*1 NOTE: Justice DUKE CAMERON JAMES participate
did not the determination
this matter.
STAINLESS COMPANY,
TURING Petitioner
Employer, Fund,
State Carrier,
Petitioner
v.
INDUSTRIAL COMMISSION OF
ARIZONA, Respondent, Appleton, Respondent D.
Don
Employee.
No. 17459-PR. Arizona,
Supreme Court of
En Banc.
Jan. *2 Park, Counsel,
Robert K. Chief State Michael, Fund W. Smith Jr., Tucson, petitioners. for Counsel, Day, Sandra Chief Indus. Com’n Arizona, Phoenix, respondent. Davis, Hall, Eppstein by Philip & Hall Bartlett, Tuscon, David for respondent em- ployee.
FELDMAN, Justice. question presented is whether a workers’ claim be re- opened permit payment for medical care necessary sequelae to treat the anof indus- injury symp- trial where the continuation of developments toms and in medicine have created the medical needs of worker, injured though even there has been no his condition. (claimant) Appleton origi- Donald D. injured nally January, at work His last in August, claim was closed impairment right leg; with no 25% surgery recommendation was made at Continuing symptoms time. caused previous claimant consult two physicians, both whom recommended surgery. further Based their assess- ment, petitioned reopen. claimant (ALJ) granted administrative law petition. By memorandum decision the appeals court of aside set the award. Specialty Manufacturing Stainless Com- (1 loss of the for functional sessed CA-IC 25% party v. Industrial 7, 1984). February extremity____ [right] Claimant filed lower We petitioned this court for review. then above, stage I As do stated jurisdiction pursuant to Ariz. Const. is indicated. feel further §6, Ariz.R.Civ.App.P., Rule art. be, however, It that somewhere granted review to reexam 17A We line along the future *3 the regarding previous ine our decisions I contemplated. stage At will be .this 23(c)(4), reopening. Rule su grounds for suggest would that his case reconsid- pra. but un- with in mind not ered supplied.) (Emphasis til time. that FACTS The then award dated claim was closed (carti- the meniscus Claimant tore medial 1981, August 11, impairment with a of 25% January right on lage) of knee at work his leg. right the M.D., 7, Fina, orthopedic an 1975. Charles menisectomy surgeon, a medial performed 1982, persistent symptoms In of March knee) (removal cartilage inner side of of on to with claimant consult Melvin caused 1975, noting significant preex- February, in M.D., Roberts, surgeon orthopedic an who isting at that time. degenerative arthritis regarding his previously had seen him covering this injury claim The industrial complaining of knee. was bilater- Claimant 7, 1975, with November a was closed 15% right al that was worse on the knee right leg. the The claim impairment of Dr. noted than on the left side. Roberts more reopened was and closed several developed had varus that claimant deformi- the times is before (knock turning), ties knee or inward osteo- Percy, subject petition. Edward C. of this (bone (tissue phytes growths), sclerosis M.D., surgeon, orthopedic per- also an narrowing. death) joint space He also and first, surgeries. formed two additional for a stated that claimant was a candidate April, a performed partial was (removal high osteotomy of bone tibial (removal synovectomy of membrane within tibia). portion upper from Claimant synovial with joint), the knee removal Fina, then to Dr. who had returned (to shaving un- plaque patellar and remove had surgery, initial but not seen formed the bone). Then, November, even surface of October, his since claimant for knee Percy performed remedial sur- Dr. 14, 1982, diagnosed Dr. Fina os- April On (an Elmsley procedure). At- gery Trio right gross knee with a teoarthritis of subsequent notice of tached to the claim arthroscopy genu varum and recommended August was status Dr. Per- dated (a surgical proce- and remedial diagnostic report, stating: cy’s closing Fina, dure). seeing After Dr. claimant [patient] I ... transfer feel that should reopen filed to the 1981 petition a award. I feel I his care to another doctor. that by notice claim When this was denied case for have been involved this now 12, 1982, May claimant re- status dated feel that we have reached years, over 3 hearing. quested a point my as far as treatment is end June, performed Dr. Fina I do feel that a fresh concerned. procedure arthroscopic which included a might [patient’s] be to advan- on this knee, arthro- limited debridement tage. As to whether or not knee [more] restoration) proximal plasty (joint and required, I think this would surgery is (bone valgus osteotomy to tibial removal depend who takes over surgeon outward). permit