Southwest Desert Images v. Slaven

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
SOUTHWEST DESERT IMAGES, LLC,
Petitioner Employer,
COLORADO CASUALTY INSURANCE COMPANY,
Petitioner Insurer,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA,
Respondent,
DAN SLAVEN,
Respondent Employee,
SOUTHWEST DESERT IMAGES, LLC,
Respondent Employer,
COPPERPOINT MUTUAL INSURANCE COMPANY,
Respondent Insurer.
No. 2 CA-IC 2014-0007
Filed October 28, 2014
Special Action – Industrial Commission
ICA Claim Nos. 20081630150 and 20121150026 (Consolidated)
Insurer Nos. 0813656 and 604808420
Jacqueline Wohl, Administrative Law Judge
AWARD AFFIRMED
SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
COUNSEL
Klein, Doherty, Lundmark, Barberich & La Mont, P.C.
By Eric W. Slavin, Tucson
Counsel for Petitioners Employer and Insurer
The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Dix & Forman, P.C.
By J. Stephen Dix, Tucson
Counsel for Respondent Employee
James B. Stabler, Chief Counsel, CopperPoint Mutual Ins. Co.
By Veronique Pardee, Tucson
Counsel for Respondents Employer and Insurer
OPINION
Presiding Judge Miller authored the decision of the Court, in which
Judge Espinosa and Judge Vásquez concurred.
M I L L E R, Presiding Judge:
¶1 In this statutory special action, petitioner insurer
Colorado Casualty Insurance challenges the administrative law
judge’s (ALJ) application of the successive-injury doctrine in
awarding disability compensation and medical benefits to be
provided by Colorado Casualty, rather than State Compensation
Fund of Arizona (SCF Arizona), the employer’s former insurance
carrier. For the following reasons, we affirm the award.
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SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
Factual and Procedural Background
¶2 In 2008, petitioner employee Dan Slaven sustained an
industrial injury to his lower back while he was employed by
Southwest Desert Images (SDI). SDI’s then-insurance carrier, SCF
Arizona, accepted the claim. An independent medical examiner
diagnosed Slaven with a lumbar sprain/strain. The examiner also
noted that Slaven suffered from a disc protrusion on his left side but
because there were no left-side symptoms, he determined the
protrusion was unrelated to the industrial injury. SCF closed the
claim by notice in February 2010 with two percent impairment and
no reduced earning capacity. Slaven continued to feel some pain in
his back after the closure.
¶3 In April 2012, while working for SDI again, Slaven
injured his back while moving rocks to clear a drainage canal. He
did not feel pain until the next day, when the pain was so intense he
could not walk. Later, the pain began to radiate down his left side
and his left leg.
¶4 Slaven filed a petition to reopen the 2008 claim, which
SCF rejected. Slaven also filed a claim for a new injury, which was
rejected by SDI’s 2012 insurance carrier, Colorado Casualty. He filed
requests for hearing, and the ALJ consolidated the matters. During
the three-day hearing, a physician testifying on behalf of Slaven
opined that moving the rocks had caused a new injury and
exacerbated the 2008 injury. Colorado Casualty’s examiner
concluded she could not characterize Slaven’s increased pain as
either an aggravation of a preexisting condition or a new injury. The
ALJ issued a decision denying the 2008 petition to reopen and
concluding the April 2012 claim was a new compensable injury
pursuant to Arizona’s successive-injury doctrine. SDI and Colorado
Casualty sought review, and the ALJ affirmed the award. This
special action followed.
Application of Successive-Injury Doctrine
¶5 Colorado Casualty contends the ALJ erred in applying
the successive-injury doctrine based on the finding Slaven had
suffered a new injury without any evidence of an “organic change.”
SCF argues a finding of a new injury does not require an organic
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SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
change. We defer to the ALJ’s factual findings, but review questions
of law de novo. Munoz v. Indus. Comm’n, 234 Ariz. 145, ¶ 9, 318 P.3d
439, 442 (App. 2014).
¶6 Under the successive-injury doctrine, if a claimant elects
to file both reopening and new injury claims, and satisfies the
burden of proof as to both, then the carrier that is last in time is
wholly responsible for workers’ compensation benefits. Vishinskas v.
Indus. Comm’n, 147 Ariz. 574, 577-78, 711 P.2d 1247, 1250-51 (App.
1985). In Industrial Indemnity Company v. Industrial Commission, this
court detailed the elements required to shift liability. 162 Ariz. 503,
508, 784 P.2d 709, 714 (App. 1989) (Industrial Indemnity II). The latter
carrier may be responsible for symptomatic aggravation if additional
treatment is required or the industrial injury causes additional
disability. Id. at 508-09, 784 P.2d at 714-15. The second carrier also
may be responsible for the underlying condition if there is an
“organic change” to that condition. Id.
¶7 Liability for the aggravation and the underlying
condition are separate considerations. Id. at 509, 784 P.2d at 715; see
also Indus. Indem. Co. v. Indus. Comm’n, 152 Ariz. 195, 199, 731 P.2d 90,
94 (App. 1986) (Industrial Indemnity I) (finding anatomical change not
necessary to prove new injury when dispute concerns only
compensable consequences of aggravation, and not attempt to shift
liability for underlying condition). An incident results in a new
injury where it is a true aggravation, that is, it worsens or accelerates
a prior condition. New Pueblo Constr. v. Indus. Comm’n, 115 Ariz. 236,
237, 564 P.2d 925, 926 (App. 1977). There is no new injury if the
employment “merely provide[d] the situs for a manifestation of
symptoms related to the prior condition.” Id.
