Stainless Specialty Mfg. Co. v. Industrial Com'n of Arizona

• Decision Date: 31 January 1985
• Docket Number: No. 17459-PR,17459-PR
• Citation: 695 P.2d 261,144 Ariz. 12
• Parties: STAINLESS SPECIALTY MANUFACTURING COMPANY, Petitioner Employer, State Compensation Fund, Petitioner Carrier, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Don D. Appleton, Respondent Employee.
• Court: Arizona Supreme Court

Page 261

695 P.2d 261

144 Ariz. 12

STAINLESS SPECIALTY MANUFACTURING COMPANY, Petitioner Employer State Compensation Fund, Petitioner Carrier, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent Don D. Appleton, Respondent Employee.

No. 17459-PR.

Supreme Court of Arizona, In Banc.

Jan. 31, 1985.

Robert K. Park, Chief Counsel, State Compensation Fund by W. Smith Michael, Jr., Tucson, for petitioners.

Sandra Day, Chief Counsel, Indus. Com'n of Arizona, Phoenix, for respondent.

Davis, Eppstein & Hall by Philip Hall, David Bartlett, Tuscon, for respondent employee.

FELDMAN, Justice.

The question presented is whether a workers' compensation claim may be reopened to permit payment for medical care necessary to treat the sequelae of an industrial injury where the continuation of symptoms and developments in medicine have created a change in the medical needs of the injured worker, even though there has been no change in his physical condition.

Donald D. Appleton (claimant) was originally injured at work in January, 1975. His claim was last closed in August, 1981, with a 25% impairment of the right leg; no recommendation for surgery was made at that time. Continuing symptoms caused claimant to consult two of his previous physicians, both of whom recommended further surgery. Based on their assessment, claimant petitioned to reopen. The administrative law judge (ALJ) granted the petition. By memorandum decision the court of appeals set aside the award. Stainless Specialty Manufacturing Company v. Industrial Commission, (1 CA-IC 2997, filed February 7, 1984). Claimant then petitioned this court for review. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5, and Rule 23, Ariz.R.Civ.App.P., 17A A.R.S. We granted review to reexamine our previous decisions regarding the grounds for reopening. Rule 23(c)(4), supra.

FACTS

Claimant tore the medial meniscus (cartilage) of his right knee at work on January 7, 1975. Charles Fina, M.D., an orthopedic surgeon, performed a medial menisectomy (removal of cartilage on inner side of knee) in February, 1975, noting significant preexisting degenerative arthritis at that time. The industrial claim covering this injury was closed November 7, 1975, with a 15% impairment of the right leg. The claim was reopened and closed several more times before the reopening which is the subject of this petition. Edward C. Percy, M.D., also an orthopedic surgeon, performed two additional surgeries. The first, performed in April, 1978, was a partial synovectomy (removal of membrane within the knee joint), with removal of synovial plaque and patellar shaving (to remove uneven surface of bone). Then, in November, 1979, Dr. Percy performed remedial surgery (an Elmsley Trio procedure). Attached to the subsequent notice of claim status dated August 26, 1981 was Dr. Percy's closing report, stating:

I feel that [patient] should ... transfer his care to another doctor. I feel that I have been involved in this case now for over 3 years, feel that we have reached an end point as far as my treatment is concerned. I do feel that a fresh opinion on this might be to the [patient's] advantage. As to whether or not [more] knee surgery is required, I think this would depend on the surgeon who takes over his care. Frankly, at this stage I would not condone further surgery.... It is my opinion that this man has had repeated insults to his knee from injuries which were the result of industrial accidents.... When I saw him 3/79, I assessed 25% for functional loss of the [right] lower extremity....

As stated above, at that stage I do not feel that further surgery is indicated. It may be, however, that somewhere along the line in the future surgery will be contemplated. At this stage I would suggest that his case be reconsidered with surgery in mind but not until that time. (Emphasis supplied.)

The claim was then closed by award dated August 11, 1981, with a 25% impairment of the right leg.

In March of 1982, persistent symptoms caused claimant to consult with Melvin Roberts, M.D., an orthopedic surgeon who had previously seen him regarding his knee. Claimant was complaining of bilateral knee pain that was worse on the right than on the left side. Dr. Roberts noted that claimant had developed varus deformities (knock knee or inward turning), osteophytes (bone growths), sclerosis (tissue death) and joint space narrowing. He also stated that claimant was a candidate for a high tibial osteotomy (removal of bone from upper portion of the tibia). Claimant then returned to Dr. Fina, who had performed the initial surgery, but had not seen claimant for his knee since October, 1975. On April 14, 1982, Dr. Fina diagnosed osteoarthritis of the right knee with a gross genu varum and recommended arthroscopy (a diagnostic and remedial surgical procedure). After seeing Dr. Fina, claimant filed a petition to reopen the 1981 award. When this was denied by notice of claim status dated May 12, 1982, claimant requested a hearing.

