Morrison-Knudsen Co., Inc. v. Industrial Commission
| Decision Date | 15 June 1976 |
| Docket Number | No. 1,CA-IC,MORRISON-KNUDSEN,1 |
| Parties | COMPANY, INC. and Argonaut Insurance Company, Petitioners, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Hugo Boone, Halvorson-Lent Transcanyon and State Compensation Fund, Respondents. 1252. |
| Court | Arizona Court of Appeals |
Hugo Boone (Boone), a Navajo Indian, suffered multiple injuries in April of 1966 as the result of a helicopter crash while employed by Halvorson-Lent Transcanyon (Transcanyon), one of the respondents herein. Transcanyon was insured for workmen's compensation purposes by the State Compensation Fund (Fund).
Among his 1966 injuries were a fractured pelvis, fractured right tibia and fibula, fracture of the right foot, fracture of the mid shaft of the right ulna, fracture of the right clavicle, a cerebral concussion, a possible skull fracture and an ear injury. After much medical treatment and an extensive convalescent period, Boone was released in November of 1967 with a partial permanent disability of the whole man, an unscheduled award. (See: A.R.S. § 23--1044). He was substantially recovered from his severe injuries and suffered no loss of earning capacity as a result of the April 1966 accident.
In December of 1971, while performing heavy manual labor for Morrison-Knudsen Company, Inc. (M-K), petitioner herein, Boone, suffered an injury to his back, diagnosed as a lumbar strain which exacerbated an old congenital spondylolisthesis. The workmen's compensation claim which Boone filed in conjunction with the December 20, 1971 injury was accepted by the Argonaut Insurance Company (Argonaut), M-K's carrier. After bed rest and medication, Boone was examined again on December 27, 1971, and found unable to return to work. After an examination on January 3, 1972, Boone was much better and was authorized to return to work. On February 15, 1972 Argonaut issued a notice of claim status terminating Boone's benefits as of January 2, 1972, re temporary compensation, and as of January 17, 1972, re medical benefits, discharging Boone without permanent disability. This notice was based upon a medical report of S. David Lang, M.D., dated January 17, 1972, one of Boone's treating physicians at the Public Health Service Hospital at Tuba City, Arizona, on the Navajo Indian Reservation. This notice was not protested and became final.
On February 7, 1973, Boone petitioned to reopen the 1966 claim; the Fund denied the claim to reopen. Boone timely protested the denial of the petition to reopen.
On September 26, 1973, at the time set for the initial hearing on the petition to reopen the 1966 claim, it became apparent to counsel for Boone that his new problems might be related to the 1971 injury. On October 1, 1973, Boone filed a motion for leave to amend his petition to reopen to either add or substitute M-K and Argonaut as the employer and carrier responsible. On October 15, 1973, Argonaut denied the petition to reopen. On November 1, 1973, the notice was protested and a hearing requested. Although the final findings and award issued in this matter purported to dismiss Transcanyon and the Fund, the subsequent hearings held on January 31, 1974, March 19, 1974 and May 16, 1974, were consolidated and captioned, as was the final award, as though both petitions for reopening had been consolidated for hearing and decision. Counsel for both carriers participated in all hearings subsequent to October 1, 1973.
On July 29, 1974, the hearing officer issued his findings and award granting reopening as to M-K and Argonaut, and denying reopening as to Transcanyon and the Fund. Review of that decision was sought by M-K and Argonaut. After review was denied, the matter was brought to this Court by certiorari. Two questions are presented here for review: does the evidence support the hearing officer's determination that Boone had a new, additional or previously undiscovered disability causally related to the industrial accident of December 20, 1971, and, if it does, should the hearing officer have determined the issue of apportionment based upon the testimony of Howard H. Johnston, M.D., that Boone's current disability is contributed
to by a residual condition caused by the industrial accident of 1966? While we believe that the evidence supports the reopening, we also are of the opinion that the issue of apportionment was properly raised by M-K and Argonaut and should have been resolved by the hearing officer. Since the issue was not resolved, the award must be set aside.
Viewing the evidence in a light most favorable to sustaining the award of the Commission, Perry v. Industrial Commission, 112 Ariz. 397, 542 P.2d 1096 (1975), there is ample testimony to support the hearing officer's conclusion that Boone suffered from a new, additional or previously undiscovered disability.
When Boone was released for work on January 3, 1972, he was still suffering from pain causally related to the injury and its aggravation of his spondylolisthesis. This pain was Not, however, or sufficient degree to disable him from working. He worked at his assigned task for M-K from January of 1972 to September of 1972, when he was laid off because of a reduction in force. He again worked for M-K from June through August of 1973. He also worked for at least two other companies in December of 1973.
Although he returned to work in January of 1972, Boone continued to experience pain and continued to see the doctors at the Public Health Service Hospital on the Indian Reservation, as reflected by the medical records in the file, including a visit to doctors in Gallup, New Mexico. As the back pain became more disabling, he was finally referred to Howard H. Johnston, M.C., an orthopedic surgeon, in November of 1973. By this time, Boone, although willing, was unable to work at all because of the pain. Dr. Johnston related his current condition and symptoms to the December 20, 1971 industrial accident.
The facts clearly establish a new, additional or previously undiscovered disability. Based upon the report of Dr. Lang, which supported Argonaut's notice of claim status of February 3, 1972, Boone was released without permanent disability and was able to work and did in fact work. While his physical condition, in terms of objective findings, remained substantially the same, the pain caused by those conditions, the acute strain and the aggravated spondylolisthesis, became increasingly disabling. There is absolutely no contradictory testimony, either medical or otherwise, that Boone is now disabled from work by the pain caused by conditions which Dr. Johnston unequivocally relates to the December 1971 incident. Pain alone, when disabling and causally related to industrial accident, is compensable in Arizona. Smith v. Industrial Commission, 26 Ariz.App. 297, 547 P.2d 1097 (1976); Midland-Ross Corporation v. Industrial Commission, 107 Ariz. 311, 486 P.2d 793 (1971); Greer v. Industrial Commission, 16 Ariz.App. 594, 494 P.2d 1339 (1972). Indeed, in the case at bar the objective symptoms which underlie the pain are sufficiently severe that Dr. Johnston is contemplating the possibility of a chemonucleolysis at L 4--5, without surgery, as well as possible disc surgery and spinal fusion. The evidence amply supports the hearing officer's award of reopening. Perry v. Industrial Commission, supra.
In addition to the facts recited above, Dr. Johnston was also of the opinion that a shortened right leg, together with the altered gait accompanying such a condition, a result of the 1966 helicopter accident, contributed to the low back complaints Boone was currently suffering from. The hearing officer refused to allow Argonaut to ask Dr. Johnston whether he could apportion a percentage of Boone's current complaints to each condition, and if so, how much to each. In this decision, the hearing officer erred. The State Compensation Fund argues that there is no right of apportionment in Arizona since employers must take their employees as they find them and are thus liable for the full resulting disability to which their injury contributes. While it is true that the general rule requires the employer to take his employee as he finds him, the concept of apportionment has developed to alleviate the sometimes harsh consequences of finding the last carrier liable for the entire disability resulting from successive injuries. 3 Larson, Workmen's Compensation Law, § 95.31 (1976).
While Arizona has no specific statute on apportionment of liability for successive injuries 1, this Court has adopted the concept under certain conditions:
The decision in Hardware Mutual, supra, relied upon the case of Aluminum Company of America v. Industrial Commission, 61 Ariz. 520, 152 P.2d 297 (1944) where the Arizona Supreme Court set aside the award of the Commission because material evidence was excluded on the matter of apportioning disability between the effect of two previous conditions....
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