to the tibia turn In his stage I Frankly, at this would care. petition reopen, payment to claimant seeks surgery____ further It is not condone expenses wage and benefits dur- my man has had re- period recuperation. He has injuries from peated insults to his knee made a claim increase award the result of industrial acci- which were dents____ 3/79, Hearings earning I him I loss on the capacity. When saw as- plated”) present and petition reopen were held in October definite conclusion (“That April, I of 1982. Before the first sched- when saw him 1982 he November hearing, an inde- uled claimant underwent need active treatment request just- pendent consisting surgery”) reopening medical examination at the only Fund. Robert of the State ified. To hold otherwise would not M.D., Levitin, occupational specialist to which he is deny applicant benefits medicine, concluded entitled, examined claimant and their also those who have had been no initially there sur- refusing cases closed after the date of last knee condition between as gery subsequently and reconsidered closing petition reopen. and the How- procedures such up well as future follow ever, Dr. Levitin stated plates pins omitted]. [cite performed by procedure Dr. Fina was a made an ALJ award help try “correct to control so review, claim. On administrative pain,” would less and that [claimant] *4 fully by supported award was affirmed as degenerative process ongo- “the ... was employer the evidence. The and carrier ing.” Dr. Levitin did not state that the by sought special action to the court review performed by Dr. was medi- surgery Fina § See A.R.S. appeals. of 23-951. The cally inappropriate. the in a appeals court of set aside award Dr. Fina that the claimant had testified opinion. petitions memorandum Claimant bowlegged deformity osteoarthritis with by for review of that decision this court. caused, in part, by inju- 1975 the industrial ry. opinion, In his claimant’s condition had OF THE NATURE REOPENING 1981, surgery even in August, warranted PROCEDURE acknowledged he although Percy that Dr. reopening provision of Arizo surgery appropri- had not considered to be provides na’s Workers’ Act ate at that time. Dr. Fina attributed part: opinion of difference to the fact that: may reopen An employee his claim to Percy capacity Dr. doesn’t have the to do rearrangement secure an increase or of do, I far I what and as as know he still compensation by or additional benefits it, I opinion can’t do so think that his filing the petition with commission a re- he, you know, based on what a clini- as questing the of his claim does____ I the very cian am still one of new, previ- the basis additional or of people few around that will an abra- do ously temporary per- undiscovered or arthroplasty valgus sion and tibial osteo- condition____ manent tomy, particularly way the had [claimant] added). 23-1061(H) (emphasis one. designed vehicle of that, Dr. also Fina testified when seen mitigate consequences general the harsh of 1982, him surgery. claimant needed judicata principles, res pre- which would judge The administrative law found an of any applicant’s clude reexamination opinion,” of “evolution from Dr. litigated finally claim once it has been (in anticipation 1981) Percy’s August, v. Pascucci Industrial Commis- closed. possibility surgery the additional sion, 442, (App. 126 Ariz. P.2d 902 616 future, might be recommended Commission, 1980); v. Garrote Industrial Dr. Fina’s that claimant needed (App.1978). 121 Ariz. 589 In P.2d 466 surgery April, 1982. The relevant compensation setting, workers' the doc- of the finding administrative is: judicata res operates trine of reliti- bar past gation 10. Where re- of those issues which were deter- possible garding previous proceedings future of an well treatment mined applicant from im- been evolves a tentative as those which could have decided (“... v. pression along original Noble that somewhere the time of the award. Industrial line in the 683 future will be contem- 140 However, performance (App.1984). there is a stated is to demand the P.2d 1173 of impossible. application basic difference judicata principles ordinary proceedings Commission, Zagar v. Industrial compensation cases. This and workers’ 479, 486-87, (1932). 