Opinion
2 CA-IC 2021-0004
11-22-2021
Special Fund Division/No Insurance Section, Petitioner Party in Interest, v. The Industrial Commission of Arizona, Respondent, Francisco Flores, Respondent Employee, K & K Pools Renovations, LLC, Respondent Employer.
The Industrial Commission of Arizona, Phoenix Special Fund Division/No Insurance Section By Afshan Peimani Counsel for Petitioner Party in Interest The Industrial Commission of Arizona, Phoenix By Gaetano Testini, Chief Legal Counsel Counsel for Respondent Tretschok, McNamara, Miller & Feldman P.C., Tucson By Patrick R. McNamara Counsel for Respondent Employee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Special Action - Industrial Commission ICA Claim No. 20193400002 LuAnn Haley, Administrative Law Judge
The Industrial Commission of Arizona, Phoenix Special Fund Division/No Insurance Section By Afshan Peimani Counsel for Petitioner Party in Interest
The Industrial Commission of Arizona, Phoenix By Gaetano Testini, Chief Legal Counsel Counsel for Respondent
Tretschok, McNamara, Miller & Feldman P.C., Tucson By Patrick R. McNamara Counsel for Respondent Employee
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
VÁSQUEZ, CHIEF JUDGE
¶1 In this statutory special action, petitioner Special Fund Division (Special Fund) challenges the award of the administrative law judge (ALJ) finding that respondent Francisco Flores sustained a compensable injury. The Special Fund argues there was insufficient evidence to establish that Flores's work activities and environment were a substantial contributing cause of his heart-related injury. Finding no error, we affirm.
Because Flores's employer was uninsured, the Special Fund/No Insurance Section of the Industrial Commission processed the claim.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the award and in doing so, defer to the ALJ's factual findings. Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 2 (App. 2012). On a hot afternoon in August 2019, Flores arrived at a jobsite for K&K Pools Renovations, LLC where he was preparing a swimming pool for re-plastering. While carrying forty- to fifty-pound plaster hoses into the pool, Flores felt a sharp pain in his chest. K&K's owner found him lying on the ground, called 9-1-1, and began performing chest compressions. Soon thereafter, he began breathing on his own and the paramedics arrived. Flores's coworker drove him to the emergency room, and he was subsequently transferred to another hospital where he underwent surgery for aortic stenosis with a leaky valve.
¶3 In October 2019, Flores filed a claim for workers' compensation benefits, which was denied. He then requested a hearing challenging the denial. Following evidentiary hearings, at which both Flores and the Special Fund presented expert medical testimony, the ALJ found the claim compensable. The Special Fund filed a request for review, and the ALJ affirmed the award. This statutory special action followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-948, and Rule 10, Ariz. R. P. Spec. Act.
Standard of Review
¶4 Our review is limited to determining whether the Industrial Commission acted within its power and whether the ALJ's findings of fact support the award. A.R.S. § 23-951(B). We defer to the ALJ's factual findings but independently review the ALJ's legal conclusions. Young v. Indus. Comm'n, 204 Ariz. 267, ¶ 14 (App. 2003).
Discussion
¶5 The Special Fund argues that Flores's claim is not compensable because the testimony by both medical experts confirms that his preexisting aortic stenosis was not caused by his work. To establish a compensable injury, the claimant must prove both legal and medical causation. DeSchaaf v. Indus. Comm'n, 141 Ariz. 318, 320 (App. 1984). Medical causation, the sole issue before us here, "ordinarily requires expert medical testimony to establish that the industrial accident caused the injury." Id. But cases involving heart-related injuries require the claimant to establish that "some injury, stress or exertion related to the employment was a substantial contributing cause." A.R.S. § 23-1043.01(A). A substantial contribution lies somewhere between "insubstantial or slight" and "predominant." Konichek v. Indus. Comm'n, 167 Ariz. 296, 297 (App. 1990). If an employee has a preexisting heart condition, he is entitled to compensation if work-related aggravation of the underlying condition results in further injury. Dugan v. Am. Exp. Travel Related Servs. Co., 185 Ariz. 93, 100 (App. 1995).
¶6 The Special Fund asserts that Flores's claim is non-compensable because there is "absolutely no correlation" between the work he performed and his chronic aortic stenosis. But, as noted above, Arizona law does not require such a causal relationship between the claimant's work and the underlying heart-related condition. See id. What Arizona law does require is for expert medical testimony to establish that Flores's work substantially contributed to his underlying condition becoming symptomatic, which was done in this case. See § 23-1043.01(A) ; see, e.g., Skyview Cooling Co. v. Indus. Comm'n, 142 Ariz. 554, 559 (App. 1984) (testimony from claimant's expert satisfied burden of proving substantial contribution by showing "exertion while performing heavy work caused the [injury] to occur when it did"). Indeed, both experts testified that Flores's work did not cause his aortic stenosis and that it would have eventually become symptomatic. But as relevant here, both experts also testified that Flores's work activities and dehydration due to the high temperatures aggravated his aortic stenosis and caused it to become symptomatic on the day he was working. The ALJ relied on this testimony to conclude that Flores "met his burden of proof regarding medical causation in this case."
¶7 Although Flores's medical expert, Dr. Gheewala, opined the heat leading to dehydration and physical exertion were a "substantial cause to [Flores] becoming ill," "magic words" are not required to determine whether Flores satisfied his burden of proof. Skyview, 142 Ariz. at 559. When an expert does not use the phrase "substantial contribution" in stating his opinion, we must "thoroughly and carefully review [the] testimony" to see if it establishes a "substantial contribution" in the "context in which it was given." Id. Here, the Special Fund's medical expert, Dr. Ganem, testified that, although Flores's dehydration or physical exertion did not cause his aortic stenosis, they were factors "in making the underlying condition symptomatic." In context, the medical testimony was sufficient to establish that Flores's work was a substantial contribution to the injury he sustained.
¶8 Citing Pima Community College v. Industrial Commission, 137 Ariz. 137 (App. 1983), the Special Fund contends that because becoming dehydrated while working outside in the Arizona sun during August was not "unexpected, unusual or extraordinary," the ALJ erred in granting the award. However, this case is inapposite because it discusses the compensability of a mental injury, which is governed by § 23-1043.01(B). Pima Cmty. Coll., 137 Ariz. at 139 n.1. Unlike mental injuries, heart-related injuries do not require the substantial contributing cause of the injury to be "unexpected, unusual or extraordinary." Compare § 23-1043.01(B), with § 23-1043.01(A).
¶9 The Special Fund also contends Flores's claim is not compensable based on his testimony that he knew he had a heart murmur since 2014 and had experienced a pain in his chest about a week before the accident at issue. To support this argument, the Special Fund relies on Chamberlain v. Industrial Commission, 13 Ariz.App. 356 (1970), which is distinguishable. In Chamberlain, there was conflicting medical testimony as to whether the claimant's heart attack was caused by work events, which the ALJ resolved in favor of the employer. Id. When expert medical testimony conflicts, it is the ALJ's duty to "resolve all conflicts in the evidence." Post v. Indus. Comm'n, 160 Ariz. 4, 8 (1989) (citing Perry v. Industrial Comm'n, 112 Ariz. 397, 398 (1975)). Here, however, there is no such conflict. As discussed above, both medical experts agree Flores's work substantially contributed to the onset of his heart-related injury. Thus, the evidence supported the ALJ's finding that Flores met his burden of proof as to medical causation.
Disposition
¶10 For the foregoing reasons, we affirm the award.