Bell v. Industrial Commission , 126 Ariz. 536 ( 1980 )

OPINION

OGG, Chief Judge.

The question presented in this Special Action-Industrial Commission review is whether the petitioner’s attempt to reopen his workmen’s compensation claim is barred by the res judicata effect of decisions in prior proceedings before the Industrial Commission.

The history of the claim is as follows. In August 1971, the petitioner, a deputy sheriff, sustained a serious employment related injury when he was shot in the head. Dr. Hal Pittman, neurosurgeon, successfully performed brain surgery to remove the bullet from the right temporal lobe. The bullet fragmented on impact and several small fragments had to be left in the brain tissue. Brain damage was observed during the surgery.

Approximately two months after surgery, the petitioner returned to light clerical duties. As a result of the injury, he suffered a permanent loss of smell and partial sensory loss to the right side of his face. After returning to work, he developed psychiatric symptoms, including depression, irritability, nervousness and emotional lability (difficulty in controlling abrupt emotional changes). He also first reported temporary blackouts. Dr. Pittman referred him to a psychiatrist, Paul Bybee, M.D., who diagnosed post-traumatic brain syndrome. Following brief treatment in psychotherapy, Dr. Bybee released petitioner because he thought petitioner had gained considerable control over these symptoms.

In June 1975, the respondent carrier issued a notice of claim status terminating medical and temporary compensation benefits and denying permanent compensation because the injury resulted in no permanent disability. Petitioner did not protest this notice and it became final.

Subsequent to this notice, petitioner’s temporary blackouts recurred, accompanied by outbursts of rage. Diagnostic tests taken during this period, an electroencephalogram and a cranial tomography, showed abnormalities in the region of the bullet wound. Woodson C. Young, M.D., who examined petitioner, advised him that although his problems might be strictly psychological, “there is always a possibility that some scar tissue from . . . [the] old injury might be giving . . . [you] some difficulties.” T. Scott Idzorek, M.D., a psychiatrist to whom Dr. Young referred petitioner, hypothesized that the blackouts and rage episodes were “an atypical type of psychomotor seizure disorder” that may be causally related in part to the head injury and surgery. Dr. Idzorek recommended treatment on a trial basis with mysoline, an anti-convulsive drug. He was uncertain as to the etiology and made only a tentative diagnosis. Dr. Pittman doubted this diagnosis but began experimentally to treat petitioner with mysoline.

In June 1976, petitioner in propria persona petitioned to reopen his claim, alleging that “[d]ue to build up of scar tissue on the brain I have been having blackouts and seizures.” The respondent carrier by notice of claim status denied the petition because of “[insufficient evidence to establish new, additional or previously undiscovered disability causally related to the claim petitioned to be reopened.” At this time, it appears there was no positive evidence as to the etiology. Dr. Pittman in his report of June 14, 1976 stated: “At the time of this dictation, it is the examiner’s opinion that it is unlikely that the previous bullet injury to the brain is the cause of the episodes described above by the patient, even though the patient does report some focal disturbance on his electroencephalogram.” Dr. Pittman’s uncertainty as to petitioner’s condition is further emphasized in his progress notes of June 15, 1976, wherein he stated that “It is felt that the patient does need additional diagnostic studies including CT scan and probably isotope scan and certainly skull x — ray.” Petitioner failed to protest the notice of claim status and it became final.

The mysoline treatment apparently helped petitioner control his condition until the early part of 1978 when he had to discontinue use of the drug because of adverse side effects. The blackouts and rage episodes recurred and after treatment with a new drug, it appears they were again under temporary control.

In May 1978, petitioner submitted a second petition to reopen alleging “[p]er-manent loss of ability to smell and loss of 50% ability to taste, loss of partial feeling in my face. Permanent brain damage. Episodes of rage, nervousness due to brain damage.” The respondent carrier denied this petition and petitioner, represented now by counsel, timely requested a hearing.

At that hearing, Dr. Pittman for the first time expressed a definite opinion and found a causal relationship between the rage symptoms and the industrial accident. Dr. Pittman stated that he had to hedge on an opinion at the first hearing in 1976 but that he “viewed things a little differently two years later, and was more willing to ascribe the symptoms, which basically were unchanged, to the brain injury which we know he had.”

Although Dr. Idzorek had made a tentative diagnosis of “psychomotor seizures” in 1976, it was Dr. Charles L. Echols, neurologist, who for the first time made a definite diagnosis that the petitioner “is suffering from a psychomotor seizure disorder secondary to the right temporal lobe missile injury from the 19th of August, 1971.” Dr. Echols also testified that petitioner had the condition of emotional lability secondary to his head injury.

Dr. Paul Bybee, psychiatrist, when asked about the causal connection between the head injury and the psychomotor seizures, answered: “To my knowledge, he did not have that particular condition when I saw him in ’73. That is certainly something that could very well develop what with scarring and so forth several years after an injury of the type he sustained.”

