crescent/twin City v. Ketterling

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CRESCENT CROWN DISTRIBUTING, L.L.C., Petitioner Employer,

TWIN CITY FIRE INSURANCE CO./SEDGWICK CMS, Petitioner Carrier,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

TY A. KETTERLING, Respondent Employee.

No. 1 CA-IC 13-0016
FILED 3-6-2014

Special Action - Industrial Commission
ICA Claim No. 20121-210050
Carrier Claim No. 30120452064-0001
The Honorable Deborah Nye, Administrative Law Judge

AFFIRMED

COUNSEL

Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix
By Charles G. Rehling
Counsel for Petitioner Employer and Carrier

Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for ICA

Taylor & Associates, P.L.L.C., Phoenix
By Briana E. Chua
Counsel for Respondent Employee

MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Kenton D. Jones joined.

S W A N N, Judge:

¶1 This is a special action review of an Industrial Commission
of Arizona (“ICA”) award and decision upon review finding that the
respondent employee (“Claimant”) sustained a compensable industrial
injury. The employer and the carrier contend the administrative law
judge (“ALJ”) legally erred by finding that Claimant’s injury arose out of
and in the course of his employment. Finding no legal error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Claimant worked as a set merchandiser for the petitioner
employer, Crescent Crown Distributing, L.L.C. (“Crescent Crown”).
Claimant’s job required him to visit grocery stores to break down pallets
of boxed beer, arrange back stock, and fill store shelves. As part of his
uniform, Claimant was given the option to wear either shorts or pants.
Claimant chose to wear shorts, and frequently scratched his legs on the
cardboard boxes of beer as he navigated cramped stockrooms and narrow
aisles. According to Claimant, the storage area at the grocery store that he
worked at on Tuesdays was particularly cramped and had very small
aisles. While working at that store on Tuesday, March 27, 2012, Claimant
received the usual types of scratches on his legs.

¶3 As part of his normal work schedule, Claimant did not work
the next two days, Wednesday and Thursday. On Friday, he worked as
usual but in the evening began to feel “a few small symptoms.” The next
morning, he reported to work but had to leave because he was

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experiencing a fever, chills, and flu-like symptoms. The next three days,
he went to work but still felt sick. On Wednesday, April 4, he noticed, for
the first time, a dime-sized wound on the front of his left shin. By the next
morning, his lower left leg was swollen and he sought medical care. He
was ultimately diagnosed with a streptococcal bacterial infection. As a
result of the infection, he was hospitalized for almost three weeks and
underwent four surgeries to debride his leg wound and cover it with a
skin graft.

¶4 Claimant filed a workers’ compensation claim that was
denied for benefits. He timely protested and requested an ICA hearing.
The ALJ held three hearings and heard testimony from Claimant, three of
Claimant’s coworkers, Claimant’s medical expert, and an independent
medical examiner. Finding that Claimant’s testimony was credible and
that the preponderance of the evidence showed that the entry point for his
infection was an abrasion sustained at work, the ALJ entered an award for
a compensable claim and affirmed the award upon review. Crescent
Crown then brought this special action.

JURISDICTION AND STANDARD OF REVIEW

¶5 We have jurisdiction under A.R.S. §§ 12-120.21(A)(2) and 23-
951(A), and Ariz. R.P. Spec. Act. 10. We defer to the ALJ’s factual
findings, but review questions of law de novo. Young v. Indus. Comm’n,
204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the
evidence in a light most favorable to upholding the ALJ’s award. Lovitch
v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).

DISCUSSION

¶6 The burden to prove a compensable claim belongs to the
claimant. Toto v. Indus. Comm’n, 144 Ariz. 508, 512, 698 P.2d 753, 757 (App.
1985). The claimant must show that his injury arose out of and in the
course of employment. A.R.S. § 23-1021(A). Such showing involves both
legal causation and medical causation. DeSchaaf v. Indus. Comm’n, 141
Ariz. 318, 320, 686 P.2d 1288, 1290 (App. 1984). Legal causation requires
that the claimant, acting in the course of his employment, suffered an
injury that arose out of and in the course of his employment and was
caused in whole or in part by a necessary risk of the employment or the
employer’s lack of due care. Grammatico v. Indus. Comm’n, 211 Ariz. 67, 71,
¶ 19, 117 P.3d 786, 790 (2005). Medical causation requires a showing that
the industrial accident caused the injury. Id. at ¶ 20.

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¶7 Medical causation typically requires expert medical
testimony. See McNeely v. Indus. Comm’n, 108 Ariz. 453, 455, 501 P.2d 555,
557 (1972). To support an award, a medical opinion must be premised on
findings of medical fact. Royal Globe Ins. Co. v. Indus. Comm’n, 20 Ariz.
App. 432, 434, 513 P.2d 970, 972 (App. 1973). If not based on an accurate
factual background, medical testimony may be insufficient to support the
award. Desert Insulations, Inc. v. Indus. Comm’n, 134 Ariz. 148, 151, 654
P.2d 296, 299 (App. 1982). But while an award cannot be supported by
equivocal or speculative expert testimony, an expert’s opinion need not be
based on positive knowledge of causation to be sufficient. Harbor Ins. Co.
v. Indus. Comm’n, 25 Ariz. App. 610, 612, 545 P.2d 458, 460 (1976). It is for
the ALJ to resolve conflicts in the medical testimony. Perry v. Indus.
Comm’n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975).

