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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DALLAS K. TOOLEY,

Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA,

Respondent,

FRY’S FOOD STORES OF ARIZONA, INC.,

Respondent Employer,

FRY’S FOODS STORES OF ARIZONA, INC., c/o SEDGWICK,

Respondent Carrier.

No. 1 CA-IC 18-0039

Special Action – Industrial Commission

ICA Claim No. 20171-300389

Carrier Claim No. 30177787301-0001

Michelle Bodi, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Dallas K. Tooley, Mesa

Petitioner Employee

FILED 4-4-2019
2

The Industrial Commission of Arizona, Phoenix

By Gaetano J. Testini

Counsel for Respondent

Lundmark Barberich LaMont & Slavin, P.C., Phoenix

By Lisa M. LaMont, Danielle Vukonich

Counsel for Respondent Employer and Respondent Carrier

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Maria Elena Cruz and Chief Judge Samuel A. Thumma 

joined.

W I N T H R O P, Judge:

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

Arizona (“ICA”) award and decision upon review, finding the claim of 

petitioner employee, Dallas K. Tooley (“Petitioner”), not compensable. The 

administrative law judge (“ALJ”) resolved the issues in favor of the selfinsured respondent employer, Fry’s Food Stores of Arizona, Inc. (“Fry’s”).

We affirm the award and decision upon review because the ALJ’s 

determinations are reasonably supported by substantial evidence in the 

record.

FACTS AND PROCEDURAL HISTORY

¶2 Petitioner worked for Fry’s as a floral manager. In that 

position, she was responsible for building seasonal floral displays, which

required her to regularly lift and move pallets of various floral products.

¶3 On February 5, 2017, Petitioner began constructing the store’s 

outdoor Valentine’s Day display. A floral manager from another store 

helped Petitioner, and the pair moved pallets of product, weighing between 

thirty to fifty pounds each, from inside the store to the far side of the store 

parking lot. They transported sixteen pallets at a time by pulling a pallet 

jack because they did not have access to a forklift. Once all the materials 

were in the parking lot, they lifted each pallet up into a semi-trailer.

¶4 Petitioner continued to build the outdoor display over the 

next few days. On February 12, 2017, she fell on her tailbone while at work. 
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Although in pain, she did not immediately seek medical attention and 

continued to work through Valentine’s Day. After two weeks of continued 

pain, Petitioner went to the doctor on March 7, 2017, and was diagnosed 

with a fractured tailbone. She did not tell her manager about the injury.

¶5 On April 6, 2017, Petitioner began to build the store’s Easter 

display. She remained in pain through April, but she dismissed the 

ongoing pain as a symptom of her tailbone injury. The following week, her 

right leg became numb and Petitioner thought that she was having medical 

issues unrelated to her tailbone injury. On April 12, 2017, she sought 

treatment from Dr. Tammy Turney. On her initial intake paperwork,

Petitioner stated she was seeing Dr. Turney for weight loss treatment. She 

then mentioned her fractured tailbone to Dr. Turney during the 

examination. Dr. Turney gave Petitioner a B12 vitamin shot and a doctor’s 

note stating she could only perform “light duty work.”

¶6 Petitioner spoke to her manager on April 13, 2017, to explain 

all the issues she was experiencing and presented the doctor’s note. Her 

manager insisted the injuries were not work-related, and they argued over 

her ability to file a workers’ compensation claim. Feeling pressured by her 

manager, Petitioner ultimately filed a “request for leave of absence” form

that day, and she checked the box indicating her injury was not workrelated.

¶7 On April 21, 2017, Petitioner saw Dr. Judah Pifer, an 

orthopedic specialist. Petitioner wrote on her initial paperwork that she 

sought treatment for a fractured tailbone that occurred when she fell off a 

chair at home in November 2016. Petitioner received an MRI scan and Dr. 

Pifer informed her that she had a herniated disc. Dr. James Clark then 

examined Petitioner on April 24, 2017. He found “an extrusion [of disc 

material] of approximately 7 mm” into Petitioner’s L5-S1 disc space with

“impingement upon the right S1 nerve root.”

