Moore v. Industrial Commission

• Decision Date: 11 June 1970
• Docket Number: CA-IC,No. 1,1
• Citation: 12 Ariz.App. 325,470 P.2d 473
• Parties: Lily May MOORE, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent, Western Sundown Motel Restaurant, Respondent Employer, State Compensation Fund, Respondent Carrier. 255.
• Court: Arizona Court of Appeals

Page 473

470 P.2d 473

12 Ariz.App. 325

Lily May MOORE, Petitioner, v.INDUSTRIAL COMMISSION of Arizona, RespondentWestern Sundown Motel Restaurant, RespondentEmployerState Compensation Fund, RespondentCarrier.

No. 1 CA-IC 255.

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

June 11, 1970.

Rehearing Denied July 20, 1970.

Gorey & Ely, by Stephen S. Gorey, Phoenix, for petitioner.

Donald L. Cross, Chief Counsel, Phoenix, for The Industrial Commission of Arizona.

Robert K. Park, Chief Counsel, by Tom Roof, Phoenix, for respondentcarrier State Compensation Fund.

CAMERON, Judge.

The petitioner, Lily May Moore, brought a writ of certiorari to this Court to test the lawfulness of an award and findings of the Industrial Commission issued 12 November 1968 which found that the petitioner had no previous disability which affected her earning capacity at the time of her industrial accident; and, that the petitioner's injury of 25 September 1962 resulted in a permanent partial disability equal to 35% Loss of function of the left leg, a scheduled injury (A.R.S. § 23--1044, subsec.B, par. 21).¹

Two questions are presented to the Court for review:

1.Whether the petitioner made a valid withdrawal of her protest of the 30 December 1965 award, thereby allowing the award to become final and res judicata as to the issue of a previous disability, and

2. whether, upon reopening, an award may be converted from a scheduled award (A.R.S. § 23--1044 B) to an unscheduled award (A.R.S. § 23--1044, C, D, & E).

The facts necessary for a determination of this matter are as follows.The petitioner injured her left knee while working as a maid in the respondent motel on or about 28 September 1962.She was pushing a bed with her knee, which caused the injury.The Commission provided extensive medical treatment including two operations to her knee.During hospitalization on one operation she developed pneumonia which prolonged her stay.Petitioner also received compensation for total temporary disability (except for a month of partial disability payment) up to 11 December 1965.

The Commission issued a findings and award for scheduled permanent disability on 30 December 1965, which found that the petitioner suffered a permanent partial disability equal to 35% Loss of function of the left leg, entitling the petitioner to compensation in the sum of $82.28 per month (based on an average monthly wage of $164.55) for a period of 17 1/2 months, 'the first payment effective December, 1965, Payable when award becomes final and the balance of payments payable the last of each month thereafter.'(emphasis supplied)

The petitioner called at the Commission offices on 10 January 1966 and expressed her dissatisfaction with the award.The Commission then received a letter from the petitioner's attending physician, Dr. Collings, on 14 January 1966 stating that the petitioner had continual swelling, pain, and discomfort, which made it necessary for him to give her prescriptions for pain.It was his opinion that her leg would continue to need future help, especially during prolonged working periods.The Claims Supervisor wrote the petitioner on 20 January 1966, advising her that her call and the letter from Dr. Collings would be considered as a protest to the Commission's award, which must be followed up by a petition for hearing.Forms were enclosed along with instructions for filing of the same.The petitioner was further advised:

'Benefits provided in the award of December 30, 1965 will not be released in order to afford you the opportunity for possible rehearing.'

The petitioner, in propria persona, filed a timely petition for hearing.The file contains a telephone memorandum dated 9 February 1966 stating in part as follows:

'Return call--wants to know why medical comp is not being continued.We returned call--spoke to Claimant.Mrs. Moore stated that she was not aware that by sending in a petition protesting her award--that her compensation payments would not be released.Mrs. Moore advised that she submitted the petition in error, and will immediately send a letter to the Commission withdrawing her petition.'

The file next contains a letter from the petitioner containing the following statement:

'In regards to your call--the papers I signed a month or so ago should not have been signed.My checks have been stopped and so has medical attention.I would like to cancel those said papers out so I can still receive my award of $82.28 per month for 17 1/2 months and medical care.Please cancel those said papers and start my checks back to me and I will make an appointment with Dr. Tabor (sic) later this month.'

The file does not reflect any action by the Commission on this withdrawal, but it does appear that all parties treated the motion for rehearing as abandoned.

On 13 April 1966, claimant petitioned for readjustment or reopening of claim.The matter was reopened and the fixation devices used in the operation were removed on 29 November 1966.Following this surgery, she was hospitalized on 20 December 1966 with pneumonitis, which Dr. Collings stated was an old residual infection which flared up following the surgery on her knee.Dr. Taber denied that it was related to the surgery.

The Commission issued an award dated 14 June 1967 of 'Additional Findings...