Glover v. Industrial Commission

531 P.2d 563, 23 Ariz. App. 187, 1975 Ariz. App. LEXIS 507
Court of Appeals of Arizona·Decided February 6, 1975·No. 1 CA-IC 1011·Published·Cited by 6 cases

Opinions

OPINION

HAIRE, Chief Judge.

The only issue presented by this review of an award entered by the Industrial Commission is whether the petitioner was entitled to a hearing de novo upon remand from this Court. We hold that on the facts here presented, she was so entitled.

The facts underlying this workmen’s compensation claim were before this Court in Glover v. Industrial Commission, 17 Ariz.App. 454, 498 P.2d 528 (1972), so we need not delve into them with great detail. When this matter was first before this Court, in setting aside the award of the Commission the Court held that the hearing officer abused his discretion in not granting a continuance so that petitioner could obtain the testimony of a psychiatrist who had examined her some five days before the hearing.

Following remand to the Commission, petitioner’s counsel determined that the report by the psychiatrist showed no psychiatric disability attributable to the industrial injury. Notwithstanding this fact, petitioner’s counsel requested the issuance of subpoenas for other medical witnesses (not including the psychiatrist) for a hearing which was scheduled before the Commission’s hearing officer. At that hearing the petitioner attempted to proceed with the presentation of new evidence not involving the above-mentioned psychiatric is[188] sue. The hearing officer refused to allow her an opportunity to present such evidence, stating that he believed that she was not entitled to a hearing de novo. The hearing officer’s findings in part stated:

“11. That the Court of Appeals set aside the Commission’s Award of July 22, 1971, solely on a procedural error; the Court’s Decision was based upon the Hearing Officer’s denial of applicant’s request for a further or continued hearing to offer the testimony of a psychiatrist. The Court stated “ * * * By reason of the Hearing Officer’s abuse of discretion in failing to allow a reasonable continuance relative to the possible receipt of the testimony of the examining psychiatrist, it is our opinion substantial justice was not done and the Award of the Hearing Officer as well as the Award of the Commission are hereby set aside.” (Emphasis in original).
“12. That when an Award of the Industrial Commission is set aside, the parties are entitled to a hearing de novo. Rutledge v. Industrial Commission of Arizona, 14 Ariz.App. 317, 483 P.2d 58.
“13. That in the instant matter the Court of Appeals did not set aside the Commission’s Award on the usual basis, i. e., that said Award was not supported by the evidence. It is this Hearing Officer’s opinion that inasmuch as the Award was set aside solely on the procedural error that the law pertaining to a hearing de novo is not applicable. The Court held it was error for the Hearing Officer to deny a continuance for the possible taking of psychiatric testimony; subsequent to the Court’s opinion, a psychiatric report was received and counsel for the applicant stipulated that said report resolved the psychiatric question, i. e., that said report established that the applicant did not have a psychiatric impairment. (Emphasis in original).
“14. That based upon the foregoing, it is this Hearing Officer’s conclusion that the procedural error having been cured, i. e., receipt of and consideration of psychiatric evidence, the parties are not entitled to a hearing de novo.”

It is from the award based upon the above-quoted findings that petitioner seeks review, contending that the hearing officer erred in not allowing her to proceed with a complete de novo hearing.

Although we agree with the logic and policy enunciated in the hearing officer’s findings, nevertheless we reluctantly conclude that the award must be set aside. While the scope of this Court’s power of disposition subsequent to review of civil and criminal appeals is extremely broad,1 it is for some unapparent reason extremely narrow in workmen’s compensation reviews. Under the provisions of A.R.S. § 23-951 we can only affirm the award or set it aside. See Magma Copper Co. v. Aldrete, 70 Ariz. 48, 216 P.2d 392 (1950); Matlock v. Industrial Commission, 70 Ariz. 25, 215 P.2d 612 (1950); Kennecott Copper Corporation v. Industrial Commission, 62 Ariz. 516, 158 P.2d 887 (1945). In accordance with this limited power of disposition, the appellate courts of this state have consistently held that upon the setting aside of an award, it is set aside in full and both parties are entitled to a complete hearing de novo on all issues which have not previously become final. See Rutledge v. Industrial Commission, 108 Ariz. 61, 492 P.2d 1168 (1972); Schnatzmeyer v. Industrial Commission, 78 Ariz. 112, 276 P.2d 534 (1954); Waller v. Howard P. Foley Company, 90 Ariz. 337, 367 P.2d 795 (1961); and Garza v. Industrial Commission, 17 Ariz.App. 525, 498 P.2d 599 (1972).

It is this Court’s opinion that the power to modify or affirm in part and remand with directions for limited further proceedings, would result in substantial savings in judicial and Commission adjudicatory effort without in any way detracting from the ultimate goal of affording adequate and just forums for the adjudication and [189] review of disputes incident to our workmen’s compensation system. However, our personal opinion in this regard must give way to the governing statutory provisions, which, as stated above, require that the award be set aside and that petitioner be allowed a complete de novo hearing on all issues which have not previously become final.2

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Glover v. Industrial Commission, 531 P.2d 563, 23 Ariz. App. 187, 1975 Ariz. App. LEXIS 507 (Ark. Ct. App. 1975).

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