Crowley Construction Co. v. Industrial Commission

694 P.2d 1248, 143 Ariz. 634, 1985 Ariz. App. LEXIS 457
CourtCourt of Appeals of Arizona
DecidedJanuary 24, 1985
DocketNo. 1 CA-IC 3108
StatusPublished
Cited by1 cases

This text of 694 P.2d 1248 (Crowley Construction 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
Crowley Construction Co. v. Industrial Commission, 694 P.2d 1248, 143 Ariz. 634, 1985 Ariz. App. LEXIS 457 (Ark. Ct. App. 1985).

Opinion

OPINION

JACOBSON, Chief Judge.

This review of an award of the Industrial Commission requires a determination of the legal effect of the reopening of a prior scheduled injury, which injury formed the basis of an unscheduled award for a second scheduled injury.

The facts are not in dispute. On August 27, 1974, the claimant sustained an industrially related injury to his right knee while employed by Crowley Construction Company which was insured by Fidelity and Casualty Company for Worker’s Compensation benefits. This injury was subsequently closed and the claimant received scheduled benefits in the sum of $1,250. On March 24, 1975, the claimant suffered a second unrelated industrial injury to his right wrist while employed by the same employer which was covered by the same carrier. While the wrist injury was scheduled in nature, because it constituted a successive scheduled injury, it was characterized as an unscheduled injury pursuant to Ronquillo v. Industrial Commission, 107 Ariz. 542, 490 P.2d 423 (1971), and the claimant was awarded unscheduled permanent partial disability benefits in the sum of $305.45 per month representing his combined loss of earning capacity based upon both the knee injury and the wrist injury.

On March 26, 1982, pursuant to A.R.S. § 23-1061(H), the claimant petitioned to reopen the knee injury award based upon medical evidence of progressive intermittent traumatic degenerative osteoarthritis to his knee. After an initial denial and request for hearing, the petition to reopen was eventually accepted by the carrier. Based upon this acceptance the commission entered an award granting reopening. The claimant was then placed upon a total temporary disability status and the carrier began paying the claimant total temporary disability benefits in the approximate sum of $800.00 per month based upon his total loss of earning capacity and his previously determined average monthly wage.1

Upon commencement of the payment of total temporary benefits, the carrier ceased paying the $305.45 per month permanent partial disability benefits awarded for the wrist injury.

The claimant then filed a petition pursuant to A.R.S. § 23-1061(J) seeking reinstatement of the $305.45 per month payment under the wrist award. The matter was presented to the Administrative Law Judge on memorandum as purely a question of law.

The Administrative Law Judge relying primarily upon this court’s decision in Harbor Insurance Company v. Industrial Commission, 24 Ariz.App. 197, 537 P.2d 34 (1975), held:

under the facts herein the insurance carrier had no authority to unilaterally cease making payments under the [award for unscheduled permanent partial disability relating to the wrist injury] regardless of whether or not applicant was receiving temporary benefits under a reopened claim for a separate and distinct injury and regardless of the fact that said separate injury served to convert a second scheduled injury to unscheduled which led to the permanent compensation benefits involved herein.

Based upon this legal conclusion, the Administrative Law Judge reinstated payments to the claimant under the unsche[636]*636duled permanent partial disability award, the result being that claimant is now entitled to recover $305.45 in permanent partial disability benefits and $800.00 as temporary total benefits. The carrier and the employer have timely sought review of the Administrative Law Judge’s legal conclusion.

The carrier’s basic contention on appeal is that the award for unscheduled permanent partial disability only exists as a result of the combination of the prior scheduled knee injury and the subsequent scheduled wrist injury. From this premise it argues that if one of the combined injuries ceases to be in a stationary condition (i.e., the disability is permanent with no possibility of medical improvement, see Home Insurance Company v. Industrial Commission, 23 Ariz.App. 90, 530 P.2d 1123 (1975)), then the basis of the permanent partial award also ceases. The claimant relies, as did the administrative law judge, on Harbor Insurance Company v. Industrial Commission, supra, that is, that the carrier lacked unilateral authority to change an award for permanent benefits and that the sole statutory method available to effect such a change is rearrangement under A.R.S. § 23-1044(F), of which the carrier did not avail itself. Corollary to the claimant’s position is that he received a permanent disability award for the injury to his wrist; that the condition of his wrist is still stationary (permanent), thus reopening of a separate injury which was the subject of a separate award does not change the res judicata effect of the permanent wrist award.

In order to resolve this issue it is necessary to review the legal rationale leading to the case law created formula of a scheduled injury plus a scheduled injury equals an unscheduled injury.

Arizona has adopted a Worker’s Compensation system premised on the proposition that injured workers are to receive benefits commensurate with how those injuries effect the worker’s earning capacity. To achieve this end, Arizona, like most states, has recognized that certain types of injuries are presumed to have caused a loss of earning capacity. These injuries are listed in A.R.S. § 23-1044(B) and are compensated according to a set schedule (hence the term “scheduled” injuries). However, if the injury is not listed in A.R.S. § 23-1044(B), (hence the injury is “unscheduled”) no presumptive loss of earning capacity attaches, and the injury is compensated based on the difference between the worker’s average monthly wage prior to the injury and the actual reduced earning capacity resulting from the injury related disability. A.R.S. § 23-1044(C); Alsbrooks v. Industrial Commission, 118 Ariz. 480, 578 P.2d 159 (1978).

However, the law recognized at an early date:

[T]he undoubted fact that the actual loss of earning power occasioned by a combination of two or more separately scheduled injuries may be much greater than the amount reached by merely adding together the losses presumed to be caused by each of such injuries considered separately, (emphasis added).

Ossic v. Verde Central Mines, 46 Ariz. 176, 188, 49 P.2d 396, 401 (1935).

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Cite This Page — Counsel Stack

Bluebook (online)
694 P.2d 1248, 143 Ariz. 634, 1985 Ariz. App. LEXIS 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowley-construction-co-v-industrial-commission-arizctapp-1985.