No. 2 CA-IC 2014-0022
COUNSEL Dix & Forman, P.C., Tucson By J. Stephen Dix Counsel for Petitioner Employee The Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson By Eric W. Slavin Counsel for Respondents Employer and Insurer
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Special Action - Industrial Commission
ICA Claim No. 20133180526
Insurer No. 00485-003997
Gary M. Israel, Administrative Law Judge
AWARD SET ASIDE
COUNSEL Dix & Forman, P.C., Tucson
By J. Stephen Dix
Counsel for Petitioner Employee
The Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Klein, Doherty, Lundmark, Barberich & La Mont, P.C., Tucson
By Eric W. Slavin
Counsel for Respondents Employer and Insurer
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 In this statutory special action, petitioner Fausto Rivera-Rios challenges the administrative law judge's (ALJ) award denying compensation for an injury sustained during his employment with Progressive Pools & Spas, LLC. Rivera-Rios contends the ALJ applied an incorrect burden of proof, failed to make findings of facts as to the proximate cause of his injury, and erred by not finding the fall was "unexplained." Because the ALJ used the incorrect standard when determining whether Rivera-Rios met his burden of proof, we set aside the award.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to affirming the Industrial Commission's findings and award. See Polanco v. Indus. Comm'n, 214 Ariz. 489, ¶ 2, 154 P.3d 391, 392-93 (App. 2007). In November 2013, Rivera-Rios filed a claim for workers' compensation benefits after he slipped and fell while using the restroom during his shift working as a pool cleaner at a community pool. His employer's insurer, American Family Insurance, denied the claim, contending Rivera-Rios had fallen due to a preexisting condition in his left knee. After an evidentiary hearing, the ALJ found the claim noncompensable and denied it.
¶3 Rivera-Rios requested a review of the ALJ's decision, and the ALJ affirmed the award. We have jurisdiction over Rivera-Rios's petition for special action pursuant to A.R.S. §§ 23-951 and 12-120.21(A)(2). See also Ariz. R. P. Spec. Actions 10.
¶4 Rivera-Rios argues the ALJ erred "by requiring 'conclusive evidence' in [the] analysis of [his] injury" and that, in doing so, placed upon him a higher burden of proof than required by law to establish his claim. We will not disturb an ALJ's factual findings absent an abuse of discretion. Ford v. Indus. Comm'n, 145 Ariz. 509, 519, 703 P.2d 453, 463 (1985). We will set aside an award where the ALJ applied the wrong burden of proof when exercising his discretion to make factual findings. See Pac. Fruit Express v. Indus. Comm'n, 153 Ariz. 210, 216, 735 P.2d 820, 826 (1987).
¶5 To obtain an award of benefits, the claimant has the burden "to show by a preponderance of the evidence all the elements of his claim." Lawler v. Indus. Comm'n, 24 Ariz. App. 282, 284, 537 P.2d 1340, 1342 (1975). This standard requires the claimant to produce "'such evidence as when weighed with that opposed to it has more convincing force, and from which it results that a greater probability is in favor'" of the facts he seeks to establish. Brooks v. Indus. Comm'n, 24 Ariz. App. 395, 399, 539 P.2d 199, 203 (App. 1975), quoting Ison v. W. Vegetable Distribs., 48 Ariz. 104, 111-12, 59 P.2d 649, 653 (1936). The ALJ may not impose upon a claimant the burden of producing conclusive evidence or proof to support the elements of his claim. See Lopez v. Kennecott Copper Corp., 71 Ariz. 212, 213, 225 P.2d 702, 703 (1950); cf. S.L.C. Leasing v. Indus. Comm'n, 25 Ariz. App. 366, 368, 543 P.2d 795, 797 (1975) (claimant's burden of proof on elements of claim does not require him to conclusively establish medical cause of injury).
¶6 Two of the elements the claimant must establish by a preponderance of the evidence are that his injury occurred in the course of his employment and that it arose out of his employment. Hypl v. Indus. Comm'n, 210 Ariz. 381, ¶ 6, 111 P.3d 423, 425-26 (App. 2005); see also Ariz. Const. art. XVIII, § 8; A.R.S. § 23-1021. "The 'in the course of' requirement is satisfied if the claimant shows the injury occurred during the time, place, and circumstances of the claimant's employment." Hypl, 210 Ariz. 381, ¶ 6, 111 P.3d at 426. To satisfy the "arose out of" requirement, the claimant must "show a causal relationship between the employment and the injury." Id.
