Samaritan Health Services v. Industrial Com'n of Arizona

• Decision Date: 28 May 1991
• Docket Number: CA-IC,No. 1,1
• Citation: 170 Ariz. 287,823 P.2d 1295
• Parties: SAMARITAN HEALTH SERVICES, Petitioner Employer, Samcor, now known as the Samaritan Foundation, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Olga Holbert, Respondent Employee. 89-100.
• Court: Arizona Court of Appeals

Page 1295

823 P.2d 1295

170 Ariz. 287

SAMARITAN HEALTH SERVICES, Petitioner Employer Samcor, now known as the Samaritan Foundation, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Olga Holbert, Respondent Employee.

No. 1 CA-IC 89-100.

Court of Appeals of Arizona,

Division 1, Department A.

May 28, 1991.

Reconsideration Denied July 10, 1991.

Review Denied Feb. 19, 1992.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by J. Victor Stoffa, Phoenix, for petitioners Employer and Carrier.

Anita R. Valainis, Chief Counsel, Industrial Com'n of Arizona, Phoenix, for respondent.

Chris T. Johnson, Phoenix, for respondent Employee.

OPINION

CLABORNE, Presiding Judge.

The question presented here is whether an injury which occurs while one is engaged in a work-related function, but which results from the worker's physical condition and an activity which involves no strain greater than that which one would experience in a normal nonemployment setting is a compensable injury. We find that it is.

I

In August 1988, when respondent employee, Olga Holbert, was 54 years old, she sustained an injury to her left knee while bending to perform a filing task. She timely protested the denial of her claim for workers' compensation.

At the compensability hearing, Ms. Holbert acknowledged having had left knee injuries in 1975, 1986 and 1987. The first injury required surgery and resulted in a rateable permanent impairment. The 1986 injury, which also involved the left ankle, required medical treatment and resulted in some time loss from work. She last received medical treatment for this knee injury in February 1988. She was not questioned about the specific effects of the 1987 injury.

Ms. Holbert had worked for Samaritan since 1985. In December 1987, Samaritan transferred her to a sedentary clerical position in its radiology department because her left ankle could not tolerate the standing required by her normal food preparation work. She normally worked at her desk and only rarely performed filing tasks requiring stooping or squatting. On August 3, 1988, however, because of a staff shortage, she was asked to do filing work. This required her to reach a file located on a floor-level shelf while checking other records she was carrying in her other hand. She testified that she acted cautiously because of her preexisting impairment, but as she moved toward the floor, she felt her left knee pop and she experienced acute pain. She ultimately underwent arthroscopic surgery.

No medical testimony was presented at the hearing. Rather, Samaritan claimed that its expert would testify that claimant's previous left knee injuries predisposed her to further injury, but that the August 1988, bending or stooping motion was a contributing cause of her current knee symptoms. Ms. Holbert, on the other hand, claimed that her expert would testify that although she had a preexisting left knee impairment, the work-related activity had caused a new injury.

The administrative law judge (ALJ) found that "while in the process of bending/stooping/squatting (which is not really clear), to obtain ... files from the lower drawer, [employee] felt a 'popping' sensation in her left knee, and the immediate onset of a burning type pain...." He also found that this specific incident and the underlying weakness of the left knee jointly caused the acute pain and swelling, which in turn required medical treatment and resulted in increased disability. The ALJ concluded that Ms. Holbert had suffered a compensable new injury for which Samaritan was wholly responsible.

Samaritan requested administrative review, arguing that successive injury principles were inapplicable because Ms. Holbert's injury did not arise out of her employment with Samaritan:

This was not ... a case involving simply "liability preference". It is rather our contention that, where a preexisting infirmity such as claimant here had, when coupled with later employment activity that involved no unusual stress, untoward motion, or exertion in excess of that which would occur in ordinary employment and nonemployment life, results in additional symptoms requiring medical treatment, then, such employment activity, under a proper constitutional construction of the "arising out of" clause of A.R.S. § 23-1021, as necessarily limited by the language of the Constitution ... does not constitute a compensable event.

The ALJ issued a decision upon review responding to Samaritan's arguments. He concluded that the additional symptoms arose out of the employment because the work activity causally contributed to these symptoms: "this medical causal relationship ... essentially, per se, establishes the necessary 'arising out of' requirement." The ALJ then characterized the real "thrust" of Samaritan's position to be a denial that the "relatively nominal stooping/squatting activities ... were sufficient to constitute a recognizable compensable 'injury by accident' within the scope of the Act...." Samaritan then brought this special action.

