Alva v. Industrial Commission

750 P.2d 25, 156 Ariz. 82, 1987 Ariz. App. LEXIS 681
CourtCourt of Appeals of Arizona
DecidedMarch 26, 1987
DocketNo. 1 CA-IC 3504
StatusPublished
Cited by1 cases

This text of 750 P.2d 25 (Alva 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
Alva v. Industrial Commission, 750 P.2d 25, 156 Ariz. 82, 1987 Ariz. App. LEXIS 681 (Ark. Ct. App. 1987).

Opinion

[83]*83OPINION

CORCORAN, Judge.

This is a special action review of an Industrial Commission award finding that petitioner Angie Alva (claimant) had a scheduled permanent partial impairment due to a 20% physical functional loss of the use of her right upper extremity. We must determine whether: (1) the administrative law judge (AU) correctly determined that claimant has a scheduled disability; and (2) whether the AU properly refused to issue a subpoena for a physical therapist who claimant had visited for therapy.

Claimant was injured in an industrial accident, and her claim was accepted by the carrier. Following multiple surgeries to her right hand and wrist, the carrier issued a notice of claim status which terminated temporary compensation and active medical treatment and stated that claimant’s condition was stationary with permanent disability. Claimant timely protested this notice. Claimant also timely protested the carrier’s notice of permanent disability benefits which indicated that she had a permanent scheduled disability to her right major arm.

A hearing regarding her protests was held. Pursuant to stipulation, the only issue to be determined was whether claimant had a scheduled or unscheduled impairment. Two board-certified orthopedic surgeons and claimant testified at the hearing. The AU declined to subpoena claimant’s physical therapist. In response to claimant’s counsel’s renewed request for a subpoena during the hearing, the AU stated that the testimony would be cumulative, and would not “carry more weight” than a physician’s testimony. Claimant’s physician, Leonard S. Bodell, M.D., testified that she should have surgery on her shoulder, but he also testified that “her [shoulder] abduction is essentially normal. There are a few degrees of limitation.” Dr. Bodell also stated that claimant’s left little finger was amputated when she was 4 years old, so that she lacks two phalanges on that pinkie. John H. Ricker, M.D., who examined claimant on behalf of the State Compensation Fund, testified that she did not require further medical treatment and confirmed his April 4, 1985 post-examination report that “[h]er shoulder motion is essentially normal except for slight loss of internal rotations.” Claimant also testified as to her pain and restriction in shoulder movement.

Exercising his prerogative to resolve conflicting medical testimony, Field v. Industrial Comm’n, 128 Ariz. 425, 626 P.2d 155 (App.1981), the ALJ, following Dr. Ricker’s opinion, determined that claimant’s condition was “medically stationary requiring no further treatment, that she sustained no impairment of the involved shoulder, and her permanent impairment is limited to the right upper extremity, i.e., a 20% physical functional loss of use thereof.”

The finding of a scheduled disability was affirmed by the Industrial Commission on December 19, 1985. This special action petition followed.

I. Scheduled Disability

The first issue presented for review is whether the AU properly determined that claimant has a scheduled disability. Generally a preexisting non-industrial injury, which would have been a scheduled injury if it were industrially related, unschedules a subsequent industrial, scheduled injury if the preexisting injury resulted in an earning capacity disability. Pullins v. Industrial Comm’n, 132 Ariz. 292, 645 P.2d 807 (1982). To argue that her industrial injury should be unscheduled, claimant relies on our supreme court’s statement that “[i]f the pre-existing injury was a non-industrially related scheduled injury, then there is a rebuttable presumption that it resulted in an earning capacity disability.” 132 Ariz. at 294, 645 P.2d at 809. Under A.R.S. §§ 23-1044(B)(5) and (7), claimant’s non-industrial loss of more than one phalanx of her left little finger would have been a scheduled injury, if it had been industrially related. Claimant asserts that this preexisting injury and the rebuttable presumption enunciated in Pullins were sufficient to unschedule the later injury, absent a rebuttal of the presumption. We disagree.

[84]*84In Alsbrooks v. Industrial Comm’n, our supreme court stated:

We do not believe that any physical impairment, the result of a prior non-industrial accident, is a “previous disability” for the purposes of Paragraph E [A.R.S. § 23-1044] unless there is some evidence, no matter how slight, that it is also an earning capacity disability. To hold that after a non-industrial injury, any physical impairment will convert a second scheduled injury into an unscheduled injury, would, in effect, do completely away with all scheduled injury awards since it is a rare person indeed who does not have some previous physical impairment as a result of some prior injury.

118 Ariz. 480, 483, 578 P.2d 159, 162 (1978).

Pullins did not overrule Alsbrooks or specifically disagree with the quoted language. Alsbrooks evinces a recognition that there is a difference between an earning capacity disability and a physical impairment which has no effect on the ability to earn or to engage in gainful employment. In Pullins, although the opinion spoke in terms of a rebuttable presumption, it also stated that “we believe the magnitude of the injury itself can operate to make the presumption conclusive. There are certain disabilities ... [that] are so severe that they must be considered an earning capacity disability. The loss of an eye has to be one of these disabilities.” 132 Ariz. at 295, 645 P.2d at 810. Thus, the carrier could not rebut the presumption that Pullins’ loss of an eye resulted in an earning capacity disability, thereby unscheduling his industrial injury.

At the other end of the spectrum from Pullins are cases in which it is obvious that a preexisting injury does not create an earning capacity disability, considering the nature of the claimant’s work. In those cases, a claimant’s preexisting, non-industrial injury should not create a presumption of lost earning capacity and thus not serve to unschedule a subsequent scheduled industrial injury. This is such a case. Claimant’s preexisting injury is the amputation of two phalanges of her left little finger when she was 4 years old, and her industrial injury is to her right arm. Claimant worked as a waitress at the time of her industrially-related injury. Without some showing by claimant, we cannot presume that the loss of part of a little finger affected claimant’s earning capacity at the time she suffered her industrial injury.

Claimant concedes that she made no attempt at her hearing to prove that the loss of part of her left little finger resulted in any loss of earning capacity. As claimant’s attorney conceded at oral argument, the record is devoid of any evidence which would indicate or from which we could infer any loss of earning capacity. Based on these facts, common sense dictates that the presumption that a previous non-industrial, scheduled-type injury results in a loss of earning capacity should not apply.

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Related

Alva v. Industrial Com'n of Arizona
750 P.2d 28 (Arizona Supreme Court, 1988)

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Bluebook (online)
750 P.2d 25, 156 Ariz. 82, 1987 Ariz. App. LEXIS 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alva-v-industrial-commission-arizctapp-1987.