pds/zurich v. Silberschlag ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
PDS TECHNICAL SERVICES, INC., Petitioner Employer,
ZURICH AMERICAN, Petitioner Carrier,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
RON SILBERSCHLAG, Respondent Employee.
No. 1 CA-IC 15-0055
FILED 5-31-2016
Special Action - Industrial Commission
ICA Claim No. 20132-260313
Carrier Claim No. 2010228241
Administrative Law Judge Aryka S. Radke
AWARD AFFIRMED
COUNSEL
Lester, Norton & Brozina, P.C., Phoenix
By Christopher S. Norton, Steven C. Lester, Rachel P. Brozina
Counsel for Petitioner Employer and Carrier
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent Industrial Commission of Arizona
Robert E. Wisniewski, P.C., Phoenix
By Robert E. Wisniewski
Co-Counsel for Respondent Employee
Toby Zimbalist, Phoenix
Co-Counsel for Respondent Employee
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.
O R O Z C O, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (ICA) award and decision upon review for continuing benefits.
The petitioner employer, PDS Technical Services, Inc. (PDS), presents two
issues on appeal:
(1) whether the administrative law judge (ALJ) erred by
finding that the industrial injury contributed to a
compensable aggravation of the respondent employee’s
(claimant’s) preexisting lung condition; and
(2) whether the ALJ abused her discretion by adopting Phillip
Harber, M.D.’s medical opinion.
Because we find that the ALJ did not abuse her discretion by adopting
Dr. Harber’s testimony and that his opinion supports the award, 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 and 23-951.A (West 2016)1 and Rule
10, Arizona Rules of Procedure for Special Actions. 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
1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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(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 (App. 2002).
FACTS AND PROCEDURAL HISTORY
¶3 PDS recruited the claimant to work as a construction
equipment test technician for Case-New Holland. This involved driving
bulldozers, front loaders and bobcats on Case-New Holland’s testing
grounds near the White Tank Mountains. The claimant testified that he
dug, piled and moved dirt with the various machines. Although some
machines had climate-controlled cabs, it was very dusty work.
¶4 On July 26, 2013, the claimant was in the field operating a
machine when he became sick, dizzy, and began cramping. It was believed
he had heat exhaustion. When he continued to feel sick and fatigued the
following week, PDS sent him to Concentra, where he filed a workers’
compensation claim. His claim was accepted for benefits, and he received
conservative medical treatment. Following an independent medical
examination (IME) with Gerald Schwartzberg, M.D., the petitioner carrier,
Zurich American Insurance Company (Zurich), closed the claimant’s claim
with no permanent impairment. The claimant timely requested an ICA
hearing, and the ALJ held three hearings for testimony from the claimant
and Drs. Harber and Schwartzberg.
¶5 Following the hearings, the ALJ entered an award for
continuing medical benefits.
5. The undersigned finds [the claimant’s] testimony credible,
particularly with respect to his prior medical history, his job
duties and working environment, and his current symptoms
and functional limitations. . . .
* * * *
12. Both Dr. Harber and Dr. Schwartzberg agree that [the
claimant’s] heat stroke/heat exhaustion has resolved. There
is a clear conflict between the physicians with respect to
whether there is a causal relationship between [the
claimant’s] underlying UIP [usual interstitial pneumonitis]
and the instant industrial accident . . . . To the extent there is
a conflict of medical opinion, Dr. Harber’s opinion is adopted
as more well-founded and more probably correct.
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Consequently, I conclude that the July 26, 2013 industrial
accident was a contributing factor in aggravating [the
claimant’s] preexisting pulmonary condition and that said
condition is not yet medically stationary. [The claimant] is
entitled to continued active care.
PDS timely requested administrative review, and the ALJ supplemented
and affirmed the award. PDS brought this special action.
DISCUSSION
¶6 PDS first argues that the ALJ erred by finding that the
industrial injury contributed to a compensable aggravation of the
claimant’s preexisting lung condition. In order to be entitled to receive
continuing medical benefits, the claimant had the burden of proving that
his physical condition is causally related to his industrial injury and that he
is not yet medically stationary. See Lawler v. Indus. Comm’n, 24 Ariz. App.
282, 284 (1975); McNeely v. Indus. Comm’n, 108 Ariz. 453, 455 (1972). If the
causal connection is “peculiarly within the knowledge of medical
experts[,]” causation must be established by expert medical testimony.
McNeely, 108 Ariz. at 455.
¶7 The claimant presented medical testimony from Dr. Harber,
board-certified in pulmonary, internal, and occupational preventative
medicine.2 Dr. Harber works as a professor of Public Health at the
University of Arizona and previously was UCLA’s Chief of the Division of
Occupational and Environmental Medicine. He reviewed the claimant’s
medical records for treatment he received after his July 26, 2013 industrial
injury. The claimant had no symptoms of a preexisting illness. Dr. Harber
also received a history of the claimant’s work operating earth-moving
equipment, beginning in 2007, and his exposure to dust, diesel fumes, and
urea in the course of his work. After the industrial injury, diagnostic testing
revealed fibrosis and scarring of the claimant’s lung tissue.
¶8 Dr. Harber diagnosed interstitial lung disease. He testified
that although the claimant’s lung disease may have been developing for
years, it became manifest on the date of the industrial injury, when the heat
and heavy dust precipitated his symptoms. The doctor stated that the
claimant probably has UIP. He testified that repetitive exposure to dust
contributed to the severity and progression of the underlying lung disease,
2 Dr. Harber’s January 12, 2015 IME report and his forty-two-page
curriculum vitae were placed in evidence.
