City of Tucson and Pinnacle Risk Management v. Scott Woodworth , 236 Ariz. 52 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
CITY OF TUCSON,
Petitioner Employer,
PINNACLE RISK MANAGEMENT,
Petitioner Insurer,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA,
Respondent,
SCOTT M. WOODWORTH,
Respondent Employee.
No. 2 CA-IC 2014-0005
Filed September 30, 2014
Special Action – Industrial Commission
ICA Claim No. 201304030150
Insurer No. WCTUC2013716595
The Honorable Thomas A. Ireson,
Administrative Law Judge
AFFIRMED
COUNSEL
Moeller Law Office, Tucson
By M. Ted Moeller
Counsel for Petitioners Employer and Insurer
CITY OF TUCSON v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Tretschok, McNamara & Miller, P.C., Tucson
By Patrick R. McNamara
Counsel for Respondent Employee
OPINION
Presiding Judge Miller authored the opinion of the Court, in which
Chief Judge Eckerstrom and Judge Espinosa concurred.
M I L L E R, Presiding Judge:
¶1 In this statutory petition for special action, petitioners
City of Tucson and Pinnacle Risk Management (collectively
“Pinnacle”) challenge the administrative law judge’s (ALJ) findings
and decision upon review affirming his award for a compensable
hernia claim. Pinnacle contends there was no evidence Woodworth
was incapable of feeling pain in the hernia region and that he failed
to meet all the statutory requirements for a compensable hernia
injury claim. Because the ALJ did not err, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to
affirming the Industrial Commission’s findings and award. Polanco
v. Indus. Comm’n, 214 Ariz. 489, ¶ 2, 154 P.3d 391, 392-93 (App. 2007).
In February 2013, Woodworth, a captain with the City of Tucson Fire
Department, responded to an emergency call that required
Woodworth and a colleague to lift an unconscious elderly woman
from a couch to a gurney. About an hour later, Woodworth
returned to the fire station and took a shower, whereupon he
noticed that he had a golf-ball-sized bulge on his left groin.
Woodworth immediately notified his supervisor as well as the
2
CITY OF TUCSON v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
Tucson Fire Department physician, Dr. Wayne Peate, in accordance
with department policy. Peate saw Woodworth two days later and
referred him to a surgeon.
¶3 Woodworth’s initial workers’ compensation claim was
denied, and he requested a hearing on the issue of whether the
injury was compensable. At the hearing, Woodworth testified that
he had not experienced any pain related to the hernia. He also
stated that he had previously suffered a hernia on his right side
some twelve years prior to the February 2013 incident and that he
did not have any pain associated with that hernia either.
¶4 Peate had diagnosed Woodworth with a left inguinal
hernia and opined, to a reasonable medical probability, that
Woodworth’s lifting and moving an unconscious patient in
February 2013 caused the injury. Peate also testified that some
individuals do not experience pain when suffering a hernia injury.
Pinnacle’s independent medical examiner, Dr. Raymond
Schumacher, was not able to identify to a reasonable medical
probability the cause of Woodworth’s February 2013 hernia and
opined that if a hernia was caused by a strain or a blow, it would be
accompanied by pain.
¶5 After three evidentiary hearings, the ALJ issued a
decision finding Woodworth’s claim compensable under the hernia
statute, A.R.S. § 23-1043(2). 1 Section 23-1043(2) sets forth four
requirements for a claim to be compensable: (a) the immediate
cause was a severe strain or blow; (b) the hernia immediately
descended following the cause; (c) the cause was accompanied by
1Section 23-1043 distinguishes between “traumatic” and “[a]ll
other hernias.” Although each requires strain and damage to the
abdominal wall, the difference between the two categories is
primarily a medical one to be determined by the cause of herniation.
Figueroa v. Indus. Comm’n, 112 Ariz. 473, 476, 543 P.2d 785, 788
(1975). Our supreme court has defined non-traumatic hernias,
under subsection 2, as those occurring due to abnormal weakness of
the muscular structure, existing from birth, old age, or debilitating
disease. Id.3
CITY OF TUCSON v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
severe pain; and, (d) the claimant noticed the hernia and
immediately communicated as much to one or more persons. In his
ruling, the ALJ conceded that the claim would not be compensable
under a strict interpretation of the statute, but found that it should
be liberally construed given the unique facts of this case.
Accordingly, the ALJ adopted Peate’s opinions as the more probably
correct and found the lifting incident caused the hernia discovered
by Woodworth a few hours later. Pinnacle filed a request for
review, and the ALJ affirmed. This petition for special action
followed.
Inability to Feel Pain Associated with a Hernia
¶6 Pinnacle first argues the record lacked any evidence to
support the ALJ’s finding that, for some anatomic or physiologic
reason, Woodworth did not experience pain associated with
herniation. We will not disturb an ALJ’s findings of fact so long as it
is substantiated by competent evidence. See Preuss v. Indus. Comm’n,
15 Ariz. App. 515, 516-17, 489 P.2d 1217, 1218-19 (1971).
¶7 As noted above, Woodworth testified at an evidentiary
hearing that he had noticed a fast onset of swelling in his left groin,
but did not feel any pain from the time of the February 2013
herniation until his surgery. He further indicated he had not felt any
pain associated with the hernia he had suffered twelve years prior.
