Polanco v. Industrial Comm’n of Arizona – 3/29/2007

April 19, 2007

Arizona Court of Appeals Division Two Holds That Subjective Pain Alone, Unaccompanied by an Objective Physical Change, Cannot Support a Petition to Reopen a Worker’s Compensation Claim.

Mont Polanco injured his back in September 2001 in the course and scope of his employment. He received worker’s compensation benefits and his case was closed in February 2003. Polanco continued to receive treatment for his back injury, including epidural injections for pain, that allowed him to work full-time. In August 2004, he was in an industrial motor vehicle accident. The epidurals became less effective, and in late 2005, Polanco’s physician suggested Polanco have a spinal cord stimulator implanted to control his pain.

Polanco filed a petition to reopen his claim in November 2005, which the insurer denied. At a subsequent hearing on the petition, Polanco’s physician testified that scarring in Polanco’s spine had worsened and was causing more pain. He also testified that a radiologist’s report that he had reviewed demonstrated some changes in the scar tissue near Polanco’s spinal nerve roots. Polanco’s physician did not review the MRI films that the radiologist reviewed in making his report. Another physician, Dr. Schroeder, testified that he had reviewed the MRI films and that the images contained “no objective evidence of a new, additional or previously undiscovered condition” or of any “worsening between 2002 and 2006 of [Polanco’s] scar tissue.”

After the hearing, the ALJ denied Polanco’s petition to reopen his claim, finding that there were no objective changes shown on the MRI films. A statutory special action followed. Division Two, reviewing the ALJ’s factual findings deferentially and constitutional issues de novo, affirmed the ALJ’s decision. The Court began by laying out worker’s compensation principles.

A.R.S § 23-1061(H) governs the reopening of workers’ compensation claims and requires an employee to prove the existence of a “new, additional or previously undiscovered temporary or permanent condition” to reopen a claim. Section 23-1061(H) also provides that a claim “shall not be reopened because of increased pain if the pain is not accompanied by a change in objective physical findings.” For a worker to be compensated for an injury, he must prove both legal and medical causation; legal causation concerns whether the injury arose out the employment, and medical causation usually requires expert medical testimony that the industrial accident caused the injury.

Polanco argued that the objective physical findings requirement in Section 23-1061(H) was unconstitutional as applied to his case. He reasoned that Section 23-1061(H) impermissibly limits legal causation because the Arizona Constitution “requires compensation for all workers – not just those who can provide objective evidence of subjective complaints.” The Court disagreed, noting that while the legislature may not define legal causation in a way that conflicts with Article XVIII, Section 8 of the Arizona Constitution [link], the legislature has latitude to enact legislation affecting medical causation. Although the Constitution and the worker’s compensation statutes do not define “injury,” case law has held that an injury occurs when exertion leads to “something actually breaking or letting go with an obvious sudden organic or structural change in the body” (emphasis added).

The Court held that “subjective pain does not fall under Arizona’s definition of an injury. Therefore, because subjective pain is not an injury within the meaning of Art. XVIII, § 8 . . . Section 23-1061(H) does not unconstitutionally eliminate it as a type of compensable injury. And the objective physical findings requirement of Section 23-1061(H) does not address either medical or legal causation. The requirement instead makes clear that subjective pain alone cannot support a petition to reopen a claim. Rather, subjective pain must be directly related to the degree of impairment resulting from an objective physical change.”

Judge Brammer authored the opinion, with Judge Eckerstrom, Presiding Judge, and Judge Espinosa concurring.