Pascucci v. Industrial Commission , 126 Ariz. 442 ( 1980 )

OPINION

OGG, Chief Judge.

In this appeal we must determine if the hearing officer erred in his determination that the petitioner’s herniated disc condition was not a new, additional or previously undiscovered condition which warranted a reopening of petitioner’s claim.

The petitioner claims that there has been a change in his condition or the discovery of a new undiagnosed condition which occurred after his prior petition for reopening was denied. The respondents claim the petitioner’s same lower back problems were litigated in the prior petition to reopen, and that his present petition is barred by the doctrine of res judicata.

The facts are not in dispute. Petitioner suffered an industrial injury on August 25, 1973, when a heavy load of crated lettuce fell from a cart and struck petitioner on the back. The blow was of such force that it caused a double herniation, knocked out some teeth, and injured his back. The injury was accepted for benefits and on December 13, 1976, the claim was closed with an award for temporary disability with no permanent disability.

Petitioner’s back pain persisted, he was unable to work, and on May 20, 1977, a petition to reopen was filed. At the hearing, Dr. David Rand, Dr. William Reid, and Dr. Thomas Taber testified that although they observed a defect on the myelogram, it was their opinion such defect was a spon-dylitic (bony) ridge, and did not indicate a herniated disc. Dr. Bernard Eisenfeld, radiologist, submitted a myelogram report showing his impression that there was a midline disc herniation at the L5-S1 level. Dr. Ranjit Bisla testified that from his examination of the patient and study of the myelograms, it was his opinion that the petitioner had a ruptured disc in the lumbo-sacral spine.

A Decision Upon Hearing and Findings and Award Denying the Petition to Reopen was issued on February 17,1978, and thereafter became final.

The petitioner’s disabling pain continued and he sought the help of Dr. John Kelley, neurosurgeon, who, after examining him and reviewing the myelogram, determined that petitioner had a protruding disc at the L5-L6 level. Dr. Kelley performed surgery on May 3, 1978, where he visually observed and removed a bulging herniated disc at the L5-L6 level. Based upon Dr. Kelley’s findings, the petitioner filed a new petition to reopen on June 13, 1978. The respondent carrier denied the petition by notice of claim status, and the petitioner filed a request for hearing.

At the hearing, Dr. Thomas Taber testified that from the data he had before him at the prior hearing, he had found nothing to indicate a herniated disc. Dr. William Reid testified that the same area of the back was considered at the prior hearing to reopen, and that although he saw a myelo-graphic defect, he believed it was caused by a spondylitic ridge rather than by a herniated disc. He further testified that in attempting to read a myelogram to determine a ruptured disc, “myelograms are notorious for misleading you.” Both doctors’ testimony indicates the ruptured disc found by Dr. Kelley was new or undiscovered as to them. Dr. Kelley testified that when he operated upon the petitioner, he found no bony ridge defects, and that his visual observation of the herniated disc only confirmed his diagnosis after noting the defect in the myelo-gram. Dr. Kelley was of the opinion that the herniated disc was directly causally related to the industrial injury, and this opinion was not contested by any medical testimony.

The hearing officer found petitioner had a herniated disc causally related to the industrial accident of August 25, 1973. He further found such condition was not a new, additional or previously undiscovered condition since such condition had been “considered if not known at the time of the prior hearings.”

We will now apply the law to the facts to determine if the evidence supports the hearing officer’s award denying the claimant’s petition to reopen. Workmen’s compensation statutes are to be given a liberal interpretation in favor of the employee. Beasley v. Industrial Commission, 108 Ariz. 391, 499 P.2d 106 (1972); Pressley v. Industrial Commission, 73 Ariz. 22, 236 P.2d 1011 (1951); Bonnin v. Industrial Commission, 6 Ariz.App. 317, 432 P.2d 283 (1967). The petition to reopen is brought 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)

A claimant therefore must establish the existence of one of the three conditions and a causal relation between that condition and the prior industrial injury before the claim can be reopened. Sneed v. Industrial Commission, 124 Ariz. 357, 604 P.2d 621 (Ariz.1979).

