Phelps v. Industrial Com'n of Arizona, CV

• Decision Date: 15 December 1987
• Docket Number: No. CV,CV
• Court: Arizona Supreme Court
• Parties: Hensel PHELPS, Petitioner Employer, Aetna Casualty & Surety Co., Petitioner Carrier, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Walter Dice, Respondent Employee. 86-0604-PR.

Page 1200

747 P.2d 1200

155 Ariz. 501

Hensel PHELPS, Petitioner Employer, Aetna Casualty & Surety Co., Petitioner Carrier, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Walter Dice, Respondent Employee.

No. CV 86-0604-PR.

Supreme Court of Arizona,

In Banc.

Dec. 15, 1987.

Bury, Moeller, Humphrey & O'Meara by J. Michael Moeller and Marshall Humphrey III, Tucson, for petitioner employer/carrier.

Dennis P. Kavanaugh, Chief Counsel, Phoenix, for respondent Indus. Com'n.

Dix, Rehling & Waterman by Charles G. Rehling II, Tucson, for respondent/employee Walter Dice.

CAMERON, Justice.

I. JURISDICTION

Walter Dice, petitioner, seeks review of a court of appeals' decision which set aside an award of the Industrial Commission of Arizona (Commission). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 23-948.

II. QUESTION PRESENTED

We must determine whether the testimony of the treating physician establishes a compensable heart-related injury meeting the requirements of A.R.S. § 23-1043.01(A).

III. FACTS

Petitioner severely fractured his left leg in seven places within the scope and course of his employment on 24 November 1980. From the date of the accident until release by his physician in August 1984, petitioner received temporary workers' compensation benefits. During the period December 1983 to September 1984, petitioner was unemployed due to recurring stability problems with his leg. On 8 September 1984, while unloading building materials, petitioner experienced severe chest pains. Petitioner was hospitalized and diagnosed as suffering from a myocardial infarction. Petitioner subsequently underwent surgery for a quadruple by-pass.

In December 1984, the workers' compensation insurance carrier, Aetna Casualty & Surety Company, terminated temporary compensation benefits. In March 1985, pursuant to A.R.S. § 23-1061(J), petitioner filed a new report of injury and petitioned to reopen the claim. At the hearing, all parties stipulated to a permanent partial disability of the petitioner's leg.

The issue presented to the administrative law judge by the evidence was whether petitioner's myocardial infarction was related to the industrial injury. At a deposition, Dr. Katzenberg testified, in part, as follows:

MR. REHLING [petitioner's attorney]: I think our claim was that the inactivity may have masked the evidence of heart disease because he was inactive and he was eventually prescribed to become as active as possible, so he's following normal medical activities, advice. There is no criticism there, and the activities he was performing at the time due to his weakened leg, caused him to modify his lifting mechanics so as to cause a great strain on lifting; he eventually had to hurl one hundred pound bags of cement due to the weakness of his leg, because he couldn't squat to lift it from his truck. That is the essence of our claim. It is multifaceted.

Q: Okay. Assume that to be true, I still want to know whether there is anything other than a possible connection that you have described it.

A: [Dr. Katzenberg] No. I think possible has to be the word used to describe the connection.

Dr. Katzenberg testified at the hearing on direct examination that the unloading activity performed by petitioner constituted an extreme exertion of effort and that it was reasonably, medically probable that the effort contributed to the onset of the heart attack. He also concluded that the effort of lifting and hurling the bags due to the modified lifting mechanics would be a substantial contributing cause of the heart attack. He further opined that the inactivity due to the industrial leg injury masked the symptoms of coronary artery disease as "a reasonable hypothesis."

On cross-examination, Dr. Katzenberg was even more explicit. He was asked whether he believed, within reasonable medical probability, that petitioner's industrial leg weakness was a substantial contributing cause to the heart attack. He answered:

A: Yes. I think that the weakness in his leg and the strain--well, for--I'll say yes for two reasons, one is that he wasn't active for a long time, which could have played a role in masking and which might have occurred at a lower level of activity, Number One, due to the leg; and Number Two, from the way that the mechanics of lifting were described, I think he stresses his symptoms, meaning elevated his blood pressure, requiring greater output of his heart to an extent that would have exceeded what he would have done had he lifted normally using his legs.

So, for those two reasons, yes, I think that the leg could have been a substantial contributing factor.

By Mr. Moeller [carrier's attorney]:

Q: Within reasonable probabilities?

