Martinez v. Industrial Com'n of Arizona

• Decision Date: 17 July 1998
• Docket Number: No. CV-97-0201-PR,CV-97-0201-PR
• Citation: Martinez v. Industrial Com'n of Arizona, 962 P.2d 903, 192 Ariz. 176 (Ariz. 1998)
• Parties: Sharron MARTINEZ, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Ideal Weight Loss Centers aka Quick Weight Loss Center, Respondent Employer, ITT Hartford, Respondent Carrier.
• Court: Arizona Supreme Court

Page 903

962 P.2d 903

192 Ariz. 176

Sharron MARTINEZ, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Ideal Weight Loss Centers aka Quick Weight Loss Center, Respondent Employer ITT Hartford, Respondent Carrier.

No. CV-97-0201-PR.

Supreme Court of Arizona En Banc.

July 17, 1998.

Thomas R. Stillwell, Phoenix, for Petitioner.

Anita R. Valainis, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for Respondent.

Jones, Skelton & Hochuli by Terrence Kurth, Phoenix, for Respondents Employer and Carrier.

OPINION

JONES, Vice Chief Justice.

¶1 This case involves a "mixed risk" workers' compensation claim that is predicated on claimant's gradual injury. Two issues are presented:

1. May a court of appeals' opinion which this court depublished because, although it agreed with the result, it did not agree with the analysis, constitute the law of the case in subsequent proceedings?

2. What is the proper measure of legal causation in a gradual injury "mixed risk" claim?

We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 1988, claimant Sharron Martinez developed Kienbock's disease, a nonindustrial deterioration of the lunate bone in her right wrist. This condition led to surgery in which the lunate bone was removed and a partial wrist fusion was performed. Although the fusion placed increased stress on the radiocarpal joint, claimant, free from wrist pain, was medically discharged in July 1989.

¶3 Soon thereafter, claimant found work as a counselor with respondent, Ideal Weight Loss Centers. The work required repetitive use of her right hand to handwrite medical histories and obtain blood pressure readings with a manual pump.

¶4 By November 1989 claimant began suffering wrist pain once again, and in January 1990 sought further treatment. Robert Wilson, M.D., diagnosed degenerative arthritis of the radiocarpal joint and in March 1990 performed a total wrist fusion.

¶5 In July 1990, claimant filed a claim for workers' compensation benefits. In the physician's report, Dr. Wilson reported that "[it] would appear that [claimant's] work activities were a contributing factor to the aggravation of her underlying condition." Respondent carrier ITT denied compensability.

¶6 Claimant protested this denial, and hearings were held. Both lay and medical evidence presented at the hearings conflicted. Claimant testified that her problems increased in October 1989 when she became responsible to record most of the clinic's medical histories, requiring that she write six to seven hours a day. She acknowledged, however, that she also had wrist pain when she performed many household chores and other ordinary activities. Claimant's supervisor verified that claimant performed the handwriting tasks in question, but believed that claimant greatly over-estimated the amount of writing that her duties required.

¶7 Dr. Wilson testified that, in his opinion, the deterioration in claimant's wrist would have developed over time even if claimant had not worked with her hand. He acknowledged that all uses of the hand, both on and off the job, contributed to the deterioration, but he could not say that handwriting was more stressful than ordinary activities or that claimant's handwriting on the job accelerated the deterioration.

¶8 James G. Beauchene, M.D., agreed that claimant had developed radiocarpal arthritis as a result of wear and tear of the wrist. In his opinion, however, handwriting was more stressful than many ordinary activities because it mechanically loaded the radiocarpal joint. He testified that if claimant wrote up to six hours a day, there was no question that her work would have accelerated the deterioration of the radiocarpal joint.

¶9 The Administrative Law Judge ("ALJ") entered an award for a compensable claim. He resolved the lay conflict by accepting the supervisor's testimony about the extent of claimant's handwriting. With regard to the medical testimony, he made the following dispositive finding:

The differences between the testimony and opinions of Dr. Beauchane [sic] on the one hand and Dr. Wilson on the other are slight. Applicant was required to use her hand by gripping a pen or pencil and writing to a considerable extent. Whether she was required to do so for six hours as opposed to two or three hours per day does not, in the last analysis, appear to be critical. The reported decisions of the Arizona appellate courts on the issue of legal causation do not provide crystal clear tests for cases such as this. However, the decision of the Court of Appeals in Samaritan Health Services v. Industrial Comm'n, [170 Ariz. 287, 292, 823 P.2d 1295, 1300 (App.1991),] appears to control. In that case the court discussed the "actual risk test," which is applied in determining whether an injury arises out of employment where work-related activity and a personal condition combine to cause an injury. In Samaritan, the court said: "It is not necessary to show that the risk of injury from the work-related activity was greater than the risk of injury in nonemployment activities." ... Even if applicant's work related activities did not increase her risk of injury, they, together with nonemployment activities, combined to cause an injury.

