THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

SHELDON H. WEISBERG, Judge.

¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review for forfeiture of workers' compensation benefits. The petitioner employee ("claimant") presents one issue on appeal: whether the administrative law judge ("ALJ") erred by finding that he must forfeit his workers' compensation benefits for an otherwise compensable gradual injury because he failed to forthwith report. Because the record contains reasonable evidence to support the ALJ's finding of a failure to forthwith report the back injury to the employer, we affirm.

JURISDICTION AND STANDARD OF REVIEW

¶2 This court has jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(2) (2003), 23-951(A) (1995), and Arizona Rule of Procedure for Special Actions 10. 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, 63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most favorable to upholding the ALJ's award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).

PROCEDURAL AND FACTUAL HISTORY

¶3 At the time of his gradual injury, the claimant worked as a shuttle bus driver for the respondent employer, Paul Revere Transportation, LLC ("PRT"). The claimant testified at the ICA hearing that he made fifteen separate stops on his route, and he drove his route six to seven times in an eight-hour workday. He stated that his work involved numerous repetitive motions, which included engaging and disengaging the emergency brake. This required leaning forward, twisting to the left, and dropping his left shoulder.

¶4 The claimant testified that in August 2008, he began to experience twinges of low back pain. His pain steadily worsened and began to radiate down his left leg. After speaking with another shuttle bus driver, in September 2008, the claimant sought chiropractic care for sciatica. He testified that when he saw the chiropractor, he believed his sciatica was caused by his work as a shuttle bus driver.

¶5 On September 24, 2008, the claimant was hospitalized for treatment of deep vein thrombosis ("DVT"). During that hospitalization, he reported back pain but gave inconsistent histories regarding its onset, i.e., using a treadmill in early September 2008 and a back injury occurring several months earlier.

¶6 The claimant filed a workers' compensation claim for back pain in May 2009. When questioned as to why he didn't file a claim before May 2009, the claimant stated that no doctor had told him what was wrong with his back. During the entire time, the claimant continued to perform his regular job duties and to pass his physicals for his commercial driver's license.

¶7 The claimant's shift supervisor testified that PRT holds safety meetings. She stated that if the claimant had reported a work-related injury, PRT would have completed an incident report, provided the necessary insurance information, and sent him to be examined by a doctor. The supervisor stated that the claimant had never reported a work-related back injury to her.

¶8 PRT's project manager provided similar testimony. She stated that if the claimant had reported a back injury to her, she would have had him fill out an incident report and would have sent him to a doctor for assessment. The claimant, however, had never told her that he had back problems related to his work.1 The project manager also testified that based on input from the claimant and other drivers, the general manager changed PRT's parking brake policy to require the brake's less frequent use.

¶9 Donald Hales, M.D., a board certified orthopedic surgeon, fellowship trained in back care, first saw the claimant on December 7, 2009 for complaints of back and left leg pain. He received the claimant's history of an onset of back pain during August or September 2008. At the time of Dr. Hale's examination, the claimant was continuing to perform his regular job duties, but required medication.2

¶10 On physical examination, Dr. Hales found positive straight leg raising on the left, indicative of sciatic nerve irritation, and weakness in the claimant's extensor muscle to the great toe. He also reviewed a March 2009 MRI, which revealed degenerative disc disease and an acute disc herniation that explained the claimant's complaints of back pain. It was the doctor's opinion that the claimant had preexisting degenerative changes that made his L4-5 disc annulus weak and that his work activities acted on the weakness to result in herniation. Dr. Hales recommended a microdiscectomy to treat the herniation followed by rehabilitation for the back pain. Alternatively, if this treatment was unsuccessful, the doctor recommended replacing the L4-5 disc with an artificial disc.

¶11 The claimant filed a worker's report of injury in May 2009 for a gradual back injury on August 3, 2008. SCF denied the claim for benefits, and the claimant timely requested a hearing. SCF then raised the affirmative defense of failure to forthwith report the injury.

