Trimble v. capital/xl

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KEVIN TRIMBLE, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

CAPITAL GRILLE HOLDINGS, Respondent Employer,

XL INSURANCE AMERICA, Respondent Carrier.

No. 1 CA-IC 21-0022
FILED 2-1-2022

Special Action - Industrial Commission
ICA Claim No. 20200-670001
Carrier Claim No. 006829-487189-WC-01
The Honorable Rachel C. Morgan, Administrative Law Judge

AFFIRMED

COUNSEL

Crossman Law Offices, PC, Phoenix
By Avery N. Crossman
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Lundmark Barberich LaMont & Slavin PC, Phoenix
By Lisa M. LaMont
Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Maria Elena Cruz joined.

P E R K I N S, Judge:

¶1 Kevin Trimble asks us to set aside an Industrial Commission
of Arizona (“ICA”) Award that finds his injury non-compensable. We
affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Trimble worked as a restaurant server for Capital Grille
Holdings in February 2020. On a busy Saturday night, and after working a
double shift, Trimble collapsed and struck his head on the kitchen floor.
Several co-workers were nearby, but no one saw Trimble’s fall. One of them
heard Trimble hit the floor behind her, immediately turned toward him,
and saw him “seizing” on the floor with blood under his head. Others
rushed in and witnessed the same thing. Trimble’s coworker drove him to
a hospital, where he underwent brain surgery for a “rapidly enlarging
hematoma.” The surgery was successful, and Trimble left the hospital a few
days later.

¶3 XL Insurance America denied Trimble’s worker’s
compensation claim. Trimble challenged the denial of his claim, and the
ICA held a hearing. Trimble, four of his co-workers, and two medical
experts testified. Trimble testified he did not remember falling to the floor,
although he remembered feeling lightheaded within the hour before he fell.
He believed he may have briefly lost consciousness. Trimble did not take
any significant breaks and he ate only a few french fries during his shifts.
He testified he suffered a single seizure about eight years before his fall but
had received no subsequent treatment for seizures.

¶4 Trimble’s co-workers each testified that they did not see
Trimble fall but had observed him appear to have a seizure while on the

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floor. One of his co-workers testified Trimble rubbing his eyes and saying
he was tired before the fall. There is no record evidence of any tripping or
slipping hazards on the floor. None of the witnesses testified that Trimble
hit his head on anything other than the floor.

¶5 Dr. Abhishiek Sharma, the neurosurgeon who performed
Trimble’s emergency craniotomy, testified the surgery was necessitated by
a “rapidly expanding hematoma on [Trimble’s] brain” caused by recent
head trauma. A pre-operation CT scan showed no sign of an aneurysm.
Sharma could not say with certainty whether Trimble’s employment
caused him to fall, though Sharma acknowledged it was possible.

¶6 Dr. Leo Kahn, a neurologist, also testified after reviewing
Trimble’s medical records. Kahn assumed Trimble fell without tripping,
slipping, or being pushed. Kahn agreed with Sharma that Trimble’s head
hitting the floor caused Trimble’s head trauma. Kahn identified five
possible medical reasons to explain Trimble’s collapse: (1) dehydration; (2)
low blood pressure; (3) irregular heartbeat; (4) seizure; and (5) an unknown
reason that caused Trimble to faint. Kahn ruled out the first two possibilities
because Trimble’s lab results showed he was not dehydrated or suffering
from low blood pressure. Kahn ruled out a heart problem because Trimble
did not have low blood pressure or a history of heart disease. Kahn did not
know whether the seizure resulted from Trimble’s head hitting the floor or
whether the seizure occurred while he was standing and caused him to fall.
But Kahn concluded a seizure was the most likely explanation for Trimble’s
fall given Trimble’s prior seizure. Kahn admitted he could not rule out that
Trimble had slipped and then fell, and he agreed he did not “know” what
caused Trimble’s fall.

¶7 The administrative law judge (“ALJ”) found the lay witnesses
credible and Kahn’s opinion “more probably correct.” The ALJ thus found
Trimble’s claim non-compensable. Trimble now brings this special action
review.

DISCUSSION

¶8 We defer to the ALJ’s factual findings, but we review
questions of law de novo. Young v. Indus. Comm’n, 204 Ariz. 267, 270, ¶ 14
(App. 2003). Claimants must prove all elements of a compensable claim.
Toto v. Indus. Comm’n, 144 Ariz. 508, 512 (App. 1985). Compensability
requires both legal and medical causation. Grammatico v. Indus. Comm’n, 211
Ariz. 67, 71, ¶ 19 (2005). A claimant establishes legal causation by
demonstrating the accident arose out of and in the course of employment.

