Schuff Steel Co. v. Industrial Com'n of Arizona
| Decision Date | 18 August 1994 |
| Docket Number | CA-IC,No. 1,1 |
| Citation | 891 P.2d 902,181 Ariz. 435 |
| Parties | SCHUFF STEEL COMPANY, Petitioner Employer, Argonaut Insurance Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Duncan Hancock, Respondent Employee, SPECIAL FUND DIVISION, Respondent Party in Interest. 92-0183. |
| Court | Arizona Court of Appeals |
This is a special action review of an Arizona Industrial Commission ("Commission") 1 Decision Upon Review ("Decision") denying apportionment of permanent partial disability compensation under Ariz.Rev.Stat.Ann. ("A.R.S.") subsection 23-1065(C) (Supp.1993). The Administrative Law Judge ("ALJ") denied apportionment because although cervical arthritis and either bilateral hand arthritis or occipital neuralgia are preexisting nonindustrial physical impairments rating 10% or more under the AMA Guides, the written record requirement was not satisfied as to the bilateral hand arthritis. In addition, the ALJ determined the evidence failed to establish that the cervical arthritis probably caused the occipital neuralgia and failed to establish that the occipital neuralgia is permanent.
Petitioner Carrier ("Argonaut") presents three issues. First, whether subsection 23-1065(C), which restricts apportionment to qualified nonindustrial impairments, unconstitutionally denies employers of industrially handicapped workers equal protection of the law. Second, whether the written records requirement of subpart (2) of subsection 23-1065(C) separately applies to each component impairment of the required 10% permanent impairment when each has the same enumerated cause, e.g., arthritis. Third, whether the ALJ disregarded what Argonaut argues was the only reasonable inference from the record by concluding that Argonaut failed to prove to a reasonable medical probability that the cervical arthritis caused occipital neuralgia and that this complication is permanent. For the following reasons, we affirm the Decision.
Claimant, who was born in 1927, has been an ironworker his entire working life. He had a thirty-year employment relationship with David Schuff, the owner of Petitioner Employer ("Schuff Steel"), who considered Claimant both an exceptional employee and a friend. The owner characterized Claimant as "the toughest man that has ever lived" and as "the greatest leader and motivator I've ever been around."
Throughout his years in this high risk trade, Claimant suffered numerous industrial injuries. These include: (1) 1956 amputation of first and second fingers of left hand; (2) 1962 compression fracture of vertebrae at L1-2; (3) 1966 crush injury of right foot; (4) 1970 fracture of left elbow; (5) 1974 blow to head; (6) 1980 fracture of left arm and subsequent reopening for a torn meniscus in right knee; and (7) 1982 amputation of tip of index and long finger of right hand.
Claimant complained of headaches since the 1962 injury. From 1962 to 1974 these headaches occurred every couple of months and subsided with aspirin. After the 1974 head injury, however, Claimant complained of severe daily headaches. His symptoms included nausea, blurred vision, and increased hearing loss. 2 Aspirin no longer was effective, and Claimant took narcotic medication for relief. He also designed a traction device and administered hot packs and massage.
Claimant's treating physician, Dr. Vernetti, referred him to a neurologist, Richard A Thompson, M.D., in September 1974. Dr. Thompson reported receiving a history from Claimant of numerous head and neck injuries, among many others. Dr. Thompson then stated that
[t]he only important sequelae of this [history] is recurring neck pain and occipital headache, either unilateral or bilateral, often radiating into the frontal regions, sometimes into the area of the eye. Most of the pain he describes is consistent with ... cervical arthritis and occipital neuralgia, but some of the headaches probably are ... migrainous in nature, most likely being initiated by the occipital pain and tenderness.
....
It is my impression this patient has traumatic cervical arthritis and musculoskeletal pain resulting from this. Some of the pain radiates over the occipital nerves, and therefore, qualifies for the diagnosis of occipital neuralgia. Severe pain of this type sometimes produces migraine reaction, which he has had on occasion.
