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Konichek v. Industrial Commission6/7/1990
!--/REF--> 747 P.2d 1200 (1987).
An employee's customary occupational stress and exertion are sufficient to constitute a substantial contributing cause of a heart attack. Aguiar v. Industrial Commission, 165 Ariz. 172, 797 P.2d 711 (App.1990). In that case, a farm worker, who was performing his usual employment tasks of carrying loads of boxes to the harvesting area, suffered a heart attack and died. After a lengthy discussion on previous cases and the legislature's enactment of § 23-1043.01, the court concluded that heart attacks are compensable if they are caused by customary occupational stress or exertion. It also ruled that expert testimony may not be presented that is "grounded in the premise that customary stress or exertion cannot cause a heart attack." Id. at 177, 797 P.2d at 716 (emphasis in original).
There are no cases in Arizona that discuss the relationship between § 23-1043.01(A) and the unexplained death presumption. The presumption operates to relax a claimant's burden to prove that death occurred in the course of employment. Larson explains the rule as follows:
When an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, most courts will indulge a presumption or inference that the death arose out of the employment.
1 A. Larson, The Law of Workmen's Compensation § 10.32 at 3-100 (1989), quoted with approval in Martin v. Industrial Commission, 75 Ariz. 403, 411, 257 P.2d 596, 601 (1953). See also Downes v. Industrial Commission, 113 Ariz. 90, 546 P.2d 826 (1976) and Bennett v. Industrial Commission, 163 Ariz. 534, 789 P.2d 401 (App.1990).
Although petitioner raised the unexplained death presumption issue, the ALJ did not mention it in his award. Instead, he made the following findings:
7. This statute [A.R.S. § 23-1021(A)] requires that in order for a death to be compensable it must arise out of and occur in the course and scope of the deceased's employment. Additionally, inasmuch as the cause of death in the instant case is due to cardiac dysrhythmia, all of the material elements of A.R.S. Sec. 23-1043.01 must be established . . . .
9. Although, 'substantial contributing cause', has been defined as meaning more than slight or more than insubstantial, see Skyview Cooling Co. v. Indus. Com'n of Ariz., 142 Ariz. 554, 691 P.2d 320 (App.1984), the job related activities must be of such a character that the heart related condition can be traced to it with a reasonable assurance that the work caused or contributed to it. Bell Road Mini Storage v. Industrial Com'n, 124 Ariz. 493, 605 P.2d 895 (1980). There must be a recognizable cause or connection between the heart related condition and the work related activity. Bush v. Industrial Com'n of Arizona, 136 Ariz. 522, 667 P.2d 222 (1983). There is no rule of thumb that an injury is compensable merely because it was incurred during working hours or because it occurred within linear measurements of the employer's premises. Royall v. Industrial Commission, 106 Ariz. 346, 476 P.2d 156 (1970).
None of the case the ALJ cited is an unexplained death case.
Dr. Alan
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