State Compensation Fund v. Industrial Commission, 1

• Decision Date: 06 May 1975
• Docket Number: No. 1,CA-IC,1
• Citation: 24 Ariz.App. 31,535 P.2d 623
• Parties: STATE COMPENSATION FUND and Pima County Board of Supervisors, Petitioners, v. INDUSTRIAL COMMISSION of Arizona, Respondent, Lloyd W. Fickett, Respondent Employee. 1183.
• Court: Arizona Court of Appeals

Page 623

535 P.2d 623

24 Ariz.App. 31

STATE COMPENSATION FUND and Pima County Board of Supervisors, Petitioners, v. INDUSTRIAL COMMISSION of Arizona, Respondent Lloyd W. Fickett, Respondent Employee.

No. 1 CA-IC 1183.

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

May 6, 1975.

Rehearing Denied June 4, 1975.

Review Denied July 1, 1975.

Robert K. Park, Chief Counsel State Compensation Fund by Arthur B. Parsons, Phoenix, for petitioners.

Edward F. Cummerford, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Rabinovitz & Minker, P.C. by Bernard I. Rabinovitz, Tucson, for respondent employee.

NELSON, Presiding Judge.

On June 19, 1972, Lloyd W. Fickett (respondent) filed a claim with the State Compensation Fund (petitioner) for workmen's compensation benefits for an injury suffered by him in the course and scope of his employment as an Assistant County Attorney for the Pima County Board of Supervisors (employer). The State Compensation Fund denied the claim by Notice of Claim Status issued April 18, 1973. Respondent filed a timely request for hearing; hearings were held on December 13, 1973 and January 8, 1974, following which the hearing officer issued his Decision Upon Hearing and Findings and Award for Non-Compensable Claim. Thereafter respondent filed a Request for Review to which petitioner filed no response. On June 4, 1974, the hearing officer changed his award, issuing his Decision Upon Review Reversing Decision Upon Hearing for Non-Compensable Claim Entered On March 22, 1974, and Findings and Award for Compensable Claim. It is of the June 4, 1974 decision that petitioner seeks review.

The reversal on review by the hearing officer of his own prior decision forms the basis for petitioner's first question presented. Does failure to respond to a Request for Review constitute confession of error requiring reversal by the hearing officer of his decision? In the present case this question, if answered in the negative, raises a further question: must we set aside the decision of the hearing officer on review based on the assumption that the hearing officer reversed his decision because the State Compensation Fund failed to respond to the motion?

To the first part of this question, our answer is in the negative--failure to file a response to a request for review does not constitute a confession of error. A.R.S. § 23--943.A, pertaining to requests for review, was amended in 1973 to include the language 'Failure to respond will not be deemed an admission against interest.' While this language was not present in the statute at the time this claim was commenced (June 19, 1972), it was present at the time the Request for Review was filed (April 22, 1974). Inasmuch as A.R.S. § 23--943.A involved a matter of procedure, we view the statute as amended in 1973 to be applicable from the effective date thereof to all cases in which requests for review were filed thereafter. See Merchants Despatch Transp. Corp. v. Arizona State Tax Commission, 20 Ariz.App. 276, 512 P.2d 39 (1973); Miami Copper Co. v. State, 17 Ariz. 179, 149 P. 758 (1915); A.R.S. § 1--244.

While we agree with the petitioner as to the issue of failure to respond to the Request for Review, we do not agree that the decision upon review must therefore be set aside on that basis. The petitioner urges that the following language ued by the hearing officer in his Decision Upon Review implies that improper reliance was placed upon the absence of a response:

'Thereafter, although entitled to so do, neither the insurance carrier no the employer filed a response to said Request for Review.'

We note that the language used was 'entitled' as opposed to 'required'. This language does not create any such clear inference as the petitioner suggests. Other language used in the Decision Upon Review supports a contrary conclusion as to the rationale behind the decision of the hearing officer:

'This hearing officer, Having fully reconsidered the file, records and all matters hereunto appertaining, including the Request for Review and Memorandum filed by the applicant on April 22, 1974, now enters Decision Upon Review. . . .' (Emphasis added)

and further:

'Whereas, in the original Decision in this case the Hearing Officer interpreted the medical testimony to indicate a conflict, it is apparent upon reconsideration that there is no real conflict in medical evidence.'

