Smith v. Washington Elem

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FLORENCE SMITH, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

WASHINGTON ELEM SCHOOL DIST, Respondent Employer,

WASHINGTON ELEMENTARY SCHOOL DISTRICT #6, Respondent
Carrier.

No. 1 CA-IC 19-0054
FILED 7-16-2020

Special Action - Industrial Commission
ICA Claim No. 20182-820128
Carrier Claim No. 18723292
The Honorable J. Matthew Powell, Administrative Law Judge

AFFIRMED

COUNSEL

Florence Smith, Phoenix
Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Jardine Baker, Hickman & Houston, PLLC, Phoenix
By Charles G. Rehling
Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

Judge Jennifer M. Perkins 1 delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.

P E R K I N S, Judge:

¶1 In this statutory special action, Florence Smith challenges an
Industrial Commission of Arizona (ICA) award and decision upon review
finding her injury was not caused by her employment and therefore non-
compensable under Arizona’s Workers’ Compensation Act. For the
following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 We view the facts and all inferences to be drawn therefrom in
the light most favorable to upholding the ICA’s findings and award. Polanco
v. Indus. Comm’n, 214 Ariz. 489, 490–91, ¶ 2 (App. 2007) (quoting Roberts v.
Indus. Comm’n, 162 Ariz. 108, 110 (1989)).

¶3 At the end of the 2017-18 school year, Smith, a sixty-nine-year-
old reading specialist with the Washington Elementary School District
(WESD), was cleaning her instructional area in preparation for the summer
break. Smith sat down on the floor to clean under some counters, but when
she stood back up, she felt intense pain in her right knee. This pain
continued as she walked to the office to report the injury. The knee swelled
and, two days later, she was examined in the emergency room, where x-
rays showed effusion and arthritis in the knee. Smith was discharged with
crutches and a knee brace and instructed to rest the knee. She saw her
primary care physician a few days later, who instructed her to rest and
continue to use the brace, and referred her to physical therapy when the
swelling resolved.

1 Judge Perkins replaces the Honorable Kenton D. Jones, who was originally

assigned to this panel. Judge Perkins has read the briefs and reviewed the
record.

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Decision of the Court

¶4 Smith filed a workers’ compensation claim in August 2018.
When WESD denied the claim, Smith requested a hearing to challenge the
denial.

¶5 At the hearing, Smith described the knee injury and
treatment. On cross-examination, Smith admitted she had right-knee
surgery in 2005, and, at the time, had been advised her knee was
degenerating and would likely need to be replaced at some point. She also
acknowledged she was told the emergency room x-rays reflected
degenerative disease and osteoarthritis within the knee.

¶6 An orthopedic surgeon who reviewed Smith’s records and
performed an independent medical examination at WESD’s request
testified that pain may occur absent injury or trauma, and he could identify
no evidence of trauma or acute injury that might have caused the right knee
pain Smith experienced. The surgeon explained that a prior knee surgery
can accelerate knee degeneration and opined that Smith’s pain was likely a
manifestation of an existing condition. The fact that Smith’s pain and
swelling resolved within two weeks further indicatedthat no acute injury
or trauma had occurred. Thus, the surgeon concluded that Smith’s pain
and/or injury were a manifestation of her underlying arthritis and
degeneration, not a separate or new injury, and unrelated to her work
activities or the the act of standing from a seated position. No other
witnesses testified.

¶7 After consideration, the administrative law judge (ALJ)
accepted the orthopedic surgeon’s testimony that the pain and swelling
Smith experienced were secondary to her pre-existing arthritis and not
caused by work activities. Accordingly, Smith’s claim was non-
compensable. Smith timely requested administrative review and the judge
summarily affirmed the award. Smith now petitions for review via
statutory special action, which we have the authority to review pursuant to
A.R.S. §§ 12-120.21(A)(2) and 23-951(A) and Arizona Rule of Procedure for
Special Actions 10.

DISCUSSION

¶8 Smith argues the ALJ erred in finding the industrial incident
did not cause or contribute to her knee injury and concluding her claim was
non-compensable. We will affirm the ICA’s decision and award unless
there is no reasonable evidence to support the ALJ’s findings. Lovitch v.
Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002) (citing Salt River Project
v. Indus. Comm’n, 128 Ariz. 541, 544–45 (1981)).

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¶9 To prevail on her workers’ compensation claim, Smith bore
the burden of proving she suffered an injury by accident arising out of and
in the course of her employment. A.R.S. § 23-1021; Ibarra v. Indus. Comm’n,
245 Ariz. 171, 174, ¶ 14 (App. 2018). Under Arizona law, an accident arising
out of and in the course of employment that aggravates a pre-existing
condition to produce further injury is compensable. Martinez v. Indus.
Comm’n, 192 Ariz. 176, 180, ¶ 17 (1998) (citing Murray v. Indus. Comm’n, 87
Ariz. 190, 199 (1960)). In this situation, “an industrial accident need not be
the sole cause of an injury, as long as it is a cause.” Id. (citing Allen v. Indus.
Comm’n, 124 Ariz. 173, 175 (App. 1979)). Moreover, “[i]t has long been the
law of this jurisdiction that where the result of an accident is not clearly
apparent to a layman, [the causal connection] must be determined by expert
medical testimony.” W. Bonded Prods. v. Indus. Comm’n, 132 Ariz. 526, 527
(App. 1982) (collecting cases).

¶10 We find guidance in the analogous case of in Kentucky Fried
Chicken v. Indus. Comm’n, 141 Ariz. 561 (App. 1984). There, a worker with a
hip condition that periodically bothered him before the incident slipped
and fell at work. Id. at 562. The worker lost five days of work and eventually
had surgery to repair the hip, but the uncontested medical testimony was
that the fall did not cause or aggravate the underlying hip condition; it
“merely increased the [worker]’s awareness of his preexisting condition”
and the need to get medical care. Id. at 562–65. We affirmed the ICA’s
conclusion that the industrial accident did not even partially contribute to
the hip condition. Id. at 564–65. We also held that “expert medical testimony
establishing causation was indispensable.” Id. at 565 (citing W. Bonded, 132
Ariz. at 527).

¶11 Here, the undisputed facts reflect that Smith had a pre-
existing degenerative and arthritic condition in her right knee. The
uncontested expert testimony established that it was this condition, and not
anything that happened at work, that caused the pain and swelling Smith
experienced. As in Kentucky Fried, without expert medical testimony linking
the industrial activity to an aggravation of the pre-existing condition, Smith
fails to prove her claim is compensable. Accordingly, we find no error.

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CONCLUSION

¶12 The ICA’s decision and award are affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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