Noblitt v. Industrial Commission

432 P.2d 162, 6 Ariz. App. 303, 1967 Ariz. App. LEXIS 566
CourtCourt of Appeals of Arizona
DecidedOctober 3, 1967
Docket1 CA-IC 138
StatusPublished
Cited by3 cases

This text of 432 P.2d 162 (Noblitt 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
Noblitt v. Industrial Commission, 432 P.2d 162, 6 Ariz. App. 303, 1967 Ariz. App. LEXIS 566 (Ark. Ct. App. 1967).

Opinion

CAMERON, Chief Judge.

This is a writ of certiorari to review the lawfulness of the findings and award of the Industrial Commission of Arizona. We are called upon to determine:

1. Whether the determination of petitioner’s average monthly wage in a so-called ’’light work order” was res judicata?
2. Was the finding that the petitioner suffered a 25% loss of function of the right hand reasonably supported by the evidence?

The facts necessary for a determination of this matter are as follows. The petitioner was injured on 2 February 1965, in the course and scope of his employment for respondent C. C. Arizona Mines. Petitioner caught his right hand in the fan of a piece of heavy equipment, sustaining lacerations and fractures of the middle and index fingers. He received medical treatment and was released for light work. The so-called “light work order” reads in part as follows:

“FINDINGS AND ORDER TO RETURN TO WORK FINDINGS
“1. That the above-named applicant sustained a personal injury by accident arising out of and in the course of his employment on February 2, 1965.
“2. That the average monthly wage at the time of injury was $293.00.
“3. That medical evidence indicates that applicant was released as able to work on August 23, 1965.
ORDER
“IT IS ORDERED that applicant make a sincere, honest and conscientious effort to find and perform work; that if applicant is now working that he continue to do so.
* Ifc * * *
“IT IS FURTHER ORDERED that any party aggrieved by these Findings and Order may apply for rehearing of the same by filing written application therefor at the Office of this Commission within twenty days from service of said Findings and Order.”

On 13 September 1965 his doctor reported that he was totally disabled, and on 17 September 1965 a bone graft was performed [305]*305on his right hand. On 15 February 1966 the Commission issued a new light work order similar to the one issued 23 August 1965.

WAS THE LIGHT WORK ORDER RES JUDICATA?

The petitioner was seen by a medical consultation board on 11 August 1965. They reported that it was their impression that the claimant’s position was not stationary, and that he was in need of further treatment. They recommended surgery for a bone graft on his finger. They reported that they did not feel that the petitioner could return to his regular duties as an equipment operator at that time. The file contains a memorandum dated 2 September 1965 which states that the attending physician’s secretary had advised the Commission by telephone that he was putting the petitioner on light work to determine if he could perform it, and that he had decided to delay surgery until he observed whether the petitioner was able to do the light work. With this background, the Commission issued their findings and order to return to work on 9 September 1965. Five days later on 13 September 1965, the attending physician reported that the petitioner had attempted to return to work, but that the work was too difficult for him, and that the attending physician had scheduled the surgery recommended by the consultation board for 17 September 1965, and he reinstated him on total temporary disability status as of that date.

The average monthly wage was initially set forth in the light work order 8 September 1965 and reaffirmed on 15 February 1966. The award of 17 March 1967 contains this finding:

“1. Applicant’s average monthly wage was established by the September 9, 1965, findings and order to return to work which became final without protest and is, therefore, res judicata.”

The function of the light work order is ably demonstrated by this example of its use. This is an interim order of the Commission. It is not intended to, nor does it have, finality. In the instant case, at the issuance, the petitioner’s physical condition had not been determined to be stationary either by his attending physician, or by the board of medical consultants. To the contrary, the consultation board had recommended surgery. The attending physician used this order as a test to determine whether or not the recommended surgery was the proper procedure in petitioner’s case or whether it would be possible to continue with more conservative treatment. The petitioner made an attempt to return to work but found that it was impossible for him to perform his duties. When -he reported this to the physician, the physician notified the Commission that it would be necessary to perform further surgery. The Commission, the record shows, issued the superseding order on its own motion, and reinstated the petitioner’s total temporary disability.

Such orders which look to the rehabilitation and restoration to gainful employment of the injured workmen are to be encouraged, and workmen in attempting to abide by these orders and to return to gainful employment should not have the additional burden of petitioning for rehearing or for writs of certiorari while at the same time trying to abide by the Commission’s light work orders. In addition to defeating the purpose of the Commission’s light work orders, such requirements would lead to piecemeal litigation of matters that could properly and logically be reserved until the time to question the award. Our statute defines “award” as follows:

“1. ‘Award’ means the finding or decision of the commission of the amount of compensation or benefit due an injured employee or the dependents of a deceased employee.”
“7. ‘Order’ means and includes any rule, regulation, direction, requirement, standard, determination or decision of the commission. * * * ”
[306]*306“9. ‘Special order’ means and includes an order other than a general order.” 23-901 A.R.S.

And our Supreme Court has stated:

“It is very clear from the foregoing sections that the words ‘order’ .and ‘award’, used in the. Workmen’s Compensation Law, do not mean the same thing and the former does not include the latter.” Murphy v. Industrial Commission, 52 Ariz. 343, 347, 80 P.2d 960, 962 (1938).

There is a great distinction between intermediate procedural orders such as the light work orders in this case, and final disposition of a claim from which the petitioner could seek redress in this Court. The latter is final and res judicata and the former is not. Bailey v. Industrial Commission, 2 Ariz.App. 518, 410 P.2d 140 (1966). The doctrine of res judicata does not extend to interim orders and interlocutory decrees. We hold that the light work order issued, in the instant case was not a final judgment .or award rendered upon the merits, therefore, the determinations of fact contained in it did not become res judicata.

PERCENTAGE OF LOSS OF USE OF RIGHT HAND

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Related

Talley v. Industrial Commission
451 P.2d 886 (Court of Appeals of Arizona, 1969)
Russell v. Industrial Commission
448 P.2d 407 (Court of Appeals of Arizona, 1969)
Powell v. Industrial Commission
441 P.2d 553 (Court of Appeals of Arizona, 1968)

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Bluebook (online)
432 P.2d 162, 6 Ariz. App. 303, 1967 Ariz. App. LEXIS 566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noblitt-v-industrial-commission-arizctapp-1967.