Anger v. O'Reilly Auto

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JOSEPH H. ANGER (Deceased), Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

O’REILLY AUTO PARTS, Respondent Employer,

SAFETY NATIONAL CASUALTY CORP/CORVEL ENTERPRISE,
Respondent Carrier.

No. 1 CA-IC 15-0037
FILED 6-23-2016

Special Action – Industrial Commission
ICA Claim No. 20141-750295
Carrier Claim No. OR-15-010715

Deborah A. Nye, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Joseph H. Anger (Deceased)
By Nancy Anger, Buckeye
Petitioner
Industrial Commission of Arizona, Phoenix
By Jason Porter
Counsel for Respondent

Jardine Baker Hickman & Houston, PLLC, Phoenix
By Terrence Kurth
Counsel for Respondent Employer, Respondent Carrier

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.

O R O Z C O, Judge:

¶1 Petitioner Nancy Anger, as the widow of Joseph H. Anger
(Joseph), seeks special action review of an Industrial Commission of
Arizona (ICA) award and decision upon review denying Petitioner’s claim
for dependent death benefits. For the following reasons, we affirm the
decision of the Administrative Law Judge (ALJ).

FACTS AND PROCEDURAL HISTORY

¶2 Petitioner and Joseph were married at the time of his death,
which occurred while he was driving a company vehicle and delivering
parts for O’Reilly Auto Parts. A witness observed Joseph’s vehicle veer off
the road and come to a stop with Joseph slumped over the steering wheel.
First responders found Joseph to be in ventricular fibrillation, and
transported him to a hospital where he was pronounced dead. There is no
evidence in the record that Joseph ever called for help using a cell phone or
the truck’s two-way radio.

¶3 Following Joseph’s death, Petitioner filed a claim with the
ICA for dependent’s benefits, which stated briefly that her husband had no
way to call for help because the truck’s radio was broken. The ICA claim
was denied and a hearing was noticed. An ALJ held hearings over four
days, during which multiple lay witnesses testified and two physicians
provided medical opinions as to Joseph’s cause of death.

¶4 Kristopher Leon, a coworker of Joseph’s, testified that Joseph
did not appear angry, depressed or emotionally upset on the day he died.
Mr. Leon testified that employees are prohibited from using a cell phone

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while driving a company vehicle, but employees are allowed to have a cell
phone in the glove compartment or in the back of the vehicle, just not on
their person. Mr. Leon also testified that the radio in Joseph’s truck was
tested and was functioning properly on the day he died. However,
Mr. Leon admitted communications between the work trucks and the shop
are not logged, and the radios reach only “seven miles or more.”

¶5 Dennis Beard, the store manager at the O’Reilly’s where
Joseph worked, testified that Joseph was investigated three times for
disciplinary matters, resulting in one write-up. He was never disciplined
or demoted, and his pay and hours were never reduced. Mr. Beard also
testified that Joseph had the choice every day to either take a thirty minute
lunch break or leave work thirty minutes early, and Joseph would usually
skip lunch and eat a snack in the office. According to Mr. Beard, employees
were not allowed to have food or drink in the company’s truck. The store
manager and district manager were not aware that Joseph was diabetic.

¶6 Dr. James Ganem, a board certified cardiologist, reviewed
Joseph’s medical records from Luke Air Force Base and West Valley
Hospital.1 Dr. Ganem opined to a reasonable degree of probability that
Joseph died from a myocardial infarction. Dr. Ganem based his opinion on
Joseph’s risk factors, which included diabetes, sleep apnea, medical
noncompliance, obesity and atherosclerotic cardiovascular disease. The
circumstances of Joseph’s death were consistent with sudden cardiac death.
In addition, Dr. Ganem concluded to a reasonable degree of probability that
Joseph’s death was not related to work activity including injury, stress or
exertion.

¶7 Maricopa County Medical Examiner, Dr. Mark Shelly,
performed an external autopsy of Joseph’s body in May 2014, and reviewed
Joseph’s medical records from Luke Air Force Base.2 Dr. Shelly attributed
Joseph’s death primarily to hypertension and cardiovascular disease, with
diabetes as a contributing factor.

¶8 In the decision upon hearing, the ALJ noted “[b]oth doctors
reject [Petitioner’s] theory that death was initiated by a diabetic or
hypoglycemic episode.” The ALJ found “no medical conflict in the record”

1 The record is unclear whether Dr. Ganem reviewed medical records
from Joseph’s diabetes doctor, Dr. Hamoudeh.

2 Dr. Shelly did not review any medical records from Dr. Hamoudeh.

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and no medical evidence linking Joseph’s cardiac condition to the stress
allegedly caused by his disciplinary events. The ALJ found, “[e]ven if [the
ALJ] were to assume that a diabetic episode led to [Joseph’s] death, [there
is] insufficient evidence that [Joseph’s] work conditions (cell phone rule or
truck radio condition) contributed” to his death. Accordingly, the ALJ
denied Petitioner’s claim for death benefits.

