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Young v. Industrial Commission of Arizona2/11/2003
n., 132 Ariz. 292, 295, 645 P.2d 807, 810 (1982). Accordingly, this court in PFS applied a rebuttable presumption to an out-of-state injury that would have been scheduled in Arizona but did not result in a proven out-of-state award. 191 Ariz. at 278, 955 P.2d at 34.
PFS leads us to the conclusion that an out-of-state award that would be scheduled in Arizona gives rise to a conclusive presumption of an earning capacity disability:
At first glance, the issue before us might seem resolvable by obverting Fremont's holding. Because Fremont treats a prior out-of-state industrial injury that would have been unscheduled in Arizona as if it had been unscheduled and accords it a rebuttable presumption, one might infer that we should treat a prior out-of-state industrial injury that would have been scheduled in Arizona as if it had been scheduled and accord it a conclusive presumption. A missing element, however, prevents the application of this logic.
A central element of Fremont was comity -- the deference courts of one state owe to final judicial decisions of another. 144 Ariz. at 345, 697 P.2d at 1095. Our supreme court attempted in Fremont on the one hand to honor the principle of comity and, on the other, to accept Arizona's designation, rather than another state's potentially different designation, of the kinds of injuries that warrant scheduled compensation. The way to accommodate both considerations, according to Fremont, is to accord comity to the other state's determination of 'the fact and degree of a prior disability,' but to determine the scheduled or unscheduled nature of that disability by reference to Arizona law. Id.
Reading Fremont in this fashion reveals the missing element in this case. Here, because the fact and degree of prior disability were not determined by an out-of-state award, the occasion for comity does not arise. 191 Ariz. at 277-278, 955 P.2d at 33-34. In this case, the element that was "missing" in PFS -- an out-of-state award for an injury that would have been scheduled in Arizona -- is present. Thus, petitioner's California elbow injury enables us to take the Fremont and PFS analysis to its next logical step, and conclude that an out-of-state award that would have been scheduled in Arizona gives rise to a conclusive presumption of an earning capacity disability.
This result is entirely consistent with the longstanding precedent articulated by our supreme court in Ronquillo -- that "where there is a prior scheduled industrially related injury , the Commission may not ignore the previous injury when the workman suffers a second industrial injury." 107 Ariz. at 544, 490 P.2d at 425 (concluding that a second industrial injury should be unscheduled in light of a prior scheduled industrial injury). We decline respondents' implicit invitation to interpret and limit Ronquillo solely to prior Arizona scheduled industrial injuries.
Conclusion
We hold that if a prior out-of-state industrial injury resulted in an award, and if that injury would have been a scheduled award had it occurred in Arizona, resulting earning capacity disability is conclusively presumed. The ALJ erred by applying a rebuttable presumption to petitioner's California elbow injury. Because this error was dispositive, we set aside the award and decision upon review.
LAWRENCE F. WINTHROP, Judge
CONCURRING:
JAMES B. SULT, Presiding Judge
PATRICK IRVINE, Judge
Page 1 2 3 4 Arizona Personal Injury Attorneys
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