This is a review of an Industrial Commission award allowing a claimant who failed to contest a finding of no permanent disability to reopen his claim notwithstanding the fact that there was no change in his physical condition. The issue before this court is whether this result is required under the decision of Gallegos v. Industrial Commission, 144 Ariz. 1, 695 P.2d 250 (1985).
In 1965, the claimant, Albert Epstein, fractured his right leg and ankle when he fell from a roof to a concrete floor. The State Compensation Fund (Fund) accepted this claim and he was subsequently discharged with a 25% impairment of the right lower extremity.
After returning to work, the claimant suffered several other industrial injuries to his right ankle, claims for which were accepted, and closed without additional permanent impairment.
On August 27, 1983, the claimant again injured his right ankle. At this time his employer's compensation carrier was Mission Insurance Company (Mission). Treating orthopedic surgeon Jon B. Wang, M.D., diagnosed torn medial and lateral right ankle ligaments. He took the claimant off work, and prescribed an ankle brace. Two weeks later, Dr. Wang noted that the claimant was fully weight-bearing in his ankle brace. Dr. Wang rechecked the claimant on October 17, 1983, at which time the claimant reported that he was getting along well at work and had nearly returned to his pre-1983 injury level. Dr. Wang noted that the industrial injury was "improving," and he recommended that the claimant continue to work, but he did not discharge him. The claimant failed to return for further treatment or evaluation.
On November 11, 1983, Mission issued a notice closing the claim effective October 17, 1983 without permanent impairment. The claimant did not protest the termination notice, which accordingly became final. See A.R.S. § 23-947.
In May 1985, Dr. Wang reexamined the claimant at Mission's request. Dr. Wang's physical findings closely paralleled the October 17, 1983 findings. X-rays also demonstrated no change. For the first time, however, Dr. Wang concluded, based upon the passage of time, that the 1983 industrial injury was "stable, and on the basis of that injury alone he [the claimant] would have an 11 percent permanent impairment to the right lower extremity."
At the scheduled hearing, the claimant testified that he had some residual ankle stiffness and soreness after the 1967 medical release, which prevented him from climbing. The soreness progressively worsened over the years and with each additional ankle injury. Concerning the 1983 injury, the claimant denied that Dr. Wang mentioned a follow-up evaluation. He also testified that he attempted to work despite worsening foot and ankle pain, leg instability, and severe low back pain. He ultimately quit working because he could no longer stand on his leg. On cross-examination, he explained that he had not protested the November 1983 termination notice because he thought his current symptoms would resolve.
Dr. Wang confirmed that in October 1983 he had advised the claimant to return if he had continuing problems. He testified, however, that he did not then indicate that the industrial injury was stationary or express an opinion about impairment because it was too soon to evaluate whether the result of the injury was permanent. He also confirmed that the claimant's physical condition had not changed between October 1983 and May 1985. His opinion that the industrial injury had resulted in a permanent impairment was based on the persistence of symptoms. He explained that the 1983 injury involved damaged ankle ligaments, whereas the 1965 injury involved fractured ankle bones. On cross-examination, Dr. Wang conceded that he had not reviewed the 1967 discharge report and that the claimant's ankle probably was abnormal because of his prior injuries. Despite the absence of comparative evidence, Dr. Wang reiterated on re-direct his opinion that the August 1983 injury rated an additional 11% permanent impairment.
A medical report which was the result of a group consultation consisting of Drs. John P. Utz, Lloyd S. Anderson and Bertram G. Kwasman, was admitted into evidence. This report concluded:
However, both Doctors Utz and Kwasman when called to testify said they would either defer to or agree with Dr. Wang's opinion that the claimant suffered an additional 11% impairment to the right ankle as the result of the 1983 injury. Both doctors agreed that the physical condition of claimant's right ankle in 1983 when his claim was closed was the same as in 1985 when they examined him.
The Administrative Law Judge then issued the award reopening the August 1983 injury claim. He accepted Drs. Wang and Kwasman's opinion that this injury had caused an additional 11% permanent right lower extremity impairment. Based on this, he concluded that:
After affirmance on administrative review, this special action followed.
On review, Mission asserts that preclusion applies to this case. It argues that the Administrative Law Judge misapplied Gallegos because the claimant's physical condition was unchanged and the claimant could have challenged the termination notice based on the same evidence he presented to support reopening. In any event, it is argued that the evidence supporting reopening is speculative.
