Meritage/Liberty v. ICA/Pickett

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) Petitioner Employer, ) ) LIBERTY MUTUAL, ) ) Petitioner Carrier, ) ) v. ) THE INDUSTRIAL COMMISSION OF ARIZONA, ) ) Respondent, ) ) ) SALLY PICKETT (WIDOW), ) ) Respondent Employee, ) MERITAGE HOMES, DIVISION ONE FILED: 05-11-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-IC 09-0017 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action Industrial Commission ICA Claim No. 20061-920164 Carrier Claim No WC602-322132 J. Matthew Powell, Administrative Law Judge AWARD AFFIRMED Cross & Lieberman, P.A. By Donald L. Cross Attorneys for Petitioners Employer and Carrier Phoenix Andrew Wade, Chief Counsel The Industrial Commission of Arizona Phoenix Attorney for Respondent Law Office of Eric C. Awerkamp By Eric C. Awerkamp Attorneys for Respondent Employee Mesa T H O M P S O N, Judge ¶1 This is a special action review of an Industrial Commission of Arizona (ICA) award of death benefits. Two issues are presented on appeal: (1) whether the medical evidence supports a finding that the Leroy Pickett s (decedent) death was the result of medications ingested for industrially related injury reasons; and (2) whether Richard D. Gerkin, Jr., M.D. s medical opinion was legally sufficient to support the award. Because the medical evidence supports a finding of an industrially related death and Dr. Gerkin s opinion is legally sufficient, we affirm the administrative law judge (ALJ s) award. I. JURISDICTION AND STANDARD OF REVIEW ¶2 This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(2) (2003), 23951(A) (1995), and Arizona Rule of Procedure for Special Actions 10. In reviewing findings and awards of the ICA, we defer to the ALJ s factual findings, but review questions of law de novo. Young v. Indus. Comm n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most 2 favorable to upholding the ALJ s award. Lovitch v. Indus. Comm n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002). II. ¶3 On June PROCEDURAL AND FACTUAL HISTORY 1, 2006, decedent was employed petitioner employer, Meritage Corporation (Meritage). by the On that date, decedent fell from a cabinet on which he was standing and injured his back. He filed a workers' compensation claim, which was accepted diagnostic for benefits. testing, Decedent medical received treatment, and extensive prescription medication for low back pain following his industrial injury. Decedent s claim subsequently was closed when he died on July 22, 2007. Decedent s dependent s benefits. surviving testimony was filed a claim for Her claim was denied for benefits, and she timely requested a hearing. and spouse taken from Three ICA hearings were held the widow and two independent medical examiners: Dr. Gerkin and Daniel M. Lieberman, M.D. ¶4 Following the hearings, granting death benefits to the widow. the ALJ entered an award He found: It is concluded that Mrs. Pickett is a credible witness and historian. It is further concluded that the medical conclusions of Dr. Gerkin are more probably correct in this instance than those of Dr. Lieberman. Without speculating or reaching any sort of conclusion as to why or when Mr. Pickett may have stopped taking the narcotic medications that were prescribed for him, it is concluded in accordance with the medical opinions expressed by Dr. Gerkin and as supported by Mrs. Pickett that Mr. Pickett was 3 suffering from legitimate back pain which (along with other probably unrelated and pre-existing factors) affected his ability to sleep. It is further concluded that Mr. Pickett s June 1, 2006 industrial injury was a contributing cause of that back pain and the sleep problems. Thus, it is also concluded that the combination of medications that Mr. Pickett took on the night before and/or morning of July 22, 2007 that caused his death on that date were taken, at least in part, to alleviate the back pain and sleep problems related to the June 1, 2006 industrial injury. Accordingly, it is concluded that Mr. Pickett s death was causally related to his June 1, 2006 industrial injury; his survivors are entitled to death benefits. A.R.S. § 23-1046. Meritage summarily timely requested affirmed his administrative award. review, Meritage then and the brought ALJ this appeal. III. ¶5 DISCUSSION The dependents of an employee who dies as a result of a compensable industrial injury are entitled to receive death benefits pursuant to the Arizona Workers' Compensation Act. A.R.S. § 23-1021(A) (2004). of a compensable claim. A claimant must prove all elements Toto v. Indus. Comm'n, 144 Ariz. 508, 512, 698 P.2d 753, 757 (App. 1985). are: See Typically, the elements (1) an injury, and (2) medical evidence that causally relates the injury to the industrial incident. Yates v. Indus. Comm'n, 116 Ariz. 125, 127, 568 P.2d 432, 434 (App. 1977). ¶6 The ALJ is the sole judge of witness credibility, and it is his job to resolve all conflicts in the evidence and to 4 draw all warranted inferences. Malinski v. Indus. Comm'n, 103 Ariz. 213, 217, 439 P.2d 485, 489 (1968). and backgrounds diagnosing the of type expert of witnesses injury and incurred resolving conflicting evidence. The qualifications their may be experience in considered in Carousel Snack Bar v. Indus. Comm n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367 (1988). ¶7 In this case, the ALJ specifically found the widow to be a credible witness and historian. The widow married decedent in 2003 and lived with him continually until his death. She testified that he was injured on June 1, 2006, while working for Meritage Homes, when he fell off a counter and struck his back. Although decedent attempted to return to his regular work, he was unable to do so and was moved to a desk job. When the desk job also proved to be too physically strenuous, decedent was placed on FMLA 1 leave in October 2006. ¶8 From October 2006 until his death in July 2007, decedent stayed at home unless he had a doctor s appointment. The widow testified that after the industrial injury, decedent had constant low back pain and was prescribed six different medications in an attempt to relieve it. or seven She stated that she picked up his prescriptions, as well as purchasing him 1 Family & Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. 