Payne v. Industrial Com'n of Arizona

• Decision Date: 07 December 1982
• Docket Number: No. 1,CA-IC,1
• Citation: Payne v. Industrial Com'n of Arizona, 664 P.2d 655, 136 Ariz. 111 (Ariz. App. 1982)
• Parties: Donald PAYNE, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Pima County, Respondent Employer, Home Insurance Company, Respondent Carrier. 2702.
• Court: Arizona Court of Appeals

Page 655

664 P.2d 655

136 Ariz. 111

Donald PAYNE, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Pima County, Respondent Employer Home Insurance Company, Respondent Carrier.

No. 1 CA-IC 2702.

Court of Appeals of Arizona Division 1, Department C.

Dec. 7, 1982.

Rehearing Denied Jan. 14, 1983.

Review Granted March 1, 1983.

Tretschok, McNamara & Clymer, P.C. by Dale D. Tretschok, Tucson, for petitioner.

James A. Overholt, Acting Chief Counsel The Industrial Commission of Arizona, Phoenix, for respondent.

Bury & Moeller, P.A. by Marshall Humphrey III, J. Michael Moeller, Tucson, for respondent employer-carrier.

OPINION

BROOKS, Judge.

This is a special action review of a consolidated Industrial Commission award dismissing a request for hearing, denying a petition to reopen, and awarding scheduled permanent partial disability. Multiple issues are presented:

(1) Whether the September 9, 1977 notice of claim status closing the first injury claim without permanent impairment was voidable because the supporting medical report in the Industrial Commission file is unsigned and the space for indicating the impairment status is blank.

(2) Whether the administrative law judge abused his discretion by dismissing the late request for hearing protesting the September 9, 1977 notice of claim status.

(3) Whether the first claim should have been reopened because medical opinion about the impairment from a meniscectomy changed.

(4) Whether the evidence was mischaracterized by the administrative law judge when he found that the second injury was stationary with a 10% permanent impairment.

We find no error and affirm the award.

The petitioner twice injured his left knee at work. The employer and industrial carrier were identical, and claims for both injuries were accepted.

The first injury (hereinafter 1976 injury) necessitated a meniscectomy (the excision of a knee joint meniscus). After surgery, Warren D. Eddy, M.D., an orthopedic surgeon, examined the petitioner, found no objective evidence of impairment, and authored an August 16, 1977 physician's report discharging him from medical care with no permanent impairment. The report in the Industrial Commission file, however, is inexplicably unsigned and the space for indicating the impairment status is blank. On September 9, 1977, the carrier issued a notice of claim status (hereinafter September notice) terminating temporary compensation without permanent impairment. This notice was not protested and became final.

The second injury (hereinafter 1978 injury) necessitated surgery to remedy defects in bone surfaces. After surgery, the petitioner had pain, stiffness, and swelling. In October 1980, his treating orthopedic surgeon, Jon B. Wang, M.D., discharged him with a permanent impairment. A subsequent group of consultants, which included Dr. Wang, concluded that the petitioner was stationary on October 3, 1980 with a 20% permanent left knee impairment, 10% from 1976 injury and the meniscectomy and 10% from the 1978 injury. Relying on this report, the carrier issued notices of claim status terminating temporary compensation for the 1978 injury and awarding scheduled disability benefits for a 10% left lower extremity impairment.

The petitioner requested a hearing to protest these notices. In addition, he filed a late request for hearing protesting the September notice and a petition to reopen the 1976 claim. These requests were consolidated and hearings were conducted.

Drs. Eddy, Wang, and Abelardo Sotelo, M.D., the petitioner's present treating physician, gave the dispositive testimony. ¹ Dr. Eddy testified that he discharged the petitioner without permanent impairment because he found no measurable loss of motion or strength after the meniscectomy. He admitted, however, that the current trend of medical opinion was to rate an impairment for a meniscectomy notwithstanding the absence of measurable loss of motion or strength. Although Dr. Eddy would not recant his 1977 evaluation because the physical findings justified it, he testified that if he were to evaluate the same condition today, he would follow the modern trend of opinion.

Dr. Wang testified that the petitioner had preexisting osteonecrosis, a degenerative disease, in both knees. The industrial injuries had aggravated this condition in the left knee, and the surgery remedied this aggravation. The 1978 injury also tore the medial meniscus. In Dr. Wang's opinion, these 1978 injuries were stationary with a 10% permanent impairment. He also rated a 10% permanent impairment for the meniscectomy. He accepted Dr. Eddy's objective findings, but followed the modern trend of opinion, which he described as a "philosophical difference" with regard to rating a meniscectomy.

