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Case History Document



Montgomery v. Industrial Commn. Of Arizona
Entered By: Marc C Gabriel/LymeNetDate Created: 4-23-92
Document Type: Decision
Title: Case Decision for: Montgomery v. Industrial Commn. Of Arizona
Earl MONTGOMERY, Petitioner, v. INDUSTRIAL COMMISSION OF
ARIZONA, Respondent, Farmers Insurance Group, Respondent
Employer, Truck Insurance Exchange, c/o GAB Business
Services, Inc., Respondent Carrier

MONTGOMERY v. INDUSTRIAL COMMN. OF ARIZONA

No. 1 CA-IC 90-163

Court of Appeals of Arizona, Division One, Department C

173 Ariz. 106; 840 P.2d 282; 1992 Ariz. App.
Ariz. Adv. Rep. 41


April 23, 1992

SUBSEQUENT HISTORY: [**1]

Reconsideration Denied June 23, 1992.
Review Denied December 1, 1992.

PRIOR HISTORY: Special Action--Industrial Commission. ICA CLAIM NO.
89236111609. CARRIER NO. 48846-35437. Administrative Law Judge
Russell G. Sheley

DISPOSITION: AWARD SET ASIDE

COUNSEL: Charles M. Wilmer, P.C. by Charles M. Wilmer, Phoenix, for
petitioner.

Anita R. Valainis, Chief Counsel, Indus. Com'n of Arizona,
Phoenix, for respondent.

Long, Lester & Lundmark, P.A. by R. Todd Lundmark, Phoenix,
for respondents employer and carrier.

JUDGES: Contreras, Presiding Judge. McGregor and Melvyn T. Shelley,
JJ., concur.

Note: Judge Melvyn T. Shelley, a retired judge of the Court of
Appeals, was authorized to participate in this appeal by order of
the Chief Justice of the Arizona Supreme Court pursuant to article
6, section 20, of the Constitution of Arizona, and A.R.S. @ 38-813.

OPINIONBY: CONTRERAS

OPINION: [*107] OPINION

This is a special action review of an Arizona Industrial
Commission award denying compensability for Lyme disease. Four
issues are presented on review: (1) whether the Administrative Law
Judge erred by finding that the commonalty rule precluded
compensability; (2) whether the positional risk doctrine mandated
compensability; (3) whether the quantum theory of [**2]
work-connection precluded compensability; and (4) whether the
petitioner employee's ("claimant's") injury constituted an
occupational disease. We conclude that the Administrative [*108]
Law Judge erroneously found that the commonalty rule precluded
compensability. Accordingly, we set aside the award.

Factual and Procedural History

Claimant was an insurance claims adjustor in Phoenix, Arizona.
He attended a two-week property insurance training school in
Monrovia, California, at the request of the respondent employer,
Farmers Insurance Group ("Farmers"). Farmers paid for claimant's
transportation, tuition, and lodging. Claimant later alleged that
while he was attending the school, he was bitten by a tick that
carried Lyme disease.

Claimant testified that on or about January 17, 1989, during the
second week of the school, he noticed a raised insect bite on his
right rear shoulder. He stated that he showed the bite to his wife
when he returned to Arizona. She confirmed that she had seen a bite
"the size of a half-dollar . . . red on the outside with a white
ring and then red in the middle." By May 19, 1989, claimant had
developed flu-like symptoms. These were followed by [**3]
numbness and tingling in his extremities, pain in his joints, poor
concentration, disorientation, fatigue, and vision problems. He saw
a number of physicians, some of whom ultimately diagnosed Lyme
disease.

Claimant filed a worker's report of injury, which was denied for
benefits by the respondent carrier, Truck Insurance Exchange.
Claimant then filed a timely protest, and various lay and medical
witnesses testified at the four hearings that were subsequently
held. Conflicting medical testimony regarding claimant's symptoms
and diagnosis was presented. However, the following finding by the
Administrative Law Judge makes it unnecessary to discuss that
testimony in detail:

5. For purposes of this award it will be assumed arguendo that
the applicant was bitten by a tick, that as a result he became
afflicted with Lyme disease and that this arose out of and within
the course of his employment with the defendant employer.
Notwithstanding all of these arguendo assumptions, the claim is not
compensable for other reasons set forth below.

