Lou Grubb Chevrolet, Inc. v. Industrial Com'n of Arizona

• Decision Date: 23 July 1992
• Docket Number: No. 1,CA-IC,1
• Citation: 846 P.2d 836,174 Ariz. 23
• Parties: LOU GRUBB CHEVROLET, INC., Petitioner Employer, Argonaut Insurance Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Michael Pack, Respondent Employee. 91-0033.
• Court: Arizona Court of Appeals

Page 836

846 P.2d 836

174 Ariz. 23

LOU GRUBB CHEVROLET, INC., PetitionerEmployerArgonaut Insurance Company, PetitionerCarrier, v.The INDUSTRIAL COMMISSION OF ARIZONA, RespondentMichael Pack, RespondentEmployee.

No. 1 CA-IC 91-0033.

Court of Appeals of Arizona Division 1, Department A.

July 23, 1992.

Reconsideration Denied Sept. 22, 1992.

Review Denied March 16, 1993.

[174 Ariz. 24] Long, Lester & Lundmark, P.A. by Steven C. Lester, Phoenix, for petitioner employer and petitioner carrier.

Anita R. Valainis, Chief Counsel, Indus. Com'n of Arizona, Phoenix, for respondent.

Ely, Bettini & Ulman by Joseph M. Bettini, Phoenix, for respondent employee.

OPINION

TOCI, Judge.

The employer and carrier bring this special action review of an Industrial Commission award.The claimant sustained an industrial injury to his right hand and wrist.While claimant was under treatment for the industrial injury, a third party rear ended claimant's automobile in a nonindustrial accident.The automobile accident aggravated the injury to claimant's right hand and wrist.The administrative law judge entered an award granting the claimant further medical and compensation benefits.The award denied the carrier lien rights in the claimant's recovery from the third party.

We conclude the later nonindustrial injury to the hand and wrist is within the range of compensable consequences of the original industrial injury.Also, Ariz.Rev.Stat.Ann.("A.R.S.")section 23-1023, as interpreted by our decisions, grants no lien rights to the carrier in the claimant's potential recovery against a nonindustrial tortfeasor.Thus, we affirm.We do not consider the remaining arguments raised by the carrier.

I.ISSUES

(1) Is the aggravation of an industrial injury by a later nonindustrial automobile accident a compensable consequence of the primary industrial injury?

(2) Does the carrier have statutory lien rights in the claimant's recovery for a nonindustrial, third-party tort that did not arise from the same facts as those supporting the award for compensation?

II.FACTUAL AND PROCEDURAL HISTORY

On September 13, 1988, while employed as a mechanic for petitioner employer, Lou Grubb Chevrolet, Inc.("Lou Grubb"), the blunt end of the respondent employee's ("claimant's") screwdriver caught in a flywheel and struck the claimant in the right palm and chest.The injury caused right arm pain, numbness, and weakness, which forced the claimant to stop working on September 23, 1988.Petitioner carrier, Argonaut Insurance Company("Argonaut"), later accepted compensability.

Claimant's symptoms persisted.His treating doctor referred him to Dr. Bobb, a hand specialist, who examined claimant's right arm.Dr. Bobb found clinical evidence of carpal tunnel syndrome, a wrist and hand problem involving the median nerve.On March 6, 1989, Dr. Bobb reported claimant had improved with therapy, and he released claimant for regular work.Argonaut placed claimant on temporary partial disability status and then on regular work status.

However, claimant's wrist problems returned.On May 1, 1989, Dr. Bobb reported a recurrence of claimant's carpal tunnel complaints.A physical therapist treated claimant for his recurrent symptoms about thirty times between March and June 10, 1989.Not long before the automobile accident, claimant had shooting pains and numbness in his right hand and middle finger.On June 9, 1989, Dr. Bobb referred claimant for a nerve conduction study (EMG) of his right hand and wrist.The nerve study was negative.

The following day, claimant's van was rear ended, while he was driving.The impact "wedged"claimant's right wrist in a locked position against the steering wheel.Within half an hour after the accident, claimant's entire right arm was numb.Claimant also sustained neck and back injuries as a result of the accident.

On June 19, 1989, claimant saw Dr. Bobb for the first time after the automobile accident.Claimant told Dr. Bobb that he had been off work "because of injuries associated with an automobile accident."Dr. Bobb reported an aggravation of symptoms in claimant's right hand and wrist, including loss of strength.

On September 27, 1989, Dr. Bobb performed hand and wrist surgery.He reported surgical findings of both median (carpal tunnel) and ulnar nerve compression in the right wrist.His report of October 5, 1989, stated "as a result of [the industrial accident], ... [claimant] has sustained further injury to his ulnar and median nerves and now is at a point where surgical decompression is warranted...."The report concluded: "It should be clearly stated that ... [claimant] has had an exacerbation of a pre-existing industrial injury, which now demands surgical attention...."

