Cavco Industries v. INDUS. COM'N OF ARIZ.

INDUSTRIES, Petitioner CAVCO

Employer, Company, Indemnity

Industrial Carrier,

Petitioner

v. OF

The INDUSTRIAL COMMISSION

ARIZONA, Respondent, Minney, Employee. Respondent

Irieda A.

No. 15160-PR. Arizona,

Supreme Court of

In Banc.

July 10, 1981. (hereafter

Respondent Irieda re- spondent) involved in an industrial ac- cident on March 1974 in the course of employment petitioner employer, her injuries Cavco Her consisted of Industries. (knee patella cap) a fracture left and of her ligaments strained left thumb. Peti- her accepted respondent’s tioner carrier claim years for benefits. Four later it issued a determining Notice of Claim Status respondent permanent impairment had a leg her left scheduled which entitled compensation. Respondent request filed a hearing. hearing, impair- for At the ment in the function of her left knee was disputed. was whether issue there was a to her left thumb which when combined with leg impairment give rise to unsche- would v. Industri- compensation. Engle duled See al 269 P.2d 604 originally officer found no thumb, rejecting the Morgan, opinion medical of Richard L. M.D. accepting physician’s another review, request for On a himself, accept- officer reversed Morgan’s finding ed Dr. thumb, gave respondent injuries.

