Dye v. Industrial Commission

736 P.2d 373, 153 Ariz. 289, 1986 Ariz. App. LEXIS 722
CourtCourt of Appeals of Arizona
DecidedJuly 29, 1986
DocketNo. 1 CA-IC 3471
StatusPublished
Cited by1 cases

This text of 736 P.2d 373 (Dye 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
Dye v. Industrial Commission, 736 P.2d 373, 153 Ariz. 289, 1986 Ariz. App. LEXIS 722 (Ark. Ct. App. 1986).

Opinion

CONTRERAS, Judge.

This is a special action review of an Industrial Commission award for a scheduled disability. The sole issue concerns this disability classification: whether an arm bone fracture, which results in restricted motion, pain, and swelling at the shoulder joint is a scheduled or an unscheduled disability. Because only the arm is anatomically abnormal and the shoulder pain and swelling are nondisabling, the correct disability classification is scheduled. We therefore affirm the award.

On July 23, 1983, while on light work status from a prior back injury, the peti[290]*290tioner (claimant) fell and fractured the anatomical neck of the left humerus.1 This fracture became stationary in October 1984 with the following residuals: restricted abduction, external rotation and reach, lowered left shoulder elevation, and minimal shoulder tenderness. Independent consultants rated a 15% impairment of the left upper extremity, which limited overhead work and lifting.

Based on this evaluation, the July 23, 1983 injury claim was closed with a scheduled disability. Although the claimant’s treating physician, orthopedic surgeon John Crothers, M.D., agreed with this evaluation, the claimant protested, asserting that the disability should be unscheduled.

Pending a hearing, another independent consultant, orthopedic surgeon Vincent J. Russo, M.D., evaluated the claimant. He also agreed with the group’s impairment rating “of the left upper extremity as it relates to [the claimant’s] left proximal humeral fracture and loss of movement.”

The claimant and Drs. Crothers and Russo testified concerning the residual effects of the arm fracture. The claimant described her current symptoms of pain extending from the left shoulder down to the elbow, swelling in the upper arm and occasionally in the shoulder, and restricted ability to reach and lift with the left arm.

Dr. Crothers confirmed that the industrial injury caused a fractured humeral neck of the left arm. He concurred with the consultants’ opinion that this condition was stationary with a 15% permanent impairment of the left upper extremity. When asked to explain the upper extremity rating, he testified that “the AMA guidelines ... give shoulder fusions an upper extremity rating. That’s not just my interpretation of it. If it involves the shoulder joint or distally it’s upper extremity as far as limitations go.” Dr. Crothers also testified that the claimant had occasional shoulder pain but that her chief complaint of pain concerned her back.

Dr. Russo testified that he had independently evaluated the claimant’s condition. Based on the AMA Guides, muscle appearance and strength, and pain, he rated a 15% permanent impairment of the left upper extremity. Dr. Russo was not cross-examined concerning this opinion.

The administrative law judge found that the medical evidence established an upper extremity impairment. Relying exclusively on this evidence, he concluded that the disability was scheduled. On administrative review, the claimant argued that recent case law compelled an unscheduled classification. The administrative law judge nevertheless summarily affirmed the award. This special action followed.

On review, the claimant argues that her disability is unscheduled because her shoulder is affected. To conclude otherwise, she asserts, confuses the legal distinction between a scheduled arm and an unscheduled shoulder with the medical definition of an upper extremity.

The schedule applies to impairments of the “arm.” See A.R.S. § 23-1044(B)(13), (21). If, however, more than the scheduled member is affected, the disability is unscheduled. E.g., Miller v. Industrial Commission, 110 Ariz. 229, 517 P.2d 91 (1973). The residual effect of an injury, not the location of the injury itself, determines the classification. E.g., Arnott v. Industrial Commission, 103 Ariz. 182, 438 P.2d 419 (1968).

These principles have been applied to unschedule some shoulder impairments. See Low v. Industrial Commission, 140 Ariz. 52, 680 P.2d 188 (App.1984); Safeway Stores, Inc. v. Industrial Commission, 27 Ariz.App. 776, 558 P.2d 971 (1976). Yet all loss of shoulder joint motion is rated as an upper extremity impairment. See American Medical Association, Guides to the Evaluation of Permanent Impairment, tables 16-19 at 20-23 (2d ed. 1984) (Guides). In at least some cases, therefore, the legal distinction between a scheduled arm and an [291]*291unscheduled shoulder appears to conflict with the medical definition of the upper extremity.

This conflict, however, is only apparent. Although shoulder joint impairments are classified as impairments of the upper extremity, the Guides also provide for the conversion of upper extremity impairments to impairments of the whole person. Id. table 20 at 23. Whole person impairments, of course, are unscheduled. Furthermore, the Guides are neutral: they provide a method for conversion but do not define when conversion is proper. See id. at viii. We conclude that conversion is proper only if the disability is unscheduled. Accordingly, the Guides replicate rather than contradict the basic legal distinction. Restated in these terms, the claimant is arguing that all shoulder impairments should be converted to whole person impairments. The primary authority for claimant’s assertion is Low v. Industrial Commission. We do not believe Low supports this generalization.

In Low, the claimant dislocated her shoulder. The residual anatomic abnormality was to the shoulder structure, not to the arm bone. In addition, there was disabling shoulder pain. These residuals affected arm function by limiting range of motion at the shoulder joint. This court set aside an award for a scheduled disability. See Low v. Industrial Commission, 140 Ariz. at 54-55, 680 P.2d at 190-91.

Low cites the earlier decision of this court in Safeway Stores, Inc. v. Industrial Commission. In Safeway Stores, the injury was a tom rotator cuff. As in Low, the anatomic abnormality was to the supporting structure of the shoulder joint, not to the arm. Indeed, this distinction between the supporting structure of the shoulder joint and the arm bone is explicit:

Petitioner’s theory, however, is that the nomenclature used is not controlling, but rather if the situs of the injury occurs at a part of the body which would fall on the ‘arm side if the arm were amputated through the joint’, as a matter of law the injury must be defined for workmen’s compensation purposes as to the arm. Even if it were possible to so localize the area of disability and impairment in soft tissue injury, we feel that while this analysis is convenient and appropriate in dealing with injuries to bony structure of the body it is unhelpful and simplistic as applied to the muscle and connective tissue structures.

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Related

Dye v. INDUSTRIAL COM'N OF ARIZONA
736 P.2d 376 (Arizona Supreme Court, 1987)

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Bluebook (online)
736 P.2d 373, 153 Ariz. 289, 1986 Ariz. App. LEXIS 722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dye-v-industrial-commission-arizctapp-1986.