Harbor Insurance v. Industrial Commission

621 P.2d 303, 127 Ariz. 394, 1980 Ariz. App. LEXIS 637
CourtCourt of Appeals of Arizona
DecidedDecember 16, 1980
DocketNo. 1 CA-IC 2365
StatusPublished

This text of 621 P.2d 303 (Harbor Insurance 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 v. Industrial Commission, 621 P.2d 303, 127 Ariz. 394, 1980 Ariz. App. LEXIS 637 (Ark. Ct. App. 1980).

Opinion

OPINION

DONOFRIO, Judge.

The question in this special action-industrial Commission is whether the hearing officer,1 in granting rearrangement, failed to observe the finality of a prior award of the Industrial Commission and a previous memorandum decision of this Court affirming the previous award which found that respondent employee had sustained no loss of earning capacity as a result of her industrial injury. Because we find that the evidence established that circumstances, causally related to respondent’s disability, have changed so that she is not now employable, we affirm the award.

This is the third time that the sequelae of respondent employee’s 1974 back injury has come before this Court. A review of the employee’s Industrial Commission file reveals the following path of litigation.

Respondent employee Odessa Harris filed a workmen’s compensation claim for benefits arising out of a back injury sustained while she was working as a cake decorator for petitioner employer Smitty’s Super Valu, Inc., on January 13, 1974. Her claim was accepted for benefits. She was treated by Robert Mills, M.D. and underwent a laminectomy in the early part of February of 1974.

By July of 1974, Dr. Mills was of the opinion that the respondent employee could return to a light duty or a half-day work load. This opinion is evidenced by his report dated August 7, 1974, found in respondent’s Industrial Commission file. The report notes that the respondent was notified in July of 1974 that she could return to work but that she failed to do so, stating that she had too much back discomfort.

Based on the physician’s report the carrier changed respondent’s compensation status to temporary partial by its notice of claim status issued August 14, 1974. Respondent requested a hearing. Prior to the requested hearing, respondent was examined by another physician, William M. Steele, M.D. That physician found that respondent should return to work at the earliest date. He found no evidence of any sciatic nerve root irritation and found that respondent had had a very excellent result from her disc excision.

The first of numerous hearings before the Industrial Commission involving this respondent was held on April 10, 1975. Subsequently an award was entered on May 19, 1975. That award determined that based on the medical evidence respondent employee had sustained a 15% general physical functional impairment and determined the amount of respondent’s interim temporary partial compensation, leaving the question of a final loss of earning capacity open. The award and its findings became final.

[396]*396An administrative determination of no loss of earning capacity was made on September 26, 1975. The administrative award was based on a finding that respondent’s medical limitations would not preclude her from performing the same type of duty she performed at the time of her injury at the same or greater wage with no loss of earning capacity. Respondent employee requested a hearing. In it, she alleged that she could not perform the same type of duties she had performed at the time of her injury and had sustained a substantial loss of earning capacity.

Several formal hearings were held before the Industrial Commission’s hearing officer concerning the loss of earning capacity determination. On July 29, 1976, the hearing officer entered an award which found that based on the evidence presented, respondent had sustained a 15% general physical functional disability resulting from the industrial injury but that the respondent had not sustained a loss of earning capacity. In that award the hearing officer found that petitioner had no physical limitations which would preclude her from returning to the part-time employment which had been offered at Smitty’s.

The July, 1976 award became the subject of this Court’s consideration through a petition for writ of special action-industrial Commission. Subsequently by memorandum decision, this Court affirmed the July, 1976 award of the Industrial Commission’s hearing officer. In Harris v. Industrial Commission, 1 CA-IC 1646, Memorandum Decision, filed April 18, 1978, we stated:

“There is no suggestion that she could not return to cake decorating so long as she was not required to lift more than 25 pounds. Smitty’s offer of a position consistent with her medical limitations was refused. While petitioner may not have been required to accept the offer from her former employer, she could not refuse to seek other employment and claim it was ‘obvious’ she was unemployable, thereby suffering a total loss of earning capacity.”

Concurrent with her review of the no loss of earning capacity award in this Court, petitioner moved to reopen her workmen’s compensation claim at the Industrial Commission level. Her petition to reopen was denied; this Court in a memorandum decision, Harris v. Industrial Commission, 1 CA-IC 1896, Memorandum Decision, filed June 27,1978, found that the reopening had been properly denied according to the law expressed in Colorado River Inn v. Industrial Commission, 116 Ariz. 27, 567 P.2d 343 (App.1977), and therefore affirmed the award. The decision became final.

At length, we reach the litigation which is the subject of the current review in this Court. It flows from a petition for rearrangement or readjustment of compensation filed on January 31, 1979. The carrier denied the petition and respondent employee requested review. Hearings were conducted before the Industrial Commission’s hearing officer and an award was entered in the matter on November 16, 1979. In that award the hearing officer reviewed the evidence and determined that petitioner had not shown a change in physical condition that would justify reopening or rearranging her workmen’s compensation benefit determination. However, the hearing officer found this significant determination in finding number 7 of the award:

“[T]he evidence does not support the conclusion that the applicant has a changed physical condition resulting in a greater loss of earning capacity. There is no basis for rearranging applicant’s compensation on the first grounds set forth above under A.R.S. § 23-1044(F). If the applicant is entitled to rearrangement, it must be under the second grounds set forth, namely, a reduction in earning capacity without change of physical condition. In this respect, it is not inappropriate for the applicant to now attempt to show that the work which was formerly available to her from her former employer is no longer available to her. The testimony of the representative of the employer supports the conclusion that a person with applicant’s limitations and symptomatology would not be employed [397]*397by the defendant employer. Considered in conjunction with the other evidence, it also supports the conclusion that the applicant is not employable as a cake decorator.” (Emphasis supplied.)

A.R.S. § 23-1044(F)(l) provides for reopening a determination in regard to Workmen’s Compensation benefits on the basis of a change in physical condition. A.R.S. § 23-1044(F)(2)2

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Bluebook (online)
621 P.2d 303, 127 Ariz. 394, 1980 Ariz. App. LEXIS 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harbor-insurance-v-industrial-commission-arizctapp-1980.