Ortega v. Industrial Commission
| Decision Date | 13 March 1979 |
| Docket Number | No. 1,CA-IC,1 |
| Citation | 121 Ariz. 554,592 P.2d 388 |
| Parties | John R. ORTEGA, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Carpet Control, Inc., Respondent Employer, Home Insurance Company, Respondent Carrier. 2030. |
| Court | Arizona Court of Appeals |
Petitioner John R. Ortega, who has sustained four hernias during his years of employment with respondent employer Carpet Control, Inc., brings this special action to review the award of the hearing officer that his most recent hernia did not cause any permanent disability.
His arguments are: (1) Since the latest hernia was found to be a class one hernia under A.R.S. § 23-1043, there is a statutory presumption of partial permanent disability, and (2) he has established by evidence a permanent disability attributable to the hernia.
We hold that § 23-1043 creates no statutory presumption of permanent disability for class one hernias and that the evidence reasonably supports the hearing officer's award.
Petitioner's most recent hernia occurred on October 29, 1976. The claim was accepted by the Industrial Commission for benefits. Petitioner's benefits were changed from total temporary compensation to partial temporary compensation in December 1976. That same month F. Darwin Zahn, M.D., petitioner's treating physician, released him to work with a restriction against heavy lifting. Petitioner's employer wrote a letter to the Industrial Commission stating:
Due to our nature of work, there is nothing that we can give Mr. Ortega at this time, as our work is Carpet Installations and requires lifting at all times.
Mr. Ortega is a carpet installer and needs to be at 100% Peak to be able to perform his duties with our company. There is no light or limited duties available.
Mr. Ortega has had four hernias in the last three years. I feel that his return to carpet installing will only result in his return to the hospital with another injury of the same type.
Formal hearings were held to determine whether petitioner should receive additional benefits. The hearing officer, in his June 24, 1977, award, determined that petitioner had a direct traumatic hernia pursuant to § 23-1043(1). In his findings, he stated:
Applicant is entitled to total temporary disability compensation pursuant to A.R.S. § 23-1043(1) from December 25, 1976 until his condition referable to the industrial accident became or becomes stationary; that while the evidence shows that as a result of the applicant's industrial injury he should not return to his occupation as a carpet layer the evidence is insufficient to determine that this has caused any lessening of the applicant's earning capacity in order to result in a partial permanent disability pursuant to Paragraph 1 of A.R.S. § 23-1043 and accordingly such a determination is left to further administrative proceedings by the defendant insurance carrier.
This award became final.
On October 11, 1977, a notice of claim status was issued by respondent carrier terminating temporary compensation and active medical treatment as of September 23, 1977, and determining that no permanent disability had resulted from the injury.
In February 1978, a formal hearing was held to determine whether the October 1976 hernia had resulted in permanent disability. The hearing officer's award of April 7, 1978, found that there was no permanent disability.
Petitioner's first argument on review is that § 23-1043(1) creates a statutory presumption of permanent disability and that the hearing officer should have limited his consideration to petitioner's loss of earning capacity. The pertinent language of paragraph 1 of § 23-1043 is as follows:
Such injury (a real traumatic hernia) will be compensated as a temporary total disability and as a partial permanent disability, depending upon the lessening of the injured individual's earning capacity.
We agree with the hearing officer's analysis, which is set out in his findings:
4. Applicant argues that the above quoted section of the statute provides a conclusive presumption of partial permanent disability and the only issue to be determined should be the loss of applicant's earning capacity, if any, from the injury; it is conceded that the quoted language is ambiguous, but it is felt that when a statute is ambiguous and there is no authority interpreting the same, it is necessary to try to ascertain the intent of the Legislature.
5. That since the enactment of the Workmen's Compensation Law in Arizona, disability compensation benefits have been paid under a three stage compensation plan: (1) Temporary total benefits; (2) temporary partial benefits and; (3) permanent partial benefits if indicated.
8. It is submitted that to conclusively presume a permanent partial disability before there is a medical finding of any permanent disability or to attempt a determination of loss of earning capacity, if in fact there has been no medical finding of any permanent disability related to the industrial injury is illogical and puts the cart before the horse and is inconsistent with the concept of three stage compensation; accordingly, it is found that the quoted language of Paragraph 1 of Section 23-1043 . . . above is not intended to change the traditional concept of three stage compensation.
It is a fundamental principle of Arizona workmen's compensation law that the Industrial Commission is not required to continue benefits beyond the period of temporary disability absent a showing of permanent disability related to the industrial incident. Cardinale v....
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