5 an over-the-counter sleep aid, Equate Sleep Tablets. 2 Aid Although decedent kept these medications on a shelf in their master bathroom, the widow did not know what they were nor did she monitor his use of them. industrial injury, over-the-counter decedent sleep She testified that before his did not medications. use any His prescription difficulty or sleeping began after his industrial injury and was due to pain. The widow also testified that her husband did not have a drug abuse problem nor did he use any illegal or recreational drugs. ¶9 The widow testified that on the night of decedent s death, his pain level and mental state seemed to be the same as usual. He went to bed at 6:00 p.m., which was not unusual. When she went to bed at 9:00 p.m., decedent was tossing and turning and medication. he stated that he might have taken too much At some point during the night, she became aware that decedent was not breathing. he was dead. She called the paramedics, but An autopsy was performed, and the medical examiner concluded that the tramadol, zolpidem, cause and of death promethazine was acute doxylamine, intoxication and the manner of death was an accident. ¶10 Dr. toxicology, 2 Gerkin, a physician cardiovascular board-certified disease, and internal Doxylamine Succinate Tablets, 25 mg. 6 in medical medicine, testified regarding the causal relationship between decedent s death and his industrial injury. The doctor had reviewed decedent s original medical treatment records, including x-ray reports and MRI s, as well as the autopsy report, paramedic encounter sheet, and a letter summarizing the wife s testimony. Dr. Gerkin opined that decedent s death combination of the medications he had taken. resulted from a He stated that the levels of the individual medications were not high enough to cause death, responsible. but instead, the combination of drugs was Dr. Gerkin stated that the more types of drugs ingested that affect the central nervous system, the higher the probability of an adverse result. The autopsy revealed four medications in decedent s blood: doxylamine, used for coughs, colds, allergies and sleep; tramadol, a pain medication (but not an opioid); zolpidem (a/k/a Ambien), a sleeping pill; and promethazine, an antihistamine also used for pain control. ¶11 revealed Dr. Gerkin testified that decedent s medical records ongoing industrial injury. number of complaints of back pain following his The pain continued despite treatment with a different medications, including opioids, insomnia, which was compatible with the chronic pain. and It was the doctor s opinion that decedent used a combination of both prescription and over-the-counter medications in an attempt to 7 obtain relief from his industrially-related pain and insomnia. For that reason, probability he stated decedent s that industrial to a injury reasonable contributed medical to his death. ¶12 Meritage argues that the evidence does not support a finding that decedent s death was the result ingested for industrially-related reasons. of medications In that regard, the widow testified that after decedent s industrial injury he was in continuous pain. Further, she stated that her husband never had trouble sleeping until after he began experiencing chronic pain following the industrial injury. decedent s medical records. He Dr. Gerkin had reviewed testified that the records revealed chronic back pain following the 2006 industrial injury and no indication of sleep disturbances until after the industrial injury. This evidence supports the ALJ s conclusion that decedent s death was caused by an overdose of pain and sleep medications taken for industrially related conditions. ¶13 Meritage also argues that Dr. Gerkin s opinion was legally insufficient to support the award because he does not adequately address the issue of decedent s sleep problems and use of sleep aid medications with 8 regard to the industrial injury. 3 Dr. Gerkin testified that his review of the record revealed that decedent did not appear to have a problem with insomnia prior to the industrial injury nor did it reflect the use of sleep aids. Further, the doctor noted that following the 2006 industrial injury, decedent had chronic back pain and insomnia related to chronic pain. ¶14 We find there is sufficient evidence to support the ALJ s award and we affirm. /s/ _____________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ______________________________ PATRICIA A. OROZCO, Presiding Judge /s/ _____________________________ DIANE M. JOHNSEN, Judge 3 Medical opinions are based on findings of medical fact gleaned from decedent s history, medical records, diagnostic tests, and examinations. See Royal Globe Ins. Co. v. Indus. Comm n, 20 Ariz. App. 432, 434, 513 P.2d 970, 972 (1973). 9

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