Rural Metro Corp. v. INDUSTRIAL COM'N

• Decision Date: 30 November 1999
• Docket Number: No. 2 CA-IC 99-0003.,2 CA-IC 99-0003.
• Citation: 197 Ariz. 133,3 P.3d 1053
• Parties: RURAL METRO CORP., Petitioner Employer, Reliance Insurance Company c/o Lindsey Morden Claims Management, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Martha Defore Porterfield, Respondent Employee, University Medical Center, Respondent Employer, University Medical Center, Respondent Carrier.
• Court: Arizona Court of Appeals

3 P.3d 1053

197 Ariz. 133

RURAL METRO CORP., Petitioner Employer, Reliance Insurance Company c/o Lindsey Morden Claims Management, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Martha Defore Porterfield, Respondent Employee, University Medical Center, Respondent Employer, University Medical Center, Respondent Carrier.

No. -0003.

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

November 30, 1999.

Review Denied January 5, 2000.

Jones, Skelton & Hochuli by Charles G. Rehling, Phoenix, for Petitioners Employer and Insurer. The Industrial Commission of Arizona by Anita R. Valainis, Phoenix, for Respondent.

Tretschok, McNamara & Patten, P.C. by Patrick R. McNamara, Tucson, for Respondent Employee.

Bury, Moeller, Humphrey & O'Meara by Jean Kamm Gage and M. Ted Moeller, Tucson, for Respondent Employer and Insurer.

OPINION

BRAMMER, Presiding Judge.

¶ 1 In this statutory special action, petitioner/employer Rural Metro Corp. and petitioner/carrier Reliance Insurance Co. challenge the Administrative Law Judge's (ALJ) award finding respondent/employee Martha Defore Porterfield's¹ injury claim against Rural Metro compensable.² We affirm the award.

Facts and Procedural History

¶ 2 We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the award. Faraghar v. Industrial Comm'n, 184 Ariz. 528, 911 P.2d 534 (App.1995). The following facts were adduced during a five-day hearing before the ALJ. At all times relevant to this matter, Defore was working as a paramedic for both Rural Metro and University Medical Center (UMC). While working at UMC on May 15, 1997, Defore sustained a shoulder injury as she was attempting to move a patient from an examining table onto a bed. She filed an injury claim, which UMC accepted for benefits. On October 10, orthopedic surgeon Dr. Murray Robertson performed surgery on the shoulder. By early November, Defore was responding well to the surgery, and Robertson felt she would eventually return "to full activity."

¶ 3 On November 4, Robertson told Defore she could return to work at UMC. At that time, her original injury was not yet stationary and her claim with UMC was still open. Because her work as a "reserve paramedic" on an ambulance crew for Rural Metro involved more lifting, however, Robertson expressly prohibited her from returning to that work for at least another month, when he would reexamine her. Defore nevertheless chose to return to work at Rural Metro on November 19, stating she "had no choice" because of financial reasons. Although Defore and Rural Metro disagree about whether, on returning to work, she told Rural Metro personnel about her shoulder injury and surgery, Defore does not claim, nor does the record reflect, that she told anyone at Rural Metro that her physician had expressly prohibited her from working for the company.

¶ 4 On November 19, her first day back at Rural Metro, six weeks after surgery, Defore and her partner were raising a gurney with a patient on it when Defore felt a tearing sensation in her right shoulder. The next day, she saw Robertson, complaining of shooting pain down her right arm. He immediately took her off all work activity, to which she did not return for six weeks. On November 20, UMC issued a notice of claim status denying further benefits for the May 15 injury on the ground that Defore had sustained the new injury to her shoulder while working for Rural Metro the day before. Defore then filed new injury claims for the November 19 injury against both Rural Metro and UMC, which both denied. Defore requested a hearing on these denials of benefits and on UMC's denial of further benefits for the May 15 injury. The Industrial Commission set a hearing date to address these issues. In the meantime, Defore and UMC agreed to resolve by stipulation her claims against UMC. On the first day of the hearing, the ALJ accepted the stipulation, which she concluded effectively resolved any contested issues as to UMC.