The administrative law judge determined that these opinions failed to support the second petition to reopen because of the res judicata effect of the unprotested denial of the first petition to reopen. The carrier and the administrative law judge relied upon the legal principle that an industrial award cannot be reopened simply on the basis of newly discovered evidence of a previously known condition where coverage was denied by a prior award. Black v. Industrial Commission, 89 Ariz. 273, 361 P.2d 402 (1961); Aetna Ins. Co. v. Industrial Commission, 115 Ariz. 110, 563 P.2d 909 (App.1977); Standard Brands Paint Co. v. Industrial Commission, 26 Ariz.App. 365, 548 P.2d 1177 (1976). The decision to deny the petition to reopen was also based on the legal concept that a petitioner must show a change in his condition between the first and second petition to reopen. Phoenix Cotton Pickery v. Industrial Commission, 120 Ariz. 137, 584 P.2d 601 (1978). The carrier in the answering brief also relied upon the recent case of Smitty’s Super Value, Inc. v. Industrial Commission, 126 Ariz. 377, 616 P.2d 52 (1980). The carrier stated that “It is the position of the State Compensation Fund that the matter herein is directly on point with Smitty’s Super Value, Inc.” It should be noted that the Arizona Supreme Court took review and vacated the Smitty’s Super Value, Inc. opinion. No. 14732 (filed July 18, 1980).

The petitioner argues that this petition to reopen was properly instituted under the authority of A.R.S. § 23-1061(H) of the Arizona Workmen’s Compensation Act. The section provides in part:

An employee may reopen his claim to secure an increase or rearrangement of compensation or additional benefits by filing with the commission a petition requesting the reopening of his claim upon the basis of new, additional or previously undiscovered temporary or permanent condition .... (emphasis added)

Petitioner argues that the hearing on the 1978 petition to reopen clearly indicates that he does have a new, additional and previously undiscovered condition. Dr. Pittman for the first time in 1978 found a causal relationship between petitioner’s rage symptoms and the industrial accident. Dr. Echols, for the first time, made a definite diagnosis of psychomotor seizures. Although petitioner’s physical and mental problems had manifested themselves soon after the shooting incident and were known at the 1976 petition to reopen, there was no definite medical testimony causally relating the rage episodes to the industrial injury and no definite medical evidence diagnosing the psychomotor seizures until the second petition to reopen in 1978. In 1976, neither Dr. Pittman nor Dr. Idzorek could make a definite diagnosis or definitely causally relate the petitioner’s conditions to the industrial accident. The 1976 petition to reopen was denied because there was a lack of evidence to support a reopening.

We recently dealt with a similar case in Pascucci v. Industrial Commission, 126 Ariz. 442, 616 P.2d 902 (1980), Review Granted (S.Ct. No. 14968). The present case is a difficult one in a field of law where there is a division of opinion in this court. See Id., Jacobson dissenting. In our opinion the disposition of this case is controlled by Pas-cucci and the other recent cases of Crocker v. Industrial Commission, 124 Ariz. 566, 606 P.2d 417 (1980), and Garrote v. Industrial Commission, 121 Ariz. 223, 589 P.2d 466 (App.1978). In all of these cases, the true cause of the worker’s physical or mental problems was not definitely known at the time of the prior award finding no permanent disability. In Crocker, the claimant in a workrelated accident suffered various injuries, including injuries to his feet. At that time, Crocker was still experiencing pain but was unable to produce satisfactory medical evidence that there was any organic basis for the pain. The pain persisted, and three years later a new doctor was able to make the first definite diagnosis of the cause of the pain. In setting aside the denial of the petition to reopen, the Crocker court stated that “When a disability in existence at the time of the previous award has not been discovered at the time of the award, the claimant is entitled to a reopening upon discovery by the very terms of A.R.S. § 23-1061(H).” 124 Ariz. at 569, 606 P.2d at 420. In the case before us the petitioner, like the petitioner in Crocker, had experienced problems shortly after the industrial accident, but it was not until the second petition to reopen in 1978 that doctors were able to give a definite medical diagnosis of his problems and relate his problems directly to the industrial accident. Unlike Aetna and the line of cases relied upon by the carrier, this case did not involve a changed opinion but rather an evolution of opinion from a tentative to a definite form. As Dr. Pittman’s testimony emphasizes, it takes time to observe a patient with a brain injury to intelligently determine if his problems relate to his pre-injury personality or are caused by the industrial accident.

It appears the administrative law judge erroneously failed to consider the new testimony at the second petition to reopen in 1978 on the grounds that the doctrine of res judicata barred any further consideration of the case.

For the reasons stated herein, the award is set aside.

DONOFRIO, J., concurs.