Mont Polanco v. Ica Pima County

FILED BY CLERK
IN THE COURT OF APPEALS MAR 29 2007
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO

MONT POLANCO, )
) 2 CA-IC 2006-0025
Petitioner Employee, ) DEPARTMENT B
)
v. ) OPINION
)
THE INDUSTRIAL COMMISSION OF )
ARIZONA, )
)
Respondent, )
)
PIMA COUNTY, )
)
Respondent Employer and Insurer. )
)

SPECIAL ACTION - INDUSTRIAL COMMISSION

ICA Claim No. 20012780067

Insurer No. 20011041WW

Thomas A. Ireson, Administrative Law Judge

AWARD AFFIRMED

Les Gilbertson, JD, PC
By Les Gilbertson Tucson
Attorney for Petitioner/Employee

The Industrial Commission of Arizona Phoenix
By Laura L. McGrory Attorney for Respondent

Goering, Roberts, Rubin, Brogna, Enos
& Treadwell-Rubin, P.C. Tucson
By Pamela Treadwell-Rubin and Attorneys for Respondent
Elizabeth L. Warner Employer and Insurer
B R A M M E R, Judge.

¶1 In this statutory special action, petitioner Mont Polanco contends the

administrative law judge (ALJ) erred in denying his petition to reopen his workers’

compensation claim. The ALJ determined Polanco had failed to demonstrate “objective

physical findings of [a] change in [Polanco’s] condition” as required by A.R.S.

§ 23-1061(H). Polanco argues § 23-1061(H) is unconstitutional as applied to his case.

Finding no error, we affirm the award.

Factual and Procedural Background

¶2 “On review of an Industrial Commission award, we must view the evidence

in the light most favorable to sustaining the Industrial Commission’s findings and award.”

Roberts v. Indus. Comm’n, 162 Ariz. 108, 110, 781 P.2d 586, 588 (1989). Polanco injured

his back in September 2001, in the course and scope of his employment with Pima County,

while lifting a rock out of a manhole. His subsequent workers’ compensation claim was

accepted for benefits, and he underwent diskectomy surgery. Polanco’s claim was closed in

February 2003, but he continued to receive treatment for his back injury, “including caudal

epidural injections” that “markedly improved [his] pain and allowed him to work full-time.”

After an industrial motor vehicle accident in August 2004, the injections became less

effective. In late 2005, his physician, Dr. Randall Prust, recommended Polanco have a spinal

cord stimulator implanted to control his pain.

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¶3 Polanco filed a petition to reopen his claim in November 2005, which the

insurer denied. At the subsequent hearing on that petition, Dr. Prust testified that scarring

in Polanco’s spine had worsened and was causing “more pain” and “reducing the efficacy

of the caudal epidurals.” Prust testified the reports prepared by a radiologist comparing

Polanco’s results from magnetic resonance imaging (MRI) examinations of his spine showed

“some enhancing epidural tissue,” or changes in scar tissue, near Polanco’s spinal nerve

roots. Prust admitted, however, that he had not personally reviewed the MRI films.

¶4 Dr. Kurt Schroeder testified he had reviewed MRI films of Polanco’s spine and

those images contained no “objective evidence of a new, additional or previously

undiscovered condition” or a “worsening between 2002 and 2006 of [Polanco’s] scar tissue.”

Schroeder also stated his physical examination of Polanco did not indicate any “worsening

of the scar tissue.” He did not express an opinion whether Polanco was a good candidate for

a spinal cord stimulator.

¶5 After the hearing, the ALJ found there was “no material conflict” that the

epidural injections were “not as effective anymore,” but adopted Schroeder’s opinion “that

there were no objective changes shown on [the MRI films].” The ALJ denied Polanco’s

petition to reopen his claim but awarded him additional supportive medical maintenance

benefits for “insertion of a spinal cord stimulator.” 1 Polanco then filed a request for review

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Polanco asserts the grant of his petition to reopen would compensate him for “lost
wages due to the intractable pain since filing the Petition to Reopen” and “any wages lost for
that period of time in which the treatment requires he be off-work” instead of just the costs
associated with insertion of the spinal cord stimulator covered by the supportive care award.
Although Polanco asserts the ALJ “erred in providing [the spinal cord stimulator] under

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of that decision, asserting, inter alia, that § 23-1061(H) is unconstitutional as applied to his

case. The ALJ affirmed his award on review and this statutory special action followed.

