Ford v. Industrial Com'n of Arizona

• Decision Date: 05 June 1985
• Docket Number: No. 17585-PR,17585-PR
• Citation: 145 Ariz. 509,703 P.2d 453
• Parties: Edward F. FORD, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Phelps Dodge Corporation, New Cornelia Branch, Respondent Employer, State Compensation Fund, Respondent Carrier.
• Court: Arizona Supreme Court

Page 453

703 P.2d 453

145 Ariz. 509

Edward F. FORD, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Phelps Dodge Corporation, New Cornelia Branch, Respondent Employer State Compensation Fund, Respondent Carrier.

No. 17585-PR.

Supreme Court of Arizona, In Banc.

June 5, 1985.

Reconsideration Denied Aug. 20, 1985.

Hocker & Axford by R. Kelly Hocker, Tempe, for petitioner

Sandra A. Day, Chief Counsel, Industrial Com'n, Phoenix, for Industrial Com'n.

Evans, Kitchel & Jencks by Julie A. Doherty, Phoenix, for Phelps Dodge and State Compensation Fund.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshear by J. Victor Stoffa, Phoenix, amicus curiae, for Transamerica Ins. Co.

Davis, Eppstein & Hall, P.C. by Robert W. Eppstein and Philip Hall, Phoenix, amicus curiae, for Southern Ariz. Workers' Compensation Atty. Ass'n.

FELDMAN, Justice.

Claimant is a disabled worker seeking benefits under the Arizona Workers' Compensation Act (the Act), A.R.S. § 23-901 et seq. The Act is constitutionally mandated to provide compensation for employees who suffer injury "from any accident arising out of and in the course of employment." Ariz. Const. art. 18 § 8. Claimant's disability is allegedly one which falls within the occupational disease portion of the Act.

The issues presented are, first, whether a claimant whose disability is attributable to a work-related disease must proceed under the special provisions of the Act relating to occupational disease, or whether he may elect to proceed under the general provisions relating to accidental injuries. The second question is whether, under the occupational disease provisions of the Act, compensation is limited to diseases in which work exposure was the sole cause of the condition or whether it must also be paid where work exposure was a contributing cause of the eventual disability.

We granted review to examine both issues, believing them to be matters of considerable public importance which have long beset our courts. Rule 23, Ariz.R.Civ.App.P.,

[145 Ariz. 511] 17A A.R.S. We have jurisdiction under Ariz. Const., art. 6, § 5(3).

FACTS

Claimant began work in the Phelps Dodge New Cornelia mine in May of 1959. He worked primarily in the crushing operation and was continually exposed to heavy concentrations of dust and other industrial irritants. For over twenty-two years of employment, claimant had colds and bronchial problems. He testified that he began coughing in about 1969 and from that point on he regularly coughed up mucous. The records introduced at the hearing indicate that claimant had indications of bronchitis as early as 1973. He was hospitalized in 1978 for a hernia operation and at that time also underwent respiratory therapy. In early 1979, claimant had a sudden onset of fever accompanied by a dry, hacking cough. He was treated at Phelps Dodge's New Cornelia hospital. X-rays at that time showed some lung infiltrates. According to the treating physician, Dr. Blaisdell, claimant's symptoms and the x-rays were compatible with a diagnosis that claimant had contracted an acute infection caused by a viral, bacterial, or fungal agent. Claimant was treated on that basis, and his fever improved, although the cough persisted. Claimant became so debilitated as a result of the cough that he was forced to retire in March of 1981. He testified at the hearing that at the time of his retirement he was weak, nervous, coughing, bringing up mucous, had chills and sweats and that he lost his breath with any exertion, no matter how minor.

In April of 1981, claimant was hospitalized at Good Samaritan Hospital in Phoenix. Dr. Serbin, a specialist in pulmonary diseases and internal medicine, was called to consult on claimant's pulmonary condition. Dr. Serbin later testified at the hearing that he could not reach a definite conclusion with respect to the cause of plaintiff's troubles. According to Dr. Serbin, none of plaintiff's symptoms were necessarily indicative of viral or bacterial infection; they might have been attributable to inhalation of dust or gas fumes at the work place. Dr. Serbin noted that claimant's coughing had "decreased significantly" since he had retired from work. He stated his opinion that something in the work environment had either caused or contributed to the cough. However, he later explained in his testimony that his recommendation that claimant not return to work was not based on an opinion that there was any causal relationship between the work environment and the cough, but only on his opinion that "any type of noxious stimulant to the lungs might aggravate [claimant's] pre-existing cough of undetermined etiology."

