IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

SOUTHWEST DESERT IMAGES, LLC,

Petitioner Employer,

COLORADO CASUALTY INSURANCE COMPANY,

Petitioner Insurer,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA,

Respondent,

DAN SLAVEN,

Respondent Employee,

SOUTHWEST DESERT IMAGES, LLC,

Respondent Employer,

COPPERPOINT MUTUAL INSURANCE COMPANY,

Respondent Insurer.

No. 2 CA-IC 2014-0007

Filed October 28, 2014

Special Action – Industrial Commission

ICA Claim Nos. 20081630150 and 20121150026 (Consolidated)

Insurer Nos. 0813656 and 604808420

Jacqueline Wohl, Administrative Law Judge

AWARD AFFIRMED
SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.

Opinion of the Court

2

COUNSEL

Klein, Doherty, Lundmark, Barberich & La Mont, P.C.

By Eric W. Slavin, Tucson

Counsel for Petitioners Employer and Insurer

The Industrial Commission of Arizona, Phoenix

By Andrew F. Wade

Counsel for Respondent

Dix & Forman, P.C.

By J. Stephen Dix, Tucson

Counsel for Respondent Employee

James B. Stabler, Chief Counsel, CopperPoint Mutual Ins. Co.

By Veronique Pardee, Tucson

Counsel for Respondents Employer and Insurer

OPINION

Presiding Judge Miller authored the decision of the Court, in which 

Judge Espinosa and Judge Vásquez concurred.

M I L L E R, Presiding Judge:

¶1 In this statutory special action, petitioner insurer 

Colorado Casualty Insurance challenges the administrative law 

judge’s (ALJ) application of the successive-injury doctrine in 

awarding disability compensation and medical benefits to be 

provided by Colorado Casualty, rather than State Compensation 

Fund of Arizona (SCF Arizona), the employer’s former insurance 

carrier. For the following reasons, we affirm the award.
SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.

Opinion of the Court

3

Factual and Procedural Background

¶2 In 2008, petitioner employee Dan Slaven sustained an 

industrial injury to his lower back while he was employed by 

Southwest Desert Images (SDI). SDI’s then-insurance carrier, SCF 

Arizona, accepted the claim. An independent medical examiner 

diagnosed Slaven with a lumbar sprain/strain. The examiner also 

noted that Slaven suffered from a disc protrusion on his left side but 

because there were no left-side symptoms, he determined the 

protrusion was unrelated to the industrial injury. SCF closed the 

claim by notice in February 2010 with two percent impairment and 

no reduced earning capacity. Slaven continued to feel some pain in 

his back after the closure.

¶3 In April 2012, while working for SDI again, Slaven 

injured his back while moving rocks to clear a drainage canal. He 

did not feel pain until the next day, when the pain was so intense he 

could not walk. Later, the pain began to radiate down his left side 

and his left leg.

¶4 Slaven filed a petition to reopen the 2008 claim, which 

SCF rejected. Slaven also filed a claim for a new injury, which was 

rejected by SDI’s 2012 insurance carrier, Colorado Casualty. He filed 

requests for hearing, and the ALJ consolidated the matters. During 

the three-day hearing, a physician testifying on behalf of Slaven 

opined that moving the rocks had caused a new injury and 

exacerbated the 2008 injury. Colorado Casualty’s examiner 

concluded she could not characterize Slaven’s increased pain as 

either an aggravation of a preexisting condition or a new injury. The 

ALJ issued a decision denying the 2008 petition to reopen and 

concluding the April 2012 claim was a new compensable injury 

pursuant to Arizona’s successive-injury doctrine. SDI and Colorado 

Casualty sought review, and the ALJ affirmed the award. This 

special action followed.

Application of Successive-Injury Doctrine

¶5 Colorado Casualty contends the ALJ erred in applying 

the successive-injury doctrine based on the finding Slaven had 

suffered a new injury without any evidence of an “organic change.” 

SCF argues a finding of a new injury does not require an organic 
SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.

Opinion of the Court

4

change. We defer to the ALJ’s factual findings, but review questions 

of law de novo. Munoz v. Indus. Comm’n, 234 Ariz. 145, ¶ 9, 318 P.3d 

439, 442 (App. 2014).

¶6 Under the successive-injury doctrine, if a claimant elects 

to file both reopening and new injury claims, and satisfies the 

burden of proof as to both, then the carrier that is last in time is 

wholly responsible for workers’ compensation benefits. Vishinskas v. 

Indus. Comm’n, 147 Ariz. 574, 577-78, 711 P.2d 1247, 1250-51 (App. 

1985). In Industrial Indemnity Company v. Industrial Commission, this 

court detailed the elements required to shift liability. 162 Ariz. 503, 

508, 784 P.2d 709, 714 (App. 1989) (Industrial Indemnity II). The latter 

carrier may be responsible for symptomatic aggravation if additional 

treatment is required or the industrial injury causes additional 

disability. Id. at 508-09, 784 P.2d at 714-15. The second carrier also 

may be responsible for the underlying condition if there is an 

“organic change” to that condition. Id.

¶7 Liability for the aggravation and the underlying 

condition are separate considerations. Id. at 509, 784 P.2d at 715; see 

also Indus. Indem. Co. v. Indus. Comm’n, 152 Ariz. 195, 199, 731 P.2d 90, 

94 (App. 1986) (Industrial Indemnity I) (finding anatomical change not 

necessary to prove new injury when dispute concerns only 

compensable consequences of aggravation, and not attempt to shift 

liability for underlying condition). An incident results in a new 

injury where it is a true aggravation, that is, it worsens or accelerates 

a prior condition. New Pueblo Constr. v. Indus. Comm’n, 115 Ariz. 236, 

237, 564 P.2d 925, 926 (App. 1977). There is no new injury if the 

employment “merely provide[d] the situs for a manifestation of 

symptoms related to the prior condition.” Id.