award for unscheduled position is that the award Petitioners’ must be aside because “Dr. testi- Jennings, Strouss & Salmon Steven C. law, mony suspect is so as a matter Lester, Phoenix, petitioners. for it cannot afford a basis” for the award. Harris, Counsel, Calvin The Indus. Chief premise petitioners’ position is that Commission, Phoenix, respondent. for April concluded there was no Johnson, Phoenix, respondent Chris T. after be- thumb. Petitioners contend that employee. by respondent’s attorney informed give her an un- such an STRUCKMEYER, Chief Justice. award, changed his scheduled the doctor petition This matter arises out of a opinion gave percent her a five Appeals review a Court of decision point rating. support, petitioners For which an that the medical report April to the doctor’s 4th medical of the Industrial was based was Commission respondent’s attor- April 18th letter to incredible. Cavco Industries v. Industrial ney. report, 4th Dr. Mor- accepted pur- (App.1980). Jurisdiction was gan wrote: Opinion suant 12-120.24. to A.R.S. § patient’s Award of the left thumb does not bother Court of vacated. any heavy gripping. Industrial Commission affirmed. her unless she does al he was impairment of the but X-rays were taken which demonstrate he felt that degenerative changes some minimal reluctant to it because joint. patient applicant per- the IP has no loss of provide it would not benefits; thus, joint. motion of this rather manent establishing that than the evidence orthopa- patient’s condition is now up came with an after-the-fact edically stationary. There is no need for obtaining rating solely purpose for the further examinations treatments. The applicant, it establishes patient discharged can benefits for the now be with a opinion originally honest medical partial disability equivalent that im- a ratable thumb leg.” 20% functional loss of the left was that there was report for the pairment which he did not 19th, April Morgan the letter of Dr. reason stated.” wrote: Morgan’s Minney “Mrs. was in the office on the 4th from Dr. This followed April problem 1978. The referrable to reason explained the testimony in which the leg April left thumb and the left were in his noting for not the thumb patient. discussed with the does She report. 4th have changes some of the why April on “Q. any Is there reason left thumb and very minimal functional discharged Minney Mrs. you loss of this give thumb. It was elected to thumb, and no to the left patient primarily the disability her re- put twenty percent instead leg. ferrable to her left This was so leg? solely to the left done. A. Yes. letter, your appears you From it Q. Why was that? patient wish to have this have an unsche- I you A. told her that if do have some disability. duled degenerative changes your minimal Therefore, patient I feel this has a 5% thumb, you disability have some * * * functional loss of the left thumb. your functional loss referable hope I clarify my this will further evalua- thumb, discharge you and if I patient’s tion of this condition.” you’ll discharged general be with a dis- ability. Basically very its minimal refer- April It is true that 4th major disability able to the thumb. Your contains no indication of an rat leg, you get if your is referable to ing for the thumb. But this fact will receive disability, you scheduled then necessarily conclusive. It does not follow money for that and it will have basis April Morgan opin that on 4th Dr. held also, put earning capacity. And I I ion impairment, that there was no and that here, patient after calls. down will dictate changed opinion he later created or her, explained I this all to and I told And increase benefits. general disability based you if want a her testimony at and I’ll incapacity, call me back on her petitioners’ premise establishes letter, or I in that calculate it out like did that on 4th Dr. held a medical a scheduled you if want to let it stand as opinion of no way it will be. disability, that’s the Rather, thumb is incorrect. we believe the So, her de- Q. you going were to let substantially supports evidence cide? finding. modified her, ways, go you I told could both provides: disability your you very minimal “8. that at the time Mor- [Dr. mean, hardly any; I as little rating, and gan’s] April, 1978 before he give you. we could applicant imput received from the or her scheduled, Q. you gave her the So type rating de- counsel relative to the from Mr. John- sired, opinion his medical then received a letter it was in fact minimal, [respondent’s attorney]? was at least residu- son that there complain Morgan in that Dr. A. That is correct. reaching his Q. wanted it to be And Mr. Johnson American Medical Association’s follow the basis? rated on a non-scheduled of Permanent to the Evaluation any disability said if there is A. He previously referred Impairment.” We have part body, referable to procedure of the Industrial to the rule of disabili- then it would be an unscheduled 4-13-113(D), A.C.R.R. R— totally every true with ty, and to rate provides: has, she she minimal discharge from treatment upon “If general should have had a functional employee has finds that physician person. of the whole function as impairment of sustained an Q. Johnson And did did Mr. —or he shall so state injury, the result he felt an unsche- indicate whether percent- Any rating of the report. in his mon- duled Mrs. more shall be in age of functional ey? standards of with the accordance A. All he said to me—let’s see—he impairment permanent of evaluation said scheduled awards amount to almost Medical Asso- by the American published no money in cases. If these industrial to the Evaluation ciation in ‘Guides any part there is difficulty any It shall include Impairment’. Permanent case, of the body in the above-entitled detail in sufficient a clinical exception leg, with the of the left ratings assigned.” support percentage automatically is unscheduled. v. Industrial In Adams And then he went on say referable (1976), 294, P.2d 764 part of he re- the unscheduled this —and Commission, supra, this v. Industrial Smith ally doesn’t mention that Mrs. R-4-13-113 recognized that Rule Court (Emphasis add- money.” will more 13(d)) require a find (former Rule ed.) impairment to be based permanent in the of tests contained only on the results R—4-13- to A.C.R.R. Pursuant apply only The AMA Guides AMA Guides. 113(D), Procedure for Workmen’s Rules of specific they where cover the the Industri Compensation Hearings before percentage of (former Rule and where the al of Arizona Commission the claim truly reflects contained therein 13(d)), impairments should be permanent all Com Adams v. Industrial strictly comply ant’s loss. See reported. failure to But the mission, Com supra; v. Industrial conclu Smith cannot be held to be with the rule holdings recognize mission, supra. These impairment exists. sive evidence that no procedure wording the rule of 13(d) plain in such may interpreted not be “Rule AMA just the non-exclusiveness deprive a claimant of a manner as to rating determination as to the compensation.” v. Industrial Com Guides Smith permanent impairments. mission, P.2d 1198 of to its Guides AMA in the Preface impair- permanent gives this definition Dr. Mor- predicated Our ment, accepted in Smith: which was but, rather, because the gan’s credibility, “ * * * an- is most favor- Permanent light read in the record must be loss abnormality or or functional atomic sustaining the award. See Salt able to has Ariz., rehabilitation after maximal medical Project v. Indus. Com’n of River achieved, abnormality or loss been which 541,627 692, (1981). The 695-696 Ariz. P.2d nonpro- physician considers stable supports the record is made. gressive at the time evaluation Morgan believed that Dr. * * Association, American Medical impaired thumb was respondent’s of Permanent Evaluation fabricate and that he did not (1971), quoted in Impairment”, page iii award. gain her an unscheduled specific AMA Guidelines supra, Smith v. Industrial there are tests 113 Ariz. at n. 552 P.2d 1198. permanent in the added.) (Emphasis thumb; IP some are in relation to the joint, joint, others to the MP and combi- guide pertaining pro- to the thumb factors; nation is that correct? vides two tests for the determination test permanent One motion, Yes, degenerative— loss of er measures ratings measures restriction motion and But this does not mean that amputations. guide covering “Additional or less motion, only impairments guide for these two sets forth uniform ankylosis ankylosis the thumb of the thumb impairments objective procedures amputation. provides: joint stiffness. the oth- and for are AMA Guidelines rating. tion, have functional there is about ^[******] do degenerative changes, but when nothing is one loss of the is modality in there primarily changes, joint. The loss of mo- specifically do specific be considered desirable in So, Guidelines, Q. mo- under the AMA Association, cases.” American Medical tion-wise, she would have no “Guides to the Evaluation of Permanent impairment? Impairment”, “The Extremities modality function- A. Motion is one Back”, p. 1. correct, loss, al and that that would be Morgan assigned normal. ment to not- thumb because he provide Q. Do the AMA Guidelines X-rays degenerative change, ed on a a loss rating, type of other than for joint joint of space, interphalangeal at the loss of motion? suggests development which of arthri- far as non-specific as They’re very tis. His conclusion based on re- was also up five They grade it else. anything spondent’s experienced statement that she what have muscle loss and percent for pain no heavy gripping.1 with There was basically you up your end you, and sensory loss or muscle loss. There was also you when experience with some of these ankylosis. restriction of movement or motion, try you out the loss of so of though Even no test in the AMA Guides AMA loss of mo- stay and impairment, indicate an Dr. tion, you muscle loss or and when have of an is in accord with sensory loss or arthritis de- the AMA’s definition of that term since a veloping, you your expe- use then have to joint space degenerative change loss of * * * and to sort of rience sort have of— joint is an “anatomic abnormali- get out of the AMA Guidelines.” ty.”2 Morgan explained Dr. testimony, the AMA did not cover Since Guides non-applicability here, of the AMA Guides to specific impairment involved respondent’s condition. apply. Morgan could Guides did not Dr. well, “Q. When first utilize means other than the AMA Guides done — all, understanding under determine rate the my

