Hopper v. Industrial Commission
| Decision Date | 07 September 1976 |
| Docket Number | No. 1,CA-IC,1 |
| Citation | 27 Ariz.App. 732,558 P.2d 927 |
| Parties | James E. HOPPER, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent, Schuck Components Systems, Inc., Respondent Employer, Home Insurance Company, Respondent Carrier. James E. HOPPER, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent, Schuck & Sons Construction Co., Respondent Employer, Mission Insurance Company, Respondent Carrier. 1305. |
| Court | Arizona Court of Appeals |
On this review of a consolidated award entered by the respondent commission in a workmen's compensation proceeding, the petitioning workman contends that the evidence was insufficient to support the hearing officer's refusal to award him further compensation benefits. The hearing officer's refusal was based upon his findings to the effect that petitioner had been guilty of fraud in initially establishing his compensation claim, and therefore was not entitled to any further benefits.
Petitioner's initial claim (No. 3/3--45--47, filed May 11, 1973) alleged that he injured his right knee while stepping off a forklift while employed by Schuck Component Systems, Inc. This claim was accepted for benefits by the carrier, respondent Home Insurance Company. On October 9, 1973, this claim was closed by the carrier's notice of claim status, discharging petitioner with a scheduled 10% Permanent disability of the right leg. Petitioner had by that time returned to work for respondent Schuck and Sons Construction Co., with respondent Mission Insurance Company being the compensation carrier. Sometime during the latter part of 1973, his employment was terminated due to a recession in the construction industry.
Thereafter, on February 21, 1974, petitioner filed a petition to reopen his April 1973 knee injury claim based upon new, additional or previously undiscovered disability. This petition to reopen was denied by the carrier, with the carrier contending that petitioner had sustained a new injury to his knee shortly after going back to work. After the denial of the petition to reopen, petitioner filed a timely request for hearing, and in order to fully protect himself, also filed a new claim alleging that in October 1973, he had sustained a new injury to his knee arising out of and in the course of his employment with the respondent, Schuck and Sons Construction Company. This new injury claim was denied by respondent Mission Insurance Company, the responsible carrier at the time of the alleged new injury. Petitioner again filed a timely request for hearing, and the Commission's hearing officer then consolidated the two matters, that is, the petition to reopen and the new injury claim for all further proceedings before the Commission. A consolidated hearing on both matters was held on September 10, 1974.
THE REOPENING CLAIM (ICA Claim No. 3/3--45--47)
Prior to the time of the consolidated hearing, defendant carrier Home Insurance Company gave notice to the petitioner that it would defend its denial of the reopening on the basis that the original claim of April 24, 1973 was fraudulent, that is, that petitioner in fact had injured his right knee as the result of a motorcycle accident shortly before the alleged industrial episode. After hearing the evidence, the hearing officer issued his decision and findings which supported the carrier's contentions concerning the fraudulent nature of the original claim, and for that reason the reopening was denied.
On this review petitioner does not dispute the principle that the Commission may refuse to award further compensation benefits when it is shown that the initial claim was fraudulent, even though with the passage of time the carrier's acceptance of the original claim as compensable or the Commission's issuance of a prior award of compensability had become final. See Scott v. Wasielewski, 89 Ariz. 29, 357 P.2d 614 (1960); see 3 Larson's Workmen's Compensation Law, § 81.50. Petitioner's sole contention concerning the denial of the reopening claim is that the record is insufficient to establish by clear and convincing evidence that the petitioner filed a fraudulent claim.
It is beyond question in this jurisdiction that a claim of fraud must be established by clear and convincing evidence. Brown v. Karas, 73 Ariz. 62, 237 P.2d 799 (1951); Udall, Arizona Law of Evidence, § 5, page 16. The purpose of the 'clear and convincing' standard is to guide the trier of fact in the consideration of the evidence. It is not a test to be applied to an appellate court in passing on the sufficiency of the evidence. Beeler v. American Trust Co., 24 Cal.2d 1, 147 P.2d 583 (1944). Therefore the finding of the trier of fact should be sustained if the evidence furnishes reasonable or substantial support therefor. Murillo v. Hernandez, 79 Ariz. 1, 281 P.2d 786 (1955); Brown v. Karas, supra; King v. Uhlmann, 103 Ariz. 136, 437 P.2d 928 (1968) 1 Even where the more stringent 'beyond a reasonable doubt' standard is imposed as a guide for the trier of fact, questions concerning the credibility of the witnesses and the weight and value to be given to the testimony are considered as questions exclusively for the jury, State v. Pieck, 111 Ariz. 318, 529 P.2d 217 (1974), and the appellate court in reviewing the sufficiency of the evidence is only concerned with whether there is substantial evidence in support of the verdict. State v. Childs, 113 Ariz. 318, 553 P.2d 1192 filed August 6, 1976.)
These same general principles govern appellate review of Industrial Commission awards in workmen's compensation proceedings. Micucci v. Industrial Commission, 108 Ariz. 194, 494 P.2d 1324 (1972). Therefore, in reviewing the sufficiency of the evidence to support the hearing officer's findings here, we must resolve all questions of credibility and state all inferences in the light most favorable to sustaining the award. Considered in such light, the question of whether the evidence offered to prove fraud is clear and convincing is for the hearing officer to decide. As long as there is reasonable and substantial evidence in support of the result reached by the hearing officer, this Court must affirm that result.
We have previously stated that Home Insurance Company originally denied the petition to reopen because of the contention that petitioner had suffered the new injury to his knee shortly after going back to work. After petitioner filed his request for hearing, Home Insurance Company hired an investigator for the purpose of placing petitioner under surveillance and ascertaining his physical activities over the weekend of May 31, June 1, and June 2, 1974. It was the investigator's testimony concerning his surveillance of petitioner's activities on the afternoon of June 1, which gave rise to the claim of fraud here involved. Concerning such surveillance, the investigator testified that on the afternoon of June 1, 1974, at about 1:45 p.m. petitioner left his residence and went to a bar. After waiting about ten minutes, the investigator also went into the bar. Petitioner was having a drink, and the investigator sat down next to him and ordered a beer. They engaged in conversation and eventually the investigator asked petitioner about his employment. Petitioner told him that he had been unemployed for approximately a year as a result of an industrial accident, that he had fallen from a roof on a construction job and hurt his right knee. This conversation took place at about 2:30 p.m. About 45 minutes later in the course of their conversations, the investigator mentioned that about two years ago he had injured his own knee while riding a motorcycle. 2 Petitioner then told the investigator that approximately a year before he was riding a motorcycle, that he wrecked his motorcycle in the desert, and that's how in fact he hurt his right knee. Petitioner said he was drawing workmen's compensation insurance through the Industrial Commission as a result of the motorcycle accident, and that he had faked an industrial injury. At the time of this conversation, petitioner had had three drinks and to the investigator did not appear intoxicated.
Petitioner admitted meeting, talking and drinking with the investigator on the afternoon of June 1, 1974, but in effect denied having any conversation with the investigator about a fake industrial claim. However, he does admit that about five weeks before the alleged injury of April 24, 1973, he had a motorcycle accident, up in the mountains on a dirt bike trail on a Sunday. When asked how the accident happened, he testified as follows:
He stated that the motorcycle came down on his right leg, that he went to a hospital for emergency treatment for his right leg; that he missed a week's work as a result of the injury; and that after he went back to work his leg was 'a little sore' for a few days, with no trouble at all after that.
In petitioner's brief filed in this Court, counsel states that it should be noted that the petitioner never denied...
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