Tenney v. Biesemeyer mfg/travelers ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MAVEN TENNEY, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
BIESEMEYER MFG, Respondent Employer,
TRAVELERS PROP CASUALTY CO OF AMERICA, Respondent Carrier.
No. 1 CA-IC 21-0005
FILED 9-28-2021
Special Action - Industrial Commission
ICA Claim No. 20192-910545
Carrier Claim No. FQM3307
The Honorable C. Andrew Campbell, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Maven Tenney, Woodruff
Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Lundmark Barberich LaMont & Slavin PC, Phoenix
By R. Todd Lundmark, Eric W. Slavin
Counsel for Respondent Employer and Carrier
TENNEY v. BIESEMEYER MFG/TRAVELERS
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge David B. Gass joined.
M O R S E, Judge:
¶1 Maven Tenney seeks review of an Industrial Commission of
Arizona ("ICA") Award, finding his worker's compensation claim not
compensable. The administrative law judge ("ALJ") received Tenney's
evidence and found it did not contain medical support for the claim. We
agree and affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 From 1999 through May 2001, Tenney worked as a gas
tungsten arc welder on an assembly line for Respondent Biesemeyer Mfg.
He testified that for about six months at the end of that period, his
supervisor erected a plastic, opaque sheet surrounding his work area to
protect the vision of the workers around him from the bright light made by
the welding process. This barrier caused him to breathe in fumes that he
believes were toxic and caused lung damage or some other harm.
However, he did not file a worker's compensation claim until October 2019.
Respondent Travelers Property Casualty Co. of America denied Tenney's
claim, and he requested a hearing.
¶3 In preparation for the hearing, the parties submitted medical
records. One of these records is a report from Tenney's ER visit in July 2019.
At that time, Tenney complained of exhaustion, but no significant findings
were made, and Tenney left the ER before he was discharged because he
was "feeling much better." Tenney submitted an x-ray taken in November
2019. The report accompanying the x-ray shows that Tenney's lungs were
"clear" and he had "no active cardiopulmonary disease." Finally,
Respondents submitted an Independent Medical Examination ("IME")
report from Dr. Daniel E. Brooks, a toxicologist who reviewed the available
records and conducted an examination of Tenney on November 5, 2020. Dr.
Brooks found no medical evidence of any pulmonary injury that could be
related to the welding job in 2001. At the hearing, only Tenney testified.
After Tenney described the work environment he believes caused his
injury, he admitted no doctor has ever diagnosed an injury related to his
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TENNEY v. BIESEMEYER MFG/TRAVELERS
Decision of the Court
claim. He does not have a primary care physician and has not for the past
decade.
¶4 The ALJ found that Tenney failed to prove his claim due to a
lack of medical expert testimony showing an injury and causally relating it
to the work events that he testified about. After his request for
administrative review was denied, Tenney timely appealed. We have
jurisdiction under A.R.S. §§ 12-120.21(B) and 23-951(A).
DISCUSSION
¶5 In reviewing the ICA's findings and awards, we defer to the
factual findings of the ALJ but review questions of law de novo. Young v.
Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We consider the
evidence in the light most favorable to upholding the ALJ's award. Lovitch
v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).
¶6 The ALJ correctly set forth the applicable law in this case in
the Award. To show compensability, a claimant has the burden to prove
an injury by accident arising out of and in the course of employment.
Malinski v. Indus. Comm'n, 103 Ariz. 213, 216 (1968). If the work connection
to an injury is not apparent to a non-specialist, expert medical testimony is
necessary to prove compensability. Stainless Specialty Mfg. Co. v. Indus.
Comm'n, 144 Ariz. 12, 19 (1985) ("Unless a causal connection is clearly
apparent to a lay person, the relationship must be established by expert
medical testimony."). In this case, Tenney has shown neither that he was
injured by the 2001 event nor, if there is an injury, that the 2001 events
caused such injury. He was required to present expert medical opinion that
he had an injury caused by breathing the welding fumes in 2001. He did
not provide that evidence, and so his claim must fail.
CONCLUSION
¶7 We affirm the Award.
AMY M. WOOD • Clerk of the Court
FILED: AA
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