The legal problem generated in this appeal presents a difficult reasoning problem because there is a basic conflict between strict civil res judicata principles and the reopening provisions of A.R.S. § 23-1061(H). There are no provisions in the civil law to correct prior omissions and update judgments such as are provided for under § 23-1061(H). The facts in this case have also created difficult problems, for here we are dealing with the rather inexact medical science of predicting what permanent disabilities may flow from an injured back.

The respondents rely upon the legal concept stated in Aetna Insurance Co. v. Industrial Commission, 115 Ariz. 110, 563 P.2d 909 (App.1977), which held that newly discovered evidence indicating the original award was incorrect is not sufficient to reopen a claim that was previously closed. In Aetna, the claimant’s doctor testified that his prior diagnosis of a back sprain was in error, and that he now was of the opinion there was a permanent disability.

The petitioner relies upon the legal concept stated in Garrote v. Industrial Commission, 121 Ariz. 223, 589 P.2d 466 (App.1978), where the court allowed a reopening when the cause of a previously undiscovered low back problem was eventually determined after the case was closed. In Garrote, the court in analyzing the provisions of A.R.S. § 23-1061(H) stated that the “provisions are designed to mitigate the harsh consequences of general res judicata principles which would preclude any reexamination whatsoever of an applicant’s claim once it is litigated or closed without protest.” Id. at 224, 589 P.2d at 467. In our opinion, the facts here more closely resemble the facts in Garrote and the facts in the new Arizona Supreme Court case of Crocker v. Industrial Commission, 124 Ariz. 566, 606 P.2d 417 (Ariz.1980). In Crocker, the claimant in a work-related automobile accident suffered various injuries, including injuries to his feet. The State Compensation Fund closed the case with no permanent disability. At that time, Crocker was still experiencing pain in his right foot but was unable to show medical evidence satisfactory to the hearing officer that there was any organic basis for the pain. The pain persisted and three years later, a new doctor was able to diagnose the exact cause of the pain. In setting aside the award of the Industrial Commission, 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).” 606 P.2d at 420.

The Crocker decision appears to be in harmony with the comments on reopening set out in 3 A. Larson, Law of Workmen’s Compensation § 81.31, at 495-96:

Indeed, it is one of the main advantages of the reopening device that it permits a commission to make the best estimate of disability it can at the time of the original award, although at that moment it may be impossible to predict the extent of future disability, without having to worry about being forever bound by the first appraisal, (footnotes omitted)

In the case before us, the hearing officer at the prior reopening hearing decided to follow the findings of the group of medical experts which found the claimant had no permanent impairment to his lower back. The hearing officer adopted the findings of Drs. Reid, Rand and Taber, but rejected the findings of Dr. Bisla and the myelogram findings of Dr. Eisenfeld. At the hearing on the second petition to reopen, three physicians testified. Drs. Reid and Rand never admitted their prior diagnoses were in error but in substance testified that they were not able to diagnose a herniated disc at the prior hearing. The bottom line of their testimony could only be interpreted to indicate that the herniated disc found in Dr. Kelley’s operation was either a new condition or that it was a condition undiscovered by them at the time of the prior hearing. Dr. Kelley did not examine the petitioner until after the award denying the petition to reopen had been entered in the prior petition. When Dr. Kelley operated on petitioner’s back and visually observed the herniated disc, it would appear that a new and previously undiscovered condition was positively confirmed for the first time, and that petitioner should be entitled to industrial benefits.

We cannot logically distinguish the facts in this case from the facts in Garrote and Crocker. In all three cases, the true cause of the worker’s physical problems was not definitely known at the time of the prior award finding no permanent disability. In all three cases, later medical diagnosis was able to determine the true cause of the physical disability.

In our opinion, the doctrine of res judica-ta does not operate to deny an award of benefits under the facts of this case. The award of the Industrial Commission is set aside.

CONTRERAS, P. J., concurs.