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Wyckoff v. Industrial Commission9/12/1991
This is a special action review of an Arizona Industrial Commission award terminating temporary benefits with a 20% scheduled disability compensated at 75% of the average monthly wage and denying reopening of the claim. Because the disability classification should have been unscheduled and insufficient evidence supported denial of reopening, we set aside the award.
I. FACTUAL AND PROCEDURAL HISTORY
In 1977, after serving some twenty-two years in the United States Marine Corps, petitioner employee (claimant) was involuntarily discharged because of a 10% military disability because of asthma. He then was forty-one years old. After the discharge, claimant never was refused civilian employment because of the asthma, but he voluntarily quit one job constructing boats in 1978 because of intolerance to fiberglass dust.
In 1984, while working as an electrician, claimant injured his left knee. Respondent carrier (Fremont) accepted compensability. Claimant was then earning $8.00 an hour and about $1,385.00 a month. His average monthly wage was established at the statutory
maximum ($1,325.00). See A.R.S. ยง 23-1041.
Treatment for this injury included four left knee surgeries. In March 1987, the treating physician, Dr. Edward Campbell, Jr., an orthopedic surgeon, reported that the left knee was stationary with a 20% permanent impairment. Fremont then terminated temporary benefits with the recommended impairment and a scheduled disability. Claimant protested, asserting, among other things, that the disability should be unscheduled.
Hearings ensued. Claimant testified that he intended to remain in the Marine Corps, but that his asthma disability cut short his career. Claimant sought to testify about his pay rate in the service, but the Administrative Law Judge (A.L.J.) excluded this testimony. He also excluded testimony about claimant's general reaction to dust.
The A.L.J. issued an award for a 20% scheduled disability. On appellate review, this court set aside the award. See Wyckoff v. Industrial Comm'n, 1 CA-IC 88-130 (App. April 20, 1989) (memorandum decision). Because Fremont did not argue that a disability for military service is legally insufficient to establish an earning capacity disability, the court did not address this issue. Rather, the court concluded that the A.L.J. had misevaluated the factual sufficiency of the evidence:
If any actual or potential effect on employability constitutes an earning capacity disability, the evidence that the asthma disabled claimant from military service and the boat-making job obviously satisfies this standard. If, however, the standard is one of fact, the administrative law judge erred by excluding evidence relevant to this factual determination. Claimant was not permitted to testify concerning how dust affects his asthma. Without this evidence, the administrative law judge could not accurately assess the potential effects of the asthma on claimant's earning capacity.
Id., slip op. at 14 (citation and footnotes omitted).
Pending a de novo hearing on permanent disability, claimant filed a petition to reopen the claim. Fremont denied reopening, and claimant protested this denial. The permanent disability and reopening issues were then consolidated for hearing.
At the hearings, claimant, a labor consultant, and two medical experts testified. Claimant reiterated that his asthma ended his military career and he received a 10% military disability. Although the asthma was diagnosed some fourteen years before the discharge, it first affected his fitness for Marine Cor
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