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City of Tucson v. The Industrial Commission of Arizona

Court of Appeals of Arizona, Second Division

September 30, 2014

City of Tucson, Petitioner Employer,
The Industrial Commission of Arizona, Respondent, Pinnacle Risk Management, Petitioner Insurer, Scott M. Woodworth, Respondent Employee.

Special Action – Industrial Commission ICA Claim No. 201304030150 Insurer No. WCTUC2013716595 The Honorable Thomas A. Ireson, Administrative Law Judge

Moeller Law Office, Tucson By M. Ted Moeller Counsel for Petitioners Employer and Insurer

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

Tretschok, McNamara & Miller, P.C, Tucson By Patrick R. McNamara Counsel for Respondent Employee

Presiding Judge Miller authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.


MILLER, Presiding Judge:

¶1 In this statutory petition for special action, petitioners City of Tucson and Pinnacle Risk Management (collectively "Pinnacle") challenge the administrative law judge's (ALJ) findings and decision upon review affirming his award for a compensable hernia claim. Pinnacle contends there was no evidence Woodworth was incapable of feeling pain in the hernia region and that he failed to meet all the statutory requirements for a compensable hernia injury claim. Because the ALJ did not err, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to affirming the Industrial Commission's findings and award. Polanco v. Indus. Comm'n, 214 Ariz. 489, 2, 154 P.3d 391, 392-93 (App. 2007). In February 2013, Woodworth, a captain with the City of Tucson Fire Department, responded to an emergency call that required Woodworth and a colleague to lift an unconscious elderly woman from a couch to a gurney. About an hour later, Woodworth returned to the fire station and took a shower, whereupon he noticed that he had a golf-ball-sized bulge on his left groin. Woodworth immediately notified his supervisor as well as the Tucson Fire Department physician, Dr. Wayne Peate, in accordance with department policy. Peate saw Woodworth two days later and referred him to a surgeon.

¶3 Woodworth's initial workers' compensation claim was denied, and he requested a hearing on the issue of whether the injury was compensable. At the hearing, Woodworth testified that he had not experienced any pain related to the hernia. He also stated that he had previously suffered a hernia on his right side some twelve years prior to the February 2013 incident and that he did not have any pain associated with that hernia either.

¶4 Peate had diagnosed Woodworth with a left inguinal hernia and opined, to a reasonable medical probability, that Woodworth's lifting and moving an unconscious patient in February 2013 caused the injury. Peate also testified that some individuals do not experience pain when suffering a hernia injury. Pinnacle's independent medical examiner, Dr. Raymond Schumacher, was not able to identify to a reasonable medical probability the cause of Woodworth's February 2013 hernia and opined that if a hernia was caused by a strain or a blow, it would be accompanied by pain.

¶5 After three evidentiary hearings, the ALJ issued a decision finding Woodworth's claim compensable under the hernia statute, A.R.S. § 23-1043(2). [1] Section 23-1043(2) sets forth four requirements for a claim to be compensable: (a) the immediate cause was a severe strain or blow; (b) the hernia immediately descended following the cause; (c) the cause was accompanied by severe pain; and, (d) the claimant noticed the hernia and immediately communicated as much to one or more persons. In his ruling, the ALJ conceded that the claim would not be compensable under a strict interpretation of the statute, but found that it should be liberally construed given the unique facts of this case. Accordingly, the ALJ adopted Peate's opinions as the more probably correct and found the lifting incident caused the hernia discovered by Woodworth a few hours later. Pinnacle filed a request for review, and the ALJ affirmed. This petition for special action followed.

Inability to Feel Pain Associated with a Hernia

¶6 Pinnacle first argues the record lacked any evidence to support the ALJ's finding that, for some anatomic or physiologic reason, Woodworth did not experience pain associated with herniation. We will not disturb an ALJ's findings of fact so long as it is substantiated by competent evidence. See Preuss v. ...

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