Adams v. Industrial Com'n of Arizona, 1

• Decision Date: 11 July 1985
• Docket Number: CA-IC,No. 1,1
• Citation: 710 P.2d 1073,147 Ariz. 418
• Parties: George W. ADAMS, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Rodney Amick and Mary Amick, his wife, dba Rod's Happy Rentals, Respondent Employer, No Insurance, Respondent Carrier. 3189.
• Court: Arizona Court of Appeals

Page 1073

710 P.2d 1073

147 Ariz. 418

George W. ADAMS, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Rodney Amick and Mary Amick, his wife, dba Rod's Happy Rentals, Respondent Employer, No Insurance, Respondent Carrier.

No. 1 CA-IC 3189.

Court of Appeals of Arizona,

Division 1, Department D.

July 11, 1985.

Motion for Reconsideration Denied Sept. 5, 1985.

Tretschok, McNamara & Clymer, P.C. by Patrick R. McNamara, Tucson, for petitioner.

Dennis P. Kavanaugh, Chief Counsel, Indus. Com'n of Arizona, Phoenix, for respondent.

Bury & Moeller, P.A. by J. Michael Moeller, Tucson, for respondent Employer and respondent Carrier.

OPINION

MEYERSON, Presiding Judge.

The issue in this special action is whether an Industrial Commission award may be reversed on review by a substituted administrative law judge who did not personally observe the claimant testify. Because the claimant's credibility is crucial in this case, we hold the award upon review must be set aside.

I. FACTS

George Adams (claimant) filed a claim for a low back injury occurring on "approximately January 20, 1983," while employed by Rodney and Mary Amick, dba Rod's Happy Rentals (employer). The claim was administered by the No Insurance Division of the Industrial Commission which found the claim noncompensable. Claimant protested and requested a hearing which was granted.

In December, 1982, claimant was hired to maintain mobile homes leased to tenants by his employer. Each day, claimant received his work instructions from Ms. Amick. Claimant kept handwritten logs of all work performed. Claimant stated that he began to have a backache following work on January 20, 1983. On that date, claimant loaded and unloaded furniture from a pickup truck, dug a ditch and laid floor tile. Claimant did not see a doctor immediately because the pain was only intermittent and he was also short of money. When his condition continued to worsen, he went to Thomas Stark, a chiropractor who examined him on February 15. On April 8, 1983, after taking time off because of his back problem, claimant's employment was terminated. After several chiropractic treatments, claimant consulted a general practitioner who referred him to an orthopedic surgeon. Claimant was referred to another orthopedic surgeon who removed a herniated disc on August 1, 1983.

On cross-examination, claimant admitted that after learning of the seriousness of his condition from the first surgeon he consulted his logs to determine the exact date that he moved furniture. The log's entry on January 21, 1983 states: "Told Mary about back pains, not her problem!" This entry is written in a different color of ink than the entry describing the work claimant performed on that date and the entries preceding and immediately following it. At hearing, claimant denied making the entry on a date other than January 21, 1983. Ms. Amick stated that claimant never told her that he was having back pain until February.

Four physicians testified regarding causation. Dr. Stark testified that claimant never mentioned the January 20 incident. Dr. Stark stated, however, that claimant mentioned having had pain in his back while carrying something heavy up a ladder. The general practitioner testified that she did not receive a history of the January 20 industrial episode. She stated that claimant indicated that his back problems were "secondary" to work. One surgeon testified that claimant stated that he had acute back pain within three days of lifting heavy furniture. This doctor testified that the January 20 incident could have caused claimant's disc herniation but concluded that claimant would not have been able to perform the duties he indicated in his log that he performed following the episode. The second surgeon testified that claimant's disc herniation was of "recent origin" and was consistent with claimant's report that the injury occurred on January 20. He stated to a medical probability that the lifting incident caused the herniation. Although he believed it unlikely that claimant could continue to work following the herniation, he did not believe it impossible.