of it’s preface petitioners’ 2. The AMA also counsel states in the to its 1. Both Morgan’s finding guides: of state in their briefs that Dr. “ gripping of a loss was based on impairment can be meas- strength. himself stated Dr. never degree accuracy ured with a reasonable strength. gripping there was a His loss uniformity, by it is evidenced Minney solely when Mrs. was integrity, capaci- structural loss of functional grip very referable “would make a forceful by ty, persistent pain that is substantiated her.” Mrs. it would hurt findings.” clinical ation, American Medical Associ- strength. a loss of was the one who testified to the Evaluation of Perma- “Preface,” Impairment,” page nent iii. 434 518, 520-521, argue

Petitioners Mor 86 even if Dr. S.Ct. 15 L.Ed.2d 447 gan could utilize means other than (1966); Leonhardt, F.Supp. Stamus v. 414 Guides, incompetent still since (S.D. 1976).3 petitioners’ Iowa But X-rays accepted examined re theory adequate of want of notice is with spondent’s subjective pain. statements of out application only merit because it has Petitioners claim the results such an regulation where there is a of or sanction examination must be ex doubted since the for conduct. Immigration Boutilier v. & amination did not generally accepted meet Serv., Naturalization U.S. procedure. point to an 1563, 1566, 18 (1967); S.Ct. L.Ed.2d 661 Sta other doctor’s statement impair that an Leonhardt, mus v. supra at 451-452: see could X-ray not be based on an Note, generally, Void-For-Vagueness alone. This doctor’s testimony was that an Court”, Supreme Doctrine in the examination for an impairment general U.Penn.L.Rev. The Arizona stat requires viewing more than a X-rays. It regulate ute 23-1044 A.R.S. § also involves guidelines the use of such as proscribe conduct. the AMA’s physician, Guides. This how ever, testify that a determination of Mandatory published, reference to type by respon suffered objective guidelines required to fulfill solely dent could not be examining made process prohibition against vague the due X-rays. Morgan’s finding impair arbitrary statutes which and discrimi allow ment is not incompetent simply because he natory application. Court rely had to on his training, experience and rejected vagueness challenge this judgment published guide in the absence of general pro assistance state’s statute lines. employable.” vided benefits to those “not Petitioners contend that if the Arizona guidance It was held that sufficient Compensation reg- Workmen’s Act and the given agency to the administrative ulations promulgated under it do not con- regulation which stated: tain a guidelines reference to and if the Act “ works, ineligible. If person ‘If a he is does require he is the Medical Consultant determines ment be guidelines, based such the Act is ” ineligible.’ capable working, he is unconstitutionally vague and a denial of Jamieson, 133, 135, Herrera v. 124 Ariz. process due provides 3ince it notice 602 P.2d 514 them and sets forth no limit on the adminis- agency’s trative discretion. case, guidance In the instant sufficient is given by the the Industrial Commission asserting Petitioners are correct in impairment con- definition of vague a proc that statute violate due Commission, tained in v. Industrial Smith ess give because it either fails to fair warn 1198, 305, 1, supra, 552 P.2d 113 Ariz. at n. ing or lacks standards to restrict the discre guard against arbitrary tion of and irrational apply those who it. Giaccio v. See 399, of Pennsylvania, findings impairment.4 State 382 402- U.S. quote Compensation quote Compensation

