NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

JOSEPH H. ANGER (Deceased)

, P etitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA

, Respondent,

O’REILLY AUTO PARTS, Respondent Employer,

SAFETY NATIONAL CASUALTY CORP/CORVEL ENTERPRISE, Respondent Carrier

.

N o . 1 CA

- IC 15

- 0037

Special Action

– Industrial Commission

ICA Claim No. 20141

- 750295

Carrier Claim No. OR

- 15

- 010715

Debor ah A. Nye, Administrative Law Ju dge

AWARD AFFI RMED

COUNSEL

Joseph H. An g er (Deceased) By N ancy Anger, Buckeye

Petitioner2

Industrial Commission of Arizona, Phoenix By Ja son Porter

C ounsel for Respondent

Jardine Baker Hickman & Houston, PLLC

, Phoenix By Terrence Kurth Counsel for Respondent Employer, Respondent Carrier

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.

O R O Z C O

, Judge:

¶1 Petitioner Nancy Anger , as the widow of Joseph H. Anger (Joseph), seeks special action review of an Indust rial Commission of Arizona (ICA) award and decision upon review denying Petitioner’s claim for dependent death benefits . For the followi ng reasons, we affirm the

decision of the Administrative L aw Judge (ALJ)

.

FACT S AND PROCEDURAL HISTORY

¶2 Petitioner and Joseph were married at the time of his death

, which occurred while he was driving a company vehicle and delivering parts for O’Reilly Auto Parts

. A witness observed Joseph ’s vehicle veer off

the road and come to a stop with Joseph slump ed over the steering wheel. First responders found Joseph to be in ventricular fibrillation , and transported him to a hospital where he was pronounced dead. The re is no

evidence in the record that Joseph ever called for help using a cell phon e or the truck’s two

- way radio.

¶3 Foll owing Joseph ’s death, Petitioner filed a claim with the

ICA for dependent’s benefits , which stated briefly that her husband had no way to call for help because the truck’s radio was broken

. The ICA claim

was denied and a hearing was noticed. An ALJ held hearings o ver four days, during which multiple lay witnesses testified and two physicians provided medical opinions as to Joseph ’s cause of death

.

¶4 Kristopher Leon, a coworker of Joseph ’s

, testified that Joseph did not appear angry, depressed or emotionally upset on the day he died.

Mr. Leon testified that employees are prohibited from using a cell phoneANGER v. O’REILLY A UTO et al.

Decision of the Court

3 while driving a company vehicle , but employees are allowed to have a cell phone in the glove comp artment or in the back of the vehicle, just not on their person

. Mr. Leon also testifi ed that the radio in Joseph ’s truck was tested and was functioning properly on the day he died. However,

Mr. Leon admitted communications between the work trucks and the shop are not logged, and the radios rea ch only “seven miles or more.”

¶5 Dennis Beard

, the store manager at the O’Reilly’s where Joseph worked

, testified that Joseph was investig ated three times for disciplin ary matters, resulting in one write

- up

. He was never disciplined or demoted, and his pay and hours were never reduced. Mr. Beard also

testified that Joseph had the choice every day to either t ake a thirty minute

lunch break or leave work thirty minutes early

, and Joseph would usuall y skip lunch and eat a snack in the office

. According to Mr. Beard, employees

were not allowed to have food or drink in the company’s truck. T he sto re manager and district manager w ere not aware that Joseph was diabetic

.

¶6 Dr. James Ganem, a board certifi ed cardiologist, reviewed Joseph ’s medical records from Luke Air Force Base and West Valley Hospital. 1 Dr. Ganem opined to a reasonable degree of probability that Joseph died from a myocardial infarction. Dr. Ga nem based his opinion on Joseph’s risk factors, which include d diabetes, slee p a pnea, medical noncompliance, obesity and atherosclerotic cardiovascular disease

. T he

circumstances of Joseph ’s death were consistent with sudden cardiac death.
In addition, Dr. Ganem concluded to a reasonable degree of probability that Joseph’s death was not related to work activity includ ing injury, stress or

exertion.

¶7 Maricopa County Medical Examiner

, Dr. Mark Shelly

, performed an external autopsy of Joseph ’s body in May 2014

, and reviewed Joseph ’s medical r ecords from Luke Air Force Base. 2 Dr. Shelly attributed Joseph ’s death primarily to hypertension and ca rdiovascular disease, with

diabetes as a contributing factor

.

¶8 In the decision upon hearing, the ALJ noted “[b]oth doctors reject [Petitioner’s] theory that death was initiated by a diabetic or hypoglycemic episode.” The ALJ found “no medical conflict in the record”

1 The record is unclear whether Dr. Ganem reviewed medical records

from Joseph’s diabetes doctor, Dr. Hamoudeh.

2 Dr. Shelly did not review any medical records from Dr. Hamoudeh.ANGER v. O’REILLY A UTO et al.

Decision of the Court

4 and no medical evidence linking Joseph’s cardiac condition to the stress allegedly cau sed by his disciplinary events. The ALJ found

, “ [e] ven if [the ALJ] were to assume that a diabetic episode led to [Joseph’s] death, [ there

is ] insufficient evidence that [Joseph ’s] work conditions (cell phone rule or truck radio condition) contributed” to his death. Accordingly, the ALJ

denied Petit ioner’ s claim for death benefits.

