Fry's Food Stores v. Industrial Commission

845 P.2d 504, 173 Ariz. 578, 121 Ariz. Adv. Rep. 45, 1992 Ariz. App. LEXIS 240
CourtCourt of Appeals of Arizona
DecidedSeptember 10, 1992
DocketNo. 1 CA-IC 91-059
StatusPublished
Cited by1 cases

This text of 845 P.2d 504 (Fry's Food Stores 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
Fry's Food Stores v. Industrial Commission, 845 P.2d 504, 173 Ariz. 578, 121 Ariz. Adv. Rep. 45, 1992 Ariz. App. LEXIS 240 (Ark. Ct. App. 1992).

Opinion

OPINION

GARBARINO, Judge.

JURISDICTION

This is a special action review of an industrial commission award denying apportionment under both the occupational disease and the industrial injury apportionment statutes. See Ariz.Rev.Stat.Ann. (“A.R.S.”) sections 23-901.05, -1044(E), The Administrative Law Judge concluded that apportionment under both statutes requires a preexisting earning capacity dis[579]*579ability and that although respondent employee (claimant) had a preexisting impairment, it was not earning capacity disabling before the April, 1986, industrial “injury.” After a timely request for review by petitioner employer (Fry’s), the Administrative Law Judge affirmed his prior findings and award. Thereafter, Fry’s timely filed this special action. We have jurisdiction pursuant to A.R.S. sections 23-951(A), 12-120.-21(A) and Rule 10, Rules of Procedure for Special Actions. We set aside the award because the Administrative Law Judge misinterpreted section 23-901.05 to require a preexisting earning capacity disability.

ISSUE

Do the apportionment provisions set forth in A.R.S. section 23-901.05 apply where a preexisting, nondisabling impairment not itself compensable is aggravated, prolonged, accelerated or contributed to by an occupational disease which is compensable?

FACTS AND PROCEDURAL BACKGROUND

In April, 1986, the claimant, a custodial worker in Fry’s central bakery since 1979, fainted at work. Fry’s, which is self-insured, accepted his claim for compensation. However, it terminated temporary benefits without permanent impairment as of September, 1986. The claimant protested, and the dispute proceeded to hearing.

Fry’s conceded that the claimant had a severe respiratory impairment. The claimant admitted having smoked two packs of cigarettes a day for thirty-seven years. Fry's produced medical evidence that the claimant’s smoking had caused chronic obstructive pulmonary disease, which was solely responsible for his current impairment. The claimant produced medical evidence that he had both chronic obstructive pulmonary disease from smoking and “baker’s lung” from exposure to flour at work. The latter contributed ten to fifteen percent of the respiratory impairment. The Administrative Law Judge accepted the claimant’s expert. On review, this court set aside the award, but the supreme court vacated this decision and affirmed the award. See Fry’s Food Stores v. Industrial Comm’n, 161 Ariz. 119, 123, 776 P.2d 797, 801 (1989).

The commission subsequently awarded a permanent total disability. However, at Fry’s request, it amended this award to apportion the disability between industrial and nonindustrial causes, attributing only fifteen percent to the industrial injury. Both parties requested a hearing, Fry’s to protest the total disability award and the claimant to protest the apportionment.

At the ensuing hearings, Fry’s produced medical evidence that baker’s lung is an occupational disease under A.R.S. section 23-901.01; that it aggravated, prolonged, accelerated, or contributed to the preexisting chronic obstructive pulmonary disease; that the chronic obstructive pulmonary disease progressively worsened after April, 1986, as a result of the claimant’s persistent smoking; and that the claimant nevertheless remained capable of sedentary work. The claimant in turn produced medical evidence that the baker’s lung was the proverbial last straw culminating in a total disability. The claimant’s expert again conceded that the preexisting chronic obstructive pulmonary disease caused eighty-five percent of the respiratory impairment and that the baker’s lung caused ten to fifteen percent of this impairment.

The Administrative Law Judge issued the award for a permanent total disability without apportionment. He accepted the claimant’s medical evidence, concluding that apportionment under section 23-901.05 requires a preexisting earning capacity disability. He made the following findings:

While applicant had a pre-existing impairment, the evidence is insufficient to establish same was disabling prior to industrial episode. There was no evidence presented that prior to industrial events applicant was unable to perform job or his earning capacity was affected.

He affirmed on administrative review, and Fry’s timely brought this special action.

On review, Fry’s asserts that the Administrative Law Judge misinterpreted section [580]*58023-901.05. Fry’s argues that the term “disability” as used in this section means a medical or physical disability. The claimant argues that the Administrative Law Judge correctly interpreted “disability” to mean a preexisting earning capacity disability.

DISCUSSION

We find that A.R.S. section 23-901.05 mandates that where there is a preexisting, nondisabling impairment not itself compensable which is aggravated, prolonged, accelerated or contributed to by an occupational disease which is compensable, apportionment is applicable. We further find that a preexisting impairment does not need to be work-disabling for the apportionment statute to apply. It is only necessary that the occupational disease contributing to it be sufficient to create a compensable disability.

We arrive at our conclusion by interpreting the provisions of A.R.S. section 23-

901.05 which reads:

Where an occupational disease, as defined by § 23-901, paragraph 12, subdivision (c), is aggravated by any other disease or infirmity not itself compensable, or where disability or death from any other cause not itself compensable is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the compensation payable under this chapter shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death, as such occupational disease as a causative factor bears to all the causes of such disability or death. [Emphasis added.]

Statutory interpretation is a question of law to which we apply an independent judgment standard of review. E.g., Parker v. Vanell, 170 Ariz. 350, 351, 824 P.2d 746, 747 (1992). Our goal in interpreting statutes is to effectuate the intent of the legislature. E.g., State Compensation Fund v. Nelson, 153 Ariz. 450, 453, 737 P.2d 1088, 1091 (1987). The language of the statute and the act of which it is part is the primary evidence of legislative intent, e.g., id., but we also infer intent from the history of the statute and act, e.g., Carrow Co. v. Lusby, 167 Ariz. 18, 20, 804 P.2d 747, 749 (1990), and their general purpose, e.g., City of Tucson v. Superior Court, 165 Ariz. 236, 240, 798 P.2d 374, 378 (1990). We also must apply general statutory rules of interpretation, see Parker, 170 Ariz. at 351, 824 P.2d at 747, which provide that statutory language has its ordinary meaning, A.R.S. § 1-213

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845 P.2d 504, 173 Ariz. 578, 121 Ariz. Adv. Rep. 45, 1992 Ariz. App. LEXIS 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frys-food-stores-v-industrial-commission-arizctapp-1992.