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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                          ARTHUR J. GONZALES,
                               Petitioner,

                                        v.

                   THE INDUSTRIAL COMMISSION OF
                             ARIZONA,
                             Respondent,

                       FREEPORT McMoRAN CORP,
                           Respondent Employer,

                FREEPORT McMoRAN COPPER & GOLD,
                         Respondent Carrier.

                             No. 1 CA-IC 16-0050
                               FILED 4-11-2017


               Special Action - Industrial Commission
                        ICA No. 20150-640020
                  INSCA No. 007548-031640-WC-01
        The Honorable Paula R. Eaton, Administrative Law Judge

                            AWARD AFFIRMED


                                   COUNSEL

Arthur J. Gonzales, Mesa
Petitioner
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent ICA

Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By Terrence Kurth
Counsel for Respondent Employer/Carrier



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.


J O H N S E N, Judge:

¶1            This is a special action review of an Industrial Commission of
Arizona ("ICA") award. Arthur J. Gonzales argues the administrative law
judge ("ALJ") erred by finding Gonzales did not suffer a compensable
injury. For the reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2              In February 2015, Gonzales worked the graveyard shift as a
haulage truck driver at a Morenci copper mine.1 During each 12-hour shift,
Gonzales drove a truck back and forth from the mine pit to a processing
site, first waiting at the mine pit while a shovel operator dumped ore into
his truck, then transporting and dumping each load of ore for processing.

¶3            On February 24, 2015, around 6:45 a.m., the left side of
Gonzales's truck collided with a power shovel. Although Gonzales felt pain
in his low back and right leg as a result of the collision, he did not report
the injury because his shift ended at 7:00 a.m. Instead, he went home, took
aspirin and went to sleep.

¶4            Gonzales returned to work for his next shift later that same
day able to perform his duties. But according to Gonzales, at approximately
8:30 p.m., his truck collided with a second operator's power shovel,
violently throwing him about within the cab and sending a sharp pain

1     We consider the evidence in the light most favorable to upholding
the award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).


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                     GONZALES v. ICA/FREEPORT
                        Decision of the Court

down his legs. Gonzales called from his truck for a supervisor. Eventually,
a rescue team was deployed to remove Gonzales from the truck. According
to Gonzales, as he was being removed from the truck, a member of the
rescue team lifted him in the air by his belt and slammed him onto the
backboard, causing pain in Gonzales's left side.

¶5            Once removed from the truck, Gonzales was taken to urgent
care at Gila River Health Resources, where he was seen by a physician and
then transported to Mount Graham Regional Medical Center, where he
underwent a CT scan of his spine. The results of that scan indicated that
Gonzales suffered no acute vertebral injury.

¶6            Gonzales complained that as a result of the three incidents on
February 24, 2015, he suffered from neck pain, back pain, leg pain,
numbness in his back and legs, pins and needles in the soles of his feet, loss
of strength in his hands, stuttering, and loss of bowel and bladder control.
On March 2, 2015, Amanda Gray, a physician's assistant, performed a
physical evaluation of Gonzales. And on June 24, 2015, Dr. William Salyer
examined him. Despite Gonzales's complaints, both Gray and Salyer
agreed there was no objective evidence that he suffered any acute injury on
February 24, 2015.

¶7           Gonzales filed a claim, which the insurance carrier denied.
Gonzales protested the denial and requested a hearing. In a Decision Upon
Hearing, the ALJ found Gonzales did not sustain a work-related injury on
February 24, 2015. Gonzales requested review and the ALJ affirmed the
decision. This timely special action followed.

¶8           This court has jurisdiction pursuant to Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(2) (2017), 23-951 (2017) and
Arizona Rule of Procedure for Special Actions 10.2

                               DISCUSSION

¶9            In reviewing the ICA's awards and findings, we defer to the
ALJ's factual findings and review questions of law de novo. Young v. Indus.
Comm'n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). The ALJ has discretion to
resolve any conflicts in the evidence, see Perry v. Indus. Comm'n, 112 Ariz.
397, 398 (1975), and is the sole judge of witness credibility, Henderson-Jones
v. Indus. Comm'n, 233 Ariz. 188, 191, ¶ 9 (App. 2013). As long as the ALJ's


2     Absent material revision after the relevant date, we cite a statute's
current version.


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                      GONZALES v. ICA/FREEPORT
                         Decision of the Court

findings are not unreasonable, this court will not disturb them. Hackworth
v. Indus. Comm'n, 229 Ariz. 339, 343, ¶ 9 (App. 2012).