Dr. Wang was also questioned about Dr. Sotelo's subsequent examinations of the petitioner. He refused to modify his opinions.

Dr. Sotelo testified that he first examined the petitioner in September 1981, after the group consultation. An arthroscopy revealed a torn medial meniscus and osteonecrosis. He initially testified that both conditions were related to the industrial injuries and subsequent surgeries. On cross-examination, however, he admitted that he was not reasonably certain that the industrial injuries permanently aggravated the preexisting condition. Then, on redirect examination, he reasserted that it was highly probable that the industrial injuries aggravated this preexisting condition. Finally he foresaw additional surgery, but could not predict when it would be necessary.

After these hearings, the administrative law judge issued a consolidated award dismissing the late hearing request, denying the petition to reopen, terminating temporary compensation on October 3, 1980, and awarding scheduled disability benefits for a 10% impairment of the lower left extremity. The award was affirmed on administrative review. The petitioner then brought this Special Action--Industrial Commission.

On appeal, the petitioner challenges each of the administrative law judge's conclusions. Before addressing his contentions, however, we first consider Reddel v. Industrial Commission, 131 Ariz. 263, 640 P.2d 194 (App.1982), a recent relevant case that the parties omitted.

In Reddel, a notice of claim status terminating temporary compensation and determining that the industrial injury (to a foot) caused no permanent disability was not protested and thus became final. The claimant subsequently suffered another industrial injury to the same foot. This claim was ultimately closed with a permanent impairment. Because the prior injury claim had been closed without permanent impairment, the impairment from the second injury was classified as scheduled. The claimant's physician, who had treated her for both injuries, testified that his medical report discharging her without permanent impairment for the first injury was a mistake resulting from a secretarial error. The court held that the notice of claim status closing the first claim was final and could not be contradicted. Accordingly, it affirmed an award of scheduled disability benefits for the impairment from the second injury only.

Reddel is instructive in the present case because both cases involve unprotested notices of claim status which found no permanent impairment and became final. In the present case, however, petitioner not only contends that the first claim was erroneously closed; he also seeks to reopen it based on a change in medical opinion concerning his impairment. We now address the issues in the order in which they were presented.

The petitioner first contends that the September 1977 notice was voidable. He argues that some reason of record must support the closing, see Parkway Manufacturing v. Industrial Commission, 128 Ariz. 448, 626 P.2d 612 (App.1981), and that the partially blank report failed this requirement. He concludes that this defect makes the notice voidable, rather than void, because a notice is void only if contradicted by the very report supporting it. See Calixto v. Industrial Commission, 126 Ariz. 400, 616 P.2d 75 (App.1980). This voidable notice, the argument suggests, may be contradicted by current medical opinion that the 1976 injury caused a permanent impairment.

We reject this contention. The compensation carrier may unilaterally determine the claimant's benefits subject to the right of the claimant to request a timely hearing. Nelson v. Industrial Commission, 115 Ariz. 293, 564 P.2d 1260 (App.1977). The claimant has the burden to protest this notice and prove his claim and unless the claimant timely protests the notice of claim status, it becomes final and is entitled to res judicata effect. Id.; Calixto v. Industrial Commission, supra. There are limited exceptions to this finality rule, such as self-contradictory notices, Bernard v. Industrial Commission, 24 Ariz.App. 136, 536 P.2d 705 (1975); Best v. Industrial Commission, 14 Ariz.App. 221, 482 P.2d 470 (1972); and notices contradicted by the supporting medical report, Roseberry v. Industrial Commission, 113 Ariz. 66, 546 P.2d 802 (1976). The statutory rights to rearrange and reopen also qualify finality. See A.R.S. §§ 23-1044(F) and 23-1061(H).

As we held in Reddel, the 1977 notice in the present case is res judicata as to any claim for compensation arising out of the 1976 injury. The notice is not defective and thus its finality may not be overcome. The notice is unambiguous and gave the petitioner adequate warning of its effect. The medical evidence when the case was closed fully supported it. The partially blank report in the Industrial Commission file is a nonjurisdictional defect, see Calixto v. Industrial Commission, 126 Ariz. at 402, 616 P.2d at 75; the only relevant inquiry is whether the medical evidence when the claim was closed contradicted the September 1977 notice. We find that because no contradiction was shown, none of the exceptions apply. The unprotested notice,...