Employers Mut. Liability Ins. Co. of Wisconsin v. Industrial Commission, 1

• Decision Date: 05 April 1977
• Docket Number: No. 1,CA-IC,1
• Citation: 115 Ariz. 439,565 P.2d 1300
• Parties: EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Petitioner Carrier, Valley Dodge, Inc., Petitioner Employer, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Charles R. Hazelton, Respondent Employee. 1467.
• Court: Arizona Court of Appeals

Page 1300

565 P.2d 1300

115 Ariz. 439

EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Petitioner Carrier Valley Dodge, Inc., Petitioner Employer, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Charles R. Hazelton, Respondent Employee.

No. 1 CA-IC 1467.

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

April 5, 1977.

Rehearing Denied May 24, 1977.

Review Denied June 15, 1977.

Lewis & Roca by Merton E. Marks, James B. Long, Phoenix, for petitioners carrier and employer.

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

Harlan J. Crossman, Phoenix, for respondent employee.

JACOBSON, Presiding Judge.

This case is yet another episode in the continuing saga of the workmen's compensation claim of Charles R. Hazelton, respondent employee, which has been submitted to this court for decision on two previous occasions. The historical background of the present matter is fully set forth in the first Court of Appeals decision, Employers Mutual Liability Ins. Co. of Wisconsin v. Industrial Commission, 17 Ariz.App. 516, 498 P.2d 590 (1972) (hereinafter Hazelton I ) and elaborated upon in the second appeal, Hazelton v. Industrial Commission, 23 Ariz.App. 13, 530 P.2d 370 (1975) (hereinafter Hazelton II ). The central issue on the present appeal is whether the decision of the first appeal is determinative as the "law of the case" to be applied in subsequent hearings de novo and appeals when the evidence presented in the hearings following the setting aside of the original award is substantially the same as that presented in the initial hearing. In short, is the hearing officer's interpretation of Hazelton II correct in that the Commission can make different inferences from the same facts even though this court in Hazelton I made a determination on substantially the same facts?

By way of brief introduction, the relevant factual background is as follows. Charles Hazelton, an automotive refrigeration mechanic, injured his back in September, 1969, while working underneath a vehicle in the course of his employment with Valley Dodge, Inc., which was insured by Employers Mutual Liability Insurance Company of Wisconsin (Employers Mutual). Following the September, 1969, injury, a claim for workman's compensation benefits was filed and accepted by the carrier, Employers Mutual. Prior to the closing of the claim, on July 25, and 27, 1970, Hazelton sustained further back injuries, neither of which were industrially related. In August, 1970, the carrier terminated all benefits on the basis that Hazelton's then current condition was unrelated to the industrial accident. Hearings were subsequently conducted and medical testimony was received. An award favorable to Hazelton was entered in May, 1971, specifying a stationary status as of October, 1970, and awarding an unscheduled permanent partial disability of five percent. Upon review of that decision, this court in Hazelton I, supra set aside the award. As a result, the Commission conducted de novo hearings during which evidence was presented. On June 22, 1973, the hearing officer issued an award which concluded that the respondent had not sustained permanent disability as a result of the September, 1969, injury. Subsequently, this award was set aside in Hazelton II, supra.

Following Hazelton II, the matter was remanded to the Industrial Commission and a three-phase hearing de novo was conducted. The hearing officer concluded that the evidence submitted was substantially the same as that considered in the two prior decisions, yet ruled that Hazelton II mandated the evidence be weighed and new inferences drawn from it. Accordingly, the hearing officer found the respondent employee to have sustained a five percent disability attributable to the September, 1969, injury. It is from this decision that the present appeal is taken.

In focusing upon the central issue we note that the term "law of the case" denotes a principle that if an appellate court has ruled upon a legal question and remanded for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case. See Annot., 87 A.L.R.2d 271 (1963). For Arizona, this general rule has been recognized early in Gila Valley, Globe and Northern Ry. Co. v. Lyon, 9 Ariz. 218, 80 P. 337 (1905), affirmed, 203 U.S. 465, 27 S.Ct. 145, 51 L.Ed. 276 (1906). Although our ensuing decisional law has recognized and reaffirmed this general principle, the rule of "law of the case" has been refined and not applied abstractly to bind on remand lower courts and the Industrial Commission.

The refinement process of the general rule of "law of the case" is exemplified by Commercial Credit Co. v. Street, 37 Ariz. 204, 291 P. 1003 (1930) which elaborated the general principle, yet conditioned application upon the proviso "provided the facts and issues (of the subsequent appeal) are substantially the same as those on which the first decision rested . . .." Id. at 207, 291 P. at 1004. Moreover, Beliak v. Plants, 93 Ariz. 266, 267, 379 P.2d 976, 977 (1973) further conditioned the applicability of the "law of the case" to instances "where the evidence on a second appeal is substantially the same . . . ." See also Sibley v. Jeffreys, 81 Ariz. 272, 305 P.2d 427 (1956).

Mindful of this existing framework, we turn to an examination of the procedure of the instant case. The effect of setting aside an award of the Commission results in the Commission conducting hearings de novo wherein new evidence bearing on the issues of the case may be presented. King v. Alabam's Freight Co., 40 Ariz. 363, 12 P.2d 294 (1932). If on the new hearing the facts are not shown to be different, then the conclusion is that the Commission must follow the law already applied to substantially identical facts. Kasprowiz v. Industrial Commission, 20 Ariz.App. 116, 510 P.2d 427 (1973); Neitman v. Industrial Commission, 20 Ariz.App. 53, 510 P.2d 52 (1973). Correspondingly, if different evidence is presented in the hearings de novo, then the factual matter should be evaluated against this new evidence and the law of the case might well not be applicable since its application is conditioned upon substantial identicality of facts, issues and evidence. The importance of eliciting different evidence which provides the basis for drawing different inferences thereupon was recently highlighted by this court in Montgomery Ward and Co., Inc. v. Industrial Commission, 27 Ariz.App. 765, 558 P.2d 960 (1976):

"If on remand, no additional testimony is taken and reliance is had on past testimony or a readmission of the same testimony, then our prior disposition governs as the law of the case." Id. at 770, 558 P.2d at 965.

Accordingly, our task devolves into an examination and comparison of the documentary and testimonial evidence presented in the subsequent hearings de novo to determine if, in fact, the evidence is substantially the same as that presented in the initial hearing. If so, the decision of the first appeal (Hazelton I ) is the law of the case and the legal issues cannot be determined differently on subsequent appeals.

In the initial hearing conducted December, 1970 and March 1971, Dr. Sidney Stovall,...