Hopper v. Industrial Commission

558 P.2d 927, 27 Ariz. App. 732, 1976 Ariz. App. LEXIS 708

• Court: Court of Appeals of Arizona
• Decided: September 7, 1976
• Docket: 1 CA-IC 1305
• Status: Published

Opinions

OPINION

HAIRE, Chief Judge, Division 1.

On this review of a consolidated award entered by the respondent commission in a workmen’s compensation proceeding, the petitioning workman contends that the evidence was insufficient to support the hearing officer’s refusal to award him further compensation benefits. The hearing officer’s refusal was based upon his findings to the effect that petitioner had been guilty of fraud in initially establishing his compensation claim, and therefore was not entitled to any further benefits.

Petitioner’s initial claim (No. 3/3-45 — 47, filed May 11, 1973) alleged that he injured his right knee while stepping off a forklift while employed by Schuck Component Systems, Inc. This claim was accepted for benefits by the carrier, respondent Home Insurance Company. On October 9, 1973, this claim was closed by the carrier’s notice of claim status, discharging petitioner with a scheduled 10% permanent disability of the right leg. Petitioner had by that time returned to work for respondent Schuck and Sons Construction Co., with respondent Mission Insurance Company being the compensation carrier. Sometime during the latter part of 1973, his employment was terminated due to a recession in the construction industry.

Thereafter, on February 21, 1974, petitioner filed a petition to reopen his April 1973 knee injury claim based upon new, additional or previously undiscovered disability. This petition to reopen was denied by the carrier, with the carrier contending that petitioner had sustained a new injury to his knee shortly after going back to work. After the denial of the petition to reopen, petitioner filed a timely request for hearing, and' in order to fully protect himself, also filed a new claim alleging that in October 1973, he had sustained a new injury to his knee arising out of and in the course of his employment with the respondent, Schuck and Sons Construction Company. This new injury claim was denied by respondent Mission Insurance Company, the responsible carrier at the time of the alleged new injury. Petitioner again filed a timely request for hearing, and the Commission’s hearing officer then consolidated the two matters, that is, the petition to reopen and the new injury claim for all further proceedings before the Commission. A consolidated hearing on both matters was held on September 10, 1974.

THE REOPENING CLAIM (ICA Claim No. 3/3-15^7)

Prior to the time of the consolidated hearing, defendant carrier Home Insurance Company gave notice to the petitioner that it would defend its denial of the reopening on the basis that the original claim of April 24, 1973 was fraudulent, that is, that petitioner in fact had injured his right knee as the result of a motorcycle accident shortly before the alleged industrial episode. After hearing the evidence, the hearing officer issued his decision and findings which supported the carrier’s contentions concerning the fraudulent nature of the original claim, and for that reason the reopening was denied.

On this review petitioner does not dispute the principle that the Commission may refuse to award further compensation benefits when it is shown that the initial claim was fraudulent, even though with the passage of time the carrier’s acceptance of the original claim as compensable or the Commission’s issuance of a prior award of compensability had become final. See Scott v. Wasielewski, 89 Ariz. 29, 357 P.2d 614 (1960); see 3 Larson’s Workmen’s Compensation Law, § 81.50. Petitioner’s sole contention concerning the denial of the reopening claim is that the record is insufficient to establish by clear and convincing evidence that the petitioner filed a fraudulent claim.

It is beyond question in this jurisdiction that a claim of fraud must be established by clear and convincing evidence. Brown v. Karas, 73 Ariz. 62, 237 P.2d 799 (1951); Udall, Arizona Law of Evidence, § 5, page 16. The purpose of the “clear and convincing” standard is to guide the trier of fact in the consideration of the evidence. It is not a test to be applied by an appellate court in passing on the sufficiency of the evidence. Beeler v. American Trust Co., 24 Cal.2d 1, 147 P.2d 583 (1944). Therefore the finding of the trier of fact should be sustained if the evidence furnishes reasonable or substantial support therefor. Murillo v. Hernandez, 79 Ariz. 1, 281 P.2d 786 (1955); Brown v. Karas, supra ; King v. Uhlmann, 103 Ariz. 136, 437 P.2d 928 (1968)¹ Even where the more stringent “beyond a reasonable doubt” standard is imposed as a guide for the trier of fact, questions concerning the credibility of the witnesses and the weight and value to be given to the testimony are considered as questions exclusively for the jury, State v. Pieck, 111 Ariz. 318, 529 P.2d 217 (1974), and the appellate court in reviewing the sufficiency of the evidence is only concerned with whether there is substantial evidence in support of the verdict. State v. Childs, 113 Ariz. 318, 553 P.2d 1192 filed August 6, 1976.)