¶8 On April 28, 2017, Petitioner filed a “Worker’s and Physician’s 

Report of Injury” with the ICA. She recorded her date of injury as both 

February 12 and February 15, but described the injury as originating in her 

back “from excessive and heavy lifting over time.” After the ICA initially 

investigated the two different injury dates reported by Petitioner, Fry’s 

issued a Notice of Claim Status on June 15, 2017, denying Petitioner’s claim. 
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Petitioner then requested a hearing to review the decision, which was 

scheduled for August 30, 2017; January 11, 2018; and January 30, 2018.1

¶9 After Petitioner filed her ICA claim, but before the hearings, 

Dr. Dan Lieberman, a neurosurgeon, reviewed Petitioner’s MRI results and 

conducted a phone consultation with her. Dr. Lieberman determined 

Petitioner required surgery to remove excess disc material protruding into 

her spinal canal caused by her herniated disc. Dr. Lieberman conducted the

microdiscectomy procedure on June 16, 2017.

¶10 Thereafter, Fry’s scheduled a medical examination of 

Petitioner with Dr. Terry McLean, an orthopedic spine surgeon. In her 

exam with Dr. McLean, Petitioner mentioned her fall at home in November 

2016, but she did not mention the fall at work in February 2017. Dr. McLean 

determined that Petitioner had previously suffered from a herniated disc, 

but there was “no objective medical documentation” indicating any injury 

causing the herniated disc occurred while Petitioner was at work.

¶11 At the August 2017 and January 2018 hearings, Fry’s argued 

Petitioner failed to timely report her injuries pursuant to Arizona Revised 

Statute (“A.R.S.”) section 23-908(E). Fry’s called seven store employees to 

testify. One witness stated Petitioner told him she injured her back at home 

and then re-injured herself at work. The other witnesses stated Petitioner 

never mentioned any back injury taking place while at work.

¶12 Dr. Lieberman provided expert testimony in support of 

Petitioner’s claim. Dr. Lieberman testified that he performed surgery on 

Petitioner in June 2017 to remove seven millimeters of herniated disc 

material. He explained that a herniated disc is caused by a tearing of the

fibrocartilage tissue surrounding the disc (the annulus), which allows the 

disc material to move out of place and impinge one or more spinal nerves. 

Dr. Lieberman also explained that an annular tear feels like “a knife in the 

back.” He ultimately opined that the repeated lifting of the heavy pallets at 

Petitioner’s job caused an annular tear in Petitioner’s back sometime in 

February 2017. The continued heavy lifting then caused Petitioner’s disc to 

protrude over time, resulting in nerve impingement and the need for 

surgical treatment.

¶13 Dr. McLean provided expert testimony on behalf of Fry’s. He 

opined that if Petitioner had suffered an annular tear at work, she would 

 

1 Fry’s also requested a hearing to contest the ICA’s approval of 

Petitioner’s request to change doctors.
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have had immediate symptoms. He explained that general “soreness” was

not consistent with symptoms of a traumatic tear of the annulus. After 

examining Petitioner and reviewing her past medical records, Dr. McLean 

found no date or report of injury that described the type of pain consistent 

with such a traumatic event, and therefore he did not believe Petitioner 

suffered an injury at work in February 2017 or at any point after that.

Although he agreed that Petitioner suffered a herniation in April 2017, Dr. 

McLean did not believe the herniation was due to Petitioner’s work 

activities. Instead, he stated that Petitioner likely had pre-existing 

degeneration in her L5-S1 disc, and the herniation in April was caused by 

the natural progression of an already degenerative disc—not a traumacaused annulus tear resulting from lifting heavy boxes.

¶14 The ALJ ultimately found Petitioner failed to “forthwith 

report” her injury, as required by A.R.S. § 23-908(E), and adopted the 

opinion of Dr. McLean as to the source of Petitioner’s injury; accordingly,

her claim was non-compensable. The ALJ explained that even though 

Petitioner began having symptoms of pain as early as February, she did not 

report any injuries to her superiors until April. The ALJ also concluded 

Petitioner should not be excused for her failure to timely report her injuries 

because Fry’s was prejudiced by Petitioner’s delay. The ALJ explained, “[i]f 

Applicant had reported her injuries in February, Fry’s could have referred 

her for prompt medical attention to assess her condition and prevent 

further aggravation. Fry’s also could have investigated Applicant’s claim 

and provided appropriate accommodation, such as light duty work.”

¶15 Petitioner timely requested a review of the decision, and the 

ALJ issued a decision upon review affirming the findings of a noncompensable claim. The ALJ stated that Petitioner’s testimony regarding 

what she told each physician and her manager about her injuries was 

inconsistent, and the ALJ therefore resolved any inferences drawn from the 

testimony against her. In addition, the ALJ determined Dr. McLean’s 

medical opinion was more credible than Dr. Lieberman’s.

