Court: Court of Appeals of Arizona; August 26, 1975; Arizona; State Appellate Court
Herbert Terrell, the petitioner, was injured on February 25, 1969, while working for A C. C Building Wreckers, Inc., which failed to have workmen's compensation insurance. Terrell sought to hold stockholder Frank Collins liable. An award from a hearing officer on January 29, 1971, was affirmed by The Industrial Commission on April 9, 1971. Terrell's initial appeal (referred to as "Terrell one") was filed on May 10, 1971, focusing on Collins' liability, with the court affirming that responsibility lay with A C. C.
On May 14, 1971, Terrell filed a petition to reopen his case, citing new medical evidence of an undiscovered disability. A hearing on this petition took place on February 2, 1972, resulting in a denial of reopening due to the pending appeal in Terrell one. This outcome led to a subsequent appeal ("Terrell two"). Terrell two was later criticized by another case (Castillo v. The Industrial Commission of Arizona), but the Arizona Supreme Court resolved the conflict, reinforcing Terrell two's status as law of the case.
Following the mandate from Terrell two, efforts were made to address the dormant reopening petition. A hearing was scheduled for June 7, 1974, but A C. C’s attorney stated he would not appear, citing Collins' absolution from liability and A C. C's defunct status. During the hearing, Terrell issued a subpoena for Dr. Dvorak, but no other documents were filed or subpoenas requested. The hearing officer presiding had not previously been involved in the case.
The hearing officer determined that only the 29 January 1971 award, which was affirmed by the Commission on 9 April 1971, would be considered, as all prior files had been placed on microfilm. The award was based on a hearing conducted on 4 August 1970, during which it was established that the applicant had been hospitalized for an extended period following an industrial accident on 25 February 1969. Dr. John Eisenbeiss, a neurosurgeon, testified that the applicant's seizures were not related to the accident, attributing them instead to toxic or metabolic disturbances evidenced by EEG results, a negative brain scan, and no head trauma. Consequently, the applicant's request for further hearings to prove head trauma was denied, with findings indicating he had fully recovered from a concussion, and his current symptoms were unrelated to the industrial injury.
The hearing concluded that while the applicant was entitled to compensation for total temporary disability from 25 February 1969 to 22 April 1969, he did not sustain any permanent physical or mental disabilities due to the accident. The petitioner recounted falling 14 feet and being struck on the head by a 2 x 4, asserting that seizures began post-injury. Dr. Dvorak, who examined the petitioner in February 1971 and May 1974, distinguished between seizures of metabolic causes and those of post-traumatic origin. He opined that the seizures observed in May 1974 were linked to the head trauma from 1969, asserting that the timing of evaluation influenced diagnosis. Ultimately, the hearing officer weighed Dr. Dvorak's assessments against the earlier findings from the 29 January 1971 award.
The 1971 award, which faced challenges regarding individual versus corporate responsibility, was deemed final in all other aspects. The applicant holds the burden of proof to establish essential claim elements and entitlement to benefits, particularly when seeking a medical reopening. This requires demonstrating a new, additional, or previously undiscovered physical condition causally related to the original incident, not merely presenting new evidence. The principle of res judicata applies, meaning issues decided in the original findings and award cannot be relitigated.
The 1971 award implicitly recognized the existence of a seizure or blackout condition but concluded these were not causally linked to the industrial incident, attributing them instead to prior toxic or metabolic disturbances. The hearing officer found that the petitioner did not meet the burden of proof necessary to reopen the case, despite the absence of contradictory medical testimony on June 7, 1974. The award was affirmed, with the concurrence of judges Nelson and Wren. No further issues were presented for comment by the Court.
