Pearce Development v. Industrial Com'n of Arizona
| Decision Date | 18 June 1985 |
| Docket Number | No. 1,CA-IC,1 |
| Citation | 147 Ariz. 598,712 P.2d 445 |
| Court | Arizona Court of Appeals |
| Parties | PEARCE DEVELOPMENT, Petitioner Employer, Mission Insurance Co., Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Rhonda McHardy, Respondent Employee, Pearce & Sons, Respondent Employer, Industrial Indemnity, Respondent Carrier, Pearce & Sons, Respondent Employer, Western Fire Ins. Co., Respondent Carrier. 3266. |
This is a special action review of a consolidated Industrial Commission award reopening an April 15, 1981 claim and denying compensability of a July 6, 1983 gradual injury claim. At issue is the interpretation of recent successive injury cases and the application of the successive injury doctrine to a case involving a degenerative condition aggravated by all weight-bearing activity, including the employee's normal work.
The employer is common to both claims. It is therefore both a petitioner and a respondent. The petitioner carrier (Mission) was at risk during 1981. One respondent carrier, Western Fire Insurance Co. (Western), was at risk during 1982. The other respondent carrier, Industrial Indemnity, was at risk during 1983.
On April 15, 1981, the respondent employee (claimant) twisted her left knee at work. She was then thirty years old. Before this injury, she had no knee problems. After it, she had swelling, tenderness and instability.
Mission accepted the claim for the left knee injury. Treating orthopedic surgeon Samuel S. Kaplan, M.D., suspected an "internal derangement" (Physician's Initial Report), but an April 27, 1981 arthrogram was normal. He restricted the claimant's activity and her symptoms appeared to resolve. Dr. Kaplan then discharged her to return to regular work. Mission subsequently closed the claim without permanent impairment effective May 19, 1981.
The claimant's regular work was physical. She had to lift cases and kegs of beer, deliver them using a hand-truck, and stock shelves, which required bending and kneeling. The claimant's job changed in the summer of 1981, but the physical demands were similar.
After the claimant returned to work, her knee once again became symptomatic. Initially, the fluid buildup and discomfort were intermittent and exercises Dr. Kaplan had prescribed afforded relief. As she continued working, her symptoms gradually became more frequent and the exercises less effective. In November and December 1982, when the claimant's workload increased during the holiday season, the symptoms worsened.
By January 1983, the claimant decided she had to see Dr. Kaplan again. He was unavailable until February 4, 1983. After this examination, Dr. Kaplan recommended surgery. At the claimant's request, this was scheduled for May, 1983. The claimant continued working until April 11, 1983, when the knee pain finally disabled her. Surgery was then rescheduled and performed on April 30, 1983.
The claimant petitioned to reopen her April 15, 1981 claim, alleging that her Mission denied the petition. The claimant requested a hearing and she also filed a new gradual injury claim. This was supported by Dr. Kaplan's June 27, 1983 opinion letter stating that the claimant's "work activity, particularly within the last six to eight months, is a contributing factor to the present medical condition of her left knee." Industrial Indemnity denied compensability. Western was then joined as a party, and it too denied compensability. The claimant protested these denials and the reopening and new injury claims were consolidated for hearing and disposition.
At the scheduled hearings, the claimant confirmed this history of gradual worsening. She denied suffering any specific injury after returning to work.
Two medical experts appeared: Dr. Kaplan and Gerald C. Moczynski, M.D., an independent consultant. Dr. Kaplan testified that his April, 1983 surgery revealed multiple loose bodies of long-standing origin and a minor meniscus tear of recent origin. He diagnosed a chondral fracture, a very unusual condition for a person the claimant's age. This loose body abraded the cartilage, loosening additional bodies. As these accumulated, the abrasion increased. This degeneration culminated in the claimant's increased symptoms at the end of 1982. The April 15, 1981 industrial injury probably caused the chondral fracture. After this, all weight-bearing activity had a degenerative effect. In Dr. Kaplan's opinion, the claimant's work, especially the heavy lifting requiring bending of the knees, accelerated the rate of degeneration, just as increased pressure on sandpaper intensifies its abrasiveness.