II

Samaritan primarily argues that to satisfy the "arising out of employment" requirements of Article 18, § 8 of the Arizona Constitution and A.R.S. § 23-1021 in cases where a personal condition and a work-related activity jointly cause an injury, the risk of injury from the employment must be greater than the risk associated with nonemployment activities.

Article 18, § 8 provides, in pertinent part:

The Legislature shall enact a Workmen's Compensation Law applicable to workmen engaged in manual or mechanical labor in all public employment ... and in such private employments as the Legislature may prescribe by which compensation shall be required to be paid ... by his employer, if in the course of such employment personal injury to or death of any such workman from any accident arising out of and in the course of, such employment, 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....

Ariz. Const. art. 18, § 8 (1925) (emphasis added). This constitutional provision does not grant power to the legislature, but rather directs it to exercise power it already possesses. Goodyear Aircraft Corp. v. Industrial Comm'n, 62 Ariz. 398, 408, 158 P.2d 511, 515 (1945). In addition, this provision does not restrict the legislature in its inherent powers to go beyond the terms of the constitution in finding injuries by accident compensable. Id. See also Kilpatrick v. Superior Court, 105 Ariz. 413, 466 P.2d 18 (1970).

Based on this constitutional directive, the legislature enacted A.R.S. § 23-1021 which provides compensation for "accident[s] arising out of and in the course of" the claimant's employment. A.R.S. § 23-1021(A). The phrase "arising out of" refers to the origin or cause of the injury. Circle K Store No. 1131 v. Industrial Comm'n, 165 Ariz. 91, 93-94, 796 P.2d 893, 895-96 (1990) (citing Murphy v. Industrial Comm'n, 160 Ariz. 482, 485, 774 P.2d 221, 224 (1989)). "In the course of" refers to the time, place, and circumstances of the accident in relation to the employment. Circle K, 165 Ariz. at 94, 796 P.2d at 896 (citing Goodyear, 62 Ariz. at 411, 158 P.2d at 519). While each of these elements must be independently satisfied, they must also be considered as a whole to determine whether the employee falls within the scope of the statute. Nowlin v. Industrial Comm'n, 167 Ariz. 291, 293, 806 P.2d 880, 882 (App.1990), petition for review denied (Mar. 19, 1991).

This case presents the question whether an injury jointly caused by a personal condition and work-related activity which involves no strain greater than that occurring in a normal nonemployment setting arises out of employment. Courts have generally applied four theories to determine whether an injury arises out of employment: 1) the peculiar risk test, which requires the claimant to show that the source of the injury must be in its nature peculiar to the employment; ¹ 2) the increased risk test, which requires that the employment cause an increased exposure to a risk which is qualitatively not peculiar to the employment; ² 3) the actual risk test, in which it is immaterial that the risk is common to the public, if it is in fact a risk of the particular employment; ³ and 4) the positional risk test, in which the injury is compensable if it would not have occurred but for the fact the employment placed the employee in a position where he or she was injured. ⁴ 1 A. Larson, Workmen's Compensation Law §§ 6.10 to 6.50 (1990). See Nowlin, 167 Ariz. at 293, 806 P.2d at 882. The necessity that work be a contributing factor decreases across the spectrum from the peculiar risk test (the risk is particular to that employment) to the positional risk test (mere presence on the job is sufficient). See Nowlin, 167 Ariz. at 293, 806 P.2d at 882.

In an employment setting, an employee is exposed to different categories of risks: risks distinctly associated with the employment; risks personal to the employee; and "neutral" risks, those having no particular employment or personal character. 1 A. Larson, supra, § 7.00. This case involves a mixed risk, one in which a personal cause and an employment cause combine to produce the harm. Id. § 7.40. In this category, the employment must be a contributing factor. Id. The extent of employment contribution that is required depends on which test applies, the increased risk test (the risk of injury from the work-related activity must be greater than the risk associated with everyday living) or the actual risk test (the risk of injury must be in fact a risk of that employment).

The ALJ found that Ms. Holbert's prior left knee injury was one of the causes of this industrial injury and that her "bending/stooping/squatting activities" were likewise a contributing cause. The ALJ applied the actual risk test to conclude that Ms. Holbert's injury...