¶8 Colorado Casualty contends the requirements in 

Industrial Indemnity II have been rejected by this court in a newer 

case, Kaibab Industries v. Industrial Commission, 196 Ariz. 601, 2 P.3d 

691 (App. 2000). It relies on the Kaibab court’s explanation of the 

requirements of the successive-injury doctrine:

[A]n employee’s underlying condition may 

become the responsibility of an employer if 

the new work activity causes organic 
SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.

Opinion of the Court

5

change in the underlying condition. A new 

employer also may be responsible for 

symptomatic aggravation but only if it 

amounts to an additional disability. 

Therefore, when the aggravation is caused 

by circumstances that would constitute the 

new injury, the employer is liable for all 

disabilities flowing from that aggravation.

Alternatively, when a change in condition 

is but an aggravation of the first injury, 

there is no new injury.

Kaibab Indus., 196 Ariz. 601, ¶¶ 12-13, 2 P.3d at 696 (internal citations 

omitted).

1 Colorado Casualty argues that Kaibab requires an 

“organic change” for a new injury, as anything else would be a mere 

aggravation of the earlier injury.

¶9 Colorado Casualty’s reading of Kaibab is unavailing. 

First, there is no indication in Kaibab that the court intended to 

narrow the application of the successive-injury doctrine. See id.

¶¶ 12-13. Second, Kaibab explicitly states, as noted above, “A new 

employer also may be responsible for symptomatic aggravation but 

only if it amounts to an additional disability.” Id. ¶ 12. As stated in 

Industrial Indemnity II, on which Kaibab relied, aggravation of an old 

injury resulting in additional disability is compensable by the new 

employer without an organic change. Id.; see also Indus. Indem. II, 162 

Ariz. at 508-09, 784 P.2d at 714-15; Indus. Indem. I, 152 Ariz. at 199, 

731 P.2d at 94. The presence of organic change from the new work 

activity shifts liability to the current employer, but it is not a 

condition precedent. See id.; Indus. Indem. II, 162 Ariz. at 508-09, 784 

P.2d at 714-15; Indus. Indem. I, 152 Ariz. at 199, 731 P.2d at 94.

¶10 Colorado Casualty also argues, relying on Kaibab, that 

there was no new injury here because Slaven merely aggravated his 

 

1Although Kaibab refers to new employers, the successiveinjury doctrine also may apply when the employer is the same, but 

the insurance carrier has changed. See, e.g., Industrial Indemnity II, 

162 Ariz. at 504, 784 P.2d at 710.
SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.

Opinion of the Court

6

underlying condition. 196 Ariz. 603, ¶ 14, 2 P.3d at 696. In Kaibab, 

the employee sustained two industrial injuries to her back in 1994 

and 1995 that were accepted and ultimately closed. 196 Ariz. 603, 

¶¶ 2-3, 2 P.3d at 694. Her third industrial injury occurred in 1997 

when she felt sharp back pain while standing up after sitting for a 

break. Id. ¶ 4. At a hearing regarding reopening the 1995 claim, two 

doctors disagreed about whether the pain was related to the 1995 

injury or the act of standing up in 1997. Id. ¶¶ 7-8. The ALJ resolved 

the medical conflict in favor of the doctor who believed the pain 

related to the earlier injury, and granted the petition to reopen that 

claim. Id. ¶ 9. This court affirmed the award, concluding the 

doctor’s testimony was sufficient to show that the 1995 injury was 

merely aggravated in 1997 and that the successive-injury doctrine 

did not apply. Id. ¶ 14.

¶11 Here, unlike in Kaibab, the ALJ resolved the conflicting 

medical testimony in favor of the doctor who believed the later 

industrial incident was a new injury. Dr. David Jacobs examined 

Slaven at his request and testified that Slaven had suffered a work 

injury while he was moving rocks in 2012, which aggravated his 

2008 injury. He also testified that Slaven had more recently begun to 

suffer from a soft tissue injury and impinged nerve causing him 

radicular symptoms down his left side, which he did not have after 

the 2008 injury.

¶12 Dr. Marjorie Eskay-Auerbach, who conducted an 

independent medical examination at Colorado Casualty’s request, 

found that Slaven suffered from axial low back pain, which at most 

was “more intense” in 2012, but she did not believe an injury 

occurred in 2012. Dr. Eskay-Auerbach admitted she would have 

expected a 2008 sprain/strain to have resolved by 2012, and she was 

not aware of Slaven’s newer left-sided symptoms, and therefore 

could not comment on them.

¶13 The ALJ found the testimony of Dr. Jacobs to be the 

“most probably correct and well founded.” We will not disturb the 

ALJ’s resolution of medical conflicts unless it is “wholly 

unreasonable,” and we do not do so here. Stainless Specialty Mfg. Co. 

v. Indus. Comm’n, 144 Ariz. 12, 19, 695 P.2d 261, 268 (1985). Slaven’s 

testimony and the testimony of Dr. Jacobs support the ALJ’s findings 
SOUTHWEST DESERT IMAGES v. INDUS. COMM’N OF ARIZ.

Opinion of the Court

7

that the 2012 industrial injury was a new injury caused by his 

moving rocks, not merely a new manifestation of the 2008 injury. See 

Indus. Indem. I, 152 Ariz. at 199, 731 P.2d at 94 (successive-injury 

doctrine applied when doctor testified underlying condition could 

have been controlled, but work injury increased disability).

Disposition

¶14 For the foregoing reasons, the award is affirmed.