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Hester v. Industrial Commission9/28/1993
WEISBERG, Judge
This is a review of an Arizona Industrial Commission ("commission") award denying permanent partial disability benefits for a November 1979 industrial knee injury because a March 1979 industrial back injury had caused either a greater "previous disability" under Ariz. Rev. Stat. Ann. ("A.R.S.") section 23-1044(E) (1983) or a greater earning capacity disability that developed after and was unaggravated by the November 1979 injury . Petitioner employee ("claimant") challenges the sufficiency of the findings, which simply incorporated respondent carrier's ("U.S.F. & G.") post-hearing memorandum, and the sufficiency of the evidence of a "previous disability."
We conclude that the findings are sufficient to permit effective appellate review. Concerning the merits of the award, although we agree with claimant that he did not have a "previous disability" under the statute, we agree with U.S.F.& G. that claimant cannot recover twice for the same disability under Hoppin v. Industrial Comm'n, 143 Ariz. 118, 692 P.2d 297 (App. 1984). We accordingly affirm the award.
A. FACTS AND PROCEDURAL HISTORY
Although this review arises out of the November 1979 injury , the parties address both this injury and the earlier one. In March 1979, while working as a form setter for an employer insured by U.S.F. & G., claimant injured his back ("injury #1"). U.S.F. & G. accepted compensability, and the commission set the average monthly wage at the then applicable statutory maximum. See A.R.S. § 23-1041(E). After injury #1, claimant continuously complained of back and radiating leg pain.
In October 1979, claimant returned to work as a form setter for respondent employer ("Huber"), which also had compensation coverage with U.S.F. & G. In November 1979, claimant injured his left knee ("injury #2"). U.S.F. & G. accepted compensability for this injury , and the commission again set the average monthly wage at the statutory maximum.
Injury #2 required multiple knee surgeries. Claimant remained temporarily totally disabled until approximately September 1982, when an independent medical panel from the Southwest Disability Evaluation Center released him to regular work. Meanwhile, according to claimant, U.S.F. & G. had closed the injury #1 claim in late 1979 without permanent impairment.
After the 1982 release, claimant performed his regular work until approximately 1986. U.S.F. & G. subsequently reopened the injury #2 claim and authorized another knee surgery. It ultimately reclosed this claim with an unscheduled disability. In January 1988, the commission awarded claimant monthly permanent partial disability benefits of $411.05 based upon his capacity to perform light assembly work. See A.R.S. § 23-1047.
In late 1988 or early 1989, for the first time since injury #1 was closed, claimant sought medical treatment for his back. The injury #1 claim was reopened and claimant had lower back surgery. In May 1990, U.S.F. & G. reclosed claim #1 with permanent impairment.
The commission subsequently issued an award for no loss of earning capacity related to injury #1, which claimant protested. In September 1991, U.S.F & G. and claimant settled this dispute. See generally Safeway Stores, Inc. v. Industrial Comm'n, 152 Ariz. 42, 48, 730 P.2d 219, 225 (1986)(approving post-compensability settlements). They agreed upon monthly permanent partial disability benefits of $514.72; the commission approved this settlement and entered an award for the sti
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