In June, 1982, Dr. Fina performed the arthroscopic procedure which included a limited debridement of the knee, arthroplasty (joint restoration) and a proximal valgus tibial osteotomy (bone removal to permit the tibia to turn outward). In his petition to reopen, claimant seeks payment of medical expenses and wage benefits during the period of recuperation. He has not made a claim for increase in the award for loss of earning capacity. Hearings on the petition to reopen were held in October and November of 1982. Before the first scheduled hearing, claimant underwent an independent medical examination at the request of the State Compensation Fund. Robert Levitin, M.D., a specialist in occupational medicine, examined claimant and concluded that there had been no change in claimant's knee condition between the date of the last closing and the petition to reopen. However, Dr. Levitin stated that the surgery performed by Dr. Fina was a procedure to try to "correct and help to control so [claimant] would have less pain," and that "the degenerative process ... was ongoing." Dr. Levitin did not state that the surgery performed by Dr. Fina was medically inappropriate.

Dr. Fina testified that the claimant had osteoarthritis with bowlegged deformity caused, in part, by the 1975 industrial injury. In his opinion, claimant's condition had warranted surgery even in August, 1981, although he acknowledged that Dr. Percy had not considered surgery to be appropriate at that time. Dr. Fina attributed this difference of opinion to the fact that:

Dr. Percy doesn't have the capacity to do what I do, and as far as I know he still can't do it, so I think that his opinion was based on what he, you know, as a clinician does.... I am still one of the very few people around that will do an abrasion arthroplasty and valgus tibial osteotomy, particularly the way [claimant] had one.

Dr. Fina also testified that, when seen by him in 1982, claimant needed surgery.

The administrative law judge found an "evolution of medical opinion," from Dr. Percy's anticipation (in August, 1981) of the possibility that additional surgery might be recommended in the future, to Dr. Fina's opinion that claimant needed that surgery in April, 1982. The relevant finding of the administrative law judge is:

10. Where past medical opinion regarding possible future treatment of an applicant evolves from a tentative impression ("... that somewhere along the line in the future surgery will be contemplated") to a present definite conclusion ("That when I saw him in April, 1982 he was in need of active medical treatment consisting of surgery") reopening is justified. To hold otherwise would not only deny the applicant benefits to which he is entitled, but also those who have their cases closed after initially refusing surgery and subsequently reconsidered as well as future follow up procedures such as plates and pins [cite omitted].

The ALJ made an award reopening the claim. On administrative review, the award was affirmed as fully supported by the evidence. The employer and carrier sought review by special action to the court of appeals. See A.R.S. § 23-951. The court of appeals set aside the award in a memorandum opinion. Claimant petitions for review of that decision by this court.

NATURE OF THE REOPENING PROCEDURE

The reopening provision of Arizona's Workers' Compensation Act provides in part:

An employee may reopen his claim to secure an increase or rearrangement of compensation or additional benefits by filing with the commission a petition requesting the reopening of his claim upon the basis of new, additional or previously undiscovered temporary or permanent condition....

A.R.S. § 23-1061(H) (emphasis added). The vehicle of reopening is designed to mitigate the harsh consequences of general res judicata principles, which would preclude any reexamination of an applicant's claim once it has been litigated and finally closed. Pascucci v. Industrial Commission, 126 Ariz. 442, 616 P.2d 902 (App.1980); Garrote v. Industrial Commission, 121 Ariz. 223, 589 P.2d 466 (App.1978). In the workers' compensation setting, the doctrine of res judicata operates to bar relitigation of those issues which were determined in the previous proceedings as well as those which could have been decided at the time of the original award. Noble v. Industrial Commission, 140 Ariz. 571, 683 P.2d 1173 (App.1984). However, there is a basic difference in the application of res judicata principles in ordinary proceedings and in workers' compensation cases. This difference is reflected in the reopening provisions. Pascucci v. Industrial Commission, 126 Ariz. at 444, 616 P.2d at 904. There are no comparable provisions in ordinary civil law to correct prior omissions and update judgments. ¹ Further, while rules in ordinary civil cases permit a party to recover damages based on the possibility or probability of the need for future treatment, there is no provision in workers'...