Sherman v. Industrial Commission

761 P.2d 1081, 158 Ariz. 177, 5 Ariz. Adv. Rep. 36, 1988 Ariz. App. LEXIS 86
CourtCourt of Appeals of Arizona
DecidedApril 5, 1988
DocketNo. 1 CA-IC 3689
StatusPublished

This text of 761 P.2d 1081 (Sherman 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
Sherman v. Industrial Commission, 761 P.2d 1081, 158 Ariz. 177, 5 Ariz. Adv. Rep. 36, 1988 Ariz. App. LEXIS 86 (Ark. Ct. App. 1988).

Opinion

OPINION

EUBANK, Judge.

This is a special action review of a consolidated Industrial Commission award which found, in part, that petitioner’s claim of February 14, 1986 “for a rash which appeared on [petitioner’s] lower abdomen” was untimely filed, depriving the commission of jurisdiction to decide the merits of the claim.

Petitioner (“Sherman”) presents the following question for review:

Whether the claim filed February 14, 1986, for the claimant’s osteomyelitis was filed within one year of the date upon which the said condition became manifest or within one year of the date when the claimant knew or in the exercise of reasonable diligence should have [178]*178known that the said condition was the result of a compensable injury.

Respondent raises an additional question:

even if the claim herein were timely filed, would the Award denying jurisdiction have to be set aside where claimant failed to produce any competent and unequivocal medical evidence proving a causal relationship between his employment and the condition for which benefits are claimed?

We find that the first issue is dispositive of this case, and, consequently, do not reach the second issue. For the following reasons, we set aside the award.

1. FACTS AND PROCEDURAL BACKGROUND

The record indicates that on occasion Sherman has suffered from a recurring rash on his abdomen dating back at least to November 1975. The rash sporadically occurred years before Sherman became employed by the respondent employer, Progressive Mechanical, Inc.

In 1978, Sherman suffered a work-related low back injury while working for another employer who is not involved in this case. Sherman eventually underwent surgery in 1979 or 1980 for removal of a herniated disc at L4-5. He also testified that he had suffered from back pain during the two or three years prior to the 1978 injury.

In July 1982, Sherman was hired by respondent Progressive Mechanical, Inc. as a sheet metal worker. Apparently, the metal he worked with had some type of fish oil coating. To keep his hands clean, he would constantly wipe his hands “across [his] belly ... or down on [his] pants.” This occurred on a daily basis.

On September 25, 1984, Sherman suffered another work-related low back injury when he caught the full weight of a piece of sheet metal weighing approximately 150 pounds. This injury was essentially a lumbosacral sprain located at L4-L5. During the following two days, Sherman suffered pain, developed a high fever, and became delirious, at which point he was taken to a hospital.

In the hospital, Sherman underwent several diagnostic tests, which resulted in a determination that the cause of his fever was septicemia (blood poisoning). Blood cultures revealed the presence of Staph Aureus Coagulase Positive. After several days in the hospital and antibiotic treatment, the septicemia was brought under control and his back improved enough for him to be released from the hospital.

During the following months, Sherman underwent a program of conservative treatment, including physical therapy, observation, and medications. Nevertheless, his back pain continued.

As a result, in May 1985, Sherman was hospitalized again, and underwent a lumbar myelogram and a CT scan. These tests revealed the existence of osteomyelitis, (an infectious bone inflammation), located at T12-L1, including abscesses in the infected area. The bacteria which caused the osteomyelitis was Staphylococcus Aureus, although no one ever administered tests to determine whether it was identical to the organism associated with the septicemia approximately six months earlier. The abscess was drained, and Sherman was placed on an extended course of antibiotic treatment, which will continue on a long-term basis.

In June 1985, group medical consultants confirmed that Sherman had an active staph osteomyelitis, but stated: “It is difficult to relate the vertebral osteomyelitis to the twisting injury to the back that occurred on September 25, 1984.” Indeed, in July, 1985, the consultants confirmed that with “regard to the twisting injury of September 25, 1984, the patient’s condition'is stationary, and there is no permanent impairment related to that injury.”

On February 14, 1986, Sherman filed a claim with the Industrial Commission of Arizona for “skin infection, staph infection, and other complications,” alleging, in essence, a gradual injury which occurred “up to and including 9/24/84.”

On February 21, 1986, by “Notice of Claim Status,” the respondent insurance carrier denied Sherman’s claim on the [179]*179grounds: (1) “No Medicolegal causation [sic]” and (2) “Claim Not Timely Filed.” Subsequently, Sherman requested a hearing before the Industrial Commission.

At the time of the hearing, the spinal abscesses had resolved completely, but some irreparable bone damage existed. Sherman continued to suffer some pain and limitation of motion in his back, and there was a possibility that the osteomyelitis might reoccur without warning at any time.

On October 16, 1986, the administrative law judge found, as quoted above, that Sherman’s February 21,1986 claim was not timely filed, and that as a consequence, the Industrial Commission lacked jurisdiction to decide the merits of the claim.

2. MOTION TO DISMISS

On October 9,1987, the respondents filed a motion to dismiss1 Sherman’s petition for special action, noting the omission of defendant Finishline Industries and its carrier Transportation Insurance Company from the caption of the special action, and arguing that they are “indispensable” parties within the meaning of Associated Grocers v. Industrial Comm’n, 126 Ariz. 412, 616 P.2d 87 (App.1980). This case is distinguishable from Associated Grocers, however. In that case, the parties stipulated that the unnamed parties in the petition for special action were, in fact, “indispensable.” In contrast, in this case, both of the unnamed defendants had been dismissed by the administrative law judge himself prior to the hearing referred to above. The award from which Sherman petitions special action does not operate to dismiss the unnamed defendants, but rather merely takes notice that they had been dismissed earlier. The fact that the caption of the award continued to include the unnamed defendants as parties is perhaps more indicative of secretarial oversight than it is of “indispensability.” The administrative law judge certainly did not consider them to be “indispensable.” Finally, and in any event, even though we set aside the award, our decision will not cause the unnamed parties to be injected back into this action, again, because they were dismissed by the administrative law judge prior to the hearing and award. Accordingly, the respondents’ motion to dismiss is denied.

3. TIMELINESS

Concerning the February 14, 1986 claim, the administrative law judge stated: “[s]ince the injury was ...

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Bluebook (online)
761 P.2d 1081, 158 Ariz. 177, 5 Ariz. Adv. Rep. 36, 1988 Ariz. App. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-industrial-commission-arizctapp-1988.