Hoffman v. Industrial Commission

482 P.2d 493, 14 Ariz. App. 244, 1971 Ariz. App. LEXIS 544
CourtCourt of Appeals of Arizona
DecidedMarch 15, 1971
DocketNo. 1 CA-IC 443
StatusPublished
Cited by3 cases

This text of 482 P.2d 493 (Hoffman 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
Hoffman v. Industrial Commission, 482 P.2d 493, 14 Ariz. App. 244, 1971 Ariz. App. LEXIS 544 (Ark. Ct. App. 1971).

Opinion

STEVENS, Presiding Judge.

On IS February 1968 the petitioner, at the age of 48, was a full-time employee of the above-named respondent employer. He was a heavy duty mechanic. His hourly union wage scale for inside work, work in the employer’s shop, as distinguished from outside work, work in the field or away from the shop, was $4.24 an hour. His primary work assignment was inside work. On the above date he sustained a work connected, compensable, acute myocardial infarction. By an award entered on 2 May 1968 his average monthly wage was determined to be $826.40.

It is not essential to report the history of the petitioner’s case and his treatment nor the various medical aspects of the file. Allan I. Cohen, M.D., examined the petitioner both as a member of a Cardiovascular Board and individually. Thereafter, at the petitioner’s request, and on 20 January 1969, the Commission approved the transfer of the petitioner’s care and treatment to Dr. Cohen. We quote Dr. Cohen’s report of 21 February 1969:

“I have your note of February 17, 1969 requesting a medical opinion regarding the cardiovascular status of this claimant. Please refer to my narrative report of December 2, 1968. In June, 1968 the patient developed ‘palpitations’ due to extrasystoles. It is not possible to state with medical certainty whether or not this rhythm disturbance would have occurred had he not sustained an acute myocardial infarcation. It is known that such a disturbance may occur in the natural history of coronary artery disease, with or without accompanying infarction.
In July, 1968 the patient returned to work, his only symptoms being those re[246]*246lated to subjective awareness of the rhythm disturbance. More recently, the patient has been completely asymptomatic, his extrasystoles being well controlled by the use of quinidine.
His present condition is stationary. Regular medical attention is indicated as a prophylatic measure. There are no residual functional limitations. However, it is possible that the rhythm disturbance (now well controlled) is an aftermath of the myocardial infarction of February 15, 1968. Accordingly, this patient is Class I with 10-15% impairment of the whole individual, on the basis of the rhythm disturbance.”

The Commission entered its award on 19 March 1969. We quote portions of the findings contained in the award as follows:

« ;jc * *
6. That the physical condition of said applicant is now stationary.
7. That this Commission finds that said applicant has suffered a 15% general physical functional disability as a result of said injury by accident.
8. That said applicant returned to work for the defendant employer doing the same type of work performed at the time of injury and is making as much or more than at the time of injury and therefore has suffered no loss of earning capacity and is not entitled to an award under the provisions of A.R.S., Section 23-1044, C & D, 1956.
9. That in determining that applicant has no reduced monthly earning capacity as a result of his injury by accident, this Commission has given full consideration to each of the matters set forth in A.R.S., Section 23-1044 D, 1956, and full consideration to all other facts and circumstances pertaining to the case.”

After a formal hearing the above-quoted findings were approved and incorporated into an award dated 14 March 1970. The last-named award declared the petitioner to be “entitled to supportive medical benefits verified by appropriate vouchers, not to exceed $50 per month” and expressly-retained jurisdiction in relation to any changes which the petitioner may experience. It is the last award which is before us for review.

Following the entry of the 19 March 1969 award and after timely procedural steps the first and only formal hearing was held on 24 November 1969. The petitioner did not request that Dr. Cohen be called as a witness nor was he called by the Fund. The petitioner testified as did lay witnesses who were connected with his employment both before and after the infarct.

At the time of the hearing he was drawing the union scale which had been increased to the sum of $4.47 per hour. This increase may not be utilized to show an increase in earnings. Carr v. Industrial Commission Of Arizona, 2 Ariz.App. 307, 408 P.2d 411 (1965), wherein this Court quoted from Allen v. Industrial Commission Of Arizona, 87 Ariz. 56, 347 P.2d 710 (1959). In the case now under consideration there was evidence that the petitioner worked more overtime hours after his infarction than he had before he sustained the infarction and also evidence that he did not have the physical strength to work a greater period of overtime. There were three factors to consider in relation to overtime. The first was that he did not seek overtime before his infarction. He testified:

“Q. Prior to your injury, did you do any outside work at your home in your garage as a mechanic ?
A. Yes, I had a pretty good business heretofore built up in the evenings.
Q. Are you doing that anymore ?
A. No. I don’t do that, I don’t do my own work anymore.”

Loss of income from outside endeavors may not be considered in determining earning capacity or loss of earning capacity. The question of outside employment was extensively considered by this Court in Mickelson v. Industrial Commission Of Arizona, 7 Ariz.App. 182, 437 P.2d 666 (1968) [review denied].

[247]*247The second factor in connection with overtime was a change in the economic conditions making more overtime available. The third factor was that “inside men” did not have the same opportunity for, and were not called upon to perform as much overtime as were “outside men.” The petitioner’s inability to perform overtime differs materially from the situation which we find in Carr. When Joseph B. Carr “* * * returned to work he lost the amount of overtime that he had normally put in on the job which the testimony clearly indicates was an expected or normal part of his employment.”

The petitioner urges that the Commission should not have utilized Dr. Cohen’s report, which we have hereinbefore quoted, urging this position for the reason that Dr. Cohen was not called as a witness. The rule of law which governs this case is that the injured workman is deemed to have knowledge of all matters in the file and that the entire file is in evidence absent objections and absent affirmative requests for the right to examine the author of the reports which are in the file. Davis v. Industrial Commission Of Arizona, 103 Ariz. 114, 437 P.2d 647 (1968) and Rule 29, Rules of The Industrial Commission of Arizona, effective 12 February 1963, which Rule is quoted in the footnote of Davis, 103 Ariz. at 118, 437 P.2d at 651. There is an absence of a request that Dr. Cohen testify at the formal hearing.

The petitioner urges that our recent decision in Hurler v.

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Related

Warren v. Industrial Commission
39 P.3d 534 (Court of Appeals of Arizona, 2002)
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Scoggins v. Industrial Commission
510 P.2d 756 (Court of Appeals of Arizona, 1973)

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482 P.2d 493, 14 Ariz. App. 244, 1971 Ariz. App. LEXIS 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoffman-v-industrial-commission-arizctapp-1971.