Hardware Mut. Cas. Co. v. Industrial Commission

• Decision Date: 23 March 1972
• Docket Number: CA-IC,No. 1,1
• Citation: 494 P.2d 1353,17 Ariz.App. 7
• Parties: HARDWARE MUTUAL CASUALTY COMPANY and Motel 6, Petitioners, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Audrey Roberts, Respondent Employee. 639.
• Court: Arizona Court of Appeals

Page 1353

494 P.2d 1353

17 Ariz.App. 7

HARDWARE MUTUAL CASUALTY COMPANY and Motel 6, Petitioners, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Audrey Roberts, Respondent Employee.

No. 1 CA-IC 639.

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

March 23, 1972.

Rehearing Denied May 2, 1972.

Strong & Pugh, by William K. Strong, Phoenix, for petitioners.

Chris T. Johnson, Phoenix, for respondent employee.

William C. Wahl, Jr., Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

JACOBSON, Judge.

The substantive issue raised in this appeal by writ of certiorari from an award of the Industrial Commission deals with whether a failure of a hearing officer to determine the actual loss of earning capacity during the period of employee's partial temporary disability requires the setting aside of the hearing officer's award and the Commission's affirmance thereof.

The employee-respondent, Audrey Roberts, on April 7, 1969 sustained a broken right arm in the course and scope of her employment while working as a maid for Motel 6 in Yuma, Arizona. On October 17, 1969, Mrs. Roberts was examined by Dr. Alvin L. Swenson who reported that:

'At this examination it would be my opinion that Mrs. Roberts would be able to carry out gainful employment. She may have some feeling of soreness and stiffness about the right elbow with strenuous work and may have to avoid lifting of heavy mattresses and heavy cleaning equipment for approximately a week or two as she is working. After that I would feel that she should be able to carry out her usual activities as a maid. She could then be seen and examined in approximately sixty to ninety days and it would be my opinion that the condition should be stationary at that time and final rating could be carried out.'

At this same examination, Mrs. Roberts was told that she could return to light work.

Subsequent medical examinations revealed that Mrs. Roberts' condition became medically stationary as of January 1, 1970 and that she had sustained a five percent functional loss of use of her right major arm.

Pursuant to this information, the petitioner-insurance carrier, Hardware Mutual Casualty Company, paid Mrs. Roberts total temporary disability and partial temporary disability compensation through October 30, 1969, and permanent partial (scheduled) disability compensation based upon the five percent loss of use of her right arm.

Mrs. Roberts protested this payment, a hearing was held, following which the hearing officer entered his award finding insofar as pertinent that:

'5. Applicant was examined by her attending physician, Dr. Swenson, on October 17, 1969; Dr. Swenson reported that the applicant was capable of employment only on a restricted basis, and that her condition was not stationary.

'6. That when released to restricted duty, applicant was not physically able to perform all required duties of her job as a maid, such as lifting mattresses or moving furniture.

'7. By letter dated September 11, 1970, Dr. Swenson reported that applicant's condition became medically stationary on January 1, 1970; his last examination performed on February 27, 1970 was to evaluate her permanent disability.'

Based upon these findings the hearing officer awarded Mrs. Roberts temporary partial disability for the period of October 17, 1969 through January 1, 1970. The Commission affirmed this award and petitioners have sought review only as to the award for temporary partial disability.

Petitioners advocate that the award must be set aside for two reasons: (1) that Mrs. Roberts failed to make a good faith effort to find employment during the period of temporary partial disability, and (2) that the hearing officer's award failed to make a finding as to the loss of earning capacity during this same period.

The first contention is basically an attack on the sufficiency of evidence, that is, petitioners contend that during the period of partial disability the burden is upon the employee to show that she was entitled to compensation and the evidence is insufficient to support that burden.

In this regard the testimony revealed that following Mrs. Roberts' examination by Dr. Swenson in October, 1969, she had on one occasion in November, 1969, sought employment in the Yuma area by contacting four prospective employers. She made no further active effort to seek employment. Petitioners contend that in view of Dr. Swenson's report that Mr. Roberts should be fully recovered by the end of October, 1969, together with a one-shot effort at seeking employment, must be considered as a bad faith effort on her part to seek employment and that she had voluntarily removed herself from the labor market.

Therefore, petitioners contend, Mrs. Roberts is entitled to no temporary partial disability compensation. This attack overlooks two material facts in this case: the first being that Dr. Swenson did not declare Mrs. Roberts' condition to be medically stationary until January 1, 1970; and the second during Mrs. Roberts' own uncontradicted testimony that she was, during this period, physically unable to perform even her daily household chores and therefore could not actively seek employment.

It has long been the rule in Arizona that physical disability or lack thereof is not the sole factor in determining loss of earning capacity, but that the Commission must look to other factors including the ability of the employee to perform the work if he were permitted to attempt it. Ossic v. Verde Central Mines, 46 Ariz. 176, 49 P.2d 396 (1935); Allen v. Industrial Commission, 87 Ariz. 56, 347 P.2d 710 (1959). In evaluating the evidence before it, the Commission may well have believed Mrs. Roberts' testimony that she was physically...