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Kollasch v. Industrial Commission12/14/1989
This is a special action review of an Industrial Commission award terminating temporary benefits without permanent impairment related to the industrial injury . One legal issue is presented: whether acceptance of reopening for a mental condition initially diagnosed as a major depression with mild paranoia but subsequently diagnosed as bipolar disorder (manic/depressive illness) is res judicata and therefore precludes termination of liability based on a subsequent medical opinion that the cause of bipolar disorder is exclusively genetic and is not industrially related. We conclude res judicata does not bar the later termination of benefits. Accordingly, we affirm the award.
Petitioner employee (claimant) was employed by the respondent employer (DPS) as a patrolman. In May, 1980, claimant suffered a compensable lower back injury . In April, 1982, this claim was closed without permanent impairment with a release to return to regular work. Following his release, claimant did not resume patrol duty but performed full-time office work for DPS.
In November, 1982, claimant saw his treating neurosurgeon, John J. Kelley, M.D., who reported that the back condition was unchanged but that claimant
has had increasing problems with mood swings, periods of depression and recurrent nightmares, indecisiveness, temper outbursts, impaired sleep pattern and intermittent alcohol excess.
In the past few days his behavior has been somewhat irrational at times when he has appeared to be out of contact with his environment. He has expressed some mild paranoid ideation and has been subject to some phobias, fears of being alone, etc. There has been no specific suicidal ideation. He is admitted at this time for observation and psychiatric evaluation.
During this hospitalization, claimant was evaluated by a psychiatrist and a psychologist, both of whom prepared written reports. The psychiatrist, Houshang Semino, M.D., tentatively diagnosed a major depressive illness with paranoid features related in part to the industrial injury and resulting inability to work as a patrolman.
On November 18, 1982, claimant pro se filed a petition to reopen for an unspecified condition and supported it with Dr. Kelley's November report. Respondent carrier (SCF) timely denied this petition. See generally A.R.S. ยง 23-1061(I)(requiring acceptance or denial within twenty-one days after receiving notification of petition).
Claimant continued to see Dr. Semino for psychotherapy. In early February, 1983, Dr. Semino reported that DPS had planned to return claimant to patrol work by the end of January, 1983, but that "during a scheduled appointment, [claimant] . . . came to my office and he stated that he had resigned from his position. He, also, stated that he felt he could no longer see mutilated bodies nor perform his other duties as a police officer." Dr. Semino also, with qualification, indicated that when hospitalized in November, 1982, claimant "was found to have a depressive illness with paranoid features . . ." and again concluded that the industrial injury precipitated this condition " espite such predisposing factors as a family history of paranoia."
In June, 1983, psychiatrist Stuart M. Gould, Jr., M.D., evaluated claimant at the request of SCF. He agreed with Dr. Semino's assessment that claimant had suffered a "severe depression with paranoid features" and diagnosed a " ajor affective disorder, with severe depression, which is now currently largely in remission." He also agreed with Dr. Semino that claimant's "depression and paranoid symptom
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