¶9 Petitioner filed a timely request for review of award. After review, the ALJ affirmed the awa rd denying death benefits. Petitioner timely appealed to this court. We have jurisdiction pursuant to Article 6,

Section 9

, of the Arizona Constitution, Arizona Revised S tatutes (A.R.S.)

sections 12

– 120.21.A.2 and 23

– 951 .A ( West 201 6 )

, 3 and Rule 10 of the Arizona Rules of Procedure for Special Actions.

DISCUSSION

¶10 We deferentially review the ALJ’s factual findings, but review question s of law de novo. Young v. Indus. Comm’n , 204 Ariz. 267, 270, ¶ 14 (App. 2003). To be compensable, an injury must arise out of and occur in

the course of employment. See A.R.S. § 23

- 1021. The phrase “arising out

of” refers to the origin of the injury, and requires a causal relationship between the employment and the injury

. Murphy v. Indus. Comm’n , 160 Ariz. 482, 485 (1989). The phrase “in the course of” requires that the injury occurred during the time, place, and circumstances of employment. Hypl

v. Indus. Comm’n , 2 10 Ariz. 381, 384 (App. 2005). Petitioner has the burden of establishing both of these elements. See id. We view the evidence in the light most favorable to upholding the ALJ’s decision. PF Chang’s v. Indus.

Comm’n , 216 Ariz. 344, 34 7 , ¶ 13 (App. 2007).

¶11 We interpret Petitioner ’s opening brief as arguing that Joseph veered off the road after a hypoglycemic attack and died

. Petitioner argues Joseph would not have perished if he had been able to summon help, but

could not do so becau se his truck radio was not functioning and he was not permitted to have a cell phone while driving

. 4 However, as address ed

3 We cite the current version of applicable statutes when no revisions

material to this decision have since occurred.

4 We have done our best to discern Petitioner’s arguments, “b ut we consider waived those arguments not supported by adequate explanation

, citations to the record, or authority.” In re Aubuchon , 233 Ariz. 62, 64

- 65, ¶ 6 ( 2013); see also Ariz. R. Civ. App. P

. 13(a)(7).ANGER v. O’REILLY A UTO et al.

Decision of the Court

5 above, testimony elicited at the hearing indicated employees are allowed to have a cell phone in the glove compartm ent or in the bac k of the truck and

Mr. Leon testified that the radio in Joseph’s truck was tested and was functioning properly on the day he died

.

¶12 Further

, Doctors Shelly and Ganem rejected Petitioner’s conclusion that Joseph ’s death was caused primarily by a diabetic or hypoglycemic episode. Rather, both doctors opined that Joseph’s death

was heart

- related. Under A.R.S. § 23

- 1043.01.A, a heart

- related death is not compensable “unless some injury, stress or exertion related to the employment was a substantial contributing cause of the heart

- related”

death. The causal relationship between work activities and a heart condition is “peculiarly within the province of medical experts.” Emp’rs Mut. Liab. Ins. Co. of Wis. v. Indus. Comm’n , 15 Ariz.App. 288, 289 (1971 ). Medical opinions must be based on findings from the claimant’s history,
medical records, and examinations. Royal Globe Ins. Co. v. Indus. Comm’n

, 20 Ariz.App. 432, 434 (1973).

¶13 Dr. Ganem reviewed Joseph’s medical records and opined Joseph died from a myocardial infarction caused by multiple c ardiac risk

factors

. He further opined Joseph’s death was not related to work activity

, including injury or stress

. Similarly, Dr. Shelly performed a n external autopsy on Joseph and attributed Joseph’ s death pri marily to hypertension

and cardiovascular disease. N either doctor found a causal relationship

between Joseph’s work activities and his heart

- related death

. Petitioner presented evidence from Specialty Clinic showing Joseph received ongoing

treatment from an endocrinologist

. 5 However, w e defer to the ALJ’s factual finding that there was “no medical conflict in the record.” See Young , 204 Ariz. at 270, ¶ 14.

5 Petitioner states that Doctors Ganem and Shelly did not review Joseph’ s medical records from the Specialty Clinic, which she argues show

that Joseph was in good health. As discussed above, the record on appeal shows that Dr. Shelly did not review the Specialty Clinic records, and the

record is u nclear whether Dr. Ganem did so. Nevertheless, both doctors were aware that Joseph suffered from diabetes, but neither doctor attributed Joseph’s death primarily to diabetic complications or Joseph’s

work activities. Petitioner has the burden of establis hing that Joseph’s death arose out of and in the course of his employment. Hypl , 210 Ariz. at

384 , ¶ 6

.ANGER v. O’REILLY A UTO et al.

Decision of the Court

6 ¶14 E ven if a diabetic episode cause d Joseph to pull off the road,

Petitioner presented insufficient evidence that Joseph’s demise arose out of his employment at O’Reilly

. If, in fact, Joseph died as a result of a hypoglycemic episode while driving, Mr. Beard testified that Joseph was allowed a thirty

- minute lunch break, and it was up to him whether he at e or skip ped lunch

, and the record is devoid of evidence addressing whether he did or did not eat lunch on the day of his death.

CONCLUSION

¶15 Because we find that the evidence of record reasonably supports the ALJ ’s award and decisi on on review, we affirm the denial of dependent death benefits to Petitioner.