¶10           To be compensable, an injury must arise out of and in the
course of employment. A.R.S. § 23-1021 (2017). "Arise out of" refers to "the
origin or cause of the injury," while "in the course of" refers to "the time,
place, and circumstance of the accident in relation to the employment."
Royall v. Indus. Comm'n, 106 Ariz. 346, 349 (1970). The claimant has the
burden to prove the elements of the claim by a preponderance of the
evidence. Brooks v. Indus. Comm'n, 24 Ariz. App. 395, 399 (1975). If the
causal connection between an alleged injury and an industrial accident is
not apparent, it must be proved by expert medical testimony. Raymer v.
Indus. Comm'n, 18 Ariz. App. 184, 186 (1972).

¶11            The ALJ found that Gonzales was not credible when he
testified about an alleged collision between his truck and a power shovel
on the night of February 24, 2015. The shovel operator, whom the ALJ
found to be credible, testified that his shovel was not low enough at the time
to cause a collision with Gonzales's truck. Furthermore, the operator
testified that if a collision had occurred, he would have felt a "jolt" in the
cab of his vehicle, and he could not recall any such jolt occurring at the time
of the alleged collision. Accordingly, the ALJ found that no collision
occurred between Gonzales's truck and the second operator's power shovel.

¶12            Additionally, the ALJ found Gonzales was not credible when
he testified about the rescue efforts on the night of February 24, 2015, and
found that another employee who participated in the rescue gave a credible
account. See Henderson-Jones, 233 Ariz. at 191, ¶ 9. That other employee
testified that no member of the rescue team lifted Gonzales by his belt and
slammed him onto the backboard, as Gonzales had claimed. The ALJ
agreed. Because the ALJ has discretion to resolve any conflicts in the
evidence, see Perry, 112 Ariz. at 398, and is the sole judge of witness
credibility, Henderson-Jones, 233 Ariz. at 191, ¶ 9, we cannot conclude the
ALJ erred in finding Gonzales did not collide with a power shovel on the
night of February 24, 2015, and was not slammed onto the backboard
during the rescue.

¶13           Although the ALJ found that a collision had occurred
between Gonzales's truck and a power shovel on the morning of February
24, 2015, the ALJ found no evidence that Gonzales was injured in that
collision. The medical evidence before the ALJ consisted of the medical
records each party submitted and testimony from Gray and Salyer. Both
Gray and Salyer testified that no objective evidence existed to suggest


                                      4
                     GONZALES v. ICA/FREEPORT
                        Decision of the Court

Gonzales suffered any acute injury on February 24, 2015. See Hackworth, 229
Ariz. at 343, ¶ 9 ("If no conflict exists in the medical testimony, the ALJ is
bound to accept it.")

¶14            On appeal, Gonzales appears to argue that the ALJ failed to
consider the effect any collision had on a preexisting physical condition.
Gray testified that Gonzales had a history of spinal stenosis, and stated her
belief that the alleged events on February 24, 2015, aggravated that spinal
stenosis, causing Gonzales pain. But the ALJ ruled based on Salyer's
testimony that Gonzales "did not sustain any injury to his neck or back or
nervous system whether he had [a preexisting condition] or not," and
concluded Gonzales did not suffer a work-related injury on February 24,
2015. Given Salyer's testimony, we cannot say the ALJ erred by concluding
that Gonzales did not sustain a compensable injury.

¶15           To the extent Gonzales makes other arguments, he does not
present them clearly or provide legal authority in support thereof.
Therefore, this court will not consider them. See ARCAP 13(a).

                               CONCLUSION

¶16           For the foregoing reasons, we affirm the award.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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