After the Administrative Law Judge made this finding, he cited
Treadway v. Industrial Commission, 69 Ariz. 301, 213 P.2d 373
(1950), [**4] for the proposition that the commonalty rule
precluded compensability for claimant's Lyme disease.

On administrative review, the Administrative Law Judge
supplemented his award for a noncompensable claim by finding that
Lyme disease was not an occupational disease within the meaning of
Arizona Revised Statutes Annotated ("A.R.S.") section 23-901.01
(1983). He also affirmed the noncompensable award and reiterated
his position that the Treadway commonalty rule was the sole basis
for it:

4. The noncompensable award was based on the 'commonalty' rule
cited therein. This is a general rule of law which has been
applicable to injuries, not only to occupational diseases. It just
happens that the occupational disease statute contains a
codification of this legal principle in subparagraph (4). However,
reference to this principle in the noncompensable award is not
intended to reflect that this claim was being decided under the
occupational disease statutes. Claimant then brought this special
action.

Discussion

We start with the basic premise that the claimant has the burden
of establishing all of the statutory elements of a compensable
worker's compensation claim. Toto v. Industrial Comm'n, 144 Ariz.
508, 512, 698 P.2d 753, 757 (App.1985). [**5] In order to do so,
he must demonstrate that he has suffered an injury by accident
arising out of and in the course of his employment. See A.R.S. @
23-1021(A). The statutory "arising out of" requirement refers to
the origin or cause of the injury; the "in the course of"
requirement refers to the time, place, and circumstances of the
accident in relation to the employment. Peter Kiewit Sons' Co. v.
Industrial Comm'n, 88 Ariz. 164, 168, 354 P.2d 28, 30 (1960);
Scheller v. Industrial Comm'n, 134 Ariz. 418, 420, 656 P.2d
1279, 1281 (App.1982).

[*109] Claimant first argues that the Treadway commonalty
rule is inapplicable to the facts of this case. We agree. In
Treadway, the claimant sought compensation for valley fever, which
he allegedly contracted while unloading dusty surplus Army tents
from California at a Phoenix warehouse. The Industrial Commission
denied compensability. Our supreme court affirmed the award,
finding that the claimant had failed to establish a causal
connection between his employment and the valley fever. However,
the court recognized that under certain [**6] circumstances,
"an employee contracting a disease, whether in the immediate place
of his employment, or in some other place in pursuance of his
employer's direction, may recover compensation as for an injury
by accident arising out of and in the course of his employment."
69 Ariz. at 307, 213 P.2d at 377.

The court then set forth what has become known as the commonalty
rule: in order for a claimant to recover compensation for a
disease, "he must establish the fact that he was subjected to some
special exposure in excess of that of the commonalty." Id. at 308,
213 P.2d at 377. The claimant in Treadway was unable to meet this
burden of proof because valley fever is endemic in the desert regions
of Arizona and everyone who lives here is exposed to its spores on a
daily basis, at home as well as at work. This made it impossible
for the claimant to establish that he had experienced any exposure
greater than that of the general population. See also O'Connor
v. Industrial Comm'n, 19 Ariz.App. 43, 504 P.2d 966 (1972) (since
valley fever spores were prevalent [**7] throughout the area in
which claimant lived and worked, he could have contracted disease
anywhere in the geographic area at any time of the day).

The circumstances of the instant case are distinguishable. The
only evidence presented on the question indicated that Lyme disease
does not exist in Arizona. Before the first hearing was held,
claimant submitted an Arizona Department of Health Services
pamphlet entitled "Tick-Borne Diseases." The pamphlet stated that
none of the types of ticks that were known to carry Lyme disease
were found in Arizona, that no cases of the disease had ever been
contracted in Arizona, and that Arizona was considered a nonendemic
area for the disease. At the second hearing, Dr. Tim Kuberski, an
infectious disease specialist, gave the following testimony:

So, you would have to be sure that a patient was in an area where
this disease is endemic. By that I mean there are certain places in
the United States where this tick does not exist. Arizona is one
of them. In other words there basically is no Lyme disease in
Arizona because the tick does not exist here.

