Tucson Unified School District v. Industrial Commission

672 P.2d 953, 138 Ariz. 1, 1983 Ariz. App. LEXIS 590
CourtCourt of Appeals of Arizona
DecidedMay 10, 1983
DocketNo. 1 CA-IC 2882
StatusPublished

This text of 672 P.2d 953 (Tucson Unified School District 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
Tucson Unified School District v. Industrial Commission, 672 P.2d 953, 138 Ariz. 1, 1983 Ariz. App. LEXIS 590 (Ark. Ct. App. 1983).

Opinion

OPINION

OGG, Judge.

The issue in this Special Action — Industrial Commission is whether the evidence supports the administrative law judge’s determination that respondent employee met his burden of proof in showing that he sustained an injury, in the nature of an occupational disease, arising out of and in the course of his employment. We find that the evidence does support this determination and therefore affirm the award.

Respondent employee, Earl Estep, filed a workmen’s compensation claim for benefits for disability due to pulmonary cryptococcosis. His claim was that his disease was contracted by repeated and excessive inhalation of a fine, dusty dry powder created by the shredding of palm fronds which were covered by accumulated pigeon droppings containing the fungus spores cryptococcus [2]*2neoformans. Petitioner came into heavy and repeated contact with this dust in connection with his work in tree trimming as a ground maintenance man for Tucson Unified School District, petitioner employer.

Respondent began to feel the effects of the disease in May or June of 1981 and in July sought medical care from his family physician. For purposes of the award, the administrative law judge treated the date of injury as July 1, 1981.

After hearing conflicting medical testimony, the administrative law judge resolved the conflict in favor of the claimant and determined that respondent employee had sustained a personal injury arising out of his employment in the nature of an occupational disease which was governed by the provisions of A.R.S. §§ 23-901(12)(c) and 23-901.01 (Supp.1982).

On review, the carrier contends that the claimant failed to meet his burden of showing all the elements necessary to prove an occupational disease claim.

In support of its position, the carrier first argues that the opinion of Jerome C. Rothbaum, M.D., a pulmonary specialist, was incompetent to support the award because the testimony lacked adequate foundation.

We first recognize the well-established rule that if the results of an industrial incident are not clearly apparent to laymen, medical evidence is required to establish the causal connection between the worker’s condition and his employment. Western Bonded Products v. Industrial Commission, 132 Ariz. 526, 647 P.2d 657 (App.1982); Verdugo v. Industrial Commission, 114 Ariz. 477, 561 P.2d 1249 (App.), cert. denied, 434 U.S. 863, 98 S.Ct. 194, 54 L.Ed.2d 137 (1977).

In the case at bar, Dr. Rothbaum was unequivocal in his professional opinion that the disease suffered by respondent is normally contracted by inhaling spores of the fungus. He testified that, in addition to his years of experience as a pulmonary specialist, he had reviewed medical literature about the respondent's disease and the treatment of respondent’s condition. Given the history of petitioner's employment, which included much higher than average inhalation of fine dust containing pigeon droppings, a known medium for the spore causing the disease, the physician was of the opinion that, there was a clear relationship between respondent’s job and his disease.

Other physicians testified on behalf of the carrier. They were of the view that under the state of the art of medicine in regard to this particular disease, it cannot be stated definitively that the disease can be contracted by inhalation of dust or powder containing the spores. On review, the carrier seeks to characterize this variation, not as a conflict in the medical testimony, but as an indication of insufficient foundation for Dr. Rothbaum’s opinion that the disease was contracted through such inhalation. "Thus, we are presented, not with the case in which the physician has an inadequate foundation of facts in regard to the claimant’s work activities or the materials involved in the injurious exposure, but a case on which the medical experts differ or belong to different camps regarding the likelihood of such exposure causing the disease.

A similar dilemma was faced by the courts of this state in regard to early cases dealing with job-related heart problems. In one camp were the physicians who believed that heart attacks could happen at any time in a person with heart disease regardless of his work activities. In the other camp were those physicians whose experience and training and personal expert viewpoints led them to believe that on-the-job exertion could precipitate a heart attack. See e.g., Stotts v. Industrial Commission, 15 Ariz. App. 290, 488 P.2d 495 (1971).

A comparable situation is presented here. There is no lack of foundation for Dr. Rothbaum’s credibility as an expert pulmonary physician who has treated rare cases of, and read medical literature concerning, pulmonary cryptococcosis. However, as in Stotts, supra, we have disagreement among the experts who testified regarding the underlying mechanics of the contraction of the [3]*3disease. This court will not accept the carrier’s invitation to decide which camp of medical experts must be correct as a matter of law. Any disagreement among specialists in this area regarding the disease and the method of contracting it may affect the weight which the administrative law judge gives to the testimony of the various physicians. However, absent a showing that the expert is not qualified to testify about the matter, such disagreement does not go to the foundation or competency of the opinion expressed. Because Dr. Rothbaum was entirely competent to testify in regard to this pulmonary disease, we find no error in the administrative law judge’s resolution of the conflict in the medical testimony in favor of the testimony of Dr. Rothbaum.

The carrier next contends that the award granting benefits is in error because the employee did not satisfy his burden of proof in establishing the elements required to show an occupational disease claim under the Workmen’s Compensation Act.

The pertinent statute provides:

§ 23-901.01. Occupational disease; proximate causation
The occupational diseases as defined by § 23-901, paragraph 12, subdivision (c) shall be deemed to arise out of the employment only if all of the following six requirements exist:
1. There is a direct causal connection between the conditions under which the work is performed and the occupational disease.
2. The disease can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment.
3. The disease can be fairly traced to the employment as the proximate cause.
4. The disease does not come from a hazard to which workmen would have been equally exposed outside of the employment.
5. The disease is incidental to the character of the business and not independent of the relation of employer and employee.
6.

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Related

O'CONNOR v. Industrial Commission
504 P.2d 966 (Court of Appeals of Arizona, 1972)
Western Bonded Products v. Industrial Commission
647 P.2d 657 (Court of Appeals of Arizona, 1982)
Crawford v. Industrial Commission
534 P.2d 1077 (Court of Appeals of Arizona, 1975)
Verdugo v. Industrial Commission
561 P.2d 1249 (Court of Appeals of Arizona, 1977)
Stotts v. Industrial Commission
488 P.2d 495 (Court of Appeals of Arizona, 1971)
McFerran v. Board of Education
434 U.S. 863 (Supreme Court, 1977)

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672 P.2d 953, 138 Ariz. 1, 1983 Ariz. App. LEXIS 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tucson-unified-school-district-v-industrial-commission-arizctapp-1983.