Tolmachoff v. Industrial Commission

442 P.2d 145, 7 Ariz. App. 587, 1968 Ariz. App. LEXIS 446
CourtCourt of Appeals of Arizona
DecidedJune 17, 1968
DocketNo. 1 CA-IC 188
StatusPublished

This text of 442 P.2d 145 (Tolmachoff 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
Tolmachoff v. Industrial Commission, 442 P.2d 145, 7 Ariz. App. 587, 1968 Ariz. App. LEXIS 446 (Ark. Ct. App. 1968).

Opinion

STEVENS, Judge.

The issue before this Court is whether the record sustains the action of The Industrial Commission in refusing to reopen a prior award of no compensation. ¡

On 3 July 1962, Tolmachoff, then age 60, was using a hammer or gun, driving concrete nails and felt a sharp pain in his right wrist. He was seen by Dr. Smith. Proper reports were filed with The Industrial Commission and on 15 October 1962 the case was closed without an award of compensation. He filed a “petition and application for readjustment or reopening of claim”. The petition bears two file stamps, one dated 7 February 1966 and one dated 23 February 1966. The petition was denied by an award dated 23 March 1966. On 24 March 1966, Tolmachoff filed a petition for rehearing and on 9 May 1966 he employed' counsel.

A formal hearing was held on 30 August 1966. The referee summarized the matter as follows;

“ * * * The issue before the Commission at this time is whether the Applicant has any new, additional, or previously undiscovered disability attributable to the industrial accident in question, and particularly whether the Applicant had the new, additional, or previously undiscovered disability on the date that he filed his Petition & Application for Readjustment or Reopening, which was February 23, 1966.”

In relation to this summary, both Mr. Johnson and Mr. Parsons responded in the negative when asked whether there were “any corrections or additions”.

Dr. Smith was not called as a witness and there is a later letter in the file stating that the petitioner did not desire to cross-examine Dr. Smith.

The witnesses at the hearing were Dr. Taber, Dr. Roth and the petitioner.

Dr. Taber is an orthopedic specialist who first saw Tolmachoff in March 1966 and who in his report to the Commission before the hearing recommended X rays and diagnostic studies. It was Dr. Taber who recommended that Tolmachoff be seen by, Dr. Roth who, at the time of the hearing, had seen Tolmachoff several times and [588]*588was a continuing treating physician. Dr. Roth is a specialist in the field of rheumatology, a specialty in the treatment of arthritis.

Dr. Taber testified that Tolmachoff had had gout for some time this being a general systematic disease. He further testified that gouty arthritis can be aggravated by trauma. He testified that the events of July 1962 probably were significant and further testified that any triggering or aggravation resulting from the 1962 events had subsided by 1966. In his opinion the 1962 aggravation would be only temporary.

Dr. Roth expressed the opinion that Tolmachoff’s problems were not gouty arthritis nor were they degenerative arthritis but were rheumatoid arthritis. He testified that the July 1962 incident was a factor and played a significant role. He further testified that he was unable to give a percentage of disability as of the date of the hearing and believed that the right wrist condition . was progressive. At the time of the hearing both wrists were involved with arthritic problems although the evidence does not show any trauma or contributing factor to the left wrist problem. With reference to the two wrists we find the following testimony:

“Q But that his right wrist was worse, is that correct?
“A Well, no, both of them actually showed synovial thickening; in fact, I graded them both as two plus thickening, which is a significant degree of involvement, but chronologically his right wrist has persisted over the years as the one that has been most involved and, therefore, I don’t think we have ever X-rayed the wrist. I am sure that if we did, we would find that it would probably be the most damaged one, because it has been involved. This one was more acutely involved over a short period of time, the left one, but the right one was involved with very little history of remission. It was involved over the years.”

Bearing in mind the outline of the issues which were set forth by the referee and agreed to by Johnson, we must remember; that the October 1962 award became final and that the problem presented to the Commission was the disability as of 23 February 1966. In this connection the most significant portion of Dr. Taber’s testimony is as follows:

“Q Are you able to say whether or not in the absence of the episode back in 1962 his right wrist would be at the time you examined him in the condition that it was?
“A Would this have occurred without—
“Q Could it have occurred, yes.
“A I think I said earlier that it could have. It didn’t in this case, but it could have. He could have gone on and developed rheumatoid arthritis involving any of the joints that are involved. These are common areas of involvement with rheumatoid disease.
In this case, specifically, there was this factor, and—
“Q Would you elaborate on that ‘there was this factor’?
“A There was the factor that he did notice his difficulty after use of the hand gun, that apparently he was using the hand gun while he was still having symptoms, and that this not only precipitated the trouble, but possibly even aggravated the early trouble with the wrist. Whether this means that this is more involved now than it would have been had he not been using the hand gun, I think is very difficult to say right now. (emphasis added)
“Q Is what you have said on the basis of reasonable medical certainty or probability ?
“A As far as this being a precipitating factor?
“Q Yes.
“A Yes, I think so.”

[589]*589The most significant portion of this testimony is the italicized portion.

The referee’s report is, in part, as follows :

“ISSUE
The existence of new, additional, or previously undiscovered disability attributable to the industrial accident of 7-3-62.
“ULTIMATE FINDINGS
"1. Medical evidence before the Commission establishes a pre-existing condition of Rheumatoid Arthritis.
“2. Medical evidence before the Commission establishes that the episode of 7-3-62 aggravated and precipitated the onset of the Rheumatoid Arthritic condition of the right wrist; that said condition was brought about earlier; and has progressed more rapidly by reason of the episode, than it in all likelihood would have otherwise.
■“3. Applicant is currently under the care and treatment of his attending physician, Sanford H. Roth, M. D., and further medical care and further treatment is indicated.
“FINDING AND CONCLUSION
Medical evidence establishes that applicant has new, additional or previously undiscovered disability attributable to the ■episode of 7-3-62.
“RECOMMENDATION
That the Commission rescind the FINDINGS AND AWARD DENYING REOPENING OF CLAIM entered on 6-22-66, and enter FINDINGS AND AWARD FOR NEW AND ADDITIONAL DISABILITY from and after 2-23-66, for accident benefits and compensation as indicated.”

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423 P.2d 348 (Arizona Supreme Court, 1967)
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Bluebook (online)
442 P.2d 145, 7 Ariz. App. 587, 1968 Ariz. App. LEXIS 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tolmachoff-v-industrial-commission-arizctapp-1968.