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PCL Construction Enterprises, Inc. v. The Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

October 1, 2015

PCL CONSTRUCTION ENTERPRISES, INC., Petitioner Employer,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, ZURICH AMERICAN INSURANCE GROUP, Petitioner Carrier, JEFFERY J. BYERLY, Respondent Employee.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Special Action - Industrial Commission ICA Claim No. 20132-030280 The Honorable Rachel C. Morgan, Administrative Law Judge

Jardine, Baker, Hickman & Houston, Phoenix By Stephen M. Venezia Counsel for Petitioners Employer and Carrier

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

Jeffery J. Byerly, Chino Valley Pro per Respondent Employee

Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.

MEMORANDUM DECISION

NORRIS, Judge

¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review finding the respondent employee, Jeffery J. Byerly, sustained a compensable industrial injury. Petitioner Employer and Petitioner Carrier (collectively, "Petitioners") argue, first, Byerly failed to prove his injury arose out of and in the course of his employment; second, the medical evidence adopted by the administrative law judge ("ALJ") was legally insufficient; and third, the ALJ abused her discretion by finding Byerly's claim compensable. Because Byerly met his burden of proving a compensable claim, Toto v. Indus. Comm'n, 144 Ariz. 508, 512, 698 P.2d 753, 757 (App. 1985) (claimant bears burden of proving all elements of a compensable claim), the ALJ did not abuse her discretion in finding in his favor. Accordingly, we affirm the award.

FACTS AND PROCEDURAL HISTORY

¶2 Petitioner Employer, PCL Construction Enterprises, Inc. ("PCL"), employed Byerly as a laborer to remove forming materials used to hold concrete around an 18-foot-tall tank. Byerly wore a full safety harness for fall protection while removing the forming materials from the concrete. On June 13, 2013, after spending the day removing forms and wearing a safety harness, Byerly noticed numbness down the front of his legs and on the top of his left foot.

¶3 On his next work day, June 17, 2013, Byerly reported his symptoms to his foreman who then reported Byerly's symptoms to the job superintendent. The superintendent instructed Byerly to "stay out" of the safety harness for a couple of days and see how he felt. Because Byerly was experiencing ongoing numbness, on June 21, 2013, PCL sent Byerly to William Dabney, M.D. Byerly told Dr. Dabney he believed his injury was work related, although he did not know specifically what had caused it. Byerly also reported he had been "hanging in a sling from the wall . . . for a month when this started." Dr. Dabney diagnosed sciatic neuralgia and prescribed over-the-counter medication and rest. He also recommended Byerly see a neurologist.

¶4 When the numbness continued, PCL sent Byerly to Gregory S. Johnston, M.D. On July 8, 2013, Dr. Johnston diagnosed "[b]ilateral anterior thigh numbness with left dorsal foot numbness" and noted Byerly "appear[ed] to have irritated the anterior femoral cutaneous nerve." Dr. Johnston prescribed "a course of steroids in an attempt to calm his symptoms." At a follow-up visit on July 15, 2013, Dr. Johnston diagnosed "[p]ersistent numbness in both anterior legs, not true sciatic symptoms. It is believed that symptoms are associated with wearing the harness."[1] At Dr. Johnston's recommendation, Byerly underwent an MRI without contrast on July 24, 2013. The MRI report stated:

CLINICAL HISTORY: Low back pain with numbness in anterior thighs and down left leg since June 13 ...

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