Estate of Plemons v. Industrial Com'n of Arizona

• Decision Date: 17 July 1990
• Docket Number: CA-IC,No. 2,2
• Citation: Estate of Plemons v. Industrial Com'n of Arizona, 806 P.2d 889, 167 Ariz. 300 (Ariz. App. 1990)
• Parties: ESTATE OF Robert L. PLEMONS, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, J Jon Corporation, Respondent Employer, State Compensation Fund, Respondent Insurance Carrier. Clara B. PLEMONS (Widow), Robert L. Plemons (Deceased), Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, J Jon Corporation, Respondent Employer, State Compensation Fund, Respondent Insurance Carrier. 89-0051.
• Court: Arizona Court of Appeals

Page 889

806 P.2d 889

167 Ariz. 300

ESTATE OF Robert L. PLEMONS, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, J Jon Corporation, Respondent Employer, State Compensation Fund, Respondent Insurance Carrier.

Clara B. PLEMONS (Widow), Robert L. Plemons (Deceased), Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, J Jon Corporation, Respondent Employer, State Compensation Fund, Respondent Insurance Carrier.

No. 2 CA-IC 89-0051.

Court of Appeals of Arizona Division 2, Department B.

July 17, 1990.

Review Denied March 19, 1991.

Tretschok, McNamara & Clymer, P.C. by Brian I. Clymer, Tucson, for petitioner employee and petitioner.

[167 Ariz. 301] The Industrial Com'n of Arizona by Anita R. Valainis, Chief Counsel, Phoenix, for respondent.

State Compensation Fund by W. Smith Michael, Tucson, for respondents employer and carrier.

OPINION

FERNANDEZ, Chief Judge.

In this workers' compensation case, the employee's estate and his widow contend that the administrative law judge (ALJ) erred in failing to apply the unexplained death presumption and in deeming the widow's claim denied although no notice of claim status had been issued. We find no error and affirm the award.

Robert Plemons's body was found on June 11, 1987 near one of the portable toilets that he emptied and cleaned on the route he followed for his employer, J Jon Corporation. Plemons's duties were to pump out the toilet waste, scrub the tanks and walls, and fill the toilets with chemicals. The acting manager testified that at the time of his death, Plemons was assigned to clean 65 to 75 toilets in Sun City Vistoso and San Manuel. The chemical used by J Jon at that time was called Kan Kleen, and Plemons had been handling it for about two and a half years. Plemons's wife testified that he had looked gray and ill on the morning of his death and that she had urged him to stay home from work. Two co-workers testified that his appearance that day and the day before was the same as it was any other day.

Pathologist Dr. Allen Jones, who performed the autopsy, testified that Plemons had a 97 to 98% sclerosis of the most important artery of the heart, the left anterior descending artery, that a number of his organs reflected hardening of the arteries, that portions of his heart showed the effects of prior infarcts, and that he had suffered a fatal cardiac arrhythmia. An industrial health specialist and an industrial hygienist gave conflicting opinions. One testified that both the temperature on the date of his death and his exposure to the formaldehyde in Kan Kleen would have affected Plemons. The other testified that neither the heat stress nor the chemical would have affected him. A specialist in internal medicine and pulmonary disease testified that there was no relationship between Plemons's work activities and his death. A specialist in hematology and oncology testified that Plemons suffered from a lymphoma but that it had required no treatment. He also testified that Plemons had a fifteen-year history of diabetes.

Dr. Sullivan, an emergency medicine and medical toxicology specialist, testified that Plemons had a compromised health status at the time he died and that any increase in his physical activity could have caused the arrhythmia. On cross-examination, he testified that Plemons was "a walking time bomb."

Cardiologist Dr. Brendon Phibbs testified that Plemons died from cardiac arrhythmia brought on by severe coronary artery disease. He testified that Plemons's death had nothing to do with his occupation. In addition, he testified that ordinary life activities can precipitate cardiac arrhythmia in persons with severe heart disease such as Plemons had. The ALJ resolved the conflict in medical opinions in favor of Dr. Phibbs.

Two claims were filed, one by Plemons's estate for medical expenses incurred because of his death, and one by his widow. The Industrial Commission notified the carrier of the widow's claim on October 26, 1987. The carrier did not issue a notice of claim status as to that claim. At an informal conference on May 20, 1988, the ALJ found that the widow's claim was deemed to be denied.

During the several hearings held in this case, petitioner contended that the deceased's work activities had caused or contributed to his death. Petitioner attempted to present evidence that the chemical mixture used to clean the toilets had caused or contributed to his death. In addition, petitioner argued that the deceased had sustained cardiac arrhythmia because of job stress and/or heat stress and that his work activities were a substantial contributing cause of his death.

The ALJ found that petitioner had not established that job-related stress and exertion were a substantial contributing cause of Plemons's death and denied both claims. Petitioner was awarded penalty benefits on her widow's claim from October 26, 1987, the date the claim was filed, to May 20, 1988, the date the ALJ had deemed the claim denied.

On review, petitioner contends that the ALJ erred in failing to consider and apply the unexplained death presumption, arguing that the findings were insufficient under the holding of Post v. Industrial Commission, 160 Ariz. 4, 770 P.2d 308 (1989). She also contends that the ALJ erred in awarding penalty benefits only through May 20, 1988, noting that the carrier never sent a notice of claim status denying the claim.

UNEXPLAINED DEATH PRESUMPTION

In her post-hearing memorandum, petitioner argued that the unexplained death presumption should apply. Our supreme court has explained the presumption as follows:

'[W]hen it is shown that an employee was found dead at a place where his duties required him to be, or where he might properly have been in the performance of his duties during the hours of his work, in the absence of evidence that he was not engaged in his master's business, there is a presumption that the accident...