Another pulmonary specialist, Dr. Lipschultz, testified at the hearing. It was his opinion that "at the very least, the work environment exposure had significantly aggravated claimant's underlying condition." (Emphasis supplied.) Dr. Lipschultz stated that "if claimant had not been exposed to [the work environment], he would not have the kind of problem that he has today." On the other hand, Dr. Blaisdell testified that there was no causal relationship between the work exposure and claimant's disability. At the conclusion of the hearing, the administrative law judge (ALJ) denied all compensation. Although claimant had sought benefits under the general provisions of the Act, the ALJ held that the claim "must be considered under A.R.S. § 23-901(12)(c) and § 23-901.01, the occupational disease sections of the [Act].... The ... testimony and reports do not establish the six conjunctive compensability requirements of 23-901.01."

In affirming the award, the court of appeals held that the occupational disease provisions of the Act are exclusive and must be applied to claims which fit the concept of occupational disease, as defined in the Act. It held, further, that no compensation may be paid to a worker whose pre-existing non-occupational disease is aggravated by the conditions of his employment. Claimant argues in his petition for review that the combined effect of these two holdings is to unconstitutionally diminish We hold that a condition which is an occupational disease under the definitions of the Act must be considered under the special provisions applicable thereto. To that extent we approve the holding of the court of appeals. We hold, further, however, that the Act may not be interpreted so restrictively as to limit payment of compensation for an occupational disease only to cases where claimant is able to establish that work exposure was the sole cause of the ultimate, disabling disease.

workers' compensation coverage from that mandated by article 18, § 8.

CHARACTERIZATION OF THE CLAIM

The first question we address is whether a claimant suffering from an "occupational disease" may proceed with his claim as if it were one arising out of an "ordinary accident" related to his employment, or whether he must proceed under the special provisions of the Workers' Compensation Act relating to occupational disease. This question, which would seem to answer itself has vexed Arizona courts for over fifty years. One of the findings of the ALJ in this case was that claimant had not met the burden of complying with the requirements of A.R.S. § 23-901.01. Claimant argues that he cannot be held to those requirements because he had an election to proceed under either the "ordinary" workers' compensation law or the Occupational Disease Law and its special requirements as set forth in A.R.S. § 23-901(12)(c) and §§ 23-901.01 to 23-901.05. ¹

In Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017 (1933), this court first considered whether the workers' compensation statute covered a situation where the conditions of employment had aggravated an underlying heart condition and brought about an acute attack, causing death. Pointing out that § 1421 of the Revised Code of 1928 provided for compensation when an employee had been "injured ... by accident," this court acknowledged that "accident" might refer either to the unexpected event which was the cause of the injury or to the later, unexpected manifestation of the injury. Under the first interpretation, an occupational disease resulting from a long continued work exposure would not be covered because it would not have been caused by an "accident." Under the second interpretation, however, there would be compensation because the injury--the manifestation of the disease--was "accidental." Since the statute contained requirements of both injury and accident, this court concluded "that on reason, notwithstanding there are many authorities to the contrary, ... the word 'accident' refers to the cause of the injury and not to the injury itself." Id. at 445, 26 P.2d at 1021. Thus, we held that compensation could be paid only when the result was caused by "an undesigned, sudden and unexpected event." Id. at 446, 26 P.2d at 1021.

Following Pierce, compensation was not paid for industrial diseases unless an unexpected event had caused an injury which, in turn, "produced or aggravated" the disease. Id. Disease caused by gradual day-to-day exposure in the work place was uncompensated. See, e.g., Rowe v. Goldberg Film Delivery Lines, 50 Ariz. 349, 72 P.2d 432 (1937). In 1943, the legislature enacted the first occupational disease law. Laws 1943, Ch. 26. Under this statute, compensable occupational diseases were limited to those expressly listed, and the benefits were "substantially less favorable to the disabled workman than those available under the general workmen's compensation laws." Phoenix Pest Control v. Industrial Commission, 134 Ariz. 215, 218, 655 P.2d 39, 42 (App.1982). In the first case discussing that statute, this court followed Pierce, holding that the right to compensation for disability resulting from work-related disease was not recognized at common law unless "incidental to some other acts of negligence," and that compensation for occupational diseases...