¶9 Petitioner filed a timely request for review of award. After
review, the ALJ affirmed the award denying death benefits. Petitioner
timely appealed to this court. We have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution, Arizona Revised Statutes (A.R.S.)
sections 12–120.21.A.2 and 23–951.A (West 2016),3 and Rule 10 of the
Arizona Rules of Procedure for Special Actions.

DISCUSSION

¶10 We deferentially review the ALJ’s factual findings, but review
questions of law de novo. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14
(App. 2003). To be compensable, an injury must arise out of and occur in
the course of employment. See A.R.S. § 23-1021. The phrase “arising out
of” refers to the origin of the injury, and requires a causal relationship
between the employment and the injury. Murphy v. Indus. Comm’n, 160
Ariz. 482, 485 (1989). The phrase “in the course of” requires that the injury
occurred during the time, place, and circumstances of employment. Hypl
v. Indus. Comm’n, 210 Ariz. 381, 384 (App. 2005). Petitioner has the burden
of establishing both of these elements. See id. We view the evidence in the
light most favorable to upholding the ALJ’s decision. PF Chang’s v. Indus.
Comm’n, 216 Ariz. 344, 347, ¶ 13 (App. 2007).

¶11 We interpret Petitioner’s opening brief as arguing that Joseph
veered off the road after a hypoglycemic attack and died. Petitioner argues
Joseph would not have perished if he had been able to summon help, but
could not do so because his truck radio was not functioning and he was not
permitted to have a cell phone while driving.4 However, as addressed

3 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

4 We have done our best to discern Petitioner’s arguments, “but we
consider waived those arguments not supported by adequate explanation,
citations to the record, or authority.” In re Aubuchon, 233 Ariz. 62, 64-65, ¶ 6
(2013); see also Ariz. R. Civ. App. P. 13(a)(7).

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above, testimony elicited at the hearing indicated employees are allowed to
have a cell phone in the glove compartment or in the back of the truck and
Mr. Leon testified that the radio in Joseph’s truck was tested and was
functioning properly on the day he died.

¶12 Further, Doctors Shelly and Ganem rejected Petitioner’s
conclusion that Joseph’s death was caused primarily by a diabetic or
hypoglycemic episode. Rather, both doctors opined that Joseph’s death
was heart-related. Under A.R.S. § 23-1043.01.A, a heart-related death is not
compensable “unless some injury, stress or exertion related to the
employment was a substantial contributing cause of the heart-related”
death. The causal relationship between work activities and a heart
condition is “peculiarly within the province of medical experts.” Emp’rs
Mut. Liab. Ins. Co. of Wis. v. Indus. Comm’n, 15 Ariz.App. 288, 289 (1971).
Medical opinions must be based on findings from the claimant’s history,
medical records, and examinations. Royal Globe Ins. Co. v. Indus. Comm’n,
20 Ariz.App. 432, 434 (1973).

¶13 Dr. Ganem reviewed Joseph’s medical records and opined
Joseph died from a myocardial infarction caused by multiple cardiac risk
factors. He further opined Joseph’s death was not related to work activity,
including injury or stress. Similarly, Dr. Shelly performed an external
autopsy on Joseph and attributed Joseph’s death primarily to hypertension
and cardiovascular disease. Neither doctor found a causal relationship
between Joseph’s work activities and his heart-related death. Petitioner
presented evidence from Specialty Clinic showing Joseph received ongoing
treatment from an endocrinologist.5 However, we defer to the ALJ’s factual
finding that there was “no medical conflict in the record.” See Young, 204
Ariz. at 270, ¶ 14.

5 Petitioner states that Doctors Ganem and Shelly did not review
Joseph’s medical records from the Specialty Clinic, which she argues show
that Joseph was in good health. As discussed above, the record on appeal
shows that Dr. Shelly did not review the Specialty Clinic records, and the
record is unclear whether Dr. Ganem did so. Nevertheless, both doctors
were aware that Joseph suffered from diabetes, but neither doctor
attributed Joseph’s death primarily to diabetic complications or Joseph’s
work activities. Petitioner has the burden of establishing that Joseph’s
death arose out of and in the course of his employment. Hypl, 210 Ariz. at
384, ¶ 6.

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¶14 Even if a diabetic episode caused Joseph to pull off the road,
Petitioner presented insufficient evidence that Joseph’s demise arose out of
his employment at O’Reilly. If, in fact, Joseph died as a result of a
hypoglycemic episode while driving, Mr. Beard testified that Joseph was
allowed a thirty-minute lunch break, and it was up to him whether he ate
or skipped lunch, and the record is devoid of evidence addressing whether
he did or did not eat lunch on the day of his death.

CONCLUSION

¶15 Because we find that the evidence of record reasonably
supports the ALJ’s award and decision on review, we affirm the denial of
dependent death benefits to Petitioner.

:AA

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