Peate, Woodworth’s physician, testified that some individuals
simply will not experience pain associated with herniation, although
such individuals are in the minority. In addition, Schumacher,
agreed that Woodworth has not had pain with either of his non-
traumatic hernias.
¶8 Pinnacle asserts Peate did not testify that Woodworth is
among those individuals who do not feel pain upon herniation. But
the record contains competent evidence to substantiate the ALJ’s
finding that Woodworth could not feel pain with a hernia. See
Preuss, 15 Ariz. App. at 516-17, 489 P.2d at 1218-19.
¶9 The medical testimony pertaining to whether some
patients are incapable of feeling pain associated with a hernia injury
was in conflict. Where, as here, the ALJ is presented with a conflict
4
CITY OF TUCSON v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
in the medical testimony, we will not disturb the ALJ’s resolution of
such a conflict unless it is wholly unreasonable. Hackworth v. Indus.
Comm’n, 229 Ariz. 339, ¶ 9, 275 P.3d 638, 642 (App. 2012). Peate
testified that “[l]ifting patients and maneuvering them, particularly
in the firefighter setting, can cause” herniation. Peate went on to
opine to a reasonable medical probability that Woodworth’s lifting
and moving an unresponsive patient in February 2013 was the cause
of Woodworth’s hernia. Furthermore, Peate indicated that
Woodworth presented with no pain accompanying the hernia.
Peate also stated “[t]here is a spectrum” of pain experienced upon
herniation and that “some [patients] . . . report a bulge but don’t
have the immediate pain.”
¶10 Schumacher testified that Woodworth “had previously
had a painless right inguinal hernia” and that his February 2013 left
inguinal hernia “was entirely nonpainful” but indicated “that
[Woodworth] had experienced some other painful conditions in his
life.” Moreover, he could not opine to a reasonable medical
probability that a hernia was caused by an effort or a strain unless it
was painful at the time of the incident.
¶11 The ALJ concluded that the ultimate factor in deciding
compensability under § 23-1043(2) is whether a causal relationship is
clear between the work incident and the hernia. The ALJ also found
Woodworth’s testimony to be credible, including that he did not feel
pain associated with two separate hernia injuries. He also adopted,
as more probably correct, Peate’s medical opinions that a minority of
individuals do not experience pain with non-traumatic herniation,
and that Woodworth’s hernia injury was caused by the work
incident. Accordingly, the ALJ liberally construed the hernia statute
to prevent prejudice to Woodworth who, through no fault of his
own, does not experience pain with herniation. Upon examination
of the record, we conclude that the ALJ’s findings of fact are
substantiated by competent evidence. See Preuss, 15 Ariz. App. at
516-17, 489 P.2d at 1218-19; Rosarita Mexican Foods v. Indus. Comm’n,
199 Ariz. 532, ¶ 10, 19 P.3d 1248, 1251 (App. 2001) (appellate court
will not disturb ALJ’s finding of fact unless wholly unreasonable).
5
CITY OF TUCSON v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
Pain Requirement of the Hernia Statute
¶12 Pinnacle argues next that the ALJ erred in finding
Woodworth’s claim compensable because Woodworth did not
satisfy the statutory requirements of § 23-1043(2). Specifically,
Pinnacle asserts that a non-traumatic hernia must be associated with
pain for it to be compensable. We review an ALJ’s legal conclusions
de novo. Hahn v. Indus. Comm’n, 227 Ariz. 72, ¶ 5, 252 P.3d 1036,
1038 (App. 2011).
¶13 As noted above, a claimant must meet four specific
requirements for a non-traumatic hernia to be compensable under
§ 23-1043(2): (a) the immediate cause was a severe strain or blow;
(b) the hernia immediately descended following the cause; (c) the
cause was accompanied by severe pain; and, (d) the claimant noticed
the hernia and immediately communicated as much to one or more
persons. The key to establishing compensability under the hernia
statute is showing an immediate and apparent connection between
the injury and the workplace. See Sandoval v. Indus. Comm’n, 3 Ariz.
App. 449, 451, 415 P.2d 463, 465 (1966); see also Arizona Workers’
Compensation Handbook § 5.4.3, at 5-16 (Ray Jay Davis et al. eds.,
1992).
¶14 We interpret the hernia statute’s special compensability
requirements liberally in favor of the injured claimant. See Sandoval,
3 Ariz. App. at 450, 415 P.2d at 464. Accordingly, the requirement of
severe pain is a subjective standard that will vary with each
individual and does not require that pain be long-lasting or
disabling. Id.; Morris v. Indus. Comm’n, 3 Ariz. App. 393, 396, 414
P.2d 996, 999 (1966). Likewise, the immediate communication and
immediate descent requirements are satisfied if communication
occurred and the hernia descended within a reasonable time, as to
make it appear clear that the hernia was caused by the industrial
accident. Consolidated Vultee Aircraft Corp. v. Smith, 63 Ariz. 331, 334-
36, 162 P.2d 425, 426-27 (1945); but cf. Bliven v. Indus. Comm’n, 24
Ariz. App. 78, 80, 535 P.2d 1309, 1311 (1975) (viewing the word
“immediately” to mean “generally within minutes or hours”).
