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Konichek v. Industrial Commission6/7/1990
In this special action for review of an Industrial Commission award, the petitioner contends the administrative law judge (ALJ) erred in failing to apply the unexplained death presumption and in deciding this case under A.R.S. § 23-1043.01(A) (heart-related injury, illness or death). Petitioner also questions whether the ALJ's findings were sufficient under Post v. Industrial Commission, 160 Ariz. 4, 770 P.2d 308 (1989). We agree that the ALJ erred in failing to apply the presumption and set aside the award.
Paul Konichek was a 28-year-old installation/maintenance employee of Cota Robles Sheet Metal. On Saturday, August 20, 1988, he was assigned to hook up an air conditioning unit and install thermostats in a single-family residence in Tucson. Testimony established that the units were already on the job site and that Konichek was not required to perform any strenuous work. His employer estimated that the job would take about six hours to complete. The site security guard records showed that Konichek arrived at 8:57 a.m. and again at 12:47 p.m., presumably after a lunch break. On Monday, August 22, the employer asked the construction foreman to look for Konichek after the employer was unable to contact Konichek on the CB radio. The foreman found Konichek dead in the porta-john at the job site. His employer testified that Konichek was sitting with his hands on his lap and his head tilted back against the wall. He was dressed, and his pants were up. The foreman also testified that it looked as though there was blood on his nose and vomit in the urinal.
Konichek had been working inside the house in two small closet-like rooms, and the garage door and the doors to the areas where he was working were open. He had worked continuously throughout June, July and August. The weather records showed that the high temperature on the date of his death was 92 degrees, nine to 11 degrees cooler than the five previous days. His employer testified that Konichek had nearly completed the job assignment and that his tools and radio were found in the house.
Konichek's ex-wife filed a dependent's claim on behalf of their minor child. Petitioner requested a hearing after the claim was denied. The ALJ denied the claim and affirmed the denial on review. Because Cota Robles was uninsured at the time of Konichek's death, the Special Fund is potentially responsible for any benefits awarded, and the Industrial Commission has appeared on behalf of the employer. See Evertsen v. Industrial Commission, 117 Ariz. 378, 573 P.2d 69 (App.), approved, 117 Ariz. 342, 572 P.2d 804 (1977).
UNEXPLAINED DEATH PRESUMPTION
The heart-related injury, illness or death statute provides in part as follows:
A heart-related or perivascular injury, illness or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this chapter unless some injury, stress or exertion related to the employment or some physical injury related to the employment was a substantial contributing cause of the heart-related or perivascular injury, illness or death.
A.R.S. § 23-1043.01(A). The term "substantial contributing cause" means more than insubstantial or slight but less than predominant. Skyview Cooling Co. v. Industrial Commission, 142 Ariz. 554, 691 P.2d 320 (App.1984);
see also Phelps v. Industrial Commission, 155 Ariz. 501,<
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