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Id. A claimant proves medical causation by establishing that the accident
caused the injury. Id. at ¶ 20. Here, the parties agree Trimble’s injury
occurred within in the course of his employment and was caused by his
head hitting the floor.

¶9 The parties only dispute whether Trimble suffered an
unexplained or idiopathic fall. An unexplained fall is one where no
explanation whatsoever is offered for the injury. Circle K Store No. 1131 v.
Indus. Comm’n, 165 Ariz. 91, 95 (1990). An idiopathic fall is one which results
from a pre-existing infirmity and is non-compensable. Id. at 93.

¶10 There are three types of injury risks from employment:
employment-related risks; personal risks; and neutral risks. Id. at 95 n.4. As
relevant here, an unexplained fall is considered a neutral risk, “one neither
distinctly associated with the employment nor personal to claimant.” Id. In
Circle K, a worker fell in the parking lot while taking out trash. While the
worker remembered falling there were no witnesses and neither party
could explain why the worker fell. Id. at 92-93, 96. Our Supreme Court
adopted the positional-risk doctrine for cases involving neutral risks. Id. at
96. “An injury arises out of the employment if it would not have occurred
but for the fact that . . . the employment placed claimant in the position
where he was injured.” Id. (cleaned up). In the case of an unexplained fall,
the injured worker is entitled to a rebuttable presumption that the injuries
from the fall arose out of the employment. Id. at 96. This presumption shifts
the burden from the injured worker to the employer to prove an injury
cause unrelated to employment.

¶11 In Hypl v. Indus. Comm’n, we reached the same conclusion by
a different route. 210 Ariz. 381 (App. 2005). There, New Mexico police
stopped an erratic driver transporting goods from Nogales to El Paso. Id. at
383, ¶ 2. Police discovered the driver was injured and rushed him to a
hospital with a fractured skull, which required emergency surgery. Id. at
¶¶ 2–3. When the driver awoke from an eight-hour post-surgery coma, he
could not remember what caused his injury. Id. at ¶ 3. The ICA found his
claim non-compensable because he had not shown that the injury was
connected to his employment. Id. at ¶¶ 2–4. We concluded when there are
no witnesses, and a worker is found injured on the job, he was in the course
and scope of employment and entitled to the “unexplained death
presumption.” Id. at 386, ¶ 13. “[T]he unexplained death presumption
softens both the in the course of employment element and the arising out of
employment element.” Id. (emphasis added). We applied the presumption
to cases in which the worker is not killed but the injury removed the only
possible witness, the worker himself, holding:

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if [the injured worker] can provide a sufficient
factual basis to allow an inference that he was
injured in the time and space limitations of his
employment, he is entitled to a presumption
that his injury occurred in the course of and
arose out of his employment.

Id. at 388, ¶ 21.

¶12 Trimble’s only allegation of error is that the ALJ failed to
apply the unexplained fall presumption when it analyzed whether the
injury arose out of his employment. While it may be true the ALJ evaluated
whether Trimble’s fall was idiopathic referencing Circle K., when it should
have relied on Hypl because of the lack of witnesses and Trimble’s memory
loss, we find no error. Although the ALJ’s decision is not a model of clarity,
the ALJ nonetheless correctly analyzed whether Respondents rebutted the
presumption, despite its citations to Circle K. The ALJ properly identified
the issue as “whether this injury arose out of the employment.” The ALJ
then noted an unexplained fall “is rebuttably presumed to ‘arise out of’
employment if the fall occurred ‘in the course of’ employment,” citing Circle
K. Finally, the ALJ found Respondents “demonstrated sufficient evidence
to rebut the presumption under Circle K.” The ALJ then described Trimble’s
fall as “idiopathic,” but we do not believe this caused any legal harm to
Trimble. Whether the fall was idiopathic, and thus not compensable, see
Circle K., 165 Ariz. at 93, or Respondents rebutted the presumption that the
injury arose out of employment, the record supports the ALJ’s conclusion
that the employment did not contribute to Trimble’s injury. Kahn’s
unrebutted testimony indicated a seizure most likely caused Trimble’s fall.
The ALJ thus properly found that Respondents rebutted the Hypl
presumption.

CONCLUSION

¶13 We affirm the Award.

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

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