¶15 Pinnacle focuses its argument solely on the hernia
statute’s “severe pain” requirement and asserts a plain language
6
CITY OF TUCSON v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
reading of the statute necessitates a claimant experience some
degree of pain associated with the herniation for it to be
compensable. § 23-1043(2)(c). It cites to Bliven as a case where the
absence of pain was the reason why the claim was denied and the
declination affirmed on appeal. 24 Ariz. App. at 79-80, 535 P.2d at
1310-11.
¶16 In Bliven, however, none of the special compensatory
requirements were satisfied. Id. The claimant had no groin pain
after the industrial incident and first complained of it some twelve
days later. Id. A doctor’s examination diagnosed only an inguinal
area strain. Id. at 80, 535 P.2d at 1311. The claimant then went water
skiing and after this activity he developed a hernia, about a month
after the industrial incident. Id.
¶17 Pinnacle also relies on several cases in which claimants
had established some sensation of pain associated with the hernia
and the injury had been found to be compensable. See, e.g.,
Superstition Const. v. Indus. Comm’n, 139 Ariz. 338, 338, 678 P.2d 522,
523 (App. 1984) (injured worker “felt a sensation like a pulled groin
muscle”); Morris, 3 Ariz. App. at 396, 414 P.2d at 999 (burning pain
experienced near time of incident satisfied “severe pain”
requirement); Consolidated Vultee, 63 Ariz. at 332, 162 P.2d at 425(acute pain in left groin). But these cases are like the present case in
that all but one of the special compensatory requirements were
satisfied. See Superstition Const., 139 Ariz. at 338, 678 P.2d at 523
(hernia descended days, not minutes or hours, after industrial
incident); Morris, 3 Ariz. App. at 396, 414 P.2d at 999 (claim
compensable where lack of “severe pain”; minor, burning pain
satisfied requirement); Consolidated Vultee, 63 Ariz. at 336, 162 P.2d at
427 (claim compensable where hernia descent not communicated
“immediately”).
¶18 We previously have held that “the rule that strict
satisfaction of all the special compensability requirements is
unnecessary.” Superstition Const., 139 Ariz. at 339-40, 678 P.2d at
524-25. In that case this court observed that an ultimate factor to be
considered is whether the relationship between the industrial
incident and the hernia is clear. 139 Ariz. at 340, 678 P.2d at 525; see
also 1 Arthur Larson & Lex K. Larson, Larson’s Workers Compensation
7
CITY OF TUCSON v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
Law § 1.03[1], at 1-5 (2007) (“The right to compensation benefits
depends on one simple test: Was there a work-connected injury?”).
This causal relationship was not clear in Bliven, and therefore the
hernia was noncompensable. 24 Ariz. App. at 79-80, 535 P.2d at
1310-11; see also Superstition Const., 139 Ariz. at 340, 678 P.2d at 525.
In contrast, the causal relationship was clear in the other cases relied
upon by Pinnacle. See Superstition Const., 139 Ariz. at 338, 340, 678
P.2d at 523, 525; Morris, 3 Ariz. App. at 396, 414 P.2d at 999;
Consolidated Vultee, 63 Ariz. at 336, 162 P.2d at 427.
¶19 It is well settled that the workers’ compensation statutes
are designed to benefit the injured employee rather than the
employer. See Dugan v. Am. Express Travel Related Servs. Co., 185
Ariz. 93, 99, 912 P.2d 1322, 1328 (App. 1995); see also Larson &
Larson, supra, § 1.01, at 1-2 (basic operating principle of workers’
compensation is that employee automatically entitled to certain
benefits whenever employee suffers personal injury by work-related
accident). Although the plain language of a statute typically
controls when it is clear and unambiguous, we will not interpret a
statute’s plain text to engender an absurd or unconstitutional result.
Sell v. Gama, 231 Ariz. 323, ¶ 16, 295 P.3d 421, 425 (2013). Adoption
of Pinnacle’s strict reading of § 23-1043(2)(c) would necessarily
exclude from the workers’ compensation regime a subset of
employees who do not feel pain during a non-traumatic herniation.
¶20 As outlined above, § 23-1043(2)(c) must be construed in
favor of the injured worker. We therefore conclude that a non-
traumatic hernia injury is compensable when the preponderance of
the evidence establishes a relationship between the work incident
and injury, and competent evidence substantiates the claimant’s
inability to feel pain with non-traumatic herniation. Construing the
statute in a way that excludes such a worker from the workers’
compensation regime based on physiological makeup would lead to
absurd results, see Sell, 231 Ariz. 323, ¶ 16, 295 P.3d at 425, and is
incongruent with the purpose of the workers’ compensation statute,
see Larson & Larson, supra, § 1.01, at 1-2.
Disposition
¶21 For the foregoing reasons, the award is affirmed.
8