Polanco v. Industrial Com'n of Arizona

• Decision Date: 29 March 2007
• Docket Number: No. 2 CA-IC 2006-0025.,2 CA-IC 2006-0025.
• Citation: 154 P.3d 391,214 Ariz. 489
• Parties: Mont POLANCO, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Pima County, Respondent Employer and Insurer.
• Court: Arizona Court of Appeals

154 P.3d 391

214 Ariz. 489

Mont POLANCO, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Pima County, Respondent Employer and Insurer.

No. 2 CA-IC 2006-0025.

Court of Appeals of Arizona, Division 2, Department B.

March 29, 2007.

Les Gilbertson, JD, PC By Les Gilbertson, Tucson, Attorney for Petitioner/Employee.

The Industrial Commission of Arizona By Laura L. McGrory, Phoenix, Attorney for Respondent.

Goering, Roberts, Rubin, Brogna, Enos & Treadwell-Rubin, P.C. By Pamela Treadwell-Rubin and Elizabeth L. Warner, Tucson, Attorneys for Respondent Employer and Insurer.

OPINION

BRAMMER, Judge.

¶ 1 In this statutory special action, petitioner Mont Polanco contends the administrative law judge (ALJ) erred in denying his petition to reopen his workers' compensation claim. The ALJ determined Polanco had failed to demonstrate "objective physical findings of [a] change in [Polanco's] condition" as required by A.R.S. § 23-1061(H). Polanco argues § 23-1061(H) is unconstitutional as applied to his case. Finding no error, we affirm the award.

Factual and Procedural Background

¶ 2 "On review of an Industrial Commission award, we must view the evidence in the light most favorable to sustaining the Industrial Commission's findings and award." Roberts v. Indus. Comm'n, 162 Ariz. 108, 110, 781 P.2d 586, 588 (1989). Polanco injured his back in September 2001, in the course and scope of his employment with Pima County, while lifting a rock out of a manhole. His subsequent workers' compensation claim was accepted for benefits, and he underwent diskectomy surgery. Polanco's claim was closed in February 2003, but he continued to receive treatment for his back injury, "including caudal epidural injections" that "markedly improved [his] pain and allowed him to work full-time." After an industrial motor vehicle accident in August 2004, the injections became less effective. In late 2005, his physician, Dr. Randall Prust, recommended Polanco have a spinal cord stimulator implanted to control his pain.

¶ 3 Polanco filed a petition to reopen his claim in November 2005, which the insurer denied. At the subsequent hearing on that petition, Dr. Prust testified that scarring in Polanco's spine had worsened and was causing "more pain" and "reducing the efficacy of the caudal epidurals." Prust testified the reports prepared by a radiologist comparing Polanco's results from magnetic resonance imaging (MRI) examinations of his spine showed "some enhancing epidural tissue," or changes in scar tissue, near Polanco's spinal nerve roots. Prust admitted, however, that he had not personally reviewed the MRI films.

¶ 4 Dr. Kurt Schroeder testified he had reviewed MRI films of Polanco's spine and those images contained no "objective evidence of a new, additional or previously undiscovered condition" or a "worsening between 2002 and 2006 of [Polanco's] scar tissue." Schroeder also stated his physical examination of Polanco did not indicate any "worsening of the scar tissue." He did not express an opinion whether Polanco was a good candidate for a spinal cord stimulator.

¶ 5 After the hearing, the ALJ found there was "no material conflict" that the epidural injections were "not as effective anymore," but adopted Schroeder's opinion "that there were no objective changes shown on [the MRI films]." The ALJ denied Polanco's petition to reopen his claim but awarded him additional supportive medical maintenance benefits for "insertion of a spinal cord stimulator."¹ Polanco then filed a request for review of that decision, asserting, inter alia, that § 23-1061(H) is unconstitutional as applied to his case. The ALJ affirmed his award on review and this statutory special action followed.

Discussion

¶ 6 Section 23-1061(H) governs the reopening of workers' compensation claims and requires an employee to prove the existence of "a new, additional or previously undiscovered temporary or permanent condition" to reopen a claim. And the employee must show a causal relationship between the new condition and a prior industrial injury. Stainless Specialty Mfg. Co. v. Indus. Comm'n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985). Section 23-1061(H) was modified in 1999 to preclude reopening a claim based on an employee's "increased subjective pain if the pain is not accompanied by a change in objective physical findings." 1999 Ariz. Sess. Laws, ch. 331, § 9. Polanco's sole argument in this statutory special action is that the objective physical findings requirement is unconstitutional as applied to his case.² "We deferentially review the ALJ's factual findings but independently review his legal conclusions." Grammatico v. Indus. Comm'n, 208 Ariz. 10, ¶ 6, 90 P.3d 211, 213 (App.2004). "We analyze the constitutionality of a statute de novo, beginning with the strong presumption that the statute is constitutional." Id.

