Salt River Project v. Industrial Commission

613 P.2d 860, 126 Ariz. 196, 1980 Ariz. App. LEXIS 520
CourtCourt of Appeals of Arizona
DecidedJuly 1, 1980
Docket1 CA-IC 2248
StatusPublished
Cited by13 cases

This text of 613 P.2d 860 (Salt River Project 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
Salt River Project v. Industrial Commission, 613 P.2d 860, 126 Ariz. 196, 1980 Ariz. App. LEXIS 520 (Ark. Ct. App. 1980).

Opinion

OPINION

JACOBSON, Judge.

This petition for review of an award of the Industrial Commission raises the problem of assessing the industrial responsibility for a reopening where the medical testimony indicates that the claimant’s present condition is causally the combination of two different industrial injuries which are the responsibility of two different carriers.

The respondent workman, Donald M. Reeves, has been continuously employed as a lineman by the petitioner, Salt River Project (SRP), for over 21 years. In 1965, Reeves, as the result of a fall from a power pole, sustained an injury to his back at the LA-5 level. Reeves’ industrial claim was accepted for benefits by the State Compensation Fund, at that time the industrial liability carrier for SRP. This claim was subsequently closed with no permanent disability.

Reeves continued to work for SRP as a lineman foreman with mild symptoms of back pain until 1977. On August 24, 1977, Reeves sustained another industrial injury when he twisted his lower back while dipping water from a lake, preparatory to installing a transformer. At this time, SRP had become a self-insurer for workmen’s compensation purposes. Again, this claim was accepted for benefits and subsequently closed with no permanent disability.

Following closure of the 1977 injury claim, Reeves’ symptoms of back pain increased and in May and June of 1978, he sought medical advice from Dr. George L. Hoffmann, Dr. W. Ransom Kelley, Dr. Dennis L. Armstrong and Dr. B. Anthony Dvorak. The general consensus of these doctors was that Reeves was at that time suffering from a herniated intervertebral disc on the left at the LA-5 level.

On June 1,1978, Reeves filed a petition to reopen the August 24,1977 industrial injury which was followed by a notice of claim status denying the petition to reopen.

Reeves, on July 13, 1978, filed a timely request for hearing directed to the denial of the petition to reopen the 1977 injury. On the same date, Reeves also filed a petition to reopen the 1965 industrial injury claim. This was subsequently denied by a notice of claim status issued by the State Compensation Fund. A timely request for hearing was directed to this denial and subsequently both reopening petitions were consolidated for hearing.

In the meantime and before hearings were held in this matter, Reeves underwent surgery by Dr. James S. Volkel which revealed a herniated disc at the LA-5 level as well as hypertrophic spurring.

At the hearings held in this matter, the issue presented was whether Reeves’ herniated disc was a new, additional or previously undiscovered condition causally related to either the 1977 or the 1965 industrial injuries.

The hearing officer resolved these issues by determining that the herniation was a new, additional or previously undiscovered condition (without designating which), and that it was causally related to the 1977 industrial injury and therefore allowed reopening of that claim. By the same award he denied reopening of the 1965 industrial injury. Only SRP has sought review of that award. However, as stated by SRP in its opening brief:

Although Salt River Project . [has] filed a Petition for a Special Action in regard to the Findings and Award of March 30,1979, they wish to make it clear that they are not protesting that portion of the Award wherein the Hearing Officer denied the claimant’s Petition to Reopen the January 19,1965 industrial injury-
*199 Therefore Salt River Project . . . [is] not contending that the Hearing Officer should have reopened the January 19, 1965 injury as opposed to the August 24, 1977 industrial injury.

Brief for Petitioner at 18.

Since Reeves has not sought by cross petition to question the validity of the denial of the petition to reopen the 1965 injury and based upon the foregoing disavowal by SRP, the respondent State Compensation Fund’s appearance before this court has been perfunctory, contending only that as a matter of law under these circumstances this court must affirm that portion of the award denying the reopening of the 1965 claim.

SRP has raised only three issues before this court:

1. Whether the medical testimony as to causation is couched in terms of possibilities and therefore is unable to support an award;
2. Whether the hearing officer’s resolution of the medical testimony is legally sufficient to support an award; and
3. Whether the medical testimony which supports a causal connection is foundationally sufficient to be relied upon.

These issues require a review of the medical evidence presented at the various hearings. While several doctors testified before the hearing officer, only Drs. Volkel and Armstrong gave the crucial causal connection opinions which are attacked here.

Dr. Armstrong’s testimony on this point was:

Q. Could you with reasonable medical certainty or probability cite one or more of these traumas, such as the ’65 fall off the pole or the water bucket episode of ’77 or the final falling in the ditch in November of ’78, as the cause of his having to be operated on and lose time from work?
[objection overruled]
A. I think it was all an accumulation of episodes which began in ’65 when he fell from the pole. . 527 . [A]nd he has continued to have episodic symptoms at that level since that time.
Q. All right. In other words, all three of these episodes or even other traumas might have had a part to play in causing his condition?
A. That is my opinion; that’s correct.

Dr. Volkel described the repeated injury process in explaining the bony spurs found on Mr. Reeves’ spine at the time of surgery:

Q. . . .We already talked about the spurs. Is there any method of establishing what brought about or when the herniated disc was brought about?
A. Well, if you assume that the spurs were the result of the herniated disc initially, then the spurs could have been produced as the build-up of the ’77 or ’65 incidents, or for that matter, if he had previous injuries even before that.
The discs can rupture sort of by degrees. You might have a certain amount of rupturing with an injury. It stays there. It calcifies partially. You have another injury. It ruptures further, gets more calcification, and finally have a spinal injury which precipitates operative intervention.
Based upon this analysis, Dr. Volkel further testified:
Q. Would it be more likely or probable that a series of traumas such as the ’65 and ’77 incidents and finally the fall in the ditch in ’78 all contributed?
A. No question. I don’t think there is any question about that. I think all of these things contributed.
Q. Each and all of them bore its part?
A. Bore a part, yes.
Q. A part?

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Bluebook (online)
613 P.2d 860, 126 Ariz. 196, 1980 Ariz. App. LEXIS 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salt-river-project-v-industrial-commission-arizctapp-1980.