Administrative law judge George B. Marvel entered an award for a compensable claim. Although Marvel expressed uncertainty as to whether claimant's activities on January 20 causd the herniated disc, he was nevertheless "left with the inescapable conclusion" that claimant's work "either caused, aggravated or contributed to" the herniated disc. The employer filed a request for review. Prior to issuing a decision on review, administrative law judge Marvel retired and the case was assigned to administrative law judge Peter J. Baum. See A.R.S. § 23-942(B). In his award on review, administrative law judge Baum rescinded the award, finding in part:

The applicant contends that the evidence of record does establish that he sustained a low back injury while performing these specifically described lifting duties on January 20, 1983. The preponderance of credible lay evidence does not support this contention. The applicant has not established by a preponderance of credible evidence that he sustained any injury by accident arising out of or in the course of his employment for the defendant employer on January 20, 1983. The medical evidence linking the applicant's low back condition to his work activities of January 20, 1983 is so weakened by lack of a credible factual background as to be insufficient to support a compensable award.

(Emphasis added.) On appeal, claimant argues that, absent a new hearing to determine witness's credibility, the administrative law judge erred in rescinding the initial award. Claimant contends that the credibility of a witness may only be determined by the administrative law judge who listens to the testimony because it is impossible to determine a witness's credibility from a written record. We agree.

II. ANALYSIS

The law involving substitution of "finder of fact" is speckled with divergent themes. See generally 3 K. Davis, Administrative Law Treatise § 17:17 (2d ed.1980) (Davis); 3 A. Larson, The Law of Workman's Compensation §§ 80.12-. 12(G) (1982); Note, Replacing Finders of Fact--Judge, Juror, Administrative Hearing Officer, 68 Colum.L.Rev. 1317 (1968); Annot., 148 A.L.R. 327 (1944). We need not, however, in this decision review all of the many nuances which present themselves in cases involving substituted fact finders. We need only decide the question before us, namely, whether in a decision upon review a substituted administrative law judge who has not observed the witnesses testify, may reverse an award where the credibility of a witness is at issue.

Where credibility is at issue, it is generally held that a hearing examiner making a recommendation to a reviewing board, agency or court must actually hear and observe the witnesses. See, e.g., Smith v. Dental Products Co., 168 F.2d 516 (7th Cir.1948) (trial judge decided case from a transcript prepared by a special master who had died; the court reversed, and ordered a trial de novo holding that the decision on the record without seeing the witnesses was error); Harden v. South Dakota Credit Union League, Inc., 87 S.D. 433, 209 N.W.2d 665, 666 (1973) (hearing held before agency whose duties were transferred to new commission; court refused to accept new commissioner's findings because he "did not conduct the evidentiary hearing and did not have the benefit of seeing and hearing the witnesses testify."); Shawley v. Industrial Commission, 16 Wis.2d 535, 114 N.W.2d 872 (1962) (where credibility is at issue, due process violated if agency does not have recommendation of hearing officer who conducted the proceeding). "Normally, a proper credibility evaluation requires that the fact finder hear and observe the witness. Credibility is not readily discernible by one who merely reads a cold record." Pigrenet v. Boland Marine & Mfg. Co., 631 F.2d 1190, 1191 (5th Cir.1980), reh'g granted, 656 F.2d 1091 (1981).

The general rule has been stated as follows:

[T]he principle which should govern substitution of hearing officers is the simple one that demeanor of witnesses should not be lost from the case. Whoever observes the demeanor must report it to the decision makers. If demeanor is unimportant because all the crucial evidence is documentary, no such report is needed.

Davis § 17.17 at 337. For example, in Gamble-Skogmo, Inc. v. FTC, 211 F.2d 106 (8th Cir.1954), the court set aside a decision of the Federal Trade Commission which was based upon the recommendation of a substituted hearing officer who did not observe the proceedings. The court found that "credibility evaluation on a personal basis ... constituted a salient factor in the recommended decision." Id. at 117. The court held:

[T]he recommended decision should be made by the examiner who had presided at the reception of the evidence, in order that such a material credibility evaluation as was engaged in by the substitute examiner would include the elements of having seen and having heard the conflicting witnesses testify.

Id. In reaching its conclusion, the court emphasized the importance of appearance and demeanor.

[A]...