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Wyckoff v. Industrial Commission9/12/1991
We conclude that an impairment that compels the termination of an actual military career constitutes a previous disability under A.R.S. § 23-1044(E).
Claimant therefore is entitled to an unscheduled disability.
Because the disability is unscheduled, we need not address the A.L.J.'s adaptation of A.R.S. § 23-1044(B)(21). The denial of reopening, however, is another matter. Regardless of the correct disability classification, claimant may pursue reopening under A.R.S. § 23-1061(H).
The statutory requirements for reopening are a new, additional, or previously undiscovered condition and a causal relationship to the industrial injury . See A.R.S. § 23-1061(H). Although active care for an industrial injury is a benefit obtained by reopening, the supreme court has concluded that active care is not a necessary element for reopening:
Petitioner need not show he is in need of active treatment in order to reopen his claim. He need only show the existence of a new, additional or previously undiscovered condition. The medical benefits available or the appropriate treatment for the new, additional or previously undiscovered condition, as well as any adjustment or modification in the amount of compensation payable, or degree of disability established, can be appraised after the claim has been reopened.
Sneed v. Industrial Comm'n, 124 Ariz. 357, 359, 604 P.2d 621, 623 (1980).
In the present case, both medical experts found bony changes in claimant's injured knee. Dr. Campbell related these changes to the industrial injury . Dr. Moczynski expressed no opinion regarding causation. The only actual conflict concerned whether claimant's current condition required active care. This conflict, however, was immaterial to the right to reopen. Although this court must defer to the A.L.J.'s acceptance of Dr. Moczynski's opinion, see, e.g., Carousel Snack Bar v. Industrial Comm'n, 156 Ariz. 43, 46, 749 P.2d 1364, 1367 (1988), this opinion did not support the denial of reopening.
For the foregoing reasons, we set aside the award.
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