Dr. Moczynski agreed that the April 15, 1981 industrial injury caused a chondral fracture and that this condition led to the degeneration. He confirmed that activity, including the claimant's work, would aggravate the degeneration. He conceded that the claimant's increased activity during late 1982 could have precipitated the increased symptoms, but testified that it is equally possible that the degeneration had simply progressed to the symptomatic stage. Finally, in Dr. Moczynski's opinion, the degenerative changes "may very well have occurred over that period of time independent of any work activity."
The administrative law judge then issued the award granting reopening of the first claim and denying compensability on the second. He summarized Dr. Kaplan's testimony as follows:
Although eventually applicant could have come to the condition that she was in early in 1983, even without any working activity, Dr. Kaplan felt that the heavier the activity, such as the applicant's employment activities, the more aggravating and injurious the subsequent activities would have been. However, his testimony does not establish that if the loose body had not already been there as a result of the 1981 injury that any subsequent working activity at any time would have produced the condition which he found early in 1983. (Emphasis added.)
He summarized Dr. Moczynski's testimony as follows:
He stated that any activity, including gradual erosion without working activities, could bring the applicant to the condition that she was in by early 1983, but he also testified that the later working activity was in the nature of an aggravation, but would not have made her any worse if the 1981 injury had not been present. (Emphasis added.)
Then, after rejecting the applicability of Professional Furniture Service v. Industrial Commission, 133 Ariz. 206, 650 P.2d 508 (App.1982), the administrative law judge relied on Dutton v. Industrial Commission, 140 Ariz. 448, 682 P.2d 453 (App.1984), and O'Donnell v. Industrial Commission, 125 Ariz. 358, 609 P.2d 1058 (App.1980), to conclude that:
the loose body attributable to the 1981 injury and eventually causing the lost time and medical care and surgery thereafter requires the reopening of applicant's 1981 claim file for benefits as provided by law. The evidence and applicable legal principles do not establish that the applicant's condition should be considered to be in the nature of a new injury or injuries occurring while she was working in 1982 and 1983 for the defendant employer when it was insured by different insurance carriers. (Emphasis added.)
The award was affirmed on administrative review and this special action followed.
On review, Mission argues that Professional Furniture Service is consistent with prior authority and controls the present case. It also argues that Dutton and O'Donnell are either distinguishable or inconsistent with prior authority. In contrast, Industrial Indemnity and Western distinguish Professional Furniture Service and rely on Dutton and O'Donnell to support the award.
Professional Furniture Service, supra, is a standard successive injury case. The employee injured his right knee at work. This claim was ultimately closed with a scheduled disability. The employee returned to work for his former employer, which had changed compensation carriers. After working for nine months to a year without any substantial problems, the employee then reinjured the right knee when he slipped on an oil spill. The medical evidence established that the first injury created a condition that the second acted upon to cause the current condition. This court set aside a reopening of the original injury claim and imposed full responsibility on the carrier at risk when the second injury occurred:
[W]hen two industrial claims are involved, such [medical] testimony is not sufficient to impose liability on the first injury carrier. Rather, in such circumstances, our courts have refused to apply the doctrine of consequential damages so as to hold the first carrier liable, and instead have imposed liability on the second carrier.... As stated in Morrison-Knudsen [Company, Inc., v. Industrial Commission, 115 Ariz. 492, 566 P.2d 293 (1977) ]:
"Although the second injury would have been less severe in the absence of the prior injury, the second employer is held to be solely responsible."
This is merely a specialized application of the principle that an employer takes an employee as he finds him, and if an injury operates upon an existing condition or disability and produces a further injurious result, then that result is held to have been caused by the injury. (Emphasis...
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