State Compensation Fund v. Keefe

526 P.2d 1266, 22 Ariz. App. 311, 1974 Ariz. App. LEXIS 473
CourtCourt of Appeals of Arizona
DecidedOctober 8, 1974
Docket1 CA-IC 969
StatusPublished
Cited by13 cases

This text of 526 P.2d 1266 (State Compensation Fund v. Keefe) 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
State Compensation Fund v. Keefe, 526 P.2d 1266, 22 Ariz. App. 311, 1974 Ariz. App. LEXIS 473 (Ark. Ct. App. 1974).

Opinion

OPINION

FROEB, Judge.

This is a review of a compensation award of the Industrial Commission entered in favor of the respondent, Frank E. Keefe. The State Compensation Fund appeals the Commission’s finding of an injury arising out of and in the course of employment, as well as the sufficiency of the medical evidence appearing in the record to support the award.

Frank Keefe was employed by the Fund as a claims investigator. On March 31, 1971, he had occasion to travel from Tucson to Bisbee to investigate a claim for the Fund. After he completed his investigation work, Keefe decided to gather some information in Bisbee for an article he was preparing to publish in the “Innercom,” a publication of his employer, the petitioner.

In the course of gathering this information, Keefe found it necessary to descend 125 feet to the bottom of a mill and to ascend thereafter by means of a stairwell of *313 approximately thirty degrees inclination and separated frequently by landings or levels. As Keefe ascended from the mill, he became extremely short of breath and suffered from chest pains. He found it necessary to stop at the landings in order to rest before proceeding on to the next set of stairs. Upon completing the ascent, Keefe rested for ten more minutes before leaving the mill area in his car. He proceeded to return to Tucson, but a short distance outside Bisbee he had to pause at a roadside comfort stop by lying prone atop a picnic table for another thirty minutes.

Keefe failed to report this incident to his employer or his physician. In fact, he continued his normal routine without visiting his doctor for a checkup of any kind. Finally, on April 21, 1971, while suffering from chest pains and breathing exhaustion, and having had a weight loss of approximately forty pounds, Keefe visited his family physician, Dr. Stanley Kitt, who thereafter hospitalized Keefe for five days. Dr. Kitt prescribed digitalis as a result of an electrocardiogram administered to Keefe while under observation in the hospital. Keefe did not disclose to Dr. Kitt at this time the events of March 31, 1971.

On January 22, 1972, Keefe consulted another physician, Dr. Stanley Schneider, who diagnosed his condition as aortic stenosis resulting from an attack of rheumatic fever suffered by Keefe in 1924. Dr. Schneider prescribed corrective open heart surgery to which Keefe consented, and the surgery was performed in Houston, Texas, during March 1972.

Shortly before his open heart surgery and about a year after the incident in the mill stairwell in Bisbee, Keefe filed this claim for compensation. He alleged that the stairwell incident occurred in the course of his employment and that it led to the heart surgery for which he seeks compensation.

In addition to the testimony of Keefe and his wife, the Commission heard testimony from several physicians, including Drs. Kitt and Schneider, all of whom treat cardiac patients.

We are called upon to determine whether the injury complained of arose out of and in the course of the employment, and whether there was sufficient medical evidence to establish a causal relation between the injury and the employment so as to support the findings of the Commission.

Petitioner argues that Keefe was no longer in the course of his employment when he undertook to gather information for an article intended for his employer’s magazine. Rather, the petitioner asserts that this activity was for the personal pleasure and enjoyment of Keefe and therefore is not compensable.

This court has recognized a two-pronged test to determine an employee’s statutory right to compensation. To be compensable an injury (1) must occur by accident, and (2) arise out of and in the course of his employment. Arizona Revised Statutes, § 23-1021; Truck Insurance Exchange v. Industrial Commission, 22 Ariz.App. 158, 524 P.2d 1331 (1974).

Both of these requirements have been explained and cited by our courts in numerous cases. As a general rule, an employee is injured in the course of his employment if the employee was involved in an activity he might reasonably be expected to undertake during such time, and if the employee was at a place where he could reasonably be expected to be when the accident occurred. Goodyear Aircraft Corp. v. Gilbert, 65 Ariz. 379, 181 P.2d 624 (1947) ; Thomas v. Industrial Commission, 54 Ariz. 420, 96 P.2d 407 (1939). The injury arises out of the employment when a causal connection is shown between the employment activity and the injury. Ware v. Industrial Commission, 92 Ariz. 188, 375 P.2d 384 (1962).

Applying these general principles, we must examine the facts to determine if there is a sufficient basis in the evidence to support the finding that the injury occurred during the course of the employment.

*314 The evidence before the Commission established that the magazine was a publication of the employer; that Keefe was an “official correspondent”; that he had written prior articles for the publication, and that the preparation of articles was encouraged by the magazine’s editor.

On this evidence we find that Keefe’s magazine writing was not merely for his own personal enjoyment, but was also within the course of his employment.

We now turn to the medical testimony to determine if it established the necessary causal relation between the employment and the injury.

While some medical experts require as a fact that the activity of an employee which gives rise to a heart attack be “unusual” as compared to “normal” work activities, such a showing is not required as a matter of law. Stotts v. Industrial Commission, 15 Ariz.App. 290, 488 P.2d 495 (1971). See also Pima Mining Co. v. Industrial Commission, 11 Ariz.App. 480, 466 P.2d 31 (1970). However, a causal relationship between the employment and the injury must be proven within a reasonable medical certainty. Stotts v. Industrial Commission, supra. When such a connection is not apparent to a layman, it can only be determined by expert evidence. Waller v. Industrial Commission, 99 Ariz. 15, 406 P.2d 197 (1965). Here the medical evidence necessary to support the award is found in the evidence. Dr. Stanley Kitt testified as follows:

Q. In connection with whether or not there is a connection to a reasonable medical probability between that incident and the heart difficulty which you found him to be suffering from on April 20th, would you feel qualified to express an opinion, to a reasonable medical probability, or would you rather defer to a cardiologist or one specializing in internal medicine and cardiology?
A.

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Bluebook (online)
526 P.2d 1266, 22 Ariz. App. 311, 1974 Ariz. App. LEXIS 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-compensation-fund-v-keefe-arizctapp-1974.