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Crum v. The Industrial Commission of Arizona

Court of Appeals of Arizona, Second Division

December 16, 2013

Raymond Dean Crum Jr., Petitioner Employee,
v.
The Industrial Commission of Arizona, Respondent, B.J. Cecil Trucking, Inc., Respondent Employer, Wausau Insurance Co., Respondent Insurer.

Not For Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).

SPECIAL ACTION – INDUSTRIAL COMMISSION ICA Claim No. 20120450018 Insurer No. WC197-A29282 The Honorable Jacqueline Wohl, Administrative Law Judge.

Tretschok, McNamara & Miller, P.C, Tucson By J. Patrick Butler Counsel for Petitioner Employee

The Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent

Klein, Doherty, Lundmark, Barberich & LaMont, P.C, Tucson By Eric W. Slavin Counsel for Respondents Employer and Insurer

Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.

MEMORANDUM DECISION

ESPINOSA, Judge

¶1 In this statutory special action, petitioner/employee Raymond Dean Crum Jr., challenges the portion of the administrative law judge's (ALJ) award denying his claim for permanent disability following a work-provoked seizure and his medical preclusion from returning to work as a commercial trucker. For the following reasons, we affirm the award.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to upholding the ALJ 's award. Southwest Gas Corp. v. Indus. Comm'n, 200 Ariz. 292, 2, 25 P.3d 1164, 1166 (App. 2001). Crum was employed by respondent/employer B.J. Cecil Trucking, Inc., for nearly twenty years as a tanker truck driver. He typically worked fifteen hours a day, five days a week. One morning in February 2011, after working over twenty-two hours, Crum suffered a seizure, and subsequently was prescribed Dilantin, an anti-seizure drug.[1] As a result, Crum lost his commercial driver license (CDL) and, consequently, his job with B.J. Cecil.[2]

¶3 After examining Crum's electrocephalography (EEG) results, Crum's neurologist determined he had an innate seizure tendency termed a "focal seizure disorder, " which increased susceptibility to provoked seizures.[3] The neurologist further determined that Crum's seizure had been provoked by sleep deprivation and testified the seizure tendency predated Crum's seizure. There was no evidence that the seizure tendency itself was in any way work-related.

¶4 By January 2012, the effects of the provoked seizure were resolved and Crum was determined to be medically stable. But he was required to take anti-seizure medicine for several years, with annual examinations by his neurologist. Both Crum's neurologist and the independent medical examination (IME) neurologist advised that Crum not work any job requiring sleep deprivation.

¶5 After Crum applied for disability benefits, hearings were held and the ALJ thereafter issued a decision awarding benefits from February 24, 2011 to January 4, 2012. The ALJ determined Crum to be "stable and stationary without permanent impairment" effective January 4, 2012. Crum requested a review of the decision, and the ALJ affirmed her findings and award. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A) and Ariz. R. P. Spec. Actions 10.

Discussion

¶6 Crum argues on appeal that the ALJ erred in not finding him permanently disabled. He notes that he suffered a work-induced seizure, was prescribed anti-seizure medication, and lost his CDL and job as a result. He asserts that under federal guidelines, he must be off his anti-seizure medication for ten years in order to regain his CDL.[4] He further asserts that because of his susceptibility to seizures provoked by long work hours and sleep deprivation, he never will be able to return to commercial truck driving due to its demanding work schedule. In reviewing findings and awards of the Industrial Commission, we defer to the ALJ's factual findings, but review questions of law de novo. Grammatico v. Indus. Comm'n, 208 Ariz. 10, 6, 90 P.3d 211, 213 (App. 2004).

¶7 Workers' compensation benefits are provided to a person who suffers an injury "arising out of and in the course of his employment." A.R.S. § 23-1021.[5] A claimant must establish all elements of his claim. One element is that the claimant suffered an injury and that the injury was causally related to his employment. Western Bonded Prods. v. Indus. Comm'n, 132 Ariz. 526, 527, 647 P.2d 657, 658 (App. 1982). Where the cause or the result of an injury is not apparent to a lay person, causation must be established by expert testimony. Id.; Hackworth v. Indus. Comm'n, 229 Ariz. 339, ¶ 9, 275 P.3d 638, 642 (App. 2012).