Discussion

¶6 Section 23-1061(H) governs the reopening of workers’ compensation claims

and requires an employee to prove the existence of “a new, additional or previously

undiscovered temporary or permanent condition” to reopen a claim. And the employee must

show a causal relationship between the new condition and a prior industrial injury. Stainless

Steel Specialty Mfg. Co. v. Indus. Comm’n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985).

Section 23-1061(H) was modified in 1999 to preclude reopening a claim based on an

employee’s “increased subjective pain if the pain is not accompanied by a change in

objective physical findings.” 1999 Ariz. Sess. Laws, ch. 331, § 9. Polanco’s sole argument

in this statutory special action is that the objective physical findings requirement is

unconstitutional as applied to his case.2 “We deferentially review the ALJ’s factual findings

supportive care” and insertion of the spinal cord stimulator is more properly characterized
as “active care,” we do not view this statement as an argument the supportive care award
should be set aside, but instead simply as support for his contention that his medical needs
have changed. Pima County does not argue that the supportive care award should be set
aside.
2
In his request for review filed below, Polanco argued that, even if the physical
findings requirement of A.R.S. § 23-1061(H) was constitutional, insertion of the spinal cord
stimulator was a “new treatment” and, thus, would be a proper basis for reopening his claim
under Stainless Steel irrespective of whether he provided objective physical findings. In that
case, which preceded the physical findings requirement amendment to § 23-1061(H), our
supreme court held “a difference . . . in the medical procedures necessary to treat [an injury]”
would support reopening a claim. 144 Ariz. at 19, 695 P.2d at 268. Although Polanco
mentions this argument in passing in his opening brief, he cites no relevant supporting
authority and does not develop it further. Accordingly, we conclude he has waived this issue

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but independently review his legal conclusions.” Grammatico v. Indus. Comm’n, 208 Ariz.

10, ¶ 6, 90 P.3d 211, 213 (App. 2004). “We analyze the constitutionality of a statute de

novo, beginning with the strong presumption that the statute is constitutional.” Id.

¶7 The constitutional basis for Arizona’s workers’ compensation law is found in

article XVIII, § 8 of the Arizona Constitution and

mandates that an employee receive workers’ compensation if the
employee is injured in “any accident arising out of and in the
course of . . . employment,” and the injury “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, or by failure of such employer or its agents or
employee or employees to exercise due care.”

Grammatico v. Indus. Comm’n, 211 Ariz. 67, ¶ 1, 117 P.3d 786, 787 (2005), quoting Ariz.

Const. art. XVIII, § 8 (alteration in Grammatico). For a worker to be compensated for an

injury, he or she must prove “both legal and medical causation.” Id. ¶ 19. Legal causation

has three elements:

First, the employee must have been acting in the course of
employment. Second, the employee must have suffered a
personal injury from an accident arising out of and in the course
of such employment. Third, the resulting injury must have been
caused in whole or in part, or contributed to, by a necessary risk
of the employee’s employment, or a necessary risk or danger
inherent in the nature of that employment or the employer’s lack
of due care.

and do not address its merits. See Ariz. R. Civ. App. P. 13(a)(6), 17B A.R.S. (appellant’s
brief must contain argument with citations to authority); Ariz. R. P. Spec. Actions 10(k), 17B
A.R.S. (Arizona Rules of Civil Appellate Procedure apply to special action review of
industrial commission awards); In re $26,980.00 U.S. Currency, 199 Ariz. 291, ¶ 28, 18 P.3d
85, 93 (App. 2000) (“[Appellee’s] bald assertion is offered without elaboration or citation
to any . . . legal authority. We will not consider it.”).