¶16 Petitioner then timely filed this special action on June 5, 2018. 

We have jurisdiction in this matter pursuant to A.R.S. §§ 12-120.21(A)(2) 

and 23-951(A), and Arizona Rule of Procedure for Special Actions 10.

ANALYSIS

I. Standard of Review

¶17 When reviewing findings and awards of the ICA, we consider 

the evidence in the light most favorable to upholding the award. Lovitch v. 
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Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002) (internal citation 

omitted). We will uphold the ALJ’s findings if reasonably supported by 

substantial evidence. Malinski v. Indus. Comm’n, 103 Ariz. 213, 216 (1968).

¶18 In general, a petitioner bears the burden of establishing the 

material elements of her claim. See T.W.M. Custom Framing v. Indus. 

Comm’n, 198 Ariz. 41, 45-46, ¶ 12 (App. 2000). When a claimant attempts to 

establish an industrial injury that is not clearly apparent to a layman, expert 

medical testimony is required. W. Bonded Prods. v. Indus. Comm’n, 132 Ariz. 

526, 527 (App. 1982). The ALJ resolves all conflicts in the medical evidence, 

draws warranted inferences, and is the sole judge of witness credibility. See 

Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43, 46 (1988); Malinski, 103 

Ariz. at 217. An ALJ may reject testimony that is inherently inconsistent 

and contradictory, or when inferences can be drawn from other evidence 

that cast doubt upon the credibility of such testimony. Wimmer v. Indus. 

Comm’n, 15 Ariz. App. 543, 544 (1971).

II. Merits of the Claim

¶19 Petitioner asserts the ALJ relied on an incorrect date of injury 

when determining that she failed to timely report her work-related injury.

In addition, Petitioner contends the ALJ erred by adopting Dr. McLean’s 

medical opinion. We review each argument below.

A. Timeline of the Injury

¶20 Petitioner maintains the ALJ incorrectly analyzed her ICA 

claim using the dates in relation to her fractured tailbone as opposed to the 

dates in relation to the disc injury and resulting herniation. She asserts that 

she is only seeking compensation for her herniated disc injury and not her 

fractured tailbone injury, and the ALJ therefore should not have considered 

any dates of injury relating to her tailbone. She further asserts that the disc 

cartilage tear occurred sometime in February, resulting in the herniated disc 

in April.

¶21 The ALJ rejected Petitioner’s testimony regarding the origin 

of her injury, which the ALJ found not credible in light of the other evidence 

in the record. Because Petitioner’s version of the industrial event was not 

supported by the other employees’ testimony, and because Petitioner’s 

conflicting statements in her medical records created confusion concerning 

the origin of both her fractured tailbone and herniated disc, the ALJ was not 

required to accept Petitioner’s testimony. See Desert Insulations, Inc. v. Indus. 

Comm’n, 134 Ariz. 148, 151 (1982) (stating that medical testimony can be so 

weakened by proof of an inaccurate factual background that it cannot be 
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said to constitute substantial evidence to support an award); Wimmer, 15 

Ariz. App. at 544 (stating an ALJ may reject a claimant’s testimony when 

inferences can be drawn from other evidence that casts doubt on its 

credibility). The ALJ’s findings are supported by the record, and we

therefore find no error.

B. Expert Opinion

¶22 Petitioner also asserts that the ALJ should have adopted the 

opinion of Dr. Lieberman because Dr. McLean agreed that she suffered a 

herniated disc in April 2017. Further, she asserts Dr. McLean did not have 

enough information to opine on the cause of her injury.

¶23 After hearing the doctors’ testimony and reviewing the 

relevant evidence, the ALJ determined that the opinion of Dr. McLean 

regarding the causation of the herniated disc was more probably correct.

This determination was within her discretion and supported by the medical 

evidence because Petitioner gave conflicting statements of causation for her 

injuries at each of her medical examinations. Carousel Snack Bar, 156 Ariz. 

at 46 (“[C]onflicts in medical evidence must be resolved by the trier of 

fact.”). Additionally, the record shows Dr. McLean had access to 

Petitioner’s medical records before conducting his evaluation of her 

symptoms and injuries at the scheduled medical examination. Therefore, 

the ALJ did not err in adopting the opinion of Dr. McLean over that offered 

by Dr. Lieberman.

CONCLUSION

¶24 For the foregoing reasons, we affirm the ALJ’s award and 

decision upon review finding Petitioner’s claim non-compensable.