Alsbrooks v. Industrial Commission

• Decision Date: 08 March 1977
• Docket Number: No. 1,CA-IC,1
• Citation: 118 Ariz. 505,578 P.2d 184
• Parties: Oris E. ALSBROOKS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, J. F. Shea Company, Inc., Respondent Employer, Argonaut Insurance Company, Respondent Carrier. 1453.
• Court: Arizona Court of Appeals

Page 184

578 P.2d 184

118 Ariz. 505

Oris E. ALSBROOKS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent J. F. Shea Company, Inc., Respondent Employer Argonaut Insurance Company, Respondent Carrier.

No. 1 CA-IC 1453.

Court of Appeals of Arizona,Division 1,Department C.

March 8, 1977.

Hocker & Gilcrease, Ltd. by R. Kelly Hocker, Tempe, for petitioner.

John H. Budd, Jr., Chief Counsel, Phoenix, for respondent The Industrial Commission of Arizona.

Jennings, Strauss & Salmon by Ronald H. Moore, Phoenix, for respondent Employer and respondent Carrier.

OPINION

HAIRE, Judge.

On this review of an award by the respondent Commission in a workmen's compensation proceeding, the petitioner contends that the Commission's hearing officer erred in entering a "scheduled" award pursuant to A.R.S. § 23-1044 B. His specific contention is that the industrially-caused permanent partial disability of his left knee, considered in conjunction with his prior disabilities, should have resulted in an unscheduled award in accordance with the successive injury doctrine developed by case law interpretation of the provisions of A.R.S. § 23-1044 E.

Prior to the industrial injury to his left knee, petitioner had suffered two non-industrial injuries. Both of these prior injuries were service connected and occurred during World War II, one involving a shrapnel wound to the right knee, and the other a low back injury. These injuries resulted in petitioner's being discharged from the service with a 50% service-connected permanent disability award. ¹ There is no question but that permanent physical disability resulted from both of these service-connected injuries. Whether they had an adverse effect on petitioner's earning capacity was the point in dispute at the hearing.

At the time of the presentation of evidence at the hearing before the Commission's hearing officer, both parties were proceeding under the then well-established case law interpretation that, when considered for the purpose of determining whether a later scheduled injury should be considered as unscheduled, the words "previous disability" in A.R.S. § 23-1044 E ² meant an earning capacity disability. Ronquillo v. Industrial Commission, 107 Ariz. 542, 490 P.2d 423 (1971); Wollum v. Industrial Commission, 100 Ariz. 317, 414 P.2d 137 (1966); Goodyear Aircraft Corporation v. Industrial Commission, 89 Ariz. 114, 358 P.2d 715 (1961); McKinney v. Industrial Commission, 78 Ariz. 264, 278 P.2d 887 (1955); Ross v. Industrial Commission, 22 Ariz.App. 209, 526 P.2d 416 (1974) ³; Morgan v. Industrial Commission, 21 Ariz.App. 526, 521 P.2d 157 (1974); Yanez v. Industrial Commission, 21 Ariz.App. 367, 519 P.2d 220 (1974); Yount v. Industrial Commission, 20 Ariz.App. 527, 514 P.2d 280 (1973); Stine v. Industrial Commission, 20 Ariz.App. 465, 513 P.2d 1348 (1973); Bozman v. Industrial Commission, 20 Ariz.App. 390, 513 P.2d 679 (1973); Camacho v. Industrial Commission, 20 Ariz.App. 225, 511 P.2d 669 (1973); Wakley v. Industrial Commission, 19 Ariz.App. 331, 507 P.2d 133 (1973); Hollywood Continental Films v. Industrial Commission, 19 Ariz.App. 234, 506 P.2d 274 (1973); Gallardo v. Industrial Commission, 16 Ariz.App. 491, 494 P.2d 391 (1972); Sutton v. Industrial Commission, 16 Ariz.App. 334, 493 P.2d 501 (1972); and Duron v. Industrial Commission, 16 Ariz.App. 71, 491 P.2d 21 (1971).

In the Ronquillo case, supra, the Arizona Supreme Court had considered the problems of proving the effect of a prior physical impairment on the petitioner's earning capacity for purposes of establishing the § 23-1044 E "previous disability", and had enunciated certain presumptions:

1. Conclusive presumption. If the previous disability resulted from a scheduled industrial injury, it would be conclusively presumed that the previous disability had a continuing and permanent effect on the claimant's earning capacity. Therefore any subsequent scheduled industrial injury would, by reason of A.R.S. § 23-1044 E, automatically be treated as unscheduled.

2. Rebuttable presumption. If the previous disability resulted from a nonindustrial injury which would have been scheduled had it been industrially related, then there would be a rebuttable presumption that the prior injury had an effect on the earning capacity of the workman at the time of the second injury. This rebuttable presumption could be overcome by evidence showing that in fact the previous disability had not decreased claimant's earning capacity at the time of the subsequent injury.

