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Bernhart v. Industrial Commission of Arizona6/28/2001
Special Action--Industrial Commission
ICA CLAIM NOS. 96036-864391*; 96057-874881 ; 96036-864573 *; 96036-864572 ; 94146-531896 *; 95297-813488 ; and 97169-116604 *
CARRIER NOS. N/A*; 775000479000 ; 957-C99933 *; 48828- 78777 ; G1DIL94C0442 *; G1DIL95C1108 ; and 10300733 *
Administrative Law Judge Robert T. Wilson
Administrative Law Judge Robert F. Retzer
AWARD SET ASIDE
DEPARTMENT B
OPINION
The Industrial Commission of Arizona denied Claimant disability and medical compensation for three claims on the statutory grounds of "wilful self-exposure," A.R.S. § 23-901.04, and "unreasonable refusal or neglect to submit to or follow any competent or reasonable surgical treatment or medical aid." A.R.S. § 23-1027. Concluding that the Commission misapplied these statutes, we set its decision aside.
I. HISTORY
Claimant worked as a baker from 1961 until 1997, and for Respondent Employer Fry's since 1974. Exposure to flour dust caused her to develop baker's asthma. Episodic asthma symptoms led her to seek medical treatment and file seven industrial injury claims, including claims with dates of injury of February 7, 1994, September 6, 1995, and June 4, 1997 ("the 1990s claims").
Before 1997, each time Claimant's symptoms subsided, her doctors released her to return to work in the bakery. The doctors also, however, repeatedly cautioned her to avoid exposure to flour dust and sometimes recommended that she consider other employment.
For example, in a March 1990 report, Brendan D. Thompson, M.D., stated that Claimant
really needs to avoid the flour dust. She can either wear a mask or respirator at work. She states there are problems with each of these. Otherwise, she needs to remove herself from that environment. She may be able to do other jobs at work, but the flour dust tends to permeate the area.
Dr. Thompson confirmed that he discussed these conclusions with Claimant.
Claimant has understood since 1981 that she is allergic to flour dust. Further, according to Claimant, masks failed to protect her from the flour dust. Yet because she wanted to continue earning her union pay scale at a position with job security, she repeatedly returned to the bakery, and because she was able to work for periods without symptoms, she believed that she "was going to be okay and it wouldn't happen again." Although Claimant could have maintained her earnings and avoided exposure to flour dust by working as a cake decorator, she explained that she did not apply for this position because the risk of being laid off was too high. Claimant denied that any doctor informed her that she risked permanent damage, as opposed to episodic exacerbation of symptoms, by continually exposing herself to flour dust.
Fry's then-current production supervisor had known of Claimant's breathing difficulties since 1987. Fry's supplied masks but did not require employees to use them. Although the supervisor knew that Claimant wore a mask only intermittently, he never spoke with her about wearing a mask or taking a protected position.
In a consolidated award for non-compensable claims, the administrative law judge ("ALJ") found that Claimant's flour dust exposure had caused her to develop an occupational disease. He also found, however, that Claimant had known since 1974 that her exposure to flour dust in the bakery was "harmful . . . to her pulmonary process." He concluded that because Claimant "continued to expose herself once she became aware that her work environment was causing her pulmonary problems," she wa
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