Walters v. Industrial Com'n of Arizona, 1
| Decision Date | 21 December 1982 |
| Docket Number | CA-IC,No. 1,1 |
| Citation | 134 Ariz. 597,658 P.2d 250 |
| Parties | Charles WALTERS, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Desert Drywall, Respondent Employer, The Western Fire Insurance Company, Respondent Carrier. 2720. |
| Court | Arizona Court of Appeals |
This review of an Industrial Commission award requires a determination of whether in an impairment rating setting an Administrative Law Judge may completely disregard a medical opinion because it fails to consider subjective pain.
In August 1979, the petitioner, Charles Walters, a drywall construction worker, sprained his ankle at work. His claim for workers' compensation benefits was accepted. He was referred to Richard Toll, M.D., an orthopedic surgeon, for treatment. Dr. Toll performed a tenodesis to remedy lateral weakness in the ankle. After surgery, the claimant reported persistent pain and Dr. Toll observed swelling and synovial thickening. He discharged the petitioner from medical treatment on December 23, 1980, with a 40% permanent impairment of the left leg.
In February 1981, the respondent carrier arranged a group medical consultation. The consultants concluded that the industrial injury was medically stationary and that it had caused a 20% permanent impairment of the left leg.
Relying on this report, the carrier issued a notice of claim status terminating temporary compensation with a scheduled 20% permanent impairment of the left leg. This notice was protested and hearings were scheduled. Pending the scheduled hearings, at the carrier's request, Warren D. Eddy, M.D., an orthopedic surgeon, examined the petitioner to evaluate his impairment. Dr. Eddy concluded that the industrial injury had caused a 10% permanent impairment of the left leg.
At the scheduled hearings, the petitioner, Dr. Toll, John Wright Cortner, M.D., an orthopedic surgeon and one of the group consultants, and Dr. Eddy appeared.
The medical testimony relating to the percentage of impairment to the left leg may be summarized as follows: Dr. Toll found a 40% impairment--20% related to objective findings under the AMA Guides and 20% related to subjective pain. The group consultants, testifying through Dr. Cortner, found a 20% objective impairment under AMA Guides, but did not consider subjective complaints or give an impairment rating based upon subjective pain. Dr. Eddy found a 10% impairment--7% related to objective findings and 3% attributable to subjective pain.
The Administrative Law Judge issued an award finding that the claimant had a 10% permanent impairment of the left leg that entitled him to scheduled permanent partial disability. The dispositive finding was as follows:
9. Inasmuch as the group consultants did not consider the applicant's subjective complaints of pain in arriving at their rating of impairment, it is not felt that their opinion should be given consideration, ... The opinions of the only two physicians who took into consideration the applicant's subjective complaints of pain in arriving at their rating of impairment are in conflict. This conflict is resolved by the adoption of Dr. Eddy's opinion as being more probably correct.
This award was affirmed on administrative review. This special action followed.
Claimant first argues that based upon the humanitarian aspects of the Workers' Compensation Law, we should adopt a rule that would require administrative law judges to give greater weight to the opinions of board certified treating physicians than that of a doctor who examines the claimant only once. Since this argument has been urged in other Workers' Compensation cases, but rejected in memorandum decisions of this court, we now feel the reasons for this rejection should be fully stated. We start with the long standing rule in this jurisdiction that where there is a conflict between the opinions of equally qualified medical experts concerning the source of or the extent of a worker's disability, the judiciary will not require the Industrial Commission to accept one opinion over the other. Condos v. Industrial Commission, 92 Ariz. 299, 376 P.2d 767 (1962). This rule is founded historically upon the human experience that the trier of fact, with live bodies before it, is in the most advantageous position to weigh the evidence, judge credibility, and evaluate the nuances of witness demeanor that adds up to a conviction that one witness' testimony is entitled to more weight than another. Added to this historical perspective is the statutory authorization granted to administrative law judges to determine all issues affecting compensation under the Act, see A.R.S. §§ 23-941 and 942, and limiting judicial review of those determinations to ascertaining whether "if findings of fact were made, whether or not such finding of fact supports the award...." A.R.S. § 23-951(B).
Claimant would impose a limitation upon this wide-ranging search for the truth by requiring a per se rule that certain types of witnesses are to receive greater credence than others. The Federal 6th Circuit Court of Appeals adopted such a per se rule in social security cases in Allen v. Califono, 613 F.2d 139, 145 (6th Cir.1980).
In determining the question of substantiability of evidence, the reports of physicians who have treated a patient over a period of time or who are consultants for purposes of treatment are given greater weight than are reports of physicians employed and paid by the government for the purposes of defending against a disability claim.
However, even the cases cited by Allen in support of that proposition do not so hold. In Whitson v. Finch, 437 F.2d 728 (6th Cir.1971) the holding was that a claimant may establish a prima facie case of disability by the presentation of a treating physician's testimony and that such a case is not overcome by a medical expert who is not prepared to commit his professional opinion as to whether the claimant is capable of working. Likewise, in Giddings v. Richardson, 480 F.2d 652 (1973) cited in Allen, the holding was that inconclusive medical discussions of the claimant's problems were insufficient to overcome the prima facie case established by the claimant's treating physicians.
These two authorities are a far cry from the per se rule adopted in Allen. (Also see another 6th Cir. case, Miracle v. Celebrezze, 351 F.2d 361 (6th Cir.1965), holding that a hearing examiner may not rely on "an isolated remark in a medical report"...
To continue reading
Request your trial
-
Hackworth v. Indus. Comm'n of Arizona, 2 CA–IC 2011–0014.
...a conflict in the evidence. See Rahar v. Indus. Comm'n, 94 Ariz. 170, 175, 382 P.2d 656, 658–59 (1963); Walters v. Indus. Comm'n, 134 Ariz. 597, 600, 658 P.2d 250, 253 (App.1982); Harbor Ins. Co. v. Indus. Comm'n, 25 Ariz.App. 610, 612, 545 P.2d 458, 460 (1976); Marquez v. Indus. Comm'n, 18......
-
State v. Vess
...647 P.2d 624 (1982); Matter of Pima County Juvenile Action No. 63212-2, 129 Ariz. 371, 631 P.2d 526 (1981); Walters v. Industrial Commission, 134 Ariz. 597, 658 P.2d 250 (App.1982). We recognize that the primary purpose of the confrontation clause is to secure to a defendant the ability to ......
-
Richardson v. Indus. Comm'n of Ariz.
...recognized that an ALJ is not required to give greater weight to the testimony of the treating physician. Walter v. Indus. Comm'n, 134 Ariz. 597, 599, 658 P.2d 250, 252 (App. 1982).¶17 Dr. Pitt is a board certified orthopedic surgeon and a fellowship trained spine surgeon. He examined the c......
-
Foods v. the Indus. Comm'n of Ariz.
...¶13 "Equivocal" medical testimony cannot support a finding that a claimant's condition is non-stationary. Walters v. Indus. Comm'n, 134 Ariz. 597, 600, 658 P.2d 250, 253 (1982). Testimony is "equivocal" if it is subject to two or more interpretations or if the expert avoided committing to a......