Harbor Insurance Company v. Industrial Commission

545 P.2d 458, 25 Ariz. App. 610, 1976 Ariz. App. LEXIS 524
CourtCourt of Appeals of Arizona
DecidedJanuary 22, 1976
Docket1 CA-IC 1297
StatusPublished
Cited by18 cases

This text of 545 P.2d 458 (Harbor Insurance Company 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
Harbor Insurance Company v. Industrial Commission, 545 P.2d 458, 25 Ariz. App. 610, 1976 Ariz. App. LEXIS 524 (Ark. Ct. App. 1976).

Opinion

OPINION

NELSON, Presiding Judge.

On August 7, 1973, respondent employee L. J. Jordan (Jordan), sustained an industrial injury to his left knee while working for the employer, Memorial Hospital. The insurance carrier (petitioner) issued a Notice of Claim Status accepting Jordan’s claim for the left knee injury only and determining respondent’s compensation status. On April 8, 1974 the carrier issued another Notice of Claim Status terminating temporary disability compensation and medical benefits without permanent disability. A timely request for hearing was made and a formal hearing was held. The award of the hearing officer concluded that as a result of the industrial injury, the respondent was now afflicted with rheumatoid arthritis that affects various parts of his body, and that his condition was not stationary. It was thus determined that Jordan was entitled to continuing benefits.

Petitioner presents two issues for review: (1) whether timely objection was made to the carrier’s Notice of Claim Status accepting liability for the left knee injury only and (2) whether there is substantial evidence to support the award and determination that Jordan has rheumatoid arthritis as the result of an industrial injury.

We agree with the respondent’s contention that the hearing officer clearly and properly disposed of the first issue and note, as respondent did in his brief, that the alleged issue was not raised before the hearing officer.

The issue of the reasonableness of the medical evidence to support the determination that the applicant has rheumatoid arthritis as the result of an industrial injury presents a more difficult question. It is axiomatic that an award of the Industrial Commission will not be set aside if there is reasonable evidence to support it, Micucci v. The Industrial Commission of Arizona, 108 Ariz. 194, 494 P.2d 1324 (1972), and that conflicts in medical testimony are to be resolved by the hearing officer, State Compensation Fund v. Keefe, 22 Ariz.App. 311, 526 P.2d 1266 (1974); Brewer v. Industrial Commission of Arizona, 9 Ariz.App. 319, 451 P.2d 897 (1969).

Petitioner contends that the medical testimony upon which the award is founded is insubstantial, equivocal, and not expressed in terms of medical probability. Further, petitioner asserts that the determinative testimony was based upon theories or hypotheses rather than medical findings as required by Hemphill v. The Industrial Commission of Arizona, 91 Ariz. 322, 372 P.2d 327 (1962) ; Tashner v. The Industri *612 al Commission of Arizona, 62 Ariz. 333, 157 P.2d 608 (1945). We do not believe that the medical testimony supporting the award can be characterized in this fashion.

Respondent’s present condition was diagnosed as rheumatoid arthritis. Dr. Walter E. George, an orthopedic surgeon, first treated Jordan. When it became apparent that respondent’s condition had spread beyond one joint, he referred the patient to Dr. Arlene Ross, a rheumatologist. At one of the two hearing segments, he specifically stated that he would defer to the opinions of a rheumatologist concerning the connection between the industrial injury (trauma) and the development of rheumatoid arthritis.

Dr. William R. Myers and Dr. Arlene Ross, two highly qualified rheumatologists, testified at the hearing. Both doctors stated that they did not know the cause of rheumatoid arthritis. Dr. Ross did, however, testify that trauma can have a triggering or precipitating effect upon this condition. More importantly, Dr. Ross stated that it was her belief that this is what happened to Jordan. Dr. Myers stated that in his opinion trauma is not the cause of rheumatoid arthritis. The fact that Dr. Ross’ testimony was not as sweeping as Dr. Myers’ testimony does not prohibit the trier of fact from resolving any conflicts in her favor.

We consider this area to be analogous to the “heart attack” cases. In those cases our courts have noted that since positive knowledge cannot' be had as to causation, the fact that one opinion is expressed more positively than another does not require that it be given more weight. State Compensation Fund v. Industrial Commission of Arizona, 24 Ariz.App. 31, 535 P.2d 623 (1975). Similarly a doctor’s opinion does not have to be positive to be given some value as evidence. Belshe v. The Industrial Commission of Arizona, 98 Ariz. 297, 404 P.2d 91 (1965).

While it is true that equivocal testimony cannot create a conflict in the evidence, Helmericks v. AiResearch Manufacturing Company of Arizona, 88 Ariz. 413, 357 P.2d 152 (1960), we do not find the testimony of Dr. Ross to be uncertain or equivocal. Applying the definitional test set forth in State Compensation Fund v. Industrial Commission of Arizona, supra, we cannot say that Dr. Ross’ testimony was “subject to two or more interpretations” or that she “avoided committing” herself. She stated that trauma can have a precipitating or activating effect upon rheumatoid arthritis and that this is what happened in respondent Jordan’s case. Qualifications of medical opinions do not necessarily make them uncertain or equivo-. cal. In Continental Casualty Company v. The Industrial Commission of Arizona, 15 Ariz.App. 565, 489 P.2d 1267 (1971) we noted that the qualification of a doctor’s answers with “probable” would go to the weight of his testimony.

While an award of compensation may not be based solely upon possibilities and speculative testimony, State Compensation Fund v. Industrial Commission of Arizona, supra, we cannot agree with the petitioner that the testimony of Dr. Ross can be characterized in this manner. Likewise we cannot agree with the petitioner that the testimony of Dr. Ross can be compared with that of the physicians in Employers Mutual Liability Insurance Co. of Wisconsin v. The Industrial Commission of Arizona, 17 Ariz.App. 516, 498 P.2d 590 (1972). There testifying physicians could not say to a degree of reasonable medical probability whether the disease in question was caused by the industrial injury or by injuries occurring in non-industrial accidents. The disease could not be apportioned with any degree of certainty. Here the hearing officer considered only one incident and in the resolution of a medical conflict favored the testimony of the physician who stated that in this case

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545 P.2d 458, 25 Ariz. App. 610, 1976 Ariz. App. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harbor-insurance-company-v-industrial-commission-arizctapp-1976.