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Id. “Medical causation, in contrast, is established by showing that the accident caused the

injury.” Id. ¶ 20; see also DeSchaaf v. Indus. Comm’n, 141 Ariz. 318, 320, 686 P.2d 1288,

1290 (App. 1984) (“Legal causation concerns whether the injury arose out of and in the

course of the employment. On the other hand, medical causation ordinarily requires expert

medical testimony to establish that the industrial accident caused the injury.”) (citation

omitted).

¶8 In Grammatico, our supreme court stated article XVIII, § 8 “addresses legal

causation” and determined “the legislature may not define legal causation in a way that

conflicts with [that section] because the legislature ‘cannot enact laws which will supersede

constitutional provisions adopted by the people.’” 211 Ariz. 67, ¶¶ 19, 21, 117 P.3d at 790,

791, quoting Kilpatrick v. Superior Court, 105 Ariz. 413, 416, 466 P.2d 18, 21 (1970). But

the court also stated, “Article 18, Section 8 does not limit the legislature’s power to enact

legislation affecting medical causation,” id. ¶ 20; therefore, “the legislature has some latitude

to establish the requisite medical causation for workers’ compensation recovery.” Id. ¶ 21.

¶9 Polanco reasons “§ 23-1061(H) effectively abrogates otherwise compensable

claims for a class of injuries,” specifically, “subjective injury,” regardless of whether the

employee can show causation. Thus, he argues the “objective physical findings” requirement

impermissibly limits legal causation because “the Arizona Constitution requires

compensation for all injured workers—not just those who can provide objective evidence of

subjective complaints—or are lucky enough to be filing their claim for the first time and not

just attempting to reopen.”

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¶10 Central to Polanco’s argument is his assertion that subjective pain, standing

alone, is a compensable injury under article XVIII, § 8. As we understand his argument, he

reasons that, if subjective pain is a compensable injury, then requiring objective evidence of

that injury limits an employee’s ability to show legal causation because the employee would

have to “show the un-showable—objective evidence of subjective injury.” Relying primarily

on Simpson v. Industrial Commission, 189 Ariz. 340, 942 P.2d 1172 (App. 1997), he asserts

that case stands for the proposition that “disabling pain resulting from an industrial injury

constitutes a compensable injury.” The employee in Simpson had suffered a back and neck

injury. Id. at 342, 942 P.2d at 1174. The ALJ denied benefits, finding the employee had not

shown his inability to return to work was related to his injury and, in the alternative,

determining his injury was not compensable because residual pain did not “constitute a

ratable permanent impairment under the . . . [American Medical Assocation] Guides [to the

Evaluation of Permanent Impairment].” Id. Division One of this court held the employee

had shown his medical condition was attributable to his industrial accident, id. at 343-44, 942

P.2d at 1175-76, and the American Medical Association Guides were not the exclusive

means by which the employee could demonstrate impairment from an injury caused by that

accident. Id. at 346, 942 P.2d at 1176. Nothing in Simpson suggests the employee had not

provided objective physical evidence of his injury. See id. at 343, 942 P.2d at 1175. Thus,

Simpson does not hold that pain, standing alone, is a compensable injury; it holds only that

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subjective pain is relevant to determining the degree of impairment resulting from an injury.3

Impairment is not synonymous with injury; impairment results from injury. Cf. Moreno v.

Indus. Comm’n, 122 Ariz. 298, 299, 594 P.2d 552, 553 (App. 1979) (“[The employee] failed

in his burden of proof that any functional impairment resulted from the industrial injury.”).