¶8 Here, Crescent Crown contends that the testimony of
Claimant’s medical expert lacked foundation because Claimant failed to
meet his burden to show that he was injured at work on March 27, 2012.
We disagree. The ALJ expressly found that Claimant’s testimony was
credible, and the ALJ is the sole judge of witness credibility. Holding v.
Indus. Comm’n, 139 Ariz. 548, 551, 679 P.2d 571, 574 (App. 1984). Claimant
testified that he had received scratches while working on March 27 but
could not specifically recall the circumstances because he routinely
sustained such injuries. Further, several of Claimant’s coworkers
confirmed that such injuries occurred in their line of work, and that the
injuries typically healed without any treatment and therefore were not
reported to the employer.

¶9 Claimant’s medical expert testified that the infection on
Claimant’s leg, and Claimant’s other symptoms, were caused by group A
streptococcal bacteria, a bacteria commonly found on the skin that may
enter the body through a break in the skin. With respect to causation, the
expert’s testimony was as follows:

Q. Okay. And what’s your understanding of how this
began for him?

A. My understanding is that in [Claimant’s] line of work, he
routinely encounters minor traumas to various extents, and
some of which he may not think would need any form of
treatment, and he’s come to believe that one of those
episodes had led to this wound on his shin and which led to

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the medical visit at the urgent care . . . and so on, and things
just got worse from there after a couple of days of trials of
antibiotics and some . . . intramuscular shots of antibiotics
until I saw him.

Q. Okay. If that is true, that history you have in your terms
of getting scratches and scrapes on his legs routinely at
work, if you assume that he received those scratches and
scrapes at work, would you relate the subsequent infection
to his work, his work activities?

A. I essentially agree with [the independent medical
examiner’s] assessment in that any scratch of any form
anywhere from any cause can cause this, and obviously you
have to really be there to see the first scratch and to see how
it happened and follow it from then on to know for sure 100
percent certainty. But, like I said, his history sounds credible
in the sense that he’s had the same type of injuries in the line
of work and then these injuries in the line of work for sure
can cause the type of injury that he has.

Q. Okay. We talk in terms of probability here at the
Industrial Commission. Do you believe within a reasonable
degree of medical probability, assuming that [Claimant’s]
account’s correct and he sustained these scratches on his legs
at work on March 27, 2012, that those caused or contributed
to the infection that he had? . . . . And when we say that, we
are talking about more likely than not, more than 50 percent,
so 51 percent that you would be able to say to a reasonable
degree of medical probability that the infection that
[Claimant] had that eventually caused this necrotizing
myositis were related to the scratches he sustained at work.

....

A. Yes, I do. I think that the history is consistent, bear with
me, but in actuality of being in the grocery business as well
when my parents were in it, he would do that and you do
labor, manual labor where you get injury when you hit the
shin. That’s a very common type of injury from a common
sense from that standpoint, and I think that’s why it’s
possible, very possible that he, more than 50 percent

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probability, that he sustained one of those injuries at work. I
don’t know when, but he had one of those, and it is very
probable to lead to one of these infections.

The expert’s tesimony also established that the onset of Claimant’s
symptoms was temporally consistent with an abrasion sustained on
March 27. The expert’s inability to say with certainty that Claimant’s
infection resulted from an abrasion received at work did not render his
opinion insufficient. The “sequence of events, plus [medical] proof of
possible causal relation, may amount to proof of probable causal relation, in
the absence of evidence of any other equally probable cause.” Breidler v.
Indus. Comm’n, 94 Ariz. 258, 262, 383 P.2d 177, 179 (1963) (citation
omitted).

¶10 We reject Crescent Crown’s contention that the instant case
presents causation issues of the type found in cases such as Treadway v.
Indus. Comm’n, 69 Ariz. 301, 213 P.2d 373 (1950), which dealt with a
claimant who contracted coccidioidomycosis, a fungal disease commonly
known as “valley fever.” In Treadway, the claimant alleged that he
contracted valley fever at work while unloading dusty tents from
California at a Phoenix warehouse. 69 Ariz. at 304, 213 P.2d at 375. The
supreme court held that the claimant was not entitled to workers’
compensation benefits because he failed to establish a causal connection
between his employment and his valley fever. Id. at 308, 213 P.2d at 377.
The court explained that in order to recover compensation, the claimant
was required to prove that “he was subjected to some special exposure in
excess of that of the commonalty,” id., and he could not meet this burden
because the spores that cause valley fever are prevalent throughout
Arizona, id. at 308, 213 P.2d at 378.

¶11 Here, the evidence established that streptococcal A bacteria
is present on every person’s skin and can enter the body and cause
infection through any type of a break in the skin. But though Claimant
was no different from any other person with respect to the presence of the
bacteria on his skin, he was subjected to special exposure for infection
because his work caused him to have greater opportunity to sustain
breaks in his skin.

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CONCLUSION

¶12 We hold that the ALJ did not err by concluding that
Claimant proved a compensable claim for an injury arising out of and in
the course of his employment. We therefore affirm.

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