¶7 Arizona applies the personal comfort doctrine, which recognizes that a claimant "engage[d] in reasonable acts which minister to [his] personal comforts[,]" such as "seeking toilet facilities[,]" is within the course of his employment. Sacks v. Indus. Comm'n, 13 Ariz. App. 83, 84, 474 P.2d 442, 443 (1970). A claimant entitled to the benefit of the personal comfort rule still must show by a preponderance of the evidence some "causal connection between the employment and the injury" to satisfy the "arose out of" requirement. See id. He may show this causal connection through evidence that the risk of the injury was in some way peculiar to or increased by his employment. See Pottinger v. Indus. Comm'n, 22 Ariz. App. 389, 392, 527 P.2d 1232, 1235 (1974); see also Royall v. Indus. Comm'n, 106 Ariz. 346, 351, 476 P.2d 156, 161 (1970) (claimant injured by tripping over another person in employees' lounge during paid lunch break satisfied "arose out of" requirement because "she would not have been subjected [to risk of fall] had she not been so employed").
¶8 In Sacks, this court affirmed the denial of benefits to a claimant who aggravated a preexisting back injury and suffered a disc herniation while getting up from a toilet at work. 13 Ariz. App. at 83-84, 474 P.2d at 442-43. Although the claimant was entitled to the benefit of the personal comfort rule, she was unable to meet her burden on the "arose out of" requirement because it did "not appear that the risk of disc herniation while arising from a toilet was a risk in any way peculiar to or increased by [her] employment" and the record did not suggest "the structure or condition of any of the surroundings contributed in any way to the unfortunate event." Id. at 84, 474 P.2d at 443.
¶9 In this case, the ALJ found that the personal comfort doctrine applied but ultimately denied Rivera-Rios's claim. After analyzing the issue of causation pursuant to Sacks, the ALJ found "[t]here is no conclusive evidence that any condition in the restroom itself caused or contributed to the applicant's fall."
¶10 Rivera-Rios argues that the condition of the restroom was a "material, relevant and probative fact" as to the cause of the fall and injury and that the ALJ erred in analyzing the proof presented on this fact under a "conclusive evidence" standard. He further contends his shoes may have been wet from cleaning the pool and this condition could have contributed to the fall.
¶11 Whether some condition in the restroom, or of his shoes due to the nature of his employment as a pool cleaner, contributed to Rivera-Rios's fall is a material fact in determining whether his injury arose from his employment. See Pottinger, 22 Ariz. App. at 392-93, 527 P.2d at 1235-36. As the claimant who must prove his claim by a preponderance of the evidence, Rivera-Rios was required to demonstrate only a greater probability that some condition in the restroom or something else about his employment, such as the increased risk of wet shoes, contributed to his fall. See Lawler, 24 Ariz. App. at 284, 537 P.2d at 1342; Brooks, 24 Ariz. App. at 399, 539 P.2d at 203. He did not need to establish this by conclusive evidence. See Lopez, 71 Ariz. at 213, 225 P.2d at 703. Consequently, because the ALJ "relied on the incorrect burden in exercising his discretion as the finder of fact, we have no way of knowing whether the result would [have been] different" had the ALJ analyzed the facts under the appropriate standard of proof, and we must set aside the award. See Pac. Fruit Express, 153 Ariz. at 216, 735 P.2d at 826.
¶12 The insurer responds, however, that the ALJ used the correct standard because the ALJ also stated in his findings, "[T]he preponderance of credible evidence supports the conclusion that [Rivera-Rios's] left knee pain attributable to [a] pre-existing condition caused [him] to shift his weight to the right lower extremity and then fall." But the ALJ made no specific finding as to why Rivera-Rios's right foot slipped after he shifted his weight other than to exclude conditions in the restroom as a possible cause. And when excluding these conditions as a possible cause, he did so because "no conclusive evidence" showed these conditions existed. Nothing in his ruling shows that he considered whether a greater probability existed that conditions in the restroom or something about the nature of Rivera-Rios's employment contributed to the fall. And we will not assume the ALJ applied the proper standard when nothing in the ruling suggests that he did. Cf. Post v. Indus. Comm'n, 160 Ariz. 4, 8, 770 P.2d 308, 312 (1989) (reviewing court does not assume ALJ properly resolved all conflicts in evidence where ruling provides "no way of knowing" that he did).
Because we set aside the award due to the ALJ's use of an improper burden of proof, we need not address Rivera-Rios's other arguments raised on appeal.
¶13 For the foregoing reasons, we set aside the award.