¶11 Arizona’s constitution and workers’ compensation statutes do not define the

term “injury.” Our supreme court, however, has long held an accidental injury occurs “when

usual exertion leads to something actually breaking or letting go with an obvious sudden

organic or structural change in the body.” Phelps Dodge Corp. v. Cabarga, 79 Ariz. 148,

153, 285 P.2d 605, 608 (1955) (emphasis added); see also Caganich v. Indus. Comm’n, 108

Ariz. 580, 581, 503 P.2d 801, 802 (1972); Paulley v. Indus. Comm’n, 91 Ariz. 266, 272, 371

P.2d 888, 892 (1962); Sun Control Tile Co. v. Indus. Comm’n, 117 Ariz. 268, 270, 571 P.2d

1064, 1066 (App. 1977).4 Although these cases defined “accidental injury,” the courts

focused their analysis on whether the employee had suffered an accident under that

3
In Cassey v. Industrial Commission, 152 Ariz. 280, 283, 731 P.2d 645, 648 (App.
1987), on which the employee in Simpson v. Industrial Commission, 189 Ariz. 340, 344, 942
P.2d 1172, 1176 (App. 1997), relied, Division One of this court stated an employee “must
establish the disabling effect of the industrial injury in order to establish a permanent
impairment. This is true when residual pain is the permanent injury because pain is
compensable as an impairment only when it is disabling.” Although the court in Cassey
described “residual pain” as an “injury,” it did not define the term “injury” nor address
whether such pain is an injury for the purpose of article XVIII, § 8, but instead considered
whether disabling pain was relevant in determining the employee’s degree of impairment.
152 Ariz. at 281, 283, 731 P.2d at 646, 648 (employee had chronic “thoracolumbar sprain”).
4
Arizona law also permits an employee to receive compensation for gradual injuries.
See Reilly v. Indus. Comm’n, 1 Ariz. App. 12, 15, 398 P.2d 920, 923 (1965); see also Ford
v. Indus. Comm’n, 145 Ariz. 509, 516-17, 703 P.2d 453, 460-61 (1985) (citing Reilly).

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definition. The definition of “accidental injury,” however, necessarily encompasses the

definition of “injury.” Moreover, Arizona’s definition is consistent with those found in

treatises and adopted in other jurisdictions. See Black’s Law Dictionary 801 (8th ed. 2004)

(“bodily injury” is “[p]hysical damage to a person’s body”);5 3 Arthur Larson & Lex. K.

Larson, Larson’s Workers’ Compensation Law ch. 55, at 55-1 (2006) (“[p]ersonal injury” is

a “harmful change in the body”); Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 680

(Tenn. 2005) (“An ‘injury’ includes a change in any part of a person’s system that produces

harm or pain or lessens the natural use or capability of the body.”); Lane Co. v. Saunders,

326 S.E.2d 702, 703 (Va. 1985) (injury is “‘an obvious sudden mechanical or structural

change in the body’”), quoting Va. Elec. & Power Co. v. Cogbill, 288 S.E.2d 485, 486 (Va.

1982). Indeed, the Oklahoma Supreme Court has specifically excluded pain from the

definition of injury. Fenwick v. Okla. State Penitentiary, 792 P.2d 60, 62 (Okla. 1990)

(“This Court has consistently held that physical injury must be present for a disability to be

compensable. Just as physical symptoms such as pain, tingling of the limbs, and nausea do

not constitute accidental injury, neither does mental stress.”) (footnotes omitted).

¶12 Subjective pain does not fall under Arizona’s definition of an injury.

Therefore, because subjective pain is not an injury within the meaning of article XVIII, § 8

of the Arizona Constitution, § 23-1061(H) does not unconstitutionally eliminate it as a type

5
Polanco cites the Sixth Edition of Black’s Law Dictionary 786 (1990) (emphasis
deleted), which includes “[p]hysical pain” in its definition of “bodily injury.” That phrase,
however, was removed from the definition of “bodily injury” in the subsequent edition. See
Black’s Law Dictionary 789 (7th ed. 1999) (emphasis deleted).

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of compensable injury. And the objective physical findings requirement of § 23-1061(H)

does not address either legal or medical causation. That requirement instead makes clear that

subjective pain alone cannot support a petition to reopen a claim. Rather, subjective pain

must be directly related to the degree of impairment resulting from an objective physical

change. See Simpson, 189 Ariz. at 346, 942 P.2d at 1178.

¶13 We affirm the award.

J. WILLIAM BRAMMER, JR., Judge

CONCURRING:

PETER J. ECKERSTROM, Presiding Judge

PHILIP G. ESPINOSA, Judge

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