Aguiar v. Industrial Com'n of Arizona

• Decision Date: 12 April 1990
• Docket Number: CA-IC,No. 1,1
• Citation: Aguiar v. Industrial Com'n of Arizona, 797 P.2d 711, 165 Ariz. 172 (Ariz. App. 1990)
• Parties: Maria De Jesus AGUIAR, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Power Produce, Respondent Employer, Paula Insurance Company, c/o Pan American Underwriters, Respondent Carrier. 88-122.
• Court: Arizona Court of Appeals

Page 711

797 P.2d 711

165 Ariz. 172

Maria De Jesus AGUIAR, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Power Produce, Respondent Employer Paula Insurance Company, c/o Pan American Underwriters, Respondent Carrier.

No. 1 CA-IC 88-122.

Court of Appeals of Arizona Division 1, Department D.

April 12, 1990.

Review Denied Sept. 18, 1990.

Ely, Bettini & Ulman by J. Wayne Turley, Phoenix, for petitioner employee.

Anita R. Valainis, Chief Counsel, Industrial Com'n of Arizona, Phoenix, for respondent.

Spencer K. Johnston, Phoenix, for respondent employer & carrier.

OPINION

FIDEL, Judge.

The Industrial Commission denied a widow's claim for benefits on the basis of a cardiologist's opinion that the deceased employee's myocardial infarction and cardiac arrest were unrelated to his work. We conclude upon appeal that the cardiologist's testimony was invalid because it was grounded in the premise that ordinary labor cannot cause heart attacks, a premise that our legislature has rejected in A.R.S. § 23-1043.01(A).

FACTS

Pablo Aguiar, a 58-year old farm worker, died on September 26, 1986, after a sudden onset of chest pain while harvesting lettuce for Power Produce, the respondent employer.

The harvest began between 7:00 and 8:00 a.m. Weather and field conditions were good. Lettuce pickers work in groups of three, two cutters and one packer, rotating tasks throughout the day. On this morning, Mr. Aguiar had been working as a packer for about one hour. A packer carries loads of empty boxes to the harvest area, follows the cutters, and packs 24 heads of lettuce in each box. Other workers (loaders) load full boxes onto trucks. Packing involves repetitive bending and stooping. Each empty box weighs approximately 2.5 pounds.

Mr. Aguiar had carried two loads of 10 to 20 boxes to the harvest area that morning. Whether he had also packed some boxes was disputed, but the administrative law judge concluded that he had done so. While carrying the second load, Mr. Aguiar experienced sudden and severe chest pain. His co-workers offered immediate medical assistance, but he chose to rest instead. About an hour later, when his condition noticeably worsened, he was driven toward a hospital but died en route.

No autopsy was performed. Mr. Aguiar's medical history included hypertension and diabetes. While these, like his age and sex, were risk factors for heart disease, there was no evidence of prior heart-related treatment or complaints.

EXPERT TESTIMONY

Two cardiologists testified at the Industrial Commission hearing. Paul D. Anderson was called by the widow. Herschel M. Richter was called by the respondents. Both doctors agreed that the probable cause of death was cardiac arrest resulting from myocardial infarction, that this infarction probably resulted from underlying cardiovascular disease and a blood clot, and that the underlying disease was unrelated to Mr. Aguiar's work. The doctors disagreed, however, whether the clot formation was work-induced.

Dr. Anderson testified that the two were related:

First of all, I think that Mr. Aguiar had significant coronary disease in place when he went to work that morning, and that that arteriosclerotic coronary disease ... itself, was not work related. But as he was working that day, and I understand that he was packing for two men who were cutting, as he did that heavy work, he extended himself beyond what his heart was capable of performing. And that led to a disproportionate amount of blood supply at the heart as compared to its needs. That leads to an unstable situation which can, and in this particular case, [did] lead to, most likely, a formation of a clot closing off the artery, unstable cardiac rhythm situation, and cardiac death.

Dr. Richter offered a contrary opinion, which we will examine in detail in the following portions of this opinion. The administrative law judge concluded on the basis of Dr. Richter's opinion that work activities had not substantially contributed to the cause of Mr. Aguiar's death. Compensability was denied, the award was affirmed on administrative review, and this special action followed.

FACTUAL SUFFICIENCY OF DR. RICHTER'S OPINION

Mrs. Aguiar first contends that Dr. Richter's opinion was legally invalid because it was based upon an inaccurate factual assumption concerning the extent of Mr. Aguiar's work on the morning of his death. Dr. Richter testified on direct examination that he thought Mr. Aguiar's only work had been to carry two loads of boxes. The administrative law judge found that Mr. Aguiar had also done some packing.

