Court: Court of Appeals of Arizona; May 14, 1969; Arizona; State Appellate Court
The case involves Edith U. Piepkorn's petition against The Industrial Commission of Arizona concerning the denial of her request to reopen a workers' compensation claim related to injuries sustained on February 14, 1958. Following her injury, the Commission closed her case on March 31, 1961, affirming a prior denial to reopen the claim, which became final. Piepkorn sought to reopen her claim again on November 24, 1965, but this request was denied on January 16, 1968, prompting her to seek judicial review.
The Court addressed two main questions: first, whether a qualified doctor's opinion that was unfavorable to Piepkorn and based on a review of her medical file could be considered by the Commission; and second, whether the evidence warranted granting her petition to reopen.
The factual background reveals that Piepkorn's initial complaints involved her right hand, arm, and shoulder, with subsequent low back issues arising after a myelogram in May 1959. Medical evaluations indicated that her low back pain began shortly after the myelogram, which was corroborated by various medical consultations. In 1966, Piepkorn underwent surgery for a herniated disc at the L4-L5 level.
The case reflects complex procedural history and medical evaluations surrounding Piepkorn's claims of ongoing pain and the subsequent actions taken by the Industrial Commission in response to her requests for reopening her workers' compensation claim.
Following the nerve root resection, it was determined that both the nerve root and the cord were freely moveable. Two doctors, Dr. Scheetz and Dr. Gregory, based their opinions on the relationship between a 1958 injury and a subsequent 1966 surgery solely on the petitioner’s account, without reviewing The Industrial Commission file. Dr. Scheetz indicated that if there had been no low back pain complaints until after a 1959 myelogram, he could not reasonably connect her issues to the 1958 incident. He noted that the petitioner had reported recurring problems since prior to the myelogram. Dr. Gregory acknowledged that a lack of low back complaints between February 1958 and after the 1959 myelogram would affect his opinion. He assumed a low-back injury occurred in February 1958 based on the petitioner's claims of injury at that time.
The hearing referee recommended reopening the case, prompting The Industrial Commission to refer the file for an orthopedic examination to assess the link between the 1966 protruded disc discovery and the 1958 industrial incident. Dr. Walter V. Edwards, the Medical Director, advised that an orthopedic examination would not yield useful findings due to the postoperative state of the patient. However, he suggested that a review by an experienced orthopedic surgeon, such as Dr. James Lytton-Smith, could address the questions raised. The file was subsequently sent to Dr. Lytton-Smith for review, and his report was shared with the petitioner’s counsel, who expressed a desire to cross-examine Dr. Lytton-Smith in a subsequent hearing.
The hearing on 14 September 1967 involved the applicant's attorney requesting to cross-examine Dr. Lytton-Smith. The petitioner's counsel aimed to provide testimony regarding the incident's mechanism and the applicant's history since the last hearing. This request was objected to and denied, with the Commission attorney noting that much of the proposed testimony was already covered in previous transcripts. Dr. Lytton-Smith opined that there was no causal link between the February 1958 industrial incident and the back pain that began in May 1959, based solely on the review of the applicant's medical file without a physical examination. The court found Dr. Lytton-Smith qualified to testify despite not examining the petitioner post-surgery. The Industrial Commission's denial to reopen the case was upheld, as there was a conflict of professional opinions that favored the Commission's decision. Chief Justice Donofrio concurred, while Judge Cameron dissented, arguing that Dr. Lytton-Smith's testimony was not competent to override previous physical examinations and that the denial of the applicant's right to testify before a new referee compromised her fair hearing rights. Cameron criticized the reliance on testimony based solely on file reviews, suggesting it carries less weight than physical examination evidence.
The Commission has the authority to seek additional medical testimony and examinations to clarify diagnoses and resolve evidence conflicts. However, utilizing this process solely to create evidence conflicts to deny a petitioner’s industrial claim is inappropriate and raises concerns about fairness. Although the petitioner did not explicitly raise the issue of being denied the opportunity to testify on appeal, it is critical to address this matter due to its implications for a fair hearing. The petitioner bears the burden of proof to establish entitlement to compensation, a standard that remains unchanged even when a case is reopened. While the petitioner initially presented her case, she should have been permitted to provide further testimony during the subsequent hearing to adequately meet her burden. The Industrial Commission is not bound by the referee's findings, which are advisory, but the right to appear before the referee is significant. The decision-making process is ultimately the responsibility of the Commission, even when it has not directly observed witness demeanor. Therefore, if witness demeanor is crucial, substituting hearing officers without considering this factor could lead to unfair outcomes; however, if demeanor is not significant, such substitutions may not result in unfairness.
Preventing the loss of witness demeanor is crucial in cases where it significantly influences the outcome. In this instance, the demeanor of the petitioner was deemed critical amidst conflicting medical evidence. The first referee, having assessed all witnesses in person, recommended granting the petition to reopen. In contrast, the second referee relied solely on one doctor's testimony—someone who had not examined the petitioner—and recommended denial based on limited evidence. Although it is suggested that the outcome might not have changed had the petitioner testified at the second hearing, the key issue is whether she should have been allowed to do so. It is argued that she should have been permitted to testify, as there was no error in this decision, and observing her demeanor under oath would not have prejudiced the new referee. Therefore, the refusal to allow her testimony was erroneous, leading to a recommendation to set aside the Commission's award.
