Pascucci v. Industrial Commission

616 P.2d 902, 126 Ariz. 442, 1980 Ariz. App. LEXIS 543
CourtCourt of Appeals of Arizona
DecidedApril 17, 1980
Docket1 CA-IC 2269
StatusPublished
Cited by25 cases

This text of 616 P.2d 902 (Pascucci 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
Pascucci v. Industrial Commission, 616 P.2d 902, 126 Ariz. 442, 1980 Ariz. App. LEXIS 543 (Ark. Ct. App. 1980).

Opinions

OPINION

OGG, Chief Judge.

In this appeal we must determine if the hearing officer erred in his determination that the petitioner’s herniated disc condition was not a new, additional or previously undiscovered condition which warranted a reopening of petitioner’s claim.

The petitioner claims that there has been a change in his condition or the discovery of a new undiagnosed condition which occurred after his prior petition for reopening was denied. The respondents claim the petitioner’s same lower back problems were litigated in the prior petition to reopen, and that his present petition is barred by the doctrine of res judicata.

The facts are not in dispute. Petitioner suffered an industrial injury on August 25, 1973, when a heavy load of crated lettuce fell from a cart and struck petitioner on the back. The blow was of such force that it caused a double herniation, knocked out some teeth, and injured his back. The injury was accepted for benefits and on December 13, 1976, the claim was closed with an award for temporary disability with no permanent disability.

Petitioner’s back pain persisted, he was unable to work, and on May 20, 1977, a petition to reopen was filed. At the hearing, Dr. David Rand, Dr. William Reid, and Dr. Thomas Taber testified that although they observed a defect on the myelogram, it was their opinion such defect was a spon-dylitic (bony) ridge, and did not indicate a herniated disc. Dr. Bernard Eisenfeld, radiologist, submitted a myelogram report showing his impression that there was a midline disc herniation at the L5-S1 level. Dr. Ranjit Bisla testified that from his examination of the patient and study of the myelograms, it was his opinion that the petitioner had a ruptured disc in the lumbo-sacral spine.

A Decision Upon Hearing and Findings and Award Denying the Petition to Reopen was issued on February 17,1978, and thereafter became final.

The petitioner’s disabling pain continued and he sought the help of Dr. John Kelley, neurosurgeon, who, after examining him and reviewing the myelogram, determined that petitioner had a protruding disc at the L5-L6 level. Dr. Kelley performed surgery on May 3, 1978, where he visually observed and removed a bulging herniated disc at the L5-L6 level. Based upon Dr. Kelley’s findings, the petitioner filed a new petition to reopen on June 13, 1978. The respondent carrier denied the petition by notice of claim status, and the petitioner filed a request for hearing.

At the hearing, Dr. Thomas Taber testified that from the data he had before him at the prior hearing, he had found nothing to indicate a herniated disc. Dr. William Reid testified that the same area of the back was considered at the prior hearing to reopen, and that although he saw a myelo-graphic defect, he believed it was caused by a spondylitic ridge rather than by a herniated disc. He further testified that in attempting to read a myelogram to determine a ruptured disc, “myelograms are notorious for misleading you.” Both doctors’ testimony indicates the ruptured disc found by Dr. Kelley was new or undiscovered as to them. Dr. Kelley testified that when he operated upon the petitioner, he found no bony ridge defects, and that his visual observation of the herniated disc only confirmed his diagnosis after noting the defect in the myelo-gram. Dr. Kelley was of the opinion that the herniated disc was directly causally related to the industrial injury, and this opinion was not contested by any medical testimony.

[444]*444The hearing officer found petitioner had a herniated disc causally related to the industrial accident of August 25, 1973. He further found such condition was not a new, additional or previously undiscovered condition since such condition had been “considered if not known at the time of the prior hearings.”

