Wyckoff v. Industrial Com'n of Arizona

• Decision Date: 12 September 1991
• Docket Number: No. 1,CA-IC,1
• Citation: 169 Ariz. 430,819 P.2d 1016
• Parties: Richard WYCKOFF, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Mitchell Electric, Respondent Employer, Fremont Indemnity Company, Respondent Carrier. 90-107.
• Court: Arizona Court of Appeals

Page 1016

819 P.2d 1016

169 Ariz. 430

Richard WYCKOFF, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Mitchell Electric, Respondent Employer Fremont Indemnity Company, Respondent Carrier.

No. 1 CA-IC 90-107.

Court of Appeals of Arizona Division 1, Department E.

Sept. 12, 1991.

[169 Ariz. 431] Taylor & Schaar by Don F. Schaar, Phoenix, for petitioner.

Anita R. Valainis, Chief Counsel, Indus. Com'n of Ariz., Phoenix, for respondent.

Jones, Skelton & Hochuli by Terrence Kurth, Phoenix, for respondents Employer and Carrier.

OPINION

CLABORNE, Presiding Judge.

This is a special action review of an Arizona Industrial Commission award terminating temporary benefits with a 20% scheduled disability compensated at 75% of the average monthly wage and denying reopening of the claim. Because the disability classification should have been unscheduled and insufficient evidence supported denial of reopening, we set aside the award.

I. FACTUAL AND PROCEDURAL HISTORY

In 1977, after serving some twenty-two years in the United States Marine Corps, petitioner employee (claimant) was involuntarily discharged because of a 10% military disability because of asthma. He then was forty-one years old. After the discharge, claimant never was refused civilian employment because of the asthma, but he voluntarily quit one job constructing boats in 1978 because of intolerance to fiberglass dust.

In 1984, while working as an electrician, claimant injured his left knee. Respondent carrier (Fremont) accepted compensability. Claimant was then earning $8.00 an hour and about $1,385.00 a month. His average monthly wage was established at the statutory maximum ($1,325.00). See A.R.S. § 23-1041.

Treatment for this injury included four left knee surgeries. In March 1987, the treating physician, Dr. Edward Campbell, Jr., an orthopedic surgeon, reported that the left knee was stationary with a 20% permanent impairment. Fremont then terminated temporary benefits with the recommended impairment and a scheduled disability. Claimant protested, asserting, among other things, that the disability should be unscheduled.

Hearings ensued. Claimant testified that he intended to remain in the Marine Corps, but that his asthma disability cut short his career. Claimant sought to testify about his pay rate in the service, but the Administrative Law Judge (A.L.J.) excluded this testimony. He also excluded testimony about claimant's general reaction to dust.

The A.L.J. issued an award for a 20% scheduled disability. On appellate review, this court set aside the award. See Wyckoff v. Industrial Comm'n, 1 CA-IC 88-130 (App. April 20, 1989) (memorandum decision). Because Fremont did not argue that a disability for military service is legally insufficient to establish an earning capacity disability, the court did not address this issue. Rather, the court concluded that the A.L.J. had misevaluated the factual sufficiency of the evidence:

If any actual or potential effect on employability constitutes an earning capacity disability, the evidence that the asthma disabled claimant from military service and the boat-making job obviously satisfies this standard. If, however, the standard is one of fact, the administrative law judge erred by excluding evidence relevant to this factual determination. Claimant was not permitted to testify concerning how dust affects his asthma. Without this evidence, the administrative law judge could not accurately assess the potential effects of the asthma on claimant's earning capacity.

Id., slip op. at 14 (citation and footnotes omitted).

Pending a de novo hearing on permanent disability, claimant filed a petition to reopen the claim. Fremont denied reopening, and claimant protested this denial. The permanent disability and reopening issues were then consolidated for hearing.

At the hearings, claimant, a labor consultant, and two medical experts testified. Claimant reiterated that his asthma ended his military career and he received a 10% military disability. Although the asthma was diagnosed some fourteen years before the discharge, it first affected his fitness for Marine Corps service in 1977, solely because he was unable to perform a fitness test which included a three-mile run. This physical fitness standard related to combat readiness.

Regarding his earning capacity, claimant testified that he earned approximately $1,200.00 a month as a gunnery sergeant in 1977 and would have earned some $2,300.00 a month as a gunnery sergeant in 1984. In contrast, his civilian earning capacity had been about $5.00 an hour in 1977 and $8.00 an hour in 1984. He acknowledged that he was earning more when injured than he had ever earned before.