These same general principles govern appellate review of Industrial Commission awards in workmen’s compensation proceedings. Micucci v. Industrial Commission, 108 Ariz. 194, 494 P.2d 1324 (1972). Therefore, in reviewing the sufficiency of the evidence to support the hearing officer’s findings here, we must resolve all questions of credibility and state all inferences in the light most favorable to sustaining the award. Considered in such light, the question of whether the evidence offered to prove fraud is clear and convincing is for the hearing officer to decide. As long as there is reasonable and substantial evidence in support of the result reached by the hearing officer, this Court must affirm that result.

We have previously stated that Home Insurance Company originally denied the petition to reopen because of the contention that petitioner had suffered the new injury to his knee shortly after going back to work. After petitioner filed his request for hearing, Home Insurance Company hired an investigator for the purpose of placing petitioner under surveillance and ascertaining his physical activities over the weekend of May 31, June 1, and June 2, 1974. It was the investigator’s testimony concerning his surveillance of petitioner’s activities on the afternoon of June 1, which gave rise to the claim of fraud here involved. Concerning such surveillance, the investigator testified that on the afternoon of June 1, 1974, at about 1:45 p. m. petitioner left his residence and went to a bar. After waiting about ten minutes, the investigator also went into the bar. Petitioner was having a drink, and the investigator sat down next to him and ordered a beer. They engaged in conversation and eventually the investigator asked petitioner about his employment. Petitioner told him that he had been unemployed for approximately a year as a result of an industrial accident, that he had fallen from a roof on a construction job and hurt his right knee. This conversation took place at about 2:30 p. m. About 45 minutes later in the course of their conversations, the investigator mentioned that about two years ago he had injured his own knee while riding a motorcycle.² Petitioner then told the investigator that approximately a year before he was riding a motorcycle, that he wrecked his motorcycle in the desert, and that’s how in fact he hurt his right knee. Petitioner said he was drawing workmen’s compensation insurance through the Industrial Commission as a result of the motorcycle accident, and that he had faked an industrial injury. At the time of this conversation, petitioner had had three drinks and to the investigator did not appear intoxicated.

Petitioner admitted meeting, talking and drinking with the investigator on the afternoon of June 1, 1974, but in effect denied having any conversation with the investigator about a fake industrial claim. However, he does admit that about five weeks before the alleged injury of April 24, 1973, he had a motorcycle accident, up in the mountains on a dirt bike trail on a Sunday. When asked how the accident happened, he testified as follows:

“Well, I was coming around a bend and I had not been on that trail before and I didn’t know it, and my brother-in-law was ahead of me, and I was trying to catch him. He had been through there and knew it and he made the jump fine and I just didn’t make the jump. It was a leaning curve and a sand wash, and I just buried it. When I seen I couldn’t make it I tried to throw the bike but I didn’t make it.”

He stated that the motorcycle came down on his right leg, that he went to a hospital for emergency treatment for his right leg; that he missed a week’s work as a result of the injury; and that after he went back to work his leg was “a little sore” for a few days, with no trouble at all after that.

In petitioner’s brief filed in this Court, counsel states that it should be noted that the petitioner never denied the motorcycle incident, but rather, “volunteered” the history of the event. We must note that insofar as the record shows, this “volunteering” was not so voluntary, and occurred only after the investigator’s report had brought the incident to the carrier’s attention.

On cross-examination of the treating physician, Dr. Howard P. Aidem, it was brought out that his opinion that petitioner’s right knee condition resulted from the alleged industrial injury of April 24, 1973, was based upon the history given to him by the petitioner, and that he could not tell from the examination given whether in fact the injury ad occurred “one day prior as opposed to a few weeks prior.” The doctor was then asked the following question on cross-examination:

“Q: That is what I am getting at. So to relate his condition on the 25th and all things subsequent to that to the accident on the 24th, you have to do that on the basis of the history that he gave you? “A: But his history did reveal that he had actually had a previous knee injury from which he thought he had recovered.”

Petitioner’s counsel cites the above response as indicating that petitioner told the doctor about the motorcycle injury which had occurred five weeks earlier. That this was not the case is clear when reference is made to the doctor’s prior testimony given on direct examination by petitioner’s counsel :

“Q: Would you relate briefly what that history was?

“A: . . .

He said that he had had an injury to his knee years before but that it had not bothered him prior to this accident.” (Emphasis added)

Obviously this could not be construed as a reference to the motorcycle accident which had occurred within the past five weeks.

