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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

RANDY KARRY, Petitioner, 

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, 

Respondent, 

VEOLIA TRANSPORTATION SERVICES, INC., 

Respondent/Employer, 

OLD REPUBLIC INS. CO./SEDGWICK CLAIMS 

MANAGEMENT SERVICES, Respondent Carrier.

No. 1 CA-IC 14-0054 

 

Special Action – Industrial Commission 

ICA Claim No. 20131-990262 

Carrier Claim No. 30130847374-0001 

The Honorable Suzanne S. Marwil, Administrative Law Judge 

AWARD AFFIRMED 

COUNSEL 

Randy Karry, Phoenix 

Petitioner 

Klein Doherty Lundmark Barberich & La Mont, PC, Tucson 

By Eric W. Slavin 

Counsel for Respondent Employer & Respondent Carrier
KARRY v. VEOLIA/SEDGWICK 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Patricia A. Orozco delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined. 

O R O Z C O, Judge: 

¶1 This is a special action review of an Industrial Commission of 

Arizona (ICA) award for a noncompensable claim. For the reasons that 

follow, we affirm the ruling of the Administrative Law Judge (ALJ). 

FACTS AND PROCEDURAL HISTORY 

¶2 Randy Karry received employment training from respondent 

Veolia Transportation Services (Veolia) to become a bus driver. In 

administering a “final driving test,” Veolia had several trainees take turns 

driving a bus in downtown Phoenix. During one test, a trainee (not Karry) 

collided with a vehicle while attempting to make a left turn. When the 

accident occurred, Karry was seated somewhere on the bus as a passenger. 

Donald Bremner, who conducted the final driving tests for Veolia and was 

also a passenger, estimated that the collision occurred while the bus was 

travelling at three to five miles per hour. Bremner also testified that he did 

not see any of the passengers being thrown about or out of their seat during 

or after the collision. 

¶3 At the initial ICA hearing, Karry neither objected to Bremner’s 

description of the accident nor provided any contravening evidence about 

the accident. Karry testified that he started feeling pain in his neck the day 

after the accident. He stated that he started treatment with a chiropractor 

shortly after the pain began. He did not notify Veolia about his pain and 

treatment, however, until over a month after the accident. Karry testified 

that he received “several adjustments over several months” from a 

chiropractor, and he was no longer suffering neck pain. He also testified 

that he previously suffered a similar neck injury from a vehicle accident in 

2003. Karry stated he received similar chiropractic treatment for that injury 

and had recovered. 

¶4 Karry was treated by Dr. Dennis Goldberg, a chiropractor, 

who testified that orthopedic tests he performed on Karry after the accident 

found that Karry was suffering from pain or discomfort. He also testified 
KARRY v. VEOLIA/SEDGWICK 

Decision of the Court 

3 

that he was unaware of Karry’s 2003 accident. Dr. Goldberg stated he 

believed to a reasonable degree of medical probability and certainty that 

the bus accident caused, contributed, or aggravated Karry’s injury because: 

[A]ny time someone gets into an accident, whether it’s . . . say, 

4.5 miles per hour, the neck gets thrown back and forward or 

sideways in kind of a whiplash-type position. And there are, 

approximately, five Gs that are exerted on that cervical 

region. And that would be equated to somewhere around a 

jet-fighter pilot being launched off of an aircraft carrier. And 

that could disrupt and damage the ligamentous area of the 

cervical region and cause discomfort, pain, swelling, 

reduction of range of motion. 

¶5 Veolia called Dr. Irwin Shapiro, a board-certified orthopedic 

surgeon, to testify about his medical records review of Karry’s injury 

history and whether the bus accident caused Karry’s most recent injury. Dr. 

Shapiro stated he believed it was not medically possible that Karry’s injury 

was caused by the accident, particularly because of the force of impact, the 

weight of the bus, and the lack of reported symptoms in any other 

passenger. Dr. Shapiro also testified to familiarity with some of Karry’s 

medical records showing Karry had suffered previous injuries. Dr. Shapiro 

stated he did not believe those previous injuries made it more probable that 

minor trauma could aggravate a preexisting injury. 

