O'Donnell v. Industrial Commission of Arizona

• Decision Date: 28 December 1979
• Docket Number: CA-IC,No. 1,1
• Citation: 609 P.2d 1058,125 Ariz. 358
• Parties: Orville H. O'DONNELL, Petitioner, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, J. E. Weaver Construction Co., Respondent Employer, State Compensation Fund, Respondent Carrier. 1979.
• Court: Arizona Court of Appeals

Page 1058

609 P.2d 1058

125 Ariz. 358

Orville H. O'DONNELL, Petitioner, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent J. E. Weaver Construction Co., Respondent Employer State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 1979.

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

Dec. 28, 1979.

Rehearing Denied March 24, 1980.

Review Denied April 22, 1980.

Charles M. Wilmer, P. C. by Charles M. Wilmer, Phoenix, for petitioner.

James L. Stevenson, Chief Counsel, Industrial Commission of Arizona, Phoenix, for respondent.

Robert K. Park, Chief Counsel, State Compensation Fund by Arthur B. Parsons, Phoenix, for respondent employer and carrier.

OPINION

JACOBSON, Judge.

We are faced in this review of an award of the Industrial Commission with whether, given the medical causation between a prior scheduled knee injury and a subsequent work-related back injury, the scheduled injury must be considered unscheduled.

The facts are not in dispute and the issue presented is purely legal in resolution. On August 7, 1968, the petitioner, Orville H. O'Donnell, industrially injured his knee while employed by J. E. Weaver Construction Company, which resulted in a scheduled award of 20 percent permanent partial disability to his right leg.

In May, 1973, O'Donnell filed a petition to reopen his claim. Subsequently, reopening was granted, see O'Donnell v. Industrial Commission, 23 Ariz.App. 367, 533 P.2d 675 (1975), investigative surgery was performed and on March 29, 1977, the carrier issued a notice of claim status finding O'Donnell's knee condition to be stationary and providing a 28 percent scheduled permanent partial disability to the right leg.

This notice of claim status was timely protested, O'Donnell contending basically that because of a back condition brought about by the disabled knee, the scheduled injury should now be considered unscheduled.

Testimony at the formal hearings conducted in this matter showed that O'Donnell is a cement mason by trade. This occupation required a significant amount of kneeling. However, because his knee condition did not allow him to kneel, O'Donnell compensated by doing his work in a constantly stooped position. He continued to ply his trade in this manner during the years 1974, 1975 and 1976, primarily for two different employers, Del E. Webb Corporation and Mardian Construction Company. O'Donnell ceased working after April, 1977, due to his back problems.

In this regard, the hearing officer found:

"Under the circumstances, when all of the medical and other evidence is considered in its entirety, the Hearing Officer feels that he must accept the testimony of Dr. Pomeroy and Nielson, to the effect that applicant has a back problem which was contributed to or adversely affected by the unusual positions in which the applicant had to work as a cement mason after his knee injury.

". . . (A)s the years went by, the condition of his leg resulted in the applicant working in a manner that created problems elsewhere. But ultimately, it was the later work and not merely the condition of the leg that brought on the subsequent back problems." (Emphasis added.)

Notwithstanding these findings, the hearing officer viewed the problem from a legal causation standpoint and stated the issues thusly:

"(I)s the relationship between the applicant's back condition and his original industrial injury such as to require this carrier to provide benefits for the back on a Petition To Reopen, or, has the applicant, within the contemplation of the Workmen's Compensation Act, sustained a new industrial injury or injuries to his back as a result of his subsequent working activity as a cement mason?"

After reviewing the various legal authorities, the hearing officer concluded that legally O'Donnell's later work-related activity which resulted in his back problems had the legal effect of cutting off the causal relationship between the knee and back condition at least insofar as imposing liability for that back injury upon the carrier responsible for the knee injury.

The hearing officer then concluded "(T)he Hearing Officer is not finding herein that an impairment of the back resulting from a leg injury cannot be the basis for converting a scheduled injury to an unscheduled one; the Hearing Officer is finding that applicant's back problem is not a liability of the defendant carrier, within the applicable principles of the Act, and if the back condition is not the responsibility of the carrier, it cannot be used to convert this carrier's liability from the scheduled benefits provided to an unscheduled loss of earning capacity disability, even though such disability may ultimately be established in relation to the back alone, as against one or more subsequent employers."

The hearing officer then entered an award based upon a 28 percent scheduled permanent partial disability. O'Donnell has sought review in this court.

O'Donnell's position is simply put: His prior knee injury required him to stoop, this stooping resulted in a back injury; medical testimony established a causal relationship between the knee injury, resulting stooping, and the back injury; the back injury is a new, additional, or previously undiscovered condition which converts the knee injury on reopening to an unscheduled disability.

The carrier's position is equally simply put: The knee injury would not have caused the back condition without the subsequent work-related activity; the work-related activity, in an industrial setting, resulted in a "new" industrially compensable injury and acted as an intervening cause cutting off the causal connection between the knee and the back; thus it has no liability.

In our opinion, the hearing officer in making his award, mixed the causation rules affecting a subsequent injury or aggravation of the primary injury, where the claimant's activity is a relevant factor, with the fact that such activity occurred in a work setting.

As to a primary injury, the workman in order to obtain compensation under the law need only show that the injury arose out of and in the course of his employment. A.R.S. § 23-1021. This showing of "in the course of and arising out of" supplies the necessary causal relationship between work activity and injury to give rise to compensation benefits. Therefore, such common law causal concepts as contributory negligence, superseding causes (i. e., fellow servant's negligence) and remote causes are immaterial. See, 1 A Larson, Workmen's Compensation Law, § 2.30 (1978).

However, when compensability is to be extended to subsequent injuries or aggravations related in some manner to the primary injury, then the case law requires that such subsequent injuries or aggravations be the "direct and natural result" of the primary injury and the claimant's own conduct can be assessed as a superseding or independent cause. American Smelting & Refining Co. v. Industrial Commission, 25 Ariz.App. 532, 544 P.2d 1133 (1976); 1 A. Larson, supra, § 13.11.

In particular, where the subsequent injury or the aggravation of the primary injury is not due to the natural progression of the primary injury but is the result of the voluntary acts of claimant, then the nature of the claimant's conduct in performing the act becomes material. See 1 A. Larson, supra, § 13.12, at 3-377.

We realize that in the recent two to one decision of this court in Allen v. Industrial Commission, 124 Ariz. 173, 602 P.2d 841 (1 CA-IC 2054, filed October 2, 1979, review denied), this court held that any subsequent injury acting on a primary injury is not compensable when the subsequent injury is the...