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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Not For Publication See Ariz.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 ...


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