Before beginning an analysis of Gallegos, we dispose of Mission's contention that it is inapplicable because Gallegos involved a rearrangement under A.R.S. § 23-1044(F) while this case involves a reopening under A.R.S. § 23-1061(H). This difference does not distinguish Gallegos in principle. Both rearrangement and reopening are statutory exceptions to finality. See Calixto v. Industrial Commission, 126 Ariz. 400, 616 P.2d 75 (App. 1980). Moreover, Gallegos was concerned with the res judicata effect of the awards of the commission, which is the exact principle Mission wishes to apply here. We therefore conclude that Gallegos is as applicable to reopenings as it is to rearrangements. See Church of Jesus Christ of Latter Day Saints v. Industrial Commission, 150 Ariz. 495, 724 P.2d 581 (App. 1986).
We turn then to an analysis of Gallegos. In Gallegos, the claimant, following his injury, worked at a job which paid $8.00 an hour, which was in excess of his pre-injury earnings. However, at the time the Commission determined his loss of earning capacity, he was earning only the minimum wage, a fact not conveyed to the Commission. Therefore, the Commission's order reflected the prior working experience, that is, that he had no loss of earning capacity. This order was allowed to become final. Several years later, Gallegos filed a petition for rearrangement, contending he was only earning a minimum wage. The Supreme Court disagreed with the Court of Appeals' analysis that in determining whether a reduction in earning capacity had occurred between the date of the award and the date of the petition for rearrangement, a comparison of the facts as they actually existed on both dates must be undertaken. Rather, the Supreme Court took the position that regardless of what the claimant's earning capacity was at the time of the award, the principles of res judicata established the controlling "facts" at that time as those which were set out in the award. Thus the Supreme Court concluded:
144 Ariz. at 5, 695 P.2d at 254.
The result in Gallegos is clearly applicable here. We merely need to compare the previous notice of claim status finding no permanent disability with Dr. Wang's opinion that the claimant now has an 11% permanent disability to establish the "change" allowing reopening.
However, since cases governed by Gallegos are frequently the subject of inquiry in the Workers' Compensation field and because the result reached in Gallegos appears to be contrary to the Supreme Court's decision in Stainless Specialty Mfg. Co. v. Industrial Commission, 144 Ariz. 12,
144 Ariz. at 15, 695 P.2d at 264 (emphasis added).
Moreover, the court conceded that res judicata serves to preclude all questions existing and known at the time of the award.
The principle underlying reopening is that something factually happens between the date of the original award and the time when reopening becomes appropriate. As Stainless Specialties points out:
144 Ariz. at 16, 695 P.2d at 265, quoting Zagar v. Industrial Commission, 40 Ariz. 479, 486-87, 14 P.2d 472, 474 (1932).
Thus, it is the relief valve contained in the reopening procedure which provides for contingencies which are incapable of being determined for all time. There is a difference, however, between making allowances for future changes measured against "facts" which have been or could have been determined and precluding an inquiry into what those "facts" were so that future developments can be measured. This is particularly true when the "facts" are really opinions of an expert witness which the original fact finder accepted as true. Thus, it can be argued that it is not the "fact" found by the award which gives rise to principles of preclusion, but rather a determination of what facts were litigated or could have been litigated so that these same facts will not again be the subject of judicial inquiry. Were it otherwise, judicial inquiry would be endless. Gallegos appears to be to the contrary.
If there is anything subject to further inquiry in Gallegos it is the observation that it seems to run counter to the proposition embodied in A.R.S. § 23-947(B)
Because of this resolution, we do not reach the issue of whether the Fund's reliance on Payne v. Industrial Commission, 136 Ariz. 105, 664 P.2d 649 (1983), as alternative authority supports the award.
Mission finally argues that the medical evidence that the Administrative Law Judge accepted failed to support reopening. We agree that the cross-examination of Dr. Wang undercut his opinion that the August 1983 injury caused a specific loss of range of motion. But Dr. Wang also made it clear that this was not the primary basis for his rating of an impairment:
For the foregoing reasons, we affirm the award.
KLEINSCHMIDT, P.J., and EUBANK, J., concur.