Continental Casualty Co. v. Industrial Commission

521 P.2d 1019, 21 Ariz. App. 561
CourtCourt of Appeals of Arizona
DecidedSeptember 19, 1974
Docket1 CA-IC 939
StatusPublished
Cited by8 cases

This text of 521 P.2d 1019 (Continental Casualty Co. 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
Continental Casualty Co. v. Industrial Commission, 521 P.2d 1019, 21 Ariz. App. 561 (Ark. Ct. App. 1974).

Opinion

OPINION

STEVENS, Judge.

The issue presented on this writ of cer-tiorari is whether The Industrial Commission had the authority to grant the claimant “advanced partial permanent benefits” pending a formal loss of earning capacity hearing.

John W. Patterson (hereinafter “claimant”) suffered a heart attack while piloting an airplane for J. R. Norton Company (hereinafter “employer”). Thereafter, a blood clot resulting from the heart attack necessitated the amputation of claimant’s left leg. The subsequent award of The Industrial Commission stated that the injuries were not compensable. This Court set aside the award, holding that The Industrial Commission was required to make an express finding as to whether the injuries resulted from or were aggravated by an accident in the course of and arising from the claimant’s employment. Patterson v. Industrial Commission, 10 Ariz.App. 421, 459 P.2d 338 (1969). On 5 May 1970 The Industrial Commission entered an award finding the claimant’s injuries compensable. Continental Casualty Co. (hereinafter “Carrier”) objected and a hearing was held. On 20 November 1970 a Decision Upon Hearing and Findings and Award was filed by the Commission, which provided that the claimant recover “ * * * accident benefits (medical expenses) and compensation as may be indicated * * * This Court affirmed that award on 28 October 1971. Continental Casualty Co. v. Industrial Commission, 15 Ariz.App. 565, 489 P.2d 1267 (1971). On 7 March 1972 The Industrial Commission, having reviewed the record, issued an award stating that the claimant’s average monthly wage was $600 per month, that claimant was entitled to medical benefits from and after 7 January 1967 (the date of the heart attack), that claimant was entitled to temporary total compensation from 8 January 1967 through 31 December 1967, and temporary partial benefits from 1 January 1968 until his condition became stationary.

On 20 June 1972 The Industrial Commission issued an award which found that the claimant’s condition had become stationary, awarded the claimant specific amounts for his temporary total and temporary partial disabilities and reserved jurisdiction in the Commission to establish what effect the injuries had on the claimant’s earning capacity. The award included the following clause:

“10. That pending determination of applicant’s loss of earning capacity, if any, the applicant shall be advanced partial permanent benefits from March 1, 1972, until further order of the Commission, on the basis of not more than 55% of the difference between the average monthly wage and $300.00 per month, or the actual amount earned if in excess of $300.00, such payments to be deductible from any future additional benefits which may ultimately be due said applicant.”

*563 The carrier filed an objection to this award and a request for hearing, stating as his grounds:

“The Industrial Commission of Arizona has awarded benefits to whic [sic] the applicant is not entitled.”

On 14 September 1972 a hearing was held on the objection. After a review of the entire record, on 2 January 1973 The Industrial Commission issued its award, granting the same relief as the 20 June 1972 award, including the interim benefits mentioned above. From this award the carrier sought a writ of certiorari.

The carrier contends that the award granted the claimant excessive benefits. It argues that the claimant had a post-injury job which paid more than his pre-injury job, but that he voluntarily abandoned the post-injury job. Since the carrier rightly denies that it is an unemployment insurer, it seeks to avoid paying benefits which the claimant allegedly could have earned, had he remained on the job. The record shows that the claimant admits he left his post-injury employment “voluntarily”, but a closer examination puts this statement in perspective. The claimant testified the pressure involved in the job was intense, that his heart condition was still a source of concern to him and he still had periodic checkups. The claimant’s attending cardiologist excluded strenuous work involving more than' six hours of work per day, or which involved standing for more than two hours.

The general rule is that evidence ' of post-injury earnings raises a presumption of at least commensurate earning capacity, Maness v. Industrial Commission, 102 Ariz. 557, 434 P.2d 643 (1967), but such evidence is not necessarily controlling. Allen v. Industrial Commission, 87 Ariz. 56, 347 P.2d 710 (1959); Barnard v. Industrial Commission, 91 Ariz. 1, 368 P.2d 749 (1962). One clear exception to the general rule is where continued employment would be deleterious to the claimant’s health. Midland-Ross Corporation v. Industrial Commission, 107 Ariz. 311, 486 P.2d 793 (1971). The hearing officer in the present case determined that the applicant:

“8. * * * has made a conscientious and admirable attempt to rehabilitate himself and find work which he was capable of performing during the period of partial temporary disability.”

We find that the record supports this determination. We find further that the hearing officer properly declined to regard the post-injury employment as raising a presumption of no loss of earning capacity.

The carrier next contends that the Commission lacked authority to grant benefits for a permanent partial disability until a formal loss of earning capacity hearing had been held. We find that the Commission did possess the authority.

The statutes applicable to this question were the following sections of A.R.S. § 23-1044, as they appeared at the time of the injury:

“§ 23-1044. Compensation for partial disability; computation
“A. For temporary partial disability there shall be paid during the period thereof, for not to exceed sixty months, sixty-five per cent of the difference between the wages earned before the injury and the wages which the injured person is able to earn thereafter.
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“C. In cases not enumerated in subsection B of this section, where the injury causes permanent partial disability for work, the employee shall receive during such disability compensation equal to fifty-five per cent of the difference between his average monthly wages before the accident and' the amount which represents his reduced monthly earning capacity resulting from the disability, but the payment shall not continue after the disability ends * * *.
“D.

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Related

County of Maricopa v. Industrial Commission of Arizona
699 P.2d 389 (Court of Appeals of Arizona, 1985)
Western Cable v. Industrial Com'n of Arizona
698 P.2d 759 (Court of Appeals of Arizona, 1985)
Evertsen v. Industrial Commission
573 P.2d 69 (Court of Appeals of Arizona, 1977)
Continental Casualty Co. v. Industrial Commission
528 P.2d 816 (Arizona Supreme Court, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
521 P.2d 1019, 21 Ariz. App. 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-casualty-co-v-industrial-commission-arizctapp-1974.