Lawler v. Industrial Commission

537 P.2d 1340, 24 Ariz. App. 282, 1975 Ariz. App. LEXIS 699
CourtCourt of Appeals of Arizona
DecidedJuly 22, 1975
Docket1 CA-IC 1205
StatusPublished
Cited by23 cases

This text of 537 P.2d 1340 (Lawler 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
Lawler v. Industrial Commission, 537 P.2d 1340, 24 Ariz. App. 282, 1975 Ariz. App. LEXIS 699 (Ark. Ct. App. 1975).

Opinion

OPINION

WREN, Judge.

This review by certiorari challenges an award of the Industrial Commission which found that petitioner’s medical condition had become stationary without any permanent physical or mental disability. Specifically stated, petitioner challenges both the procedural manner in which the award was rendered, and the sufficiency of the evidence to support the award.

On July 13, 1971, petitioner, Thomas J. Lawler, sustained an industrial back injury diagnosed as a low back strain. His claim for workmen’s compensation benefits was accepted by respondent insurance carrier. In May of 1973, the carrier issued a Notice of Claim Status terminating all benefits. In protest thereof, three hearings were held, during which the following physicians testified: Dr. Carl Freund, an internist; Dr. William McGrath, a psychiatrist; Dr. Raymond Huger, a psychiatrist; Dr. Howard Aidem, an orthopedist; Dr. Robert Goodkin, a neurosurgeon. On May 8, 1974, the hearing officer entered his award finding that petitioner’s condition became medically stationary in May of 1973, and that petitioner suffered no permanent mental or physical disability attributable to the injury. The award was affirmed by the Commission on review and petitioner thereafter filed his petition for writ of certiorari with this Court.

Petitioner’s initial contention is that the respondents had the burden to justify the termination of benefits. We do not agree. The burden is on the claimant throughout to show by a preponderance of the evidence all the elements of his claim, and the carrier does not have to disprove it. Russell v. Industrial Commission, 104 Ariz. 548, 456 P.2d 918 (1969); Raymer v. Industrial Commission, 18 Ariz.App. 184, 501 P.2d 25 (1972). In this case, petitioner had the burden of showing that his condition was not stationary, Timmons v. Industrial Commission, 83 Ariz. 74, 316 P.2d 935 (1957), or in the alternative, that he had sustained a permanent disability. Spears v. Industrial Commission, 20 Ariz. App. 406, 513 P.2d 695 (1973).

Petitioner’s primary argument on this appeal is that he was denied a full and fair hearing in violation of his constitutional right to due process. He cites numerous rulings of the hearing officer during the three hearings.

He argues that the hearing officer’s interruption of his cross-examination of Dr. Aidem at the second hearing was a denial of due process. The record reflects that when the interruption occurred, a discussion was held off the record, following which the hearing officer stated that the doctor had two surgeries scheduled. The hearing officer then excused the doctor, rescheduling him for a third hearing which was held approximately six weeks later. Petitioner completed his cross-examination of Dr. Aidem at the third hearing.

Petitioner asserts that he was “prejudiced” by not being able to finish his cross-examination at the second hearing. He reasons that the doctor was relieved *285 from answering questions under the “pressure of the moment”, and was allowed time to reflect and cogitate on his answers.

Petitioner does not claim that the doctor committed perjury at the third hearing. We note also that there is no evidence in the record showing that either the hearing officer or the respondents had knowledge of the doctor’s time restrictions prior to the interruption. We recognize that in Commission proceedings the interests of the parties must be considered as paramount. However, we also recognize that substantial reliance must be placed on medical experts, and every effort must be made to facilitate the taking of such testimony at a minimum of inconvenience to the physicians and their patients. In this case, the petitioner has shown no evidence of prejudice constituting a denial of due process.

Petitioner next contends that a . motion picture taken of petitioner was improperly admitted into evidence in contravention of Rule 47, 1 *Rules of the Industrial Commission. Under Rule 47(a), notice of intent to offer motion pictures into evidence must be given to all interested parties prior to the first scheduled hearing. However, 47(e) explicitly states that the provisions of Rule 47 do not apply to motion pictures obtained by surveillance. Petitioner construes subsection (e) as prohibiting the introduction of all surveillance film into evidence at Commission proceedings. He reasons that a contra interpretation would make surveillance films not subject to the foundational requirements for admissibility set out in 47(c). Again, we disagree, both with petitioner’s reasoning and construction of the Rule. Despite the inapplicability of Rule 47 to surveillance films, such films must be authenticated and relevant to be admissible. Udall, Law of Evidence § 132 at 280 (1960). If a film is a substantially accurate and correct representation of relevant facts observed, then it should be admissible. Slow Development Co. v. Coulter, 88 Ariz. 122, 353 P.2d 890 (1960); McCormick on Evidence § 214 (1972). It has been stated that the trial court — or in this case the hearing officer, has considerable discretion as to the admissibility of such evidence. Baker v. Atchison, Topeka and Santa Fe Railway Co., 11 Ariz.App. 387, 464 P.2d 974 (1970). We find no basis in the record for saying that this discretion was abused by the hearing officer here.

Petitioner additionally argues that Commission Rules 14, 31(d) and 55(a) 2 were *286 violated by respondents use of the motion picture. His contentions revolve around respondents showing of the film to Dr. McGrath, following an examination of petitioner by the doctor, but prior to the first hearing.. In his report following the examination, a copy of which was given to petitioner, Dr. McGrath indicated that petitioner had a psychiatric disorder historically related to his industrial episode. However, after viewing the film, the doctor changed his opinion — based partly on the film, and testified at the first hearing that petitioner had no psychiatric disorder. Petitioner apparently did not become aware of either the film or Dr. McGrath’s revised opinion until the doctor testified at the first hearing. Compliance with the cited rules, he states, would have given him notice of the change of opinion prior to the hearing so as to enable him to properly prepare.

In our opinion, however, none of the Rules cited by petitioner were applicable to the situation here. In relevant part, Rule 14 requires that when an examination is made of a workman by a physician, prior notice must be given to the workman. Petitioner argues that Dr. McGrath’s viewing of the film was an examination by the doctor of petitioner in contravention of the rule. We disagree. The language of the rule must be construed in accordance with its ordinary meaning.

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Cite This Page — Counsel Stack

Bluebook (online)
537 P.2d 1340, 24 Ariz. App. 282, 1975 Ariz. App. LEXIS 699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawler-v-industrial-commission-arizctapp-1975.