Claimant also testified that he took nonprescription medication for his asthma and that he was sensitive to dust. However, there was no testimony concerning whether dust affected his asthma. After the industrial injury, he could not climb three and one-half hours a day, kneel an hour a day, or stand three and one-half hours a day as required by his date of injury employment. Finally, he testified that since the closure of his claim, his knee symptoms had progressively and substantially worsened.

The labor consultant conceded that claimant's asthma disabled him from serving as a Marine. But he testified that a military disability concerned combat readiness and did not equate to an inability to perform civilian work. He also testified that the Marines have a higher standard than other military services. In his opinion, claimant's 10% military disability did not limit his earning capacity in the "open labor market."

Dr. Campbell agreed that claimant was disabled from the climbing, kneeling, and standing required by his date-of-injury employment. He also testified that the left knee condition had deteriorated since March 1987. Dr. Campbell related this worsened condition to the industrial injury and recommended additional surgery to treat what he described as uncommonly rapid degeneration.

Dr. Gerald Moczynski, a former military doctor, testified that military disability ratings are more stringent than disability ratings under the AMA Guidelines. Regarding claimant's current condition, Doctor Moczynski acknowledged that X-rays revealed osteopenia, but he was not questioned about the cause of this condition. He also diagnosed chrondromalacia, a precursor to arthritis, but he found no evidence of actual osteoarthritis. Dr. Moczynski disagreed that these findings warranted additional surgery or other active care. He again rated a 20% permanent impairment, which included pain, loss of motion, atrophy, and chrondromalacia, but did not include the claimant's ability to work. The A.L.J. then issued the award. First, he rejected claimant's claim for an unscheduled disability. The A.L.J. relied on the labor consultant's testimony that the military disability had not reduced claimant's earning capacity in the open labor market and claimant's testimony that he was earning more when injured than he had ever earned before, to conclude that claimant had failed to prove that his asthma resulted in a loss of earning capacity when the industrial injury occurred.

Second, the A.L.J. awarded a 20% scheduled disability but increased the rate of compensation from 50% to 75% of the average monthly wage. He concluded that although A.R.S. § 23-1044(B)(21) "was not effective until October of 1987 subsequent to the industrial injury involved in this matter, ... it represents a legislative intent to resolve the problem created by ... Dutra, and accordingly it is adopted by the undersigned as a resolution of this matter."

Third, the A.L.J. denied reopening. He accepted Dr. Moczynski's testimony and relied on it to conclude that claimant failed to prove "any new, additional or previously undiscovered disability or condition causally related to his industrial accident requiring further medical treatment...."

On administrative review, the A.L.J. affirmed the award without modification. Claimant then brought this special action.

II. DISCUSSION

On review, claimant asserts that his disability should have been unscheduled. He concedes that he had the burden of proving that his asthma was earning capacity disabling when the industrial injury occurred, but he argues that he satisfied this burden with the evidence that the asthma disabled him from continuing his military career and from working as a boat maker.

A disability within the schedule is nevertheless compensated according to actual lost earning capacity if it is a successive disability:

In case there is a previous disability, ... the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.

A.R.S. § 23-1044(E) (emphasis added). Successive disabilities are unscheduled because their cumulative effect is likely to be greater than the simple total of the disabilities added together. See Ossic v. Verde Central Mines, 46 Ariz. 176, 188, 49 P.2d 396, 401 (1935); see also Hoppin v. Industrial Comm'n, 143 Ariz. 118, 123, 692 P.2d 297, 302 (App.1984); 2 A. Larson, Workmen's Compensation Law § 58.24 (1989).

A previous disability need not be either work-related or within the schedule. See, e.g., Yanez v. Industrial Comm'n, 21 Ariz.App. 367, 519 P.2d 220 (1974) (military abdominal injury), (cited with approval in Borsh v. Industrial Comm'n, 127 Ariz. 303, 305, 620 P.2d 218, 220 (1980)). The disability may even be congenital or developmental. See, e.g., Adams Insulation Co. v. Industrial Comm'n, 163 Ariz. 555 559, 789 P.2d 1056, 1060 (1990) (innate low intelligence previous disability under A.R.S. § 23-1044(E)); Lewis v. Industrial Comm'n, 126 Ariz. 266, 269, ...