Bernhart v. Industrial Commission

26 P.3d 1181, 200 Ariz. 410, 2001 Ariz. App. LEXIS 101
CourtCourt of Appeals of Arizona
DecidedJune 28, 2001
DocketNo. 1 CA-IC-99-0136
StatusPublished
Cited by3 cases

This text of 26 P.3d 1181 (Bernhart v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernhart v. Industrial Commission, 26 P.3d 1181, 200 Ariz. 410, 2001 Ariz. App. LEXIS 101 (Ark. Ct. App. 2001).

Opinion

OPINION

FIDEL, Judge

¶ 1 The Industrial Commission of Arizona denied Claimant disability and medical compensation for three claims on the statutory grounds of “wilful self-exposure,” A.R.S. § 23-901.04, and “unreasonable refusal or neglect to submit to or follow any competent or reasonable surgical treatment or medical aid.” A.R.S. § 23-1027. Concluding that the Commission misapplied these statutes, we set its decision aside.

I. History

¶ 2 Claimant worked as a baker from 1961 until 1997, and for Respondent Employer Fry’s since 1974. Exposure to flour dust caused her to develop baker’s asthma. Episodic asthma symptoms led her to seek medical treatment and file seven industrial injury claims, including claims with dates of injury [412]*412of February 7, 1994, September 6, 1995, and June 4,1997 (“the 1990s claims”).

¶ 3 Before 1997, each time Claimant’s symptoms subsided, her doctors released her to return to work in the bakery. The doctors also, however, repeatedly cautioned her to avoid exposure to flour dust and sometimes recommended that she consider other employment. For example, in a March 1990 report, Brendan D. Thompson, M.D., stated that Claimant

really needs to avoid the flour dust. She can either wear a mask or respirator at work. She states there are problems with each of these.
Otherwise, she needs to remove herself from that environment. She may be able to do other jobs at work, but the flour dust tends to permeate the area.

Dr. Thompson confirmed that he discussed these conclusions with Claimant.

¶4 Claimant has understood since 1981 that she is allergic to flour dust. Further, according to Claimant, masks failed to protect her from the flour dust. Yet because she wanted to continue earning her union pay scale at a position with job security, she repeatedly returned to the bakery, and because she was able to work for periods without symptoms, she believed that she “was going to be okay and it wouldn’t happen again.” Although Claimant could have maintained her earnings and avoided exposure to flour dust by working as a cake decorator, she explained that she did not apply for this position because the risk of being laid off was too high. Claimant denied that any doctor informed her that she risked permanent damage, as opposed to episodic exacerbation of symptoms, by continually exposing herself to flour dust.

¶ 5 Fry’s then-current production supervisor had known of Claimant’s breathing difficulties since 1987. Fry’s supplied masks but did not require employees to use them. Although the supervisor knew that Claimant wore a mask only intermittently, he never spoke with her about wearing a mask or taking a protected position.

¶ 6 In a consolidated award for non-com-pensable claims, the administrative law judge (“ALJ”) found that Claimant’s flour dust exposure had caused her to develop an occupational disease. He also found, however, that Claimant had known since 1974 that her exposure to flour dust in the bakery was “harmful ... to her pulmonary process.” He concluded that because Claimant “continued to expose herself once she became aware that her work environment was causing her pulmonary problems,” she was not entitled to receive “compensation or disability” under § 23-901.04. He also concluded that because Claimant had knowingly continued to expose herself to an injurious work environment until Dr. Thompson refused to release her back to work, § 23-1027 barred recovery for her 1990s claims.

II. A.R.S. § 23-901.04

¶ 7 Occupational diseases, though covered by workers’ compensation, are subject to strictures that do not apply to other types of industrial injuries. See A.R.S. §§ 23-901.01 to -901.05. Among those strictures, § 23-901.04 denies “compensation for disability from an occupational disease” when a cause of the disability is an employee’s “wilful misconduct, wilful self-exposure or disobedience to ... reasonable rules and regulations adopted by the employer....” A.R.S. § 23-901.04(A). “Wilful self-exposure” is at issue in this case.

A. Non-Compensability

¶ 8 Before reaching Claimant’s argument that the statutory meaning of wilful self-exposure is unsatisfied in her case, we consider her argument that, even if her case is one of wilful self-exposure, the statute does not justify an outright denial of compensability for her occupational disease. We agree.

¶ 9 Both the ALJ and Fry’s misquote § 23-901.04(A) as denying “compensation or disability from an occupational disease.” (Emphasis added.) The statute instead denies “compensation for disability from an occupational disease.” (Emphasis added.) The distinction is significant. The unqualified term “compensation” generally includes both disability and medical benefits. See Sneed v. Belt, 130 Ariz. 229, 232-33, 635 P.2d 517, 520-21 (App.1981) (quoting A.R.S. § 23-[413]*413901(4)). In § 23-901.04, however, the denial is restricted to “compensation for disability.” The statute thus denies only disability compensation under §§ 23-1044 to -1046 and not medical benefits under § 23-1062(A).

¶ 10 An award for a non-compensable claim generally forecloses all benefits and rights under the Workers’ Compensation Act. See, e.g., Vigil v. Indus. Comm’n, 113 Ariz. 292, 293, 552 P.2d 453, 454 (1976). But see Gerhardt v. Indus. Comm’n, 181 Ariz. 215, 218, 889 P.2d 8, 11 (App.1994) (recognizing narrow exception allowing reopening of non-compensable claim as to “unforeseen” medical condition). Because § 23-901.04 denies only disability benefits for an otherwise compensable occupational disease, that statute does not justify the consolidated award finding Claimant’s 1990s claims non-compensable in their entirety. Accordingly, on this basis in and of itself, we must set the Industrial Commission decision aside.

B. Wilful Self-Exposure

¶ 11 We go on however, to consider Claimant’s argument that the provision against wilful self-exposure is inapplicable to her 1990s claims. We consider this argument to guide the Commission on an issue that will recur upon remand. Claimant argues that the provision is inapplicable because her conduct does not fall within the types of behavior identified as “wilful self-exposure” in § 23-901.04(B). Specifically, subsection 23-901.04(B) provides that “the term ‘wilful self-exposure’ includes” the failure to respond truthfully to three types of inquiry by an employer.1

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Bluebook (online)
26 P.3d 1181, 200 Ariz. 410, 2001 Ariz. App. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernhart-v-industrial-commission-arizctapp-2001.