Huff v. Industrial Commission

503 P.2d 394, 18 Ariz. App. 436, 1972 Ariz. App. LEXIS 887
CourtCourt of Appeals of Arizona
DecidedNovember 28, 1972
DocketNo. 1 CA-IC 647
StatusPublished
Cited by1 cases

This text of 503 P.2d 394 (Huff 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
Huff v. Industrial Commission, 503 P.2d 394, 18 Ariz. App. 436, 1972 Ariz. App. LEXIS 887 (Ark. Ct. App. 1972).

Opinion

DONOFRIO, Judge.

This case is before the Court by writ of certiorari to review the lawfulness of an award and findings of the Industrial Commission of Arizona issued April 6, 1971, affirming an award for unscheduled permanent partial disability and denying applicant’s petition for hearing on the grounds that his petition showed no evidence that was not previously considered by the Commission. On April 26, 1971, within twenty days following the issuance of the award of April 6, 1971, counsel for applicant-petitioner filed a request for hearing on the award upon the grounds that the Commission overlooked the fact that the applicant had a conversion reaction related to the industrial injury which explains his loss of earning capacity and renders him totally disabled. No action was taken on this request, and this appeal followed. This case is decided under the law as it existed prior to January 1, 1969.

The question before the Court is whether the award is reasonably supported by the evidence. It is petitioner’s position that he has shown that he has sustained a functional or mental disability related to the industrial injury in addition to his physical disability and that the Commission has ignored this fact in the case.

[437]*437Petitioner suffered an industrial accident on December 6, 1967 wherein he sustained an acute crushing wound to the lower abdomen and a fracture of the anterior third of the body of the second lumbar vertebra with no compression or displacement when he got caught in between a plow and a tractor. The claim was accepted for benefits by the Industrial Commission on January 10, 1968.

On August 2, 1968 the Commission issued its award for continuing benefits and established petitioner’s average monthly wage. Petitioner hired counsel, an able practitioner in this field, and protested the award. After a hearing the Commission raised the average monthly wage from $361.53 to $441.67. The decision was rendered on July 11, 1969. Thereafter petitioner became dissatisfied and discharged his attorney. In the interim petitioner went to another able attorney in the field of compensation law to review his case, but did not employ him. He also consulted still another able lawyer which also did not end up in representation. Thereafter petitioner attempted to represent himself. He filed a protest to the Commission decision but did not file a petition for hearing.

What occurred procedurally from here on can be briefly set forth as follows. On October 10, 1969 the Commission issued findings and award and order pending determination of petitioner’s earning capacity. The award found that petitioner’s physical condition became stationary on August 19, 1969; that he had sustained an unscheduled disability; and that he was entitled to medical benefits and compensation for temporary disability through September 16, 1969. The Commission was unable to determine what effect petitioner’s disability had on his earning capacity as the evidence was insufficient thereon and it therefore reserved jurisdiction to make this determination. It also reserved jurisdiction to determine the issue of attorney’s fees which was raised by petitioner’s previous counsel. Pending determination of all this, petitioner would receive an advance in partial permanent benefits.

Petitioner protested this award of October 10, 1969, and on November 18, 1969 petitioned for a hearing which was held on April 22, 1970. Petitioner was not represented by counsel at this hearing, nor were any witnesses subpoenaed by him. At the conclusion of the hearing a motion for further hearing was granted in order to take the testimony of witnesses who were unable to appear.

On May 28, 1970 a further hearing was held and again petitioner was not represented by counsel, nor had he subpoenaed anyone to testify in his behalf. However, testimony was taken from Dr. Kelley, Mr. Lamoreaux (rehabilitation expert) and the petitioner.

The referee issued his report on June 10, 1970, finding that petitioner had sustained a 45.66% reduction in monthly earning capacity as a result of his industrial injury and was entitled to $110.92 per month until further order of the Commission. Thereafter petitioner retained yet another counsel to represent him. This attorney filed timely objections to the referee’s report.

On July 31, 1970 the Commission issued its decision upon hearing and findings and award for unscheduled permanent partial disability in affirmance of the referee’s report.

On August 6, 1970 petitioner’s attorney filed a petition for rehearing on the grounds that the award was arbitrary in granting petitioner only $110.92 per month, and that there was a total lack of showing that there were jobs present and available to petitioner which he would be able to perform in his current physical condition, making no mention of his functional overlay.

On February 18, 1971 the referee, who stated he had reviewed the entire file, recommended affirming the award and denying rehearing with a thirty-day clause. On April 6, 1971 the Commission issued an order denying the petition for hearing and attached a thirty-day clause.

Petitioner then retained the services of a new attorney who is his present counsel. [438]*438This attorney filed another petition for rehearing on April 26, 1971 on the grounds that the Commission had overlooked the fact that petitioner had a conversion reaction related to his industrial injury which resulted in a loss of earning capacity and rendered him totally disabled. No action was taken on this petition, and this appeal followed.

The crucial question presented is whether the Commission failed to make a determination of a vital issue in the case, namely, the issue of whether petitioner sustained a functional or mental disability related to his industrial injury in addition to his physical disability.

In Hatfield v. Industrial Commission, 89 Ariz. 285, 361 P.2d 544 (1961), an award was set aside because of the imprecise nature of the findings of the Commission with respect to the issue of whether an accident and injury proximately caused mental illness. We believe the reasoning therein is applicable to our case and that there was no finding on or proper mention in the award of petitioner’s mental or functional problems.

Inasmuch as petitioner employed an attorney for only a brief period shortly after the referee’s report of June 10, 1970, ■ and inasmuch as the issue herein was raised differently than it was in Hatfield, we believe it helpful to set forth some of the facts from the beginning which bear upon the mental disability issue.

The record shows that on March 14, 1968 a letter was filed from Dr. Harold C. Willingham stating that petitioner was extremely antagonistic, suspicious, and demanding. The Commission file continues to show as follows: Jrtne 29, 1968, a notation from Dr. Colling indicating petitioner claims impotency, tendency to weave, fears cancer, fears one hip is larger than the other; July 23, 1968, a group consultation with Drs. Lofdahl, Gans and Ettleson, in which it is noted that the patient is over-concerned with his condition; October 11, 1968, a notation from Dr. Alway concerning stocking type of hypesthesia concerning the right leg. Then, on November 16, 1968, Dr. Duisberg, a psychiatrist, reports:

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Bluebook (online)
503 P.2d 394, 18 Ariz. App. 436, 1972 Ariz. App. LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huff-v-industrial-commission-arizctapp-1972.