Estate of Plemons v. Industrial Commission

806 P.2d 889, 167 Ariz. 300, 65 Ariz. Adv. Rep. 42, 1990 Ariz. App. LEXIS 239
CourtCourt of Appeals of Arizona
DecidedJuly 17, 1990
DocketNo. 2 CA-IC 89-0051
StatusPublished

This text of 806 P.2d 889 (Estate of Plemons 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
Estate of Plemons v. Industrial Commission, 806 P.2d 889, 167 Ariz. 300, 65 Ariz. Adv. Rep. 42, 1990 Ariz. App. LEXIS 239 (Ark. Ct. App. 1990).

Opinion

OPINION

FERNANDEZ, Chief Judge.

In this workers’ compensation case, the employee’s estate and his widow contend that the administrative law judge (AU) erred in failing to apply the unexplained death presumption and in deeming the widow’s claim denied although no notice of claim status had been issued. We find no error and affirm the award.

Robert Plemons’s body was found on June 11, 1987 near one of the portable toilets that he emptied and cleaned on the route he followed for his employer, J Jon Corporation. Plemons’s duties were to pump out the toilet waste, scrub the tanks and walls, and fill the toilets with chemicals. The acting manager testified that at the time of his death, Plemons was assigned to clean 65 to 75 toilets in Sun City Vistoso and San Manuel. The chemical used by J Jon at that time was called Kan Kleen, and Plemons had been handling it for about two and a half years. Plemons’s wife testified that he had looked gray and ill on the morning of his death and that she had urged him to stay home from work. Two co-workers testified that his appearance that day and the day before was the same as it was any other day.

Pathologist Dr. Allen Jones, who performed the autopsy, testified that Plemons had a 97 to 98% sclerosis of the most important artery of the heart, the left anterior descending artery, that a number of his organs reflected hardening of the arteries, that portions of his heart showed the effects of prior infarcts, and that he had suffered a fatal cardiac arrhythmia. An industrial health specialist and an industrial hygienist gave conflicting opinions. One testified that both the temperature on the date of his death and his exposure to the formaldehyde in Kan Kleen would have affected Plemons. The other testified that neither the heat stress nor the chemical would have affected him. A specialist in internal medicine and pulmonary disease testified that there was no relationship between Plemons’s work activities and his death. A specialist in hematology and oncology testified that Plemons suffered from a lymphoma but that it had required no treatment. He also testified that Plem-ons had a fifteen-year history of diabetes.

Dr. Sullivan, an emergency medicine and medical toxicology specialist, testified that Plemons had a compromised health status at the time he died and that any increase in his physical activity could have caused the arrhythmia. On cross-examination, he testified that Plemons was “a walking time bomb.”

Cardiologist Dr. Brendon Phibbs testified that Plemons died from cardiac arrhythmia brought on by severe coronary artery disease. He testified that Plemons’s death had nothing to do with his occupation. In addition, he testified that ordinary life activities can precipitate cardiac arrhythmia in persons with severe heart disease such as Plemons had. The AU resolved the conflict in medical opinions in favor of Dr. Phibbs.

Two claims were filed, one by Plemons’s estate for medical expenses incurred because of his death, and one by his widow. The Industrial Commission notified the carrier of the widow’s claim on October 26, 1987. The carrier did not issue a notice of claim status as to that claim. At an informal conference on May 20, 1988, the AU found that the widow’s claim was deemed to be denied.

During the several hearings held in this case, petitioner contended that the deceased’s work activities had caused or contributed to his death. Petitioner attempted to present evidence that the chemical mixture used to clean the toilets had caused or contributed to his death. In addition, petitioner argued that the deceased had sustained cardiac arrhythmia because of job stress and/or heat stress and that his work activities were a substantial contributing cause of his death.

[302]*302The AU found that petitioner had not established that job-related stress and exertion were a substantial contributing cause of Plemons’s death and denied both claims. Petitioner was awarded penalty benefits on her widow’s claim from October 26, 1987, the date the claim was filed, to May 20, 1988, the date the AU had deemed the claim denied.

On review, petitioner contends that the AU erred in failing to consider and apply the unexplained death presumption, arguing that the findings were insufficient under the holding of Post v. Industrial Commission, 160 Ariz. 4, 770 P.2d 308 (1989). She also contends that the AU erred in awarding penalty benefits only through May 20, 1988, noting that the carrier never sent a notice of claim status denying the claim.

UNEXPLAINED DEATH PRESUMPTION

In her post-hearing memorandum, petitioner argued that the unexplained death presumption should apply. Our supreme court has explained the presumption as follows:

‘[Wjhen it is shown that an employee was found dead at a place where his duties required him to be, or where he might properly have been in the performance of his duties during the hours of his work, in the absence of evidence that he was not engaged in his master’s business, there is a presumption that the accident arose out of and in the course of the employment within the meaning of the compensation acts.’

Downes v. Industrial Commission, 113 Ariz. 90, 93, 546 P.2d 826, 829 (1976), quoting Martin v. Industrial Commission, 73 Ariz. 401, 404-05, 242 P.2d 286, 288 (1952) (emphasis in Downes). The presumption applies to the requirement that the injury occur in the course and scope of the claimant’s employment; it may or may not apply to the requirement that the injury arise out of the employment. See Konichek v. Industrial Commission, 167 Ariz. 296, 806 P.2d 885 (App.1990) and Bennett v. Industrial Commission, 163 Ariz. 534, 789 P.2d 401 (App.1990).

Petitioner complains initially that the AU did not consider the presumption. Because Plemons did not die as the result of an accident but as the result of heart disease, we must also address, as did the AU, the applicable statute. A.R.S. § 23-1043.01(A) provides:

A heart-related or perivascular injury, illness or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this chapter unless some injury, stress or exertion related to the employment was a substantial contributing cause of the heart-related or perivascular injury, illness or death.

Thus, the fact that Plemons was found dead at one of the toilets along his route is not sufficient in and of itself to require the payment of benefits. The term “substantial contributing cause” means more than insubstantial or slight but less than predominant. Skyview Cooling Co. v. Industrial Commission, 142 Ariz. 554, 691 P.2d 320 (App.1984). See also Phelps v. Industrial Commission, 155 Ariz.

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Related

Post v. INDUSTRIAL COM'N OF ARIZONA
770 P.2d 308 (Arizona Supreme Court, 1989)
Martin v. Industrial Commission
242 P.2d 286 (Arizona Supreme Court, 1952)
Aguiar v. INDUSTRIAL COM'N OF ARIZONA
797 P.2d 711 (Court of Appeals of Arizona, 1990)
Phelps v. INDUSTRIAL COM'N OF ARIZONA
747 P.2d 1200 (Arizona Supreme Court, 1987)
Bennett v. Industrial Com'n of Arizona
789 P.2d 401 (Court of Appeals of Arizona, 1990)
Konichek v. Industrial Com'n of Arizona
806 P.2d 885 (Court of Appeals of Arizona, 1990)
Skyview Cooling Co. v. Indus. Com'n of Ariz.
691 P.2d 320 (Court of Appeals of Arizona, 1984)
Downes v. Industrial Commission
546 P.2d 826 (Arizona Supreme Court, 1976)

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Bluebook (online)
806 P.2d 889, 167 Ariz. 300, 65 Ariz. Adv. Rep. 42, 1990 Ariz. App. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-plemons-v-industrial-commission-arizctapp-1990.