Koedyker Const. Co., Inc. v. Industrial Com'n of Arizona, 2

• Decision Date: 30 June 1988
• Docket Number: CA-IC,No. 2,2
• Citation: 764 P.2d 339,158 Ariz. 578
• Parties: KOEDYKER CONSTRUCTION CO., INC., Petitioner Employer, Fremont Indemnity Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Mark Dibble, Respondent Employee. 88-0008.
• Court: Arizona Court of Appeals

Page 339

764 P.2d 339

158 Ariz. 578

KOEDYKER CONSTRUCTION CO., INC., Petitioner Employer Fremont Indemnity Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Mark Dibble, Respondent Employee.

No. 2 CA-IC 88-0008.

Court of Appeals of Arizona Division 2, Department A.

June 30, 1988.

Review Denied Nov. 8, 1988.

Jones, Skelton & Hochuli by Calvin Harris and Melinda K. Kelley, Phoenix, for petitioners employer and carrier.

Catherine A. Fuller, Chief Counsel, Industrial Com'n of Arizona, Phoenix, for respondent.

Bury, Moeller, Humphrey & O'Meara by Kevin Miniat, Tucson, for respondent employee.

OPINION

HOWARD, Presiding Judge.

This is a worker's compensation matter arising under Title 23, Chapter 5, A.R.S. Petitioners, Koedyker Construction Company, Inc. (Koedyker) and Fremont Indemnity Company, have brought this special action to challenge a decision upon hearing and findings and an award granting petition to reopen for new, additional or previously undiscovered disability or condition entered by the administrative law judge.

After hearing testimony by the employee, his attending physician, and the physician hired by the employer, the administrative law judge found that the employee was entitled to medical, surgical and hospital benefits relative to a November 13, 1985, injury in addition to temporary total and/or temporary partial disability compensation benefits as a result of such injury, both awards to commence from December 3, 1986, until such time as his condition was determined to be medically stationary.

The petitioners contend that the award is based upon medical opinion which is based on speculation and conjecture. We do not agree and affirm.

The employee injured his back on November 13, 1985, while employed by Koe dyker, which at the time was insured under the provisions of the Arizona Worker's Compensation Act. The employee had not had any prior problems with his back. He was off work for about one week and returned to work as a framer for Koedyker until June 1986. He then went to work for another employer for one month during which time he reinjured his back and filed a worker's compensation claim which was found to be compensable. He then went to work for a third employer and reinjured his back after one day. He testified that the problems he is having with his back are in the same areas which he originally injured on November 13, 1985.

A specialist in internal medicine, Dr. Daniel T. Mihalyi, is the employee's treating physician and began treating him on February 8, 1983, prior to the initial injury. His diagnosis on November 13, 1985, was acute lumbosacral sprain. He saw the employee again on September 22, 1986, and his diagnosis was again acute lumbosacral sprain which he related back to the November 13 injury. He saw the employee again on November 10, 1986, and recommended strengthening exercises, physical therapy, anti-inflammatory medications and that the employee stay off work for six weeks. He related the additional disability to the November 13, 1985, injury and said the worsening of the employee's condition was a new, additional, and previously undiscovered, condition.

Testifying for the employer was a specialist in orthopedic surgery, Dr. Bertram Kwasman. He examined the employee on January 12, 1987. He diagnosed the employee's condition as chronic mechanical low back strain with symptoms first being produced on November 13, 1985. He recommended a weight reduction program and exercises as supportive care to improve the employee's condition. He was of the opinion the 1985 injury was a contributing factor to the subsequent back flareups. He testified that the employee was medically stationary on January 12, 1986, but he was not prepared to say if the condition was permanent.

Under cross-examination Dr. Mihalyi testified as follows:

"Q. Okay. And when you saw him on November 15, 1985, you didn't have any X-rays taken, or do any diagnostic studies that indicated anything other than just a strain to his back, is that correct?

A. Correct.

Q. So Mr. Dibble could have healed from that particular strain that he had in his back after November 15, 1985, and returned to work, and then reinjured himself in June, 1986, and when you saw him in September, 1986, the problem that he could have had, could have been very well related...