

“Permanent and Stationary Evaluation.” Claimant continued to complain 

of pain in her mid-back that “radiate[d] proximally up towards her neck 

and distally towards her low back.” An examination of Claimant’s back 

revealed no muscle spasm, normal thoracolumbar posture, and a normal 

gait. Dr. Serocki noted that Claimant had reached a plateau in her recovery 

after completing a course of conservative treatment, and he did not believe 

 

3 We consider the evidence in the light most favorable to sustaining 

the ALJ’s award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 

640, 643 (App. 2002). 

4 The record indicates Claimant was originally released to work on 

“full duty” the day of her fall, but was placed on “light duty” a week later. 
FONSECA v. DOLE FRESH/DOLE FOOD

Decision of the Court

invasive treatment was warranted. Dr. Serocki concluded Claimant had 

“reached her point of maximal medical improvement and can be 

considered permanent and stationary as of [the date of the evaluation, 

March 13, 2013],” found there was no ratable permanent impairment, and 

discharged her. 

¶7 Based upon Dr. Serocki’s evaluation, Dole issued a notice of 

claim status on March 25, 2013, closing Claimant’s claim as stationary with 

no permanent impairment. Claimant timely requested, and was granted, a 

hearing. After hearings were held in October and November 2013 and 

January 2014, the ALJ determined Claimant’s condition was stationary,

without permanent impairment, as of March 3, 2013;

5 the ALJ later affirmed 

her decision after Claimant’s request for further review. Claimant timely 

petitioned this Court for special action relief. 

DISCUSSION

¶8 In workers’ compensation cases, the claimant bears the 

burden of proving her condition is causally related to her industrial injury 

and is not medically stationary, or if the condition is medically stationary, 

that she has sustained a permanent disability attributable to that injury. See 

Lawler v. Indus. Comm’n, 24 Ariz. App. 282, 284, 537 P.2d 1340, 1342 (1975) 

(citations omitted). The ALJ is tasked with resolving conflicts in the medical 

evidence, “and we will not disturb that resolution unless it is ‘wholly 

unreasonable.’” Gamez v. Indus. Comm’n, 213 Ariz. 314, 316, ¶ 15, 141 P.3d 

 

5 We note an apparent typographical error in the ALJ’s findings and 

award, which determined Claimant’s condition became stationary on 

March 3, 2013, also identified as “the date of Dr. Serocki’s last examination.” 

The record indicates Claimant’s last examination with Dr. Serocki actually 

occurred on March 13, 2013, which is corroborated by the Notice of Claim 

Status issued by Dole that demonstrated Claimant’s “[t]emporary 

compensation and active medical treatment terminated on 03/13/2013 

because [C]laimant was discharged.” Therefore, it is evident Claimant’s 

medical condition became stationary on March 13, 2013, rather than March 

3, 2013. See Steward v. Indus. Comm’n, 69 Ariz. 159, 170, 180, 211 P.2d 217, 

224, 231 (1949) (holding the Industrial Commission “may correct its records 

to reflect the truth where it is apparent that a mistake has been made,” and 

that if the mistake is merely a typographical or clerical error, “the correction 

may be made without notice, by an order nunc pro tunc”) (citing Hamer v. 

Indus. Comm’n, 43 Ariz. 349, 351, 31 P.2d 103, 104 (1934)). 
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Decision of the Court

794, 796 (App. 2006) (quoting Ortega v. Indus. Comm’n, 121 Ariz. 554, 557, 

592 P.2d 388, 391 (App. 1979)). 

¶9 Claimant essentially argues the ALJ’s award was not 

supported by reasonable evidence because there was a conflict in the 

medical evidence presented.6 We disagree. 

¶10 Dr. Evan Minkoff, a physician board certified in physical 

medicine and rehabilitation, examined Claimant on one occasion in April 

2013 and testified on her behalf. Dr. Minkoff testified he noticed 

“tenderness along the muscles of [her] spine with some tightness,” but that 

this was “the only pertinent positive finding” as the remainder of his 

examination, which focused on her upper and lower extremities and her 

cervical and lumbar spine, was essentially normal. Dr. Minkoff further 

stated Claimant’s sensation to light touch and her range of motion were 

within normal limits. Based upon his exam and his review of Dr. Serocki’s 

records, Dr. Minkoff diagnosed Claimant with “thoracic pain, cervical pain 

and myofascial pain syndrome,” and expressed his belief that active care 

was reasonable and appropriate for treatment of Claimant’s symptoms. 

Specifically, Dr. Minkoff recommended trigger point injections, which 

combine a steroid with an anesthetic, to relax the muscles in Claimant’s 

spine in an effort to alleviate some of her pain. Dr. Minkoff, however, could 

not say Claimant suffered a permanent impairment. 

¶11 In contrast, Dr. Scott Krasner, a physician board certified in 

occupational medicine, independent medical exams, and forensic medicine, 

testified that he examined Claimant on August 26, 2013, at the request of 

Dole. Based upon his examination and review of the medical records, Dr. 

Krasner opined Claimant’s industrial injury was a strain or sprain that had 

resolved. He testified he did not find any “objective findings of any 

pathology related to the industrial injury” that would support or explain 

Claimant’s subjective pain complaints during his exam. He further testified 

Claimant exhibited several “Waddell’s signs,” or non-physiologic 

responses. For instance, he reported that when he palpated Claimant’s 

back, she would describe pain responses to even the slightest touch. He 

 

6 Claimant also argues that the evidence was not reviewed by 

qualified professionals. She does not, however, develop this argument or 

support it with any legal authority, and therefore, we do not address it 

further. See ARCAP 13(a)(6) (requiring arguments be supported by 

citations to relevant facts in the record and applicable legal authority); 

Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 

(App. 2007). 
FONSECA v. DOLE FRESH/DOLE FOOD

Decision of the Court

interpreted this response as non-physiological because she did not make 

similar complaints when her back was touching the chair while she was 

seated. Additionally, Dr. Krasner observed Claimant walk into his office 

without placing any weight on her cane, but when he asked her to walk

independently in the exam room, she could only do so while grabbing onto 

other items, purportedly to support her weight. Ultimately, he concluded, 

consistent with Dr. Serocki’s medical opinion, that Claimant’s condition 

was stationary and without a permanent impairment, and she did not 

require supportive care. 

¶12 Even assuming Dr. Minkoff’s testimony could support a 

finding of permanent impairment, the ALJ resolved the conflict in the 

testimony in favor of the opinions of Drs. Krasner and Serocki. It is the 

ALJ’s role to “resolve all conflicts in the evidence, especially when the 

conflicts involve expert medical testimony.” Post v. Indus. Comm’n, 160 

Ariz. 4, 8, 770 P.2d 308, 312 (1988) (citing Perry v. Indus. Comm’n, 112 Ariz. 

397, 398, 542 P.2d 1096, 1097 (1975), and Phelps Dodge Corp. v. Indus. Comm’n, 

121 Ariz. 75, 77, 588 P.2d 368, 370 (App. 1978)). Because the resolution was 

based upon a reasonable view of the record, we cannot say it was “wholly 

unreasonable.” See Stainless Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz. 

12, 19-20, 695 P.2d 261, 268-69 (1985) (citing Ortega, 121 Ariz. at 557, 592 P.2d 

at 391).

CONCLUSION

¶13 For the foregoing reasons, the award is affirmed.