¶6 The ALJ found that an accident had occurred and that 

Bremner’s testimony about what took place was credible. The ALJ adopted 

Dr. Shapiro’s opinions as “more probably true and correct.” Accordingly, 

the ALJ denied Karry’s claim as noncompensable. 

JURISDICTION AND STANDARD OF REVIEW 

¶7 We have jurisdiction under Arizona Revised Statutes (A.R.S.) 

sections 12-120.21.A.2 and 23-951.A (West 2015),1 and Arizona Rule of 

Procedure for Special Actions 10. 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, 63 P.3d 298, 301 (App. 2003). We consider the evidence in the 

light most favorable to upholding the award. Lovitch v. Indus. Comm’n, 202 

Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). 

 

1 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 
KARRY v. VEOLIA/SEDGWICK 

Decision of the Court 

4 

DISCUSSION 

¶8 Karry argues that the ALJ should not have denied his request 

to allow testimony from another doctor in addition to Dr. Goldberg. Karry 

contends that he was denied due process because this second doctor was 

not allowed to testify, although several “lay” witnesses for Veolia testified. 

¶9 ICA hearings may be conducted “in any manner that will 

achieve substantial justice.” A.R.S. § 23-941.F (West 2015); see also Amey v. 

Indus. Comm’n, 156 Ariz. 390, 392, 752 P.2d 43, 45 (App. 1988). Here, Karry 

requested the testimony of the second doctor because that doctor treated 

Karry and “administered steroids because of the pain” from the injury. The 

ALJ explained to Karry that the purpose of the hearing was to determine 

whether the bus accident caused Karry’s injury and that any treatment he 

received could be “litigated at a different time” if he received a 

compensable award. As a result, the ALJ did not allow the second doctor 

to testify. We find no error in this limitation of evidence. See Hughes v. 

Indus. Comm’n, 188 Ariz. 150, 152, 933 P.2d 1218, 1220 (App. 1996) (“As a 

general rule, an administrative law judge may deny a timely subpoena 

request if the expected testimony would not be material or otherwise 

necessary.”). 

¶10 Karry next argues that he was not afforded sufficient time to 

prepare for cross-examination of Dr. Shapiro, in part because Dr. Shapiro’s 

report was “untimely filed.” Karry asserts that the ALJ “demanded” Veolia 

disclose Dr. Shapiro’s medical records review report within two weeks of 

the initial ICA hearing. The record indicates that, although the ALJ 

expressed hope that Veolia would receive the report from Dr. Shapiro 

within a couple weeks of the initial hearing, no demand was made that the 

report be disclosed within two weeks of that hearing. Moreover, and 

irrespective of when the report was disclosed, Karry received a full 

opportunity to cross-examine Dr. Shapiro, consistent with his rights under 

Arizona law. See Oberteiner v. Indus. Comm’n, 161 Ariz. 547, 549, 779 P.2d 

1286, 1288 (App. 1989) (“The right to cross-examination is fundamental and 

attaches when the [ICA] receives any testamentary or documentary 

evidence.”). Karry has not therefore demonstrated he was prejudiced by 

the report’s disclosure and admission. 

¶11 Karry raises several other issues related to events that 

allegedly occurred off the record. No evidence related to these issues 

appears in the record, and Karry raises these issues for the first time with 

this court. Because it is the petitioner’s burden to develop the factual record 

before the agency, we do not consider these newly raised issues. See Kessen 
KARRY v. VEOLIA/SEDGWICK 

Decision of the Court 

5 

v. Stewart, 195 Ariz. 488, 493, ¶ 19, 990 P.2d 689, 694 (App. 1999). To the 

extent other arguments or issues are raised, Karry has waived them by not 

developing the arguments in accordance with the Arizona Rules of Civil 

Appellate Procedure. See Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 

6, 154 P.3d 391, 393 n.2 (App. 2007). 

CONCLUSION 

¶12 The denial of Karry’s claim as noncompensable was 

supported by sufficient evidence. Accordingly, we affirm.