¶ 7 The constitutional basis for Arizona's workers' compensation law is found in article XVIII, § 8 of the Arizona Constitution and

mandates that an employee receive workers' compensation if the employee is injured in "any accident arising out of and in the course of ... employment," and the injury "is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer or its agents or employee or employees to exercise due care."

Grammatico v. Indus. Comm'n, 211 Ariz. 67, ¶ 1, 117 P.3d 786, 787 (2005), quoting Ariz. Const. art. XVIII, § 8 (alteration in Grammatico). For a worker to be compensated for an injury, he or she must prove "both legal and medical causation." Id. ¶ 19. Legal causation has three elements:

First, the employee must have been acting in the course of employment. Second, the employee must have suffered a personal injury from an accident arising out of and in the course of such employment. Third, the resulting injury must have been caused in whole or in part, or contributed to, by a necessary risk of the employee's employment, or a necessary risk or danger inherent in the nature of that employment or the employer's lack of due care.

Id. "Medical causation, in contrast, is established by showing that the accident caused the injury." Id. ¶ 20; see also DeSchaaf v. Indus. Comm'n, 141 Ariz. 318, 320, 686 P.2d 1288, 1290 (App.1984) ("Legal causation concerns whether the injury arose out of and in the course of the employment. On the other hand, medical causation ordinarily requires expert medical testimony to establish that the industrial accident caused the injury.") (citation omitted).

¶ 8 In Grammatico, our supreme court stated article XVIII, § 8 "addresses legal causation" and determined "the legislature may not define legal causation in a way that conflicts with [that section] because the legislature `cannot enact laws which will supersede constitutional provisions adopted by the people.'" 211 Ariz. 67, ¶¶ 19, 21, 117 P.3d at 790, 791, quoting Kilpatrick v. Superior Court, 105 Ariz. 413, 416, 466 P.2d 18, 21 (1970). But the court also stated, "Article 18, Section 8 does not limit the legislature's power to enact legislation affecting medical causation," id. ¶ 20; therefore, "the legislature has some latitude to establish the requisite medical causation for workers' compensation recovery." Id. ¶ 21.

¶ 9 Polanco reasons " § 23-1061(H) effectively abrogates otherwise compensable claims for a class of injuries," specifically, "subjective injury," regardless of whether the employee can show causation. Thus, he argues the "objective physical findings" requirement impermissibly limits legal causation because "the Arizona Constitution requires compensation for all injured workers—not just those who can provide objective evidence of subjective complaints—or are lucky enough to be filing their claim for the first time and not just attempting to reopen."

¶ 10 Central to Polanco's argument is his assertion that subjective pain, standing alone, is a compensable injury under article XVIII, § 8. As we understand his argument, he reasons that, if subjective pain is a compensable injury, then requiring objective evidence of that injury limits an employee's ability to show legal causation because the employee would have to "show the un-showable—objective evidence of subjective injury." Relying primarily on Simpson v. Industrial Commission, 189 Ariz. 340, 942 P.2d 1172 (App.1997), he asserts that case stands for the proposition that "disabling pain resulting from an industrial injury constitutes a compensable injury." The employee in Simpson had suffered a back and neck injury. Id. at 342, 942 P.2d at 1174. The ALJ denied benefits, finding the employee had not shown his inability to return to work was related to his injury and, in the alternative, determining his injury was not compensable because residual pain did not "constitute a ratable permanent impairment under the ... [American Medical Assocation] Guides [to the Evaluation of Permanent Impairment]." Id. Division One of this court held the employee had shown his medical condition was attributable to his industrial accident, id. at 343-44, 942 P.2d at 1175-76, and the American Medical Association Guides were not the exclusive means by which the employee could demonstrate impairment from an injury caused by that accident. Id. at 346, 942 P.2d at 1176. Nothing in Simpson suggests the employee had not provided objective physical evidence of his injury. See id. at 343, 942 P.2d at 1175. Thus, Simpson does not hold that pain, standing alone, is a compensable injury; it holds only that subjective pain is relevant to determining the degree of impairment resulting from an injury.³ Impairment is not synonymous with injury; impairment results from injury. Cf. Moreno v. Indus. Comm'n, 122 Ariz. 298, 299, 594 P.2d 552, 553 (App. 1979) ("[The employee] failed in his burden of proof that any functional impairment resulted from the industrial injury.").

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