¶8 Colorado Casualty contends the requirements in
Industrial Indemnity II have been rejected by this court in a newer
case, Kaibab Industries v. Industrial Commission, 196 Ariz. 601, 2 P.3d
691 (App. 2000). It relies on the Kaibab court’s explanation of the
requirements of the successive-injury doctrine:
[A]n employee’s underlying condition may
become the responsibility of an employer if
the new work activity causes organic
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SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
change in the underlying condition. A new
employer also may be responsible for
symptomatic aggravation but only if it
amounts to an additional disability.
Therefore, when the aggravation is caused
by circumstances that would constitute the
new injury, the employer is liable for all
disabilities flowing from that aggravation.
Alternatively, when a change in condition
is but an aggravation of the first injury,
there is no new injury.
Kaibab Indus., 196 Ariz. 601, ¶¶ 12-13, 2 P.3d at 696 (internal citations
omitted). 1 Colorado Casualty argues that Kaibab requires an
“organic change” for a new injury, as anything else would be a mere
aggravation of the earlier injury.
¶9 Colorado Casualty’s reading of Kaibab is unavailing.
First, there is no indication in Kaibab that the court intended to
narrow the application of the successive-injury doctrine. See id.
¶¶ 12-13. Second, Kaibab explicitly states, as noted above, “A new
employer also may be responsible for symptomatic aggravation but
only if it amounts to an additional disability.” Id. ¶ 12. As stated in
Industrial Indemnity II, on which Kaibab relied, aggravation of an old
injury resulting in additional disability is compensable by the new
employer without an organic change. Id.; see also Indus. Indem. II, 162
Ariz. at 508-09, 784 P.2d at 714-15; Indus. Indem. I, 152 Ariz. at 199,
731 P.2d at 94. The presence of organic change from the new work
activity shifts liability to the current employer, but it is not a
condition precedent. See id.; Indus. Indem. II, 162 Ariz. at 508-09, 784
P.2d at 714-15; Indus. Indem. I, 152 Ariz. at 199, 731 P.2d at 94.
¶10 Colorado Casualty also argues, relying on Kaibab, that
there was no new injury here because Slaven merely aggravated his
1 Although Kaibab refers to new employers, the successive-
injury doctrine also may apply when the employer is the same, but
the insurance carrier has changed. See, e.g., Industrial Indemnity II,
162 Ariz. at 504, 784 P.2d at 710.
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SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
underlying condition. 196 Ariz. 603, ¶ 14, 2 P.3d at 696. In Kaibab,
the employee sustained two industrial injuries to her back in 1994
and 1995 that were accepted and ultimately closed. 196 Ariz. 603,
¶¶ 2-3, 2 P.3d at 694. Her third industrial injury occurred in 1997
when she felt sharp back pain while standing up after sitting for a
break. Id. ¶ 4. At a hearing regarding reopening the 1995 claim, two
doctors disagreed about whether the pain was related to the 1995
injury or the act of standing up in 1997. Id. ¶¶ 7-8. The ALJ resolved
the medical conflict in favor of the doctor who believed the pain
related to the earlier injury, and granted the petition to reopen that
claim. Id. ¶ 9. This court affirmed the award, concluding the
doctor’s testimony was sufficient to show that the 1995 injury was
merely aggravated in 1997 and that the successive-injury doctrine
did not apply. Id. ¶ 14.
¶11 Here, unlike in Kaibab, the ALJ resolved the conflicting
medical testimony in favor of the doctor who believed the later
industrial incident was a new injury. Dr. David Jacobs examined
Slaven at his request and testified that Slaven had suffered a work
injury while he was moving rocks in 2012, which aggravated his
2008 injury. He also testified that Slaven had more recently begun to
suffer from a soft tissue injury and impinged nerve causing him
radicular symptoms down his left side, which he did not have after
the 2008 injury.
¶12 Dr. Marjorie Eskay-Auerbach, who conducted an
independent medical examination at Colorado Casualty’s request,
found that Slaven suffered from axial low back pain, which at most
was “more intense” in 2012, but she did not believe an injury
occurred in 2012. Dr. Eskay-Auerbach admitted she would have
expected a 2008 sprain/strain to have resolved by 2012, and she was
not aware of Slaven’s newer left-sided symptoms, and therefore
could not comment on them.
¶13 The ALJ found the testimony of Dr. Jacobs to be the
“most probably correct and well founded.” We will not disturb the
ALJ’s resolution of medical conflicts unless it is “wholly
unreasonable,” and we do not do so here. Stainless Specialty Mfg. Co.
v. Indus. Comm’n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985). Slaven’s
testimony and the testimony of Dr. Jacobs support the ALJ’s findings
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SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.
Opinion of the Court
that the 2012 industrial injury was a new injury caused by his
moving rocks, not merely a new manifestation of the 2008 injury. See
Indus. Indem. I, 152 Ariz. at 199, 731 P.2d at 94 (successive-injury
doctrine applied when doctor testified underlying condition could
have been controlled, but work injury increased disability).
Disposition
¶14 For the foregoing reasons, the award is affirmed.
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