PFS v. Industrial Com'n of Arizona

• Decision Date: 30 September 1997
• Docket Number: No. 1,CA-IC,1
• Citation: 955 P.2d 30,191 Ariz. 274
• Parties: , 253 Ariz. Adv. Rep. 22 PFS, Petitioner Employer, Aetna Casualty & Surety Co., Petitioner Carrier, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Marvin J. Gordon, Respondent Employee. 96-0108.
• Court: Arizona Court of Appeals

Page 30

955 P.2d 30

191 Ariz. 274, 253 Ariz. Adv. Rep. 22

PFS, Petitioner Employer, Aetna Casualty & Surety Co., Petitioner Carrier, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Marvin J. Gordon, Respondent Employee.

No. 1 CA-IC 96-0108.

Court of Appeals of Arizona,

Division 1, Department C.

Sept. 30, 1997.

Reconsideration Denied Oct. 10, 1997.

Review Denied May 19, 1998.

Teilborg, Sanders & Parks, P.C. by Scott H. Houston, Phoenix, for Petitioners Employer & Carrier.

Anita R. Valainis, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for Respondent.

Thomas C. Wilmer, Phoenix, for Respondent Employee.

OPINION

FIDEL, Presiding Judge.

A disabling industrial injury that would ordinarily be scheduled is unscheduled under Arizona law if the worker already suffers, at the time of injury, from a permanent earning capacity disability. See Ariz.Rev.Stat. Ann. ("A.R.S.") § 23-1044(E) (1995); Ronquillo v. Industrial Comm'n, 107 Ariz. 542, 543-44, 490 P.2d 423, 424-25 (1971). Further, if a prior Arizona industrial injury resulted in a scheduled award, resulting earning capacity disability is conclusively presumed. Ronquillo, 107 Ariz. at 543-44, 490 P.2d at 424-25. We now consider whether this conclusive presumption attaches to a prior out-of-state industrial injury that was not the subject of a final judgment or award in the forum state but that would have resulted in a scheduled award if it had occurred in Arizona. In the underlying proceedings, the Industrial Commission answered that question in the affirmative. We conclude instead that such an injury is entitled only to a rebuttable presumption, and we set the Industrial Commission award aside.

BACKGROUND

On November 6, 1993, Claimant Marvin J. Gordon, a truck driver for Petitioner PFS, fractured his right ankle when the truck ramp he was standing on collapsed. His claim for workers' compensation benefits was accepted by PFS's insurer, Petitioner Aetna Casualty Surety Company. Eventually Aetna closed the claim with a sixteen percent permanent functional impairment rating and designated the claim for scheduled disability compensation. See generally A.R.S. § 23-1044(B)(1995). Claimant requested a hearing, arguing that his current disability should be unscheduled when considered in combination with a permanently disabling prior industrial injury to his right knee.

We may summarize Claimant's prior injury as follows: (1) Claimant sustained a traumatic dislocation of his right patella in 1980 while employed as a truck driver in Oregon. (2) After several months of medical treatment and arthroscopic surgery, he was released to return to work. There is no evidence that the releasing physician evaluated whether Claimant had sustained any permanent functional impairment; nor does the record establish whether the Oregon body that administers workers' compensation ever decided that question. (3) PFS and Aetna nonetheless accept for the purpose of appeal that the 1980 injury left Claimant with a permanent five percent functional impairment of the right lower extremity. They do so on the basis of a current assessment to that effect by Boris Stojic, M.D., a board certified orthopedic surgeon who examined Claimant and reviewed his medical history. (4) The parties dispute whether this functional impairment caused any permanent loss of earning capacity.

The ALJ awarded Claimant an unscheduled permanent partial disability. He did not determine as a factfinder that the prior industrial injury had in fact caused a permanent loss of earning capacity. Instead, he determined as a matter of law that a conclusive presumption of permanent earning capacity disability attaches to a prior out-of-state industrial injury that would have been a scheduled injury in Arizona.

After exhausting the administrative review process, PFS and Aetna petitioned this court for appellate review. We deferentially review the factual findings of the Industrial Commission, but independently review its legal conclusions. Anton v. Industrial Comm'n, 141 Ariz. 566, 569, 688 P.2d 192, 195 (App.1984).

A CONCLUSIVE OR REBUTTABLE PRESUMPTION?

It is well-established in both law and common sense that successive permanent injuries may produce a total disability greater than the sum of its parts. See Ossic v. Verde Central Mines, 46 Ariz. 176, 188, 49 P.2d 396, 401 (1935); 5 ARTHUR LARSON, LARSON'S WORKERS' COMPENSATION LAW § 59.00, at 10-492.329 (1997). Arizona case law weaves this truism into a patchwork of precepts and presumptions, several of which are pertinent here:

1. A present industrial injury that would ordinarily be scheduled is unscheduled if the claimant suffers, at the time of injury, from an earning capacity disability. Ronquillo, 107 Ariz. at 543, 490 P.2d at 424.

2. The requisite loss of earning capacity need only be minimal and need only constitute a general impairment of earning power, not a specific inability to perform one's former work. Alsbrooks v. Industrial Comm'n, 118 Ariz. 480, 484, 578 P.2d 159, 163 (1978).

3. If the prior injury was an industrial injury finally determined by the Arizona Industrial Commission to have resulted in a scheduled permanent disability, it is conclusively presumed to have caused a permanent loss of earning capacity. Ronquillo, 107 Ariz. at 544, 490 P.2d at 425.

4. A prior nonindustrial injury that would, if an industrial injury, have been scheduled under Arizona law is generally rebuttably--not conclusively--presumed to have caused a permanent loss of earning capacity. Id.; see also Alva v. Industrial Comm'n, 156 Ariz. 85, 87, 750 P.2d 28, 30 (1988); Alsbrooks, 118 Ariz. at 483, 578 P.2d at 162. Certain nonindustrial injuries, however, are of such magnitude as to make the presumption conclusive. Pullins v. Industrial Comm'n, 132 Ariz. 292, 295, 645 P.2d 807, 810 (1982) (holding that the Commission committed legal error in finding that preexisting blindness in one eye had not affected the claimant's earning capacity).

5. If a prior out-of-state industrial injury resulted in a scheduled award in the forum state, but would have warranted an unscheduled award under Arizona law, the prior injury is also rebuttably--not conclusively--presumed to have caused a permanent loss of earning capacity. Fremont Indemnity Co. v. Industrial Comm'n, 144 Ariz. 339, 345, 697 P.2d 1089, 1095 (1985).

This case presents an issue that previous decisions have not squarely resolved. If we were confronted with a prior nonindustrial injury of a scheduled type, our decision would be governed by Alsbrooks and Alva, and only a rebuttable presumption would attach. Similarly, if we were confronted with a prior out-of-state award for an industrial injury of a type that would be unscheduled in Arizona, our decision would be governed by...