Ohlmaier v. Industrial Commission

762 P.2d 574, 158 Ariz. 287, 5 Ariz. Adv. Rep. 39, 1988 Ariz. App. LEXIS 76
CourtCourt of Appeals of Arizona
DecidedApril 7, 1988
DocketNo. 1 CA-IC 3705
StatusPublished
Cited by1 cases

This text of 762 P.2d 574 (Ohlmaier 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
Ohlmaier v. Industrial Commission, 762 P.2d 574, 158 Ariz. 287, 5 Ariz. Adv. Rep. 39, 1988 Ariz. App. LEXIS 76 (Ark. Ct. App. 1988).

Opinion

OPINION

CORCORAN, Judge.

Petitioner/employee Richard Ohlmaier (claimant) seeks review of an award finding him stationary with no permanent impairment. Claimant raises two issues: first, whether the Administrative Law Judge (AU) erred substantively in finding no permanent impairment causally related to his industrial injury; second, whether the AU erred proeedurally by resolving a conflict in the medical testimony when he did not personally observe the physicians testify. Because we find no abuse of discretion, we affirm the award.

1. Factual Background

Claimant sustained a low back injury on October 19, 1983, while hammering a feed bin with a sledge hammer in the course of his employment. His claim for benefits was accepted, and claimant was treated for the injury until December 1983, when he returned to work. He had a sharp recurrence of back pain in February 1984, again while swinging a hammer at work. He was again treated, and returned to work in March 1984. He continued to complain of back pain and was finally released from work in May 1984. He has been unable to return to his former employment since then.

The carrier terminated claimant’s benefits without permanent disability effective September 11, 1985. Claimant timely protested the closure, and 3 hearings followed. The first hearing, held May 23, 1986, was before the deciding judge, Judge Terrence Kurth. At that hearing Warren D. Eddy, M.D., and claimant testified. The other 2 hearings, at which Robert T. Grimes, M.D., and John P. Utz, M.D., testified, were before nondeciding judges; thus, Judge Kurth did not preside during the testimony of the other two medical experts, although transcripts of those hearings were included in the claimant’s file. Claimant’s counsel was present at all 3 hearings and had the opportunity to cross-examine all adverse witnesses. However, claimant’s counsel timely objected, prior to the second hearing, to the procedure of having medical testimony taken at a hearing before a nondeciding judge, and renewed his objections at both subsequent hearings.

[289]*289In issuing his award, Judge Kurth summarized the testimony of all 3 testifying physicians and found a medical conflict in that testimony. He resolved the conflict by adopting the opinion of Dr. Eddy, “that the applicant does not have a permanent impairment related to the industrial injury in question,” as most probably correct and well founded. On the basis of that opinion, the AU concluded that claimant had not met his burden of proof in showing a permanent impairment.

2. Causal Relationship Between Industrial Injury and Permanent Impairment

We first address whether the AU erred in finding that claimant does not have a permanent impairment related to the industrial injury. Claimant argues that because he met the standards imposed in Cassey v. Industrial Commission, 152 Ariz. 280, 731 P.2d 645 (App.1987), he should be entitled to proceed to a determination of his loss of earning capacity.

In Cassey, this court concluded that disabling pain constitutes a permanent impairment if a claimant meets his or her burden of proof to show both the causal relationship between the industrial incident and the disabling pain and a resulting inability to return to his or her former work. 152 Ariz. at 283, 731 P.2d at 648. Here, claimant has failed to show a causal relation between the industrial injury and his present pain.

At the hearing, claimant testified that he has had consistent lower back pain since the October 1983 industrial incident. All 3 medical experts testified that claimant is unable to return to his previous employment because of the pain. The medical experts differed, however, in their opinions whether the present disabling pain was causally related to the industrial injury.

Dr. Grimes concluded that claimant’s present pain was causally related to the industrial injury. Dr. Utz found no objective evidence of a permanent impairment causally related to the industrial injury. Dr. Eddy testified that, although claimant could not return to his former job, his present condition was the result of his preexisting degenerative joint disease. The AU concluded that the “sole issue ... is whether the applicant has a permanent impairment/disability as a result of the industrial injury____” He found that a conflict existed in the medical evidence, and resolved that conflict by adopting the opinion of Dr. Eddy, that claimant “does not have a permanent impairment related to the industrial injury in question.”

We will not disturb the resolution of a medical conflict against a claimant absent an abuse of discretion. Ford v. Industrial Comm’n, 145 Ariz. 509, 519, 703 P.2d 453, 463 (1985). We will set aside an award only if no reasonable basis supports its conclusion. Reynolds Metal Co. v. Industrial Comm’n, 119 Ariz. 566, 582 P.2d 656 (App.1978).

Here, Dr. Eddy testified that he did not believe claimant’s present pain was a “direct result” of his industrial accident, but rather that his problems were a consequence of the “natural progression” of claimant’s preexisting “advanced degenerative joint disease of his lumbar spine.” Dr. Eddy had previously reported:

The incident which he describes of using the hammer, is undoubtedly only a trivial triggering mechanism to the early symptomatic phase of his disease development. He has undoubtedly recovered from this trauma of using the hammer. At the present time his symptoms are entirely based on his pre-existing degenerative or traumatic arthritis.

When questioned about this report, Dr. Eddy explained that he believed the industrial injury caused only a “temporary aggravation” because “it’s not reasonable ... this type of episode which he described could cause any permanent damage.” He testified that although it “doesn’t take much of anything to bring on symptoms in a back such as he has, ... I just can’t conceive of it causing such a great increment of disease that it would not be recouped by a period of rest and time and symptomatic treatment.” Further, although he had described the incident as a “triggering incident,” and analogized it as [290]*290the “spark” that caused the “explosion,” Dr. Eddy also testified that, based on reasonable probability, claimant would have had the same problems when he saw him, whether or not he had the industrial injury.

Claimant has clearly established the existence of his present pain and his resulting inability to do his former work; however, this alone will not meet his burden of proof to establish a permanent disability. See Arellano v. Industrial Comm’n, 25 Ariz. App. 598, 545 P.2d 446 (1976). In Arellano, this court emphasized the additional factors that claimant must show:

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Related

Ohlmaier v. Industrial Com'n of Arizona
776 P.2d 791 (Arizona Supreme Court, 1989)

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Bluebook (online)
762 P.2d 574, 158 Ariz. 287, 5 Ariz. Adv. Rep. 39, 1988 Ariz. App. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohlmaier-v-industrial-commission-arizctapp-1988.