¶12 Three ICA hearings were held for testimony from the claimant, two lay witnesses and two physicians. At the conclusion of the hearings, the ALJ entered an award finding that the claimant had sustained a compensable gradual back injury, but he would forfeit all benefits because he had failed to forthwith report his back injury to his employer. The ALJ summarily affirmed the award on administrative review, and the claimant brought this appeal.

DISCUSSION

¶13 In the case of a gradual injury, the date of injury is considered to be the date that the claimant discovered or "in the exercise of reasonable diligence" should have discovered the relationship between the injury and the employment. Nelson v. Indus. Comm'n, 120 Ariz. 278, 281-82, 585 P.2d 887, 890-91 (App. 1978). An injured employee must report the accident and the injury resulting therefrom to the employer "forthwith." See A.R.S. § 23-908 (E) (Supp. 2010).

¶14 Requiring forthwith notice to the employer serves two purposes. First, it enables the employer to investigate the facts surrounding the injury as soon as possible so that reliable evidence can be preserved. Second, it gives the employer the opportunity to provide immediate medical treatment so as to minimize the seriousness of the injury. Magma Copper Co. v. Indus. Comm'n, 139 Ariz. 38, 43, 676 P.2d 1096, 1101 (1983) (citing 3 A. Larson, The Law of Workmen's Compensation § 78.10(1983)).3 The sanction for failure to report forthwith is forfeiture of workers' compensation benefits. See A.R.S 23-908(F). The ICA may relieve the claimant of this sanction "if it believes after investigation that the circumstances attending the failure . . . are such as to have excused" the failure to report forthwith. Id.

¶15 The claimant has the burden to prove facts that establish an excuse for his failure to report forthwith, and the absence of prejudice to the employer is but one factor in establishing a justifiable excuse. Pacific Fruit Express v. Indus. Comm'n, 153 Ariz. 210, 215, 735 P.2d 820, 825 (1987). A lack of prejudice may be established by showing that the "injury was not aggravated by the employer's inability to provide early diagnosis and treatment," and that the "employer was not hampered in making his investigation and preparing his case." Id. at 216, 735 P.2d at 826.

¶16 In this case, the claimant argues that the ALJ erred by finding that he had a duty to forthwith report his injury before he saw Dr. Hales and that there was no showing of prejudice to PRT in making its investigation or preparing its case. The ALJ specifically addressed both of these contentions in the award:

¶17 The claimant's testimony established an onset of back pain in August 2008 while operating the parking brake on his shuttle bus. This pain steadily worsened and radiated down his left leg causing the claimant to discuss it with another driver. The claimant then sought chiropractic care for sciatica in September 2008. He also discussed this condition with Dr. Bronstein at a clinic visit on September 24, 2008. This evidence is sufficient to support the ALJ's conclusion that the claimant knew or with the exercise of reasonable diligence should have known of the relationship between his injury and his employment long before May 2009. Mead v. Am. Smelting and Ref. Co., 1 Ariz.App. 73, 77, 399 P.2d 694, 698 (1965) (when claimant knew or should have known he sustained a compensable injury is a question of fact to be resolved by the ALJ).

¶18 With regard to prejudice to the PRT, the evidence of record supports the ALJ's conclusion that the failure to forthwith report the back injury precluded the employer from promptly obtaining a diagnosis or treatment for the condition. Dr. Hales also testified that the longer the claimant continued to perform his job duties and repetitive use of the parking brake, the more it contributed to his disc herniation.

¶19 With regard to whether PRT was hampered in making its investigation and preparing its case, the claimant argues that two drivers he worked with in fall 2008 were still employed by PRT at the time he filed his claim and PRT could have talked to them about his back injury. However, PRT's project manager testified that she had no reason to interview these drivers or conduct any investigation because the claimant never reported a back injury to her. Further, a delay of nine months between the onset of the claimant's symptoms and his report may have adversely affected the witnesses' ability to accurately recall their conversations with claimant about his back injury.

CONCLUSION

¶20 For all of the foregoing reasons, we affirm the ALJ's award.

MAURICE PORTLEY, Presiding Judge, LAWRENCE F. WINTHROP, Judge, Concurring.