3. State Petitioners State Fund v. Fund v. De La Fuente, 246, Fuente, Ariz.App. supra, they De La 18 501 P.2d 422 do not contend the Act (1972), 439, review denied 109 Ariz. 511 P.2d either of these violates doctrines. (1973), 621 where the Court noted recognized Engi- that this Court in Southwest Commission, supra 4. In Smith v. Industrial at Ernst, 403, neering Co. v. 79 Ariz. 291 P.2d 764 307, 4, 1198, pointed n. 552 P.2d we out: (1955), vagueness” two other “void for doc- percentage relatively “The is independent process. trines One due doc- unimportant injuries for unscheduled since it imposing trine is statute that an indefinite only is one of several factors to be considered duty public delegation is an undue officer arriving permanent disability. in at a A.R.S. legislative power Article 4 violative the 23-1044(D). compensation § amount Arizona The other doctrine Constitution. is the by is determined the claimant’s reduction simple that courts common rule will law earning capacity. 23-1044(C).” A.R.S. § apply petitioners unintelligible While laws.

435 legally conclusion was sound. See Garcia v. assert that the offi- legally Commission, 313, Ariz.App. cer’s and award are not Industrial 26 specify what 315, sufficient since he (1976); Duzee 548 P.2d 26 Van v. In guidelines were used to deter- “criteria” or Commission, 395, 543 Ariz.App. dustrial mine of her ASARCO, (1975); P.2d 1152 Inc. v. Indus They urge thumb. that the whole award 241, trial 122 Ariz. 594 P.2d specific must the absence of a find- fail in (App.1979). In Compare Cammeron v. ing finding of impairment to how the 98 Ariz. 405 P.2d dustrial was determined. (1965), Industrial Sproul v. Com mission, (1962), P.2d 279 91 Ariz. However, in Foster v. Industrial Commis Commission, su with Foster Industrial v. sion, (1935), this pra. Court said: Compensation Law of this state was issue here whether ultimate expressly require that the respondent from a suffered specific Industrial Commission make find- An affirmative ings it respect in a case like this. In this specific finding made A was on that issue. Utah, Supreme follows the law of and the unnecessary as to how ultimate state, Court of that has held while it finding was it can be reached since deter is complete findings advisable that should mined of the record. from an examination made, be they are not essential to a valid of the Industrial Commission (Citations omitted) award. We are of is affirmed. the opinion that it is not essential under our specific statute that findings of fact be every might made on issue which be J., HOLOHAN, and CAMERON V. C. hearing, provided involved in a JJ., GORDON, concur.

findings as made are of such a nature HAYS, concurring. Justice, specially dispose they necessarily of all the involved.” material issues in the compelled I am to concur result However, majority opinion. reached Manufacturing Graver Tank & Co. v. disturbed, Ap- I am as was the Court of Com’n, Industrial P.2d 589 where the claimant’s (1964), peals, a situation major question material was the lawyer and doctor discuss the structur- cause of husband. death claimant’s attain the best The Industrial Commission made no issue, recovery. infirmity of such evidence this but did make the ultimate apparent finder of fact failed or finding that he died as the but result appropriate for injury employment. of his refused to It is not arising out see it. award, Court affirmed the that the this court to substitute its assessment of findings required credibility are those of ultimate evidence for facts and the “Commission need not set officer. findings

forth separate the eviden- I concur in the result. tiary which lead to a facts determination fact.” Id. at 391 P.2d 589. ultimate lack is clear that the It issues does not invalidate an material per se. It be vacated if the

reviewing court is unable determine basis of the

whether the

Case Details

Case Name: Cavco Industries v. INDUS. COM'N OF ARIZ.

Court Name: Arizona Supreme Court

Date Published: Jul 10, 1981

Citation: 631 P.2d 1087

Docket Number: 15160-PR

Court Abbreviation: Ariz.