A: Yes.

Dr. Katzenberg was asked to explain the terminology [substantial, possible, and probable] as he understood the terms:

A: The terminology you are using is a little different than the terminology used at the deposition, which is, I think, what I'm responding to.

Q: The terminology of possible and probable?

A: Well, the substantial, you were using terms like substantial.

Q: Contributing.

A: Contributing factor, which I--maybe you know, I'm interpreting your words differently, but I can, in my mind, correlate substantial contributing factor and possible. That's what I was doing.

Q: The problem here is we are not--nobody is disputing the fact the exertion that he had on that day contributed to his heart attack. The question is whether the leg was a substantial contributing cause within reasonable medical probabilities. I believe your testimony was possible, was the only connection I could make. Is that, is that correct, or am I misreading what you are saying?

A: You are correct. You read the text.

Q: All right. And is that your testimony here today, also, or are you changing that testimony in some fashion?

A: Well, you know, you are using different terminology. I think that [it] is possible that the leg contributed to his heart attack for the two reasons I have stated, and I think that within--that there is a substantial probability that that relationship exists, and I don't think those are mutually exclusive ways of looking at it.

Q: Oh, I see.

So, there is a possibility that it contributed to it?

A: A possibility doesn't imply a percent change substantial to me.

Well, here is how I am looking at it, the possibility to me doesn't imply that it is a 70% possibility or it is a 30% possibility. It just implies that it is possible. It is possible, if the rockets go off, the missile shuttle will go up.

Substantial, to me implies more than a 50% possibility, which is different than a possibility, and that's, you know, I think I have got to explain the semantics to you.

Q: Well, do you consider substantial more than possible?

A: I think they are different. I think substantial is a more precise term. I think substantial implies, at least a 50% probability, whereas possibility doesn't really imply.

Q: Therefore, it is only a possibility, you can't go any higher than a possible connection between the leg and the infarct?

A: Yes.

Q: You can't jump the next step and say that the leg substantially caused the infarct?

A: Well, depending on the question you ask me, I could.

Q: Well, the questions were asked here with a hypothetical set of facts that haven't changed. They are the same ones you heard this morning, the same ones there. Have they?

A: No. No, it is true I was responding to the terms.

The administrative law judge accepted the testimony of Dr. Katzenberg, one of two testifying physicians, and found:

6. Board-certified internist and cardiologist Charles Katzenberg, M.D., examined and treated the applicant beginning in the emergency room on September 8, 1984. Based on findings at those examinations, angiogram, EKG and other test results, Dr. Katzenberg testified that the applicant sustained a myocardial infarction on September 8, 1984 due to a 99% blockage of the left anterior descending coronary artery. Dr. Katzenberg testified both at hearing and at deposition that the applicant's heavy exertional activity on September 8, 1984, after the applicant's prolonged period of relatively sedentary activity, was a substantial contributing cause of this infarct. At deposition, Dr. Katzenberg opined that it was only possible that the alteration of the applicant's working posture due to his left leg injury was a substantial contributing cause of this infarct. At hearing, Dr. Katzenberg testified that this alteration of the applicant's working posture due to the left leg injury was probably a substantial contributing cause of this infarct, given the definition of substantial as "more than insubstantial or slight." See Skyview Cooling Co. v. Industrial Commission, 142 Ariz. 554, 691 P.2d 320 (App.1984). Dr. Katzenberg explained that at deposition, he was using "substantial" as meaning more than 50 percent.

7. Board-eligible internist and cardiologist William H. Clark, M.D., interviewed the applicant on July 29, 1985 and reviewed his medical records. Given the September 1984 date of the applicant's infarct, the lack of an examination by Dr. Clark in no way effects the weight to be accorded his testimony. Cf. Pais v. Industrial Commission, 108 Ariz. 68, 492 P.2d 1175 (1972). Dr. Clark testified that the applicant's heavy exertional activity on September 8, 1984, after the applicant's prolonged period of relatively sedentary activity, was a substantial contributing cause of his September 8, 1984 myocardial infarction. However, Dr. Clark testified that the applicant's left leg condition was not a substantial contributor to that infarct, neither in terms of altered work posture by the applicant on September 8, 1984 nor in terms of that injury's cause of the applicant's period of sedentary activity.

8. Where the result of an accident is not one clearly apparent to a layman, the physical condition of the injured employee and the causal relationship of the accident to such condition...