14 P.2d As reopening pro is reflected in the difference points Larson out visions. Pascucci v. Industrial Commis Indeed, advantages ... one of the main sion, P.2d at 126 Ariz. at device it [is] comparable provisions are no in ordi There mits a commission to make the best esti- prior nary civil law to correct omissions disability it mate of can at the time of Further, update judgments.1 while award, original although at that mo- permit party ordinary rules in civil cases impossible predict ment it damages possibility to recover based on the disability, extent future without hav- probability the need for future treat ing worry being about forever bound ment, provision there is no in workers’ com appraisal by the first [footnotes omitted]. present pensation cases to allow a award Larson, 81.31(a) supra, 3 A. at 15-554.- become benefits treatment which 16-554.18. necessary in the future. In the workers’ statute, construing we note that compensation setting, injured worker consistently recognized we have the reme- instance, cannot, probability show a law, purpose hold- dial the need for future and ask for an provisions that its should be construed appropriate defray award of benefits to liberally purposes so as to effectuate *5 Instead, expense. he must await the imme Commission, the act. Cook v. Industrial diacy apply of the need and then for bene 310, 311, 365, (1982); P.2d 133 Ariz. 651 366 fits; hence, reopening pro the need a for Commission, Pascucci v. Industrial 126 reopening provision cess. The is a 444, 904; English v. Ariz. at 616 P.2d at that, recognition fact no of obvious Commission, 86, 89, Industrial 73 competent matter how a commission’s di- (1951). this need 237 P.2d 817 Given agnosis of claimant’s condition and earn- statutory interpretation which will ef- ing prospects hearing may at the time of purposes the remedial of a no- fectuate be, change that condition later compensation system, and awareness fault worse, markedly may improve, for the or application perverse of the effect of strict up altogether____ or even clear judicata res principles a workers’ objectives legislation of the are [T]he setting, analy- we move to an compensation accomplished best if the commission can reopening requirements. sis of increase, decrease, revive, or terminate
payments correspond to to claimant’s THE IN CONDITION CHANGE changed condition. REQUIREMENT Larson, The Law Workers’ Com- A.3 seeking reopen un The claimant to (1983). pensation 81.10 at 15-528 In an § 23-1061(H) has the burden of der A.R.S. of res operation early discussion of the showing presence of one of the three judicata compensation in the workers’ set- new, previ statutory additional or factors: judicata this court stated that res ting, undiscovered condition. ously The issue only questions serves to conclude those whether claimant bore this burden. here is “existing and known” at the time of the law found no The administrative award, and stated further: change physical condition but ruled (from Dr. knowledge of medical But it is common an evolution possible need for physical injuries Percy’s anticipation results of are often not of a in the future to Dr. they determinable at the time are re- sometime ceived, opinion that claimant was require they and to be then Fina’s later See, e.g., continuing jurisdiction. equitable proceed- Rule 1. We omit tains consideration Ariz.R.Civ.P., A.R.S.; 60(c), ings, injunctions, see also Rule id. where the court re- 16 such treatment) justified reopening. need of that the case in generally, laws course, “change.” Of “evolution” is a power but we think such impliedly conferred____ held, however, appeals correctly court of Without a continuing authority proposi- alter, that there was no power amend, or rescind its tion that evolution of medical after awards ... the commission would cer- justify a case is closed will reopening (slip tainly greatly hampered be in its efforts Bill Breck Dodge op. citing v. Indus- carry spirit out the trial 388, 390, justice do parties____ between the (1983)). Dodge, Bill Breck P.2d spirit every the act is that employee indemnified____ majority injured of this court held that the avail- ... shall be To ability surgical of new or effectuate wholly medical treat- laudable and desir- “condition”; however, end, ment was not a new able the commission possess must reopening alter, it affirmed the and exercise a continuing power award on the amend, ground that pain, increased rescind the award if the which makes facts justify it. new or additional medical appro- treatment
priate, change is a in physical condition 487-88, 14 40 Ariz. at (emphasis P.2d at 475 that is permit reopening. sufficient to added).
We now deal with a variation of the
that,
Professor Larson acknowledges
Here,
unlike in Bill
theme.
standpoint,
from a theoretical
commissions
Dodge, Breck
upon
is not based
should
perpetual
exercise
and unlimited
subjective
perception
jurisdiction
reopen
in order “to make
level,2
but rather
benefits meet
current conditions.”
