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Dutton v. Industrial Commission12/12/1989
This is a special action review of an Industrial Commission award reclosing a claim. The issue is whether a determination of the claimant's lost earning capacity was correct. The administrative law judge concluded that the prior final award, which was based on a stipulated earning capacity, was conclusive. Because the administrative law judge failed to make a finding concerning whether the stipulation was based on a mutual mistake of fact, we set aside the award.
The claimant injured his lower back in 1979 while working as a landscaper. After disc surgery, the injury became stationary in July 1981 with a 10% permanent impairment. The respondent carrier, Fidelity & Casualty Company, then paid tuition and tool expenses for claimant to take a correspondence program in locksmithing.
The claimant subsequently began work as a self-employed locksmith. By December 1981, his lower back symptoms had worsened, and he sought additional medical treatment. On January 18, 1982, the claimant signed a release acknowledging that Fidelity had paid him $1,000 and had agreed to pay him an additional $2,000 "upon receipt of the NO LEC Award" from the Commission. This release also reserved for Fidelity a $3,000 credit against future permanent disability benefits. That same day, the claimant and Fidelity executed and submitted to the Commission a stipulation for entry of an award for no lost earning capacity based on claimant's ability to earn "in excess of $794.16 per month [the average monthly wage]" as a locksmith. The stipulation referred to the fact that the carrier had paid the claimant's tuition for a course in locksmithing and had advanced "additional monies" to the claimant to assist him in starting his business as a locksmith. The claimant was then twenty-six years old, had a high school education, and was unrepresented by counsel.
On March 25, 1982, the Commission issued the requested award, which was explicitly and exclusively based on the stipulation. On April 14, 1982, claimant executed a waiver of rehearing and appeal rights.
The claimant, whose symptoms had persisted, learned that he had a recurrent herniated disc, which his physician related to his previous industrial injury . On April 22, 1982, the claimant petitioned to reopen. See generally A.R.S. § 23-1061(H) (1983). After this petition was denied, the claimant retained his current counsel and ultimately prevailed on appeal. See Dutton v. Industrial Comm'n, 140 Ariz. 448, 682 P.2d 453 (App.1984). The claimant received medical and temporary disability benefits until April 1986. Fidelity then reclosed the claim with an unscheduled "permanent partial disability" and also provided supportive medical care. These notices did not mention the March 1982 award of no lost earning capacity.
The reclosed claim was referred to the Commission for an earning capacity assessment. See generally A.R.S. §§ 23-1044(F) (Supp.1988), 23-1047(A), (B) (1983). After requesting and receiving a functional limitations profile from the treating physician, the Commission issued an award for permanent partial disability based on the capacity to earn only $502.63 per month as a parking lot cashier. This entitled claimant to a benefit of approximately $160 per month.
Fidelity timely protested this award and hearings ensued. Fidelity asserted that claimant's earning capacity was conclusively established by the 1982 stipulation that he could earn "in excess of $794.16" per
month as a locksmith. The claimant accepted the written report of his functional
Page 1 2 3 4 5 Arizona Personal Injury Attorneys
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