In April 1976, neurosurgeon John J. Kelley independently examined Claimant for the carrier. Dr. Kelley diagnosed "tension vascular headaches" that "appear to be of a muscle tension variety and may have secondary occipital neuralgia component" and "appear to stem from the injury of 7-18-74." He, however, reviewed x-rays taken in July 1974 after the industrial injury, reported that the cervical spine films were normal, and recommended repeat cervical x-rays. A radiologist subsequently reported that the repeat x-rays revealed
Two months later, the carrier referred Claimant for another independent medical examination. Despite Claimant's history of unrelieved headaches and related symptoms, the group concluded that the July 1974 injury was stationary without permanent impairment. Relying on this report, the carrier terminated the claim. Claimant requested a hearing and retained a workers' compensation specialist to represent him.
In December 1976, Claimant saw an associate of Dr. Thompson, neurologist Betty F. Ball, M.D. In the reported history, Dr. Ball noted that cervical spine films taken at the time of the July 1974 injury showed no apparent abnormalities. Her only positive physical findings were paracervical muscle spasm and tenderness to palpation over the occipital areas and cervical spine. She nevertheless concluded that Claimant's
history and examination is believed consistent with a diagnosis of cervical arthritis with resultant cervical muscle spasm, resulting in ... muscle contraction headaches. There is a suggestion of [a] component of vascular headache, as well as perhaps [a] complicating feature of occipital neuralgia with the above pain syndrome.
Dr. Ball recommended medication to treat the occipital neuralgia but could not offer any treatment for the "muscle spasm and complaints secondary to cervical arthritis" beyond what Claimant already had received.
A hearing ensued, but the transcript is not part of the current record. ALJ Galloway subsequently issued an award terminating the July 1974 claim without permanent impairment. His findings note that Dr. Ball "testified that ... [Claimant] was having muscle contraction headaches but did not prescribe any treatment for the headaches and while the headaches may have been aggravated by the industrial injury Doctor Ball could not state that there was a permanent disability."
The 1956 amputations affected Claimant's ability to grasp objects with his left hand. The 1970 left elbow fracture affected his ability to rotate his left arm. According to Claimant, after the 1980 left arm fracture, he had new symptoms such as his right hand locking on the steering wheel of his car after driving to work and swelling after using tools at work.
On June 9, 1989, Claimant fell at work and injured his right shoulder, left arm, and left ankle. According to Claimant, his inability to grasp and carry objects caused this fall. After surgery for a torn rotator cuff and treatment for wrist and ankle fractures, Claimant had residual physical impairments of 7% of the right shoulder, 5% of the left wrist, and 5% of the left ankle. His treating physician concluded that these physical impairments prevented Claimant from working as an ironworker.
Argonaut subsequently closed the claim with permanent physical impairment and notified the Special Fund of its intent to claim apportionment under subsection 23-1065(C). The claim proceeded to the Commission for its assessment of earning capacity. See generally A.R.S. § 23-1047 (1983). Claimant responded to the Commission's request for information by, among other things, listing "[p]rior [d]isabilities," including "[a]rthritis and [t]endonitis in [b]oth [h]ands." The Commission subsequently prepared an internal memorandum regarding loss of earning capacity, which reiterated Claimant's list of prior physical impairments. 3
On June 26, 1991, the Commission issued its award for permanent partial disability compensation based upon Claimant's capacity to work as an order filler. This award also denied apportionment under subsection 23-1065(C). Argonaut protested this Award. A hearing was scheduled for October 25, 1991, and the Special Fund requested to be joined as a real-party-in-interest.
Pending the hearing, Argonaut and the Special Fund submitted multiple documents concerning many of Claimant's prior industrial injuries. Both also scheduled independent medical examinations with orthopedic surgeons, but neither party requested an examination by a neurologist or neurosurgeon.
On October 1, 1991, T.H. Taber, Jr., M.D., examined Claimant for the Special Fund. Dr. Taber examined Claimant's neck and left wrist and noted no swelling or crepitus in the latter. He also reviewed cervical x-rays and a CT scan from June 1989 and the reports of Drs. Thompson, Ball, and the group examiners concerning the 1974 injury and...
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