W.A. Krueger Co. v. Industrial Com'n of Arizona

• Decision Date: 10 June 1986
• Docket Number: No. 18539-PR,18539-PR
• Citation: 722 P.2d 234,150 Ariz. 66
• Parties: W.A. KRUEGER COMPANY, Petitioner Employer, Fidelity & Casualty Company of New York c/o Underwriters Adjusting Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Christopher J. Puma, Respondent Employee.
• Court: Arizona Supreme Court

Page 234

722 P.2d 234

150 Ariz. 66

W.A. KRUEGER COMPANY, Petitioner Employer, Fidelity & Casualty Company of New York c/o Underwriters Adjusting Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Christopher J. Puma, Respondent Employee.

No. 18539-PR.

Supreme Court of Arizona, In Banc.

June 10, 1986.

Lewis and Roca by Merton E. Marks, Phoenix, for petitioners.

Dennis P. Kavanaugh, Chief Counsel, Phoenix, for Indus. Com'n.

R.Y. Thrasher, Phoenix, for respondent Puma.

HAYS, Justice.

This petition for review arises from an opinion of the Court of Appeals, affirming an award to Christopher J. Puma (respondent) by the Arizona Industrial Commission. W. A. Krueger Co. and Fidelity & Casualty Company of New York v. Industrial Commission of Arizona and Christopher J. Puma, 1 CA-IC 3261 (filed March 19, 1986). We accepted review and have jurisdiction pursuant to art. 6, § 5(3) of the Arizona Constitution, A.R.S. § 12-120.24, and Rule 23, Ariz.R.Civ.App.P., 17A A.R.S.

The facts are undisputed. On August 22, 1982, respondent herniated a cervical disc in a work-related accident. His claim for worker's compensation benefits was accepted and he was seen by several physicians. One of these physicians, Dr. Paul LaPrade, a neurosurgeon, subsequently performed a diskectomy to decompress the left C-7 nerve. Dr. LaPrade testified that, from a medical viewpoint, the surgery was successful, despite some complaints of continued pain from respondent.

Based on his examinations of respondent, it was Dr. LaPrade's opinion in late March, 1983, that respondent could return to normal work within two months. Dr. LaPrade informed respondent of his opinion and shortly thereafter, respondent began to complain of severe and disabling neck pain. Dr. LaPrade ran a battery of tests to determine the cause of this pain. The test results, however, were all normal.

In June, 1983, Dr. LaPrade was shown surveillance films of respondent performing a variety of physical activities. Dr. LaPrade testified that in his opinion respondent "performed these duties without any apparent difficulty, and he moved his neck in what I had interpreted to be a normal range of motion...." He further stated that the film was in direct contradiction to how respondent behaved during his examinations: "Well, during the office visits he would barely move his head in any direction at all; just minimal movement to the right and to the left, ... five to ten degrees."

After viewing these films, Dr. LaPrade discharged respondent without permanent disability. Based on this action, the insurance carrier issued a notice of claim status closing the claim. Respondent protested this decision and a hearing was held.

At this hearing, Dr. LaPrade testified that respondent's physical condition was "stationary." He stated that although the AMA Guides provided a 5% permanent impairment for the surgical removal of a disc, without residual effects, the Guides were simply that--guides. It was his opinion that, in this case, the recommended rating was too liberal. Another surgeon, Dr. Joseph Gimble, also examined respondent and testified that he was unable to diagnose the cause of respondent's discomfort. Although he deferred to Dr. LaPrade's rating of respondent's impairment, he agreed with Dr. LaPrade's characterization of the AMA Guides as merely guidelines.

Following the hearing, the administrative law judge (ALJ) issued an award closing the claim without permanent impairment. This ALJ subsequently resigned, however, and respondent's request for administrative review was assigned to another ALJ. On review, the new ALJ concluded that, despite the evidence, the AMA Guides must be followed when applicable. Accordingly, he issued an award based on a 5% permanent impairment. The Court of Appeals affirmed the award. Petitioner contends that such an interpretation of the role that the AMA Guides play in rating an impairment is too restrictive. We agree.

Shortly after accepting jurisdiction in the present case, this court rendered its opinion in Gomez v. Industrial Commission, 148 Ariz. 565, 716 P.2d 22 (1986). In Gomez, a worker with a rated 30% permanent partial loss of use of his left leg claimed that he was entitled to a scheduled 100% disability because he could no longer perform his prior employment. Unlike the present case, however, all the doctors agreed that the AMA Guides did, in fact, provide an accurate measure of the claimant's impairment. In finding that the ALJ did not err in basing his award on the 30% impairment provided by the Guides, this court stated:

The...