Later in his testimony, Dr. Kuberski made the following statement:
"You know, we will have [**8] patients . . . who come from
endemic areas and will have the disease, but there has not been
anyone who has been diagnosed as originating from the state of
Arizona."

Because everyone in Arizona is exposed to valley fever, the
claimants in Treadway and O'Connor could not show that their
employment subjected them to "some special exposure in excess of
that of the commonalty." Treadway, 69 Ariz. at 308, 213 P.2d at 377.
In contrast, the evidence that claimant presented in this case
indicated that any exposure to Lyme disease that he experienced in
connection with his employment would exceed that of Arizona's
general population. No contradictory evidence was presented.
Moreover, claimant was able to demonstrate that his employment had
actually subjected him to an increased risk of contracting the
disease. See 1 Arthur Larson, The Law of Workman's Compensation
@ 8.51-.52, at 3-50 to -55 (1990). At the last hearing, Dr. Philip
Rubin, an infectious disease specialist, testified that three cases
of Lyme disease had been contracted in the area to which claimant
was required to travel to attend the training school. This showing
[**9] of an increased risk connected with claimant's employment
was sufficient to establish compensability. See, e.g., Industrial
Indemn. v. Industrial Comm'n, 162 Ariz. 503, 784 P.2d 709
(App.1989). Based upon the record in this case, [*110] we
conclude that the Administrative Law Judge erred in ruling that the
commonalty rule precluded compensability. We must therefore set the
award aside.

Claimant argues in the alternative that the Treadway commonalty
rule has been "obliterated" by the Arizona Supreme Court's adoption
of the positional risk doctrine in Circle K Store # 1131 v.
Industrial Comm'n, 165 Ariz. 91, 796 P.2d 893 (1990). Our conclusion
that the commonalty rule does not preclude compensability in this
case makes it unnecessary for us to fully consider that argument
other than in conjunction with a theory which Farmers has advanced.

Farmers maintains that the quantum theory of work-connection
precludes a finding of compensability. This theory has been
explained as follows:

[T]he "course of employment" and "arising out of employment" tests
are not, and should not be, applied [**10] entirely
independently; they are both parts of a single test of work-
connection, and therefore deficiencies in the strength of one factor
are sometimes allowed to be made up by strength in the other.

. . . .

. . . One is almost tempted to formulate a sort of quantum theory
of work-connection: that a certain minimum quantum of work-connection
must be shown, and if the "course" quantity is very small, but the
"arising" quantity is large, the quantum will add up to the
necessary minimum, as it will also when the "arising" quantity is
very small but the "course" quantity is relatively large.

But if both the "course" and "arising" quantities are small, the
minimum quantum will not be met. 1A Larson, supra, @ 29.10, at 5-476
to -478.

Farmers contends that in the instant case, both the "arising out
of" and the "in the course of" elements are so weak that they do not
rise to the minimum quantum of work-connection necessary for
compensability. We disagree.

This court has made the following statement with regard to
business travel:

"Employees whose work entails travel away from the employer's
premises are held in the majority of jurisdictions to be within the
course of their employment [**11] continuously during the trip,
except when a distinct departure on a personal errand is shown.
Thus, injuries arising out of the necessity of sleeping in hotels
or eating in restaurants away from home are usually held
compensable."

Peterson v. Industrial Comm'n, 16 Ariz.App. 41, 43-44, 490 P.2d 870,
872-73 (1971) (quoting 1A Larson, supra, @ 25.00, at 5-275). In the
present case, claimant alleged that he was bitten by a tick that
carried Lyme disease while he was staying in a California motel and
attending a training program at his employer's request and expense.
He testified that he did not turn the trip into a vacation and that
he spent all of his time either in class or at the motel. This
evidence was sufficient to place his activities within the course of
his employment.