We will now apply the law to the facts to determine if the evidence supports the hearing officer’s award denying the claimant’s petition to reopen. Workmen’s compensation statutes are to be given a liberal interpretation in favor of the employee. Beasley v. Industrial Commission, 108 Ariz. 391, 499 P.2d 106 (1972); Pressley v. Industrial Commission, 73 Ariz. 22, 236 P.2d 1011 (1951); Bonnin v. Industrial Commission, 6 Ariz.App. 317, 432 P.2d 283 (1967). The petition to reopen is brought under the authority of A.R.S. § 23-1061(H) of the Arizona Workmen’s Compensation Act. The section provides in part:

An employee may reopen his claim to secure an increase or rearrangement of compensation or additional benefits by filing with the commission a petition requesting the reopening of his claim upon the basis of new, additional or previously undiscovered temporary or permanent condition . . . . (emphasis added)

A claimant therefore must establish the existence of one of the three conditions and a causal relation between that condition and the prior industrial injury before the claim can be reopened. Sneed v. Industrial Commission, 124 Ariz. 357, 604 P.2d 621 (Ariz.1979).

The legal problem generated in this appeal presents a difficult reasoning problem because there is a basic conflict between strict civil res judicata principles and the reopening provisions of A.R.S. § 23-1061(H). There are no provisions in the civil law to correct prior omissions and update judgments such as are provided for under § 23-1061(H). The facts in this case have also created difficult problems, for here we are dealing with the rather inexact medical science of predicting what permanent disabilities may flow from an injured back.

The respondents rely upon the legal concept stated in Aetna Insurance Co. v. Industrial Commission, 115 Ariz. 110, 563 P.2d 909 (App.1977), which held that newly discovered evidence indicating the original award was incorrect is not sufficient to reopen a claim that was previously closed. In Aetna, the claimant’s doctor testified that his prior diagnosis of a back sprain was in error, and that he now was of the opinion there was a permanent disability.

The petitioner relies upon the legal concept stated in Garrote v. Industrial Commission, 121 Ariz. 223, 589 P.2d 466 (App.1978), where the court allowed a reopening when the cause of a previously undiscovered low back problem was eventually determined after the case was closed. In Garrote, the court in analyzing the provisions of A.R.S. § 23-1061(H) stated that the “provisions are designed to mitigate the harsh consequences of general res judicata principles which would preclude any reexamination whatsoever of an applicant’s claim once it is litigated or closed without protest.” Id. at 224, 589 P.2d at 467.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Drake v. Az Cardinals
Court of Appeals of Arizona, 2016
Wells v. aps/pinnacle
Court of Appeals of Arizona, 2016
highway/arch v. Quiroz
Court of Appeals of Arizona, 2015
Bowen v. hyatt/gallagher
Court of Appeals of Arizona, 2014
Lovitch v. Industrial Commission
41 P.3d 640 (Court of Appeals of Arizona, 2002)
Bayless v. Industrial Com'n of Arizona
880 P.2d 654 (Court of Appeals of Arizona, 1993)
Ball Mfg. v. Industrial Commission
827 P.2d 487 (Court of Appeals of Arizona, 1992)
MANASSAS ICE AND FUEL CO. v. Farrar
409 S.E.2d 824 (Court of Appeals of Virginia, 1991)
Farish v. Industrial Commission
806 P.2d 877 (Court of Appeals of Arizona, 1990)
Kollasch v. INDUSTRIAL COM'N OF ARIZONA
783 P.2d 1216 (Court of Appeals of Arizona, 1989)
Perry v. Industrial Commission of Arizona
741 P.2d 693 (Court of Appeals of Arizona, 1987)
Pearce Development v. INDUS. COM'N OF ARIZONA
712 P.2d 429 (Arizona Supreme Court, 1985)
Fremont Indemnity Co. v. Industrial Commission
697 P.2d 1089 (Arizona Supreme Court, 1985)
Stainless Specialty Manufacturing Co. v. Industrial Commission
695 P.2d 261 (Arizona Supreme Court, 1985)
Bill Breck Dodge, Inc. v. Industrial Commission
675 P.2d 275 (Arizona Supreme Court, 1983)
Payne v. Industrial Commission
664 P.2d 655 (Court of Appeals of Arizona, 1982)
County of Maricopa v. Industrial Commission
654 P.2d 307 (Court of Appeals of Arizona, 1982)
Salt River Project v. Indus. Com'n of Ariz.
627 P.2d 692 (Arizona Supreme Court, 1981)
Bell v. Industrial Commission
617 P.2d 44 (Court of Appeals of Arizona, 1980)
Pascucci v. Industrial Commission
616 P.2d 902 (Court of Appeals of Arizona, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
616 P.2d 902, 126 Ariz. 442, 1980 Ariz. App. LEXIS 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pascucci-v-industrial-commission-arizctapp-1980.