Relying on this report, claimant's counsel requested an investigation under A.R.S. section 23-1061(J).He asserted that because the work injury causally contributed to claimant's need for surgery, claimant's aggravated right arm injury was a compensable consequence of the work injury.Argonaut responded by denying liability for the surgery and post-accident disability.

Dr. Rand, an orthopedist retained to examine claimant for the carrier, testified at the administrative hearing.He said that the claimant's medical records predating the automobile accident revealed no objective evidence of a median nerve compression or carpal tunnel syndrome.Furthermore, he said claimant's medical records for the period before the automobile accident did not mention an ulnar nerve problem in the right arm.He testified that if there was any reason for surgery, it was caused by the automobile accident and not the industrial injury.

Claimant's physician, Dr. Bobb, testified that although the plaintiff had improved and was on regular work status, his symptoms returned in May 1989.Because the claimant's symptoms did not improve with treatment, Dr. Bobb considered wrist surgery and discussed it with the claimant before the automobile accident.Dr. Bobb testified that the industrial injury predisposed claimant to the aggravation suffered in the automobile accident.He causally related the condition requiring surgery to the original industrial injury.Dr. Bobb gave the claimant a five percent industrial disability for residual wrist symptoms involving the median nerve.

The administrative law judge issued an award for further medical and temporary disability benefits.He concluded that an aggravation or new injury is a compensable consequence of an industrial injury if the industrial injury predisposes a claimant to further injury.He held that Dr. Bobb's testimony satisfied this test and accepted it over Dr. Rand's testimony.

At the hearing, claimant confirmed that he was pursuing a tort claim against the driver of the vehicle that had rear ended him.Argonaut later claimed a lien under A.R.S. section 23-1023 on any monies recovered by the claimant as a result of the nonindustrial accident.Claimant denied that Argonaut had any right to a lien.The administrative law judge agreed and issued a supplemental award denying statutory lien rights.He later affirmed both the Award and Supplemental Award on administrative review.Argonaut then brought this special action.

III.DISCUSSION

A.The Range of Compensable Consequences of an Industrial Injury

We follow the principles announced by this court in Mercante v. Industrial Comm'n, 153 Ariz. 261, 264, 735 P.2d 1384, 1387(App.1987);Dutton v. Industrial Comm'n, 140 Ariz. 448, 451, 682 P.2d 453, 456(App.1984);andEast v. Industrial Comm'n, 137 Ariz. 315, 317, 670 P.2d 420, 422(App.1983), and affirm the decision of the administrative law judge.The disability and need for treatment resulting from the aggravation of the hand and wrist injury in the automobile accident was a direct and natural consequence of the original industrial injury, entitling claimant to further medical and compensation benefits.

We reach this conclusion for three reasons.First, Dr. Bobb testified that the industrial injury was not stable at the time of the nonindustrial automobile accident.Second, he said that the industrial injury predisposed the claimant toward further injury.Third, there was evidence the industrial injury was a substantial contributing factor to the disability and need for treatment triggered by the later automobile accident.Dr. Bobb testified he would probably have performed surgery for the injuries sustained in the industrial accident had the automobile accident not occurred.Thus, there is substantial evidence to support the conclusion that the aggravation of claimant's hand and wrist injury in the nonindustrial automobile accident is within the range of compensable consequences of the original industrial injury.

Prior cases have adopted Professor Larson's general formula for the range of compensable consequences: "[A] subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury."1 A. Larson, The Law of Workmen's Compensation, § 13.11 at 3-503(1990)(emphasis added), cited with approval inMercante, 153 Ariz. at 264, 735 P.2d at 1387;Dutton, 140 Ariz. at 451, 682 P.2d at 456;O'Donnell v. Industrial Comm'n, 125 Ariz. 358, 360, 609 P.2d 1058, 1060(App.1979).

The limits of the phrase "direct and natural result" are not defined in Arizona.We are, however, guided by the cases that hold that if the claimant's conduct is reasonable, a new injury or aggravation is a direct and natural result of an industrial injury if the industrial injury predisposed a claimant to further injury.E.g., Mercante, 153 Ariz. at 265, 735 P.2d at 1388;Dutton, 140 Ariz. at 452, 682 P.2d at 457.

In Mercante, we interpreted dicta in East, 137 Ariz. at 317, 670 P.2d at 422, and said in some cases the link between a primary injury and the subsequent injury may be too weak to be compensable.Mercante, 153 Ariz. at 265, ...