An accurate factual foundation is a necessary element of a legally sufficient opinion. Desert Insulations Inc. v. Indus. Comm'n, 134 Ariz. 148, 151, 654 P.2d 296, 299 (App.1982). However, any factual inaccuracy in Dr. Richter's assumptions during direct examination was cured during cross-examination when, in the course of a hypothetical question, Mr. Aguiar's packing activities were described in extensive detail. This exchange followed:

APPLICANT'S ATTORNEY: If you assume that level of physical activity [a level that included packing as well as carrying], are you prepared to say that the work activity had no causal relationship whatsoever to Mr. Aguiar's death?

DR. RICHTER: Well, in these matters you have to form an opinion and since he was used to working at this rate--that's my assumption--for a number of years--I don't suppose he packed lettuce any quicker at Willcox than he did anywhere else--I would still feel that this was a usual activity for him and that his illness was not related to his work activities.

Q: But are you prepared to say, to a reasonable degree of medical probability, that the work activities had nothing whatsoever [to do with the death] in terms of causative factors?

A: Yes.

In answering these questions, Dr. Richter made it clear that his opinion did not depend on the assumption that Mr. Aguiar had done no packing on the morning of his death. Thus, we find no invalidity to the factual assumptions underlying Dr. Richter's opinion. Dr. Richter also made it clear, however, that he considered it a fact of dispositive importance that Mr. Aguiar had been working at no more than a customary level of exertion when his heart attack occurred. We turn to the issue that arises from this testimony.

STATUTORY INVALIDITY OF DR. RICHTER'S OPINION

Mrs. Aguiar argues that Dr. Richter's opinion was legally invalid because it was grounded in the statutorily invalid assumption that customary labor cannot cause heart attacks. Her argument is based on A.R.S. § 23-1043.01 (1980).

Compensability for Heart Illness

In 1980, the Arizona Legislature enacted a statute relating to the compensability of "heart-related and mental cases." The pertinent sections of the statute provide:

A. A heart-related or perivascular injury, illness or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this chapter unless some injury, stress or exertion related to the employment was a substantial contributing cause of the heart-related or perivascular injury, illness or death.

B. A mental injury, illness or condition shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this chapter unless some unexpected, unusual or extraordinary stress related to the employment or some physical injury related to the employment was a substantial contributing cause of the mental injury, illness or condition.

A.R.S. § 23-1043.01(A) and (B) (1980) (emphasis added).

These companion provisions are almost identical, and they share the requirement that circumstances related to employment constitute a substantial contributing cause. They differ, however, in one significant respect. The subsection concerning mental cases requires that the contributing cause be "unexpected, unusual or extraordinary"; the subsection concerning heart-related cases does not. We believe that this disparity was a deliberate response to a contemporaneous development in Arizona's workers' compensation case law.

In 1971, this court called for legislative resolution of a dilemma posed in workers' compensation cases by medical disagreement over whether a worker's activity must be unusual to precipitate a heart attack. Stotts v. Indus. Comm'n, 15 Ariz.App. 290, 293, 488 P.2d 495, 498 (1971). The court observed that "some members of the medical profession require as a fact that the activity of the workman which gives rise to the heart attack be 'unusual' ... in order to establish the causal connection between that activity and the heart attack." Id. at 292, 488 P.2d at 497 (emphasis added). Other physicians believe that heart attacks can be precipitated by customary occupational exertion or stress. The court lamented the "hodge-podge" of inconsistent decisions that resulted from leaving the choice between these schools to case-by-case adjudicative resolution. Id. at 293, 488 P.2d at 498.

The question whether customary occupational stress or exertion can precipitate a heart attack is common to many cases. Yet, as we observed in Stotts, that question, if submitted as a matter of adjudicative fact, can be inconsistently resolved from case to case, even in cases where the same experts testify, depending on the fortuity of the administrative law judge assigned the case and the school of medical thought that judge finds more persuasive. 15 Ariz.App. at 293, 488 P.2d at 498. Indeed, the same judge might shift schools from case to case from day to day, and yet each time command deference as the fact finder charged to resolve conflicting expert testimony.

Stotts concluded by calling on the legislature to impose a policy resolution to the conflict:

While under the evidence of this case we must affirm the decision of the Industrial Commission, we cannot help but wonder whether the industrial heart...