These statements indicate that the hearing officer did not base his decision upon any mistaken view that the petitioner was confessing error by not responding to the Request for Review, but upon the fact that he now believed that there was no conflict in the medical testimony.

The second and greater question here is whether respondent's heart problems were causally related to an injury by accident within the meaning of Arizona Workmen's Compensation Law. To determine this issue we need to consider the factual setting as found by the hearing officer:

'2. The applicant began his employment with Pima County as an attorney in January of 1968 and was assigned to the Pima County Juvenile Court Center. In December of 1969 his duties at the Juvenile Center were reduced to three days a week and he was assigned to spend Thursday and Friday of each week in County Attorney duties at Ajo, Arizona, some 130 miles west of the City of Tucson. The applicant would work the first three days of each week at the Juvenile Center in Tucson and on Thursday morning he would depart for Ajo and return to Tucson either Friday night or Saturday morning. Transportation to and from Ajo was by county-owned vehicle driven by him. The applicant continued to work in this manner from December 1969 until November 1971 when his duties at Ajo were terminated. On February 19, 1971, a Friday, the applicant had departed Ajo for Tucson at approximately 9:00 p.m. At an intersection of the highways known as Three Points some twenty-two miles west of the City of Tucson, the applicant was involved in a one-car accident, in which a pedestrian was killed. Investigations of this accident by the County Attorney's Office, the Department of Public Safety and by the State Attorney General's Office lasted from two to three months. The applicant states that he was advised that the case was being investigated for possible felony manslaughter charges against him.

'3. The applicant had originally scheduled his monthly vacation for 1971 for the month of July. During May of 1971, he felt tired and exhausted and requested that his vacation be changed from July to June. He began his vacation on or about June 1, 1971, and except for two days, June 24 and 25, Thursday and Friday, when it was necessary for him to appear in a Superior Court case in Ajo, he continued his vacation until the end of the month. The applicant's first difficulty that he relates to the alleged industrial injury occurred on Monday night, June 21, 1971. Some time during that night he woke up and states that he was in terrible pain and had a difficult time breathing.

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'On Wednesday, June 24, 1971 . . . he had pains in the chest, arms and leg and had a difficult time breathing. At that time, an appointment was made with his family physician, Simon Marcus, M.D., for the following Saturday, June 26, 1971. On Thursday, June 24, the applicant drove to Ajo, keeping his Superior Court appointments there and returned to Tucson Friday evening, June 25. He reported to Dr. Marcus on Saturday morning, June 26, 1971, where Dr. Marcus gave him a thorough examination, including electrocardiogram, fluroscopic (sic) examinations and blood tests. Since that time the applicant has had repeated bouts of chest pain and pain in the left arm which are relieved by nitroglycerin tablets and the use of oxygen which he keeps in his office and at home. In the latter part of December 1971, he was hospitalized at Tucson Medical Center and was in the intensive care unit for three days, following which he was discharged with the diagnosis of congestive heart failure.

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'5. The applicant's testimony indicates that he had no difficulty in his duties prior to the incident in which the pedestrian was killed. Following that episode, when he would pass the spot enroute to of from Ajo, he would become nauseated and would have what he described as 'the dry heaves.' The testimony of a deputy sheriff who worked with the applicant while at Ajo and the testimony of a court referee who worked with the applicant at the Juvenile Court Center corroborates the testimony of the applicant in that to them his health appeared to decline after the death of the pedestrian. . . .'

This set of facts seems to reveal a rather classic case of precipitous emotional trauma followed by a continuing period of stress, culminating in an injurious result becoming manifest at an ascertainable time. (The February 19, 1971 accident involving the death of the pedestrian, followed by stress from overwork, the anxiety of being under pressure for possible felony prosecution, resulting in the chest pains of June 21, 1971.) It is petitioner's position that these facts do not support a finding that respondent suffered an accident by injury, since the accident here was to the pedestrian, not to respondent, and the respondent suffered no injury as a result of that incident. Before reaching the question of causal connection between the February 21, 1971 incident and the disabilities respondent eventually came to suffer--always a difficult matter in heart cases, particularly when the results do not immediately follow the industrial event--we note that numerous jurisdictions have awarded workmen's compensation for heart injuries when the cause is mental, nervous, psychic or emotional rather than physical, holding that the resulting heart condition is an 'injury' within the meaning of the workmen's compensation statutes. See 1A, Larson's Workmen's Compensation Law, § 38.65.

Arizona is among that majority...