3 A.
Larson, supra,
procedures
recommended
Thus,
to treat the same
81.10 at 15-528.
physical condition,
out,
where the
points
as Larson
possibility
theory of judicata
such
need
explicitly
purposes
does not serve
future
foreseen
at the time
closing.
Thus,
compensation system
workers’
and is nec-
we are faced
essary
simple
system
with the
in that
only
issue of
whether
because of the
justified
can
technical and
by
problems
administrative
cre-
evidence of a
ated
continuing jurisdiction.
the medical
unlimited
treatment needed for the same
These
problems
administrative
require
condition which existed at the time
*6
some
power
open
limitation on the
Bill
closing.
to
Dodge
Breck
answers the
Id;
modify
Note,
see also
awards.
Res
question
negative.
in the
The facts of this
Reopening
Judicata and
Workers’
Com-
ease illustrate
that adherence to the hold-
pensation
Arizona,
Claims in
Ariz.L.
injured
may
workers
not obtain
(1981).
Rev.
1109-10
The
medical and other benefits
for medical
problem is
simply
question
therefore
a
treatment which first
necessary
becomes
or
drawing a line
permit
which will
effectua-
appropriate after the case has been closed
tion of the
purpose
remedial
of the statute
directly contrary
spirit
to the
of the
while at
permitting
the same time
appli-
Compensation
Workers’
Act. The need for
judicata
cation of the rule of
point
at a
liberal
compel-
standards was
system
where
function administra-
lingly described in Zagar v. Industrial
tively
and insurers
estimate reserve
Commission:
requirements.
Workmen’s
Law does
not specifically confer on the commission
In
to
addition
these administrative con-
continuing power
awards,
cerns,
a
that,
over its
as is
standpoint
we note
from the
conflicting
2. There was
reports
pain
evidence on
upon
whether
ant's
of increased
but rather
greater
experienced
pain
claimant had
since the
persistence
symptoms
and the natural
had,
closing.
date of
Claimant testified that he
osteoarthritic deterioration of the knee. So far
employer
and the
and carrier offered surveil-
indicates,
dispute
as the record
there is no
impeaching
lance films as
evidence
an
in
at-
points.
either of these two
The award was not
tempt
destroy
credibility
to
on that
level,
change
upon
upon
based
a
in
but
issue. Dr. Fina’s conclusion that
opinion.
“evolution" in medical
warranted in 1982 was not based
claim-
construction,
statutory
only
physical
23-
tion
on a
condition.
1061(H)permits
new,
reopening for a
addi That restriction was held unconstitutional
previously
tional or
undiscovered “condi
in Adkins v. Industrial
tion.”
It does not
changes
exclude
(1964).
F. For the of subsection It is C rolls. sation section, shall, of this the commission ... compensation for increase his claimant to condition of the in- when by showing that con- earning capacity lost employee stationary, de- jured becomes impossible made it symptoms have tinued represents termine the amount which work, his continue with for him to monthly earning capacity, reduced ... under 23- from him prevent make an award of which benefits neces- 1061(H) to obtain subject in any shall be might en- pay for treatment sary to following events: work, the need obviate him to continue able Upon showing a change permit compensation or even increase physical condition workman sub- reduction. findings sequent to such and award aris- *7 injury resulting out of the directly contrary rule is earning or increase of his Such a reduction ca- pacity. spirit purpose the remedial and of the con §18, Upon showing
2. of a reduction in stitutional mandate article 8. As earning capacity must, the of the workman suming, legislature we that the arising injury out of such where there is reopening intended that the statute con condition, physical in his no spirit the and mandate of the constitution form to findings subsequent to the and award. (s v. Industrial Zagar Commis ee showing earning Upon a that his sion, conclude that we must supra), we subsequent has increased capacity previous, interpreta our strict recede from findings and award. such hold, therefore, tion of the statute. We § 23-1044(F) (emphasis supplied). reopening permissible is when a or medi physical circumstances permitted
This statute once rear treatment, compensa- evaluation creates a need for rangement of final awards for cal
19 legitimacy 23-1061(H) physi- of that need was not used A.R.S. to mean adjudicated and could not have been at the cal condition alone.
