Cavco Industries v. Industrial Commission

631 P.2d 1094, 129 Ariz. 436, 1980 Ariz. App. LEXIS 721
CourtCourt of Appeals of Arizona
DecidedAugust 28, 1980
DocketNo. 1 CA-IC 2136
StatusPublished
Cited by3 cases

This text of 631 P.2d 1094 (Cavco Industries 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
Cavco Industries v. Industrial Commission, 631 P.2d 1094, 129 Ariz. 436, 1980 Ariz. App. LEXIS 721 (Ark. Ct. App. 1980).

Opinion

OPINION

WREN, Judge.

This Special Action — Industrial Commission challenges a determination by the hearing officer that the claimant, Irieda A. Minney, had sustained a permanent impairment to her left thumb, in addition to her left lower extremity, and was therefore entitled to receive compensation on an unscheduled rather than a scheduled basis. We set aside the award.

[437]*437Claimant suffered a fractured patella of her left leg and strained ligaments of the left thumb in an industrial accident on March 18,1974. Her claim for benefits was accepted by the carrier on April 16, 1974. Four years later, on April 14, 1978, the carrier issued notices of claim status which concluded that claimant had sustained a permanent injury to the left leg and that she was to be compensated on a scheduled basis. Claimant filed a Request for Hearing on April 24, 1978, alleging that she had also received a permanent injury to her thumb and that, because of the multiple sites of her injuries, compensation should be on an unscheduled basis. Hearings were held on August 22 and September 27, 1978, following which the hearing officer issued his Findings and Award for compensation on a scheduled basis, determining that the residuals of the industrial injury were confined to the lower left extremity. A Request for Review followed and on December 8,1978, the modified findings complained of in this special action petition were entered, under which the hearing officer modified his previous award by finding that claimant also had a five percent permanent partial impairment of her left thumb and was therefore entitled to an unscheduled award.

Petitioners assert the following issues:

1. That the Arizona Workmen’s Compensation Act no longer contains an objective articulated standard by which the existence or nonexistence of permanent impairment can be determined;
2. That the hearing officer failed to make findings that disposed of all the material issues; and,
3. That the testimony of Dr. Richard Morgan was not competent medical evidence to support the Modified Findings and Award.

The main thrust of petitioner’s argument is that under two recent decisions by the Arizona Supreme Court; Adams v. Industrial Commission, 113 Ariz. 294, 552 P.2d 764 (1976), Smith v. Industrial Commission, 113 Ariz. 304, 552 P.2d 1198 (1976), the language of Rule 13(d)1 of the Rules of Procedure for Workmen’s Compensation Hearings before the Industrial Commission of Arizona (A.C.R.R.R4-13-113(D)) has been so diluted that there no longer exists a definable standard by which the existence or nonexistence of permanent impairment can medically be determined. Petitioners correctly point out that prior to Smith and Adams an employee had a permanent impairment only if it was ratable under the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides). Now, they claim, confusion exists as to whether a rating of permanent impairment must be premised upon some published or recognized criteria, or whether it can be predicated only upon the “personal belief” of the examining physician. They point to the fact that Dr. Morgan, and also the hearing officer in adopting the opinion of Dr. Morgan as to a five percent impairment rating of claimant’s thumb, made no reference to any rating guide, and that the findings of the hearing officer thereby failed to address a material issue as required by Garcia v. Industrial Commission, 26 Ariz.App. 313, 548 P.2d 26 (1976).

In Adams v. Industrial Commission, a case involving a hearing loss, the Supreme Court held that Rule 13(d):

... must be so interpreted that the AMA Guides apply exclusively to the evaluation of permanent impairment to the extent that the AMA Guides cover the specific impairment and the percentage thereof. Beyond this, Rule 13(d) has no application. 113 Ariz. at 295, 296, 552 P.2d at 765, 766.

[438]*438In so holding the court approved the use of a Department of Labor Guide, described by medical testimony as being more accurate than the AMA Guides in rating the percentage of hearing loss. The court quoted from the AMA Guides that their purpose under Chapter VIII (ear, nose, throat and related structures) was “to assist physicians by providing criteria for use in evaluating permanent impairment ... and ... to determine the corresponding percentage of permanent impairment in the terms of the whole man.” 113 Ariz. at 295, 552 P.2d at 765.

In Smith v. Industrial Commission, where subjective complaints of back pain could not be substantiated by the AMA Guides, the court decided that “petitioner must be given the opportunity to be rated by other criteria.” 113 Ariz. at 307, 552 P.2d at 1201.

Although the issue raised here was apparently not before the court in Chavez v. Industrial Commission, 118 Ariz. 141, 575 P.2d 340 (App.1978), (review denied), an attack on a physician’s failure to rely on the AMA Guides, as being required by Rule 13(d) and Adams v. Industrial Commission, was turned aside by this court with the following language:

Adams only requires that the AMA Guides be used to the extent that they cover the specific impairment and provide a percentage rating therefor. None of the physicians who testified felt that AMA Guides were useful in a situation such as this where there has been a re-entry into the same surgical level as was involved in petitioner’s 1966 industrial injury. We agree and decline to require medical practitioners to follow the guides where there is unanimity that they are inapplicable to the problem in question. 118 Ariz. at 144, 575 P.2d at 343.

The opinion which affirmed an award of no disability noted that one of the medical experts who had testified stated that he would not rate the impairment at more than 15 percent. However, the opinion was silent as to the use of any other guide.

Against this backdrop we analyze the medical record before us. Dr. Morgan related that he made no measurements pursuant to the AMA guidelines in regard to rating claimant’s left thumb. However, he testified that in determining the nature and extent of her impairment, he relied on x-rays taken on April 4, 1978, the general nature of the injury, the patient’s complaint of pain when she gripped her with her hand, and degenerative changes of the IP joint. He explained that his findings were not based on any loss of motion in the thumb, and that the AMA Guides relating to the thumb concerned themselves solely with the loss of motion. In his words the AMA Guides were:

... very non-specific as far as anything else. They grade it up five percent for muscle loss and what have you, and basically you end up with your experience with some of these when you get out of the loss of motion, so you try and stay with the AMA for loss of motion, and when you have muscle loss or sensory loss or degenerative arthritis developing, then you have to use your experience and sort of — you have to sort of get out of the AMA Guidelines.

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Related

State ex rel. Juvenile Department v. Wick
644 P.2d 603 (Court of Appeals of Oregon, 1982)
Cavco Industries v. INDUS. COM'N OF ARIZ.
631 P.2d 1087 (Arizona Supreme Court, 1981)

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Bluebook (online)
631 P.2d 1094, 129 Ariz. 436, 1980 Ariz. App. LEXIS 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cavco-industries-v-industrial-commission-arizctapp-1980.