¶ 5 The ALJ proceeded solely on whether Defore had a compensable claim against Rural Metro. Based on Robertson's testimony, the ALJ determined that, while working for Rural Metro on November 19, Defore had "sustained a new injury which consisted of an aggravation" of the May 15 injury. The ALJ further found that Defore had not informed Rural Metro that Robertson had prohibited her from working on the ambulance crew. Noting that Defore "did heavy lifting with Rural Metro against [Robertson's] orders," the ALJ concluded that she "most likely sustained the new injury because she worked beyond [the] restrictions" Robertson had imposed. The ALJ nevertheless found the injury compensable, rejecting Rural Metro's contributory negligence defense, based on the conclusion that Defore's "contributory negligence or fault [could] not [be] considered at the initial compensability stage," citing DKI Corp./Sylvan Pools v. Industrial Commission, 169 Ariz. 357, 819 P.2d 943 (App.1991), vacated in part on other grounds, 173 Ariz. 535, 845 P.2d 461 (1993). And in her decision upon review, the ALJ rejected Rural Metro's alternative argument that Defore's November 19 injury was noncompensable because it had been purposely self-inflicted. Accordingly, the ALJ affirmed her award of medical and disability compensation benefits in Defore's claim against Rural Metro for the time period between Defore's November 19 injury and the date her condition is determined to be medically stationary. This special action followed.

Compensability of Claim

¶ 6 Rural Metro does not challenge the ALJ's determination that Defore sustained an aggravation of her shoulder injury while working on November 19. It contends, however, the ALJ erred in concluding that Defore's injury had not been purposely self-inflicted and in failing to consider the reasonableness of Defore's actions in incurring the shoulder reinjury in the determination as to its compensability. We review these primarily legal issues de novo. See Inch v. McPherson, 176 Ariz. 132, 859 P.2d 755 (App.1992).

¶ 7 Section 23-1021(B), A.R.S., provides in relevant part as follows:

Every employee who is covered by insurance in the state compensation fund and who is injured by accident arising out of and in the course of employment, . . . provided the injury was not purposely self-inflicted, shall be paid such compensation from the state compensation fund for loss sustained on account of the injury and shall receive such medical, nurse and hospital services and medicines, . . . as provided in this chapter.

Accordingly, pursuant to our statutory scheme, an employee's injury is compensable so long as it is work related and has not been purposely self-inflicted. See Glodo v. Industrial Comm'n, 191 Ariz. 259, 955 P.2d 15 (App.1997).

Purposely self-inflicted injury claim

¶ 8 Relying on Glodo, Rural Metro first challenges the ALJ's ruling that Defore's injury was not purposely self-inflicted. We presume, however, that a claimant did not intend to injure himself or herself, regardless of how inadvisable, careless, or even reckless the claimant's conduct may have been. Mandex, Inc. v. Industrial Comm'n, 151 Ariz. 567, 729 P.2d 921 (App.1986); see also Lopez v. Kennecott Copper Corp., 71 Ariz. 212, 225 P.2d 702 (1950) (presumption against self-maiming). Defore testified that she returned to work for Rural Metro against her physician's advice because of financial pressures. Although such action was arguably careless, if not reckless, no evidence was presented to suggest, nor does Rural Metro argue, that Defore's purpose in returning to work at Rural Metro was to reinjure herself.

¶ 9 We further find Rural Metro's reliance on Glodo misplaced. That case holds that an employee's "intentional act of violence that produces an injury that should be expected is not accidental" but is self-inflicted and therefore not compensable under the statute. Id. at 262, 955 P.2d at 18. Accordingly, Glodo held noncompensable the claimant's injury to his hand, which he sustained when he punched a metal freezer door during an argument with his supervisor, finding the injurious result there predictable and "almost inevitabl[e]." Id. at 264, 955 P.2d at 20. In contrast, Defore's injury-producing attempt to raise the patient-laden gurney was neither an act of violence nor, as the ALJ found, was it predictably certain to result in injury. See Id. (in distinguishing claim in that case from claims involving work-related assaults, which are typically compensable, court noted that "[w]hen a claimant assaults a co-worker, the outcome is not nearly as predictable as when the claimant slams his fist into a metal freezer door"). We agree with the ALJ's determination that Defore's shoulder reinjury was not purposely self-inflicted.

Reasonableness of Defore's conduct

¶ 10 Relying on DKI, Rural Metro next argues the ALJ erred in failing to consider the reasonableness of Defore's actions in returning to work for Rural Metro, against Robertson's express prohibition, in determining whether the aggravation of Defore's shoulder injury was compensable. In DKI, Division One of this court discussed the compensability of consecutive injuries as enunciated in 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law ch. 10 (1999), then 1 Arthur Larson, The Law of Workmen's Compensation ch. 13 (1990). As the court in DKI noted, Larson distinguishes between an initial or primary industrial injury, which is typically compensable regardless of employee fault, and a subsequent aggravation of, or new injury causally related to, the initial injury. According to Larson, "the progressive worsening or complication of a work-connected injury remains compensable so long as the worsening is not shown to have been produced by an intervening nonindustrial cause" attributable to the claimant's intentional and unreasonable conduct. Larson's Workers' Compensation Law, supra, at 10-1. When dealing with the...