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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

JOSEPH H. ANGER (Deceased), Petitioner, 

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

O’REILLY AUTO PARTS, Respondent Employer, 

SAFETY NATIONAL CASUALTY CORP/CORVEL ENTERPRISE,

Respondent Carrier.

No. 1 CA-IC 15-0037

Special Action – Industrial Commission

ICA Claim No. 20141-750295

Carrier Claim No. OR-15-010715

Deborah A. Nye, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Joseph H. Anger (Deceased) 

By Nancy Anger, Buckeye

Petitioner
2

Industrial Commission of Arizona, Phoenix

By Jason Porter

Counsel 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 Industrial Commission of 

Arizona (ICA) award and decision upon review denying Petitioner’s claim 

for dependent death benefits. For the following reasons, we affirm the 

decision of the Administrative Law Judge (ALJ).

FACTS 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 slumped over the steering wheel.

First responders found Joseph to be in ventricular fibrillation, and 

transported him to a hospital where he was pronounced dead. There is no 

evidence in the record that Joseph ever called for help using a cell phone or 

the truck’s two-way radio. 

¶3 Following 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 over 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 phone 
ANGER v. O’REILLY AUTO et al.

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while driving a company vehicle, but employees are allowed to have a cell 

phone in the glove compartment or in the back of the vehicle, just not on 

their person. Mr. Leon also testified 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 reach only “seven miles or more.” 

¶5 Dennis Beard, the store manager at the O’Reilly’s where 

Joseph worked, testified that Joseph was investigated three times for 

disciplinary 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 take a thirty minute 

lunch break or leave work thirty minutes early, and Joseph would usually 

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. The store 

manager and district manager were not aware that Joseph was diabetic. 

¶6 Dr. James Ganem, a board certified 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. Ganem based his opinion on 

Joseph’s risk factors, which included diabetes, sleep apnea, medical 

noncompliance, obesity and atherosclerotic cardiovascular disease. The 

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 including 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 records from Luke Air Force Base.2 Dr. Shelly attributed

Joseph’s death primarily to hypertension and cardiovascular 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. 
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and no medical evidence linking Joseph’s cardiac condition to the stress 

allegedly caused 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 Petitioner’s claim for death benefits.

¶9 Petitioner filed a timely request for review of award. After 

review, the ALJ affirmed the award denying death benefits. Petitioner

timely appealed to this court. We have jurisdiction pursuant to Article 6, 

Section 9, of the Arizona Constitution, Arizona Revised Statutes (A.R.S.) 

sections 12–120.21.A.2 and 23–951.A (West 2016),

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 

questions 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, 210 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, 347, ¶ 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 because his truck radio was not functioning and he was not 

permitted to have a cell phone while driving.

4 However, as addressed 

 

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, “but 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). 
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above, testimony elicited at the hearing indicated employees are allowed to 

have a cell phone in the glove compartment or in the back 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 cardiac risk 

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

including injury or stress. Similarly, Dr. Shelly performed an external 

autopsy on Joseph and attributed Joseph’s death primarily to hypertension

and cardiovascular disease. Neither 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, we 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 unclear 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 establishing that Joseph’s 

death arose out of and in the course of his employment. Hypl, 210 Ariz. at 

384, ¶ 6.
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¶14 Even if a diabetic episode caused 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 ate

or skipped 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 decision on review, we affirm the denial of 

dependent death benefits to Petitioner.