time last award. case at We now turn to the facts supports bench. The evidence the adminis-
We do not hold that different judge’s finding justify will trative law need general surgery ap- claim. We adhere to “the rule that possibly was foreseen as relitigate the claimant is propriate not entitled to in the future and that circum- those matters which he was free to actually stances it evolved so that was rec- prior proceeding, introduce in a evidence ommended at petition the time of the even if additional evidence is later avail reopen. closing At the time of Note, 1110; able.” supra, at Lauderdale surgery issue whether claimant would need v. Industrial 60 Ariz. and, litigated in 1982 was under these (1943). Thus, 139 P.2d if new evidence 449 facts, litigated. could not have been When produced is found to controvert that at the arose, necessity of further mind, hearing changes or if a doctor change in there was a circumstance which attempt relitigate would be statutory requirement satisfies the of a liti issues which were or could have been “new or additional condition.” Uncontro- gated, princi and will not be allowed under presented hearing verted evidence at the However, judicata.3 of ples where surgery performed established that the there is evidence that the circumstances appropri- claimant was recommended and closing, changed since because of a ate at that time.4 physical difference either in the claimant’s An showing additional neces procedures condition or in the medical nec sary reopen a claim under A.R.S. 23- condition, essary to treat 1061(H) is a causal connection between the If, instance, supported. will be a new new or additional treatment and the indus medical treatment has evolved will injury. unequivocal trial Dr. Fina testified permit complete the work rehabilitation of June, ly that the 1982 was “direct er, reopening proper though is even ly, causally inju related” to industrial physical condition has not ry. contrary There evidence from Dr. changed. unchanged If the condition is a causal connection is Levitin. Unless symptoms the continued make treatment clearly apparent lay person, to a the rela before, appropriate where it was not re tionship by expert must be established opening permitted. should be We believe Makinson v. Industri testimony. interprets that such a rule the statute Commission, 246, 248, al 655 require accordance with constitutional there is a (App.1982). P.2d 368 Where ments, spirit and construction of the testimony, it the re expert conflict in whole, Workers’ Act as a judge law sponsibility of the administrative rehabilitation, encourage plain need to Ortega v. Industrial Com to resolve it. however, emphasize, common sense. We mission, 554, 557, P.2d ruling today that our is not broad. Evi bench, (App.1979). the case dence of condition or the con resolved administrative prerequisite medical needs is still a of re Fina’s by adopting Dr. opening flict on causation for a new or additional condition. probably correct. We will The causal as more connection with the industrial of the adminis injury simply must still not disturb the resolution be shown. We no *8 longer wholly it unrea- judge construe the “condition” as law unless is word trative course, testimony Dr. Fina 3. Of if the involves tin also testified that the condition, which, "previously undiscovered” Dr. that formed in 1982 was 23-1061(H) applicable. appro- would be might Percy contemplated become had qualifications, . Dr. priate With "in the future." explained Percy 4. Dr. Levitin that Dr. had not agreed assessment. Fina with this recommended that in 1981 but had foreseen surgery might necessary later. Dr. Levi- affirmed; conclude, therefore, The award the memorandum Id. We sonable. proper, appeals turn to is vacated. legally decision of the court was evidentiary issues. GORDON, V.C.J., and and CAM- by the admin- HAYS award made JJ., ERON, upon a law was not based concur.' judge istrative finding as a “new increase HOLOHAN, Justice, dissenting: Chief condition, “evolu- upon additional” ago decided year A little over a this court opinion” a condi- of medical as such tion Dodge in Bill vs. Industrial Com- convoluted, Breck record, though sup- tion. Arizona, mission “evolu- finding there was an ports the (1983), in medical opinion” which resulted P.2d 275 tion of medical There also condition surgery becoming appropriate. was not a procedure support the conclusion of workman’s testimony to authorized was had dete- physical condition I believe that that claimant’s claim. However, theory nothing in the “evolution" decided correctly riorated. case was adopted by has me oth- majority opinion the administrative convinced require Therefore, claimant’s him to believe I dissent from the deci- did erwise. issue, did not testimony on and he and I majority sion of the would affirm any findings Appeals. based on make decision the Court reach credibility. Accordingly, we need not supports issues of the record whether subjective
reopening based on increase in exclud-
pain or there error whether bearing
ing impeachment evidence in- credibility reporting
plaintiff’s symptoms.
crease