At this point it must be emphasized that petitioner knew in advance that the respondent carrier intended to rely upon fraud to defeat the reopening claim. If it was his contention that the knee injury received in the motorcycle incident was trivial, he had ample opportunity to present evidence, and present medical testimony on this point. This he failed to do. Under the facts, it would be logical to conclude, as the hearing officer apparently did, that the petitioner had sustained the admitted motorcycle accident in the desert a few weeks prior to his purported industrial injury, that the injury was of such severity that petitioner was not able to work for a week, that he returned to work for a few weeks, but found that he was having increasing difficulty with his knee and therefore faked the industrial injury so that he could obtain workmen’s compensation benefits.³

Considering the above, we find substantial and reasonable evidence to support the hearing officer’s decision. As has been so often stated, the hearing officer is the judge of the credibility of the witnesses, and here he simply chose to believe the investigator’s testimony rather than that of the petitioner. We therefore affirm the award denying reopening of petitioner’s claim.

THE NEW INJURY CLAIM (ICA Claim No. N 3/C-89-44)

Having concluded that the hearing officer correctly denied reopening of petitioner’s original injury claim, we now turn our attention to questions raised by the hearing officer’s denial of compensation on the new injury claim. However, before considering questions raised by the petitioner, we must first consider respondent carrier Mission Insurance Company’s claim that this Court lacks jurisdiction to review the hearing officer’s denial of the new injury claim.

When the petition for Writ of Certiorari was initially filed in this Court, petitioner did not set forth in the caption Schuck and Sons Construction Company or Mission Insurance Company as parties respondent. Thereafter, petitioner filed a motion to amend the caption to include these respondents. This motion was opposed on the grounds that the time for filing a petition for Writ of Certiorari, pursuant to A.R.S. §§ 23-943 and 23-951, had expired. This Court initially denied the motion to amend the caption, but, after the filing of a motion for rehearing, granted the motion and allowed the amendment of the caption. Respondent Mission Insurance Company has again raised this jurisdictional question in its answering brief. Our reasons for holding that the Court has jurisdiction are as follows.

While the petition was defective insofar as concerns the new injury claim because it did not identify the respondent employer or respondent carrier in either the caption or the body of the petition, it did accurately identify the new injury claim in both the caption and the body of the petition by reference to the Industrial Commission claims file number. There can be no question but that petitioner timely filed his petition for certiorari seeking review of that claim in this Court. A defect in identifying a party against whom an appeal is taken does not necessarily invalidate the appeal, particularly where the judgment being appealed is sufficiently identified and sufficient notice is given so that the putative appellee is neither misled nor prejudiced. Hanen v. Willis, 102 Ariz. 6, 423 P.2d 95 (1967). We can see no reason why these same principles should not apply to questions involving the review of workmen’s compensation proceedings in this Court. Here the only adverse parties to the law injury claim were the above-named respondent employer and respondent carrier. This Court’s Writ of Certiorari to the respondent commission issued on January 21, 1975, and, on that same date, petitioner gave notice of the proceedings to counsel for both of these respondents by mailing to him a copy of the petition and all other pertinent papers.

We find that the respondents on the new injury claim received adequate notice and were neither misled nor prejudiced by the defect in the petition for Writ of Certiorari. We therefore affirm our prior ruling relating to this Court’s jurisdiction.

We consider now the merits of petitioner’s new injury claim, which was denied by the hearing officer’s decision. Petitioner contends that even if it is assumed that the first injury claim was fraudulent, this does not justify the hearing officer’s denial of the new injury claim, to use counsel’s words, “. . .on the basis, apparently, that if fraud were shown in one claim, it would forever establish the petitioner as a liar.” However, we need not go that far in order to affirm the hearing officer’s decision. As to this claimed new injury, we need only look to the testimony of Dr. Ai-dem, petitioner’s doctor, and the only doctor to testify. Both on direct examination and on cross-examination, Dr. Aidem testified that the cause of petitioner’s complaints was the alleged first injury of April 24, 1973. The testimony was so clear that counsel for respondent Mission Insurance Company did not find it necessary to even examine Dr. Aidem after his two adversaries had concluded. Simply stated, petitioner completely failed to present a prima fa-cie case relating any aspect of his physical condition to the new injury incident which allegedly occurred in October, 1973. Therefore, the hearing officer’s decision denying benefits for that new injury claim must be affirmed on the merits.

The award as to both claims is affirmed.

EUBANK, P. J., concurring.

1 . In King v. Uhlmann, supra, the court stated that the findings of the trier of fact should not be disturbed “ ‘ . . unless we must say as a matter of law that no one could reasonably find the evidence to be clear and convincing.” ’ ” 103 Ariz. at 142, 437 P.2d at 934.

2 . At this point the investigator had no knowledge or suspicion that petitioner had ever been involved in a motorcycle accident. The investigator had in fact previously injured his knee in a motorcycle mishap.

3 . In Vino Veritas. We cannot say as a matter of law that Pliny the Elder was wrong when he stated: “In wine there is truth.” Pliny: Natural History, Book XIV, Sec. 141.