¶8 As Crum points out, an employer takes an employee with whatever peculiar vulnerabilities to injury the individual may have. Murphy v. Indus. Comm'n, 160 Ariz. 482, 486, 774 P.2d 221, 225 (1989). When an industrial injury aggravates a preexisting condition such that the employee is disabled, the result is compensable. See Tatman v. Provincial Homes, 94 Ariz. 165, 169, 382 P.2d 573, 576 (1963); see also Martinez v. Indus. Comm'n, 192 Ariz. 176, ¶ 17, 962 P.2d 903, 907 (1998) ("industrial accident need not be the sole cause of an injury, so long as it is a cause"). More is required, however, than merely demonstrating an aggravation of a preexisting disease or condition and an inability to work. Arellano v. Indus. Comm' n , 25 Ariz.App. 598, 603-04, 545 P.2d 446, 451-52 (1976).

¶9 Where a preexisting condition is aggravated, the claimant must show that an industrial injury caused the aggravation and that the aggravation has not terminated. Arellano, 25 Ariz.App. at 603-04, 545 P.2d at 451-52. Claimant must show "that the claimed permanent 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." Id. Where the industrial injury has resolved, and all that remains are the symptoms of the underlying condition, an ALJ properly may find no permanent disability as a result of the injury. See, e.g., Arellano, 25 Ariz.App. at 603-04, 545 P.2d at 451-52 (no permanent disability finding where work injury aggravated preexisting, but previously asymptomatic, degenerative arthritis of the spine, but continuing pain due to arthritis, not injury, which had resolved); Lamb v. Indus. Comm'n, 27 Ariz. App. 699, 701, 558 P.2d 727, 729 (1976) (back strain suffered on job no longer present, only symptoms of underlying preexisting degenerative disc disease, consequently no permanent disability finding).

¶10 The cases cited by Crum are not to the contrary. In those decisions, the claimant's disability was industrially-caused. In Hunter v. Indus. Comm'n, 130 Ariz. 59, 61, 633 P.2d 1052, 1054 (App. 1981), the petitioner developed a condition known as "meat wrapper's asthma, " which both medical witnesses agreed was caused by industrial exposure to fumes from polyvinyl chloride and would permanently preclude her from any employment requiring exposure to similar fumes or other lung irritants. This court held, "[b]ecause the uncontroverted medical testimony . . . is that petitioner's industrially-caused condition has permanently restricted her functional ability to return to work as a meat wrapper, " petitioner had met her burden of proving permanent functional impairment and could proceed to a second hearing to determine whether her impairment caused a loss of earning capacity. Id. at 62, 633 P.2d at 1055. The Florida cases Crum cites are similar in that the disability was caused by an occupation-induced disease. See Dayron Corp. v. Morehead, 509 So.2d 930, 931 (Fla. 1987) (petitioner developed acute contact dermatitis from coolant his employer had begun using; parties stipulated condition arose from employment); OBS Co. v. Freeney, 475 So.2d 947, 947 (Fla. App. 1985) (claimant developed contact dermatitis as a result of exposure to wet cement while working for employer).

¶11 In Crum's case, his work injury, the seizure, served to initiate an examination which exposed his underlying seizure tendency. Where the "evidence establishes a condition pre-existing the industrial injury, no worse after the industrial injury than before, and which is only coincidentally revealed by an investigation following the industrial injury, " this court has found the employer not liable for the results of the investigation. Makinson v. Indus. Comm'n, 134 Ariz. 246, 250, 655 P.2d 366, 370 (App. 1982) (psychoneurosis preceded accident, neither triggered, aggravated nor otherwise caused by accident); see also Ramonett v. Indus. Comm'n, 27 Ariz. App. 728, 731, 558 P.2d 923, 926 (App. 1976) ("where the only role the industrial episode has played is to precipitate an investigation, the employer should not be liable for the results of what the investigation reveals").

¶12 Because Crum's working conditions aggravated his underlying condition, leading to his provoked seizure, the seizure itself was compensable. However, once that episode was resolved, Crum's condition was restored to the status quo ante. He continues to have an underlying seizure tendency, and it is this condition that requires Crum to take anti-seizure medication for several years, and also compels him to work fewer hours than before. No medical evidence was presented that Crum's underlying seizure tendency was causally related to his employment.[6] See Simpson v. Indus. Comm'n, 189 Ariz. 340, 346, 942 P.2d 1172, 1178 (App. 1997) (claimant's burden to prove existence of industrially-related permanent impairment). Accordingly, although Crum's situation presents a compelling and sympathetic case, we are unable to say the ALJ committed any error of law, and we cannot deny that reasonable evidence supports a finding that, with the provoked seizure resolved, any further disability was not causally related to the employment-related injury.

Disposition

¶13 For the reasons stated above, the ALJ's award is affirmed.


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