At the hearing petitioner relied upon the Ronquillo rebuttable presumption, contending that the World War II injury to his right knee would have been scheduled, if industrial. In response to this contention, the respondent carrier advanced a two-pronged argument: First, that the combination of the World War II knee and low back injuries would have made the prior non-industrial injuries unscheduled, rather than scheduled, and therefore petitioner should not be able to claim the benefit of the Ronquillo rebuttable presumption; and, second, that even if a rebuttable presumption were available to petitioner, the evidence relating to petitioner's earning capacity prior to and at the time of the subsequent industrial injury was sufficient to rebut any such presumption.

The findings made by the hearing officer in his Decision Upon Hearing and Findings and Award were to the effect that petitioner's service-connected injuries would not have been scheduled if industrial; that petitioner was not entitled to the benefit of any Ronquillo presumption; that the evidence did not establish that he was suffering from an earning capacity disability at the time of the industrial injury; and that therefore he was not entitled to an unscheduled award.

On the day following the issuance of the hearing officer's Decision Upon Hearing and Findings and Award, the Arizona Supreme Court filed its opinion in Ross v. Industrial Commission, 112 Ariz. 253, 540 P.2d 1234 (1975), vacating this Court's previously filed opinion, Ross v. Industrial Commission, 22 Ariz.App. 209, 526 P.2d 416 (1974). In this Court's filed opinion in Ross, we had discussed, by way of background, certain principles concerning A.R.S. § 23-1044 E, none of which were questioned by the parties in their briefs filed in this Court. That discussion was as follows:

"It is well established in Arizona law that when a prior injury has resulted in an earning capacity disability which exists at the time of the occurrence of a subsequent industrial injury, the industrial injury must be treated as unscheduled. The development of this 'successive' injury theory under A.R.S. § 23-1044 E and an analysis of pertinent Arizona decisions are set forth in our opinion in Rodgers v. Industrial Commission, 15 Ariz.App. 329, 488 P.2d 685 (1971) (vacated 109 Ariz. 216, 508 P.2d 46 (1973)) and will not be repeated here. However, the following principles pertinent to the issues raised by petitioner must be kept in mind. First, the 'previous disability' referred to in § 23-1044 E must be a disability which has resulted in a loss of earning capacity. Goodyear Aircraft Corporation v. Industrial Commission, 89 Ariz. 114, 358 P.2d 715 (1961); McKinney v. Industrial Commission, 78 Ariz. 264, 278 P.2d 887 (1955); Bozman v. Industrial Commission, 20 Ariz.App. 390, 513 P.2d 679 (1973); Duron v. Industrial Commission, 16 Ariz.App. 71, 491 P.2d 21 (1973). Second, this prior injury earning capacity disability must have been in existence at the time of the occurrence of the second injury. Blount v. Industrial Commission, 19 Ariz.App. 245, 506 P.2d 285 (1973); Bozman, supra. In the language of the statute, it is the 'previous disability as it existed at the time of the subsequent injury' which is pertinent. Third, if the prior injury was a scheduled industrial injury, then under Arizona decisional law there is a conclusive presumption that the prior injury not only caused an earning capacity disability, but also that the earning capacity disability continued and was in existence at the time of the subsequent injury. Ronquillo v. Industrial Commission, 107 Ariz. 542, 490 P.2d 423 (1971). On the other hand, if the prior injury was non-industrial, but would have been scheduled had it been industrial, then the same presumption applies initially, but it is not conclusive and may be rebutted by evidence showing no earning capacity loss. Ronquillo, supra; Camacho v. Industrial Commission, 20 Ariz.App. 225, 511 P.2d 669 (1973); Sutton v. Industrial Commission, 16 Ariz.App. 334, 493 P.2d 501 (1972). (Footnote omitted). (Emphasis in original). 22 Ariz.App. at 212, 526 P.2d at 419.

The Ross case was concerned with a welder who had lost the sight of one eye in a non-industrial accident, which would have created a rebuttable presumption of a loss of earning capacity. The carrier presented evidence that his earning capacity as a welder had not, however, been affected by the loss of sight in the one eye at the time of the industrial injury in which he lost his remaining eye. We then proceeded to discuss the contention raised on review by the petitioner in Ross in terms of the Ronquillo decision, that is, whether the evidence relating to petitioner's earning capacity at the time of the injury was sufficient to rebut the Ronquillo rebuttable presumption, and thus furnish support for the hearing officer's finding that Ross ' prior injury had not resulted in an earning capacity disability at the time of the subsequent industrial injury. We determined that the record furnished support for the hearing officer's finding, and therefore affirmed the award. The Arizona Supreme Court granted review of this Court's decision in Ross, vacated this Court's opinion, and set aside the hearing officer's award. The Arizona Supreme Court did not indicate in its opinion that it disagreed with this Court's interpretation of the facts, but rather, held that the "previous disability"...