Raban v. Industrial Commission

• Decision Date: 28 October 1975
• Docket Number: CA-IC,No. 1,1
• Citation: 541 P.2d 950,25 Ariz.App. 159
• Parties: Terry Ray RABAN, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Duval Sierrita Corporation, Respondent Employer, Duval Sierrita Corporation, Respondent Carrier. 1204.
• Court: Arizona Court of Appeals

Page 950

541 P.2d 950

25 Ariz.App. 159

Terry Ray RABAN, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Duval Sierrita Corporation, Respondent Employer Duval Sierrita Corporation, Respondent Carrier.

No. 1 CA-IC 1204.

Court of Appeals of Arizona, Division 1, Department C.

Oct. 28, 1975.

Rehearing Denied Nov. 19, 1975.

Review Denied Dec. 23, 1975.

Davis, Eppstein & Tretschok by Robert W. Eppstein, Tucson, for petitioner

Greg L. Folger, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Twitty, Sievwright & Mills by John F. Mills, Phoenix, for respondents employer and carrier.

OPINION

WREN, Judge.

We are asked to review a determination by The Industrial Commission that petitioner had incurred no loss of earning capacity as a result of a permanent unscheduled disability under the Workmen's Compensation Act. We affirm the decision.

Petitioner, Terry Ray Raban, suffered a back injury on October 8, 1971 while employed for respondent employer, Duval Sierrita Corporation (Duval), for whom he had worked since 1967 as a heavy equipment operator. As a result of the injury, surgery was performed on his back. One month after the surgery he returned to work for Duval for a period of two weeks to relieve a vacationing foreman. In March, 1972 petitioner again returned to his job of heavy equipment operator with the same employer, and worked until October 18, 1972, when he terminated his employment and thereafter devoted full time to an automobile steam cleaning business he had acquired prior to the injury.

On October 3, 1973 the presiding hearing officer issued a Decision Upon Hearing and Findings and Award for Unscheduled Permanent Partial Disability, determining that petitioner's medical condition had become stationary on May 18, 1973, and that he sustained a ten per cent functional disability. On January 11, 1974 an award by The Industrial Commission held that petitioner had suffered no loss of earning capacity in that he had demonstrated a post-operative ability to perform his regular duties in his employment with Duval, and had voluntarily quit his job to devote full time to his own business.

Petitioner contends that (1) the evidence does not support the determination that he had sustained no loss of earning capacity; (2) the hearing officer erred in refusing to permit interrogatories to be filed after the time prescribed by the Industrial Commission's Rules of Procedure; and (3) the hearing officer erred in admitting certain motion picture film into evidence.

LOSS OF EARNING CAPACITY

In determining whether there was a loss of earning capacity, petitioner asserts that the hearing officer should not have taken into consideration his post-injury earnings with Duval, since his condition was not then medically stationary. We do not agree. Petitioner's argument carries the assumption that his physical disability was greater at the time it became stationary than at the time of the injury or surgery. Such an assumption is supported neither by medical testimony nor legal authority. Furthermore, from March until October, 1972, a period of over six months, petitioner worked continuously at his regular pre-injury work as a heavy equipment operator, and for wages at least equal to those previously earned. The hearing officer's determination that petitioner had suffered no loss of earning capacity was therefore supported by the proposition that post-injury earnings may create a presumption of commensurate earning capacity. Maness v. Industrial Commission, 102 Ariz. 557, 434 P.2d 643 (1967); Shroyer v. Industrial Commission, 99 Ariz. 266, 408 P.2d 406 (1965); Turley v. Industrial Commission, 10 Ariz.App. 21, 455 P.2d 470 (1969).

Moreover, at the time he terminated his job he was able to perform the work satisfactorily; it was available and similar to that which he had done prior to the injury. In addition, the hearing officer found that petitioner had voluntarily terminated his employment in order to run his own expanding business. The Commission's findings in this regard we find to be fully supported by the evidence and therefore binding upon this Court. See Powell v. Industrial Commission, 102 Ariz. 11, 423 P.2d 348 (1967).

It is to be noted that petitioner testified at the hearing that operation of certain of Duval's equipment caused him to have pain, and made it difficult for him to straighten his body. He stated that he quit his job because of this pain and difficulty. However, the Commission found that the permanent disabilities of petitioner were not of a nature severe enough to have reduced his earning capacity. The purpose of Workmen's Compensation legislation is not to compensate for difficulty and pain, but for lost earning capacity. See White v. Industrial Commission, 87 Ariz. 154, 348 P.2d 922 (1960); Maness v. Industrial Commission, supra; Moore v. Industrial Commission, 12 Ariz.App. 328, 470 P.2d 476 (1970).

When an injured person returns to essentially the same type of work he was doing prior to the injury, has steady employment, and earns at least as much money for his labors, he cannot be heard to complain that his earning capacity has been diminished.

INTERROGATORIES

Petitioner next claims error in that the hearing officer sustained respondent carrier's objection to terrogatories aimed at discovering whether surveillance motion pictures of petitioner had been made. The objection was aimed at petitioner's failure to file the interrogatories at least forty days prior to the scheduled hearing, as required by Rule 44 of The Industrial Commission's Rules of Procedure.

Petitioner urges that this time requirement should have been waived by the hearing officer, because petitioner did not learn of the possibility that surveillance movies might have been made of him operating his auto steam cleaning business until 36 days prior to the hearing, and the interrogatories were submitted the following day. He thus asserts the novel position that since he did not ascertain the possible existence of the film prior to the forty day limitation the delay in submitting the interrogatories should have been excused. Again, we do not agree. Such an argument might well be likened to 'putting the cart before the horse.'

An obvious purpose of discovery procedures in Industrial Commission hearings is to Discover that which was previously unknown, i.e., whether motion pictures had been taken. Interrogatories are useful tools for that purpose, and were available to petitioner well in advance of the time requirement of Rule 44. Strict adherence to the rule was within the discretion of the hearing officer, and the facts here do not justify an assertion by this Court that there was an abuse of that discretion in failing to disregard the irregularity. ¹

After the ruling that the carrier need not respond to the untimely interrogatories, petitioner attempted to utilize A.R.S. § 23--945 and § 23--946 by filing with The Industrial Commission, on April 18, 1974, a request labeled Petition on Validity of Order on Request for Stay of Proceedings. The petition was protested by Duval and refused on procedural grounds by legal counsel for the Commission.

We find...