¶10 On review, the court of appeals set aside the award, finding that the ALJ misapplied Samaritan to this case. Samaritan, it reasoned, involved a specific trauma uniquely related to the employee's job duties. This case, however, lacked that unique relationship because it involved a combination of work and daily nonwork activities. Relying instead on Pearce Development v. Industrial Commission, 147 Ariz. 598, 712 P.2d 445 (App.), aff'd in part and vacated in part, 147 Ariz. 582, 712 P.2d 429 (1985), the court found the question to be whether the degeneration occurring at work "materially contributed to the disability or to the need for medical treatment." Although Dr. Beauchene testified that claimant's work accelerated the degeneration, that testimony lacked factual foundation because it assumed the accuracy of claimant's history of writing six hours a day, which the ALJ rejected. Moreover, even if the testimony could support the award, the ALJ failed to resolve the conflict in the medical testimony.

¶11 This court denied claimant's petition for review. However, because the court disagreed with the court of appeals' analysis, though it agreed with the result, we ordered the court of appeals' opinion be depublished. Thus, the ALJ's award was vacated and the case was returned to the Industrial Commission. At the subsequent hearing, the ALJ heard additional testimony from Dr. Beauchene and determined that although the court of appeals' opinion had been depublished, it still constituted the law of the case and, based on the evidence, proceeded to apply the "material contribution" standard from Pearce set forth in the depublished opinion. For purposes of his decision, the ALJ assumed that claimant spent four hours per day performing tasks that involved writing. He accepted Dr. Wilson's testimony over Dr. Beauchene's "to the extent they differ" and concluded:

It may be that the act of gripping a pen places more stress on the radial carpal joint and thus causes some accelerated degeneration as oppose[d] to "ordinary" activities of daily living (common sense suggests that this is probably the case). However, the affect [sic] of what is in this case a work related activity is, in the view of the undersigned, insubstantial.... While it seems to the undersigned that it is more probable than not that applicant's work activity accelerated her degeneration to some degree, the evidence compels the conclusion that it did not materially contribute to her disability or her need for medical treatment in any respect. It is found that applicant has failed to sustain her burden of proving that she has sustained a compensable injury.

¶12 The court of appeals affirmed the ALJ's award, holding that the depublished opinion constituted the law of the case and that the "material contribution" standard was correct, as opposed to the Samaritan "actual risk" standard. It also found that the ALJ resolved the conflicts that were fatal to the initial award, and, based on Dr. Wilson's testimony, that the ALJ properly entered an award for a noncompensable claim.

DISCUSSION

A. Applicability of the "Law of the Case" Doctrine

¶13 This court upheld the result in the first court of appeals' opinion, but rejected the analysis, without opinion. On remand, the ALJ applied the analysis of the first decision as the law of the case. In its second decision, the court of appeals acknowledged that this court disapproved of "something" in the first opinion, but there was no way to discern what was objectionable. The court then essentially applied the same analysis as the first case.

¶14 The "law of the case" doctrine is a rule of policy, not law. Due to its harshness, many exceptions have arisen. For example, it does not apply when "there has been an error in the first appellate decision so as to render it manifestly erroneous or unjust; ... [or] the issue was not actually decided in the first decision or the decision is ambiguous." Dancing Sunshines Lounge v. Industrial Comm'n, 149 Ariz. 480, 483, 720 P.2d 81, 84 (1986).

¶15 In this case, both exceptions are independently applicable. The court of appeals erroneously applied the "material contribution" standard to the facts, and it would be unjust to hold claimant to this more stringent burden of proof. Further, as the court of appeals recognized in its second decision, this court's depublication order was, at best, ambiguous. We disapproved of "something," as the court of appeals said, but it was not clear what. Under these circumstances, we conclude the law of the case principle should not be applied to this claim. To do so would deprive claimant of compensation to which she may...