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Bayless v. Industrial Commission12/23/1993
Judge and doctor shopping.
Applying our standard of review to this requirement, we defer to the second ALJ's factual findings, but we independently assess whether the evidence supporting the award is qualitatively different from the evidence previously presented. In our opinion, nothing occurring before the surgery was qualitatively different.
Dr. Devine again relied on his clinical judgment and belief that claimant was sincere. He admitted never having reported new neurologic findings. Although he cited the March 1989 addendum as evidence of change, the addendum actually compared claimant's condition in 1989 to his condition in 1984. The subsequent CT scan showed no change compared to the 1987 CT scan. Dr. White, in turn, merely relied on Dr. Devine's opinion that claimant had deteriorated. Dr. White's own evaluation was the same as the 1987 group's evaluation. He simply disagreed with the group's Conclusion. In short, this evidence merely replicated the case for disc pathology that the first ALJ rejected. Reopening on this basis should be precluded.
The surgery, in contrast, provided qualitatively different evidence. Prior to surgery, the experts had disputed whether the diagnostic tests and clinical findings demonstrated nerve root compromise and related radiculopathy. According to Dr. Devine's uncontradicted testimony, the surgery revealed that the disc bulge compressed the nerve root, which was inflamed. The reopening remedy should allow reconsideration of the issue of the authenticity of claimant's complaints in light of this new evidence.
B. Sufficiency of Evidence and Findings
Argonaut also denies the sufficiency of the evidence to support reopening because claimant failed to prove any objective difference in his condition in 1989 compared to his condition in 1987. We disagree that a finding of objective change was necessary.
The ALJ properly relied on Tarpy, which allows reopening for worsened subjective complaints that are industrially related and that result in securing any other benefit allowed under the Workmens' Compensation Act. Tarpy, 138 Ariz. at 396-97, 675 P.2d at 283-84; see also Stainless Specialty Mfg. Co. v. Industrial Comm'n, 144 Ariz. 12, 18-19, 695 P.2d 261, 267-68 (1985) ("reopening is permissible when a change in physical circumstances or medical evaluation creates a need for treatment, and the legitimacy of that need was not and could not have been adjudicated at the time of the last award."). Reopening under Tarpy does not require a finding of objective change. Moreover, in our opinion, the surgical findings would justify reopening under Pascucci v. Industrial Comm'n, 126 Ariz. at 445, 612 P.2d at 905. It follows that reopening for the previously undiscovered nerve compression and irritation does not require a finding of objective change. See Crocker v. Industrial Comm'n, 124 Ariz. 566, 568-69, 606 P.2d 417, 419-20 (1980).
For these reasons, we affirm the award.
JOE W. CONTRERAS, Judge
CONCURRING:
EINO M. JACOBSON, Presiding Judge
JEFFERSON L. LANKFORD, Judge
Page 1 2 3 4 5 6 7 Arizona Personal Injury Attorneys
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