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and the repeated exposure to dust also accelerated the progression of the
UIP.
¶9 For the first time on appeal, PDS argues that the ALJ applied
an incorrect legal test in her award when she found the claimant’s industrial
injury contributed to his lung disease. It asserts that if the claimant
sustained a lung injury, it was a secondary injury that would only be
compensable if it was a “direct and natural result of the primary
compensable injury,” i.e., heat exhaustion. For that reason, the ALJ should
have applied the “compensable consequences” test found in Lou Grubb
Chevrolet v. Indus. Comm’n, 174 Ariz. 23, 26 (App. 1992).
¶10 In general, this court will not consider an issue on appeal that
was not raised before the ALJ. See T.W.M. Custom Framing v. Indus. Comm’n,
198 Ariz. 41, 44, ¶ 4 (App. 2000). This rule stems in part from the
requirement that a party must develop its factual record before the agency
and give the ALJ an opportunity to correct any errors. See Kessen v. Stewart,
195 Ariz. 488, 493, ¶ 19 (App. 1999). In the absence of a specific request for
review, we limit our appellate review to matters which are extant in the
record, such as objections to evidence, and the issue which is fundamental
upon review, the sufficiency of the evidence to support the award. Stephens
v. Indus. Comm’n, 114 Ariz. 92, 94-95 (App. 1977).
¶11 In the reply brief, PDS asserts that it preserved the issue for
appeal because “causation” of the claimant’s lung problems was the main
issue before the ALJ. While we agree that causation of the claimant’s lung
problems was at issue, PDS never put the ALJ on notice that it was asserting
that the claimant had an elevated burden of proof to establish causation.
For that reason, PDS has not preserved this argument for appeal.
¶12 Under Arizona’s workers’ compensation law, a compensable
claim exists when an industrial injury aggravates a preexisting disease to
the point that the worker becomes disabled. See Tatman v. Provincial Homes,
94 Ariz. 165, 168-69 (1963) (citation omitted); Montgomery Ward Co., Inc. v.
Indus. Comm’n, 14 Ariz. App. 21, 22-23 (1971). The industrial injury need
not be the sole cause of a disability so long as it contributed to or accelerated
the resulting injury. Romero v. Indus. Comm’n, 11 Ariz. App. 5, 7 (1969).3
3 In the area of workers’ compensation, an employer takes an
employee as he finds him. See Div. of Vocational Rehab. v. Indus. Comm’n, 125
Ariz. 585, 588 (App. 1980).
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¶13 The claimant must establish that his “disability was in fact
caused, ‘triggered’ or contributed to by the industrial injury, and was not
merely the result of the natural progression of the preexisting disease.”
Arellano v. Indus. Comm’n, 25 Ariz. App. 598, 604 (1976).
Whether the employment aggravated, accelerated, or
combined with the internal weakness or disease to produce
the disability is a question of fact, not law, and a finding of
fact on this point by the commission based on any medical
testimony . . . will not be disturbed on appeal.
1 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law
§ 9.02[5] at 9-21 (2015).
¶14 In this case, Dr. Harber testified that for the sake of ease, he
refers to the claimant’s lung condition as UIP. But he acknowledges that by
definition, that diagnosis means the cause is unknown, and in this case,
there is an external known cause.4 He elucidates this in his IME report.
The main consideration is whether this is truly “idiopathic”
(of unknown origin) or whether his occupational exposures
contributed. His age places him at the lower portion of the
range for developing the idiopathic form. The extremely
rapid onset of problems and rapid progress in course also is
not completely typical for idiopathic UIP.
There are many factors significantly supporting work
contribution. These include: . . . extensive exposure to soil
dust[,] . . . urea, diesel exhaust, and other materials.
It is therefore likely that his dust exposures, particularly
during his most recent employment, was a major contributing
factor to the presentation of his interstitial lung disease. At
the very least, they were substantially contributing to its
progression and to its precipitation. (emphasis added).
¶15 A medical opinion must be based on findings of medical fact
in order to support an award. Royal Globe Ins. Co. v. Indus. Comm’n, 20 Ariz.
App. 432, 434 (1973). These findings can come from the claimant’s history,
medical records, diagnostic tests, and examinations. Id. It is ALJ’s duty to
resolve medical conflicts, and in doing so, she may consider the experience
4 Dr. Harber referred to the claimant’s lung condition as a UIP-like
illness.
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and qualifications of the experts. See Tronsen v. Indus. Comm’n, 18 Ariz.
App. 149, 150-51 (1972). In this case, the ALJ adopted the opinion of
Dr. Harber over Dr. Schwartzberg and we find no error.
¶16 The claimant argues that the petitioner’s appeal is frivolous,
and he should be entitled to receive his attorney fees. Rule 25 of the Arizona
Rules of Civil Appellate Procedure allows appellate courts to sanction
parties for filing frivolous appeals. An appeal is frivolous when it is
“brought for an improper purpose or based on issues which are
unsupported by any reasonable legal theory.” Johnson v. Brimlow, 164 Ariz.
218, 222 (App. 1990) (citing Ariz. Tax Research Assoc. v. Dep’t of Revenue, 163
Ariz. 255, 258 (1989)). Granting sanctions pursuant to Rule 25 is done with
great reservation. Price v. Price, 134 Ariz. 112, 114 (App. 1982). Because we
conclude that the petitioner’s appeal was not brought for an improper
purpose, we decline to award attorney fees.
CONCLUSION
¶17 For all of the foregoing reasons, we affirm the award.
:AA
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