Under the positional risk doctrine, the "arising out of" element
of a compensable claim is satisfied if the injury would not have
occurred "'but for the fact that the conditions and obligations of
the employment placed claimant in the position where he was
injured.'" Circle K, 165 Ariz. at 96, 796 P.2d at 898 [**12]
(quoting 1A Larson, supra, @ 6.50, at 3-6) (emphasis in Larson). In
the instant case, claimant was only in an area in which Lyme disease
was endemic because his employer required him to be there. Being
bitten by a tick carrying the disease is not the type of injury that
is normally associated with attending a training program or staying
in a motel. In our opinion, it is a completely random occurrence
that is similar to injuries caused by stray bullets or roving
lunatics. In Circle K, our supreme court recognized that the
positional risk doctrine supports compensation for these types of
injuries, which are only connected with a claimant's employment in
that the obligations of the employment "'placed the employee in the
particular place at the particular time when he was injured by some
neutral force, meaning [*111] by 'neutral' neither personal to
claimant nor distinctly associated with the employment.'"
Id. (quoting 1A Larson, supra, @ 6.50 at 3-7.)

Both the "course of employment" and the "arising out of" elements
are strong enough to render claimant's injury compensable under the
quantum theory of work-connection.

Finally, Farmers argues that claimant's [**13] Lyme disease
was an occupational disease and that the Administrative Law Judge
therefore erred in failing to apply the occupational disease
statutes. Before we reach the merits of this argument, we must
address claimant's assertion that Farmers did not properly present
the issue to this court because it failed to file a request for
affirmative relief pursuant to Rule 10, Arizona Rules of Procedure
for Special Actions.

A party seeking affirmative relief from the court of appeals in a
special action review of an Industrial Commission award must include
a request for that relief in his notice of appearance. See Neitman
v. Industrial Comm'n, 20 Ariz.App. 53, 55, 510 P.2d 52, 54 (1973).
However, a party need not request affirmative relief in order to
present alternative bases for sustaining an award where he is not
seeking any relief beyond that which has been awarded. See Stiles
v. Industrial Comm'n, 25 Ariz.App. 543, 545, 545 P.2d 54, 56 (1976).
In this case, Farmers obtained a noncompensable claim award from the
Industrial Commission. Because it is not seeking any additional
relief, no [**14] request for affirmative relief was necessary.

Under the current statutory definition, occupational diseases are
diseases "due to causes and conditions characteristic of and
peculiar to a particular trade, occupation, process or employment,
and not the ordinary diseases to which the general public is
exposed . . . ." A.R.S. @ 23-901(12)(c). In Lorentzen v. Industrial
Comm'n, 164 Ariz. 67, 790 P.2d 765 (App.1990), the Court of Appeals,
Division Two, discussed the nature of occupational diseases. In
Lorentzen, a school teacher who had a history of pesticide allergies
suffered severe physical allergic reactions following routine
pesticide spraying at her school. The Administrative Law Judge
concluded that her exposure to pesticides while on the job resulted
in an occupational disease. He issued an award denying
compensability because he found that she had failed to meet her
burden of proof under the occupational disease statutes. On review,
the court of appeals held that because the petitioner was a school
teacher, exposure to pesticides was not a cause or condition
peculiar and particular to her employment. It ruled that she was
[**15] entitled to compensation for an injury by accident arising
out of and in the course of employment.

Lorentzen provides guidance in this case. Here, claimant is an
insurance claims adjustor. The carrier has not argued, nor in our
opinion could it argue, that exposure to Lyme disease is coincident
with his employment. The Administrative Law Judge therefore
correctly concluded that the occupational disease statutes are
inapplicable in this case. See also McCreary v. Industrial Comm'n,
172 Ariz. 137, 835 P.2d 469 (App.1992).

For all of the foregoing reasons, we set aside the award.

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