A.J. Goulder Electric v. Industrial Commission

928 P.2d 687, 187 Ariz. 263, 218 Ariz. Adv. Rep. 5, 1996 Ariz. App. LEXIS 119
CourtCourt of Appeals of Arizona
DecidedJune 4, 1996
DocketNo. 1 CA-IC 94-0078
StatusPublished
Cited by4 cases

This text of 928 P.2d 687 (A.J. Goulder Electric v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.J. Goulder Electric v. Industrial Commission, 928 P.2d 687, 187 Ariz. 263, 218 Ariz. Adv. Rep. 5, 1996 Ariz. App. LEXIS 119 (Ark. Ct. App. 1996).

Opinion

OPINION

FIDEL, Judge.

In the course of consolidated Industrial Commission hearings on a new injury claim and petition to reopen a closed earlier claim, Claimant and the new injury carrier reached a settlement, which the reopening carrier declined to join. At the request of the settling parties, but over the objection of the reopening carrier, the administrative law judge (“ALJ”) approved the settlement and dismissed both the Claimant’s protest of termination of the new injury claim and his protest of denial of reopening of the prior injury claim. Although denial of reopening would thereby become final, the reopening carrier nonetheless objects. The reopening carrier is aggrieved, it maintains, because dismissal of the consolidated underlying proceedings frustrates its opportunity to invoke the successive injury doctrine and shift responsibility to the new injury carrier.

The question presented on review is whether, under the circumstances, the reopening carrier’s consent was necessary to the other parties’ settlement and to dismissal of the consolidated hearing. For the reasons that follow, we hold that it was not.

I.

In November 1987, while working as an electrician for the Petitioner Employer [265]*265(“Goulder”), Claimant injured his lower back. Petitioner Carrier (“Fremont”) accepted this first injury claim, and the Commission established an average monthly wage of $1,325.00, then the statutory maximum. See Ariz.Rev. Stat. Ann. (“AR.S.”) § 23-1041(E)(l). In August 1988, Claimant had a lumbar discectomy at L4-5 to treat the first injury. Although he later returned to work as an electrician, he required active medical care until September 1991. Fremont then terminated the first injury claim with a 10% permanent impairment, the Commission found no loss of earning capacity, Claimant did not object, and the “no-loss” determination became final. See AR.S. § 23-947.

In October 1992, while working as an electrician for Respondent Employer (“Atlantic”), Claimant reinjured his lower back. Respondent Carrier (“CNA”) accepted this second injury claim, and the Commission established an average monthly wage of $2,100.00, the higher statutory maximum effective by that date. See AR.S. § 23-1041(E)(4). In January 1993, CNA terminated the second injury claim without permanent impairment, and Claimant requested a hearing.

Thereafter, in short order, Claimant petitioned to reopen the first injury claim, Fremont denied reopening, Claimant requested a hearing, and, upon Claimant’s request, the ALJ consolidated the two claims.

At the initial consolidated hearing, Claimant was the single witness. Claimant testified that, despite some ongoing symptoms, he had worked regularly as an electrician after the first injury and surgery; that his symptoms had significantly worsened after the second injuiy; that he was limited to lighter work; and that he had experienced resulting episodic unemployment. Claimant also testified that his current treating physicians had recommended a spinal fusion, which he would undergo if coverage with either carrier were confirmed.

At the close of the first hearing, further hearings were intended. Before the next scheduled hearing, however, Claimant’s counsel informed the ALJ that Claimant and CNA had settled their dispute and that Fremont, the reopening carrier, would not agree. Claimant’s attorney requested a conference to determine “whether or not the Administrative Law Judge can and will allow the applicant to withdraw his request for hearing against CNA and proceed unilaterally against Fremont.”

There is no written record of such a conference. The parties represent, however, that such a conference was conducted. And Fremont represents without contradiction that it objected to approval of the settlement agreement; contends that, in these consolidated proceedings, Fremont and Goulder were “real-parties-in-interest” to the new injury claim; and maintains that neither claim could be compromised without its consent.

The ALJ issued no immediate post-conference rulings. Thereafter, however, CNA moved to sever the new injury and reopening claims, and Claimant submitted an executed agreement to the ALJ for approval. In the agreement, the parties acknowledged medical conflict over the question whether the second injury had temporarily or permanently aggravated Claimant’s preexisting lower back condition; Claimant did not oppose CNA’s position that the effect of the second injury was temporary and that any present or future symptoms were unrelated to the second injury; and CNA agreed to pay Claimant $42,500.00. The agreement further provided that, if the ALJ approved the settlement, Claimant would withdraw his protest of CNA’s termination of the second injury claim and his protest of Fremont’s denial of reopening of the first injury claim. Finally, the Claimant and CNA recognized within the agreement that it would “not have binding effect on any person or persons not a signatory hereto.”

On December 22, 1993, the ALJ issued a consolidated award approving the compromise and settlement agreement and dismissing both hearing requests. The award did not address CNA’s motion to sever or Fremont’s argument that the ALJ could not approve the settlement agreement without Fremont’s consent. Fremont timely requested administrative review. In a response adopted by Claimant, CNA again moved to sever the two claims. A substitute ALJ is[266]*266sued a consolidated decision summarily affirming the award without addressing the motion to sever. Fremont filed a timely special action petition in this court.

II.

The successive injury doctrine drives this dispute. Only in considering that doctrine can one examine Fremont’s motivation to appeal from the Commission’s dismissal of the Claimant’s protest of Fremont’s denial of reopening.

The successive injury doctrine, a rule of liability preference, attributes unapportioned liability to the last responsible injury. E.g., Pearce Dev. v. Industrial Comm’n, 147 Ariz. 598, 602, 712 P.2d 445, 449 (App.1985), approved in pertinent part, 147 Ariz. 582, 582, 712 P.2d 429, 429 (1985). The doctrine applies, however, only when a claimant has elected to file more than one claim; it does not establish a new injury defense when a claimant has filed solely a petition to reopen. See, e.g., id. at 602, 712 P.2d at 449; see also, e.g., Dr. Pepper Co. v. Industrial Comm’n, 154 Ariz. 563, 566-67, 744 P.2d 475, 478-79 (App.1987).

In O’Donnell v. Industrial Comm’n, 125 Ariz. 358, 362, 609 P.2d 1058, 1062 (App.1979), this court expressly conditioned the successive injury doctrine upon a claimant’s election. Later, in Pearce, we reiterated the point:

O’Donnell merely creates an exclusive option. The claimant may choose to petition to reopen or file a new injury claim, or both. The facts may support one or the other remedy or both. If the facts support both remedies, the claimant alone has the option of selecting between them.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kaibab Industries v. Industrial Commission
2 P.3d 691 (Court of Appeals of Arizona, 2000)
Lay v. Industrial Commission
993 P.2d 1098 (Court of Appeals of Arizona, 1999)
Holsum Bakery v. Industrial Commission
955 P.2d 11 (Court of Appeals of Arizona, 1997)
AJ Goulder Elec. v. INDUS. COM'N
928 P.2d 687 (Court of Appeals of Arizona, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
928 P.2d 687, 187 Ariz. 263, 218 Ariz. Adv. Rep. 5, 1996 Ariz. App. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aj-goulder-electric-v-industrial-commission-arizctapp-1996.