Employers Mutual Liability Insurance Co. of Wisconsin v. Industrial Commission

500 P.2d 308, 18 Ariz. App. 48, 1972 Ariz. App. LEXIS 778
CourtCourt of Appeals of Arizona
DecidedAugust 22, 1972
DocketNo. 1 CA-IC 624
StatusPublished
Cited by1 cases

This text of 500 P.2d 308 (Employers Mutual Liability Insurance Co. of Wisconsin 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
Employers Mutual Liability Insurance Co. of Wisconsin v. Industrial Commission, 500 P.2d 308, 18 Ariz. App. 48, 1972 Ariz. App. LEXIS 778 (Ark. Ct. App. 1972).

Opinion

EUBANK, Judge.

We issued our writ of certiorari to review the lawfulness of the findings and award of The Industrial Commission that the respondent’s medical condition was not stationary.

The respondent suffered an industrial injury to his back on February 10, 1969, while lifting a box of dishes in the course of his employment. His claim was accepted by the petitioner for benefits. In August 1969, Marion Peterson, M.D., orthopedic surgeon, performed a laminectomy on the respondent and he recovered sufficiently to be released to a light work status on October 30, 1969. On the following day the respondent returned to work for his employer as an assistant manager of a snack bar at Arizona State University, and continued in that capacity until March 17, 1970, when he was laid off because he was unable to perform the duties required. On February 19, 1970, the petitioner issued its Notice of Claim Status terminating the respondent’s temporary compensation as of October 30, 1969. Respondent protested the notice and the resultant hearing was held at the Commission in Phoenix on December 2, 1970. Following the hearing, the [49]*49hearing officer made certain findings which are contested by the petitioners. They are:

“3. That applicant’s condition is not yet stationary and he is therefore entitled to medical, surgical and hospital benefits, as provided by law, from February 10, 1969 until his condition becomes stationary.
* * * * * *
“7. That Howard P. Aidem, M.D., testified that he first examined applicant in May, 1970, and in his opinion, although applicant’s condition was not yet stationary, applicant was capable of performing some type of light work within certain physical limitations; said limitations would include restricted lifting, up to 25 pounds and no bending but that applicant would be able to stoop and walk without limitation.
* * * * * *
“14. In the present case applicant was injured on February 10, 1969 and was returned to a light work status on October 30, 1970; he worked on a light work status at his regular wage from October 31, 1970 (sic) [1969] through March 17, 1970, on which date he was laid off; that applicant’s condition is not yet stationary.”

The hearing officer then, in part, made the following award:

“APPLICANT IS HEREBY AWARDED:
1. Medical, surgical and hospital benefits, as provided by law, from February 10, 1969 until his condition becomes medically stationary.”

Review was requested by the petitioners and the Commission affirmed the award.

The petitioners contend that the only evidence in the record is that the respondent’s physical condition became medically stationary prior to the hearing, and consequently the findings and award set out above are erroneous and unlawful. Reviewing the record, we agree, and must, therefore, set the award aside.

In Aragon v. Industrial Commission, 14 Ariz.App. 175, 481 P.2d 545 (1971) we discussed the significance of the medical opinion that an injury was or was not “stationary” in these terms:

“ . . . The conclusion by a medical expert witness that a physical condition resulting from an injury is ‘stationary’ or ‘not stationary’ constitutes his medical opinion and conclusion based upon the particular medical facts of the case under consideration. It being an expert medical opinion, the Commission is bound by the opinion unless there are conflicting medical opinions or the testimony was equivocal. Helmericks, Jr. v. Airesearch Manufacturing Company, 88 Ariz. 413, 357 P.2d 152 (1960); Cross v. Industrial Commission, 81 Ariz. 222, 303 P.2d 710 (1956). An example of the application of the medical opinion ‘stationary’ is provided by our Supreme Court in Minton v. Industrial Commission, 90 Ariz. 254, 367 P.2d 274 (1961), where the petitioner suffered an industrial injury and was awarded ‘temporary partial disability’ benefits under A.R.S. § 23-1044, subsec. A. The award was terminated following a hearing wherein the medical testimony was that the injury was ‘stationary’. The petitioner there contended, that he was entitled to receive continued' temporary partial disability benefits because § 23-1044, subsec. A required the-Commission to pay temporary partial disability payments until such time as ‘permanent partial disability’ for work was-, determined. The Court rejected petitioner’s contention and said at page 258, 90 Ariz., at page 277, 367 P.2d:
‘We agree with petitioner that by Section 23-1044, subd. A the Commission, must pay temporary partial disability in. the amount and for the length of time set forth in the statute if such condition exists. But the condition of temporary-partial disability was by [Commission] finding [of fact] 3 determined to be stationary as of October 5th, 1959. On that date temporary disability came to an end and the Commission was no longer com[50]*50pelled to continue payment thereof. Petitioner’s condition then became classified as permanent and the Commission was compelled to compute the disability on the basis of A.R.S. § 23-1044, subd. B and the subsections following insofar as they were applicable to the circumstances of this particular case.
Tn accordance with the Kennecott [Copper Corp. v. Industrial Commission, 62 Ariz. 516, 158 P.2d 887 (1945)] decision, the Commission had the power and it was within its discretion to either continue temporary partial disability payments or withhold such payments pending determination of a sum for permanent disability. * * * ’ ” (14 Ariz.App. at 176-177, 481 P.2d at 546-547).

At the December 1970 hearing, Howard P. Aidem, M.D. and Marion Peterson, M. D. testified. They are both orthopedic surgeons and their testimony constitutes the only medical testimony in the record. Dr. Aidem testified:

“Q Have you any opinion as to whether or not he should be on any kind of other status than not working?
“A [Dr. Aidem] Well, I think he should be capable of doing something, yes. He doesn’t appear to be physically totally incapable of doing anything. However, he describes persistent pain. And this was the main basis for my request for further evaluation, or at least the final evaluation for purposes of estimate of general disability. In the times I have seen him, his condition appears to be reasonably stationary, or perhaps somewhat worse on the second occasion in September. He hasn’t changed since then. And I have nothing personally to offer him. And I am hoping that someone else would see him independently and make the same estimate.”

Later he testified:

“Q I take it you are not convinced that his condition is stationary though?

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Employers Mut. Liability Ins. Co. of Wis. v. Contreras
509 P.2d 1030 (Arizona Supreme Court, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
500 P.2d 308, 18 Ariz. App. 48, 1972 Ariz. App. LEXIS 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/employers-mutual-liability-insurance-co-of-wisconsin-v-industrial-arizctapp-1972.